EXHIBIT 10.19
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release ("Agreement") is made by and
between GENUS, INC. (the "Company"), and XXXX XXXXXXXXX ("Employee").
WHEREAS, Employee was employed by the Company;
WHEREAS, Employee and the Company entered into a Letter Agreement dated
January 9, 1998.
WHEREAS, the Company and Employee have entered into a Change of Control
Severance Agreement (the "Change of Control Agreement") .
WHEREAS, the Company and Employee have mutually agreed to terminate the
employment relationship and to release each other from any claims arising from
or related to the employment relationship;
NOW THEREFORE, in consideration of the mutual promises made herein, the
Company and Employee (collectively referred to as "the Parties") hereby agree
as follows:
1. RESIGNATION. Employee resigns his employment with the Company
effective June 30, 1998.
2. CONSIDERATION. The Company agrees to pay Employee at his normal
rate of pay of four thousand two hundred sixty nine Dollars and twenty three
cents ($4,269.23) per week, less applicable withholding, for nine (9) months
from the effective date of his resignation (the "payment period"), in
accordance with the Company's payroll practices, up to and including the
closing date of the sale of certain assets of the Ion Implantation systems
business to Varian Associates, Inc. (the "Closing Date"). As of the Closing
Date, however, all remaining pay due under this agreement shall accelerate and
become due and owing. During the payment period, Employee will not be
entitled to the accrual or continuation of any employee benefits, including,
but not limited to, vacation benefits or bonuses.
3. VESTING OF STOCK. The Parties agree that for purposes of
determining the number of shares of the Company's common stock which Employee
is entitled to purchase from the Company, Employee's vesting shall cease as of
the date of this Agreement. The exercise of any stock options shall continue
to be subject to the terms and conditions of the Company's Stock Option Plan
and the applicable Stock Option Agreement between Employee and the Company.
4. BENEFITS. Employee shall have the right to convert his health
insurance benefits to individual coverage pursuant to COBRA.
5. CONFIDENTIAL INFORMATION. Employee shall continue to maintain the
confidentiality of all confidential and proprietary information of the Company
and shall continue to comply with the terms and conditions of any
Confidentiality Agreement between Employee and the Company. Employee shall
return all the Company property and confidential and proprietary information
in his possession to the Company on the Effective Date of this Agreement.
6. PAYMENT OF SALARY. Employee acknowledges and represents that the
Company has paid all salary, wages, bonuses, accrued vacation, commissions and
any and all other benefits due to Employee.
7. RELEASE OF CLAIMS. Employee agrees that the foregoing consideration
represents settlement in full of all outstanding obligations owed to Employee
by the Company. Employee and the Company, on behalf of themselves, and their
respective heirs, family members, executors, officers, directors, employees,
investors, shareholders, administrators, affiliates, divisions, subsidiaries,
predecessor and successor corporations, and assigns, hereby fully and forever
release each other and their respective heirs, family members, executors,
officers, directors, employees, investors, shareholders, administrators,
affiliates, divisions, subsidiaries, predecessor and successor corporations,
and assigns, from, and agree not to xxx concerning, any claim, duty,
obligation or cause of action relating to any matters of any kind, whether
presently known or unknown, suspected or unsuspected, that any of them may
possess arising from any omissions, acts or facts that have occurred up until
and including the Effective Date of this Agreement including, without
limitation,
(a) any and all claims relating to or arising from Employee's
employment relationship with the Company and the termination of that
relationship;
(b) any and all claims relating to, or arising from, Employee's
right to purchase, or actual purchase of shares of stock of the Company,
including, without limitation, any claims for fraud, misrepresentation, breach
of fiduciary duty, breach of duty under applicable state corporate law, and
securities fraud under any state or federal law;
(c) any and all claims for wrongful discharge of employment;
termination in violation of public policy; discrimination; breach of contract,
both express and implied; breach of a covenant of good faith and fair dealing,
both express and implied; promissory estoppel; negligent or intentional
infliction of emotional distress; negligent or intentional misrepresentation;
negligent or intentional interference with contract or prospective economic
advantage; unfair business practices; defamation; libel; slander; negligence;
personal injury; assault; battery; invasion of privacy; false imprisonment;
and conversion;
(d) any and all claims for violation of any federal, state or
municipal statute, including, but not limited to, Title VII of the Civil
Rights Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in
Employment Act of 1967, the Americans with Disabilities Act of 1990, the Fair
Labor Standards Act, the Employee Retirement Income Security Act of 1974, The
Worker Adjustment and Retraining Notification Act, Older Workers Benefit
Protection Act; the California Fair Employment and Housing Act, and Labor Code
section 201, ET SEQ. and section 970, ET SEQ.;
-2-
(e) any and all claims for violation of the federal, or any state,
constitution;
(f) any and all claims arising out of any other laws and
regulations relating to employment or employment discrimination; and
(g) any and all claims for attorneys' fees and costs.
