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EXHIBIT 10.9
AGREEMENT AND RELEASE
This Agreement and Release (the "Agreement") is entered into
this 29th day of June, 2006, by and between Infinera Corporation, a
Delaware corporation with its principal place of business at 1322
Bordeaux Drive, Sunnyvale, CA 94089 (the "Company"), and
Mr. William Zerella, an individual ("Employee" and together
with the Company, the "Parties").
RECITALS:
WHEREAS, the Company and Employee have mutually agreed to
terminate and have terminated Employee’s employment
relationship with the Company, effective July 1, 2006 (the
"Termination Date"); and
WHEREAS, the Parties have agreed to amend and supercede any
existing employment agreement between the Employee and the Company
with this Agreement
NOW, THEREFORE, for good and valuable consideration, the Parties
agree as follows:
1. Separation from Employment/Benefits . The
Parties acknowledge and agree that Employee’s relationship as
an employee of the Company terminated on the Termination Date. The
Company agrees to continue to pay for your health insurance
benefits under COBRA so as to provide coverage until the earlier
of: (i) the date of your full time employment by another
entity; or (ii) December 31, 2006. Thereafter, you may
elect to and remain eligible under COBRA. Except as specifically
provided herein, your participation in all other benefits and
incidents of employment, including but not limited to paid time
off, was terminated as of June 30, 2006.
2. Separation Payment . The Company agrees to make
pay Employee on the Termination Date the total gross amount of One
Hundred and Twenty Five Thousand Dollars ($125,000).
3. Vesting of Stock Options . On the Termination
Date, the Parties agree that the Company shall accelerate the
vesting for 112,500 of Employee’s 339,912 unvested and
outstanding incentive stock options to purchase Company Common
Stock (the "Options"). The Parties further agree that Employee will
have until December 31, 2006 to exercise such Options;
provided, however, that in no event will the period through which
the Employee is able to exercise the Options extend beyond a date
that would cause the Options to become subject to Section 409A
of the Internal Revenue Code of 1986, as amended (the "Code"), as
the result of any such extension of the post-termination exercise
period. The Parties agree that the Employee’s non-qualified
stock options shall cease to vest as of the Termination Date and
must be exercised in accordance with terms of the option agreement
governing such options.
4. Confidentiality Agreement .
Employee agrees to comply with the terms of the Confidential
Information and Invention Assignment Agreement dated May, 2005 (the
"Confidentiality Agreement"), to the extent not inconsistent with
this Agreement.
5. Release . In consideration of the
Company’s agreement to provide the consideration provided in
this Agreement, and the other obligations set forth in this
Agreement, Employee hereby fully and forever releases and
discharges the Company and its officers, directors, shareholders,
investors, administrators, employees, agents, successors,
predecessors, subsidiaries and assigns ("Released Parties") from
any and all claims, liabilities, demands or causes of action,
including but not limited to those arising out of or relating in
any way to his employment with the Company, including the
termination of his employment.
Employee understands and agrees that this Release is a full and
complete waiver of any and all claims, including but not limited to
those claims relating to or arising from his employment
relationship with the Released Parties and the termination of that
relationship, whether such claims may be known or unknown by him,
including but not limited to any claims with respect to his
purchase of, or rights to purchase, shares of the capital stock of
the Company or the tax characterization of the purchase of shares
of capital stock of the Company, any claims of wrongful discharge,
breach of contract, breach of the covenant of good faith and fair
dealing, violation of public policy, defamation, personal injury,
emotional distress, claims under Title VII of the Civil Rights
Act of 1964, as amended, the Age Discrimination in Employment Act
of 1967, the Americans with Disabilities Act, the Equal Pay Act of
1963, the Fair Labor Standards Act, the California Fair Employment
and Housing Act, and any other state and federal laws and
regulations relating to employment or employment discrimination.
Employee agrees that this payment is in full satisfaction and
settlement of any such claims, liabilities, demands or causes of
action, and Employee agrees that he will not file any
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