Exhibit 10.1
SEPARATION
AGREEMENT
This Separation Agreement (the
“ Agreement ”) is effective as of October 1,
2009, by and between Fariba Danesh (“ Employee
”) and Avago Technologies Limited, a company organized under
the laws of Singapore (the “Company”), with reference
to the following facts:
A. Employee’s status as an
employee and officer of Avago Technologies U.S. Inc., a subsidiary
of the Company (“ Avago U.S. ”), the Company and
their subsidiaries and affiliates will terminate effective
September 18, 2009.
B. Employee and the Company desire
to assure a smooth and effective transition of Employee’s
duties to her successor and to wind-up their employment
relationship amicably.
NOW, THEREFORE, in consideration of
the mutual covenants and agreements hereinafter set forth, the
parties agree as follows:
1. Termination Date .
Employee acknowledges that her status as an employee and officer of
Avago U.S., the Company and their subsidiaries and affiliates shall
end on September 18, 2009 (the “ Termination Date
”).
2. Base Salary and Accrued
Benefits. The Company shall cause Avago U.S. to pay to Employee
any unpaid base salary and accrued but unpaid FTO/vacation along
with any other payments required by applicable law through the
Termination Date in accordance with Avago U.S.’s normal
payroll practices.
3. Separation Payments and
Benefits . Without admission of any liability, fact or claim,
the Company hereby agrees, subject to the execution hereof by both
parties and Employee’s continuing performance of her
obligations pursuant to this Agreement, the Employment Agreement
between the Company and Employee dated October 30, 2007, as
Amended and Restated (the “ Employment Agreement
”), and that certain Agreement Regarding Confidential
Information and Proprietary Developments between the Company and
Employee dated December 1, 2005 (the “ ARCIPD
”), to provide Employee the severance benefits set forth
below. For the avoidance of doubt, in the event Employee fails to
execute this Agreement on or prior to October 9, 2009, or
revokes this Agreement during the revocation period set forth in
Section 6, the Company shall have no obligation to provide the
benefits set forth in this Section 3.
(a) Severance Payment . The
Company and Employee acknowledge that the Company shall pay
Employee, or cause to be paid to Employee, as severance an amount
equal to $364,164.00, less applicable taxes and other withholding
required by law or authorized by Employee, which is equivalent to
twelve (12) months of Employee’s final base salary, such
amount to be paid in a single cash lump sum as soon as
administratively practicable, which shall not exceed 5 days, after
this Agreement becomes no longer subject to revocation;
(b) Healthcare . The Company
and Employee acknowledge that the Company shall pay Employee, or
cause to be paid to Employee, an amount equal to $3,107.46, less
applicable taxes and other withholding required by law or
authorized by Employee, which is equivalent to three
(3) months of COBRA premiums, such amount to be paid in a
single cash lump sum as soon as administratively practicable, which
shall not exceed 5 days, after this Agreement becomes no longer
subject to revocation. Thereafter, Employee may, if eligible, elect
to receive continued healthcare coverage pursuant to the provisions
of COBRA (the Consolidated Omnibus Budget Reconciliation Act of
1985, as amended) for herself and any covered dependents at her own
expense.
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(c) Equity. The Company and
Employee acknowledge that subject to the Management Shareholders
Agreement by and among Parent, Employee and Bali Investments
S.a.r.l., dated as of December 1, 2005 (the “
Management Shareholders Agreement ”), and pursuant to
the terms of the Amended and Restated Equity Incentive Plan for
Executive Employees of Avago Technologies Limited and Subsidiaries,
as amended from time to time (the “ Equity Incentive
Plan ”), Employee (i) purchased 46,296 ordinary
shares of the Company at $6.48 per share on August 22, 2006
(“the Co-Investment Shares”), and (ii) was granted
an option to purchase 325,000 ordinary shares of the Company at
$6.48 per share on August 22, 2006 (the “ 2006
Option ”); an option to purchase 175,000 ordinary shares
of the Company at $10.22 per share on November 1, 2007 (the
“ 2007 Option ”); an option to purchase 50,000
ordinary shares of the Company at $10.00 per share on March 3,
2009 (the “ First 2009 Option ”); and an option
to purchase 50,000 ordinary shares of the Company at $15.00 per
share on August 5, 2009 (the “ Second 2009 Option
” and, collectively with the 2005 Option, 2006 Option and
First 2009 Options, the “ Options ”). The
Company and Employee agree that Employee has exercised the
Co-Investment Shares and has sold 35,845 of said 46,296
Co-Investment Shares and now holds 10,451 Co-Investment Shares. The
Company and Employee acknowledge that as of the Termination Date,
the 2006 Option remains unvested with respect to 130,000 of the
ordinary shares subject thereto (the “ 2006 Unvested
Shares ”); the 2007 Option remains unvested with respect
to 140,000 of the ordinary shares subject thereto (the “
2007 Unvested Shares ”); the First 2009 Option remains
unvested with respect to 50,000 of the ordinary shares subject
thereto (the “ First 2009 Unvested Shares ”) and
the Second 2009 Option remains unvested with respect to 50,000 of
the ordinary shares subject thereto (the “ Second 2009
Unvested Shares ” and collectively with the 2005 Unvested
Shares, 2006 Unvested Shares and First 2009 Unvested Shares, the
“ Unvested Shares ”). The Company and Employee
acknowledge and agree that the Options, as of the Termination Date,
shall terminate with respect to all Unvested Shares for no
consideration; except that, pursuant to the Employment Agreement,
35,000 of said Unvested Shares from the 2007 Option shall
accelerate and vest (“the Accelerated Shares”). The
Company and Employee further acknowledge that, as of the
Termination Date, the Options are vested and outstanding with
respect to 265,000 of the ordinary shares subject thereto, which
number includes said Accelerated Shares (the “ Vested
Shares ”). The Company and Employee agree that Employee
shall have a 90 day period from the Termination Date, to:
(a) at Employee’s discretion hold or sell the 10,451
