EMPLOYMENT SEPARATION AND MUTUAL GENERAL RELEASES AGREEMENT
Exhibit 10.1
EMPLOYMENT SEPARATION AND MUTUAL GENERAL RELEASES AGREEMENT
This Employment Separation and Mutual General Releases Agreement (this “Separation
Agreement”) is entered into this 14th day of July 2008, by and between Xxxxx
Xxxxxxx, an individual (“Departing Employee”), and QLogic Corporation (“QLogic”).
WHEREAS, Departing Employee has been employed as the Senior Vice-President, World-Wide Sales
of QLogic and has resigned from such employment; and
WHEREAS, Departing Employee and QLogic desire to set forth the terms and conditions of such
resignation and separation from employment;
NOW, THEREFORE, in consideration of the covenants undertaken and the releases contained in
this Separation Agreement, Departing Employee and QLogic agree as follows:
I. Resignation. Departing Employee hereby acknowledges and agrees that he resigned
as an officer, employee, and in any other capacity with QLogic and each of its subsidiaries and
affiliates, effective as of July 18, 2008 (the “Separation Date”). QLogic and its affiliates
hereby accept such resignation. Departing Employee acknowledges and agrees that he has received
all amounts owed for his regular and usual salary (including, but not limited to, any severance,
overtime, bonus, commissions, or other wages), usual benefits and accrued but unused vacation
through the Separation Date and that all payments due to Departing Employee from QLogic after the
Separation Date shall be determined under this Separation Agreement.
II. Severance. If Departing Employee fully executes this Agreement and does not
revoke it during the revocation period, QLogic shall pay to Departing Employee as severance a lump
sum of $172,536.00, less standard withholding and authorized deductions (the “Transition
Severance”). In addition, if Departing Employee fully executes this Agreement and does
not revoke it during the revocation period, QLogic shall pay to Departing Employee as additional
severance a lump sum of $129,402.00 (the “Special Severance,” and together with the Transition
Severance, the “Severance”). The Severance shall be paid to Departing Employee within seven (7)
business days following the expiration of the revocation period set forth in Section VI below.
Departing Employee will receive Company-paid medical benefits for him and his dependents through
the earlier of (i) July 31, 2009 and (ii) the date you become eligible to receive benefits under
another employer’s employee welfare benefit plan, that includes medical coverage (with the Company
paying all premium amounts for such coverage directly to the insurer). The period of Company-paid
medical benefits shall be part of the 18 months of continued coverage available to Departing
Employee under Section 601 et. seq. of the Employee Retirement Income Security Act of 1974, as
amended (commonly called “COBRA coverage”). Following the expiration of the Company-paid
coverage, Departing Employee may continue COBRA coverage for the remainder of the 18-month period
at his expense. The Company shall deliver to Departing Employee on the Separation Date the laptop
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computer, two monitors and printer used by Departing Employee at no charge to Departing
Employee; provided that such laptop computer will not contain software or other data. The Company
will pay the reasonable costs of an executive physical under the Company’s executive physical
program provided that Departing Employee completes the physical within 60 days after the
Separation Date.
III. Non-Disparagement. Until the first anniversary of the date of this Separation
Agreement, Departing Employee agrees that he shall not (1) directly or indirectly, make or ratify
any statement, public or private, oral or written, to any person that disparages, either
professionally or personally, QLogic or any of its affiliates, past and present, and each of them,
as well as its and their trustees, directors, officers, members, managers, partners, agents,
attorneys, insurers, employees, stockholders, representatives, assigns, and successors, past and
present, and each of them, or (2) make any statement or engage in any conduct that has the purpose
or effect of disrupting the business of QLogic or any of its affiliates. Until the first
anniversary of the date of this Separation Agreement, QLogic, and its officers and directors,
shall not, directly or indirectly, make or ratify any statement, public or private, oral or
written, to any person that disparages, either professionally or personally, Departing Employee.