The Company and Employee agree that the release set forth in this section
shall be and remain in effect in all respects as a complete general release as
to the matters released. This release does not extend to any obligations
incurred under this Agreement.
8. ACKNOWLEDGMENT OF WAIVER OF CLAIMS UNDER ADEA. Employee
acknowledges that he is waiving and releasing any rights he may have under the
Age Discrimination in Employment Act of 1967 ("ADEA") and that this waiver and
release is knowing and voluntary. Employee and the Company agree that this
waiver and release does not apply to any rights or claims that may arise under
ADEA after the Effective Date of this Agreement. Employee acknowledges that
the consideration given for this waiver and release Agreement is in addition
to anything of value to which Employee was already entitled. Employee further
acknowledges that he has been advised by this writing that (a) he should
consult with an attorney PRIOR to executing this Agreement; (b) he has at
least twenty-one (21) days within which to consider this Agreement; (c) he has
at least seven (7) days following the execution of this Agreement by the
parties to revoke the Agreement; and (d) this Agreement shall not be effective
until the revocation period has expired.
9. CIVIL CODE SECTION 1542. The Parties represent that they are not
aware of any claim by either of them other than the claims that are released
by this Agreement. Employee and the Company acknowledge that they have been
advised by legal counsel and are familiar with the provisions of California
Civil Code Section 1542, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT
THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.
Employee and the Company, being aware of said code section, agree to
expressly waive any rights they may have thereunder, as well as under any
other statute or common law principles of similar effect.
10. NO PENDING OR FUTURE LAWSUITS. Employee represents that he has no
lawsuits, claims, or actions pending in his name, or on behalf of any other
person or entity, against the Company or any other person or entity referred
to herein. Employee also represents that he does not intend to bring any
claims on his own behalf or on behalf of any other person or entity against
the Company or any other person or entity referred to herein.
-3-
11. APPLICATION FOR EMPLOYMENT. Employee understands and agrees that,
as a condition of this Agreement, he shall not be entitled to any employment
with the Company, its subsidiaries, or any successor, and he hereby waives any
right, or alleged right, of employment or re-employment with the Company.
Employee further agrees that he will not apply for employment with the
Company, its subsidiaries or related companies, or any successor.
12. CONFIDENTIALITY. The Parties hereto each agree to use their best
efforts to maintain in confidence the existence of this Agreement, the
contents and terms of this Agreement, and the consideration for this Agreement
(hereinafter collectively referred to as "Settlement Information"). Each
Party hereto agrees to take every reasonable precaution to prevent disclosure
of any Settlement Information to third parties, and each agrees that there
will be no publicity, directly or indirectly, concerning any Settlement
Information. The Parties hereto agree to take every precaution to disclose
Settlement Information only to those employees, officers, directors,
attorneys, accountants, governmental entities, and family members who have a
reasonable need to know of such Settlement Information.
13. NO COOPERATION. Employee agrees he will not act in any manner that
might damage the business of the Company. Employee agrees that he will not
counsel or assist any attorneys or their clients in the presentation or
prosecution of any disputes, differences, grievances, claims, charges, or
complaints by any third party against the Company and/or any officer,
director, employee, agent, representative, shareholder or attorney of the
Company, unless under a subpoena or other court order to do so.
14. NON-DISPARAGEMENT. Each party agrees to refrain from any
defamation, libel or slander of the other, or tortious interference with the
contracts and relationships of the other. All inquiries by potential future
employers of Employee will be directed to the Company 's Human Resources
department. Upon inquiry, the Company shall only state the following:
Employee 's last position and dates of employment.
