EXHIBIT 10.21
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release ("Agreement") is made by and
between GENUS, INC. (the "Company"), and FRED HESLET ("Employee").
WHEREAS, Employee was employed by the Company;
WHEREAS, Employee and the Company entered into a Letter Agreement dated
November 4, 1996.
WHEREAS, the Company and Employee have entered into a Change of Control
Severance Agreement (the "Change of Control Agreement").
WHEREAS, the Company and Employee have mutually agreed to terminate the
employment relationship and to release each other from any claims arising from
or related to the employment relationship;
NOW THEREFORE, in consideration of the mutual promises made herein, the
Company and Employee (collectively referred to as "the Parties") hereby agree as
follows:
1. Resignation. Employee resigns his employment with the Company effective May
15, 1998.
2. Consideration. The Company agrees to pay Employee at his normal rate of pay
of eleven thousand six Dollars and twenty five cents ($11,006.25) per month,
less applicable withholding, for six (6) months from the effective date of his
resignation (the "payment period") in accordance with the Company's payroll
practices (provided that Employee does not revoke this Agreement under paragraph
8) up to and including the closing date of the sale of certain assets of the Ion
Implantation systems business to Varian Associates, Inc. (the "Closing Date").
As of the Closing Date, however, all remaining pay due under this Agreement
shall accelerate and become due and owing. During the payment period, Employee
will not be entitled to the accrual or continuation of any employee benefits,
including, but not limited to, vacation benefits or bonuses. Employee shall,
however, be available to consult with the Company one day per week until June
30, 1998.
3. Vesting of Stock. The Parties agree that for purposes of determining the
number of shares of the Company's common stock which Employee is entitled to
purchase from the Company, Employee's vesting shall cease as of the date of this
Agreement. The exercise of any stock options shall continue to be subject to the
terms and conditions of the Company's Stock Option Plan and the applicable Stock
Option Agreement between Employee and the Company.
4. Benefits. Employee shall have the right to convert his health insurance
benefits to individual coverage pursuant to COBRA.
5. Confidential Information. Employee shall continue to maintain the
confidentiality of all confidential and proprietary information of the Company
and shall continue to comply with the terms and conditions of any
Confidentiality Agreement between Employee and the Company. Employee shall
return all the Company property and confidential and proprietary information in
his possession to the Company on the Effective Date of this Agreement.
6. Payment of Salary. Employee acknowledges and represents that the Company has
paid all salary, wages, bonuses, accrued vacation, commissions and any and all
other benefits due to Employee.
7. Release of Claims. Employee agrees that the foregoing consideration
represents settlement in full of all outstanding obligations owed to Employee by
the Company. Employee and the Company, on behalf of themselves, and their
respective heirs, family members, executors, officers, directors, employees,
investors, shareholders, administrators, affiliates, divisions, subsidiaries,
predecessor and successor corporations, and assigns, hereby fully and forever
release each other and their respective heirs, family members, executors,
officers, directors, employees, investors, shareholders, administrators,
affiliates, divisions, subsidiaries, predecessor and successor corporations,
and assigns, from, and agree not to sue concerning, any claim, duty, obligation
or cause of action relating to any matters of any kind, whether presently known
or unknown, suspected or unsuspected, that any of them may possess arising from
any omissions, acts or facts 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; breach of contract, both express
and implied; breach of a covenant of good faith and fair dealing, both express
and implied; promissory estoppel; negligent or intentional infliction of
emotional distress; 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; and
conversion;
(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 Age Discrimination in Employment Act of
1967, the Americans with Disabilities Act of 1990, the Fair Labor Standards Act,
the Employee Retirement Income Security Act of 1974, The Worker Adjustment and
Retraining Notification Act, Older Workers Benefit Protection Act; the
California Fair Employment and Housing Act, and Labor Code section 201, et seq.
and section 970, et seq.;
(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; and
(g) any and all claims for attorneys' fees and costs.
The Company and Employee agree 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. Acknowledgment of Waiver of Claims under ADEA. Employee acknowledges that he
is waiving and releasing any rights he may have under the Age Discrimination in
Employment Act of 1967 ("ADEA") and that this waiver and release is knowing and
voluntary. Employee and the Company agree that this waiver and release does not
apply to any rights or claims that may arise under ADEA after the Effective Date
of this Agreement. Employee acknowledges that the consideration given for this
waiver and release Agreement is in addition to anything of value to which
Employee was already entitled. Employee further acknowledges that he has been
advised by this writing that (a) he should consult with an attorney prior to
executing this Agreement; (b) he has at least twenty-one (21) days within which
to consider this Agreement; (c) he has at least seven (7) days following the
execution of this Agreement by the parties to revoke the Agreement; and (d) this
Agreement shall not be effective until the revocation period has expired.
9. Civil Code Section 1542. The Parties represent that they are not aware of
any claim by either of them other than the claims that are released by this
Agreement. Employee and the Company acknowledge that they have been advised by
legal counsel and are familiar with the provisions of California Civil Code
Section 1542, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR 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 DEBTOR.
Employee and the Company, being aware of said code section, agree to expressly
waive any rights they may have thereunder, as well as under any other statute or
common law principles of similar effect.
10. No Pending or Future Lawsuits. Employee represents that he has no lawsuits,
claims, or actions pending in his name, or on behalf of any other person or
entity, against the Company or any other person or entity referred to herein.
