EXHIBIT 10.3
SEPARATION AGREEMENT AND RELEASE
OF ALL CLAIMS
This Separation Agreement and
Release of All Claims (“Agreement”) is made and entered
into by and between Robert H. Bucher (hereinafter
“Employee”) and Adept Technology, Inc. (hereinafter
“Adept” or “the Company”). The separation
program contemplated by this Agreement supersedes any and all prior
severance agreements and programs, all of which are terminated and
of no force and effect (to the extent they existed), except as
specified herein. Furthermore, nothing with respect to this
separation program shall restrict the rights of Adept to implement
a future reduction in force under any terms or separation program
that it deems appropriate.
WITNESSETH
WHEREAS, Employee has been employed
at Adept and the Company has decided to implement a reduction in
force; and
WHEREAS, Employee does not have
pending against Adept or any employee, agent, officer, director,
representative, supervisor, former supervisor, or owner of Adept,
or of any related entity or any employee, agent, officer, director,
representative, supervisor, former supervisor, or owner, of any
related entity (hereinafter referred to as Releasees) any claim,
charge, or action in or with any federal, state, or local court or
administrative agency; and
WHEREAS, Employee and the Company
desire to settle fully and finally all matters between them,
including, but in no way limited to, issues related to
Employee’s employment and separation of employment with the
Company;
NOW, THEREFORE, in consideration of
the mutual covenants and promises herein contained and other good
and valuable consideration, receipt of which is hereby
acknowledged, it is hereby agreed by and between the parties as
follows:
1. Employment Termination
Date .
Employee’s employment with
Adept shall terminate on November 7, 2008 .
1.
2. Separation Payment and Equity
Treatment .
a. Employee will receive wages due
Employee as of Employee’s date of termination, less
withholdings and any other authorized deductions. Employee will
receive a check for this amount on Employee’s date of
termination.
b. Employee will receive any unused
and prorated vacation pay earned and accrued as of Employee’s
date of termination (which shall reflect the reduced term of
service which commenced pursuant to the September 2, 2008
Employment Letter Agreement with the Company) less withholdings and
any other authorized deductions. Employee will receive a check for
this amount on Employee’s date of termination.
c. Upon condition that Employee
signs this Agreement and returns the original signed Agreement to
the Company, and so long as Employee has not exercised the right of
revocation as described in paragraph 8(g) below, materially
breached this Agreement or otherwise engaged, directly or
indirectly, in any investment or activity in furtherance of an
endeavor competitive to Adept, the Company will provide Employee
separation pay, to be paid in 15 bi-weekly payments starting with
December 12, 2008 through June 26, 2009, equal to
$5,666.67 gross per bi-weekly payment less appropriate withholdings
and any other authorized deductions.
d. So long as Employee has not
exercised the right of revocation as described in paragraph 8(g)
below, or obtained alternative employment or paid consulting
engagement as provided in f. below, or materially breached this
Agreement, Adept will continue medical, dental, vision service
plan, and United Behavioral Health (Employee Assistance Program)
insurance at the Company’s expense through Consolidated
Omnibus Budget Reconciliation Act of 1985 “COBRA” from
the date of termination until June 30, 2009. The Employee may
continue at his own expense starting July 1, 2009 through the
end of the COBRA continuation period.
e. The Company will also provide to
Employee reimbursement for the actual incurred cost of a one way
airline coach ticket for Employee to move to his former country of
residence purchased by Employee by December 7, 2008. To claim
reimbursement, Employee will furnish to Sue Carlson Lim, Human
Resources Director, with a copy of the paid and confirmed airline
reservation by December 7, 2008 with a certification that such
flight is for the purposes of Employee’s move back to
Canada.
2.
f. Employee’s right to the
benefits under sub paragraph (d) above shall cease immediately
upon the first day of employment or engagement as a consultant with
any person or entity. Employee shall provide written notification
to Sue Carlson Lim, Adept Human Resources Director, of any such
employment or engagement as promptly as practicable but no later
than three business days thereafter. Failure of Employee to provide
this notice timely shall constitute a material breach of this
Agreement.
g. Provided that Employee signs and
delivers to the Company this Agreement (and thereafter does not
revoke) and subject to the conditions of this subparagraph (g),
(i) the vesting of Employee’s shares of restricted stock
granted in September 2008 pursuant to the 2005 Equity Incentive
Plan shall be accelerated and the restrictions to which such shares
are subject to shall lapse on and as of January 1, 2009,
(ii) Employee’s stock options shall continue to vest
according to the existing vesting schedule of such options (without
regard to termination of employment) until June 30, 2009, and
(iii) Employee’s stock options shall be exercisable by
Employee until the earlier of (A) the ten-year expiration date
of such options and (B) June 30, 2010 (without regard to
termination of employment). Any other shares of restricted stock
and stock options that are not vested and exercisable on the date
of termination or as provided under this Agreement shall be
forfeited and/or terminated per the applicable terms thereof.
