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 Kenneth Murray
(“Executive”) (collectively referred to as the
“Parties”):
WHEREAS,
Executive is employed by the Company as the Vice President of Human
Resources;
WHEREAS,
the Company and Executive have entered into the Confidentiality and
Property Rights Agreements dated August 29, 2000 (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 July 1, 2006 (the
“Termination Date”);
WHEREAS,
as of the Termination Date, Executive has been granted options to
purchase an aggregate amount of 233,500 shares of the
Company’s common stock pursuant to the Company’s 1997
Employee Stock Option Plan, the 2000 Nonstatutory Stock Plan, the
2001 Nonstatutory Stock Option Plan (collectively, the
“Company Stock Plans”), and the related stock option
agreements (collectively, the “Stock Option
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:
1.
Resignation . Executive hereby resigns from his position as
the Company’s Vice President of Human Resources 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.
(a)
Cash Lump Sum Payment . The Company agrees to pay Executive
a cash lump sum payment of Ninety-Four Thousand Three Hundred Fifty
Dollars (US$94,350), less applicable withholdings, which amount is
equal to twenty-six weeks of his base salary (the “Severance
Payment”). The Severance Payment shall be paid to Executive
on the Termination Date.
(b)
Bonus . The Company agrees to pay Executive a bonus in the
amount of Sixty Thousand Three Hundred Eighty-Four Dollars
(US$60,384), less applicable withholdings, which
amount
represents a bonus under the Company’s FY 2006 Executive
Bonus Plan (the “Bonus”). The Bonus shall be paid to
Executive on the Termination Date.
(c)
COBRA . The Company shall reimburse Executive for the
payments he makes for COBRA coverage for a period of twelve
(12) months after the Termination Date, or until Executive has
secured other employment with comparable coverage, whichever occurs
first, provided Executive timely elects and pays for COBRA
coverage. COBRA reimbursements shall be made by the Company to
Executive within fifteen (15) days of Executive’s
provision to the Company of documentation substantiating his
payments for COBRA coverage.
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, 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 8,969
options and no more. The exercise of any stock options shall
continue to be subject to the terms and conditions of the Stock
Option 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 December 31,
2006.
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.
-2-
7.
Trading in Company Stock . Executive acknowledges his
continued obligation to abide by the Company’s Insider
Trading Policy.
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 Disc
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