Exhibit 10.1
SEVERANCE AGREEMENT AND RELEASE OF ALL CLAIMS
This Severance Agreement and Release of All Claims ("Agreement") is made
and entered into by and between Xxxxxxx Xxxxxx (hereinafter "Employee") and
Adept Technology, Inc. (hereinafter "Adept" or "the Company"). This "new"
severance program supersedes any and all prior programs, all of which are
terminated (to the extent they existed). Furthermore, nothing with respect to
this severance program shall restrict the rights of Adept to implement a future
reduction in force under any terms or severance program that it deems
appropriate.
WITNESSETH
WHEREAS, Employee has been employed at Adept and the Company has decided to
implement a reduction in force; and
WHEREAS, Employee does not have pending against Adept or any employee,
agent, officer, director, representative, supervisor, former supervisor, or
owner of Adept, or of any related entity or any employee, agent, officer,
director, representative, supervisor, former supervisor, or owner, of any
related entity (hereinafter referred to as Releasees) any claim, charge, or
action in or with any federal, state, or local court or administrative agency;
and
WHEREAS, Employee and the Company desire to settle fully and finally all
matters between them, including, but in no way limited to, issues related to
Employee's employment and separation of employment with the Company;
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein contained and other good and valuable consideration, receipt of which is
hereby acknowledged, it is hereby agreed by and between the parties as follows:
1. Employment Termination Date.
Employee's employment with Adept shall terminate on September 7, 2007.
2. Severance Payment.
a. Employee will receive all wages due Employee as of Employee's
date of termination less withholdings and any other authorized deductions.
Employee will receive a check for this amount on Employee's date of termination.
b. Employee will receive any unused and prorated vacation pay earned
and accrued as of Employee's date of termination less withholdings and any other
authorized deductions. Employee will receive a check for this amount on
Employee's date of termination.
c. Upon condition that Employee signs this Agreement and returns the
original signed Agreement to the Company, and so long as Employee has not
exercised the right of revocation as described in paragraph 8(g) below, the
Company will provide Employee severance pay in the gross amount of thirty seven
thousand two hundred seventy one dollars ($37,271.00), less appropriate
withholdings and any other authorized deductions, which has been calculated
using the following formula:
Non-exempt employees will receive 40 hours of severance pay for each year
of service with a minimum of 80 hours. Exempt employees will receive one
week of severance pay for each year of service with a minimum of two weeks.
For salaried employees, a "week's pay" will be the equivalent of the
employee's current base monthly salary (excluding bonuses, overtime,
benefits, expense, meal and travel allowances and any other monetary
incentives and forms of remuneration).
Employee will receive a check for this amount on the tenth day after Employee
signs and returns this Agreement to Adept (so long as Employee does not exercise
the right of revocation described in paragraph 8(g) below. Employee recognizes
that this payment exceeds any payment to which the Employee might be entitled
under existing Adept policies.
d. Pursuant to the Consolidated Omnibus Budget Reconciliation Act of
1985 ("COBRA"), Employee may continue health insurance coverage at Employee's
own expense after Employee's termination of employment with the Company.
2.
e. Employee acknowledges and agrees that Adept has made no
representations regarding the tax consequences of any amounts received by
Employee pursuant to this Agreement, and agrees to indemnify the Company for any
amounts that may be deemed subject to withholding tax which were not withheld
from these amounts.
3. Total Monetary Compensation and Consideration.
Employee agrees that the severance pay described in paragraph 2.c. above
shall constitute the entire amount of monetary consideration provided to
Employee under this Agreement, that Employee is not entitled to this
consideration if Employee does not sign this Agreement and that Employee will
not seek any further compensation for any other claimed damages, costs or
attorneys' fees in connection with Employee's employment with the Company,
termination from employment with the Company or any other matter encompassed by
this Agreement. Employee acknowledges and agrees that, as of the date Employee
executes this Agreement, Employee has been fully paid all amounts, if any, due
Employee under federal and state law and Adept policies and procedures.
4. No Admissions.
This Agreement and compliance with this Agreement shall not be construed as
an admission by the Company or by any Releasees of any liability whatsoever, or
as an admission by Adept or by any Releasees of any violation of the rights of
Employee or any person, violation of any order, law, statute, duty or contract
whatsoever with respect to Employee or any person. Adept and Releasees
specifically disclaim any liability to Employee or any other person for any
alleged violation of rights of Employee or any person, or for any alleged
violation of any order, law, statute, duty or contract on the part of Adept
and/or of any Releasees.
