Exhibit 10.38
SEPARATION AGREEMENT
This Agreement (the "Separation Agreement") effective as of this 31st day
of October, 2002 (the "Effective Date") by and between Xxxxxx-PRI Automation,
Inc., 00 Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 (the "Company"), and
Xxxxx X. Xxxxxxxxx, of 00 Xxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the
"Executive").
WITNESSETH:
WHEREAS, Executive has been employed by the Company since October 19, 1998
as Senior Vice President Finance and Administration and Chief Financial Officer,
pursuant to certain terms as described in an offer letter of the same date by
and between the Company and Executive (the "Offer Letter");
WHEREAS, the Company and Executive entered into an Indemnification
Agreement (the "Indemnification Agreement") on or about February 11, 2000;
WHEREAS, the Executive desires to resign her duties as an officer of the
Company on the earlier of (i) the date the Executive elects to resign all of her
positions as an employee, officer or director of the Company or with any of its
affiliates and subsidiaries, including without limitation her position as Senior
Vice President Finance and Administration and Chief Financial Officer or (ii)
November 30, 2002 (the "Resignation Date"); and
WHEREAS, the parties wish to establish the terms of a Separation Agreement
incident to the termination of Executive's employment with the Company and to
resolve all matters between them.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein it is hereby agreed by and between the Company and Executive as
follows:
1. Employment Relationship. The Executive agrees that she shall resign all
of her positions as an employee, officer or director of the Company or with any
of its affiliates and subsidiaries, including without limitation her position as
Senior Vice President Finance and Administration and Chief Financial Officer,
effective as of the Resignation Date. Prior to the Resignation Date, Executive
shall work with such person or persons and at such Company location in
Chelmsford, Massachusetts as designated by the Chief Executive Officer of the
Company to transition her duties and responsibilities. Executive shall continue
to be paid her current base salary until the Resignation Date. It is expressly
understood and acknowledged by Executive that this Separation Agreement provides
her with substantial payments above and beyond that to which she would be
otherwise entitled from the Company.
2. Severance. The Company shall pay the Executive total severance of Four
Hundred Twenty Thousand Dollars ($420,000) (the "Severance"). Following the
Resignation Date, the Severance shall be paid in 12 equal, monthly installments
beginning on the first day of the month immediately following the Resignation
Date and continuing on the first day of the next eleven (11) months thereafter.
Further, the Company shall pay Executive all accrued and unpaid vacation upon
the Resignation Date.
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3. Other Benefits.
(a) Benefit Plans. Following the Resignation Date, the Company will pay
health and dental premiums on behalf of Executive in accordance with her rights
under the Consolidated Omnibus Reconciliation Act of 1986 ("COBRA") until the
date which is twelve (12) months following the Resignation Date.
(b) Perquisites. The Company will permit the Executive to retain her
laptop computer following the Resignation Date.
(c) Bonus. If and to the extent the Company pays bonuses to its executive
officers for the fiscal year ended September 30, 2002, the Company agrees to pay
the Executive a pro rata portion of her bonus for that period, at the same time
the Company pays such bonuses to its actively employed executive officers.
4. Outplacement Benefits. The Company agrees to provide Executive with no
more than Thirty Thousand Dollars ($30,000) worth of executive outplacement
services with an outplacement firm selected by the Executive.
5. [RESERVED]
6. Confidentiality. By employment with the Company, Executive has had, or
will have, contact with and gain knowledge of certain confidential and
proprietary information and trade secrets, including without limitation,
analyses of the Company's prospects and opportunities; programs (including
advertising); direct mail and telephone lists, customer lists and potential
customer lists; the Company's plans for present and future developments;
marketing information including strategies, tactics, methods, customer's market
research data; financial information, including reports, records, costs, and
performance data, debt arrangements, holdings, income statements, annual and/or
quarterly statements and accounting records and/or tax returns; operational
information, including operating procedures, products, methods, service
techniques, "know-how", tooling, plans, concepts, designs, specifications, trade
secrets, processes, methods and suppliers; technical information, including
computer software programs; research and development projects; product formulae,
processes, inventions, designs, or discoveries, which information the Company
treats as confidential. Executive agrees that Executive will not communicate or
disclose to any third party or use for Executive's own account, without the
written consent of the Company, any of the aforementioned information or
material, except as required by law, unless and until such information or
material becomes generally available to the public through sources other than
Executive.
Executive will deliver to the Company all property, documents, or
materials in her possession or custody, of any nature belonging to the Company
whether in original form or copies of any kind, including any trade secrets and
proprietary information upon the Resignation Date.
7. Public Statements.
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EXECUTION COPY 2
(a) Press Release. On or before October 31, 2002, the Company shall issue
a press release in substantially the form attached as Exhibit A.
(b) Reference. The Company will provide the Executive with a letter of
reference in the form attached as Exhibit B. The Executive may advise any
prospective employer that desires an oral reference to contact Xxxxxx X.
Xxxxxxxx and/or Xxxxxx Xxxxxxxx, who shall respond in conformity with Exhibit B.
