Release of the Executive. Except for the Executive’s breach of this Agreement, to the maximum extent permitted by applicable law, the Company Releasees, and each of them, RELEASE and FOREVER DISCHARGE the Executive and his heirs, legatees, agents, legal representatives, successors and assigns (the Executive and all of the foregoing being hereinafter collectively referred to as the “Executive Releasees”), of and from, and does hereby WAIVE, any and all rights, contracts, notes, torts, claims, grievances, arbitrations, damages, actions, causes of action, and suits, whether or not now known, suspected, or claimed, which they ever had, now have or claim, or might hereafter have or claim against the Executive Releasees, and each of them, relating to, directly or indirectly, any matter or thing occurring, in whole or in part, from the beginning of the world through the date hereof, including any and all rights, claims, grievances, arbitrations, suits, or causes of action which he has asserted or could assert (1) relating to the Executive’s employment with the Company or his termination therefrom without “Cause” on the Separation Date, (2) relating to his Employment Agreement (unless rights thereunder are otherwise preserved by this Agreement), and (3) under applicable law. The Company represents and warrants that the Company Releasees have not heretofore assigned or transferred to any person or entity any of the matters released under this Section 8(B), nor have the Company Releasees filed any charges or complaints against any of the Executive Releasees with any governmental or administrative agency or court. For any and all of the matters released under this Section 8(B), the Company covenants that the Company Releasees (i) shall not s▇▇, or cause any suit to be filed against, the Executive Releasees, or any of them, and (ii) shall not file, or cause to be filed, any complaints, charges, grievances, or arbitrations against the Executive Releasees, or any of them. The foregoing release of the Executive does not extend to those claims for which Section 145 of the General Corporation Law of Delaware prohibits indemnification of Executive (the “Preserved Claims”). Notwithstanding the preceding sentence, the parties understand and agree that: A. without limiting the generality of the foregoing release, the foregoing release does include and extend to (1) any claims against the Executive where he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company, (2) any criminal claims against the Executive where he had no reasonable cause to believe his conduct was unlawful, (3) any claims brought against the Executive by the Company or pursuant to a right held by the Company where he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company, and (4) any claims brought against the Executive by the Company or pursuant to a right held by the Company where under all of the circumstances the Executive is fairly and reasonably entitled to indemnity for such expenses that the Delaware Court of Chancery or such other court shall deem proper; B. nothing in the preceding sentence shall affect any right the Executive has to advances of expenses (including attorneys’ fees) in defending any civil, criminal, administrative or investigative action, suit or proceeding in advance of the final disposition of such action, suit, or proceeding; and C. nothing in the preceding sentence shall affect any right the Executive has to be covered by directors or officers liability insurance. The parties further understand and agree that the termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that (i) the Executive did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, or (ii) with respect to any criminal action or proceeding, the Executive had reasonable cause to believe that his conduct was unlawful. The determination of whether there is a Preserved Claim shall be made in accordance with the provisions of Section 145 of the General Corporation Law of Delaware, and shall be determined in all respects by the internal law of the State of Delaware, without giving effect to the conflict of laws principles of that State.