3.
5. No Claims.
Employee represents that neither Employee nor anyone acting through or by
Employee nor any spouse, significant other, heir, offspring, representative,
agent, executor, assign, or successor (hereinafter referred to as Releasors) has
filed any complaints, claims, or actions against Adept or against any Releasee
with any state, federal, or local agency or court arising out of and/or
pertaining to Employee's employment and/or the cessation thereof and Employee
agrees that Employee will not do so at any time hereafter, and that if any
agency or court assumes jurisdiction of any complaint, claim or action against
Adept or against any Releasee, Employee will direct that agency or court to
withdraw from or dismiss with prejudice the matter.
6. Confidentiality.
Employee agrees that Employee and all Releasors (including, but not limited
to, family members or a significant other) will keep the fact, terms, and amount
of this Agreement completely confidential and that neither Employee nor any
Releasor will hereafter disclose any information concerning this Agreement to
anyone, provided that any party hereto may make such disclosures as are required
by law and as are necessary for legitimate law enforcement or compliance
purposes. The parties further agree that this Agreement may be pleaded as a full
and complete defense to any subsequent action or other proceeding arising out
of, or relating to, or having anything to do with any and all of the claims,
counterclaims, contingents, issues, defenses, or other matters capable of being
alleged by Employee, Releasors, or any employee or former employee of Adept.
7. Release of Claims.
Employee hereby waives all rights under Section 1542 of the Civil Code of
the State of California. Section 1542 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.
4.
Notwithstanding the provisions of Section 1542 of the Civil Code of the State of
California, Employee hereby irrevocably and unconditionally releases and forever
discharges the Company, and each and all Releasees and their related entities
and each and all of their owners, officers, directors, employees, agents and
representatives and their predecessors, successors and assigns and all persons
acting by, through, under or in concert with any of them from any and all
charges, complaints, rights, claims, damages and liabilities of any kind or
nature whatsoever, known or unknown, suspected or unsuspected (hereinafter
referred to as "claims") which Employee at any time heretofore had or claimed to
have or which Employee may have or claim to have regarding events that have
occurred as of the date of this Agreement, including, without limitation, any
and all claims related or in any manner incidental to Employee's employment or
termination from employment with the Company. It is expressly understood by
Employee that among the various rights and claims being waived in this release
are those arising under federal and state equal employment laws including the
Age Discrimination in Employment Act of 1967, the United States and California
Constitutions, California common law, Title VII of the Civil Rights Act of 1964,
the Civil Rights Acts of 1866 and 1991, the Americans with Disabilities Act,
state and federal Family Leave Acts, the California Fair Employment and Housing
Act, the California Labor Code, the Fair Labor Standards Act, the Employee
Retirement Income Security Act, and any and all federal and state executive
orders and other statutes and regulations.
The parties understand the word "claims" to include all actions, claims,
causes of action, and grievances, whether actual or potential, known or unknown,
and specifically but not exclusively all claims arising out of Employee's
employment with Adept and the cessation of his or her employment, including, but
not limited to, any alleged breach of obligation, covenant or duty arising in
contract and/or in tort; any alleged employment discrimination or other unlawful
discriminatory act, including, without limitation, any claim of discrimination
under California's workers' compensation laws; and any other claim or cause of
action regardless of the forum in which it may be brought, including, without
5.
limitation, claims under the United States Constitution, the California
Constitution, California common law, Title VII of the Civil Rights of 1964, the
Age Discrimination in Employment Act of 1967, the Civil Rights Acts of 1866 and
1991, the Employee Retirement Income Security Act, the Americans With
Disabilities Act, the California Fair Employment and Housing Act, the California
Labor Code, the Fair Labor Standards Act, state and federal Family Leave Acts,
the California Workers' Compensation Act, and any and all federal or state
executive orders and other statutes or regulations. All such claims (including
related attorneys' fees and costs) are forever barred by this Agreement.
