SEPARATION AGREEMENT AND RELEASE OF ALL CLAIMS
Exhibit 10.39
This Separation Agreement and Release of All Claims (“Agreement and Release”) is intended to
constitute a binding agreement between you, Xxxxxx X. Xxxxxxx (“Employee”), and Asyst Technologies,
Inc., on behalf of its subsidiary and affiliated entities (“Asyst” or the “Company”). Please
review the terms carefully. By signing below, you are agreeing to end your employment relationship
with Asyst on the terms identified below, and in return for the benefits provided herein. We
advise you to consult with an attorney or other advisor concerning its terms and obligations, and
the specific effect on your legal rights. This Agreement and Release is deemed effective as of May
31, 2006 (the “Effective Date”).
1. Your employment with Asyst shall terminate on May 31, 2006. You understand you have no
recall rights.
2. You and Asyst agree that this Agreement and Release is contractual in nature and not a mere
recital, and that this Agreement and Release shall be interpreted as though drafted jointly by the
Employee and Asyst.
3. You will be paid your earned salary and accrued PTO pay through May 31, 2006. You
understand that, except as provided herein, you will not be entitled to any additional payments,
severance or other benefits from Asyst associated with any claimed work or right to work beyond the
date of your termination. It is agreed that, provided you observe all of your obligations to
Asyst, between the time you sign this Agreement and Release and your employment termination date of
May 31, 2006, you may seek and accept, but not commence other employment.
4. Unless to the extent expressly otherwise provided for in Paragraph 8, below, in conjunction
with your execution of this Agreement and Release, if you have existing stock options or grants,
they will continue to vest through May 31, 2006; however, your vesting shall cease automatically as
of that date, and all such vesting shall be subject to the original terms and conditions of your
option grant and the Asyst stock option plan from which the grant issued. Unless and to the extent
expressly otherwise provided for in Paragraph 8, below, in conjunction with your execution of this
Agreement and Release, nothing herein shall operate to continue vesting, extend the original term
of the options granted to you or abridge Asyst’s rights to cancel options or repurchase shares, as
provided in such option or stock grant or the Asyst stock option plan from which the grant issued.
Your participation in Asyst’s Employee Stock Purchase Plan will also automatically cease as of May
31, 2006. Please refer to the plan terms and conditions. Additional information regarding stock
options is available. Contact Stock Administration at 000-000-0000 for additional information.
5. Your health and employee benefits will terminate effective May 31, 2006, except to the
extent expressly provided in this Agreement and Release.
6. During the course of your employment with Asyst, you have had access to or have had
possession of confidential and proprietary information or materials of Asyst (including, but not
limited to, technical information, business plans, client, supplier and employee information,
telephone records or lists, and non-public financial information). You acknowledge and understand
that all such information or material constitutes confidential information of Asyst and/or its
customers and affiliates; you agree that you shall not retain and that you must return to Asyst all
originals and copies of such material. You further agree that you shall not use, disclose or
divulge any such material or other confidential or trade secret information of Asyst, its customers
or affiliates to any third party company, individual or institution without the direct written
authorization of Asyst’s C.E.O., and that your confidentiality obligations to Asyst are continuing
into the future regardless of termination of your employment.
7. Unless to the extent expressly otherwise provided for in Paragraph 8 below, you also agree
to return promptly all property of Asyst, including pagers, cellular phones, PDAs and any other
materials or
equipment in your possession or which were provided to you by or through Asyst. You further
understand that any use of credit or telephone cards, cellular phones, pagers, PDAs, and other
materials or equipment provided to you by or through Asyst will not be authorized beyond your
termination date, and any expenses incurred after your termination date will not be eligible for
reimbursement.
8. In addition to the benefits described above, and upon and in consideration of your
acceptance, execution and continued observance of the terms and conditions of this Agreement and
Release, the following releases, the Agreement to Arbitrate Disputes and Claims, and the
Confidential Information and Inventions Assignment Agreement you may have executed previously in
conjunction with your employment with Asyst, which terms and conditions are incorporated herein by
this reference and made a material part of this Agreement and Release, and without further
obligation to do so, Asyst agrees to provide you the following additional separation benefits:
(a) a lump sum payment equivalent to $200,000.00, less payroll and other deductions and
withholdings (including deductions required to reimburse Asyst for monies previously
extended to you as an Asyst employee). These payments and benefits will be made on next
Asyst regular pay-day following May 31, 2006; and
(b) accelerated vesting in full as of May 31, 2006 of the 10,000 remaining shares of
restricted stock under that certain award issued on May 16, 2005 (Award No. 6621).
