EXHIBIT 10.1
SEPARATION AND TRANSITION AGREEMENT AND RELEASE
The parties to this Separation Agreement and Release (Agreement) are Pixelworks,
Inc. (Employer), and Xxxxxxx Xxxxxx (Employee).
RECITALS
A. Employer is terminating employment with Employee; and
B. Employee elects to receive severance pay and related benefits under
this Agreement under the terms and conditions set forth below.
AGREEMENT
Therefore, in consideration of the mutual promises set forth below, the parties
agree as follows:
1. EMPLOYMENT TERMINATION. Employee's last day of employment with Employer
shall be December 4, 2006 ("Termination Date").
2. PAYMENT.
Wages. Employee has received all accrued wages owing through the
date hereof. On the Termination Date, Pixelworks shall pay Employee all
accrued wages and Paid Time Off accrued through the Termination Date.
Severance. In consideration of the releases contained herein,
Employee shall receive twenty eight (28) weeks base salary, payable no
later than the standard Company pays period next after January 1, 2007.
Employer shall withhold taxes from this severance pay in accordance with
all federal, state and local laws.
Transition. In consideration of the transition commitments contained
in paragraph 9 hereof, and contingent upon the full performance of those
commitments and all other commitments contained herein, Employee shall
receive an additional twenty four (24) weeks base salary, payable no later
than the standard Company pay period next after March 4, 2007 (the
"Transition End Date," and the period between the Termination Date and the
Transition End Date being the "Transition Period.")
3. STOCK/OPTIONS. Upon termination date, Pixelworks shall deliver to Employee
a Closing Statement of stock options. Employee may exercise options as
defined in the Closing Statement. Employee acknowledges that any dollars
voluntarily deducted for the Pixelworks Employee Stock Purchase Plan
during the current six-month period will be reimbursed to Employee with
final pay on date of termination.
4. EMPLOYEE BENEFIT PLANS. Employee shall be entitled to Employee's rights
under Employer's benefit plans as such plans, by their provisions, apply
upon Employee's termination. Employee's coverage under Employer's health
insurance plan ends on January 1, 2006. If eligible, and if properly
elected, Employee may continue health insurance benefits as provided under
federal COBRA regulations. If Employee properly elects COBRA continuation,
Employer shall make a contribution in the amount equal to the employer
portion of premium costs for six (6) months, which shall be deducted from
the first twelve payments to be made by the Employee. Except for
this payment as provided in this paragraph, Employee shall be responsible
for all payments under COBRA for continuation of health insurance
benefits.
5. GENERAL RELEASE: In consideration of the benefits provided in this
Agreement, Employee releases Employer, its directors, officers,
shareholders, agents, employees, attorneys, insurers, related
corporations, successors and assigns, from any and all liability, damages,
or causes of action, whether known or unknown, whether in tort, contract,
or under state or federal statute. Employee understands and acknowledges
that this release includes, but is not limited to any claim for
reinstatement, re-employment, attorney fees or additional compensation in
any form, and any claim, including but not limited to those arising under
the Rehabilitation Act of 1973, Title VII of the Civil Rights Act of 1964,
the Civil Rights Act of 1991, the Post Civil War Civil Rights Act (42
U.S.C. 1981-88), the Equal Pay Act the Americans with Disabilities Act,
the Vietnam Era Veterans Readjustment Assistance Act, the Fair Labor
Standards Act, the Family Medical Leave Act of 1993, the Uniformed
Services Employment and Re-employment Rights Act, the Consolidated Omnibus
Budget Reconciliation Act of 1985 (COBRA), the Employee Retirement Income
Security Act of 1975 (ERISA), Executive Order 11246, as amended, and the
civil rights, employment, and labor laws of any state and any regulation
under such authorities relating to Employee's employment or association
with Employer or the termination of that employment and association.
Notwithstanding that this Agreement is to be interpreted under the laws of
the State of Oregon, Employee waives any limitation on this release under
California Civil Code Section 1542, and any other state statute, which
provides that a general release does not extend to claims which a person
does not know or suspect to exist in his/her favor at the time of
executing the release which, if known, must have materially affected
his/her decision to grant the release.
5A RELEASE OF RIGHTS UNDER OLDER WORKERS' BENEFIT PROTECTION ACT In
accordance with the Age Discrimination in Employment Act and Older
Workers' Benefit Protection Act (collectively, the "Act"), Employee
acknowledges that (1) S/he has been and hereby is advised in writing to
consult with an attorney prior to executing this Agreement; (2) S/he is
aware of certain rights to which s/he may be entitled under the Act; (3)
as consideration for executing this Agreement, Employee has received
additional benefits and compensation of value to which s/he would
otherwise not be entitled, and (4) by signing this Agreement, s/he will
not waive rights or claims under the Act which may arise after the
execution of this Agreement; (5) Employee has been given a period of at
least 45 days from December 4, 2006 to consider this offer; (6) if s/he
signs the Agreement prior to the 45th day, s/he does so voluntarily; (7)
Employee acknowledges in the event s/he has not executed this Agreement by
January 31, 2007, the offer shall expire; (8) Employee further
acknowledges that s/he has a period of seven (7) days from the date of
execution in which to revoke this Agreement by written notice to Xxx
Xxxxxx, Pixelworks, Inc.; and (9) in the event Employee does not exercise
the right to revoke this Agreement, the Agreement shall become effective
on the date (the "Effective Date") immediately following the seven-day
waiting period described above.
