EXHIBIT 99.2
SEVERANCE AGREEMENT
AND RELEASE OF ALL CLAIMS
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This Severance Agreement and Release of All Claims (hereinafter referred to
as "the Agreement") is made and entered into by and between Xxxxx Shimano
(hereinafter sometimes referred to as "employee"), and Adept Technology, Inc.
(hereinafter referred to as "Adept").
W I T N E S S E T H:
WHEREAS, Employee has worked for Adept as Vice President of Research and
Development; and
WHEREAS, Adept, at its sole discretion, and is its right to do so,
terminated Employee's employment effective December 5, 2003. Employee hereby
consents, and does not challenge said termination; and
WHEREAS, Employee does not have pending against Adept or any present or
former employee, agent, officer, director, representative, or supervisor of
Adept (hereinafter all referred to as "Releasees") any claim, charge, or action
in or with any federal, state, or local court or administrative agency; and
Adept does not have pending against Employee any claim, charge, or action in
other with any federal, state, or local court or administrative agency; and
WHEREAS, Employee and Adept desire to allow Employee to wrap up Employee's
employment in an orderly fashion and to settle all differences between them;
NOW, THEREFORE, in consideration of the covenants and promises herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, and to avoid unnecessary litigation, it is hereby agreed by and
between the parties as follows:
FIRST: This Agreement and compliance with this Agreement shall not be
construed as an admission by Adept or by any Releasees or by Employee 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, or a violation of any order,
law, statute, duty, or contract whatsoever with respect to Employee or any
person. Adept specifically disclaims any liability to Employee or any other
person for any alleged violation of the rights of employee or any person, or for
any alleged violation of any order, law, statute, regulation, duty, or contract.
SECOND: (a) Employee understands and agrees that he has not executed this
Agreement without first having the right to consider it for a full twenty-one
(21) days from receipt of this Agreement and that he did not execute this
Agreement without first being advised in writing to consult with an attorney
regarding this Agreement. Employee has indeed consulted with an attorney of his
choice.
(b) Within fourteen (14) days after Employee delivers to Adept a fully
signed original copy of this Agreement, Adept will begin to pay to Employee a
total gross amount of $114,000.00 less appropriate withholdings equaling six
months of Employee's current annual salary. This amount shall be paid in
thirteen equal installments on an every two week basis beginning on the tenth
day after the Employee signs and returns this Agreement to Adept and continuing
on an every two week basis thereafter until employee has been paid a total
amount of $114,000.00. Should Adept fail to make a payment under this Agreement,
this shall be considered a material breach of said Agreement. If Adept fails to
make a payment under this Agreement within fourteen days of its due date, this
shall be considered a "failure to make payment." In addition, Adept shall:
(i) Pay for Employee's current medical, dental and vision
health benefits at their current levels through February 2004. After
expiration of this period Employee shall be entitled to continue medical and
other benefits at his own costs under the terms provided by COBRA;
(ii) Extend the expiration date of all options currently
held by employee to November 4, 2004.
(iii) Immediately accelerate the vesting on all options as
to which was originally scheduled to vest through November 4, 2004. This will
include the full vesting with respect to the 150,000 shares granted on November
4, 2003 which was originally scheduled to be fully vested as of November 4,
2004.
(iv) Shall name Employee as an insured on its Officers and
Directors liability policy for a period of three years following the execution
of this agreement.
(v) Allow Employee to keep his computer that was provided to
him by Adept during his employment, including all installed software and
accessories, to the extent that they do not contain proprietary and confidential
trade secrets of Adept. Such confidential and proprietary information shall
either be returned to Adept and deleted and destroyed from the computer.
Moreover, Employee agrees that he shall destroy or return any and all copies or
replicas of such confidential and proprietary information. With the exception of
such confidential and proprietary information, this computer shall become the
property of Employee upon the execution of this Agreement.
Employee agrees that the foregoing monies and other consideration shall
constitute the entire amount of monetary and other consideration provided to him
under this Agreement and that he will not seek any further compensation or
consideration for any other claimed damages, costs, or attorneys' fees in
connection with the matters encompassed in this Agreement, or with any matters
arising from his employment with Adept or any other Releasee, or under any other
agreements Employee has or claims to have with any of the foregoing.
(vi) Adept will pay Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxxx
attorneys fees for the purpose of advising Employee on this separation agreement
an amount not to exceed $5,000.
(c) Adept shall issue the requisite forms and reports to the
Internal Revenue Service and the California state government to reflect the
payments made under this Agreement.
