ATMEL CORPORATION SEPARATION AGREEMENT AND MUTUAL RELEASE
Exhibit 10.17
This Separation Agreement and Mutual Release (“Agreement”) is made by and between Atmel
Switzerland Sarl (the “Company”) and ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (“Employee”) (collectively, the
“Parties” or individually, a “Party”).
BACKGROUND
Effective January 1, 2000, the Parties entered into an employment agreement (the “Employment
Agreement”). Employee voluntarily resigned from the
Company effective October 31, 2007. The Parties
wish to amend and clarify certain provisions of the Employment Agreement.
AGREEMENT
1. Resignation. The Parties acknowledge and agree that Employee voluntarily
terminated his
employment with the Company effective as of October 31, 2007 (the “Separation Date”).
2. Non-Competition. In lieu of the Non-Competition provisions set forth in
Article 12 of the
Employment Agreement, the Parties agree that for the period commencing on the Separation Date
and ending on
the one (1) year anniversary of the Separation Date (the “Non-Competition Period”), Employee
will not:
(a) provide services, directly or indirectly, be it as an individual, an employee, a
consultant,
an advisor, a director, or a manager, to a Non-Competition Company (as defined below); or
(b) start his own business, which would directly or indirectly compete with the
microcontroller business of Company, Atmel Corporation (“Atmel”) or any affiliate business of
Atmel.
For purposes of this Agreement, a “Non-Competition Company” means any of the following
companies, including their successors and their subsidiaries worldwide: (i) Microchip Technology
Inc., (ii) Freescale Semiconductor, Inc., (iii) NXP Semiconductors, (iv) Renesas Technology Corp.,
(v) STMicroelectronics, or (vi) Texas Instruments, Inc.
3. Consideration. As consideration for Employee entering into this Agreement and
maintaining his
compliance with his obligations hereunder, the Parties agree as follows:
(a) Salary Continuation. Subject to Section 3(b) below, during the Non-Competition
Period,
the Company shall continue to pay Employee his annual base salary, as in effect on the
Separation Date, in
accordance with the Company’s regular payroll policies, subject to applicable withholding
requirements (the
“Salary Continuation Payments”). For the avoidance of doubt, annual base salary shall not
include bonus
payments, gratuities, or other fringe benefits includable in income.
(b) Early Termination of Salary Continuation Payments. Salary Continuation Payments
shall cease immediately if Employee either:
(i) violates the Non-Competition provision set forth in Section 2; or
otherwise
(ii) during the Non-Competition Period, provides services, directly or indirectly, be
it as an individual, an employee, a consultant, an advisor, a director, or a manager, to
any company or other entity.
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(c) Bonus. Employee will be entitled to the bonus he would have earned during
calendar year 2007, prorated for the period of time from the start of such calendar year until the
Separation Date; provided that payment of such bonus will be made at the same time as bonuses for
such calendar year are paid out to other executives of the Company.
4. Benefits. Employee understands that, except as provided for herein or as required
by applicable
law, Employee’s participation in all Company benefits and incidents of employment with the
Company, shall
cease on the Separation Date.
5. Payment of Salary and Receipt of All Benefits. Employee 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, 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 Employee.
6. Relocation Expenses. Company will reimburse Employee’s documented, reasonable and
actually incurred expenses (i.e., airfare and the costs of shipping Employee’s personal
furnishings) to relocate
Employee and the members of Employee’s direct family living with Employee at the time of such
relocation,
from Switzerland to the United Kingdom; provided, that (a) Company shall not be obligated to
pay a total of
more than U.S.$50,000.00 under this Section 6, (b) such relocation expenses are incurred
within fifteen (15)
months after the Separation Date, and (c) such expenses have not been, and will not be, paid
by a third party (e.g.
in connection with Employee being hired by such third party).
7. Release of Claims. Employee agrees that the foregoing consideration represents
settlement in
full of all outstanding obligations owed to Employee by the Company, Atmel, or any affiliate
business of Atmel,
and the current and former officers, directors, employees, agents, investors, attorneys,
shareholders,
administrators, affiliates, benefit plans, plan administrators, divisions, and subsidiaries,
and predecessor and
successor corporations and assigns of the Company, Atmel, or any affiliate business of Atmel
(collectively, the
“Releasees”). Employee, 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 ▇▇▇
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
Employee 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 Employee’s employment relationship with
the Company and the termination of that relationship;
(b) any and all claims relating to, or arising from, Employee’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; 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;
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(d) any and all claims arising out of any applicable laws and regulations relating to
employment or employment discrimination;
(e) 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 Employee as a result of
this Agreement;
and
(f) any and all claims for attorneys’ fees and costs.
Employee 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.
8. Non-Solicitation and Non-Hire. Employee agrees that for a period of twelve (12)
months
immediately following the Effective Date of this Agreement, Employee shall not directly or
indirectly solicit to
leave their employment at the Company, or hire, any of the Company’s employees.
9. No Pending or Future Lawsuits. Employee represents that he does not currently have,
and does
not in the future intend to bring, any 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.
