CONFIDENTIAL RETIREMENT AGREEMENT AND GENERAL RELEASE OF CLAIMS
Exhibit
10.46
CONFIDENTIAL RETIREMENT AGREEMENT
AND GENERAL RELEASE OF CLAIMS
AND GENERAL RELEASE OF CLAIMS
1. Xxxxx Xxxxxx (“Executive”) has been employed by Trident Microsystems, Inc.
(the “Company”) since January 2008, and she is currently employed by the Company as its Vice
President of Human Resources and Administration. Executive wishes to retire from her employment
with the Company (and her employment, if any, with any of the Company’s direct or indirect
subsidiaries), and it is the Company’s desire to ensure that there is a smooth and orderly
transition of Executive’s duties, to provide Executive with certain separation benefits that she
would not otherwise be entitled to receive upon her retirement, and to resolve any claims that
Executive has or may have against the Company. Accordingly, Executive and the Company agree as set
forth below. This Agreement will become effective on the eighth day after it is signed by
Executive (the “Effective Date”), provided that Executive has not revoked this Agreement (by email
notice to xxxxxxxxxx@xxxxxxxxxxxx.xxx) prior to that date.
2. Executive hereby elects to retire voluntarily from her employment with the
Company (and, to the extent applicable, its direct and indirect subsidiaries) effective as of
January 12, 2010 (the “Retirement Date”), and thus the parties agree that all such employment will
terminate upon the Retirement Date.
3. During the period between the date of this Agreement and the Retirement Date
(the “Transition Period”), Executive will continue to perform her duties for the Company in a
professional and timely manner to the full satisfaction of the Company. Executive shall also work
with the Company to ensure an orderly and complete transition of her duties by the Retirement Date.
During the Transition Period, the Company will continue to provide Executive with her current base
salary and employee fringe benefits, and Executive’s unvested stock options shall continue to vest
during the Transition Period. Upon the Retirement Date, Executive will be paid all of her accrued,
unused paid time off that she earned during her employment with the Company. Executive will also
receive the earned portion of her first half of FY2010 Incentive Bonus (i.e, for the period July 1,
2009 through December 31, 2009), which bonus will be paid to her at the same time that it is paid
to other Company executives, provided the Company’s targets have been achieved for such period.
4. Subject to Executive’s strict compliance with all the terms of this
Agreement, and to her extension of the release of claims in Paragraphs 5 and 6 as described below,
the Company will provide Executive with the following:
(a) a lump sum retirement payment of $245,916.67, which shall be subject to applicable
withholding and will be paid to Executive on January 12, 2010;
(b) in the event that Executive timely elects to obtain continued group health insurance
coverage under COBRA following the Retirement Date, the Company will pay the premiums for such
coverage through the earlier of (i) January 31, 2011, or (ii) the first date on which Executive
becomes eligible to obtain other group health insurance coverage; thereafter, Executive may elect
to purchase continued group health insurance coverage under COBRA at her own expense; and
Confidential
1
(c) with respect to any stock options granted to Executive by the Company that have become
fully or partially vested by the Retirement Date, Executive shall be entitled to exercise her right
to purchase such vested stock options at any time up to and including the one year anniversary of
the Retirement Date; Executive shall not be entitled to any additional vesting of her Company stock
options after the Retirement Date, and except as modified by this Paragraph 4(c), Executive’s
Company stock options shall continue to be subject to and governed by the terms and conditions of
the applicable Company stock option plans and stock option agreements between Executive and the
Company.
In the event of any material breach by Executive of any of the provisions of this Agreement,
Executive shall not be entitled to receive any payments or benefits under this Paragraph 4, and her
failure to receive any of these payments and/or benefits as a result of her material breach shall
not affect or impair the validity of the remainder of this Agreement, including, but not limited
to, Paragraphs 5 through 9. Executive acknowledges and agrees that she shall not be entitled to
any payments or benefits from the Company other than those expressly set forth in Paragraphs 3 and
4.
5. In consideration of the payments and benefits described in Paragraph 4,
Executive and her successors release the Company, its parents, divisions, direct and indirect
subsidiaries, and affiliated entities, and each of their respective current and former
shareholders, investors, directors, officers, employees, agents, attorneys, insurers, legal
successors and assigns of and from any and all claims, actions and causes of action, whether now
known or unknown, which Executive now has, or at any other time had, or shall or may have against
those released parties based upon or arising out of any matter, cause, fact, thing, act or omission
whatsoever occurring or existing at any time up to and including the date on which Executive signs
this Agreement, including, but not limited to, any claims of breach of contract, wrongful
termination, retaliation, fraud, defamation, infliction of emotional distress or national origin,
race, age, sex, sexual orientation, disability or other discrimination or harassment under the
Civil Rights Act of 1964, the Age Discrimination In Employment Act of 1967, the Americans with
Disabilities Act, the Fair Employment and Housing Act or any other applicable law. As further
consideration for the payments and benefits described in Paragraph 4, Executive shall extend this
release of claims through and including the Retirement Date by re-executing this Agreement on the
space provided at the end of the Agreement on or after the Retirement Date. Notwithstanding the
above release of claims, it is expressly understood that this release does not apply to, and shall not be construed as, a
waiver or release of any claims or rights that cannot lawfully be released by private agreement,
including any applicable statutory indemnity rights under the California Labor Code.
6.Executive acknowledges that she has read section 1542 of the Civil Code of
the State of California, which states in full:
A general release does not extend to claims which the creditor does not know
or suspect to exist in her or her favor at the time of executing the
release, which if known by her or her must have materially affected her or
her settlement with the debtor.