15. TAX CONSEQUENCES. The Company makes no representations or
warranties with respect to the tax consequences of the payment of any sums to
Employee under the terms of this Agreement. Employee agrees and understands
that he is responsible for payment, if any, of local, state and/or federal
taxes on the sums paid hereunder by the Company and any penalties or
assessments thereon. Employee further agrees to indemnify and hold the Company
harmless from any claims, demands, deficiencies, penalties, assessments,
executions, judgments, or recoveries by any government agency against the
Company for any amounts claimed due on account of Employee's failure to pay
federal or state taxes or damages sustained by the Company by reason of any
such claims, including reasonable attorneys' fees.
16. COSTS. The Parties shall each bear their own costs, expert fees,
attorneys' fees and other fees incurred in connection with this Agreement.
17. ARBITRATION. The Parties agree that any and all disputes arising
out of the terms of this Agreement, their interpretation, and any of the
matters herein released, shall be subject to
-4-
binding arbitration in Santa Xxxxx county (if Employee is a California
resident) or Employee's home county before the American Arbitration
Association under its California Employment Dispute Resolution Rules or by a
judge to be mutually agreed upon. The Parties agree that the prevailing party
in any arbitration shall be entitled to injunctive relief in any court of
competent jurisdiction to enforce the arbitration award. The Parties agree
that the prevailing party in any arbitration shall be awarded its reasonable
attorney's fees and costs.
18. AUTHORITY. The Company represents and warrants that the undersigned
has the authority to act on behalf of the Company and to bind the Company and
all who may claim through it to the terms and conditions of this Agreement.
Employee represents and warrants that he has the capacity to act on his own
behalf and on behalf of all who might claim through him to bind them to the
terms and conditions of this Agreement. Each Party warrants and represents
that there are no liens or claims of lien or assignments in law or equity or
otherwise of or against any of the claims or causes of action released herein.
19. NO REPRESENTATIONS. Each party represents that it has had the
opportunity to consult with an attorney, and has carefully read and
understands the scope and effect of the provisions of this Agreement. Neither
party has relied upon any representations or statements made by the other
party hereto which are not specifically set forth in this Agreement.
20. SEVERABILITY. In the event that any provision hereof becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement shall continue in full force and effect without said
provision.
21. ENTIRE AGREEMENT. This Agreement represents the entire agreement
and understanding between the Company and Employee concerning Employee's
separation from the Company, and supersedes and replaces any and all prior
agreements and understandings concerning Employee's relationship with the
Company and his compensation by the Company.
22. NO ORAL MODIFICATION. This Agreement may only be amended in writing
signed by Employee and the President of the Company.
23. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of California.
24. EFFECTIVE DATE. This Agreement is effective seven days after it has
been signed by both Parties.
25. COUNTERPARTS. This Agreement may be executed in counterparts, and
each counterpart shall have the same force and effect as an original and shall
constitute an effective, binding agreement on the part of each of the
undersigned.
26. VOLUNTARY EXECUTION OF AGREEMENT. This Agreement is executed
voluntarily and without any duress or undue influence on the part or behalf of
the Parties hereto, with the full intent of releasing all claims. The Parties
acknowledge that:
-5-
(a) They have read this Agreement;
(b) They have been represented in the preparation, negotiation, and
execution of this Agreement by legal counsel of their own choice or that they
have voluntarily declined to seek such counsel;
(c) They understand the terms and consequences of this Agreement
and of the releases it contains; and
(d) They are fully aware of the legal and binding effect of this
Agreement.
-6-
IN WITNESS WHEREOF, the Parties have executed this Agreement on the
respective dates set forth below.
GENUS, Inc.
Dated: May 5, 1998 By /s/ XXXXXXX X.X. XXXXX
--------------------------------------
Xxxxxxx X. X. Xxxxx
Chairman of the Board
Xxxx Xxxxxxxxx, an individual
Dated: May 5, 1998 /s/ XXXX XXXXXXXXX
--------------------------------------------
Xxxx Xxxxxxxxx
-7-