10. Confidentiality. Employee reaffirms and agrees to observe and abide by the terms
of the
confidentiality provision set forth in Article 11 of his Employment Agreement. Employee’s
signature below
constitutes his certification that he has returned all documents and other items provided to
Employee by the
Company, Atmel, or any affiliate business of Atmel, developed or obtained by Employee in
connection with his
employment with the Company, or otherwise belonging to the Company, Atmel, or any affiliate
business of
Atmel. In addition, Employee confirms having destroyed on his own data processing equipment
all
electronically stored confidential data belonging to the Company, Atmel, or any affiliate
business of Atmel.
Employee agrees to keep the terms and conditions of the Employment Agreement and this
Agreement
confidential except to the extent that such terms and conditions are publicly disclosed by
Company or Atmel.
11. No Cooperation and Non-Disparagement. Employee agrees not to act in any manner
that might
damage the business or reputation of any of the Releasees. Employee 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. Employee shall direct any inquiries by
potential future
employers to the Company’s human resources department.
12. Breach. Employee acknowledges and agrees that any material breach of this
Agreement, or of
any provision of the Employment Agreement preserved under this Agreement shall entitle the
Company and/or
Atmel immediately to recover and/or cease providing the consideration provided to Employee
under this
Agreement, except as provided by law.
13. Costs and Attorney Fees. The Parties shall each bear their own costs, attorneys’
fees, and other
fees incurred in connection with the preparation of this Agreement; provided that the
prevailing Party in an action
to enforce the Agreement shall be entitled to recover its costs and expenses, including
reasonable attorneys’ fees,
incurred in connection with such an action.
14. Indemnification. Employee agrees to indemnify and hold harmless the Company and
Atmel
from and against any and all loss, costs, damages, or expenses, including, without limitation,
attorneys’ fees or
expenses incurred by the Company or Atmel arising from (a) any action or proceeding that may
be commenced,
prosecuted or threatened by Employee or for Employee’s benefit, contrary to the provisions of
this Agreement, or
(b) the breach of this Agreement by Employee, or (c) any false representation made herein by
Employee.
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15. Authority. Each Party represents and warrants they each have the authority to
execute and make
this Agreement binding on the Parties.
16. No
Representations. Employee represents that he was advised, and had the
opportunity, to
consult with an attorney, and has carefully read and understands the scope and effect of the
provisions of this
Agreement. Employee has not relied upon any representations or statements made by the Company,
Atmel or
any other Releasee that are not specifically set forth in this Agreement. Employee acknowledges
that he is
familiar with the principle that a general release does not extend to claims that the releaser
does not know or
suspect to exist in his favor at the time of executing the release, which, if known by him,
must have materially
affected his settlement with the releasee. Employee acknowledges that this Agreement
supersedes and replaces
any and all prior agreements and understandings concerning the subject matter of this
Agreement and
Employee’s relationship with the Company and that this Agreement represents the entire
understanding of the
Parties with concerning this Agreement and the termination of the Employee’s employment with
the Company
with the exception of any provision of the Employment Agreement preserved under this Agreement.
17. 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 and effect
without said provision
or portion of provision. Should this Agreement or Section 1 hereof for any reason whatsoever
be void or
rescinded, the Company’s consent hereto shall be interpreted as a notice of termination with
effect as of October
31, 2007 without any payments being due to Employee other than under mandatory statutory law
and/or the
Employment Agreement.
18. No Oral Modification. This Agreement may only be amended in a writing signed by
the Parties
hereto.
19. Governing Law. This Agreement shall be governed by the Laws of Switzerland, in
particular art. 319 et seq. of the Swiss Code of Obligations.
20. Effective Date. Each Party has seven (7) days after that Party signs this
Agreement to revoke it.
This Agreement will become effective on the eighth (8th) day after Employee signed this
Agreement, so long as
it has been signed by the Parties and has not been revoked by either Party before that date
(the “EffectiveDate”).
21. Counterparts. This Agreement may be executed in counterparts and by facsimile, and
each
counterpart and facsimile shall have the same force and effect as an original and shall
constitute an effective,
binding agreement on the part of each of the undersigned.
22. Voluntary Execution of Agreement. Employee understands and agrees that he executed
this
Agreement voluntarily, without any duress or undue influence on the part or behalf of the
Company or any third
party, with the full intent of releasing all of his claims against the Company and any of the
other Releasees.
Employee acknowledges that:
(a) he has read this Agreement;
(b) he has been represented in the preparation, negotiation, and execution of this Agreement
by legal counsel of his own choice or has elected not to retain legal counsel;
(c) he understands the terms and consequences of this Agreement and of the releases it
contains; and
(d) he is fully aware of the legal and binding effect of this Agreement.
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IN WITNESS WHEREOF, the Parties have executed this Agreement on the respective dates set
forth below.
| ATMEL SWITZERLAND SARL | ||||||||||
Dated:
|
11/16/07 | By: | /s/ ▇▇▇▇▇ ▇▇▇▇ | |||||||
| Name: | ||||||||||
| Title: | ||||||||||
| ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, an individual | ||||||||||
Dated:
|
9th November 2007 | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ | ||||||||
| ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ | ||||||||||
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