The Executive and the Company acknowledge and agree that Messrs. Xxxxxxxx and
Xxxxxxxx are the only representatives of the Company authorized to provide oral
references on behalf of the Executive.
(c) Non-Disparagement. For so long as the Executive is engaged by the
Company under this Separation Agreement, and at all times thereafter, the
Executive shall support the Company in public statements and in all dealings
with third parties, and will refrain from making any derogatory or false
statements with respect to the Company or any of its officers, directors,
employees, advisors, customers or other related or affiliated parties. For so
long as the Executive is engaged by the Company under this Separation Agreement,
and at all times thereafter, the Company will refrain from making any derogatory
or false statements with respect to the Executive.
8. Stock Options. The parties agree and acknowledge that in accordance
with the terms of the Offer Letter all options granted to Executive, including
but not limited to options granted pursuant to option agreements dated November
19, 1998; October 1, 2001; January 5, 2000; May 31, 2000; and January 2, 2001
(collectively the "Option Agreements"), shall be fully vested on the Resignation
Date. The options shall remain exercisable following the Resignation Date in
accordance with the terms of the applicable Option Agreement.
9. Indemnification. The Company agrees to continue to indemnify the
Executive for a period of 10 years from the Resignation Date in accordance with
the terms and conditions set forth in the Indemnification Agreement.
10. Remedies. Any breach or threatened breach by the Executive of the
provisions of this Separation Agreement could result in irreparable and
continuing damage to the Company for which there is no adequate remedy at law.
In such event, the Company shall be entitled to injunctive relief and/or
specific performance, and such other relief that may be proper (including
monetary damages, if proper). Any breach or threatened breach by the Company of
the provisions of this Separation Agreement could result in irreparable and
continuing damage to the Executive for which there is no adequate remedy at law.
In such event, the Executive shall be entitled to injunctive relief and/or
specific performance, and such other relief that may be proper (including
monetary damages, if proper).
11. [RESERVED]
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EXECUTION COPY 3
12. Release. Except for Executive's rights arising under this Separation
Agreement, Executive specifically releases, remises and forever discharges the
Company and its officers, directors and employees, acting in their capacity as
such, from all claims of any nature which Executive now has or ever had arising
from her employment with the Company, whether common law claims or statutory
claims, including but not limited to:
(a) Claims under any state or federal discrimination, fair employment
practices or other employment related statute, or regulation (as they may have
been amended through the date of this Separation Agreement) prohibiting
discrimination or harassment based upon any protected status including, without
limitation, race, color, religion, national origin, age, gender, marital status,
disability, handicap, veteran status or sexual orientation. Without limitation,
specifically included in this paragraph are any claims arising under the Federal
Rehabilitation Act of 1973, Age Discrimination in Employment Act of 1967, as
amended, the Older Workers Benefit Protection Act, Title VII of the Civil Rights
Act of 1964 as amended by the Civil Rights Act of 1991, the Equal Pay Act, the
Americans With Disabilities Act and any similar Massachusetts or other state or
local statute or ordinance;
(b) Claims under any other state or federal employment related statute, or
regulation (as they may have been amended through the date of this Agreement)
relating to wages, hours or any other terms and conditions of employment.
Without limitation, specifically included in this paragraph are any claims
arising under the Fair Labor Standards Act, the Family and Medical Leave Act of
1993, the National Labor Relations Act, the Employee Retirement Income Security
Act of 1974, the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA)
and any similar Massachusetts or other state or local statute or ordinance;
(c) Claims under any state or federal common law theory including, without
limitation, wrongful discharge, breach of express or implied contract,
promissory estoppel, unjust enrichment, breach of a covenant of good faith and
fair dealing, violation of public policy, defamation, interference with
contractual relations, intentional or negligent infliction of emotional
distress, invasion of privacy, misrepresentation, deceit, fraud or negligence;
and
(d) Any other claim arising under state or federal law.
(e) Notwithstanding the foregoing, this release shall exclude (a)
Executive's rights to defense and indemnification from the Company for actions
taken in the course and scope of her employment with the Company and its
subsidiaries and affiliates; and (b) claims to enforce this Agreement.
13. Older Workers Benefit Protection Act of 1990. This paragraph is
intended to comply with the Older Workers Benefit Protection Act of 1990
("OWBPA") with regard to Executive's waiver of rights under the Age
Discrimination in Employment Act of 1967 ("ADEA"):
(a) Executive is specifically waiving rights and claims under ADEA;
(b) The waiver of rights under ADEA does not extend to any rights or
claims arising after the date this Separation Agreement is signed by Executive;
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(c) Executive acknowledges receiving consideration for this waiver;
(d) Executive acknowledges that she has been advised to consult with an
attorney before signing this Separation Agreement; and
(e) Executive acknowledges that after receiving a copy of this Separation
Agreement, Executive had the right to take up to 21 days to consider her
decision to sign the Separation Agreement; the parties agree that changes,
whether material or immaterial, do not restart the running of the 21 day period.