9. The terms and conditions of this Agreement and Release supersede and fully replace the
terms of your corrected offer letter, executed on May 26, 2004, and your change of control
agreement, executed on April 10, 2004. However, your indemnification agreement and all other
obligations identified and incorporated herein with Asyst shall survive the termination of your
employment with Asyst.
10. You hereby fully waive, release and discharge Asyst, its parent, subsidiary and affiliated
entities, and the shareholders, directors, officers, employees, agents and representatives of each
(the “Released Parties”) from, and agree never to assert against any of the Released Parties any
and all claims, liabilities, charges and causes of action of any kind whatsoever which you have,
had or may have against them as of the date on which you sign this Agreement, including without
limitation any and all claims, liabilities, charges and causes of action relating to:
(a) | your employment, termination of employment or any right, expectation, claim or benefit relating to or arising in any manner from your employment; | ||
(b) | any and all rights or claims relating to or in any manner arising under the California Fair Employment and Housing Act (Government Code section 12900 et seq., as amended); | ||
(c) | any and all rights or claims relating to or in any manner arising under the Civil Rights Act of 1964 (42 U.S.C. 2000, et seq., as amended); | ||
(d) | any and all rights or claims relating to or in any manner arising under the Americans with Disabilities Act (29 U.S.C. 706 et seq., as amended); | ||
(e) | any and all rights or claims relating to or in any manner arising under the Age Discrimination in Employment Act of 1967 (29 U.S.C. 621 et seq., as amended); | ||
(f) | any and all rights or claims relating to or in any manner arising under the WARN Act (as amended), and any comparable provisions of California or other applicable law; | ||
(g) | any and all rights or claims relating to or in any manner arising under the Equal Pay Act of 1963 (as amended); |
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(h) | any and all rights or claims relating to or in any manner arising under the California Labor Code Section 1197.5 (as amended); and | ||
(i) | any and all rights or claims otherwise relating to or in any manner arising under federal, state or local statutory, administrative or common law or regulation, including claims for wrongful termination or constructive discharge or demotion, breach of contract (written, oral or implied), breach of the covenant of good faith and fair dealing, violation of public policy, infliction of emotional distress, personal injury, defamation and misrepresentation. |
11. Asyst hereby fully waives, releases and discharges you from, and agrees never to assert
against you, any and all claims, liabilities, charges and causes of action of any kind whatsoever
which Asyst has, had or may have against you as of the date on which you sign this Agreement,
provided, however, that nothing in this Paragraph 11 shall preclude Asyst from enforcing its rights
with respect to your obligations under the terms and conditions listed in the first sentence of
Paragraph 8 of this Agreement and Release.
12. Each party waives his or its rights under section 1542 of the Civil Code of California, or
other comparable provision of applicable law, which states:
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 to him must have materially affected his
settlement with the debtor.
13. This Agreement and Release shall not affect any waiver or release of any claim for
workers’ compensation benefits and unemployment insurance benefits.
14. You understand, represent and agree that:
(a) | you have had a reasonable opportunity to consider this Agreement and Release and to consult an attorney or other advisor before signing this Agreement and Release; | ||
(b) | you have read this Agreement and Release in full and understand all of the terms and conditions set forth herein; | ||
(c) | you knowingly and voluntarily agree to all of the terms and conditions set forth herein and intend to be legally bound by them; | ||
(d) | you may rescind this Agreement and Release only with respect to claims arising under the Age Discrimination in Employment Act of 1967 (29 U.S.C. 621 et seq.) and only if you do so within seven (7) days after signing it (in which case you will forfeit in full and agree immediately to refund, return to and reimburse Asyst any and all benefits provided to you under Paragraph 8, above); and | ||
(e) | this Agreement and Release will not become effective or enforceable with respect to claims arising under the Age Discrimination in Employment Act of 1967 (29 U.S.C. 621 et seq.) until seven (7) days after you have signed it. |
15. You represent that you have not filed any complaints, claims, grievances or actions
against Asyst, its parent, subsidiary and affiliated entities, and the shareholders, directors,
officers, employees, agents and representatives of each, or any other of the Released Parties in
any state, federal or local court or agency, and you covenant not to file any such complaints,
claims, grievances, or actions (other than for workers’ compensation benefits, unemployment
insurance benefits or otherwise not subject to by law to your waiver or releases herein) at any
time hereafter. You hereby grant power of attorney to Asyst to dismiss on your behalf any such
complaint, claim grievance or action you filed in violation of this Paragraph. Notwithstanding the
foregoing, you acknowledge and agree that in the event you successfully assert any claim against
Asyst,
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despite the waivers, releases and other representations provided in this Agreement and
Release, that an amount equal to any and all benefits provided to you under Paragraph 8, above, may
and shall be off-set and deducted from any recovery from such claim.
