CONFIDENTIAL SEVERANCE AND GENERAL RELEASE AGREEMENT
Exhibit
99.01
Severance
Arrangement
This
Confidential Severance and General Release Agreement (“Severance Agreement”)
is entered into between Xxxx Xxx Xxxxx (“Employee”)
and Silicon Image, Inc. (“Company”).
WHEREAS, Employee has been
employed by the Company; and
WHEREAS Employee and the
Company desire to mutually, amicably and finally resolve and compromise all
issues and claims surrounding Employee’s employment by the Company and the
termination thereof.
NOW THEREFORE, in
consideration for the mutual promises and undertakings of the parties as set
forth below, Employee and the Company hereby enter into this Severance
Agreement.
1. Effective Date. This
Severance Agreement is effective on the eighth (8th) day
after Employee signs it, as evidenced by the date opposite Employee’s name on
the signature page hereof, and without revocation by him.
2. Termination
Date. Employee’s last day of active work will be March
13, 2009. The effective date of Employee’s termination will be March 31, 2009
(“Termination
Date).
3. Acknowledgement of Payment
of all Wages and Consideration. By signing below, Employee
acknowledges that the Company has fully provided him with all his wages,
including but not limited to salary, bonuses, commissions, and accrued unused
vacation owed him by the Company, if any, as of March 31, 2009, the Termination
Date.
4. Company’s
Consideration. As full, sufficient and complete consideration
for Employee's promises and releases contained herein and following the
Effective Date of this Severance Agreement, Company will provide the following,
subject to all required taxes and deductions.
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(a)
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Severance
in the gross amount of $350,000, equivalent to twelve (12) months of base
salary, less required deductions, payable in a lump
sum.
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(b)
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Subject
in all cases to the terms of the applicable equity incentive plans under
which they are issued, continuation of the vesting of your stock options
to purchase shares of the Company’s common stock (“Options”)
and restricted stock units (“RSUs”) in accordance
with their terms through the Termination
Date.
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(c)
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Subject
to Employee’s timely enrollment in COBRA and subject to the terms of COBRA
and the health plan(s), payment of premiums for coverage for medical,
dental and vision benefits, to the extent of Employee’s participation and
on the terms and conditions in effect immediately prior to the Termination
date, through the earlier of March 31, 2010 or until Employee finds
employment providing comparable health
benefits.
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(d)
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Continued
PTO accrual through the Termination
Date.
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(e)
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Continued
participation in 401K and FSA plans as applicable through the Termination
Date, subject to the terms of the
plan.
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(f)
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Executive
career transition services through the Company’s preferred vendor up to a
maximum of $15,000.00 and 12 months of services. Specifics will
be provided by HR.
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No other
consideration will be provided.
Expense
Reimbursement. Employee acknowledges that he has submitted all
expenses. The Company has reimbursed or will reimburse all necessary
and reasonable expenses in the normal course per its expense reimbursement
policy.
5. Equity
Awards.
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(i)
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Vested Options and
RSUs. Employee shall have that period of time following
the Termination Date specified in the governing written stock option
agreement to exercise any Options which are vested, outstanding and not
exercised as of the Termination Date. Employee shall be
entitled to receive any shares of the Company’s common stock attributable
to Employee’s outstanding RSUs that vest prior to or as of the Termination
Date.
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(b)
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Unvested Options and
RSUs. Any Options or RSUs which remain unvested as of
the Termination Date shall expire effective as of the Termination
Date.
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6. General Release of
Claims.
(a) In
further consideration for the payment and undertakings described above, to the
fullest extent permitted by law, Employee, individually and on behalf of his
attorneys, representatives, successors, and assigns, does hereby completely
release and forever discharge the Company, its affiliated and subsidiary
corporations, and its and their shareholders, officers and all other
representatives, agents, directors, employees, successors and assigns, from all
claims, rights, demands, actions, obligations, and causes of action of any and
every kind, nature and character, known or unknown, which Employee may now have,
or has ever had, against them including but not limited to claims arising from
or in any way connected with the employment relationship between the parties,
any actions during the relationship, or the termination thereof. This
release covers all statutory, common law, constitutional and other claims,
including but not limited to, all claims for wrongful discharge in violation of
public policy, breach of contract, express or implied, breach of covenant of
good faith and fair dealing, intentional or negligent infliction of emotional
distress, intentional or negligent misrepresentation, discrimination, any tort,
personal injury, or violation of statute including but not limited to Title VII
of the Civil Rights Act, the Age Discrimination in Employment Act, the Americans
with Disabilities Act, and the California Fair Employment and Housing Act, which
Employee may now have, or has ever had. The parties agree that any
past or future claims for money damages, loss of wages, earnings and benefits,
both past and future, medical expenses, attorneys’ fees and costs, reinstatement
and other equitable relief, are all released by this Severance
Agreement.
(b) Employee
and the Company do not intend to release claims that Employee may not release as
a matter of law, including but not limited to claims for indemnity under
California Labor Code section 2802.
(c) To the
fullest extent permitted by law, any dispute regarding the scope of this general
release shall be determined by an arbitrator under the procedures set forth in
the arbitration clause below.