Executive waives any rights that she has or may have under section 1542 (or any similar provision
of the laws of any other jurisdiction) to the full extent that she may lawfully waive
Confidential
2
such rights pertaining to this general release of claims, and affirms that she is releasing all known and
unknown claims that she has or may have against the parties listed above.
7. Executive acknowledges and agrees that she shall continue to be bound by and
comply with the terms of any proprietary rights, assignment of inventions and/or confidentiality
agreements between the Company and Executive. On or before the Retirement Date, Executive will
return to the Company, in good working condition, all Company property and equipment that is in
Executive’s possession or control, including, but not limited to, any files, records, computers,
computer equipment, cell phones, credit cards, keys, programs, manuals, business plans, financial
records, and all electronic or paper documents (and any copies thereof) that Executive prepared or
received in the course of her employment with the Company.
8. Executive agrees that she shall not directly or indirectly disclose any of
the terms of this Agreement to anyone other than her immediate family or counsel, except as such
disclosure may be required for accounting or tax reporting purposes or as otherwise may be required
by law. Executive further agrees that she will not, at any time in the future, make any critical
or disparaging statements about the Company, or any of its products or its employees, except to the
extent that such statements are made truthfully in response to a subpoena or other compulsory legal
process.
9. Executive agrees that for a period of one year following the Retirement Date,
she will not, on behalf of herself or any other person or entity, directly or indirectly solicit
any employee of the Company to terminate her/her employment with the Company.
10. If any provision of this Agreement is deemed invalid, illegal, or
unenforceable, that provision will be modified so as to make it valid, legal, and enforceable, or
if it cannot be so modified, it will be stricken from this Agreement, and the validity, legality,
and enforceability of the remainder of the Agreement shall not in any way be affected. In the event of any legal action relating to or arising
out of this Agreement, the prevailing party shall be entitled to recover from the losing party its
attorneys’ fees and costs incurred in that action.
11. The Company intends that income provided to the Executive pursuant to this
Agreement will not be subject to taxation under Section 409A of the Internal Revenue Code (“Section
409A”). The provisions of this Agreement shall be interpreted and construed in favor of satisfying
any applicable requirements of Section 409A of the Code. However, the Company does not guarantee
any particular tax effect for income provided to the Executive pursuant to this Agreement. In any
event, except for the Company’s responsibility to withhold applicable income and employment taxes
from compensation paid or provided to the Executive, the Company shall not be responsible for the
payment of any applicable taxes incurred by the Executive on compensation paid or provided to the
Executive pursuant to this Agreement. In the event that any compensation to be paid or provided to
Executive pursuant to this Agreement may be subject to the excise tax described in Section 409A,
the Company may delay such payment for the minimum period required in order to avoid the imposition
of such excise tax.
12. This Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior negotiations and agreements between
the parties, whether written or oral, with the exception of any stock option or other equity
agreements between the parties and any agreements described in Paragraph 7. This Agreement
Confidential
3
may not be modified or amended except by a document signed by an authorized officer of the Company and
Executive.
EXECUTIVE UNDERSTANDS THAT SHE SHOULD CONSULT WITH AN ATTORNEY PRIOR TO SIGNING THIS AGREEMENT
AND THAT SHE IS GIVING UP ANY LEGAL CLAIMS (AS DESCRIBED ABOVE IN PARAGRAPHS 5 AND 6) SHE HAS
AGAINST THE PARTIES RELEASED ABOVE BY SIGNING THIS AGREEMENT. EXECUTIVE FURTHER UNDERSTANDS THAT
SHE MAY HAVE UP TO 21 DAYS TO CONSIDER THIS AGREEMENT, THAT SHE MAY REVOKE IT AT ANY TIME DURING
THE 7 DAYS AFTER SHE SIGNS IT, AND THAT IT SHALL NOT BECOME EFFECTIVE UNTIL THAT 7-DAY PERIOD HAS
PASSED. EXECUTIVE ACKNOWLEDGES THAT SHE IS SIGNING THIS AGREEMENT KNOWINGLY, WILLINGLY AND
VOLUNTARILY IN EXCHANGE FOR THE COMPENSATION AND BENEFITS DESCRIBED IN PARAGRAPH 4, WHICH
COMPENSATION AND BENEFITS SHE WOULD NOT OTHERWISE BE ENTITLED TO RECEIVE.
| Dated: January 6, 2010 | /s/ Xxxxx Xxxxxx | |||
| TRIDENT MICROSYSTEMS, INC. |
||||
| Dated: January 7, 2010 | By: | /s/ Xxxxx X. Xxxxxxxxx | ||
| Its: Senior Vice President, General Counsel | ||||
| & Corporate Secretary |
||||
By re-signing this Agreement on or after the Retirement Date, I hereby extend the release of claims
set forth in Paragraphs 5 and 6 above so as to include any and all such claims that exist or arise
at any time up to and including the Retirement Date. I also acknowledge and agree that I have been
paid all wages (including base salary, paid time off, and bonuses) that I earned during my
employment with the Company.* I understand that I may revoke this extension of the release of
claims at anytime within the seven days following my re-execution of the Agreement, which
revocation must be made in the manner described in the last sentence of Paragraph 1.
| Dated: January 14, 2010 | /s/ Xxxxx Xxxxxx | |||
| * | Subject to any FY2010 bonus which may become payable in the future in accordance with the last sentence of Paragraph 3 of this Agreement. |
Confidential
4