Co-Investment Shares; and (b) exercise and hold, except as
permitted pursuant to the exercise provision of the next sentence,
her Vested Shares. With respect to any exercise pursuant to the
preceding sentence, Employee shall be permitted to conduct a
broker-assisted same day sale of that number of shares subject to
her Options necessary to satisfy the exercise price and minimum
statutory withholding obligations with respect to such exercise,
provided that Employee shall irrevocably instruct the broker to
remit the proceeds of such broker-assisted sale directly to the
Company. Employee acknowledges and agrees that upon the issuance of
the Company’s ordinary shares (the “ Issued
Shares ”) pursuant to any such exercise, she shall have
no further right, title or interest in any options or the ordinary
shares of Parent underlying any options other than the Issued
Shares, the Equity Incentive Plan (with respect to such options)
and any other agreements entered into with respect thereto. The
Company and Employee acknowledge and agree that the Issued Shares
shall remain subject to the terms and conditions of each option
agreement evidencing the Options, the exercise notice with respect
thereto, the Equity Incentive Plan and the IPO Lock-Up Letter
Agreement signed by Employee on July 9, 2009, with the effect
that said Issued Shares shall not be sold or otherwise transferred
until the
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expiration of the restrictions in
said Lock-Up Letter Agreement. For the avoidance of doubt, upon the
expiration of the revocation period set forth in Section 6
below, the Management Shareholders Agreement shall be deemed
terminated and shall be of no further effect.
(d) Bonus and Other Compensation
Arrangements . The Company and Employee acknowledge and agree
that Employee receive a severance bonus in an amount equal to
$200,000.00, less applicable taxes and other withholding required
by law or authorized by Employee, such amount to be paid in a
single cash lump sum as soon as administratively practicable, which
shall not exceed 5 days, after this Agreement becomes no longer
subject to revocation. Employee will not otherwise be eligible to
receive any bonus compensation or any other award or compensation
under any Company bonus, equity or other compensation plan except
as set forth herein. Employee acknowledges that she has been paid
all bonuses earned and to which she is entitled as of the
Termination Date.
(e) Taxes . Employee
understands and agrees that all payments under this Agreement will
be subject to appropriate tax withholding and other deductions, as
and to the extent required by law. To the extent any taxes may be
payable by the Employee for the benefits provided to her by this
Agreement beyond those withheld by the Company, the Employee agrees
to pay them herself and to indemnify and hold the Company and the
other entities released herein harmless for any tax claims or
penalties, and associated attorneys’ fees and costs,
resulting from any failure by her to make required
payments.
(f) Sole Separation Benefit .
Employee agrees that the benefits provided by this Agreement are
not required under the Company’s normal policies and
procedures and are provided solely in connection with this
Agreement. Employee further acknowledges and agrees that the
payments referenced in this Agreement constitute adequate and
valuable consideration, in and of themselves, for the promises
contained in this Agreement.
4. Full Payment; Termination of
Employment Agreement; Survival . Employee acknowledges that the
payment and arrangements herein shall constitute full and complete
satisfaction of any and all amounts properly due and owing to
Employee as a result of her employment with the Company and any
subsidiary or affiliate thereof, and the termination thereof.
Nothing in this Section 4 shall diminish the obligations of
the Company or Employee under the ARCIPD.
5. General Release . As a
material inducement for the Company to enter into this Agreement,
and in exchange for the performance of the Company’s
obligations under this Agreement provided for herein, Employee
knowingly and voluntarily waives and releases all rights and
claims, known and unknown, which Employee may have against the
Company and/or any of the Company’s related or affiliated
entities or successors, or any of their current or former officers,
directors, managers, employees, agents, insurance carriers,
auditors, accountants, attorneys or representatives, including any
and all charges, complaints, claims, liabilities, obligations,
promises, agreements, contracts, controversies, damages, actions,
causes of action, suits, rights, demands, costs, losses, debts and
expenses of any kind. This includes, but is not limited to, claims
for employment discrimination, harassment, wrongful termination,
constructive termination, violation of public policy, breach of any
express or implied contract, breach of any implied covenant, fraud,
intentional or negligent misrepresentation, emotional distress,
defamation, claims for wages, or any other claims relating to
Employee’s relationship with the Company. This also includes
a release of any claims under any federal, state or local laws or
regulations, including, but not limited to: (1) Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et
seq . (race, color, religion, sex, and national origin
discrimination); (2) the Age Discrimination in Employment Act,
as amended, 29 U.S.C. § 621 et seq . (the
“ ADEA ”) (age discrimination);
(3) Section 1981 of the Civil Rights Act of 1866, 42
U.S.C. 1981 (race discrimination); (4) the Equal Pay Act of
1963, 29 U.S.C. § 206 (equal pay); (5) the Fair
Labor
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Standards Act, 29 U.S.C. § 201, et
seq . (wage and hour matters, including overtime pay);
(6) COBRA; (7) Executive Order 11141 (age
discrimination); (8) Section 503 of the Rehabilitation
Act of 1973, 29 U.S.C. § 701, et seq .
(disability discrimination); (9) the Employee Retirement
Income Security Act of 1974, as amended, 29 U.S.C. § 1001,
et seq . (employee benefits); (10) Title I of
the Americans with Disabilities Act (disability discrimination);
and (11) the Family Medical Leave Act of 1993, 29 U.S.C.
§ 2601, et. seq. (family medical leave); and (12) any
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