8. Knowing And Voluntary Release.
Employee understands and agrees that Employee:
a. Is entitled to a full forty-five (45) days within which to
consider this Agreement before executing it.
b. Has carefully read and fully understands all of the provisions of
this Agreement;
c. Is, through this Agreement, releasing the Company and any and all
Releasees, their related entities and each and all of their owners, officers,
directors, employees, agents and representatives, of any and all claims Employee
may have against them including but not limited to any claims of age or other
discrimination;
d. Knowingly and voluntarily agrees to all of the terms set forth in
this Agreement;
e. Knowingly and voluntarily intends to be legally bound by this
Agreement;
f. Was advised and hereby is further advised in writing to consider
the terms of this Agreement and consult with an attorney of Employee's choice
prior to executing this Agreement;
g. Has a full seven (7) days following the execution of this
Agreement to revoke this Agreement by providing written notice of such
revocation to Xxx Xxxxxxx Xxx, the Company's Human Resources Director, and has
6.
been advised and hereby is further advised in writing that this Agreement shall
not become effective or enforceable until this revocation period has expired
without Employee exercising Employee's right of revocation; and
h. Understands that rights or claims under the Age Discrimination in
Employment Act of 1967 (29 U.S.C. ss. 621, et. seq.) that may arise after the
date this Agreement is executed are not waived.
9. No Reliance Upon Representation.
Employee hereby represents and acknowledges that in executing this
Agreement, Employee does not rely and has not relied upon any representations or
statements made by any of the parties or by any of the parties' agents,
attorneys or representatives with regard to the subject matter, basis or effect
of this Agreement or otherwise, other than as specifically stated in this
written Agreement.
10. References.
Adept represents that, upon any inquiry concerning Employee's employment,
it will disclose the following information: the position Employee held, the
duties in that position, and the length of employment. No other information will
be disclosed unless Employee authorizes the release of such information.
7.
11. Future Employment.
Nothing in this Agreement shall prohibit Employee from re-applying with the
Company or any Releasee for any future position for which he/ she is
qualified that becomes available within the Company or any Releasee. However,
the Company and Releasees do not warrant or in any way whatsoever make any
express or implied promise or representation that Employee's former employment
with Company will entitle him/her to preferential treatment in consideration of
such application. Furthermore, Employee expressly acknowledges that he/she is
not entitled to, nor does he/she expect any such preferential treatment.
12. Non-Disparagement.
Employee agrees not to make any statements about Company or take any action
which could be detrimental to Adept and any Releasee, or their related entities
or their services.
13. Trade Secrets.
Employee agrees to keep confidential and not to disclose, divulge, furnish,
release or otherwise make available to any person, firm, company or other party
confidential information or trade secrets relating to the business affairs of
Adept unless (1) the Company gives prior written consent, or (2) such
information or trade secrets become known to the public through no fault of
Employee.
14. Arbitration.
THE PARTIES EXPRESSLY AGREE THAT ARBITRATION SHALL BE THE EXCLUSIVE, FINAL
AND BINDING REMEDY FOR ANY DISPUTE INVOLVING OR RELATED TO AN ALLEGED BREACH OF
THIS AGREEMENT, AND HEREBY EXPRESSLY WAIVE ANY RIGHT THEY HAVE OR MAY HAVE TO A
COURT TRIAL OR A JURY TRIAL OF ANY SUCH DISPUTE.
(a) Arbitration shall be the exclusive remedy for any dispute arising out
of or related to the employer/employee relationship or the interpretation of
this Agreement. The purpose of this Arbitration Agreement is to encourage the
8.
speedy, cost-effective resolution of any disputes between the parties concerning
any of the terms, conditions or benefits of employment and termination of the
employment relationship. Both Employee and Adept shall be required to submit any
such dispute(s) to binding arbitration before a neutral Arbitrator. Nothing in
this Agreement shall prevent the parties from agreeing voluntarily to submit the
dispute to mediation. However, if the dispute is not resolved through mediation
or otherwise, it shall be submitted to binding arbitration. The parties shall
select the Arbitrator by mutual agreement. Nothing in this agreement restricts
the employee from exercising statutory rights to seek assistance through resort
to the Department of Fair Employment and Housing or Equal Employment Opportunity
Commission.
(b) A request for arbitration must be submitted within the
appropriate statute of limitations period under governing law.
(c) In the event that a dispute arises, both Employee and Adept shall
have the right to conduct normal civil discovery, including the taking of
depositions, prior to the arbitration hearing.
