EXHIBIT 10.35
GENERAL RELEASE AND SETTLEMENT AGREEMENT
WHEREAS the employment relationship between Xxxxxxx Xxx ("Employee") and
Avant! Corporation ("Employer") is to terminate on July 25, 2001 because of
Employee's resignation;
WHEREAS the Employee and Employee are desirous of terminating Employee's
employment with Employer amicably; and
WHEREAS for good and valuable consideration, rendered to resolve and
settle finally, fully and completely all matters or disputes that now exist or
may exist between them, the Parties below enter into this General Release and
Settlement Agreement ("Agreement"):
1. PARTIES. The Parties to this Agreement are Xxxxxxx Xxx, his family,
heirs, representatives, executors, administrators, beneficiaries, attorneys and
agents (hereafter referred to collectively as "Wuu" or "Employee") and Avant!
Corporation and/or any of its successors, predecessors, subsidiaries,
affiliates, relates companies, officers, Board Members, employees, consultants,
representatives, agents and attorneys (hereinafter referred to collectively as
"Avant!" "Employer" or "Company").
2. RESIGNATION. Wuu's last day of employment will be July 25, 2001
("Effective Date of Resignation"). Avant! agrees to provide Wuu with his wages
and benefits through the Effective Date of Resignation, less normal payroll
deductions. All stock options which have been granted to Wuu, but which unvested
as of his Effective Date of Resignation will be subject to accelerated vesting.
Wuu will have Two (2) years from the Effective Date of Resignation to exercise
his options. All outstanding repurchase rights applicable to any common stock
previously issued to Wuu by Avant! shall terminate upon the Effective Date of
this Agreement.
(a) Avant! and Wuu acknowledge and agree that Wuu has been paid all
wages, including salary and accrued vacation pay, and any bonus, pension,
retirement, or any other payments or benefits due him for his employment
through the Effective Date of Resignation, and that all wages and other
entitlements ceased to accrue from and after the Effective Date of Resignation.
In light of the payment by Avant! of all wages due or to become due to Wuu, the
Parties acknowledge and agree that California Labor Code Section 206.5 is not
applicable. Section 206.5 provides in pertinent part: "No employer shall
require the execution of any release of any claim unless payment of such wages
has been made." Wuu shall have the option to convert and continue his health
insurance after the Effective Date of Resignation, as may be required or
authorized by law under the Consolidated Omnibus Budget Reconciliation Act of
1985 ("COBRA"). Wuu's participation and termination from all other benefit
programs, if applicable, will be processed in accordance with the plan
documents of such benefit programs.
3. CONSIDERATION. In consideration for Avant! permitting Wuu to
voluntarily resign from his employment, and in further consideration for Wuu
waving and revoking
all rights under the Employment Agreement dated October 1, 2000 referred to in
Section 3(a) below and in return for the releases and covenants not to xxx
contained in this Agreement, the Parties agrees to the following:
(a) The Parties hereby mutually revoke and rescind the Employment
Agreement entered into on October 1, 2000 between Xxxxxxx Xxx and Avant! Company
and the Amendment to Severance Agreement entered into between Xxxxxxx Xxx and
Avant! Corporation dated December 15, 1999, as well as all previous written and
oral agreement between the Parties, which may still be in effect, other than as
may be reserved in this Agreement.
(b) Wuu will resign his employment with Avant! as well as all positions
he holds with the Company as of July 25, 2001.
(c) Avant! will pay Wuu the total gross sum of one million fifty thousand
dollars ($1,050,000.00)(the "settlement proceeds") in three (3) equal
installments as follows: three hundred and fifty thousands dollars ($350,000.00)
will be paid to Wuu on or about January 2, 2002; three hundred and fifty
thousand dollars ($350,000.00) will be paid to Wuu on or about January 2, 2003;
and three hundred and fifty thousand dollars ($350,000.00) will be paid to Wuu
on or about January 2, 2004. No taxes will be withheld from these payments, but
a Form 1099 will be issued to Wuu for the payments. Wuu and his legal counsel
agree and acknowledge that the payments issued under this Agreement are not paid
in lieu of wages, salary, bonuses or for any other similar compensation and are
not recognized as such, but are made in consideration for the cancellation of
Wuu's employment contract. The payments will be in full and complete
satisfaction of all claims that Wuu has or may have against Avant! Wuu agrees to
defend and indemnify Avant! and hold Avant! harmless of and from any claim for
liability, including, but not limited to attorneys' fee for not withholding
taxes from said payments. (d) Wuu and or his estate will be entitled to receive
the settlement proceeds set forth above provided Wuu complies with the
provisions of Section 3(e) and (g), Section 5, Section 8 and Section 14 of this
Agreement and the Proprietary Information and Inventions Agreement.
