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EXHIBIT 10.29
SEPARATION AGREEMENT
THIS SEPARATION AGREEMENT (the "Agreement"), which shall be effective as
of March 31, 2000, by and between DIODES INCORPORATED, 0000 Xxxx Xxxxxxxxx
Xxxxx, Xxxxx 000, Xxxxxxxx Xxxxxxx, Xxxxxxxxxx 00000 ("DIODES"), and XXXXXXX
XXXXXXXXX, c/o Xxxxx Xxxxxxxxx, 0000 Xxxxxxx Xxxxx, Xxxxxx Xxxxx, Xxxxxxxxxx
00000 ("XXXXXXXXX"), is made with reference to the following facts:
A. Beginning in 1989, XXXXXXXXX became a member of the Board of
Directors of DIODES.
B. On October 1, 1997, XXXXXXXXX became the President and Chief
Executive Officer of DIODES.
C. On or about October 25, 1999, XXXXXXXXX proposed the terms of an
Employment Agreement between DIODES and XXXXXXXXX (the "Proposed
Employment Agreement").
D. A dispute has arisen between DIODES and XXXXXXXXX regarding the
terms and conditions of the Proposed Employment Agreement,
XXXXXXXXX'x compensation and continued employment with DIODES.
E. The parties are desirous of entering into this Agreement for the
purposes of resolving all compensation and other issues between
them.
NOW, THEREFORE, it is hereby agreed as follows:
1. Termination Date.
Effective March 31, 2000, XXXXXXXXX resigns his position as
President, Chief Executive Officer, and Director of DIODES.
XXXXXXXXX acknowledges that as of March 31, 2000 (with the
exception of the consulting requirements set forth in Paragraph 8,
below), all of his duties and involvement with DIODES shall cease.
2. Separation Compensation.
Upon execution of this Agreement, XXXXXXXXX shall receive the
following ("Separation Compensation"):
(a) Any salary, group insurance, per diem or expense reimbursement due
and owing up through March 31, 2000;
(b) A severance payment in the sum of Two Hundred Thousand Dollars
($200,000.00);
(c) A bonus in the sum of Two Hundred Sixty-Five Thousand Six Hundred
Twenty-
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One Dollars ($265,621.00);
(d) Moving expenses of Twenty Thousand Dollars ($20,000.00); and
(e) Reimbursement of XXXXXXXXX'x legal expenses incurred in connection
with the negotiations surrounding the Proposed Employment
Agreement and the negotiation of this Agreement in the sum of
Seven Thousand Five Hundred Dollars ($7,500.00).
All of the Separation Compensation (items (a) through (e), above)
shall be wire transferred by DIODES to a bank account designated by XXXXXXXXX on
March 31, 2000. XXXXXXXXX acknowledges that the Separation Compensation paid
under this Agreement is in lieu of any and all other compensation or amounts to
which he may be entitled, including, but not limited to, salary, bonus, expense
reimbursement, and vacation pay.
3. Stock Options.
Any and all options to purchase DIODES' stock, which are held by
XXXXXXXXX as of March 31, 2000, and which have been fully vested, shall continue
in full force and effect in accordance with their terms. Any and all stock
options for DIODES' stock which are not fully vested as of March 31, 2000, shall
terminate upon the execution of this Agreement and XXXXXXXXX shall have no
further rights to those options or any further DIODES' stock options. The
parties acknowledge that as of the date of this Agreement, XXXXXXXXX has the
option to acquire thirty thousand (30,000) shares of DIODES' stock at an
exercise price of Six Dollars ($6.00) per share. These options are fully vested
and shall be unaffected by this Agreement.
4. Indemnification.
Pursuant to Article IV of the Bylaws of DIODES, DIODES shall
indemnify and hold XXXXXXXXX harmless from any claim, liability, or damages
arising out of actions taken by XXXXXXXXX in the course and scope of his duties
as an officer and director of DIODES. The extent of this indemnification shall
be coextensive with the provisions of Article IV of the Bylaws. DIODES shall use
reasonable commercially efforts to keep in full force and effect its directors
and officers liability insurance.
5. Minutes of the Board of Directors.
XXXXXXXXX acknowledges that he has carefully reviewed and hereby
agrees, as a condition precedent to the effectiveness of this Agreement, that
the minutes of the Board of Directors for the meetings which were held on,
August 4, 1999, November 3, 1999, and March 20, 2000, and any and all other
minutes of the Board of
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Directors during the 1999 calendar year, are true, correct, and accurate.