Nothing in the preceding two sentences, however, shall in any way prohibit Departing Employee or
QLogic from disclosing such information as may be required by law, or by judicial or
administrative process or order or the rules of any securities exchange or similar self-regulatory
organization applicable to such person.
IV. Release. Departing Employee on behalf of himself/herself, his/her
descendants, dependents, heirs, executors, administrators, assigns, and successors, and
each of them, hereby covenants not to xxx and fully releases and discharges QLogic and
each of its parents, subsidiaries and affiliates, past and present, as well as its and
their trustees, directors, officers, members, managers, partners, agents, attorneys,
insurers, employees, stockholders, representatives, assigns, and successors, past and
present, and each of them, hereinafter together and collectively referred to as the
“Releasees,” with respect to and from any and all claims, wages, demands, rights, liens,
agreements, contracts, covenants, actions, suits, causes of action, obligations, debts,
costs, expenses, attorneys’ fees, damages, judgments, orders and liabilities of whatever
kind or nature in law, equity or otherwise, whether now known or unknown, suspected or
unsuspected, and whether or not concealed or hidden, which he/she now owns or holds or
he/she has at any time heretofore owned or held or may in the future hold as against any
of said Releasees, arising out of or in any way connected with his/her service as an
officer or employee of any Releasee, his/her separation from his/her position as an
officer or employee of any Releasee, or any other transactions, occurrences, acts or
omissions or any loss, damage or injury whatever, known or unknown, suspected or
unsuspected, resulting from any act or omission by or on the part of said Releasees, or
any of them, committed or omitted prior to the date of this Separation Agreement
including, without limiting the generality of the foregoing, any claim under Title VII of
the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination
in Employment Act, the Family and Medical Leave Act of 1993, the California Fair
Employment and Housing Act, the California Family Rights Act, or any claim for severance
pay, bonus, sick leave, holiday pay, vacation pay, life insurance, health or medical
insurance or any other fringe benefit, workers’
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compensation or disability; provided that such release (i) shall not apply to any
obligation created by or arising out of this Separation Agreement for which receipt or
satisfaction has not been acknowledged; (ii) shall not apply to that certain
Indemnification Agreement, dated April 7, 2006, between QLogic and Departing Employee
(the “Indemnification Agreement”), which agreement shall continue in full force and
effect in accordance with its terms; (iii) shall not restrict Departing Employee from
exercising during the 90 day period after the Separation Date any stock options or
exercising rights with respect to restricted stock units or other equity awards that were
vested as of the Separation Date, all in accordance with the plan documents governing
such awards; and (iv) shall not impair Departing Employee’s rights in the Company
sponsored 401(k) plan, including any rights to matching contributions that are vested as
of the Separation Date, all in accordance with the plan documents governing such plan.
QLogic on behalf of itself, and its subsidiaries and affiliates, past and present, as
well as its and their trustees, directors, officers, members, managers, partners, agents,
attorneys, insurers, employees, stockholders, representatives, assigns, and successors,
past and present, and each of them, hereby covenants not to xxx and fully releases and
discharges Departing Employee and each of his/her descendants, dependents, heirs,
executors, administrators, assigns, and successors, past and present, and each of them,
hereinafter together and collectively referred to as the “Departing Employee Releasees,”
with respect to and from any and all claims, wages, demands, rights, liens, agreements,
contracts, covenants, actions, suits, causes of action, obligations, debts, costs,
expenses, attorneys’ fees, damages, judgments, orders and liabilities of whatever kind or
nature in law, equity or otherwise, whether now known or unknown, suspected or
unsuspected, and whether or not concealed or hidden, which it now owns or holds or it has
at any time heretofore owned or held or may in the future hold as against any of said
Departing Employee Releasees, arising out of or in any way connected with Departing
Employee service as an officer or employee of QLogic, his/her separation from his/her
position as an officer or employee of QLogic, or any other transactions, occurrences,
acts or omissions or any loss, damage or injury whatever, known or unknown, suspected or
unsuspected, resulting from any act or omission by or on the part of said Departing
Employee Releasees, or any of them, committed or omitted prior to the date of this
Separation Agreement including, without limiting the generality of the foregoing, any