(e) Wuu will not directly solicit, induce, recruit or encourage any
employees or consultants of Avant! to leave their employment, not terminate or
abridge their consulting relationships, nor shall Wuu attempt or assist any
others to do so through July 26, 2004. This restriction on non-solicitation of
employees and consultants is not intended to prohibit Wuu from being employed
in the EDA industry and/or in competition with Avant!, provided that Wuu
himself does not engage directly in the solicitation of such employees of
consultants in violation of this Section 3(e).
(f) Avant! waives any right to reimbursement from Wuu for finds or
attorneys' fees paid or incurred on behalf of Wuu through the date of this
Agreement. Avant! shall, to maximum extent permitted by Avant!'s corporate
governing documents and Delaware law, indemnify, defend and hold Wuu harmless
for any acts or omissions or decisions made by Wuu, which were within the
course and scope of his
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employment with Avant! This indemnification shall include costs incurred by Wuu
as a party or witness, arising out of his employment and in connection with the
defense of any claim, action, suit, proceeding or investigation (whether
administrative, civil or criminal) and appeal, brought against Avant!
(g) Wuu will return to the Company all personal property,
confidential and proprietary information, equipment, credit cards, computers,
cell phones, materials, files, data, lists, reports, correspondence, records and
all documents, including copies, made available to him, prepared by him or used
by him during his employment within five (5) calendar days of his execution of
this Agreement. Wuu agrees not to disclose or use for any purpose such
information, records and documents, without the written permission of the
Company. The Proprietary Information and Inventions Agreement entered into by
Wuu remains binding and effective and incorporated by reference into this
Agreement.
(h) In the event of a "Change of Control" as defined herein, any
outstanding settlement proceeds as set forth in Section 3(c) of this Agreement
will accelerate and become due and payable immediately to Wuu. A "Change In
Control" shall men the occurrence of any of the following events after the
Effective Date of this Agreement and prior to January 2, 2004: (i) the
consummation of a merger or consolidation of the Company with or into another
entity or any other corporate reorganization, if more than 50% of the combined
voting power of the continuing or surviving entity's securities outstanding
immediately after such merger, consolidation or other reorganization is owned by
persons who were not stockholders of the Company immediately prior to such
merger, consolidation or other reorganization; or (ii) the sale, transfer,
exchange or other disposition of all or substantially all of the Company's
assets.
