Exhibit 10.4
SEPARATION AGREEMENT AND
RELEASE
This Separation Agreement and
Release (“Agreement”) is made by and between Timothy A.
Partridge (“Executive”) and Dolby Laboratories, Inc., a
Delaware corporation, and its direct and indirect subsidiaries
(together, the “Company”) (collectively referred to as
the “Parties” or individually referred to as a
“Party”).
RECITALS
WHEREAS, Executive was employed by
the Company;
WHEREAS, Executive signed an
Employee Proprietary Rights and Non-Disclosure Agreement and
Conflict of Interest Policy with the Company on July 6, 1999
(the “Confidentiality Agreement”);
WHEREAS, Executive signed a Policy
Regarding Reporting of Financial and Accounting Concerns, an
Acknowledgement of Receipt of Code of Business Conduct and Ethics,
and an Employee Handbook (the “Business
Policies”);
WHEREAS, the Company and Executive
have entered into stock option and restricted stock unit agreements
on file with the Company, pursuant to the Company’s 2000
and/or 2005 Stock Plans (collectively the “Stock
Agreements”);
WHEREAS, Executive’s
employment with the Company will terminate effective May 1,
2009 (the “Separation Date”);
WHEREAS, Executive will continue to
perform on-site services for the Company through and including
March 6, 2009 (the “Transition Date”), except as
otherwise requested by the Company, after which Executive will
provide certain off-site transitional services through and
including the Separation Date (the “Transitional
Services”); 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 or separation from the
Company;
NOW, THEREFORE, in consideration of
the mutual promises made herein, the Company and Executive hereby
agree as follows:
COVENANTS
1. Consideration .
a. Payment . The Company
agrees to pay Employee a lump sum equivalent to eighteen
(18) months of Employee’s base salary, for a total of
Four Hundred Ninety Five Thousand Dollars ($495,000.00), less
applicable withholding. This payment will be made to Employee
within ten (10) business days after the Effective Date of this
Agreement.
b. Outplacement Services .
The Company agrees, following the Effective Date of this Agreement,
to pay up to an aggregate total of Twenty Five Thousand Dollars
($25,000.00) to (i) Right Management Inc. and/or
(ii) Executive Edge (together, the “Outplacement
Providers”) in
relation to Executive’s personal use of
the Outplacement Providers’ transition, coaching, and/or
outplacement services (the “Outplacement Services”).
Payment for Outplacement Services shall be made by the Company
directly to the Outplacement Providers.
Executive acknowledges and agrees
that the consideration provided to him hereunder fully satisfies
any obligation that the Company had to pay Executive wages or any
other compensation for any of the services that Executive rendered
to the Company, that the amount paid is in excess of any disputed
wage claim, if any, that Executive may have. To the extent any wage
dispute exists, Executive specifically acknowledges that the
consideration paid shall be deemed to be paid first in satisfaction
of any disputed wage claim with the remainder sufficient to act as
consideration for the release of claims set forth herein, and that
Executive has not earned and is not entitled to receive any
additional wages or other form of compensation from the
Company.
2. Resignation . Executive
will resign from his employment at the Company effective
May 1, 2009. Executive agrees to execute any necessary forms
or other documents required to effect such resignation as a matter
of state or federal law.
3. Transitional Services .
The Parties agree that Executive shall remain employed by the
Company (but shall no longer be an officer of the Company) between
the Transition Date and the Separation Date for the limited purpose
of transitioning Executive’s duties, subject to Executive
remaining materially compliant with the terms of this Agreement,
the Confidentiality Agreement, and the Business Policies (the
“Transitional Period”). During the Transitional Period,
the Company will continue to pay Executive his base salary, and
Executive will remain eligible for such standard Company-sponsored
benefits as made generally available to employees of the Company.
Executive agrees during the Transitional Period to provide
assistance with respect to the Company’s transition to new
management as reasonably requested by the Company. Executive is not
required or expected to provide on-site services during the
Transitional Period, except as reasonably requested by the Company
in advance, but Executive agrees to remain generally accessible to
the Company by phone, personal email, or other standard
communication means, and to cooperate with the Company to the
extent reasonably requested. During the Transitional Period,
Executive acknowledges and agrees that he is not authorized to act
as an agent of the Company in any way outside the scope of
Transitional Services requested by the Company.
4. Supplemental Release .
Executive agrees, following the end of the Transitional Services,
to sign the Supplemental Release attached hereto as Exhibit A (the
“Supplemental Release”). Executive agrees he will not
sign the Supplemental Release until on or after the Separation
Date, and acknowledges and agrees that any payments or benefits
provided for under the Supplemental Release are expressly
conditioned upon his signing and not revoking the Supplemental
Release.
5. Stock . The Parties agree
that for purposes of determining vesting under the Stock
Agreements, Executive will be considered to have vested only up to
the Separation Date. Executive should consult with the grant
documents on file with the Company regarding the number of vested
stock options and restricted stock units. The terms and conditions,
including specifically the forfeiture of unvested awards and the
period of post-termination exercise for the stock options, shall
continue to be governed by the terms and conditions of the Stock
Agreements.
6. Benefits .
Executive’s health insurance benefits shall cease on the
Separation Date, subject to Executive’s right to continue his
health insurance under COBRA. Executive’s participation in
all benefits and incidents of employment, including, but not
limited to, vesting in stock options, and the accrual of bonuses,
vacation, and paid time off, shall cease as of the Separation
Date.
