INCURRED IN THAT ACTION.
THE PARTIES AGREE THAT THE EMPLOYMENT AGREEMENT IS
HEREBY TERMINATED AND OF NO FURTHER FORCE OR EFFECT FOLLOWING THE TERMINATION
DATE, EXCEPT WITH RESPECT TO SECTIONS 10 AND 12-19 THEREOF, WHICH SHALL REMAIN
IN FULL FORCE AND EFFECT.
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10.
THE COMPANY INTENDS THAT INCOME PROVIDED TO THE EXECUTIVE PURSUANT
TO THIS AGREEMENT WILL NOT BE SUBJECT TO TAXATION UNDER SECTION 409A OF THE
INTERNAL REVENUE CODE ("SECTION 409A").
THE PROVISIONS OF THIS AGREEMENT SHALL
BE INTERPRETED AND CONSTRUED IN FAVOR OF SATISFYING ANY APPLICABLE REQUIREMENTS
OF SECTION 409A OF THE CODE.
HOWEVER, THE COMPANY DOES NOT GUARANTEE ANY
PARTICULAR TAX EFFECT FOR INCOME PROVIDED TO THE EXECUTIVE PURSUANT TO THIS
AGREEMENT.
IN ANY EVENT, EXCEPT FOR THE COMPANY'S RESPONSIBILITY TO WITHHOLD
APPLICABLE INCOME AND EMPLOYMENT TAXES FROM COMPENSATION PAID OR PROVIDED TO THE
EXECUTIVE, THE COMPANY SHALL NOT BE RESPONSIBLE FOR THE PAYMENT OF ANY
APPLICABLE TAXES INCURRED BY THE EXECUTIVE ON COMPENSATION PAID OR PROVIDED TO
THE EXECUTIVE PURSUANT TO THIS AGREEMENT.
IN THE EVENT THAT ANY COMPENSATION TO
BE PAID OR PROVIDED TO EXECUTIVE PURSUANT TO THIS AGREEMENT MAY BE SUBJECT TO
THE EXCISE TAX DESCRIBED IN SECTION 409A, THE COMPANY MAY DELAY SUCH PAYMENT FOR
THE MINIMUM PERIOD REQUIRED IN ORDER TO AVOID THE IMPOSITION OF SUCH EXCISE TAX.
11.
THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES
WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDES ALL PRIOR NEGOTIATIONS
AND AGREEMENTS BETWEEN THE PARTIES, WHETHER WRITTEN OR ORAL, WITH THE EXCEPTION
OF ANY STOCK OPTION OR OTHER EQUITY AGREEMENTS BETWEEN THE PARTIES AND ANY
AGREEMENTS DESCRIBED IN PARAGRAPH 6.
THIS AGREEMENT MAY NOT BE MODIFIED OR
AMENDED EXCEPT BY A DOCUMENT SIGNED BY AN AUTHORIZED OFFICER OF THE COMPANY AND
EXECUTIVE.
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS
OF LAW.
EXECUTIVE ACKNOWLEDGES THAT HE HAS BEEN ADVISED TO CONSULT WITH AN ATTORNEY
PRIOR TO SIGNING THIS AGREEMENT AND THAT HE IS GIVING UP ANY LEGAL CLAIMS (AS
DESCRIBED ABOVE IN PARAGRAPHS 4 AND 5) HE HAS AGAINST THE PARTIES RELEASED ABOVE
BY SIGNING THIS AGREEMENT.
EXECUTIVE FURTHER UNDERSTANDS THAT HE MAY HAVE UP TO
21 DAYS TO CONSIDER THIS AGREEMENT, THAT HE MAY REVOKE IT AT ANY TIME DURING THE
7 DAYS AFTER HE SIGNS IT, AND THAT IT SHALL NOT BECOME EFFECTIVE UNTIL THAT
7-DAY PERIOD HAS PASSED.
EXECUTIVE ACKNOWLEDGES THAT HE IS SIGNING THIS
AGREEMENT KNOWINGLY, WILLINGLY AND VOLUNTARILY IN EXCHANGE FOR THE COMPENSATION
AND BENEFITS DESCRIBED IN PARAGRAPH 3, WHICH COMPENSATION AND BENEFITS HE WOULD
NOT OTHERWISE BE ENTITLED TO RECEIVE.
EXECUTIVE
Dated: April 16, 2009
/s/ PHILIP C. S. YIN
Philip C.S. Yin
AXT, INC.
Dated: April 17, 2009
By:
/s/ JESSE CHEN
Jesse Chen
Its:
Chairman of the Board
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