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Date Executive First Received
this Agreement: April 24, 2008
Separation and
General Release Agreement
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This Separation and General Release Agreement (the
“ Agreement
”) is made as of this 9th day of May, 2008
by and among Fuel Systems Solutions, Inc. (referred to throughout
this Agreement as the “ Company ”) and Thomas
M. Costales (“ Executive ,” and
together with the Company, the “ Parties ”).
WHEREAS, Executive has been employed by the Company as an
“at will” employee under terms set forth in that
certain “Employment Offer Letter” dated May 12, 2005
(the “ Executive Employment
Letter ”); and
WHEREAS, Executive’s employment with the Company has
ended by agreement of the Parties (the “
Separation ”) effective as of May 9, 2008 (the “
Separation Date ”); and
WHEREAS, the Parties’ rights and obligations with
respect to Executive’s equity interests in the Company are
set forth in the Fuel Systems Solutions, Inc. Restricted Stock
Agreement referenced in Exhibit
A (the “ Equity Plans ”);
and
WHEREAS, the Parties’ rights and obligations with
respect to certain amounts contributed under the Company’s
401(k) Plan are referenced on Exhibit A (the “
401(k) Plan ”); and
WHEREAS, the Parties’ rights and obligations with
respect to certain amounts of deferred compensation of the
Executive are set forth in the Nonqualified Deferred Compensation
Plan Basic Plan Document and Adoption Agreement referenced
in Exhibit A (the “ Deferred Compensation
Plan ” and together with the
401(k) Plan and the Equity Plans, the “ Plans ”);
and
WHEREAS, the Parties desire to enter into this Agreement in
order to set forth the definitive rights and obligations of the
Parties in connection with the Separation.
NOW, THEREFORE, in consideration of the mutual covenants,
commitments and agreements contained herein, and for other good and
valuable consideration the receipt and sufficiency of which is
hereby acknowledged, the Parties intending to be legally bound
hereby agree as follows:
1. Acknowledgment of
Separation . The Parties
acknowledge and agree that the Separation is effective as of May 9,
2008.
2. Resignation of
Office . Effective as of the
Separation Date, Executive voluntarily resigns his position as
Chief Financial Officer of the Company, and from any and all other
offices or board positions which he holds at the Company or any of
its subsidiaries.
3. Executive’s
Acknowledgment of Consideration .
Executive specifically acknowledges and agrees that certain of the
obligations created and payments made to him by
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12727842.9
the Company under this Agreement
are promises and payments to which he is not otherwise entitled
under any law or contract.
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Payments Upon and After
the Separation . |
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(a) Final Pay . Within 72 hours
following the Separation Date as |
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required by law, Executive shall
receive a lump sum payment of all then-outstanding final wages and
accrued unused vacation, minus applicable federal, state and local
tax withholdings, for services performed for the Company through
and including the Separation Date.
(b) Severance
Benefits . Upon the effectuation of
this Agreement as required by Section
15 hereof, Executive (his heirs or
assigns) shall become entitled to receive the severance benefits
described below in Sections
4(b)(i) through 4(b)(iv) (the “
Severance Benefits ”). The
payment or provision of such benefits by the Company shall not
represent any admission or concession by the Company that such
benefits are owed to Executive under any agreement or obligation
that might be asserted by or on behalf of Executive:
(i) Severance Pay.
Upon the effectuation of this Agreement as
required by Section 15
hereof, the Company shall pay severance to the
Executive in the lump sum total $335,000 , subject to all
applicable tax and other withholdings.
(ii) COBRA and COBRA Premium
Payments . Effective as of the
Separation Date, as required by the continuation coverage
provisions of Section 4980B of the U. S. Internal Revenue Code of
1986, as amended (the “ Code ”), Executive
shall be offered the opportunity to elect continuation coverage
under the group medical plan(s) of the Company
(“ COBRA coverage ”). The
Company shall provide Executive with the appropriate COBRA coverage
notice and election form for this purpose. If he elects COBRA
coverage, the Company shall pay 100% of Executive’s (and his
permitted dependents’) health insurance premiums under COBRA
plus any administrative fee, for up to six months following the
Separation Date; provided,
however , that Executive shall notify
the Company within two weeks of any change in his circumstances
that would warrant discontinuation of his COBRA coverage and
benefits (including but not limited to Executive’s receipt of
group medical benefits from any other employer). The existence and
duration of Executive’s rights and/or the COBRA rights of any
of Executive’s eligible dependents shall be determined in
accordance with Section 4980B of the Code.