16. Asyst represents that it has not filed any complaints, claims, grievances or actions
against you in any state, federal or local court or agency, and Asyst covenants not to file any
such complaints, claims, grievances, or actions at any time hereafter with respect to the claims
released by Asyst hereunder. Asyst hereby grants power of attorney to you to dismiss on Asyst’s
behalf any such complaint, claim grievance or action Asyst filed in violation of this Paragraph.
17. You agree not to defame, disparage or criticize Asyst or its shareholders, directors,
officers, employees or business or employment practices at any time. In addition, you agree not to
engage in any conduct that you know or reasonably should know will damage the reputation of Asyst
or cause third parties to view Asyst or its shareholders, directors, officers or employees in a
less favorable light.
18. You agree to not to disclose the existence of this Agreement and Release, its terms, or
any information relating to this Agreement and Release to anyone other than your spouse (if any),
tax preparer, accountant, attorney and other professional adviser or party to whom disclosure is
necessary in order to comply with the law. In such event, you will instruct them to maintain the
confidentiality of this Agreement and Release just as you must.
19. The parties agree that this Agreement and Release shall be binding upon their successors
and assignees. Each represents that it has not transferred to any person or entity any of the
rights released or transferred through this Agreement.
20. If a court of competent jurisdiction declares or determines that any provision of this
Agreement and Release is invalid, illegal or unenforceable, the invalid, illegal or unenforceable
provision(s) shall be deemed not a part of this Agreement, but the remaining provisions shall
continue in full force and effect.
21. Each party, upon breach of this Agreement and Release by the other, shall have the right
to seek all necessary and proper relief, including, but not limited to, specific performance, from
a court of competent jurisdiction
22. Each party agrees that any differences, disputes or controversies between us arising from
this Agreement and Release or from rights or obligations hereunder, or any liabilities asserted or
arising from your employment or its termination, shall be exclusively submitted to binding
arbitration before an independent and qualified arbitrator in accordance with the American
Arbitration Association and the National Rules for the Resolution of Employment Disputes then in
effect, without reference to conflict of laws principles. Arbitration shall be the exclusive forum
for any dispute, claim or cause arising hereunder, or any liabilities asserted or arising from your
employment or its termination, and the decision and award by the arbitrator shall be final and
binding upon, and non-appealable by, the parties and may be entered in any state or federal court
having jurisdiction. In all other respects, the arbitration shall be subject to the terms and
conditions provided in the Agreement to Arbitrate Disputes and Claims (if previously or
contemporaneously executed by you and Asyst), which said terms and conditions are deemed
incorporated in his Agreement and Release in full by this reference and made a material part
hereof.
23. Neither you nor Asyst shall be able to recover from the other, for any claim, cause or
action arising hereunder, any incidental, special, consequential or exemplary damages of any
nature, including but not limited to punitive damages, or attorneys fees or costs incurred in any
such claim, cause or action, unless and to the extent any such award of damages, fees or costs is
specifically provided and available to the party as a remedy under the statute asserted as a basis
for the claim, cause or action, and, unless so specifically provided, the court or arbitrator in
any such claim, cause or action shall be without authority or jurisdiction to award such damages
fees or costs; provided, however, that provisional or injunctive remedies and relief shall be
available as appropriate to each party.
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24. We each, to the fullest extent permitted by law, waive any right or expectation against
the other to trial or adjudication by a jury of any claim, cause or action arising hereunder or
from the rights, duties or liabilities created hereby.