claim under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities
Act, the Age Discrimination in Employment Act, the Family and Medical Leave Act of 1993,
the California Fair Employment and Housing Act, the California Family Rights Act, or any
claim for severance pay, bonus, sick leave, holiday pay, vacation pay, life insurance,
health or medical insurance or any other fringe benefit, workers’ compensation or
disability; provided that such release (i) shall not apply to any obligation
created by or arising out of this Separation Agreement for which receipt or satisfaction
has not been acknowledged; (ii) shall not apply to that certain Indemnification
Agreement, dated April 7, 2006, between QLogic and Departing Employee (the
“Indemnification Agreement”), which agreement shall continue in full force and effect in
accordance with its terms; (iii) shall not restrict Departing Employee from exercising
during the 90 day period after the Separation Date any stock options or exercising rights
with respect to restricted stock units or
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other equity awards that were vested as of the Separation Date, all in accordance with
the plan documents governing such awards; and (iv) shall not impair Departing Employee’s
rights in the Company sponsored 401(k) plan, including any rights to matching
contributions that are vested as of the Separation Date, all in accordance with the plan
documents governing such plan.
V. 1542 Waiver. It is the intention of Departing Employee and QLogic in
executing this instrument that the same shall be effective as a bar to each and every
claim, demand and cause of action hereinabove specified. In furtherance of this
intention, Departing Employee and QLogic each hereby expressly waives any and all rights
and benefits conferred upon him/her or it by the provisions of SECTION 1542 OF THE
CALIFORNIA CIVIL CODE and each expressly consents that this Separation Agreement shall be
given full force and effect according to each and all of its express terms and
provisions, including those related to unknown and unsuspected claims, demands and causes
of action, if any, as well as those relating to any other claims, demands and causes of
action hereinabove specified. SECTION 1542 provides:
“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.”
Departing Employee and QLogic each acknowledges that he/she or it understands the significance and
consequences of such release and such specific waiver of SECTION 1542.
VI. ADEA Waiver. Departing Employee expressly acknowledges and agrees that by
entering into this Agreement, he/she is waiving any and all rights or claims that he/she
may have arising under the Age Discrimination in Employment Act of 1967, as amended,
which have arisen on or before the date of execution of this Separation Agreement.
Departing Employee further expressly acknowledges and agrees that:
A. In return for this Separation Agreement, he/she will receive consideration beyond that
which he/she was already entitled to receive before entering into this Separation Agreement;
B. He/She is hereby advised in writing by this Separation Agreement to consult with an
attorney before signing this Separation Agreement;
C. He/She was given a copy of this Separation Agreement on July 14, 2008 and informed that
he/she had twenty-one (21) days within which to consider this Separation Agreement; and
D. He/She was informed that he/she had seven (7) days following the date of execution of this
Separation Agreement in which to revoke this Separation Agreement.
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VII. No Transferred Claims. Departing Employee warrants and represents that
he/she has not heretofore assigned or transferred to any person not a party to this
Separation Agreement any released matter or any part or portion thereof and he/she shall
defend, indemnify and hold QLogic and each of its affiliates harmless from and against
any claim (including the payment of attorneys’ fees and costs actually incurred whether
or not litigation is commenced) based on or in connection with or arising out of any such
assignment or transfer made, purported or claimed.
VIII. Confidential Information and Non-Solicitation.
A. Departing Employee, in the performance of his/her services on behalf of QLogic
and its affiliates, has had access to, received and been entrusted with
confidential information, including but in no way limited to development,
marketing, organizational, financial, management, administrative, production,
distribution and sales information, data, specifications and processes presently
owned or at any time in the future developed, by QLogic, its affiliates, or its or
their agents or consultants, or used presently or at any time in the future in the
course of its or their business that is not otherwise part of the public domain
(collectively, the “Confidential Material”). All such Confidential
Material is considered secret and was made available to Departing Employee in
confidence. Departing Employee represents that he has held all such information
confidential and will continue to do so.
