Exhibit 10.13(b)
PERSONAL LEAVE AGREEMENT AND
RELEASE
This Personal Leave Agreement and
Release (“Agreement”) is made by and between Dario
Sacomani (“Executive”) and Spansion Inc. (the
“Company”) (collectively referred to as the
“Parties” or individually referred to as a
“Party”).
RECITALS
WHEREAS, Executive was employed by
the Company as its Executive Vice President and Chief Financial
Officer, pursuant to employment terms set forth in an offer letter
signed by Executive on February 28, 2006 (the “Offer
Letter”);
WHEREAS, Executive signed a
confidentiality agreement with the Company on March 9, 2006
(the “Confidentiality Agreements”);
WHEREAS, Executive signed an
acknowledgement agreeing to abide by the Spansion Inc. Insider
Trading Policy (the “Insider Trading Policy
Acknowledgement”);
WHEREAS, on April 10, 2009 (the
“Resignation Date”), Executive tendered his resignation
from his position with the Company as Executive Vice President and
Chief Financial Officer;
WHEREAS, conditioned upon
Executive’s compliance with the terms of this Agreement, the
Parties agree that Executive may continue as a part-time
non-officer employee of the Company for a transition period of up
to nine (9) months (“Personal Leave Period”),
beginning effective the Resignation Date and continuing until
January 9, 2010, or the end of the Personal Leave Period,
whichever occurs earlier (the “Final Termination
Date”);
WHEREAS, Executive agreed to a
Change of Control Severance Agreement with the Company on
June 9, 2006, and further agreed to an amendment to such
agreement by signing an Amended and Restated Spansion Inc. Change
of Control Severance Agreement on October 24, 2007
(collectively, the “Change of Control Agreement”), the
conditions of which have not been triggered, will not be triggered
by the terms of this Agreement, and which is wholly superseded and
nullified by this Agreement; and
WHEREAS, the Parties wish to resolve
any and all disputes, claims, complaints, grievances, charges,
actions, petitions, and demands that the Executive may have against
the Company and any of the Releasees as defined below, including,
but not limited to, any and all claims arising out of or in any way
related to Executive’s employment with the Company, the
transitional employment, or the resignations provided for
herein.
NOW, THEREFORE, in consideration of
the mutual promises made herein, the Company and Executive hereby
agree as follows:
COVENANTS
1. Resignation . Executive
acknowledges that he resigned from his position as Executive Vice
President and Chief Financial Officer with the Company effective
the Resignation Date defined above. Effective immediately,
Executive hereby further resigns as an officer or director of any
of
the Company’s subsidiaries in which he
serves in such capacities. Effective the Final Termination Date,
Executive will be deemed to have fully and voluntarily resigned
from employment with the Company, and the Company shall have no
further obligations to Executive. Executive agrees, upon request
from the Company, to execute any forms or other documents necessary
to legally effect such resignations.
2. Personal Leave Period
.
a. Limited Duties During Personal
Leave Period . Executive agrees to provide reasonable
assistance to the Company during the Personal Leave Period (also
called “CFO Transition Period”). “Reasonable
assistance” shall mean providing the Company limited
employment services not to exceed 20 hours per month, unless
Executive agrees otherwise, and shall include but not be limited to
Executive (i) remaining responsible for special projects
assigned to him by the Company from time to time;
(ii) transitioning of Executive’s duties to other
Company employees; and (iii) making himself generally
available to the CEO or other senior management for questions,
communications, and other general information exchange. Executive
acknowledges and agrees that he shall have no authority to bind or
act as an agent of the Company during the CFO Transition Period,
except as expressly authorized in writing by the CEO, and agrees
not to hold himself out as having any greater authority.
b. Salary Continuation During
Personal Leave Period . The Company agrees to pay Executive his
base salary, less applicable withholding, as in effect on the
Resignation Date, through and including the Final Termination Date.
Pay during the Personal Leave Period shall be in accordance with
the Company’s regular payroll practices.
c. Benefits During Personal Leave
Period . Subject to the requirements of the Company’s
group benefits plans, the Company agrees to continue Executive
health insurance benefits during the CFO Transition Period. Should
Executive become ineligible for the Company’s group health
insurance benefits, the Company agrees to reimburse Executive for
the payments Executive makes for coverage under Title X of the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended
(“COBRA”) provided Executive timely elects and pays for
COBRA coverage, with COBRA reimbursements available through the end
of the CFO Transition Period or until Executive has secured other
employment, whichever occurs first. COBRA reimbursements shall be
made by the Company to Executive consistent with the
Company’s normal expense reimbursement policy, provided that
Executive submits documentation to the Company substantiating his
payments for COBRA coverage. Executive’s participation in all
other benefits and incidents of employment, including, but not
limited to the accrual of vacation and paid time off, shall be
suspended during the CFO Transition Period.
d. No Equity Vesting During CFO
Transition Period . The Parties expressly agree that Executive
will be considered to have vested in his stock options, restricted
stock units and any other equity awards only to, but not including,
the Resignation Date. All vesting will be suspended during the CFO
Transition Period, and the required exercise or forfeiture of any
equity awards shall be tolled until the Final Termination Date.