4. RELEASE OF CLAIMS. Wuu, in consideration of the payments described
herein, hereby releases and discharges Avant! from any and all actions, causes
of action, claims, or charges arising out of his employment and/or termination
of employment, including, but not limited to, claims for compensation under any
compensation plan maintained by the Company; claims associated with the criminal
case brought against Wuu (except as provided in Section 3(f) of this Agreement);
claims for wrongful termination; claims for breach of contract, breach of his
Employment Agreement dated October 1, 2000 and Amendment to Severance Agreement
dated December 15, 1999; breach of the covenant of good faith and fair dealing
or violation of public policy; claims for misrepresentation, fraud, negligence,
infliction of emotional distress; claims for misrepresentation, fraud,
negligence, infliction of emotional distress; claims for discrimination or
harassment on the basis of age, alienage, citizenship, creed, mental or physical
disability; gender, marital status; medical condition, national origin, race,
religion, sex or sexual orientation (or any other characteristic protected by
federal, state or local statutes and/or regulations); claims for
whistle-blowing, invasion of the right to privacy; libel, slander or defamation;
claims for wages, bonus, compensation; expense reimbursement, vacation,
compensatory time, severance, benefits or any other sum or money or thing
whatsoever; common law claims; claims related to disability; family medical
leave under state and/or federal laws; claims for attorneys' fees, expenses and
costs (except as provided in Section 3(f) of this Agreement); claims for
violations of the
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California Fair employment and Housing Act; Title VII of the 1964 Civil Rights
Act, as amended; the Civil Rights Act of 1866; the Age Discrimination in
Employment Act, the California Labor Code; the Equal Pay Act; the Americans with
Disabilities Act of 1991; the Rehabilitation Act of 1973; the Fair Labor
Standards Act; any wage order promulgated by the California Industrial Welfare
Commission; the federal Family and Medical Leave Acts; the California Family
Rights Act; the California Constitution; the California Labor Code, including
all amendments to any of the aforementioned Acts and statutes; claims for
violations of any other federal, state, local and/or municipal fair employment
statutes or law, or violations of any other law, rule, regulation, or ordinance
pertaining to employment, wages, compensation, hours worked, or any other aspect
of Wuu's employment relationship with the Company through the Effective Date of
this Agreement. Wuu does not waive his right to enforce this Agreement.
a. Wuu represents that he has no physical or mental disability
resulting from his employment with the Company that would form the basis for a
Workers' Compensation claim.
x. Xxx acknowledges that he is familiar with the provisions of Section
1542 of the California Civil Code, 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.
Being aware of said Code section, Wuu hereby expressly waives and relinquishes
any rights or benefits he may have hereunder, as well as under any other state
or federal statutes or common law principles of similar effect.
x. Xxx agrees that he has not and will not file or cause to be filed a
charge or claim, xxx or cause or permit to be filed any civil action, suit or
legal proceeding seeking personal, equitable or monetary relief for Wuu in
connection with any matter occurring at any time in the past concerning Wuu's
employment relationship with the Company, and the criminal case/investigation
arising form his employment with Avant!, up to and including the date of this
Agreement or involving any continuing effects of any acts or practices which may
have arisen or occurred on or prior to the date of this Agreement. Wuu further
agrees and covenants that should any person, organization, or other entity file,
charge, claim, xxx or cause or permit to be filed any civil action, suit or
legal proceeding involving any matter occurring at any time in the past, Wuu
will not seek or accept any personal relief (including, but not limited to,
monetary relief) in such civil action, suit or proceeding.
x. Xxx agrees that Section 4 of this Agreement releases the Company
from liability to the fullest extent permitted by law.
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5. CONFIDENTIALLY. Wuu agrees that the terms and conditions of this
Agreement and any and all actions by the Parties in accordance therewith are
strictly confidential, except that Wuu may disclose the terms of this Agreement
to his spouse, legal counsel, financial and tax advisor's, and as may be
required by law. Should Wee be subpoenaed to give testimony regarding this
Agreement or should this Agreement be subpoenaed by a third party, Wuu will
give Avant! notice of such fact within three (3) calendar days, and Avant!
reserves the right to raise appropriate defenses and/or represent Wuu or
provide him with legal counsel in order to protect the confidentiality of this
Agreement. Wuu agrees to take all reasonable steps necessary to ensure that the
confidentiality of this Agreement is maintained by any of the individuals
referenced above to whom disclosure is authorized and agrees to accept
responsibility for any breach of confidentiality by said individuals to whom
disclosure of the Agreement is made. The Parties agree that a breach of this
Section is a material breach of the Agreement.
6. NO ADMISSION OF LIABILITY. By entering into this Agreement, Avant!
and Wuu do not admit any liability whatsoever to the other or to any other
person arising out of any claims heretofore or hereafter asserted by Wuu or
Avant!, and both Parties expressly deny any and all such liability
7. REFERENCES. Wuu will direct all request for verification of his
employment to the General Counsel, who shall inform the requesting party that
the Company's policy permits only disclosure of Wuu's dates of employment and
last position held, and only that information will be disclosed.
