Exhibit 10.8(b)
SEPARATION AGREEMENT AND
RELEASE
This Separation Agreement and
Release (“Agreement”) is made by and between Robert C.
Melendres (“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 Executive Vice President, Corporate Development,
Chief Legal Officer and Corporate Secretary, pursuant to employment
terms set forth in an offer letter signed by Executive on
January 4, 2005 the “Offer Letter”);
WHEREAS, Executive signed an
agreement dated July 18, 2002 with Advanced Micro Devices,
Inc. and a Spansion LLC Agreement with the Company on
January 1, 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
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 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duties or obligations to Executive, and which is wholly superseded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 April 6, 2009 at 5:00
p.m. PST (the “Separation Date”); 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 effective as of
April 6, 2009 at 5:00 p.m. PST. In connection with said
resignation from employment 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 six
(6) months of Executive’s base salary, for a total of
Two hundred eighteen thousand seven hundred Dollars and Zero Cents
(218,700.00), 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”).
4. Benefits .
Executive’s health insurance benefits shall cease on the last
day of April 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. 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 Medical Leave Act,
and that he did not sustain any workplace injury, during his
employment with the Company.
6. 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 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, 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;
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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 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
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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
Califo
