Exhibit 10.6(b)
SEPARATION AGREEMENT AND
RELEASE
This Separation Agreement and
Release (“Agreement”) is made by and between
Dr. Bertrand Cambou (“Executive”) and Spansion,
Inc. (the “Company”) (collectively referred to as the
“Parties” or individually referred to as a
“Party”).
RECITALS
WHEREAS, Executive was employed by
the Company as its Chief Executive Officer, pursuant to employment
terms set forth in an offer letter signed by Executive on
April 8, 2005 (the “Offer Letter”);
WHEREAS, Executive signed an
agreement dated January 7, 2002 with Advanced Micro Devices,
Inc. and a Spansion LLC Agreement with the Company on April 8,
2005 (collectively, the “Confidentiality
Agreements”);
WHEREAS, Executive signed an
acknowledgement agreeing to abide by the Spansion Inc. Insider
Trading Policy (the “Insider Trading Policy
Acknowledgement”);
WHEREAS, Executive agreed to a
Change of Control Severance Agreement with the Company on
March 6, 2006, and further agreed to an amendment to such
agreement by signing an Amended and Restated Spansion Inc. Change
of Control Severance Agreement on November 1, 2007
(collectively, the “Change of Control Agreement”), the
conditions of which have not been triggered and under which the
Company owes no further duties or obligations to Executive, and
which is wholly superseded and voided by this Agreement;
WHEREAS, Executive separated from
employment with the Company effective February 2, 2009 at 5:00
p.m. PST (the “Separation Date”);
WHEREAS, Executive will provide
certain transition services to the Company as a consultant (the
“Transition 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. Resignation . Executive
resigned his employment with the Company and further voluntarily
resigned from Company’s Board of Directors, effective as of
February 2, 2009 at 5:00 p.m. PST. In connection with said
resignation from employment and resignation form the Board of
Directors, Executive also agreed to execute any necessary forms or
other documents required to effect such resignation as a matter of
state or federal law.
2. Consideration . The
Company agrees to pay Executive a lump sum equivalent to one
(1) year of Executive’s base salary, for a total of
Seven Hundred Fifty-One Thousand, Two Hundred and Seventy-Four
Dollars and Ninety-Four Cents ($751,274.94), less applicable
withholding. This lump sum payment will be made to Executive on the
Effective Date of this Agreement. 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.
3. Stock . The Parties agree
that Executive will be considered to have vested in his stock
options, restricted stock units and any other equity awards up to
the Separation Date, and no more. Each of Executive’s equity
awards shall continue to be governed by the terms and conditions
(including, but not limited to, with respect to the exercise of
vested stock options) of the applicable Company equity plan under
which the award was granted and applicable equity award agreement
(each an “Equity Award Document,” and together, the
“Equity Award Documents”). Executive specifically
acknowledges that notwithstanding anything to the contrary provided
for in his Equity Award Documents, he shall not continue to vest in
any stock options, restricted stock units or any other equity
awards as a result of the Consulting Agreement provided for in
Section 7 of this Agreement.
4. Benefits .
Executive’s health insurance benefits shall cease on the last
day of February 2009, subject to Executive’s right to
continue his group health insurance coverage at his own expense
under Title X of the Consolidated Omnibus Budget Reconciliation Act
of 1985, as amended (“COBRA”), whereby Executive shall
pay one hundred percent (100%) of premium amount plus a two
percent (2%) administrative fee for continued group health
insurance coverage. 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, ceased as of the Separation Date.
5. Tax Preparation Benefits .
The Company shall reimburse Executive for costs directly related to
preparing his personal income tax returns for the 2008 taxable year
for applicable state and federal tax authorities, provided that,
such expenses must be incurred by Executive prior to
December 31, 2009. Such reimbursements, which shall not exceed
$7,500 shall be treated as taxable income to Executive and shall be
made, if at all, by March 15, 2010.
6. 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
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Medical Leave Act, and that he did not sustain
any workplace injury, during his employment with the
Company.
7. Transition Services . The
Parties agree to enter into a Consulting Agreement essentially in
the form attached hereto as Exhibit I (the “Consulting
Agreement”), whereby Executive will provide certain
consulting services to the Company, subject to mutually agreed upon
Statement of Work that shall constitute Exhibit A to the Consulting
Agreement (“Statement of Work”). The Statement of Work
will include, but not be limited to, the following agreed upon
terms: (i) Executive will provide the Company with consulting
services including, but not limited to, the transitioning of
Executive’s responsibilities, with the specific description
of such contractual duties to be reasonably agreed upon and reduced
to writing in the Statement of Work; (ii) Executive will
provide up to eighty (80) hours of consulting services per
month; (iii) the Consulting Agreement shall continue for a
term of four (4) months or less, as provided under
Section 5 therein; and (iv) the Company will pay
Executive Thirty One Thousand Three Hundred Three Dollars and
Twelve Cents ($31,303.12) per month, conditioned upon his
satisfaction of and compliance with the terms and conditions of the
Consulting Agreement. Nothing in this Agreement or the Consulting
Agreement pertaining to Executive’s anticipated role as a
Consultant shall in any way be construed to constitute Executive as
a continuing agent, officer, employee, or representative of the
Company, but Executive shall perform the services under the
Consulting Agreement solely as an independent
contractor.