Executive agrees to cooperate in the execution of any documents or
agreements necessary to effectuate the foregoing. Except as
provided herein, each of Executive’s equity awards shall
continue to be governed by the terms and conditions of the
applicable Company equity plan under which the award was granted
and applicable equity award agreement (each an “Equity Award
Document,” and together, the “Equity Award
Documents”).
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e. Voluntary Early
Resignation. Nothing in this Agreement shall operate or be
construed to preclude Executive from seeking or obtaining new
employment, subject to such new employment remaining consistent
with Executive’s contractual and other legal obligations to
the Company. Executive agrees to immediately notify the Company in
writing of his acceptance of new employment. The last date of the
month Executive accepts new employment shall constitute the Final
Termination Date, unless the Final Termination Date otherwise
occurs earlier. Executive remains free at any time within the
Personal Leave Period to end his services to the Company upon
written notice, with the date such notice is received by the
Company constituting the Final Termination Date.
3. Relocation Expense
Reimbursement . To facilitate Executive joining his family in
Chicago, Illinois, the Company agrees to reimburse Executive, up to
a maximum reimbursement of Seven Thousand Five Hundred Dollars
($7,500.00), for any expenses related to his relocation to Chicago,
Illinois (the “Relocation Expense Reimbursements”). The
Relocation Expense Reimbursements shall be made to Executive by the
Company consistent with the Company’s normal expense
reimbursement policy, provided that Executive submits documentation
to the Company substantiating his payments for relocation-related
expenses. Executive acknowledges and agrees that all other
housing-related benefits, including temporary living arrangements,
end effective April 30, 2009, and that he is not otherwise
entitled to any housing-related benefits.
4. Payment of Salary and Receipt
of All Benefits . Executive acknowledges and represents that
the Company has paid or provided all salary, wages, bonuses,
accrued vacation/paid time off, housing allowances, relocation
costs, interest, severance, outplacement costs, fees, commissions,
stock, stock options, vesting, and any and all other benefits and
compensation due to Executive thru the Effective Date (as defined
below). Executive represents that he has submitted all expense
reports and once all outstanding expense reports as of
April 10, 2009 are paid there is no further reimbursable
expenses due from the Company. Executive further acknowledges and
represents that he has either not request, or he has received, any
leave to which he was entitled, if any, under the California Family
Rights Act, the Family Medical Leave Act, the Americans with
Disabilities Act, and/or the Fair Employment and Housing Act, and
that he did not sustain any workplace injury during his employment
with the Company.
5. Release of Claims .
Executive agrees that terms provided for under this Agreement
represent settlement in full of any and all outstanding obligations
owed to Executive by the Company and its current and former
officers, directors, Executives, agents, investors, attorneys,
shareholders, administrators, affiliates, benefit plans, plan
administrators, insurers, divisions, and subsidiaries, and
predecessor and successor corporations and assigns (collectively,
the “Releasees”). Executive, on his own behalf and on
behalf of his respective heirs, family members, executors, agents,
and assigns, hereby and forever releases the Releasees from, and
agrees not to sue concerning, or in any manner to institute,
prosecute, or pursue, any claim, complaint, charge, duty,
obligation, or cause of action relating to any matters of any kind,
whether presently known or unknown, suspected or unsuspected, that
Executive may possess against any of the Releasees arising from any
omissions, acts, facts, or damages that have occurred up until and
including the Effective Date of this Agreement, including, without
limitation:
a. any and all claims relating to or
arising from Executive’s employment relationship with the
Company, resignation thereof, and changes to that relationship
reflected herein;
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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 for wrongful
discharge of employment; termination in violation of public policy;
discrimination; harassment; retaliation; breach of contract, both
express and implied; any obligations under the Change of Control
Agreement; any obligations under the Offer Letter; breach of
covenant of good faith and fair dealing, both express and implied;
promissory estoppel; negligent or intentional infliction of
emotional distress; fraud; 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; 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;