7. Waiver of Unknown
Claims. Employee has read or been advised of Section 1542 of the Civil
Code of the State of California, which provides as follows:
A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH
IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH
THE DEBTOR.
Employee
understands that Section 1542 gives him the right not to release existing claims
of which he is not now aware, unless he voluntarily chooses to waive this
right. Having been so apprised, he nevertheless hereby voluntarily
elects to and does waive the rights described in Section 1542, and elects to
assume all risks for claims that now exist in his favor, known or
unknown.
8. Non-Admission. It
is understood and agreed that this is a compromise settlement and that neither
this Severance Agreement itself nor the furnishing of the consideration for this
Severance Agreement shall be deemed or construed as an admission of liability or
wrongdoing of any kind by the Company.
9. Covenant Not to
Xxx.
(a) To the
fullest extent permitted by law, at no time subsequent to the execution of this
Severance Agreement will Employee pursue, or cause or knowingly permit the
prosecution, in any state, federal or foreign court, or before any local, state,
federal or foreign administrative agency, or any other tribunal, any charge,
claim or action of any kind, nature and character whatsoever, known or unknown,
which he may now have, has ever had, or may in the future have against the
Company and/or any officer, director, employee or agent of the Company, which is
based in whole or in part on any matter released by this Severance
Agreement.
(b) Nothing
in this paragraph shall prohibit Employee from filing a charge or complaint with
a government agency such as but not limited to the Equal Employment Opportunity
Commission, the National Labor Relations Board, the Department of Labor, the
California Department of Fair Employment and Housing, or other applicable state
agency. However, Employee understands and agrees that, by entering into this
Severance Agreement, he is releasing any and all individual claims for relief,
and that any and all subsequent disputes between the Company and Employee shall
be resolved in arbitration.
(c) Nothing
in this Severance Agreement shall prohibit or impair Employee or the Company
from complying with all applicable laws, nor shall this Severance Agreement be
construed to obligate either party to commit (or aid or abet in the commission
of) any unlawful act.
10. Waiver of Right to
Reemployment. Employee agrees that he will not be entitled to any further
employment with the Company. He therefore waives any claim now or in
the future to other employment or reemployment with the Company, or any of its
related entities, and agrees that he will not apply for nor accept employment
with the Company or any of its related entities in the future.
11. Nondisparagement. Employee
agrees that he will refrain from making any adverse, derogatory or disparaging
statements about the Company, its board of directors, officers, management,
practices or procedures, or business operations to any person or
entity. Nothing in this paragraph shall prohibit Employee from
providing truthful information in response to a subpoena or other legal
process.
12. Return of Company Property;
Obligation to Protect Proprietary Information. To the extent
Employee has not already done so, he agrees to return to the Company all Company
property, including but not limited to the files and documents, whether
electronic or hardcopy, and whether in Employee’s possession or under his/her
control. Employee also understands that whether he signs this Severance
Agreement or not, he must maintain the confidentiality of Company trade secrets,
confidential and/or proprietary information (“Proprietary
Information”), and not make use of any Proprietary Information on behalf
of anyone. Further, Employee shall continue to comply with the terms and
conditions of the Employee Inventions and Confidentiality Agreement between
Employee and the Company, attached hereto as Exhibit A.
13. Savings Clause.
Should any of the provisions of this Severance Agreement be determined to be
invalid by a court, arbitrator, or government agency of competent jurisdiction,
it is agreed that such determination shall not affect the enforceability of the
other provisions herein. Specifically, should a court, arbitrator, or agency
conclude that a particular claim may not be released as a matter of law, it is
the intention of the parties that the general release, the waiver of unknown
claims, and the covenant not to xxx above shall otherwise remain effective to
release any and all other claims.
14. Complete and Voluntary
Severance Agreement. This Severance Agreement constitutes the entire
understanding of the parties on the subjects covered. Employee
expressly warrants that he has read and fully understands this Severance
Agreement; that he has had the opportunity to consult with legal counsel of his
own choosing and to have the terms of the Severance Agreement fully explained to
him; that he is not executing this Severance Agreement in reliance on any
promises, representations or inducements other than those contained herein; and
that he is executing this Severance Agreement voluntarily, free of any duress or
coercion.
15. Modification. No
modification, amendment or waiver of any provision of this Severance Agreement
shall be effective unless in writing signed by Employee and an authorized
representative of the Company.
16. Confidential
Information. Employee further agrees that the
terms and conditions of this Severance Agreement, including the Exhibit, are
strictly confidential and shall not be disclosed to any other persons except his
counsel, immediate family, taxing authorities in connection with his/her filing
of federal or state tax returns, or to financial advisors in order to comply
with income tax filing requirements, or as required by legal process or
applicable law, provided however, that Employee shall notify Company if such
disclosure is sought, allowing Company the opportunity to object to such
disclosure. Notwithstanding the above, Employee and the Company
understand and agree that this Severance Agreement may need to be filed with the
Securities and Exchange Commission or other agencies to comply with legal
requirements.