8. NONDISPARAGEMENT. Wuu will not say anything, either orally or in
writing, that does or could disparage Avant!, or any of its officers,
directors, employees, consultants, agents or representatives or which does or
could disparage the Company's reputation or services in the marketplace. Avant!
will not disparage Wuu either orally or in writing, and Avant! will take
reasonable steps to ensure that Directors and corporate officers of the Company
do not make disparaging statements, either orally or in writing about Wuu. This
Section 8 is not intended to prevent Wuu or any other person from testifying
truthfully under oath as might be required in any legal or administrative
action, and any such testimony is expressly excluded from the effect of this
Section.
9. TAX CONSEQUENCES. The Company makes no representations or warranties
with respect to the tax consequences of the payment of any sums to or on behalf
of Wuu under the terms of this Agreement. The Company agrees to make Wuu whole
with regard to the taxability of any fines or attorneys' fees paid to or on
behalf of Wuu as a result of the criminal case entitled People of the State of
California x. Xxxxx! Corporation, et al. No. 210570, Superior Court of the State
California, County of Santa Xxxxx. This tax indemnification provision and any
obligation of Avant!'s to "gross up" said payment pursuant to this Section 9,
will be specifically contingent upon Avant!'s timely receipt of Wuu's prepared
tax and/or estimated tax returns, which must be presented to Avant! for
inspection and approval (with regard to the tax treatment of the payment of
fines and/or attorney's fees by Avant!) and be provided by Avant! at least
Sixty (60) calendar days prior to the filing of each return, including any
estimated tax reporting of any "gross up" amounts received by Wuu from Avant!
pursuant to this Agreement. Provided Wuu complies with the conditions set forth
in this Section 9, Avant! agrees to make any required payments to Wuu no later
than fifteen (15) calendar days before the date on which such payment is due to
be paid by Wuu.
10. JOINT PARTICIPATION IN PREPARATION OF AGREEMENT. The Parties hereto
participated jointly in the negotiation and preparation of this Agreement, and
each Party has had the opportunity to obtain the advice of legal counsel and to
review, comment upon, and redraft this Agreement. Accordingly, it is agreed
that no rule of construction shall apply against any Party or in favor of any
Party. This Agreement shall be construed as if the Parties jointly prepared
this Agreement, and any uncertainty or ambiguity shall not be interpreted
against any one Party and in favor of the other.
11. ATTORNEYS' FEES AND COSTS. Each Party will be responsible for his or
its own attorneys' fees and costs in finalizing this Agreement.
12. SEVERABILITY, JURISDICTION AND GOVERNING LAW. Should any part, term
or provision of this Agreement, including any Exhibits, be declared or be
determined by any court to be illegal or invalid for any reason, the validity of
the remaining parts, terms and provisions shall not be affected thereby and
said illegal or invalid part, term or provision shall be deemed not to be a
part of this Agreement. The Parties further agree that California law shall
govern the validity and interpretation of this Agreement and that jurisdiction
and/or venue of any action involving the validity, interpretation or
enforcement of this Agreement or any of its terms, provisions or obligations or
claiming breach thereof, shall exist exclusively in a court or government agency
located within San Francisco, California. Wuu expressly consents to personal
jurisdiction in San Francisco, California, with respect to any such action, and
further agrees that service upon him can be affected through his attorneys,
Xxxxxx Xxxx, Esq., Xxxxxx, Xxxxxx & Xxxxx, LLP.
13. NO PRIOR ASSIGNMENT. Wuu represents and warrants that he has not
previously assigned or transferred, or purported to assign or transfer, to any
person or entity any claims or other matter released by Wuu in this Agreement.
The Parties mutually represent that each has the authority to enter into this
Agreement.
14. FUTURE COOPERATION. Upon request by Avant! Wuu agrees to cooperate
to the extent necessary to protect the interests of Avant!, including without
limitation, in providing any information that he has about
Avant!'s business and its operations and/or in providing truthful testimony as
a witness or declarant in connection with any potential or future litigation,
dispute, claim, investigation or regulatory matter which may arise as to which
Wuu has or may have any relevant information.
15. WAIVER. The waiver by a Party of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent
breach.