Employee also represents that he does not intend to bring any claims on his own
behalf or on behalf of any other person or entity against the Company or any
other person or entity referred to herein.
11. Application for Employment. Employee understands and agrees that, as a
condition of this Agreement, he shall not be entitled to any employment with the
Company, its subsidiaries, or any successor, and he hereby waives any right, or
alleged right, of employment or re-employment with the Company. Employee further
agrees that he will not apply for employment with the Company, its subsidiaries
or related companies, or any successor.
12. Confidentiality. The Parties hereto each agree to use their best efforts to
maintain in confidence the existence of this Agreement, the contents and terms
of this Agreement, and the consideration for this Agreement (hereinafter
collectively referred to as "Settlement Information"). Each Party hereto agrees
to take every reasonable precaution to prevent disclosure of any Settlement
Information to third parties, and each agrees that there will be no publicity,
directly or indirectly, concerning any Settlement Information. The Parties
hereto agree to take every precaution to disclose Settlement Information only to
those employees, officers, directors, attorneys, accountants, governmental
entities, and family members who have a reasonable need to know of such
Settlement Information.
13. No Cooperation. Employee agrees he will not act in any manner that might
damage the business of the Company. Employee agrees that he will not counsel or
assist any attorneys or their clients in the presentation or prosecution of any
disputes, differences, grievances, claims, charges, or complaints by any third
party against the Company and/or any officer, director, employee, agent,
representative, shareholder or attorney of the Company, unless under a subpoena
or other court order to do so.
14. Non-Disparagement. Each party agrees to refrain from any defamation, libel
or slander of the other, or tortuous interference with the contracts and
relationships of the other. All inquiries by potential future employers of
Employee will be directed to the Company 's Human Resources department. Upon
inquiry, the Company shall only state the following: Employee 's last position
and dates of employment. A press release announcing Employee's resignation shall
be made.
15. Tax Consequences. The Company makes no representations or warranties with
respect to the tax consequences of the payment of any sums to Employee under the
terms of this Agreement. Employee agrees and understands that he is responsible
for payment, if any, of local, state and/or federal taxes on the sums paid
hereunder by the Company and any penalties or assessments thereon. Employee
further agrees to indemnify and hold the Company harmless from any claims,
demands, deficiencies, penalties, assessments, executions, judgments, or
recoveries by any government agency against the Company for any amounts claimed
due on account of Employee's failure to pay federal or state taxes or damages
sustained by the Company by reason of any such claims, including reasonable
attorneys' fees.
16. Costs. The Parties shall each bear their own costs, expert fees, attorneys'
fees and other fees incurred in connection with this Agreement.
17. Arbitration. The Parties agree that any and all disputes arising out of the
terms of this Agreement, their interpretation, and any of the matters herein
released, shall be subject to binding arbitration in Santa Clara County before
the American Arbitration Association under its California Employment Dispute
Resolution Rules, or by a judge to be mutually agreed upon. The Parties agree
that the prevailing party in any arbitration shall be entitled to injunctive
relief in any court of competent jurisdiction to enforce the arbitration award.
The Parties agree that the prevailing party in any arbitration shall be awarded
its reasonable attorney's fees and costs.
18. Authority. The Company represents and warrants that the undersigned has the
authority to act on behalf of the Company and to bind the Company and all who
may claim through it to the terms and conditions of this Agreement. Employee
represents and warrants that he has the capacity to act on his own behalf and on
behalf of all who might claim through him to bind them to the terms and
conditions of this Agreement. Each Party warrants and represents that there are
no liens or claims of lien or assignments in law or equity or otherwise of or
against any of the claims or causes of action released herein.
19. No Representations. Each party represents that it has had the opportunity to
consult with an attorney, and has carefully read and understands the scope and
effect of the provisions of this Agreement. Neither party has relied upon any
representations or statements made by the other party hereto which are not
specifically set forth in this Agreement.
20. Severability. In the event that any provision hereof becomes or is declared
by a court of competent jurisdiction to be illegal, unenforceable or void, this
Agreement shall continue in full force and effect without said provision.
21. Entire Agreement. This Agreement represents the entire agreement and
understanding between the Company and Employee concerning Employee's separation
from the Company, and supersedes and replaces any and all prior agreements and
understandings concerning Employee's relationship with the Company and his
compensation by the Company.
22. No Oral Modification. This Agreement may only be amended in writing signed
by Employee and the President of the Company.
23. Governing Law. This Agreement shall be governed by the laws of the State of
California.
24. Effective Date. This Agreement is effective seven days after it has been
signed by both Parties.
25. Counterparts. This Agreement may be executed in counter-parts, and each
counterpart 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.
26. Voluntary Execution of Agreement. This Agreement is executed voluntarily and
without any duress or undue influence on the part or behalf of the Parties
hereto, with the full intent of releasing all claims. The Parties acknowledge
that:
(a) They have read this Agreement;
(b) They have been represented in the preparation, negotiation, and
execution of this Agreement by legal counsel of their own choice or that they
have voluntarily declined to seek such counsel;
(c) They understand the terms and consequences of this Agreement and of
the releases it contains; and
(d) They are fully aware of the legal and binding effect of this
Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the respective
dates set forth below.
GENUS, Inc.
Dated: May 15, 1998 By: /s/ WILLIAM W.R. ELDER
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William W.R. Elder
Chairman of the Board
Fred Heslet, an individual
Dated: May 15, 1998 /s/ FRED HESLET
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Fred Heslet