17. No
Cooperation. 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. Employee further agrees both to
immediately notify the Company upon receipt of any court order, subpoena, or any
legal discovery device that seeks or might require the disclosure or production
of the existence or terms of this Severance Agreement, and to furnish, within
three (3) business days of its receipt, a copy of such subpoena or legal
discovery device to the Company.
18. Non-Solicitation. Employee
agrees that for a period of eighteen (18) months immediately following the
Termination Date, Employee shall not either directly or indirectly solicit,
induce, recruit or encourage any of the Company’s employees or consultants to
leave their employment or consultancy, or take away such employees or
consultants, or attempt to solicit, induce, recruit, encourage, or take away
employees or consultants of the Company, either for himself or any other person
or entity. Employee further agrees not to otherwise interfere with
the relationship of the Company or any of its subsidiaries or affiliates with
any person who, to the knowledge of Employee, is employed by or otherwise
engaged to perform services for the Company or its subsidiaries or affiliates
(including, but not limited to, any independent sales representatives or
organizations)
19. Costs. The
Parties shall each bear their own costs, expert fees, attorneys’ fees and other
fees incurred in connection with this Severance Agreement except as specifically
set forth herein.
20. 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 Severance 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 and that all such sums shall be paid less all applicable
withholdings and deductions. 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.
21. Arbitration. The
parties agree that any controversy or claim arising out of or relating to this
Severance Agreement, or the breach thereof, shall be submitted to the American
Arbitration Association (“AAA”) and
that a neutral arbitrator will be selected in a manner consistent with its
National Rules for the Resolution of Employment Disputes. The
arbitration proceedings will allow for discovery according to the rules set
forth in the National Rules for the Resolution of Employment Disputes (the
“Rules”). All
arbitration proceedings shall be conducted in Santa Xxxxx County,
California.
Arbitration
shall be the sole, exclusive and final remedy for any dispute between Employee
and the Company. Accordingly, except as provided for by the Rules,
neither Employee nor the Company will be permitted to pursue court action
regarding claims that are subject to arbitration. The Parties expressly waive any
entitlement to have such controversies decided by a court or a
jury. In addition to the right under the Rules to petition the
court for provisional relief, Employee agrees that any party may also petition
the court for injunctive relief where either party alleges or claims a violation
of this Severance Agreement in particular the Employee Inventions and
Confidentiality Agreement between Employee and the Company, Exhibit A to this
Severance Agreement.
22. 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 Severance 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 Severance Agreement.
23. Code Section
409A. If any payments or benefits due under this Severance
Agreement would subject Employee to any penalty tax imposed under Section 409A
of the Internal Revenue Code of 1986, as amended, if such payments and benefits
were made at the time as contemplated herein, then the Parties agree to
cooperate with each other and to take reasonably necessary steps to avoid the
imposition of any such penalty tax.
24. No
Waiver. The failure of any party to insist upon the
performance of any of the terms and conditions in this Severance Agreement, or
the failure to prosecute any breach of any of the terms and conditions of this
Severance Agreement, shall not be construed thereafter as a waiver of any such
terms or conditions. This entire Severance Agreement shall remain in
full force and effect as if no such forbearance or failure of performance had
occurred.
25. Governing
Law. This Severance Agreement shall be deemed to have been
executed and delivered within the State of California, and it shall be
construed, interpreted, governed, and enforced in accordance with the laws of
the State of California, without regard to conflict of law
principles. To the extent that either party seeks injunctive relief
in any court having jurisdiction for any claim relating to the alleged misuse or
misappropriation of trade secrets or confidential or proprietary information,
each party hereby consents to personal and exclusive jurisdiction and venue in
the state and federal courts of the State of California.
26. Attorneys’
Fees. In the event that either Party brings an action to
enforce or affect its rights under this Severance Agreement, the prevailing
party shall be entitled to recover its costs and expenses, including the costs
of mediation, arbitration, litigation, court fees, plus reasonable attorneys’
fees, incurred in connection with such an action.
27. Counterparts. This
Severance 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.
28. Successors and
Assigns. This Severance Agreement, and any and all rights,
duties, and obligations under this Severance Agreement, will not be assigned,
transferred, delegated, or sublicensed by Employee without the Company’s prior
written consent.
29. Notice and Revocation
Period. Employee acknowledges that the Company advised him to consult
with an attorney prior to signing this Severance Agreement; that he understands
that he has twenty-one (21) days in which to consider whether he should sign
this Severance Agreement; and that he further understands that if he signs this
Severance Agreement, he will be given seven (7) days following the date on which
he signs this Severance Agreement to revoke it and that this Severance Agreement
will not be effective until after this seven-day period has expired without
revocation by him/her. Any revocation must be in writing and timely delivered to
Human Resources.
EMPLOYEE
AGREES TO SIGN THIS SEVERANCE AGREEMENT NO EARLIER THAN MARCH 31,
2009.
Dated: March
31,
2009 /s/
Xxxxxxx Xxxxxxx
For Silicon Image,
Inc.
DO
NOT SIGN THIS AGREEMENT BEFORE MARCH 31, 2009
Dated: March
31,
2009 _/s/ Xxxx
Dal Xxxxx
Xxxx Xxx Xxxxx