6. DIODES 10K Disclosure Statement.
XXXXXXXXX represents and warrants, to the best of his knowledge,
that the DIODES' Annual Report on Form 10-K for fiscal year 1999, which he
signed as President of DIODES on March 30, 2000, is true and does not contain
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements contained therein, in light of the
circumstances under which they were made, not misleading. XXXXXXXXX further
acknowledges that he is not in disagreement with DIODES on any matter relating
to DIODES' operations, policies, or practices.
7. Employment Agreement.
XXXXXXXXX acknowledges that the Proposed Employment Agreement was
never accepted by or binding upon DIODES and, as a result, has no effectiveness.
XXXXXXXXX hereby waives any and all rights which he may have against DIODES
under the Proposed Employment Agreement. XXXXXXXXX acknowledges that his
employment with DIODES was, at all times, "at will."
8. Consulting Period.
XXXXXXXXX shall, for a period of sixty (60) days after the
Effective Date of this Agreement, be available to consult with DIODES on any
matter relating to his former positions with DIODES. Such consultation shall
take place upon the request of any acting or permanent officer or director of
DIODES. During this sixty (60) day period, DIODES shall have wide discretion in
requesting consulting services from XXXXXXXXX. In return, XXXXXXXXX shall be
reimbursed (in accordance with his current arrangement with DIODES) for travel,
lodging, and use of a company automobile, continuation of coverage of XXXXXXXXX
and his wife under DIODES' group health insurance, and a per diem of One Hundred
Thirty-Nine Dollars ($139.00) for each day his consulting services are requested
by DIODES during the consulting period.
9. Confidentiality.
XXXXXXXXX acknowledges that throughout his business relationship
with DIODES, he has come into possession of certain confidential, trade secret,
and/or proprietary information which belongs to DIODES (hereinafter the
"Confidential Information"). The Confidential Information includes (but is not
limited to): (i) manufacturing processes; (ii) trade secrets, know-how and
inventions; (iii) technical specifications and information; (iv)
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production techniques, processes and plans; (v) research and development
projects (including ideas for publication and other intellectual property); (vi)
names, addresses, and records of customers, vendors, distributors, end-users,
and sales representatives; (vii) research, formulation, formulas, and testing;
(viii) pricing policies; (ix) sales/marketing plans; and (x) business and
financial data information and records. XXXXXXXXX, with the intent of binding
himself, his spouse, successors and assigns, agrees that he shall not, at any
time use or disclose any of the Confidential Information. XXXXXXXXX shall not
divulge the Confidential Information to any third party including, but not
limited to, DIODES' competitors. All Confidential Information shall be and
remain the sole and exclusive property of DIODES.
10. Exceptions to Confidentiality
The obligation of confidentiality set forth herein shall not apply
to any information (including the names of customers) which (a) is commonly
known throughout the semiconductor industry; (b) has become generally available
to the public other than by XXXXXXXXX'X breach of this Agreement, (c) is learned
from a third party who is entitled to disclose such information; or (d) is
already known to a party at the time the information is revealed.
11. Injunctive Relief.
XXXXXXXXX acknowledges that any breach or threatened breach of the
provisions of Paragraph 9 of this Agreement would cause irreparable injury which
could not be adequately compensable in monetary damages and that the remedy at
law for such breach will be entirely insufficient and inadequate to protect
DIODES' legitimate interests. Therefore, XXXXXXXXX agrees that DIODES shall, at
any and all times, be fully entitled to seek and obtain immediate temporary,
preliminary and permanent injunctive relief for any breach of any provision of
this Agreement, in addition to any and all other relief, damages, and/or
remedies available at law or in equity.
12. Company Property.
Upon the execution of this Agreement, XXXXXXXXX shall return to
DIODES all company property (including Confidential Information) in whatever
form (tangible or electronic), in his possession, except such property necessary
to perform the consulting services, if requested, pursuant to Paragraph 8 of
this Agreement. Any such Company property will be returned by XXXXXXXXX at the
conclusion of the consulting services.
13. Release.
With the exception of the executory provisions hereof, for good
and valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, XXXXXXXXX, with the intent of binding himself, his spouse, heirs,
executors, administrators, agents, employees, successors and assigns, hereby
forever releases and
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discharges DIODES, its representatives, employees, agents, attorneys, directors,
officers, subsidiaries, affiliates, successors, and assigns from any and all
claims, demands, damages, debts, liabilities, accounts, causes of action, of
every kind and nature whatsoever, whether known or unknown, suspected or
unsuspected, which he may now have or at any time heretofore ever had or will
have at any time in the future regarding XXXXXXXXX'x employment and business
relationship with DIODES, the termination thereof and all prior business
relations between the parties whether based upon contract (express or implied)
negligence, intentional or reckless act, or any other liability, matter, cause,
thing, representation, non-disclosure, act or omission whenever occurring or
existing at any time prior to and including the date of this Agreement. This
release shall include, but not be limited to, each and every claim, demand, or
cause of action which XXXXXXXXX has ever had or now has against DIODES
including, but not limited to, any claim under the Civil Rights Act of 1866,
Title 7 of the Civil Rights Act of 1964, the Civil Rights Act of 1991, 42 U.S.C.
