Exhibit 10.1
SEPARATION AGREEMENT AND GENERAL
RELEASE OF ALL CLAIMS
This Separation Agreement and
Release (“Agreement”) is entered into between Kelyn
Brannon (“Employee”) and Calix, Inc., a Delaware
corporation (collectively with its past and present officers,
directors, shareholders, affiliates, successors, assigns, agents,
employees and representatives, the “Company”) ,
effective eight days after Employee’s signature (the
“Effective Date”), unless Employee revokes
Employee’s acceptance as provided in Paragraph 5(h), below.
In consideration of the covenants set forth below and other good
and valuable consideration the parties agree as follows:
1. Separation of
Employment .
(a) Separation Date .
Employee and the Company acknowledge and agree that
Employee’s status as an officer and employee of the Company
terminated effective March 4, 2011 (“Separation
Date”). Employee resigns all positions with the Company and
its subsidiaries as of the Separation Date.
(b) Payment of Final Wages
. Employee acknowledges and agrees that as of the Separation
Date, the Company has paid Employee (1) all salary, bonuses,
commissions and variable compensation owed to the Employee through
the Separation Date (subject to applicable tax withholding),
(2) all accrued but unused vacation and floating days of
Employee at Employee’s final rate of pay (subject to
applicable tax withholding), and (3) all unreimbursed business
expenses incurred and submitted by Employee prior to the Separation
Date. The Company will reimburse any remaining expenses upon timely
submission by Employee according to Company policy.
(c) SEC Reporting .
Employee further acknowledges that to the extent required by the
Securities Exchange Act of 1934, as amended, Employee will have
continuing obligations under Section 16(a) and 16(b) of such
act to report her transactions in Company common stock for six
months following the termination of Employee’s status as an
officer of the Company (it being agreed Employee shall be solely
responsible for such forms). Employee shall be released from the
Company’s Insider Trading Compliance Program effective on the
Separation Date, in reliance on Employee’s representation
that she does not presently possess material non-public information
regarding the Company.
2. Severance Benefits
. In consideration for the release of claims set forth below and
other obligations under this Agreement, and provided this
Agreement is signed by Employee and not revoked under paragraph
5(h) below, the Company agrees to provide the following severance
benefits to Employee. Employee acknowledges and agrees that the
severance benefits set forth in this Section 2 include all
severance benefits payable to Employee under the Calix,
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Inc. Executive Change in Control and Severance
Plan, effective July 20, 2010 (“Plan”), and no
additional benefits will be payable under the Plan, any other
agreement with or plan or arrangement of the Company or otherwise,
except as set forth in this Section 2.
(a) The Company will pay Employee a
lump sum cash payment in the amount of: $285,000, which is equal to
the sum of 12 months of Employee’s base salary as in effect
as of the Separation Date; plus $141,200, which is equal to the sum
of Employee’s 2010 target bonus opportunity; plus $142,500,
which is equal to the sum of Employee’s 2011 target bonus
opportunity.
(b) As of the Effective Date, each
outstanding equity award that Employee holds as of the Separation
Date will vest and, if applicable, become exercisable to the same
extent such equity award would have vested had Employee continued
to remain employed by the Company for 12 months after the
Separation Date. Each vested option to purchase Company common
stock held by Employee will remain exercisable in accordance with
the agreement evidencing such option; and
(c) Subject to the requirements of
the Internal Revenue Code of 1986, as amended, the Company will
pay, or, at its election, reimburse Employee for, premiums for
health insurance coverage to the same extent it paid health
insurance premiums on Employee’s behalf as of immediately
prior the Separation Date, if Employee elects to continue health
insurance pursuant to the Consolidated Omnibus Budget
Reconciliation Act (“ COBRA ”) (this health
coverage is generally referred to as “ Company-Paid
Premiums ”). Company-Paid Premiums will continue for 12
months; provided, however, that the Company-Paid Premiums will
terminate earlier if Employee cancels the underlying coverage or
such coverage otherwise ends sooner because Employee become
eligible for and elect health coverage with another employer. If
Employee’s Company-Paid Premiums included dependents
immediately prior to the Separation Date, the Company will continue
to pay for the premiums of such dependents after the Separation
Date to the same extent, and for the same duration, as are paid by
the Company for Employee unless Employee elects
otherwise.