B. Departing Employee promises and agrees that for a period of one year after the Separation
Date, he will not, directly or indirectly, individually or as a consultant to, or as an employee,
officer, stockholder, director or other owner of or participant in any business solicit (or assist
in soliciting) any person who is an employee of the Company or any of its affiliates as of the
Separation Date to work for (as an employee, consultant or otherwise) any business, individual,
partnership, firm, corporation or other entity whether or not engaged in competitive business with
the Company or any of its affiliates.
IX. Miscellaneous.
A. Successors.
1. This Separation Agreement is personal to Departing Employee and shall not,
without the prior written consent of QLogic, be assignable by Departing Employee.
2. This Separation Agreement shall inure to the benefit of and be binding upon
QLogic and its respective successors and assigns and any such successor or
assignee shall be deemed substituted for QLogic under the terms of this Separation
Agreement for all purposes. As used herein, “successor” and “assignee” shall
include any person, firm, corporation or other business entity which at any time,
whether by purchase, merger or otherwise, directly or indirectly acquires the
ownership of QLogic or to which QLogic assigns this Separation Agreement by
operation of law or otherwise.
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B. Waiver. No waiver of any breach of any term or provision of this
Separation Agreement shall be construed to be, nor shall be, a waiver of any other
breach of this Separation Agreement. No waiver shall be binding unless in writing
and signed by the party waiving the breach.
C. Modification. This Separation Agreement may not be amended or modified
other than by a written agreement executed by Departing Employee and the Chief
Executive Officer of QLogic or his designee.
D. Complete Agreement. This Separation Agreement constitutes and contains
the entire agreement and final understanding concerning Departing Employee’s
relationship with QLogic and its affiliates and the other subject matters
addressed herein between the parties, and supersedes and replaces all prior
negotiations and all agreements proposed or otherwise, whether written or oral,
concerning the subject matters hereof. The Indemnification Agreement and the
Employee Invention and Non-Disclosure Agreement by and between Departing Employee
and QLogic and entered into on or about August 26, 2001 (the “Confidentiality
Agreement”) are outside of the scope of the preceding sentence and each shall
continue in effect in accordance with their respective terms. Any representation,
promise or agreement not specifically included in this Separation Agreement, the
Indemnification Agreement or the Confidentiality Agreement shall not be binding
upon or enforceable against either party. This Separation Agreement, the
Indemnification Agreement and the Confidentiality Agreement constitute an
integrated agreement.
E. Litigation and Investigation Assistance. For a period of one year after the
Separation Date, Departing Employee agrees to cooperate in the defense of QLogic or any of its
affiliates against any threatened or pending litigation or in any investigation or proceeding by
any governmental agency or body that relates to any events or actions which occurred during or
prior to the term of Departing Employee’s employment. For a period of one year after the
Separation Date, Departing Employee also agrees to cooperate in the prosecution of any claims and
lawsuits brought by QLogic or any of its affiliates that are currently outstanding or that may in
the future be brought relating to matters which occurred during or prior to the term of Departing
Employee’s employment. Departing Employee’s cooperation under this paragraph E shall be upon
reasonable advanced notice and such cooperation shall not unreasonably interfere with Departing
Employee’s then current work responsibilities and in any event shall not require more than two
days of Departing Employee’s time in any 30 day period. From and after the Separation Date,
except as requested by QLogic or as required by law, Departing Employee shall not comment upon any
(i) threatened or pending claim or litigation (including investigations or arbitrations) involving
QLogic or any of its affiliates or (ii) threatened or pending government investigation involving
QLogic or any of its affiliates.
F. Severability. If any provision of this Separation Agreement or the application
thereof is held invalid, the invalidity shall not affect other provisions or applications of the
Separation Agreement which can be given effect without the invalid
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provisions or applications and to this end the provisions of this Separation Agreement are
declared to be severable.