(iii) Acceleration of
Benefits . Executive shall be
entitled to the acceleration of his benefits under the Equity
Plans, in each case as set forth on Exhibit A .
(iv) Legal Fees
. The Company shall reimburse Executive for
legal fees actually incurred and documented in connection with the
negotiation of this Agreement, up to a maximum of
$10,000 .
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Confidential Information;
Non-Solicitation . |
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(a) Confidential Information .
Executive acknowledges that the |
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information, observations and
data obtained by him concerning the business and affairs of the
Company during the course of his employment with the Company, or
that may be obtained in
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12727842.9
connection with his assistance
and cooperation with the Company as set forth in
Section 11 of
this Agreement, is the property of the Company. For purposes of
this Agreement, “ Confidential Information ” is
defined to mean any and all information, in any form or medium,
written or oral, concerning or relating to the Company and any of
its direct or indirect subsidiaries or joint ventures (whether
prepared by the Company or otherwise, and irrespective of the form
or means of communication and whether it is labeled or otherwise
identified as confidential), including without limitation all oral
and written information relating to financial statements,
projections, evaluations, plans, programs, customers, suppliers,
facilities, equipment and other assets, products, processes,
manufacturing, marketing, research and development, market data,
trade secrets, know-how, patent applications that have not been
published, technology and other confidential information and
intellectual property of the Company or any direct or indirect
subsidiaries or joint ventures. Executive agrees that he will not,
directly, willfully or negligently disclose to any unauthorized
person or use for his own account any Confidential Information
without the Company’s written consent, unless, and to the
extent, that (i) the aforementioned matters become generally known
to and available for use by the public other than as a result of
the Executive’s acts or omissions to act, or (ii) he is
required to do so by order of a court of competent jurisdiction (by
subpoena or similar process), in which event Executive shall
reasonably cooperate with the Company in connection with any action
by the Company to limit or suppress such disclosure. Executive
represents, warrants and covenants that at no time prior to or
contemporaneous with his execution of this Agreement has he,
directly, willfully or negligently disclosed Confidential
Information to any unauthorized person or used such Confidential
Information for his own purposes or benefit. Executive acknowledges
his understanding of his Employee Invention and Confidential
Information Agreement executed January 16, 2006 and of the
Company's No Harassment/Discrimination Policy confirmed January 16,
2006.
(b) Non-Solicitation . Executive
acknowledges that the employees of the Company and its subsidiaries
are a key component to the success of the Company and that the
preservation of the employee base of the Company and its
subsidiaries is critical to, among other things, the prospects of
the Company. Consequently, Executive has agreed to the following
non-solicitation and non-hire provisions. Executive agrees that,
for a period of two years from the date hereof, he shall not (A)
solicit any individual who is an employee of the Company or any of
its subsidiaries (as of the date hereof or at any time hereafter)
to leave his or her employment with the Company or any of its
subsidiaries or (B) hire or otherwise engage any individual who is
an employee of the Company or any of its subsidiaries (as of the
date hereof or at any time hereafter).
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General Release and
Waiver . |
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(a) General Mutual Release .
Executive, for and on behalf of himself |
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and each of his heirs,
executors, administrators, personal representatives, successors and
assigns, to the maximum extent permitted by law, hereby
acknowledges full and complete satisfaction of and fully and
forever releases, acquits and discharges the Company, together with
its subsidiaries and affiliates, and each of their respective past
and present direct and indirect stockholders, directors, members,
partners, officers, employees, attorneys, agents and
representatives, and their heirs, executors, administrators,
personal representatives, successors and assigns (collectively, the
“ Releasees
”), from any and all claims, demands,
suits, causes of action, liabilities,
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12727842.9
obligations, judgments, orders,
debts, liens, contracts, agreements, covenants and causes of action
of every kind and nature, whether known or unknown, suspected or
unsuspected, concealed or hidden, vested or contingent, in law or
equity, existing by statute, common law, contract or otherwise,
which have existed, may exist or do exist, that relate in any way
to his employment with the Company, through and including the
execution and delivery by Executive of this Agreement (but not
including the Company’s performance under this Agreement),
including, without limitation, any of the foregoing arising out of
or in any way related to or based upon:
(i) Executive’s application for and employment with
the Company, his being an officer or employee of the Company, or
the Separation;
(ii) any and all claims in tort or contract, and any and
all claims alleging breach of an express or implied, or oral or
written, contract, policy manual or employee handbook;
(iii) any alleged misrepresentation, defamation,
interference with contract, intentional or negligent infliction of
emotional distress, sexual harassment, negligence or wrongful
discharge; or
(iv) any federal, state or local statute, ordinance or
regulation, including but not limited to the Age Discrimination in
Employment Act of 1987, as amended.