6. RETURN OF COMPANY PROPERTY. Employee agrees that on December 4, 2006, s/he
will return to Employer all property belonging to Employer, including, but
not limited to keys, credit cards, telephone calling card, files, records,
computer access codes, computer hardware, computer programs, instruction
manuals, business plans, and all other property and documents which
Employee prepared or received in connection with his/her employment with
Employer.
7. NON-DISCLOSURE/NON-DISPARAGEMENT. Except as otherwise required by law and
except as provided in this paragraph, Employee shall keep confidential
both the existence and terms of this Agreement. Employee may disclose its
terms to his/her lawyers, accountants, and spouse, so
long as they agree not to disclose the Agreement and its terms. Any
disclosure by such lawyers, accountants, or Employee's spouse shall
constitute a breach of this Agreement by Employee, entitling Employer to
liquidated damages in the amount of severance paid to Employee hereunder,
in addition to such other damages Employer is otherwise entitled to.
Employee will not make any malicious or false remarks about Employer, its
officers, directors or employees. Employee further agrees to refrain from
making any negative statements regarding Employer to any third parties or
any statements which could be construed as having or causing a diminishing
effect on Employer's reputation, goodwill or business.
8. NO ADMISSION OF LIABILITY. Employee agrees that nothing in this Separation
Agreement and Release, its contents, and any payments made under it, will
be construed as an admission of liability on the part of Employer.
Employee acknowledges that neither race, religion, color, sex, sexual
orientation, marital status, national origin, age, disability or other
protected status played any role in the termination of Employee's
employment.
9. TRANSITION COMMITMENT. In consideration of the Transition Payment to be
provided under paragraph 2 hereof upon satisfactory completion of the
commitments of this paragraph, Employee commits to the following things
during the transition period:
Transition Assistance. Employee shall provide such transition
assistance as is requested by the CEO or the COO of Pixelworks, during the
Transition Period. All out of pocket expenses reasonably incurred in
providing such assistance shall be reimbursed by Pixelworks, on
Pixelworks' standard reimbursement policies and subject to provision of
documentation required under such policies. Assistance shall not be
scheduled at times that unreasonably interfere with either Employee's
search for future employment, or performance of duties pursuant to that
employment.
Nonsolicitation. Except with the express written permission of
Pixelworks Employee shall not recruit, solicit, or offer to employ, nor
assist others directly or indirectly to identify for possible employment
or to recruit, solicit, interview, or offer to employ, any employee of
Pixelworks.
10. GOVERNING LAW AND FORUM. This Agreement shall be interpreted and enforced
in accordance with the laws of the State of Oregon, without regard to
conflict of law principles. In the event of any suit, action or
arbitration to interpret or enforce this Agreement, the prevailing party
shall be entitled to its attorney fees, costs, and out-of-pocket expenses,
at trial, arbitration, and on appeal. The exclusive jurisdiction for any
action to interpret or enforce this Agreement shall be the appropriate
state or federal court located in Multnomah County, Oregon.
11. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon Employee's
heirs, executors, administrators and other legal representatives and may
be assigned and enforced by Employer, its successors and assigns.
12. SEVERABILITY. The provisions of this Agreement are severable. If any
provision of this Agreement or its application is held invalid, the
invalidity shall not affect other obligations, provisions, or applications
of this Agreement which can be given effect without the invalid
obligations, provisions, or applications.
13. WAIVER. The failure of either party to demand strict performance of any
provision of this Agreement shall not constitute a waiver of any
provision, term, covenant, or condition of this agreement or of the right
to demand strict performance in the future.
14. SECTION HEADINGS. The section headings contained herein are for reference
purposes only and will not in any way affect the meaning or interpretation
of this Agreement.
15. ENTIRE AGREEMENT. Employee remains bound by the terms of any and all
agreements Employee entered into with Employer with respect to
confidential information, non-competition, assignment of inventions and
non-solicitation. Except as otherwise provided in this Section 14, this
Agreement constitutes the entire agreement between the parties and
supersedes all prior or contemporaneous oral or written understandings,
statements, representations or promises with respect to its subject
matter.
16. VOLUNTARINESS. Employee acknowledges that (1) s/he has been given
sufficient time to consider this Agreement, (2) s/he has carefully read
and understands this Agreement, (3) s/he has been advised in writing to
consult with an attorney prior to executing this Agreement, and (4) s/he
has signed it voluntarily.
XXXXXXX X. XXXXXX PIXELWORKS, INC.
Sign: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxx
-------------------------------- -------------------------------------
Title: Executive Vice President and
Chief Operating Officer
Date: December 8, 2006 Date: December 8, 2006