Employee hereby acknowledges and agrees that (x) the extension
pursuant to this subparagraph (g) of the exercise period of
incentive stock options held by him will cause such incentive stock
options to cease to be qualified as such, and such options will
thereafter be treated as non-qualified stock options for all
purposes, including tax purposes, and (y) Employee shall have
the sole responsibility for additional payments, tax or otherwise,
owed by him as a result of such options ceasing to qualify as
incentive stock options and all such payment relating to the
acceleration of vesting of the shares of restricted stock described
above. Notwithstanding the foregoing, in the event Employee revokes
this Agreement, or materially breaches any of his obligations under
this Agreement, or has otherwise engaged,
3.
directly or indirectly, in any
investment or activity in furtherance of an endeavor competitive to
Adept, on or prior to June 30, 2009, then, in addition to all
other remedies at law available to the Company, the vesting and the
exercise period for Employee’s stock options shall
automatically end, and all such stock options shall terminate, one
day after the Employee’s breach of this Agreement as
determined by the Company. The provisions of this Paragraph 2(g)
hereby amend the applicable restricted stock and option grant
agreements between the Company and Employee to give effect to the
provisions of this Agreement.
h. Employee acknowledges and agrees
that Adept has made no representations regarding the tax
consequences of any amounts received by Employee pursuant to this
Agreement, has recommended that Employee seek the independent
advice of Employee’s tax advisor and legal counsel, and
Employee agrees to indemnify the Company for any amounts that may
be deemed subject to withholding tax which were not withheld from
these amounts.
3. Total Monetary Compensation
and Consideration .
a. Employee agrees that the
separation pay described in paragraph 2.c. above shall
constitute the entire amount of monetary consideration provided to
Employee under this Agreement, that Employee is not entitled to
this consideration if Employee does not sign this Agreement and
that Employee will not seek any further compensation for any other
claimed damages, costs or attorneys’ fees in connection with
Employee’s employment with the Company, termination from
employment with the Company or any other matter encompassed by this
Agreement. Employee acknowledges and agrees that, as of the date
Employee executes this Agreement, Employee has been fully paid all
amounts, if any, due Employee under federal and state law and Adept
policies and procedures.
b. Employee will not be eligible for
any cash or equity consideration payable to directors for service
as a member of the Board of Directors for the term ending with the
2009 Annual Meeting of Stockholders. Reimbursement of expenses
shall be solely as provided pursuant to the compensation policy of
the Board of Directors for reimbursement of reasonable expenses
incurred in connection with attendance at in-person meetings of the
Board of Directors.
4.
4. No Admissions .
This Agreement and compliance with
this Agreement shall not be construed as an admission by the
Company or by any Releasees of any liability whatsoever, or as an
admission by Adept or by any Releasees of any violation of the
rights of Employee or any person, violation of any order, law,
statute, duty or contract whatsoever with respect to Employee or
any person. Adept and Releasees specifically disclaim any liability
to Employee or any other person for any alleged violation of rights
of Employee or any person, or for any alleged violation of any
order, law, statute, duty or contract on the part of Adept and/or
of any Releasees.
5. No Claims .
Employee represents that neither
Employee nor anyone acting through or by Employee nor any spouse,
significant other, heir, offspring, representative, agent,
executor, assign, or successor (hereinafter referred to as
Releasors) has filed any complaints, claims, or actions against
Adept or against any Releasee with any state, federal, or local
agency or court arising out of and/or pertaining to
Employee’s employment and/or the cessation thereof and
Employee agrees that Employee will not do so at any time hereafter,
and that if any agency or court assumes jurisdiction of any
complaint, claim or action against Adept or against any Releasee,
Employee will direct that agency or court to withdraw from or
dismiss with prejudice the matter.
6. Confidentiality
.
Employee agrees that Employee and
all Releasors (including, but not limited to, family members or a
significant other) will keep the fact, terms, and amount of this
Agreement completely confidential and that neither Employee nor any
Releasor will hereafter disclose any information concerning this
Agreement to anyone, provided that any party hereto may make such
disclosures as are required by law and as are necessary for
legitimate law enforcement or compliance purposes, including
requirements pursuant to applicable laws and stock exchange listing
agreements. The parties further agree that this Agreement may be
pleaded as a full and complete defense to any subsequent action or
other proceeding arising out of, or relating to, or having anything
to do with any and all of the claims, counterclaims, contingents,
issues, defenses, or other matters capable of being alleged by
Employee, Releasors, or any employee or former employee of
Adept.
5.
7. Release of Claims
.
Employee hereby waives all rights
under Section 1542 of the Civil Code of the State of
California. Section 1542 provides as follows:
A general release does not extend
to claims which the creditor does not know or suspect to exist in
his favor at the time of executing the release, which if known by
him must have materially affected his settlement with the
debtor.
Notwithstanding the provisions of
Section 1542 of the Civil Code of the State of California,
Employee hereby irrevocably and unconditionally releases and
forever discharges the Company, and each and all Releasees and
their related entities and each and all of their owners, officers,
directors, employees, agents and representatives and their
predecessors, successors and assigns and all persons acting by,
through, under or in concert with any of them from any and all
charges, complaints, rights, claims, damages and lia
