Exhibit 10.1
SEPARATION AGREEMENT AND
RELEASE
This Separation Agreement and
Release (this “Agreement”) is made by and between
Genesis Microchip Inc. (including any company or organization that
Genesis Microchip Inc. has acquired in the past and any subsidiary
or affiliate of Genesis Microchip Inc.) (the
“Company”), and Raphael Mehrbians
(“Executive”) (collectively referred to as the
“Parties”):
WHEREAS, Executive is employed by
the Company as the Senior Vice President of Product
Marketing;
WHEREAS, the Company and Executive
have entered into the Confidentiality and Property Rights
Agreements dated February 8 th , 2002 (the “Confidentiality
Agreement”);
WHEREAS, the Parties have mutually
determined that a termination of the employment relationship would
be in the best interest of the Company, and therefore Executive
will resign from his employment with the Company effective
October 31, 2006 (the “Termination
Date”);
WHEREAS, as of the Termination Date,
Executive has been granted options to purchase an aggregate amount
of 227,167 shares of the Company’s common stock pursuant to
the Company’s 1997 Employee Stock Option Plan and the 2000
Nonstatutory Stock Plan (collectively, the “Company Stock
Plans”) and 2,716 restricted stock units (“RSUs”)
pursuant to the Company’s 1997 Employee Stock Option Plan,
and the related stock award agreements (collectively, the
“Stock Award Agreements”);
WHEREAS, the Parties, and each of
them, wish to resolve any and all disputes, claims, complaints,
grievances, charges, actions, petitions and demands that the
Executive may have against the Company as defined herein,
including, but not limited to, any and all claims arising or in any
way related to Executive’s employment with, or separation
from, the Company;
NOW THEREFORE, in consideration of
the premises and the agreements made herein, the Parties hereby
agree as follows:
COVENANTS
1. Resignation . Executive
hereby resigns from his position as the Company’s Senior Vice
President of Product Marketing and any or all other employment
positions that may have at any time been held by Executive with the
Company or any of its affiliates, effective the Termination
Date.
2. Consideration .
(a) Cash Lump Sum Payment .
The Company agrees to pay Executive a cash lump sum payment of
One Hundred Sixty Four Thousand Seven Hundred Thirty Six Dollars
(US$164,736) , less applicable withholdings, which amount is
equal to 34 weeks of his base salary (the “Severance
Payment”). The Severance Payment shall be paid to Executive
on the Termination Date.
(b) COBRA . The Company shall
pay Executive a cash lump sum payment of Eight Thousand Six Hundred
Sixty Seven Dollars and Dollars (US$8,667) less applicable
withholdings, which is equal to COBRA coverage for a period of
eight (8) months.
3. Stock Options . The
Parties agree that for purposes of determining the number of shares
of the Company’s common stock that Employee is entitled to
purchase from the Company pursuant to the exercise of outstanding
options, and for purposes of determining the number of releasable
RSUs, the Employee will be considered to have vested only up to the
Termination Date. Employee acknowledges that as of the Termination
Date, he will have vested in 52,851 options and 322 RSUs, and no
more. The exercise of any stock awards shall continue to be subject
to the terms and conditions of the Stock Award Agreement(s) and the
applicable Company Stock Plan(s). Executive’s period to
exercise his stock options, to the extent vested, shall be extended
to the latest date permissible under the “safe harbor”
from Section 409A of the Internal Revenue Code, which is
currently February 15, 2007 for options issued under the
Company’s 1997 Employee Stock Option Plan, and
December 31, 2007 for options issued under the Company’s
2000 Nonstatutory Stock Plan.
4. Benefits .
Executive’s health insurance benefits with the Company will
cease on the Termination Date, subject to the benefits described in
paragraph 2(c), and subject to Executive’s right to continue
his health insurance coverage under COBRA after expiration of the
benefits described in paragraph 2(c). All other benefits and
incidents of employment, including, but not limited to paid time
off, ceased on the Termination Date. The Executive shall receive
payment for his accrued and unused Paid Time Off
(“PTO”) balance on the Termination Date.
5. Trade Secrets and Confidential
Information/Company Property . Executive reaffirms and agrees
to observe and abide by the terms of the Confidentiality Agreement,
specifically including the provisions therein regarding
nondisclosure of the Company’s trade secrets and confidential
and proprietary information, and non-solicitation of Company
employees. Executive’s signature below constitutes his
certification under penalty of perjury that he has returned all
documents and other items provided to Executive by the Company,
developed or obtained by Executive as a result of his employment,
or otherwise belonging to the Company, except as otherwise provided
herein. The Company agrees to provide the Executive at no cost his
current Dell Notebook Computer after the Company has reviewed and
removed all Company information from the computer.
6. Payment of Compensation .
Executive acknowledges and represents that the Company has paid all
salary, wages, bonuses, accrued vacation, housing allowances, tax
services, relocation expenses, medical costs, immigration expenses,
vehicle allowance, general expenses, legal fee reimbursement,
interest, severance, outplacement costs, fees, stock, stock
options, vesting, commissions and any and all other benefits and
compensation due to Executive, once the Severance Payment, Bonus,
PTO and COBRA benefits set forth herein are provided. Executive has
ten (10) business days from the Termination Date to file any
remaining expense reports and the Company shall have ten
(10) business days from the date of receipt of such expense
reports to make any appropriate reimbursements to Executive,
pursuant to the Company’s regular policies and practices
related to expense reimbursement.
7. Trading in Company Stock .
Executive acknowledges his continued obligation to abide by the
Company’s Insider Trading Policy.
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8. Release of Claims .
Executive agrees that the foregoing consideration represents
settlement in full of all outstanding obligations owed to Executive
by the Company and its current and former officers, directors,
employees, agents, investors, attorneys, advisors, shareholders,
administrators, affiliates, divisions, subsidiaries, predecessor
and successor corporations and assigns (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 or facts that have
occurred up until and including the date Executive signs this
Agreement including, without limitation:
(a) any and all claims relating to
or arising out of Executive’s employment relationship with
the Company and the termination of that relationship;
(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 under the law
of any jurisdiction including, but not limited to, wrongful
discharge of employment; termination in violation of public policy;
discrimination; harassment; retaliation; breach of contract, both
express and implied; breach of a covenant of good faith and fair
dealing, fraud and fraudulent inducement, both express and implied;
promissory estoppel; negligent or intentional infliction of
emotional distress; 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; workers’
compensation; 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; the
Civil Rights Act of 1991; the Americans with Disabilities Act of
1990; the Fair Labor Standards Act; the Fair Credit Reporting Act;
the Age Discrimination in Employment Act of 1967; the Employee
Retirement Income Security Act of 1974; the Worker Adjustment and
Restraining Notification Act; the Family and Medical