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7. Payment of Salary and Receipt
of All Benefits . Executive acknowledges and represents that,
other than the consideration set forth in this Agreement, the
Company has paid or provided all salary, wages, bonuses, accrued
vacation/paid time off, leave, housing allowances, relocation
costs, interest, severance, outplacement costs, fees, reimbursable
expenses, commissions, stock, stock options, vesting, and any and
all other benefits and compensation due to Executive. Executive
further acknowledges and represents that he has received any leave
to which he was entitled or which he requested, if any, under the
California Family Rights Act and/or the Family Medical Leave Act,
and that he did not sustain any workplace injury, during his
employment with the Company.
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, 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 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 for wrongful
discharge of employment; termination in violation of public policy;
discrimination; harassment; retaliation; breach of contract, both
express and implied; 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; Sections
1981 through 1988 of Title 42 of the United States Code, as
amended; the Civil Rights Act of 1991; the Rehabilitation Act of
1973; the Americans with Disabilities Act of 1990; the Equal Pay
Act; the Fair Labor Standards Act, except as prohibited by law; the
Fair Credit Reporting Act; the Immigration Reform and Control Act,
as amended; the Occupational Safety and Health Act, as amended; the
California Occupational Safety and Health Act, as amended; the Age
Discrimination in Employment Act of 1967; the Older Workers Benefit
Protection Act; the Employee Retirement Income Security Act
of
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1974; the Worker Adjustment and Retraining
Notification Act; the Family and Medical Leave Act, except as
prohibited by law; the Sarbanes-Oxley Act of 2002; the Uniformed
Services Employment and Reemployment Rights Act; the California
Family Rights Act; the California Labor Code, except as prohibited
by law; the California Workers’ Compensation Act, except as
prohibited by law; and the California Fair Employment and Housing
Act;
e. any and all claims for violation
of the federal or any state constitution;
f. any and all claims arising out of
any other laws and regulations relating to employment or employment
discrimination;
g. any claim for any loss, cost,
damage, or expense arising out of any dispute over the
non-withholding or other tax treatment of any of the proceeds
received by Executive as a result of this Agreement; and
h. any and all claims for
attorneys’ fees and costs.
Executive agrees that the release
set forth in this section 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 under this
Agreement. This release does not release claims that cannot be
released as a matter of law, including, but not limited to:
(1) Executive’s right to file a charge with or
participate in a charge by the Equal Employment Opportunity
Commission, or any other local, state, or federal administrative
body or government agency that is authorized to enforce or
administer laws related to employment, against the Company (with
the understanding that any such filing or participation does not
give Executive the right to recover any monetary damages against
the Company; Executive’s release of claims herein bars
Executive from recovering such monetary relief from the Company);
(2) claims under Division 3, Article 2 of the California Labor
Code (which includes California Labor Code section 2802 regarding
indemnity for necessary expenditures or losses by Executive); and
(3) claims prohibited from release as set forth in California
Labor Code section 206.5 (specifically “any claim or right on
account of wages due, or to become due, or made as an advance on
wages to be earned, unless payment of such wages has been
made”).
9. Acknowledgment of Waiver of
Claims under ADEA . Executive understands and acknowledges that
he is waiving and releasing any rights he may have under the Age
Discrimination in Employment Act of 1967 (“ADEA”), and
that this waiver and release is knowing and voluntary. Executive
understands and agrees that this waiver and release does not apply
to any rights or claims that may arise under the ADEA after the
Effective Date of this Agreement. Executive understands and
acknowledges that the consideration given for this waiver and
release is in addition to anything of value to which Executive was
already entitled. Executive further understands and acknowledges
that he has been advised by this writing that: (a) he should
consult with an attorney prior to executing this Agreement;
(b) he has twenty-one (21) days within which to consider
this Agreement; (c) he has seven (7) days following his
execution of this Agreement to revoke this Agreement and agrees
that any such revocation must be in a writing by email or federal
express received by Andrew Dahlkemper by midnight on the seventh
day following Executive’s execution of this Supplemental
Release; (d) this Agreement shall not be effective until after
the revocation period has expired; and (e) nothing in this
Agreement prevents or precludes Executive from challenging or
seeking a determination in good faith of the validity of this
waiver under the ADEA, nor does it impose any condition precedent,
penalties, or costs for doing so, unless specifically authorized by
federal law. In the event Executive signs this Agreement and
returns it to the Company in less than the 21-day period identified
above, Executive hereby acknowledges that he has freely and
voluntarily chosen to waive the time period allotted for
considering this Agreement.
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10. California Civil Code
Section 1542 . Executive acknowledges that he has been
advised to consult with legal counsel and is familiar with the
provisions of California Civil Code Section 1542, a statute
that otherwise prohibits the release of unknown claims, which
provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO
CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS
OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN
BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT
WITH THE DEBTOR.
Executive, being aware of said code
section, agrees to expressly waive any rights he may have
thereunder, as well as under any other statute or common law
principles of similar effect.
11. No Pending or Future
Lawsuits . Executive represents that he has no lawsuits,
claims, or actions pending in his name, or on behalf of any other
person or entity, against the Company or any of the other
Releasees. Executive also represents that he does not intend to
bring any claims on his own behalf or on behalf of any other person
or entity against the Company or any of the other
Releasees.
12. 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