G. Choice of Law. This Separation Agreement shall be deemed to have been executed
and delivered within the State of California, and the rights and obligations of the parties
hereunder shall be construed and enforced in accordance with, and governed by, the laws of the
State of California without regard to principles of conflict of laws.
H. Cooperation in Drafting. Each party has cooperated in the drafting and
preparation of this Separation Agreement. Hence, in any construction to be made of this
Separation Agreement, the same shall not be construed against any party on the basis that the
party was the drafter.
I. Counterparts. This Separation Agreement may be executed in counterparts, and each
counterpart, when executed, shall have the efficacy of a signed original. Facsimile copies of
such signed counterparts may be used in lieu of the originals for any purpose.
J. Arbitration. Any dispute, claim or controversy arising out of or relating to this
Separation Agreement, its enforcement or interpretation, or because of an alleged breach, default,
or misrepresentation in connection with any of its provisions, including the determination of the
scope or applicability of this agreement to arbitrate, shall be submitted to final and binding
arbitration, to be held in Orange County, California before a sole arbitrator; provided, however,
that provisional injunctive relief may, but need not, be sought in a court of law while
arbitration proceedings are pending, and any provisional injunctive relief granted by such court
shall remain effective until the matter is finally determined by the arbitrator. The arbitration
shall be administered by JAMS. Judgment on the award may be entered in any court having
jurisdiction. In the event either party institutes arbitration under this Separation Agreement,
the party prevailing in any such proceeding, as determined by the arbitrator, shall be entitled,
in addition to all other relief, to reasonable attorneys’ fees relating to such arbitration.
QLogic shall be responsible for all costs of the arbitration, including but not limited to, the
arbitration fees, court reporter fees, etc. Any dispute as to the reasonableness of costs and
expenses shall be determined by the arbitrator.
K. Supplementary Documents. All parties agree to cooperate fully and to execute any
and all supplementary documents and to take all additional actions that may be necessary or
appropriate to give full force to the basic terms and intent of this Separation Agreement and
which are not inconsistent with its terms.
L. Headings. The section headings contained in this Separation Agreement are
inserted for convenience only and shall not affect in any way the meaning or interpretation of
this Separation Agreement.
M. Taxes. Other than QLogic’s right to reduce the Severance for standard
withholding, Departing Employee shall be solely responsible for any taxes due as a result of the
payment of Severance and other benefits to be provided to Departing Employee herein. Departing
Employee will defend and indemnify QLogic and each of its affiliates from and
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against any tax liability that any of them may have with respect to any such payment and
against any and all losses or liabilities, including defense costs, arising out of Departing
Employee’s failure to pay any taxes due with respect to any such payment.
I have read the foregoing Separation Agreement and I accept and agree to the provisions it
contains and hereby execute it voluntarily with full understanding of its consequences.
EXECUTED this 14th day of July, at Orange County, California.
| “Departing Employee” |
||||
| /s/ Xxxxx Xxxxxxx | ||||
| Xxxxx Xxxxxxx | ||||
| Departing Employee | ||||
EXECUTED this 14th day of July, at Orange County, California.
| “QLogic” QLogic Corporation |
||||
| /s/ Xxxx Xxxxxxx | ||||
| By: Xxxx Xxxxxxx | ||||
| Its: Vice President, Human Resources | ||||
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EXHIBIT A
ENDORSEMENT
I, Departing Employee, hereby acknowledge that I was given 21 days to consider the foregoing
Employment Separation and General Release Agreement and voluntarily chose to sign the Employment
Separation and General Release Agreement prior to the expiration of the 21-day period.
I declare under penalty of perjury under the laws of the state of California, that the
foregoing is true and correct.
EXECUTED this 14th day of July, at Orange County, California.
| /s/ Xxxxx Xxxxxxx | ||||
| Xxxxx Xxxxxxx | ||||
| Departing Employee | ||||
A-1