This Separation Agreement does not become effective for a period of seven
days after Executive signs it. Executive has the right to revoke this Separation
Agreement during the seven day period. Revocation must be made in writing,
signed by Executive and delivered to the Company during the seven day period. If
Executive revokes this Separation Agreement, the entire Separation Agreement
shall be null and void.
14. Miscellaneous.
(a) Entire Agreement. This Separation Agreement constitutes the entire
agreement and understanding of the parties hereto with respect to the subject
matter hereof and supersedes all prior agreements and undertakings, both written
and oral, including without limitation the Offer Letter and the change of
control agreement entered into by and between the Company and the Executive,
dated as of November 11, 1999.
(b) Release. Executive agrees to execute another release in substantially
the same form as set forth in Sections 12 and 13 herein upon the Resignation
Date to release any claims arising between the Effective Date and the
Resignation Date.
(c) Severability. In the event that any court having jurisdiction shall
determine that any covenant or other provision contained in this Separation
Agreement shall be unreasonable or unenforceable in any respect, then such
covenant or other provision shall be deemed limited to the extent that such
court deems it reasonable and enforceable, and as so limited shall remain in
full force and effect. In the event that such court shall deem any covenant or
provision wholly unenforceable, the remaining covenants and provisions of this
Separation Agreement shall nevertheless remain in full force and effect.
(d) Assignment. This Separation Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of the other
party hereto.
(e) Notices. All notices and other communications given or made pursuant
hereto shall be in writing (including telecopier or facsimile or similar
writing) and shall be deemed to have been duly given or made as of the date
delivered, mailed or sent if delivered personally, mailed by registered or
certified mail (postage prepaid, return receipt requested) or sent by telecopier
to the parties at the following addresses or telecopier numbers (or at such
other address or telecopier number for a party as shall be specified by like
notice, except that notices of changes of address or telecopier numbers shall be
effective only upon receipt):
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EXECUTION COPY 5
If to the Company:
Xxxxxx-PRI Automation, Inc.
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Vice President, Human Resources
If to the Executive:
Xxxxx X. Xxxxxxxxx
00 Xxxxxxx Xxxx
Xxxxxx, XX 00000
(f) Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the Commonwealth of Massachusetts, without giving
effect to the conflicts of law principles thereof. Each of the parties agrees
that any action brought to enforce the rights or obligations of any party under
this agreement shall be commenced and maintained in the United States District
Court for the District of Massachusetts or the Trial Court of the Commonwealth
of Massachusetts, Middlesex Superior Court. Each of the parties further agrees
that process may be served upon it by overnight courier or by certified mail,
return receipt requested, and consents to the exercise of jurisdiction over it
and its properties with respect to any action, suit, or proceeding arising out
of or in connection with this Agreement.
(g) Amendment. This Separation Agreement may not be amended or modified
except by an instrument in writing signed by the parties hereto.
(h) Interpretation. The parties hereto acknowledge and agree that: (i)
each party and its counsel reviewed and negotiated the terms and provisions of
this Separation Agreement and have contributed to its revision, (ii) the rule of
construction to the effect that any ambiguities are resolved against the
drafting party shall not be employed in the interpretation of this Separation
Agreement, and (iii) the terms and provisions of this Separation Agreement shall
be construed fairly as to all parties hereto and not in favor of or against any
party, regardless of which party was generally responsible for the preparation
of this Separation Agreement.
(i) Compliance. The failure of any party hereto to insist upon strict
compliance with any of the terms, covenants or conditions hereof shall not be
deemed a waiver of such terms, covenants or conditions, nor shall any waiver or
relinquishment of any right or power hereunder at any one or more times be
deemed a waiver or relinquishment of such power or right at any other time or
times.
(j) Headings. The headings contained in this Separation Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Separation Agreement.
(k) Counterparts. This Separation Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one
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and the same agreement.
(l) Absence of Duress. Executive acknowledges that she has been afforded
sufficient time to understand the terms and effects of this Separation
Agreement, and that the agreements and obligations herein are made voluntarily,
knowingly and without duress, and that neither the Company nor its agents or
representatives have made any representations inconsistent with the provisions
of this Separation Agreement.
[SIGNATURE PAGE FOLLOWS]
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EXECUTION COPY 7
IN WITNESS WHEREOF, Executive and the Company's duly authorized
representative have caused this Separation Agreement to be executed under seal
as of the day and year first above written, to become effective seven days after
Executive signs as provided in Paragraph 13.
XXXXXX-PRI AUTOMATION, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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EXECUTIVE:
/s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx
I, Xxxxx X. Xxxxxxxxx, represent and agree that I have carefully read this
Separation Agreement; that I have been given ample opportunity to consult with
my legal counsel or any other party to the extent, if any, that I desire; and
that I am voluntarily signing by my own free act. This Separation Agreement
constitutes a voluntary and knowing waiver of rights under the laws and statutes
referenced above.
Dated: October 31, 2002 /s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx
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EXECUTION COPY 8