2000(e) et seq., the Americans With Disabilities Act of 1990, 29 U.S.C. 621 et
seq., the Family and Medical Leave Act, the California Fair Employment and
Housing Act, California Government Code Section 12940, et seq., any claim for
wrongful termination, constructive discharge, defamation, libel, slander, state
tort law, or any other statute, rule, regulation or principal of common law.
14. Section 1542 Waiver.
It is the intention of the parties in executing this Agreement and
in giving and accepting the considerations set forth above, that this Agreement
shall be effective as a full and final accord and satisfaction and release of
all claims. In furtherance of this intention, the parties acknowledge that they
are each familiar with and waive the provisions of Section 1542 of the
California Civil Code 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."
15. Unknown Information or Facts.
The parties acknowledge that they are aware that they may
hereafter discover facts in addition to or different from those which they now
know or believe to be true. Nevertheless, by this Agreement, it is the intention
of
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the parties that they fully, finally, and forever settle and release all matters
relating to their prior relationship, claims, disputes, or differences between
them, known or unknown, suspected or unsuspected. In furtherance of such
intention, this Agreement shall be and remain in full force and effect
notwithstanding the discovery of any additional or different facts.
16. Applicable Law; Invalidity
This Agreement shall be governed by and construed in accordance
with the laws of the State of California. If any section, sentence, clause,
word, or combination thereof in this Agreement is judicially or administratively
interpreted or construed as being in violation of any public policy, statutory
or common law, rule, regulation, treaty, or decision of any government or
governmental agency of any jurisdiction, such section, sentence, clause, word or
combination shall be deemed automatically modified in that jurisdiction to
conform to the requirements for validity as so interpreted. If any section,
sentence, clause, word or combination cannot be so modified, it shall be
inoperative and the remainder of this Agreement shall remain binding upon the
parties and the enforceability of this Agreement, as a whole, shall be
unaffected and remain in full force and effect.
17. Amendments.
This Agreement may not be amended unless and until such amendment
is embodied in a written document and signed by all parties hereto.
18. Attorney's Fees.
In the event of any legal action, lawsuit or other proceeding to
enforce any term or provision of this Agreement, or to procure an adjudication
or determination of the rights of XXXXXXXXX or DIODES, the prevailing party
shall be entitled to recover from the other all of the prevailing party's actual
attorney's fees, costs and expenses in connection with such proceeding.
19. Representation by Counsel.
DIODES and XXXXXXXXX acknowledge that in entering into this
Agreement, they have each been represented by counsel of their own choosing and
that the provisions of this Agreement are fair, reasonable, and necessary in
light of all of the facts and circumstances of the relationship between the
parties.
20. Construction.
This Agreement shall be construed as a whole, according to its
fair meaning and not strictly for or against either party hereto and with no
regard whatsoever to the identity or status of the person or persons who drafted
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all or a portion of this Agreement.
21. Binding Effect.
This Agreement shall be binding upon and inure to the benefit of
the parties, their spouses, heirs, successors, and assigns. The parties
acknowledge and agree that, except as expressly set forth in this Agreement, no
representations of any kind or character have been made by the other or by the
other's attorney to induce them to enter into this Agreement.
22. Entire Agreement.
This Agreement represents the entire, complete and final agreement
between the parties hereto.
23. Counterpart Execution.
This Agreement may be signed in counterparts. The execution of one
or more counterparts of this Agreement by all parties hereto shall constitute
full and complete execution of this Agreement.
24. Warranties.
Each person who signs this Agreement represents and warrants that
he or she has the full power and authority to execute this document on behalf of
the party indicated and to bind that party to this Agreement.
25. Additional Documents.
The parties agree to execute such additional documentation,
cooperate with each other, and to perform such further acts as may be reasonably
necessary to effectuate the terms, provisions and intent of this Agreement.
"DIODES" "XXXXXXXXX"
DIODES INCORPORATED
/s/ Xxxxxxx Xxxxx /s/ Xxxxxxx Xxxxxxxxx
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XXXXXXX XXXXX XXXXXXX XXXXXXXXX
Chairman of the Board