(d) Employee agrees to pay all federal and/or state taxes,
if any, which are required by law to be paid by him as a result of his receipt
of the proceeds paid to him pursuant to this Agreement and also acknowledges and
agrees that neither Adept nor any Releasee has made any representation to him
regarding the tax consequences of any amounts received by him pursuant to this
Agreement. Employee further agrees to indemnify and hold Adept and all Releasees
harmless from any claims, demands, deficiencies, levies, assessments,
executions, judgments or recoveries by any governmental entity against Adept, or
any of the foregoing persons or entities, for any amounts claimed due on account
of the Agreement or pursuant to claims made under any federal or state tax laws,
and any costs, expenses or damages sustained by Adept by reason of any such
claims, including any amounts paid by Adept, or any Releasee as taxes,
attorneys' fees, deficiencies, levies, assessments, fines, penalties, interest
or otherwise.
(e) Employee agrees that he will not either directly or
indirectly:
(1) disclose, reveal, or furnish to any other person,
firm, agency, corporation, client, business, or enterprise, any confidential
information acquired during his employment with Adept;
(2) individually or jointly with any other person,
firm, agency, corporation, client, business, or enterprise, employ or cause to
be employed, any confidential information;
(3) publish, deliver, or commit to be published or
delivered any copies, computer data, computer programs, source code, abstracts,
or summaries of any files, records, documents, plans, lists, and similar items
related to the business of Adept, whether prepared by him or otherwise coming
into Employee's possession.
Confidential information includes, but is not limited to, information
regarding Adept's customers, contracts, vendors, employees and any information
which Employee obtained in the course of his duties on behalf of Adept relating
to the business of Adept and/or any Releasee which is not generally known to the
public.
(f) Employee agrees that for a period of twelve (12) months
immediately following the termination of his employment with Adept, he will not
initiate contact, telephone, approach nor will he ask, request, or solicit
anyone to do so on his behalf, any current employee of Adept or of any Releasee
regarding employment inducing them to leave Adept's employment or to become
employed with a competitor of Adept.
(g) Employee acknowledges and agrees that, as of the date he
executes this Agreement, he has been fully paid all amounts, if any, due him
under federal and state law, Adept's policies and procedures, and/or any prior
agreement with Adept.
(h) Employee agrees to return and/or destroy any and all
Company property including documents, products, blue prints, plans, or any other
proprietary information, including any source code or product plans,
specifications, or prototypes for Adept products, processes, or other
intellectual property, with the exception of those items specified herein, which
shall become Employee's property. Employee agrees that he shall also return
and/or destroy any and all copies or reproductions of any of Company property
including documents, products, blue prints, plans, or any other proprietary
information, including any source code or product plans, specifications, or
prototypes for Adept products, processes, or other intellectual property. All
said items will be returned to Adept by Employee and will be returned in good
condition without having been copied or reproduced in any manner.
THIRD: Employee represents that neither he nor anyone acting through or by
him nor any spouse, 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 he will not do so at
any time hereafter.
FOURTH: The parties each agree to use their best efforts to maintain in
confidence the existence of this Agreement, the contents and terms of this
Agreement, and the consideration for this Agreement (hereinafter collectively
referred to as "Settlement Information"). Each party agrees to take every
reasonable precaution to prevent disclosure of any Settlement Information to
third parties, and each agrees that there will be no publicity, directly or
indirectly, concerning any Settlement Information. The parties agree to take
every precaution to disclose Settlement Information only to those employees,
officers, directors, attorneys, accountants, governmental entities, and family
members who have a reasonable need to know of such Settlement Information.
Employee expressly agrees that neither he nor any Releasor will surrender this
Agreement, or disclose its contents to any party or person other than those
specifically allowed in this paragraph except under the compulsion of a court
order duly entered. Employee further agrees that neither he nor any Releasor
will stipulate to the entry of such an order without the advance notice to, and
the agreement of Adept, and that in the event any person moves to compel
disclosure of this Agreement or its contents in any proceeding, he will provide
Adept sufficient notice of such proceeding to allow it to intervene. It being
specifically recognized that this is a compromise of potential disputed claims,
the furnishing of the consideration for this Agreement shall not be deemed or
construed as an admission of liability or responsibility at any time for any
purpose, and neither this Agreement nor evidence of this Agreement shall be used
or offered as evidence in any proceeding for any purpose whatsoever, except for
purposes of enforcement and compliance as provided above. In the event that any
inquiries are addressed to the parties or to any Releasors regarding this
matter, or its resolution, it is agreed that the only reply shall be that the
matter has been resolved, and that the parties are prohibited from further
commenting upon it. 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 the parties. The parties further recognize and acknowledge
that this confidentiality provision is a material term of this Agreement, and
that its violation will constitute a material breach. Finally, the parties agree
to act in good faith in both abiding by the terms this paragraph and in
enforcing the terms of this paragraph.