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,
Executives, 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 Releases 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; any obligations under the Change of Control
Agreement; any obligations under the Offer Letter; 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
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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; 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 Age Discrimination in Employment Act of 1967;
the Older Workers Benefit Protection Act; the Employee Retirement
Income Security Act of 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
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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; (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.
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
Agreements, specifically including the provisions therein regarding
nondisclosure of the Company’s trade secrets and confidential
and proprietary information, and non-solicitation of Company
Executives. 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 in connection with his
employment with the Company, or otherwise belonging to the
Company.
13. No Cooperation .
Executive further agrees that he will not knowingly encourage,
counsel, or assist any attorneys or their clients in the
presentation or prosecution of any disputes, differences,
grievances, claims, charges, or complaints by any third party
against any of the Releasees, unless under a subpoena or other
court order to do so or as related directly to the ADEA waiver in
this Agreement. Executive agrees both to immediately notify the
Company upon receipt of any such subpoena or court order, and to
furnish, within three (3) business days of its receipt,
a
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copy of such subpoena or other court order. If
approached by anyone for counsel or assistance in the presentation
or prosecution of any disputes, differences, grievances, claims,
charges, or complaints against any of the Releasees, Executive
shall state no more than that he cannot provide counsel or
assistance.
14. Non-Disparagement and
Communications with Company Employees, Customers and Business
Partners . Executive agrees to refrain from any disparagement,
defamation, libel, or slander of any of the Releasees, and agrees
to refrain from any tortious interference with the contracts and
relationships of any of the Releasees. Executive further agrees
that he will refrain from discussing Company confidential business
or financial information with third parties, including the
Company’s actual and potential customers or business
partners. Executive further agrees that he will not discuss the
Company’s business with Company employees, customers, or
business partners without the written consent of the
Company’s President or his designee. Executive shall direct
any inquiries by potential future employers to the Company’s
human resources department, which shall use its best efforts to
provide only the Executive’s last position and dates of
employment.
15. Breach . Executive
acknowledges and agrees that any material breach of this Agreement,
unless such breach constitutes a legal action by Executive
challenging or seeking a determination in good faith of the
validity of the waiver herein under the ADEA, or of any provision
of the Confidentiality Agreements shall entitle the Company
immediately to recover and/or cease providing the consideration
provided to Executive under this Agreement, except as provided by
law. Except as provided by law, Executive shall also be responsible
to the Company for all costs, attorneys’ fees, and any and
all damages incurred by the Company in (a) enforcing
Executive’s obligations under this Agreement or the
Confidentiality Agreements, including the bringing of any action to
recover the consideration, and (b) defending against a claim
or suit brought or pursued by Executive in violation of the terms
of this Agreement.
16. No Admission of Liability
. Executive understands and acknowledges that this Agreement
constitutes a compromise and settlement of any and all actual or
potential disputed claims by Executive. No action taken by the
Company hereto, either previously or in connection with this
Agreement, shall be deemed or construed to be (a) an admission
of the truth or falsity of any actual or potential claims or
(b) an acknowledgment or admission by the Company of any fault
or liability whatsoever to Executive or to any third
party.
17. Non-Solicitation .
Executive agrees that for a period of twelve (12) months
immediately following the Effective Date of this Agreement,
Executive shall not directly or indirectly solicit any of the
Company’s employees to leave their employment at the
Company.
18. Costs . The Parties shall
each bear their own costs, attorneys’ fees, and other fees
incurred in connection with the preparation of this
Agreement.
19. ARBITRATION . THE PARTIES
AGREE THAT ANY AND ALL DISPUTES ARISING OUT OF THE TERMS OF THIS
AGREEMENT OR THE CONSULTING AGREEMENT, INCLUDING BUT NOT LIMITED TO
THEIR INTERPRETATION AND ANY OF THE MATTERS HEREIN RELEASED, SHALL
BE SUBJECT TO ARBITRATION IN SANTA CLARA COUNTY, BEFORE JUDICIAL
ARBITRATION & MEDIATION SERVICES, INC.
(“JAMS”), PURSUANT TO ITS EMPLOYMENT ARBITRATION
RULES &
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PROCEDURES (“JAMS RULES”). THE
ARBITRATOR MAY GRANT INJUNCTIONS AND OTHER RELIEF IN SUCH DISPUTES.