(d) Both Employee and Adept agree that if an arbitration is held,
each party shall pay the fees for his own attorneys, subject to any remedies to
which that party may later be entitled; however, Adept in all cases shall pay
the Arbitrator's fee. The Arbitrator shall be empowered to award either party
any remedy at law or in equity that the party would otherwise have been entitled
to had the matter been litigated in court, including, but not limited to,
general, special, and punitive damages, injunctive relief, costs and attorney
fees; provided, however, that the authority to award any remedy is subject to
whatever limitations, if any, exist in the applicable law on such remedies. The
Arbitrator shall issue a decision or award in writing, stating the essential
findings of fact and conclusions of law. The Arbitrator shall have no
jurisdiction to issue any award contrary to or inconsistent with the law,
including the statute at issue.
9.
(e) Following the evidentiary portion of an arbitration hearing,
either party shall have the right to prepare and file with the Arbitrator a
post-hearing brief not to exceed twenty-five (25) pages in length. Any such
brief shall be served on the Arbitrator and the other party within thirty (30)
days of the close of the evidentiary portion of the hearing, unless the parties
agree to some other time period. The Arbitrator shall have the authority to
grant an extension or to increase the page limitation set forth above upon the
request of any party for good cause shown.
(f) Should any part of this Paragraph 7 be declared by a court of
competent jurisdiction to be invalid, unlawful or otherwise unenforceable, the
remaining parts shall not be affected thereby, and the parties shall arbitrate
their dispute without reference to or reliance upon the invalid, unlawful or
unenforceable part of the Agreement.
(g) This Agreement is the full and complete Agreement of the parties
relating to resolution of disputes arising out of or related to the
employer/employee relationship and/or this Agreement. This Agreement may not be
modified except by the parties in writing.
15. Binding Effect Of Agreement.
This Agreement shall be binding upon Employee, and upon Employee's heirs,
administrators, representatives, executors, successors and assigns, and shall
inure to the benefit of the Company and Releasees and their related entities,
and each and all of their owners, officers, directors, employees, agents,
representatives, and to their heirs, administrators, executors, successors and
assigns. Employee expressly warrants that Employee has not transferred to any
person or entity any rights, causes of action or claims released in this
Agreement.
16. Severability.
Should any provision of this Agreement be declared or be determined by any
court of competent jurisdiction to be illegal, invalid, or unenforceable, the
legality, validity, and enforceability of the remaining parts, terms, or
10.
provisions shall not be affected thereby, and said illegal, unenforceable, or
invalid part, term, or provision shall be deemed not to be a part of this
Agreement.
17. Interpretation.
This Agreement shall be interpreted in accordance with the plain meaning of
its terms and not strictly for or against any of the parties hereto.
18. Consequences of Breach.
If Employee breaks said promises as set forth in this Agreement by filing a
lawsuit or other complaint or charge based on claims that the Employee has
released, or by not having a claim made on Employee's behalf by a class-type
action dismissed, as to any person or entity, Employee will pay that person's or
entity's reasonable attorneys' fees and all other costs incurred in defending
against the Employee's claim.
19. Entire Agreement.
This Agreement sets forth the entire agreement between the parties hereto
and fully supersedes any and all prior negotiations, agreements or
understandings, written or oral, between the parties pertaining to the subject
matter of this Agreement.
I HAVE COMPLETELY AND CAREFULLY READ THE FOREGOING, INCLUDING THE WAIVER
AND RELEASE OF CLAIMS SET FORTH ABOVE, I FULLY UNDERSTAND THAT, TO THE EXTENT I
HAVE ANY CLAIMS COVERED BY THIS WAIVER AND RELEASE, I WILL BE WAIVING AND
RELEASING POTENTIALLY VALUABLE LEGAL RIGHTS BY SIGNING THIS AGREEMENT, I
ACKNOWLEDGE THAT I HAVE BEEN ADVISED TO DISCUSS THIS AGREEMENT AND THE WAIVER
AND RELEASE OF CLAIMS WITH A LAWYER, AND I FULLY UNDERSTAND AND VOLUNTARILY
AGREE TO ITS TERMS.
11.
Dated: 08/27/07 ADEPT TECHNOLOGY, INC.
By: /s/ Xxx Xxxxxxx Xxx
-------------------
Xxx Xxxxxxx Lim
Director of Human Resources
Dated: 08/24/07 /s/ Xxxx Xxxxxx
----------------
Employee Signature
Xxxx Xxxxxx
----------------------------------------
Employee Printed Name
12.
