Exhibit 10.02
SEPARATION
AGREEMENT
SEPARATION AGREEMENT (“
Agreement ”) dated as of March 24, 2005, by and
between Ultra Clean Holdings, Inc., a Delaware corporation
(together with its successors, the “ Company ”),
and Phillip Kagel (“ Executive ”).
WHEREAS, the Company and
Executive entered into an Employment Agreement dated as of October
21, 2004 (the “ Employment Agreement ”), a
Confidentiality and Non-Disclosure Agreement (the “
Confidentiality Agreement ”) and an Indemnification
Agreement (the “ Indemnification Agreement
”);
WHEREAS, Executive and the
Company have agreed to terminate Executive’s employment with
the Company as of the Separation Date (as defined
below);
NOW THEREFORE, in
consideration of the foregoing and of the mutual covenants and
agreements of the parties set forth in this Agreement, and of other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be
legally bound, agree as follows:
1. Separation
. Effective as of
March 24, 2005 (the “ Separation Date ”),
Executive has resigned from his position as Senior Vice President
and Chief Financial Officer of the Company, and from all other
positions which Executive held with the Company, its subsidiaries
or its affiliates, and the Company accepted such resignation as of
the Separation Date.
2. Separation
Benefits . (a) Subject to this
Agreement becoming effective and Executive’s compliance with
the provisions of this Agreement and of the Confidentiality
Agreement, and in consideration for the release set forth in
Section 3 hereof, Executive shall receive the following:
(i) The Company shall pay to
Executive an amount equal to $131,250 (representing seven months of
Executive’s current base salary), less applicable tax
withholding, which shall be payable at the Company’s option
either in periodic installments over seven months following the
Separation Date in accordance with the Company’s payroll
practices or in a lump sum.
(ii) The Company shall pay for
Executive’s continued coverage under the Company’s
health plans under COBRA at the same cost to Executive as before
the Separation Date until the earlier of (x) seven months following
the Separation Date or (y) the date Executive becomes eligible for
group health coverage with another employer.
(b) Executive understands and
agrees with the following:
(i) The Company has paid
Executive all accrued compensation, including accrued vacation,
through the Separation Date.
(ii) All of Executive’s
options to purchase stock of the Company ceased vesting on the
Separation Date in accordance with their terms.
3. Release
. (a) Executive
acknowledges that the following release shall extend to unknown, as
well as known claims, and hereby waives the application of any
provision of law, including, without limitation, Section 1542 of
the California Civil Code, that purports to limit the scope of a
general release. Section 1542 of the California Civil Code
provides:
“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.”
(b) Executive agrees to and does
fully and completely release, discharge and waive for himself and
for his dependents, successors, assigns, heirs, executors and
administrators (and his and their legal representatives of any
kind), any and all claims, complaints, causes of action or demands
of whatever kind, arising in Executive’s capacity as an
employee or officer of the Company, or otherwise in any capacity
whatsoever, which Executive has or may have against the Company,
its subsidiaries, divisions, subsidiaries, affiliates, predecessors
and successors and all their officers, directors, employees,
agents, counsel and other representatives by reason of any event,
matter, cause or thing which has occurred prior to the Effective
Date (hereinafter “ Executive Claims ”).
Executive understands and accepts that this Agreement specifically
covers, but is not limited to, any and all Executive Claims that
Executive has or may have against the Company relating in any way
to his employment arrangements, or to compensation, or to his
equity interests in the Company, or to any other terms, conditions
or circumstances of his former employment with the Company, and to
the resignation of such employment, whether for severance or based
on statutory or common law claims for employment discrimination
(including discrimination on the basis of sex, age, religion or
disability, including specifically any claims under the Age
Discrimination in Employment Act (the “ ADEA ”),
Title VII of the Civil Rights Act of 1964, as amended or the
Americans with Disabilities Act of 1990), wrongful discharge,
breach of contract or any other theory, whether legal or equitable.
Notwithstanding the foregoing, Executive does not waive any rights
to which he may be entitled (A) to seek to enforce this Agreement,
or (B) to seek indemnification with respect to liability incurred
by Executive in his capacity as an officer or former employee of
the Company in accordance with the bylaws of the Company and the
Indemnification Agreement.
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(c) Executive further understands
and acknowledges that:
(i) The release provided for in
this Section, including claims under the ADEA, is in exchange for
the additional consideration provided for in this Agreement to
which Executive was not heretofore entitled;
(ii) Executive has been advised by
the Company to consult with legal counsel prior to executing this
Agreement and the release provided for in this Section, has had an
opportunity to consult with and to be advised by legal counsel of
his choice, fully understands the terms of this Agreement, and
enters into this Agreement freely, voluntarily and intending to be
bound;
(iii) Executive has been given a
period of 21 days to review and consider the terms of this
Agreement and the release contained herein, and Executive may use
as much of the 21-day period as Executive desi