THE ARBITRATOR SHALL ADMINISTER AND CONDUCT ANY ARBITRATION IN
ACCORDANCE WITH CALIFORNIA LAW, INCLUDING THE CALIFORNIA CODE OF
CIVIL PROCEDURE, AND THE ARBITRATOR SHALL APPLY SUBSTANTIVE AND
PROCEDURAL CALIFORNIA LAW TO ANY DISPUTE OR CLAIM, WITHOUT
REFERENCE TO ANY CONFLICT-OF-LAW PROVISIONS OF ANY JURISDICTION. TO
THE EXTENT THAT THE JAMS RULES CONFLICT WITH CALIFORNIA LAW,
CALIFORNIA LAW SHALL TAKE PRECEDENCE. THE DECISION OF THE
ARBITRATOR SHALL BE FINAL, CONCLUSIVE, AND BINDING ON THE PARTIES
TO THE ARBITRATION. THE PARTIES AGREE THAT THE PREVAILING PARTY IN
ANY ARBITRATION SHALL BE ENTITLED TO INJUNCTIVE RELIEF IN ANY COURT
OF COMPETENT JURISDICTION TO ENFORCE THE ARBITRATION AWARD. THE
PARTIES TO THE ARBITRATION SHALL EACH PAY AN EQUAL SHARE OF THE
COSTS AND EXPENSES OF SUCH ARBITRATION, AND EACH PARTY SHALL
SEPARATELY PAY FOR ITS RESPECTIVE COUNSEL FEES AND EXPENSES;
PROVIDED, HOWEVER, THAT THE ARBITRATOR SHALL AWARD ATTORNEYS’
FEES AND COSTS TO THE PREVAILING PARTY, EXCEPT AS PROHIBITED BY
LAW. THE PARTIES HEREBY AGREE TO WAIVE THEIR RIGHT TO HAVE ANY
DISPUTE BETWEEN THEM RESOLVED IN A COURT OF LAW BY A JUDGE OR JURY.
NOTWITHSTANDING THE FOREGOING, THIS SECTION WILL NOT PREVENT EITHER
PARTY FROM SEEKING INJUNCTIVE RELIEF (OR ANY OTHER PROVISIONAL
REMEDY) FROM ANY COURT HAVING JURISDICTION OVER THE PARTIES AND THE
SUBJECT MATTER OF THEIR DISPUTE RELATING TO THIS AGREEMENT AND THE
AGREEMENTS INCORPORATED HEREIN BY REFERENCE. SHOULD ANY PART OF THE
ARBITRATION AGREEMENT CONTAINED IN THIS PARAGRAPH CONFLICT WITH ANY
OTHER ARBITRATION AGREEMENT BETWEEN THE PARTIES, THE PARTIES AGREE
THAT THIS ARBITRATION AGREEMENT SHALL GOVERN.
20. Tax Consequences . The
Company makes no representations or warranties with respect to the
tax consequences of the payments and any other consideration
provided to Executive or made on his behalf under the terms of this
Agreement. Executive agrees and understands that he is responsible
for payment, if any, of local, state, and/or federal taxes on the
payments and any other consideration provided hereunder by the
Company and any penalties or assessments thereon. Executive further
agrees to indemnify and hold the Company harmless from any claims,
demands, deficiencies, penalties, interest, assessments,
executions, judgments, or recoveries by any government agency
against the Company for any amounts claimed due on account of
(a) Executive’s failure to pay or the Company’s
failure to withhold, or Executive’s delayed payment of,
federal or state taxes, or (b) damages sustained by the
Company by reason of any such claims, including attorneys’
fees and costs.
2 1. Section 409A . The
foregoing provisions are intended to comply with the requirements
of Section 409A of the Internal Revenue Code of 1986, as
amended (the “Code”) and the final Treasury Regulations
and any guidance promulgated thereunder (“Section
409A”) so that none of the severance payments and benefits to
be provided hereunder will be subject to the additional tax imposed
under Section 409A, and any ambiguities herein will be
interpreted to so comply. Executive and the Company agree to work
together in good faith to consider amendments to this Agreement and
to take such
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reasonable actions which are necessary,
appropriate or desirable to avoid imposition of any additional tax
or income recognition prior to actual payment to Executive under
Section 409A.
22. Authority . The Company
represents and warrants that the undersigned has the authority to
act on behalf of the Company and to bind the Company and all who
may claim through it to the terms and conditions of this Agreement.
Executive represents and warrants that he has the capacity to act
on his own behalf and on behalf of all who might claim through him
to bind them to the terms and conditions of this Agreement. Each
Party warrants and represents that there are no liens or claims of
lien or assignments in law or equity or otherwise of or against any
of the claims or causes of action released herein.
23. No Representations .
Executive represents that he has had an opportunity to consult with
an attorney, and has carefully read and understands the scope and
effect of the provisions of this Agreement. Executive has not
relied upon any representations or statements made by the Company
that are not specifically set forth in this Agreement.
24. Severability . In the
event that any provision or any portion of any provision hereof or
any surviving agreement made a part hereof becomes or is declared
by a court of competent jurisdiction or arbitrator to be illegal,
unenforceable, or void, this Agreement shall continue in full force
a
