Exhibit 10.12
SEPARATION AGREEMENT
This Separation Agreement is entered
into this 18th day of September, 2007, between Christina M.
Temperante (“Temperante”) and Hutchinson Technology
Incorporated (“HTI”).
I.
RECITALS
A.
Temperante has been employed by HTI.
B.
In connection with her employment by HTI, Temperante executed an
Agreement Not to Compete, Not to Disclose Confidential Information
and Assignment of Inventions dated June 29, 2001
(“Agreement Not to Compete”).
C.
In connection with her employment by HTI, Temperante executed
Incentive Stock Option Agreements and Non-Statutory Stock Option
Agreements dated July 2, 2001, November 28, 2001,
November 20, 2002, November 19, 2003, December 1,
2004, November 30, 2005, and November 29, 2006
(“Option Agreements”).
D.
Temperante’s HTI employment was terminated effective
August 29, 2007 (the “Termination Date”).
E.
Temperante and HTI desire to resolve all of Temperante’s
potential claims on the terms set out in this Separation
Agreement.
II.
AGREEMENT
For the consideration described
below, the adequacy of which the parties acknowledge, the parties
agree as follows:
1.
Release by Temperante.
At the same time that she executes this Separation Agreement,
Temperante shall execute the release that is attached as
Exhibit A (the “Release”).
2.
Payment. Within five
business days after the satisfaction of all of the conditions
stated in Paragraph 3 below, HTI shall pay Temperante a lump
sum in the amount of $250,000.00, less applicable
withholdings.
3.
Conditions. HTI need
not make the payment described in Paragraph 2 above unless and
until all of the following conditions have been satisfied:
(a) Temperante executes the
Release after the Termination Date and delivers it to HTI within
the time specified in the Release.
(b) The applicable rescission
period for the Release expires without a rescission by
Temperante.
4.
Right to Consult with an
Attorney. Temperante understands and acknowledges that she
is hereby being advised by HTI to consult with an attorney prior to
signing this Separation Agreement and the Release.
5.
Consideration and
Rescission. The periods described in the Release during
which Temperante may consider whether to sign or may rescind the
Release and the procedures stated in the Release for accepting or
rescinding the Release also apply to this Separation Agreement. The
Release and this Separation Agreement must be accepted or rescinded
together. Rescission of one of these documents will be deemed a
rescission of both of them.
6.
Cooperation. Upon
reasonable notice and request by HTI, Temperante shall be
reasonably available to consult with, advise, and assist HTI with
respect to legal and business matters about which she had knowledge
or responsibility during her employment with the HTI. Without
limiting the foregoing, at HTI’s reasonable request,
Temperante shall consult with HTI regarding business matters that
she was involved with while employed by HTI and be available, with
or without subpoena, to be interviewed, review documents or things,
give depositions, testify, or engage in other reasonable activities
in connection with any litigation or investigation, with respect to
matters that Temperante has or may have knowledge of. In performing
her
obligations under this Paragraph 6 to testify or otherwise
provide information, Temperante shall honestly, truthfully,
forthrightly, and completely provide requested information to the
extent that she is able to do so.
7.
Agreement Not to
Solicit. For a period of 36 consecutive months from and
after the Termination Date, Temperante shall not, directly or
indirectly, in any manner or capacity (including without limitation
as a proprietor, principal, agent, partner, officer, director,
stockholder, employee, consultant, or otherwise) solicit, request,
advise, or induce any person who is then an employee or contractor
of HTI to terminate, curtail, or otherwise adversely change his or
her relationship with HTI.
8.
Agreement Not to Hire.
For a period of 36 consecutive months from and after the
Termination Date, Temperante shall not, directly or indirectly, in
any manner or capacity (including without limitation as a
proprietor, principal, agent, partner, officer, director,
stockholder, employee, consultant, or otherwise) hire, attempt to
hire, engage, or attempt to engage any person who is then an
employee of HTI.
9.
Blue Pencil Doctrine.
If the duration of, the scope of, or any activity covered by any
provision of Paragraphs 7 and 8 above is in excess of what is
determined to be valid and enforceable under applicable law, such
provision shall be construed to cover only that duration, scope, or
activity that is determined to be valid and enforceable. Temperante
hereby acknowledges that Paragraphs 7 and 8 above shall be given
the construction that renders their provisions valid and
enforceable to the maximum extent, not exceeding their express
terms, possible under applicable law.
10.
Acknowledgement and
Remedies. Temperante hereby acknowledges that the
provisions of Paragraphs 7 and 8 above are reasonable and necessary
to protect the legitimate interests of HTI and that any violation
of Paragraphs 7 or 8 by Temperante would cause substantial and
irreparable harm to HTI to such an extent that monetary damages
alone would be an inadequate remedy. In the event that Temperante
violates any provision of Paragraphs 7 or 8 above, HTI shall be
entitled to an injunction, in addition to all other remedies it may
have, restraining Temperante from violating or continuing to
violate such provision.
11.
Non-Admission. Nothing
in this Separation Agreement or the Release is intended to be, nor
will be deemed to be, an admission by HTI that it has violated any
law or that it has engaged in any wrongdoing.
12.
Entire Agreement. This
Separation Agreement and the Release supersede all prior oral and
written agreements, representations, and promises between the
parties except that the Agreement Not to Compete and the Option
Agreements shall continue in full force and effect according to
their terms. This Separation Agreement, the Release, the Agreement
Not To Compete, and the Option Agreements constitute the entire
agreement between the parties with respect to Temperante’s
employment with HTI and the termination of that employment.
Temperante acknowledges that there were no inducements or
representations leading to the execution of this Separation
Agreement or the Release, except as stated in this Separation
Agreement.
13.
Voluntary and Knowing
Action. The parties acknowledge that they understand the
terms of this Separation Agreement and that they are voluntarily
entering into this Separation Agreement. The parties inte
