Exhibit 10.40
SEVERANCE AGREEMENT AND GENERAL RELEASE AND WAIVER OF CLAIMS
This Severance Agreement and General Release and Waiver of Claims (the
"Agreement") is entered into by and between Xxxx X. Xxxxx ("Employee"), and
Ramtron International Corporation, a Delaware corporation (the "Released
Party").
1. The Employee's employment will terminate effective January 13, 2006. The
Employee and Released Party each have determined that it is to their
respective advantage to accept the consideration offered for entering into
this Agreement, to waive and release any and all claims as described in
paragraph 5, to agree not to initiate legal action to enforce such claims,
and by doing so to avoid the cost in time and economic and emotional
resources which is a necessary part of pursuing such claims in the courts or
in any other forum.
2. The entry into this Agreement by the parties is not and shall not be
construed to be an admission of any act, practice or policy by the Employee
or the Released Party in violation of any statute, common law duty,
constitution, or administrative rule or regulation. Further, this Agreement
shall not constitute evidence of any such proscribed or wrongful act,
practice or policy.
3. Each party agrees that this Agreement shall not be tendered or admissible
as evidence in any proceeding by any party for any purpose, except that the
Agreement may be offered as evidence in: a proceeding involving one or more
of the parties in which an alleged breach of the Agreement, the enforcement
of the Agreement, or the validity of any term of the Agreement is at issue;
or, an unemployment compensation proceeding.
4. In consideration for the Employee's entry into the Agreement and the
resulting acceptance of the terms and obligations of this Agreement,
including but not limited to the waiver and release of all claims against
Released Party, as described in paragraph 5 below, and subject to the other
provisions of this Agreement:
(a) Released Party shall:
(i) pay to the Employee, upon Employee's execution of this
Agreement and the expiration of the seven-day revocation period
described in paragraph 12, an amount equal to the salary that
would have been earned and paid to Employee at his current pay
scale for a period of thirty-six (36) weeks ("Payment") as
severance pay, less applicable withholding or deductions. This
Payment does not include and is in addition to any amounts
earned and payable or otherwise owed to the Employee, by the
Released Party, and the Employee has no right to the above
consideration other than by virtue of his/her entry into this
Agreement. Employee acknowledges and agrees that the Payment
provided herein exceeds any amount Employee may have been
entitled to receive from the Released Party in the normal
course of employment
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(ii) pay for all medical, dental and life insurance premiums for
the benefit of Employee so there is no lapse in coverage of any
such benefits up to and through January 13, 2007.
(b) Employee may:
(i) exercise up to and through January 13, 2007 any previously
granted stock options that are fully vested and exercisable as
of January 13, 2006; and
(ii) retain and shall own the laptop computer used by Employee
during the course of his employment.
(c) Released Party may request that Employee, through the period ending
January 13, 2007, answer questions advanced by Released Party
concerning Released Party's business. Subject to Employee's
availability, Employee agrees to provide such future assistance.
Should any such future assistance provided by Employee require more
than one hour of Employee's time at any one time, then Released
Party shall compensate Employee for such time at a rate to be agreed
to between Released Party and Employee.
5. In exchange for the consideration and other promises provided by Released
Party described in this Agreement, the Employee for himself or herself and
his/her representatives, heirs, and assigns, hereby releases and discharges
Released Party, and any successor, parent, affiliate, or subsidiary company
of the Released Party, its present and former officers, directors, employees,
agents, representatives, legal representatives, accountants, successors, and
assigns, from all claims, demands, and actions of any nature, known or
unknown, that he/she may have against Released Party, its successors,
parents, affiliates, or subsidiaries, and its officers, directors and/or
employees, including but not limited to claims that in any manner relate to,
arise out of or involve any aspect of his/her employment with the Released
Party, and the termination of that employment, including, but not limited to,
any rights or claims under the Worker Adjustment and Retraining Notification
Act ("WARN"), 29 U.S.C. Section 2101 et seq.; Colorado Anti-Discrimination
Act, Colo. Rev. Stat. Section 24 34 401, et seq.; Family and Medical Leave
Act, 29 U.S.C. Section 2601 et seq.; Age Discrimination in Employment Act,
29 U.S.C. Section 621 et seq.; Civil Rights Act of 1964, as amended, 42
U.S.C. Section 2000e, et seq.; Vocational Rehabilitation Act, 29 U.S.C.
Section 701, et seq.; Americans with Disabilities Act, 42 U.S.C. Section
12101, et seq.; Executive Order 11246; the Civil Rights Act of 1866, as
reenacted, 42 U.S.C. Section 1981; the National Labor Relations Act, as
amended, 29 U.S.C. Section 141, et seq.; and any and all other municipal,
state, and/or federal statutory, executive order, or constitutional
provisions pertaining to an employment relationship. This release and waiver
also specifically includes, but is not limited to, any claims in the nature
of tort or contract claims, including specifically but not limited to any
claim of wrongful discharge, breach of contract, promissory estoppel,
intentional or negligent infliction of emotional distress, interference with
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contract, libel, breach of covenant of good faith and fair dealing, or other
such claims, including but not limited to those arising out of or involving
any aspect of his/her employment with the Released Party. This release
includes any and all claims concerning attorney fees, costs, and any and all
other expenses related to the claims released herein. Provided, however,
that this release and waiver shall not apply to any rights which, by law, may
not be waived; to rights and claims which arise from acts or events occurring
after the effective date of this Agreement; or to claims for breach of this
Agreement. The Employee also specifically covenants (a) that he/she will not
bring suit or file any grievance or complaint of any nature in relation to
any claim or right waived herein; and (b) that he/she will immediately
withdraw or otherwise secure the immediate dismissal of any pending
complaint, grievance, or lawsuit by the Employee, which is presently pending
against the Released Party, without further proceedings, or findings adverse
to Released Party.
