SEPARATION AGREEMENT AND
GENERAL RELEASE OF CLAIMS
In consideration
of the terms, conditions, releases, and covenants contained in this
Separation Agreement and General Release of Claims
(“Agreement”), you, Nelson Chan (“you”),
and SanDisk Corporation (the “Company”) agree as
follows:
1.
Effective Date . This Agreement shall become effective on
the eighth day after you deliver to the Company a fully-executed
version of this Agreement without modification or revocation (the
“Effective Date”).
2.
Separation of Employment. You acknowledge that your
employment with the Company and any of its affiliates will end
effective December 8, 2006 (the “Separation
Date”). You further acknowledge that you will cease serving
as Executive Vice President of Consumer Products Business and
Corporate Marketing, and as an officer or employee of the Company
and any of its affiliates as of the Separation Date, and that you
are to perform no duties, functions or services for the Company
after the Separation Date.
3.
Payment of Moneys Owed. You acknowledge that the Company has
paid you for all wages or salary earned, and any accrued but unused
Paid Time Off (“PTO”), through your Separation Date.
You are entitled to this payment regardless of whether you sign
this Agreement. Group health benefits for which you currently are
eligible will continue through the end of the month in which the
Separation Date occurs, but your accrual of, and eligibility for,
PTO, holiday pay, and any other employee benefits and privileges
will cease on the Separation Date.
4.
Consideration. In exchange for your promises in this
Agreement, including your general release of claims, if you sign
and do not revoke this Agreement, the Company will provide you the
severance pay and severance benefits listed on
Schedule A , in connection with the separation of your
employment with the Company (the severance pay and benefits being
referred to collectively as the “Severance Payment”),
on such dates as identified in Schedule A.
5.
Acknowledgment of Consideration. You acknowledge that the
payment and benefits described in Paragraph 4, above,
represent amounts above and beyond those to which you would be
entitled if you did not enter into this Agreement.
6.
Proprietary Information and Inventions Agreement. You agree
that you will comply in all respects with the Proprietary
Information and Inventions Agreement (“PIIA”) that you
entered into with the Company. You further agree that if you breach
the PIIA, then (a) the Company shall be entitled to apply for
and receive an injunction to restrain such breach; (b) the
Company shall not be obligated to pay you the Severance Payment or
continue the availability of the Severance Payment benefits to you;
(c) you shall be obligated to pay the Company its costs and
expenses incurred in enforcing the PIIA (including court costs,
expenses, and reasonable attorneys’ fees); and (d) the
Company shall be entitled to seek any and all damages and other
remedies available to it at law or equity.
7.
Confidential Information/Company Property. You acknowledge
that all tangible information, including all files, records,
summaries, bills, invoices, copies, excerpts, data, memoranda,
letters, notes, written policies and procedures manuals and other
information or material pertaining to your work at the Company or
containing Confidential Information which came into your custody,
possession or knowledge or were compiled prepared, developed or
used by you at any time in the course
of or in
connection with your work at the Company, and all tangible property
put in your custody or possession by the Company in connection with
your work at the Company is solely the property of the Company, and
you agree that you will immediately return to the Company all such
tangible information in your possession or control. You also agree
to immediately return to the Company all other Company property and
equipment.
8.
Nondisparagement. You agree on behalf of yourself and your
representatives and agents, that neither you nor any of them will
make any disparaging or defamatory comments to any third party
concerning the Company, concerning its or their officers,
directors, partners, employees or agents, or concerning its or
their methods of doing business, clients, or employment
practices.
9. Full
and General Release. In consideration for the payments and
benefits provided for in Paragraph 4, and notwithstanding the
provisions of Section 1542 of the Civil Code of the State of
California, on behalf of yourself and your heirs, assigns,
successors, administrators and representatives, you unconditionally
release and forever discharge the Company, and its affiliates,
parents, subsidiaries, related companies, successors, predecessors,
and assigns, and all of its and their officers, directors,
partners, shareholders, employees, consultants, agents,
representatives, and attorneys, past and present, and each of them
(collectively referred to herein as “Releasees”), from
any and all claims, demands, actions, suits, causes of action,
obligations, damages and liabilities of whatever kind or nature,
based on any act, omission, event, occurrence, or nonoccurrence
from the beginning of time to the date of execution of this
Agreement, including, but not limited to, claims that arise out of
or in any way relate to your employment or separation from
employment with the Company. You acknowledge and agree that this
general release includes, but is not limited to, any claims for
salary, bonuses, compensation (except as specified in this
Agreement), wages, vesting, equity, penalties, premiums, severance
pay, vacation pay or any benefits under the Employee Retirement
Income Security Act of 1974, as amended. You acknowledge and agree
that this general release includes, but is not limited to, claims
of breach of implied or express employment contracts or covenants,
defamation, wrongful termination, public policy violations,
emotional distress and related matters, claims of discrimination or
harassment under federal, state or local laws, and claims based on
any federal, state or other governmental statute, regulation or
ordinance, including, but not limited to, Title VII of the Civil
Rights Act of 1964, as amended, the Civil Rights Act of 1991, the
Americans With Disabilities Act, the Family and Medical Leave Act,
the Sarbanes-Oxley Act, the California Fair Employment &
Housing Act, the California Labor Code, the California Family
Rights Act, the California Constitution, the California Industrial
Welfare Commission Wage Orders, and the California Government Code.
You expressly understand that among the various rights and claims
being waived by you in this Agreement are those arising under the
Age Discrimination in Employment Act of 1967 (“ADEA”),
as amended, and in that regard you specifically acknowledge that
you have read and understand the provisions of Paragraph 13
below before signing this Agreement. This release, however, does
not apply to any claims that cannot be released as a matter of
applicable law.
10.
Covenant Not to Sue. A “covenant not to sue” is
a legal term which means you promise not to file a lawsuit in
court. It is different from the General Release of claims contained
in Paragraph 9 above. Besides waiving and releasing the claims
covered by Paragraph 9 above, you represent and warrant that
you have not filed, and agree that you will not file, or cause to
be filed, any judicial complaint or lawsuit involving any claims
you have released in Paragraph 9, and you agree to withdraw
any judicial complaints or lawsuits you have filed, or that were
filed on your behalf, prior to the effective date of this
Agreement. Notwithstanding this Covenant Not To Sue, you may bring
a claim against the Company to enforce this Agreement or to
challenge the validity of this Agreement under the ADEA. You agree
and acknowledge that if you sue the Company or any other Releasee
in violation of this Agreement,
then you shall
pay all legal expenses, including reasonable attorneys’ fees,
incurred by any Releasee in defending against your suit.
Alternatively, if you sue the Company in violation of this
Agreement, you may, at the Company’s option, be required to
return all monies and other benefits paid to you pursuant to this
Agreement, except for $1,000.00. In that event, the Company shall
be excused from making any further payments or continuing any other
benefits otherwise owed to you under Paragraph 4 of this
Agreement.
11.
Release of Unknown Claims. For the purpose of implementing a
full and complete release, you expressly acknowledge and agree that
this Agreement resolves all legal claims you may have against the
Company and the Releasees as of the date of this Agreement,
including but not limited to claims that you did not know or
suspect to exist in your favor at the time of the effe
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