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Release of the Executive. Except for the Executive’s breach Western Digital, SanDisk, and each and all of this Agreementtheir divisions, to the maximum extent permitted by applicable lawsubsidiaries, the Company Releaseesparents, predecessors, successors, assigns, and affiliated or related corporations and entities, past and present, as well as each and all of its and their owners, trustees, officers, directors, managers, shareholders, members, partners, administrators, fiduciaries, representatives, attorneys, assignees, successors, insurers, benefit plans, agents and employees, past and present, and each of themthem (collectively, RELEASE the “Company Parties”) is waiving, releasing and FOREVER DISCHARGE the discharging and promising not to ▇▇▇, Executive on behalf of Executive and his each of Executive’s respective heirs, legateesexecutors, administrators, representatives, agents, legal representatives, successors and assigns (the Executive and all of the foregoing being hereinafter collectively referred to as collectively, the “Executive ReleaseesReleased Parties”), of ) from and from, and does hereby WAIVE, with respect to any and all claims, wages, demands, actions, class actions, rights, liens, agreements, contracts, notescovenants, torts, claims, grievances, arbitrations, damages, actionssuits, causes of action, and suits, whether or not now known, suspected, or claimed, which they ever had, now have or claim, or might hereafter have or claim against the Executive Releasees, and each of them, relating to, directly or indirectly, any matter or thing occurring, in whole or in part, from the beginning of the world through the date hereof, including any and all rights, claims, grievances, arbitrations, suits, or causes of action which he has asserted or could assert (1) relating to the Executive’s employment with the Company or his termination therefrom without “Cause” on the Separation Date, (2) relating to his Employment Agreement (unless rights thereunder are otherwise preserved by this Agreement), and (3) under applicable law. The Company represents and warrants that the Company Releasees have not heretofore assigned or transferred to any person or entity any of the matters released under this Section 8(B), nor have the Company Releasees filed any charges or complaints against any of the Executive Releasees with any governmental or administrative agency or court. For any and all of the matters released under this Section 8(B), the Company covenants that the Company Releasees (i) shall not s▇▇, or cause any suit to be filed against, the Executive Releasees, or any of them, and (ii) shall not file, or cause to be filed, any complaints, charges, grievances, obligations, debts, costs, expenses, penalties, attorneys’ fees, damages, judgments, orders and liabilities of any kind, known or arbitrations against the Executive Releaseesunknown, suspected or unsuspected, arising out of or in any way connected with Executive’s employment relationship with, or the ending of Executive’s employment with, any of them. The foregoing release of the Executive does not extend to those claims for which Section 145 of the General Corporation Law of Delaware prohibits indemnification of Executive Company Parties (collectively, the “Preserved Company Claims”), including but in no way limited to, any act or omission committed or omitted prior to the date hereof; provided, however, that nothing herein shall release Executive from any claims arising out of or otherwise related to Executive’s fraud, willful misconduct or gross negligence or the Executive having intentionally misrepresented any facts or circumstances to, and that could reasonably be expected to have a material adverse impact on, Western Digital, SanDisk or their respective affiliates. Notwithstanding the preceding sentence, the parties understand and agree that:
A. without limiting the generality of the foregoing release, the foregoing release does include and extend to (1) any claims against the Executive where he acted in good faith and in a manner he reasonably believed to be in or not opposed anything to the best interests contrary, nothing herein shall release Executive or any other Executive Released Party from any Company Claims based on any right a Company Party may have to enforce this Agreement. The portion of Executive’s benefits under the Company, (2) any criminal claims against the Executive where he had no reasonable cause to believe his conduct was unlawful, (3) any claims brought against the Executive by the Company or pursuant to a right Change of Control Agreement held by the Company where he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company, and (4) any claims brought against the Executive by the Company or pursuant to a right held by the Company where under all of the circumstances the Executive is fairly and reasonably entitled to indemnity for such expenses that the Delaware Court of Chancery or such other court shall deem proper;
B. nothing in the preceding sentence Rabbi Trust shall affect not be subject to any right the Executive has to advances of expenses (including attorneys’ fees) in defending any civilforfeiture, criminal, administrative offset or investigative action, suit or proceeding in advance of the final disposition of such action, suitpayment delay as a result of, or proceeding; and
C. nothing in the preceding sentence shall affect connection with, any right the Executive has to be covered by directors or officers liability insurance. The parties further understand and agree that the termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that (i) the Executive did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, or (ii) with respect to any criminal action or proceeding, the Executive had reasonable cause to believe that his conduct was unlawful. The determination of whether there is a Preserved Claim shall be made in accordance with the provisions of Section 145 of the General Corporation Law of Delaware, and shall be determined in all respects by the internal law of the State of Delaware, without giving effect to the conflict of laws principles of that StateCompany Claims.
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