6. The Employee acknowledges that, during the course of his/her employment
with the Released Party, he/she has learned of information pertaining to the
personnel, business, financial, and/or technical aspects of such parties and
its affiliates or subsidiaries and has received materials containing such
information. Most of this information and materials is proprietary, and much
of the information and materials is confidential information concerning the
parties' business and employees. Therefore, the Employee agrees that he/she
will not communicate or disclose any information or materials regarding the
Released Party, its operations, business practices, operating processes, or
personnel practices, to any third party without first seeking and obtaining
written consent of the Released Party. Requests for such approval should be
made, in writing, to the attention of Xxxxxxx Xxxxxxxx, CEO, Ramtron
International Corporation, 0000 Xxxxxxx Xxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx
00000. Subject to the provisions of paragraph 4(b)(ii), Employee will return
any and all property of the Released Party to the Released Party immediately
upon execution of this Agreement.
7. The Employee agrees that he/she has not disclosed and shall forever
refrain from disclosing to any person or entity the terms and conditions of
this Agreement. The Employee may, however, disclose this Agreement to the
Employee's immediate family, legal counsel, and tax advisor, as necessary,
provided that they are instructed and agree, not to disclose the terms and
conditions to anyone. Each party agrees not to make disparaging or
derogatory remarks or untruthful statements about the other party, its
operations, officers, directors, shareholders, and personnel, to anyone;
provided, however, that the Employee recognizes Released Party is unable to
preemptively control all statements by its employees, and does not warrant
against any such statements. However, upon being notified of any statement
by an employee falling within the terms of this paragraph, Released Party
shall direct such employee to refrain from further comments of such nature.
8. Employee states and acknowledges that all earned but unpaid compensation
has been paid and that there are no amounts due and owing from the Released
Party except as expressly set forth in this Agreement.
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9. Each party acknowledges the adequacy and sufficiency of the consideration
for the promises set forth in this Agreement. Each party is estopped from
raising and hereby expressly waives any defense regarding the receipt and/or
legal sufficiency of the consideration provided by one to the other under
this Agreement.
10. The Released Party advises the Employee to consult with an attorney
before signing this Agreement.
11. The Employee hereby acknowledges his/her understanding that had he/she
wished to do so, he/she could have taken up to 21 days to consider this
Agreement, that he/she has read this Agreement and understands its terms and
significance, and that he/she executes such Agreement voluntarily and with
full knowledge of its effect, having carefully read and considered all terms
of the Agreement and, if he/she has chosen to consult with an attorney,
having had all terms and their significance fully explained to him or her by
his/her attorney.
12. The Employee hereby certifies his/her understanding that he/she may
revoke the Agreement, as it applies to him or her, within seven (7) days
following execution of the Agreement and that the Agreement, as it applies to
him or her, shall not become effective or enforceable until that revocation
period has expired. He or she also understands that, should he/she revoke
the Agreement within the seven day period, the Agreement, as it applies to
him or her, would be voided in its entirety, and he/she would not be entitled
to any consideration provided under the Agreement, including the Payment
described in paragraph 4. The Agreement shall be binding upon the parties,
their heirs, successors and assigns and embodies the entire Agreement of the
parties. There are no promises, terms, conditions, or obligations other than
those contained herein; and this contract shall supersede all previous
communications, representations or agreements, either verbal or written,
between the parties.
13. Employee understands and agrees that he/she would not receive the monies
and/or benefits specified in paragraph 4 above, except for his/her execution
of this Agreement and the fulfillment of the promises contained herein.
14. There may be no modification of this Agreement, except in writing,
executed with the same formalities as this Agreement.
15. The parties agree to indemnify one another for any costs, losses,
damages, or expenses, including attorney fees, which arise from the breach of
this Agreement.
16. This Agreement shall be interpreted and enforced in accordance with
Colorado law. Jurisdiction and venue for any dispute as to interpretation or
enforcement of the Agreement shall be brought in Xx Xxxx Xxxxxx Xxxxxxxx
Xxxxx, Xxxxxxxx or the United States District Court for the District of
Colorado.
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17. The parties acknowledge and state that they have knowingly and
voluntarily entered into this Agreement and that they believe the provisions
herein are mutually advantageous.
18. Any unenforceable provision of this Agreement will be modified to the
extent necessary to make it enforceable or, if that is not possible, will be
severed from this Agreement, and the remainder of this Agreement will be
enforced to the fullest extent possible.
Agreed to and accepted this 13th day of January, 2006, declared to be the
effective date of this Agreement.
/s/ Xxxxx Xxxxxxx /s/ Xxxx X. Xxxxx
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Xxxxx Xxxxxxx Xxxx X. Xxxxx
Witness Employee
Date: 1-13-2006
Ramtron International Corporation,
a Delaware corporation
/s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
By: Xxxxxxx X. Xxxxxxxx
Title: Chief Executive Officer
Date: 1-12-2006
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