(v) Limitation on
Waiver . Notwithstanding the
foregoing, the Company acknowledges and agrees that Executive is
not waiving his right to file for unemployment (which the Company
will not contest), seek indemnification from the Company pursuant
to Section 8 hereunder, or file any claim based on events or
circumstances occurring after his execution of this
Agreement.
(vi) Mutuality
. The Company, for and on behalf of itself and
each of its Releasees, to the maximum extent permitted by law,
hereby fully and forever releases, acquits and discharges Executive
from any and all claims, demands, suits, causes of action,
liabilities, obligations, judgments, orders, debts, liens,
contracts, agreements, covenants and causes of action of every kind
and nature, whether known or unknown, suspected or unsuspected,
concealed or hidden, vested or contingent, in law or equity,
existing by statute, common law, contract or otherwise, which have
existed, may exist or do exist, that relate in any way to his
employment with the Company, through and including the execution
and delivery by Executive of this Agreement (but not including
Executive’s performance under this Agreement), including,
without limitation, any of the foregoing arising out of or in any
way related to or based upon: (A) the Separation; (B) any and all
claims in tort or contract, and any and all claims alleging breach
of an express or implied, or oral or written, contract; (C) any
alleged misrepresentation, defamation or interference with
contract; or, (D) any federal, state or local statute, ordinance or
regulation.
(b) Acknowledgment of Waiver;
Disclaimer of Benefits . Executive
acknowledges and agrees that he is waiving all rights to sue or
obtain equitable, remedial or punitive relief from any or all
Releasees of any kind whatsoever, including, without
limitation,
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12727842.9
reinstatement, back pay, front
pay, attorneys’ fees and any form of injunctive
relief.
Notwithstanding the foregoing,
Executive further acknowledges that he is not waiving and is not
being required to waive any right that cannot be waived by law,
including the right to file a charge or participate in an
administrative investigation or proceeding; provided, however , that
Executive disclaims and waives any right to share or participate in
any monetary award resulting from the prosecution of any such
charge or investigation.
(c) Effect of Release and
Waiver . Each of the Parties
understands and intends that this Section 6 constitutes a
general release of all claims except as otherwise provided
in Section 6(a) and (b)
above, and that no reference therein to a
specific form of claim, statute or type of relief is intended to
limit the scope of such general release and waiver.
(d) Waiver of Unknown
Claims . Each Party expressly waives
all rights afforded by any statute which limits the effect of a
release with respect to unknown claims. Each Party understands the
significance of his or its release of unknown claims and his or its
waiver of statutory protection against a release of unknown claims
and accordingly, each Party expressly waives any and all rights and
benefits under Section 1542 of the California Civil Code, which
states:
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.
7.
Executive’s Representations and
Covenants Regarding Actions .
Executive represents, warrants
and covenants to each of the Releasees that at no time prior to or
contemporaneous with his execution of this Agreement has he
knowingly engaged in any wrongful conduct against, on behalf of or
as the representative or agent of the Company. Executive further
represents, warrants and covenants to each of the Releasees that at
no time prior to or contemporaneous with his execution of this
Agreement has he filed or caused or knowingly permitted the filing
or maintenance, in any state, federal or foreign court, or before
any local, state, federal or foreign administrative agency or other
tribunal, any charge, claim or action of any kind, nature and
character whatsoever (“ Claim ”), known or
unknown, suspected or unsuspected, which he may now have or has
ever had against the Releasees which is based in whole or in part
on any matter referred to in Section
6(a) above; and, subject to the
Company’s performance under this Agreement, to the maximum
extent permitted by law Executive is prohibited from filing or
maintaining, or causing or knowingly permitting the filing or
maintaining, of any such Claim in any such forum. Executive hereby
grants the Company
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