SEPARATION AGREEMENT AND RELEASE
EXHIBIT 10.40
SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release (this “Agreement”) is made by and between Genesis
Microchip Inc. (including any company or organization that Genesis Microchip Inc. has acquired in
the past and any subsidiary or affiliate of Genesis Microchip Inc.) (the “Company”), and Xxxxxxx
Xxxxxx (“Executive”) (collectively referred to as the “Parties”):
(a) Cash Lump Sum Payment. The Company agrees to pay Executive a cash lump sum
payment of Ninety-Four Thousand Three Hundred Fifty Dollars (US$94,350), less applicable
withholdings, which amount is equal to twenty-six weeks of his base salary (the “Severance
Payment”). The Severance Payment shall be paid to Executive on the Termination Date.
(b) Bonus. The Company agrees to pay Executive a bonus in the amount of Sixty
Thousand Three Hundred Eighty-Four Dollars (US$60,384), less applicable withholdings, which
amount represents a bonus under the Company’s FY 2006 Executive Bonus Plan (the “Bonus”). The
Bonus shall be paid to Executive on the Termination Date.
(c) COBRA. The Company shall reimburse Executive for the payments he makes for COBRA
coverage for a period of twelve (12) months after the Termination Date, or until Executive has
secured other employment with comparable coverage, whichever occurs first, provided Executive
timely elects and pays for COBRA coverage. COBRA reimbursements shall be made by the Company to
Executive within fifteen (15) days of Executive’s provision to the Company of documentation
substantiating his payments for COBRA coverage.
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(a) any and all claims relating to or arising out of Executive’s employment relationship with
the Company and the termination of that relationship;
(b) any and all claims relating to, or arising from, Executive’s right to purchase, or actual
purchase of shares of stock of the Company, including, without limitation, any claims for fraud;
misrepresentation; breach of fiduciary duty; breach of duty under applicable state corporate law;
and securities fraud under any state or federal law;
(c) any and all claims under the law of any jurisdiction including, but not limited to,
wrongful discharge of employment; termination in violation of public policy; discrimination;
harassment; retaliation; breach of contract, both express and implied; breach of a covenant of good
faith and fair dealing, fraud and fraudulent inducement, both express and implied; promissory
estoppel; negligent or intentional infliction of emotional distress; negligent or intentional
misrepresentation; negligent or intentional interference with contract or prospective economic
advantage; unfair business practices; defamation; libel; slander; negligence; personal injury;
assault; battery; invasion of privacy; false imprisonment; conversion; workers’ compensation; and
disability benefits;
(d) any and all claims for violation of any federal, state or municipal statute, including,
but not limited to, Title VII of the Civil Rights Act of 1964; the Civil Rights Act of 1991; the
Americans with Disabilities Act of 1990; the Fair Labor Standards Act; the Fair Credit Reporting
Act; the Age Discrimination in Employment Act of 1967; the Employee Retirement Income Security Act
of 1974; the Worker Adjustment and Restraining Notification Act; the Family and Medical Leave Act;
the California Family Rights Act; the California Fair Employment and Housing Act, and the
California Labor Code, including, but not limited to Labor Code Sections 1400-1408;
(e) any and all claims for violation of the federal, or any state, constitution;
(f) any and all claims arising out of any other laws and regulations relating to
employment or employment discrimination;
(g) any and all claims for attorneys’ fees and costs; and
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(h) any claim for any loss, cost, damage, or expense arising out of any dispute over
the non-withholding or other tax treatment of any of the proceeds received by Executive as
a result of this Agreement.
Executive agrees that the release set forth in this section shall be and remain in effect in
all respects as a complete general release as to the matters released. This release does not
extend to any obligations incurred under this Agreement.
10. Civil Code Section 1542. Executive represents that he is not aware of any claim
other than the claims that are released by this Agreement. Executive acknowledges that he has been
advised by legal counsel and is familiar with the provisions of California Civil Code Section 1542,
which provides as follows:
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 BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR.
Executive, being aware of said code section, agrees to expressly waive any rights he may have
thereunder, as well as under any other statute or common law principles of similar effect.
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potential future employers of Executive will be directed to the Company’s Vice President of
Human Resources if there shall be one, and otherwise to its President.
13. Application for Employment. Executive understands and agrees that, as a condition
of this Agreement, he shall not be entitled to any employment with the Company, and he hereby
waives any right, or alleged right, of employment or re-employment with the Company. Executive
further agrees that he will not apply for employment with the Company. Company agrees not to
contest any application for California State Unemployment Benefits made by the Executive.
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the Company immediately to recover and/or cease the severance benefits provided to Executive
under this Agreement.
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28. Governing Law. This Agreement shall be governed by the laws of the State of
California, without regard for choice of law provisions.
(a) They have read this Agreement;
(b) They have been represented in the preparation, negotiation, and execution of this
Agreement by legal counsel of their own choice;
(c) They understand the terms and consequences of this Agreement and of the releases
it contains;
(d) They are fully aware of the legal and binding effect of this Agreement.
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Xxxxxxx Xxxxxx, an individual |
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Dated: 3/6/06 | /s/ Xxxxxxx Xxxxxx | |||
Xxxxxxx Xxxxxx | ||||
Genesis Microchip Inc. |
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Dated: 3/6/06 | By: | /s/ Xxxxx Xxxxxx | ||
Xxxxx Xxxxxx | ||||
President & Chief Executive Officer | ||||
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