16. KNOWING AND VOLUNTARY WAIVER/REVOCATION.
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a. Wuu acknowledges and agrees that, in deciding to execute this
Agreement, he has had the opportunity to consult with legal, financial and other
personal advisors of his own choosing as he deems appropriate, in assessing
whether to execute this Agreement. Wuu represents and acknowledges that no
representation, statement, promise, inducement, threat or suggestion has been
made by Avant! to influence Wuu to sign this Agreement except such statements as
are expressly set forth herein. Wuu acknowledges that he has executed this
Agreement voluntarily and with full understanding of its terms and effects. Wuu
further agrees that no fact, evidence, event or transaction currently unknown to
him but which hereafter may become known to him shall affect in any way or
manner the final and unconditional nature of this Agreement.
x. Xxx acknowledges and understands that the release of claims under
the Age Discrimination in Employment Act ("ADEA") is subject to special waiver
protections under 29 U.S.C. Section 626 (f). In accordance with that provision,
Wuu specifically agrees that he knowingly and voluntarily releases any rights or
claims of discrimination under the ADEA. In particular, Wuu acknowledges that he
understands the following: (i) he is not waiving rights or claims under the ADEA
that may arise after the date he signs this Agreement; (ii) he is waiving rights
or claims under the ADEA in exchange for the payments and promises described in
this Agreement, which are in addition to anything of value to which he already
is entitled; (iii) he is advised to consult with an attorney before signing this
Agreement; (iv) he has twenty-one (21) days within which to consider this
Agreement, but may voluntarily elect to waive this twenty-one (21) day period;
and (v) he will have seven (7) days after the date he signs this Agreement
within which to revoke it, and the Agreement shall not become effective or
enforceable as to any Party and no payments shall be due, owing, or paid by the
Company until the eighth (8th) day following the date on which Wuu signs this
Agreement ("Effective Date of this Agreement").
x. Xxx and Avant! mutually agree to execute such other documents and
to take such other actions as may be reasonably necessary to further the
purposes of this Agreement.
17. ARBITRATION. In the event that a dispute arises concerning the
interpretation or enforcement of this Agreement, Avant! and Wuu agree that such
dispute shall be resolved through submission of the dispute to arbitration
before JAMS. This arbitration provision shall not apply to actions by either
Party seeking temporary, preliminary or final injunctive relief to prevent or
restrain alleged violations of any provisions of the Proprietary Information and
Inventions Agreement, Section 3(e) and (g), Section 5 and Section 14 of this
Agreement. Before Wuu initiates a proceeding involving an assertion that this
Agreement, or any part of it, is void, Wuu shall first place in an escrow
account pending the outcome of the proceeding all consideration that he has
received under this Agreement.
18. BINDING EFFECT. The provisions of this Agreement shall be binding
upon, and inure to the benefit of the Parties and the Parties' heirs,
administrators, legal
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representatives, executors, beneficiaries, successors, predecessors and
assigns, including any reconstituted form of Avant! resulting from Avant!'s
participation in any merger, acquisition, consolidation, affiliation, joint
venture or reorganization.
19. ENTIRE AGREEMENT. This Agreement and the Proprietary Information and
Inventions Agreement constitute the complete understanding between Wuu and
Avant! and supersede any and all prior agreements, promises, representations,
or inducements, no matter its or their form, concerning its subject matter. No
promises or agreements made subsequent to the execution of this Agreement by
these Parties shall be binding unless reduced to writing and signed by
authorized representatives of these Parties.
20. SECTION HEADINGS. The Section Headings are for convenience only and in
no way define, limit, extend or interpret the scope of this Agreement or any
particular section or paragraph herein.
21. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one instrument.
22. EFFECTIVE DATE OF THIS AGREEMENT. The Effective Date of this Agreement
will be on the eight (8th) day after the Agreement is executed by Wuu.
Date: 7/25/2001 /s/ Xxxxxxx Xxx
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Xxxxxxx Xxx
Avant!
Date: 7/25/2001 /s/ Xxxx Xx
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Xxxx Xx
Chief Operating Officer