(d) The severance payments set forth
in Section 2(a) shall be paid on the Company’s first
regular payroll date after the Effective Date.
(e) Employee understands and agrees
that all payments under this Agreement will be subject to
appropriate tax withholding as and to the extent required by law.
To the extent any taxes may be payable by Employee for the benefits
provided to Employee by this Agreement beyond those withheld by the
Company, Employee agrees to pay those amounts and to indemnify and
hold the Company and the other released entities harmless for any
tax claims or penalties, and associated attorneys’ fees and
costs, resulting from any failure by Employee to make required
payments.
3. Release of Claims .
In consideration for the obligations of the Company set forth in
this Agreement, Employee, on behalf of Employee and
Employee’s heirs, executors, administrators and assigns,
fully and forever releases the Company and its current and former
officers, directors, employees, investors, stockholders,
administrators, attorneys, predecessor and successor corporations
and assigns (“Releasees”), of and from any claim, duty,
obligation or
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cause of action relating to any matters of any
kind, whether presently known or unknown, suspected or unsuspected,
that Employee may possess arising from any omissions, acts or facts
that have occurred up until and including the date of this
Agreement including, without limitation:
(a) any and all claims relating to
or arising from Employee’s employment relationship with the
Company and the termination of that relationship, including but not
limited to any claims for wages, salary, bonus, compensation,
deferred compensation, or other cash payments;
(b) any and all claims relating to,
or arising from, Employee’s right to purchase, or actual
purchase of shares of the capital stock of the Company;
(c) any and all claims for wrongful
discharge of employment; breach of contract, both express and
implied; breach of a covenant of good faith and fair dealing, both
express and implied; negligent or intentional infliction of
emotional distress; negligent or intentional misrepresentation;
negligent or intentional interference with contract or prospective
economic advantage; negligence; defamation; personal injury, or any
claims arising out of any other agreement, incident or relationship
between the parties prior to the execution of this Agreement;
and
(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 Equal Pay Act, the False Claims Act,
the Worker Adjustment and Retraining Notification Act, the Fair
Labor Standards Act, the Sarbanes-Oxley Act of 2002, the Age
Discrimination in Employment Act of 1967, the Americans with
Disabilities Act of 1990, the California Fair Employment and
Housing Act, the California Labor Code, the Rehabilitation Act of
1973, California Family Rights Act, California Business &
Professions Code Section 17200, Executive Order 11126, Title
42 of the United States Code, the Employee Retirement Income
Security Act of 1974, and any family and medical leave
acts.
(e) Employee does not release the
following claims:
(i) claims for unemployment
compensation or any state disability insurance benefits pursuant to
the terms of applicable state law;
(ii) claims for workers’
compensation insurance benefits under the terms of any
worker’s compensation insurance policy or fund of the
Company;
(iii) claims to continued
participation in certain of the Company’s group benefit plans
pursuant to the terms and conditions of COBRA;
(iv) claims to any benefit
entitlements vested as the date of Employee’s employment
termination, pursuant to written terms of any Company employee
benefit plan;
(v) claims for indemnification under
California Labor Code Section 2802, the Company’s
Certificate of Incorporation, the Company’s Bylaws, Delaware
General Corporation Law or other applicable law, and under the
terms of any policy of insurance purchased by the Company;
and
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(vi) Employee’s right to bring
to the attention of the Equal Employment Opportunity Commission
claims of discrimination; provided, however, that Employee does
release Employee’s right to secure any damages for alleged
discriminatory treatment.
(f) Employee agrees that the release
set forth in this Section 3 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
or specified under this Agreement.
4. Civil Code
Section 1542 . Employee represents that Employee is
not aware of any claim by Employee other than the claims that are
released by this Agreement. Employee acknowledges that Employee 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 CREDITO