FIFTH: The parties hereby agree that all rights under section 1542 of the
Civil Code of the State of California are hereby waived by them. Section 1542
provides as follows:
A general release does not extend to claims which the creditor does not
know or suspect to exist in her favor at the time of executing the release,
which if known by him must have materially affected her settlement with the
debtor.
SIXTH: Notwithstanding the provisions of section 1542 of the Civil Code of
the State of California, Employee and Releasors and Adept and Releasees hereby
irrevocably and unconditionally release and forever discharge one another from
any and all claims the other at any time heretofore had or claimed to have, or
which they 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 with Adept or the
cessation of that employment. It is expressly understood by Employee that among
the various rights and claims being waived in this release are those currently
existing under federal and state equal employment laws. Any actions or claims by
the shareholders of Adept, whether brought on their own behalf or as a
derivative action on behalf of the Company, against Adept, or Employee, in his
capacity as an officer or executive of Adept or as an individual are not and
cannot be waived or released through this Agreement.
SEVENTH: Following the execution of this Agreement, it is agreed by the
parties that they shall avoid and refrain from communicating any disparaging,
derogatory, libelous, or scandalous statements to any third party regarding any
party to this Agreement, or regarding any such person or entity's conduct in
this matter.
EIGHTH: Employee understands and agrees that he:
A. Has been given the opportunity to consider this Agreement for a
full twenty-one (21) days before executing it.
B. Has carefully read and fully understands all of the provisions of
this Agreement.
C. Is, through this Agreement, releasing Adept and any and all
Releasees from any and all claims he may have against Adept and/or any
Releasee(s).
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 the
same.
F. Is hereby advised in writing to consider the terms of this
Agreement and consult with an attorney of his choice prior to executing this
Agreement.
G. Understands that rights or claims under all equal employment laws
that may arise after the date this Agreement is executed are not waived.
NINTH: The parties hereto represent and acknowledge that in executing this
Agreement they do not rely and have not relied upon any representation or
statement 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, others than those specifically stated in
this written Agreement.
TENTH: This Agreement shall be binding upon the parties hereto and upon
their heirs, administrators, representatives, executors, successors, offspring,
spouse, and assigns, and shall inure to the benefit of said parties and of said
Releasees and Releasors and each of them and to their heirs, administrators,
representatives, executors, successors, and assigns. Employee expressly warrants
that he has not transferred to any person or entity any rights, causes of
action, or claims released in this Agreement.
ELEVENTH: 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 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.
TWELFTH: 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.
THIRTEENTH: Any controversy or any claim of any kind arising out of or
relating to this Agreement, including but not limited to, any claim relating to
its validity, interpretation, enforceability or breach, or any claims related to
the breach of any state, federal, or local laws prohibiting any form of
discrimination, which is not settled by agreement between the Parties, shall be
settled by arbitration in accordance with the employment rules of the American
Arbitration Association, supplemented by the California Rules of Discovery. The
Parties agree that the arbitration will be a binding arbitration. It is further
understood and agreed that if, at any time, a violation of any term of this
Agreement is asserted by any party hereto, that party shall have the right to
seek specific performance of that term and/or any other necessary and proper
relief, including, but not limited to, damages, from an arbitrator, and the
prevailing parties shall be entitled to recover its reasonable costs and
attorneys' fees. The arbitrator shall be selected by mutual agreement of the
parties.
FOURTEENTH: The parties understand and agree that except as provided in
paragraph FOURTEENTH this Agreement shall be governed by and construed in
accordance with the laws of the State of California. The parties further
understand and agree that, in any arbitration arising under this Agreement,
venue shall be in Pleasanton, California. Such proceedings shall occur at such
time and place as the parties mutually agree.
FIFTEENTH: The waiver by either party of any term, condition or provision
of this Agreement shall not be construed as a waiver of any other or subsequent
term, condition or provision.
SIXTEENTH: This Agreement sets forth the entire agreement between the
parties hereto and fully supersedes any and all prior or contemporaneous
agreements or understandings, written or oral, between the parties pertaining to
the subject matter hereof. This Agreement, however, shall have no effect or
impact on any obligation or duty owed by Employee to Adept, whether arising out
of contract, common law, or some other means.
SEVENTEENTH: This Agreement may not be altered, amended or modified, or
otherwise changed in any respect whatsoever, except by a subsequent writing
executed by authorized representatives of the parties.
Dated: _1/31/04______ _/s/Xxxxx X. Shimano_____________________________
Xxxxx X. Shimano
(On His Behalf And On Behalf of Releasors)
Dated: _1/30/04______ __/s/Xxx Xxxxxxx Lim_____________________________
ADEPT TECHNOLOGY, INC.
(On Behalf of Adept Technology, Inc. and Releasees)