25. The laws of the State of California shall govern the construction and enforcement of this
Agreement and Release and any rights, obligations or liabilities hereunder, without regard to
conflicts of laws considerations.
26. You certify and confirm that you do not have in your possession, and that you have
returned to Asyst as of termination of your employment, all property, devices, records, data,
notes, reports, proposals, lists, correspondence, specifications, drawings, blueprints, sketches,
materials equipment, other documents or property, or reproductions of any aforementioned items
belonging to Asyst.
27. You also certify and confirm that you have complied during your employment with all the
terms of Asyst’s Confidential Information and Inventions Assignment Agreement in the event
previously signed by you, including the reporting of any inventions and original works of
authorship (as defined therein), conceived or made by you (solely or jointly with others) covered
by that agreement. You further agree that you will continue to be required to preserve as
confidential all trade secrets, confidential knowledge, data or other proprietary information
relating to services, clients, products, processes, know-how, designs, formulas, developmental or
experimental work, computer programs, data bases, other original works of authorship, customer
lists, business plans, financial information or other subject matter pertaining to any business of
Asyst or any of its employees, clients, consultants or licensees.
28. You further agree that for the six (6) month period from the date of termination of your
employment or consulting relationship with Asyst, you will not recruit or solicit any employee to
leave Asyst for any reason or to accept employment with any other company, and will not interview
or knowingly provide any assistance or input to any third party regarding any such employee.
29. To accept this Agreement and Release, please sign and date this Agreement and Release and
return the original executed document to Human Resources, Asyst Technologies, Inc., 00000 Xxxxxxx
Xxxxxxx, Xxxxxxx, Xxxxxxxxxx 00000, no later than May 15, 2006. If you do not return a copy of the
executed Agreement and Release by that date, the offer of the benefits described in Paragraph 8 and
elsewhere of this Agreement and Release will be automatically deemed revoked.
30. You understand that the provisions of this Agreement and Release set forth the entire
agreement between you and Asyst concerning your employment, separation benefits and termination of
employment, and that this Agreement and Release replaces any other promises, representations or
agreement between you and Asyst, whether written or oral, concerning such matters. You also
understand that any benefits provided you under this Agreement and Release are offered on a
one-time basis, and are not a part of a funded employee welfare program or established Asyst
practice or policy. Any modification of this Agreement and Release, or change to the benefits
offered hereunder, must be in writing and executed in advance by you and the Vice President, Human
Resources for Asyst, or else such notification will not be binding or effective.
31. In the event that you breach any of your obligations under this Agreement and Release or
as otherwise imposed by law, Asyst will be entitled to recover the sums and benefits paid under the
Agreement and Release and to obtain all other relief provided by law or equity.
32. The parties agree and represent that they have not relied and do not rely upon any
representation or statement regarding the subject matter or effect of this Agreement and Release
made by any other party to this Agreement and Release or any party’s agents, attorneys or
representatives.
I, THE UNDERSIGNED, HAVE HAD A SUFFICIENT OPPORTUNITY TO CONSIDER THIS AGREEMENT AND RELEASE AND
HAVE BEEN ADVISED IN WRITING THAT I MAY CONSULT
WITH AN ATTORNEY CONCERNING ITS TERMS AND EFFECT PRIOR TO EXECUTING THIS AGREEMENT AND RELEASE.
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I, THE UNDERSIGNED, HAVE READ THIS AGREEMENT AND RELEASE AND UNDERSTAND THAT I ENTER THIS AGREEMENT
AND RELEASE INTENDING TO AND DO WAIVE, SETTLE AND RELEASE ALL CLAIMS I HAVE OR MIGHT HAVE AGAINST
ASYST TO THE FULL EXTENT PERMITTED BY LAW. I SIGN THIS AGREEMENT AND RELEASE VOLUNTARILY AND
KNOWINGLY.
ACKNOWLEDGED, UNDERSTOOD AND AGREED:
Date:
|
5-31-06 | /s/ X. X. Xxxxxxx | ||
Xxxxxx X. Xxxxxxx | ||||
Asyst Technologies, Inc. |
Date:
|
5/31/06 | By: | /s/ Xxxxx Xxxxxxxx | |||
Xxxxx Xxxxxxxx | ||||||
Vice President, General Counsel and Secretary |
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