SEPARATION AND RELEASE AGREEMENT
BETWEEN BOOKHAM, INC., AVANEX CORPORATION AND
GIOVANNI BARBAROSSA
This Separation
and Release Agreement (this “Agreement”) is entered
into as of this
day of
, 2009, by and between Bookham Incorporated, a Delaware corporation
(“Parent”), Avanex Corporation, a Delaware corporation
(the “Company) and Giovanni Barbarossa
(“Executive”).
Parent, Company
and Executive hereby agree as follows:
1. The
employment relationship between the Executive and the Company and
its subsidiaries and affiliates, as applicable, terminated on
, 200___(the “Termination Date”).
2. In
settlement of amounts owed under Section 4(a) of the Change in
Control Agreement between the Company and the Executive dated as of
November 28, 2008 (the “Change in Control
Agreement”), the Executive shall receive:
(a) a
lump sum cash payment equal to the sum of (i) one year of
Executive’s annual base salary as of the Termination Date
(which shall not be less than $360,000) and (ii) a pro-rata
portion of Executive’s target annual incentive award (equal
to at least 60% of his annual base salary) determined by
multiplying such target annual incentive award by a fraction, the
numerator of which is the number of days in the current fiscal year
of the Company through the Termination Date, and the denominator of
which is 365; and
(b) the
health coverage and benefits described in Section 4(a)(iv) of
the Change in Control Agreement; and
The cash
payments described in this Section 2 shall be made no later
than ten (10) days after the expiration of the revocation
period described in Section 8 of this Agreement.
3. In
consideration of the payments and benefits provided hereunder, the
sufficiency of which the Executive hereby acknowledges, the
Executive, on behalf of the Executive and the Executive’s
heirs, executors and assigns, hereby releases and forever
discharges the Company and its members, parents, affiliates,
subsidiaries, divisions, any and all current and former directors,
officers, employees and agents, from all claims, charges, or
demands, in law or in equity, whether known or unknown, which may
have existed or which may now exist from the beginning of time to
the date of this Agreement, including, without limitation, any
claims the Executive may have arising from or relating to the
Executive’s employment or termination from employment with
the Company, including a release of any rights or claims the
Executive may have under Title VII of the Civil Rights Act of 1964,
as amended, and the Civil Rights Act of 1991 (which prohibit
discrimination in employment based upon race, color, sex, religion,
and national origin); the Americans with Disabilities Act of 1990,
as amended, and the Rehabilitation Act of 1973 (which prohibit
discrimination based upon disability); the Family and Medical Leave
Act of 1993 (which prohibits discrimination based on requesting or
taking a family or medical leave); Section 1981 of the Civil
Rights Act of 1866 (which prohibits discrimination based upon
race); Section 1985(3) of the Civil Rights Act of 1871 (which
prohibits conspiracies to discriminate); the Employee Retirement
Income Security Act of 1974, as amended (which prohibits
discrimination with regard to benefits); and any other federal,
state or local laws against discrimination; or any other federal,
state, or local statute, or common law relating to employment,
wages, hours, or any other terms and conditions of employment. This
includes a release by the Executive of any claims for wrongful
discharge, breach of contract, torts or any other claims in any way
related to the Executive’s employment with or resignation or
termination from the Company and its subsidiaries and affiliates,
as applicable.
This
release also includes a release of any claims for age
discrimination under the Age Discrimination in Employment Act, as
amended (“ADEA”). The ADEA requires that the Executive
be advised to consult with an attorney before the Executive waives
any claim under ADEA. In addition, the ADEA provides the Executive
with at least 21 days to decide whether to waive claims under
ADEA and seven days after the Executive signs the Agreement to
revoke that waiver.
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