RELEASE AND WAIVER OF CLAIMS

EX-10.41 2 entr20141231ex1041phenryre.htm EXHIBIT 10.41 ENTR 2014.12.31 EX10.41 P Henry Release & Waiver

EXHIBIT 10.41

RELEASE AND WAIVER OF CLAIMS
In consideration of the payments and other benefits set forth in Section 5.3 of the Amended and Restated Employment Agreement dated December 7, 2009, as amended effective June 20, 2014 (the “Employment Agreement”), to which this form is attached and due to the fact that I have been terminated without Cause as defined in the Employment Agreement, I, PATRICK HENRY, hereby furnish ENTROPIC COMMUNICATIONS, INC. (the “Company”), with the following release and waiver (“Release and Waiver”).
In exchange for the consideration provided to me by the Employment Agreement that I am not otherwise entitled to receive, I hereby generally and completely release the Company and its directors, officers, Executives, shareholders, partners, agents, attorneys, predecessors, successors, parent and subsidiary entities, insurers, Affiliates, and assigns from any and all claims, liabilities and obligations, both known and unknown, that arise out of or are in any way related to events, acts, conduct, or omissions occurring prior to my signing this Release and Waiver. This general release includes, but is not limited to: (1) all claims arising out of or in any way related to my employment with the Company or the termination of that employment; (2) all claims related to my compensation or benefits from the Company, including, but not limited to, salary, bonuses, commissions, vacation pay, expense reimbursements, severance pay, fringe benefits, stock, stock options, or any other ownership interests in the Company; (3) all claims for breach of contract, wrongful termination, and breach of the implied covenant of good faith and fair dealing; (4) all tort claims, including, but not limited to, claims for fraud, defamation, emotional distress, and discharge in violation of public policy; and (5) all federal, state, and local statutory claims, including, but not limited to, claims for discrimination, harassment, retaliation, attorneys’ fees, or other claims arising under the federal Civil Rights Act of 1964 (as amended), the federal Americans with Disabilities Act of 1990, the federal Age Discrimination in Employment Act of 1967 (as amended) (“ADEA”), and the California Fair Employment and Housing Act (as amended); provided, however, that the following specific claims (the “Retained Claims”) are not subject to the foregoing release: (i) my right to indemnification to the fullest extent provided for in the California Labor Code or other contractual right to indemnification; (ii) my right to any vested benefits available to me under any employee benefit plan; (iii) my rights as a stockholder in the Company; (iv) those rights under the Employment Agreement that survive the termination of my employment, including, without limitation, those rights set forth in Sections 5.3, 5.4, 5.5, 5.9, 5.11, 6, and 8; and (v) the obligations incurred by the parties under this Release and Waiver Agreement.
I also acknowledge that I have read and understand Section 1542 of the California Civil Code which reads as follows: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” I hereby expressly waive and relinquish all rights and benefits under that section and any law of any jurisdiction of similar effect with respect to any claims I may have against the Company.
I acknowledge that, among other rights, I am waiving and releasing any rights I may have under ADEA, that this Release and Waiver is knowing and voluntary, and that the consideration given for this Release and Waiver is in addition to anything of value to which I was already entitled




as an executive of the Company. I further acknowledge that I have been advised, as required by the Older Workers Benefit Protection Act, that: (a) the release and waiver granted herein does not relate to claims under the ADEA which may arise after this Release and Waiver is executed; (b) I should consult with an attorney prior to executing this Release and Waiver; (c) I have twenty-one (21) days from the date of termination of my employment with the Company in which to consider this Release and Waiver, which period is extended pursuant to Section 5.6 of the Employment Agreement to forty-five (45) days from the effective date of the termination of my employment (although I may choose voluntarily to execute this Release and Waiver earlier); (d) I have seven (7) days following the execution of this Release and Waiver to revoke my consent to this Release and Waiver; and (e) this Release and Waiver shall not be effective until the seven (7) day revocation period has expired unexercised and no benefits will be paid unless and until this Release and Waiver has become effective.
The spreadsheet attached hereto as Exhibit A contains a complete listing of all Equity Arrangements that are eligible for acceleration pursuant to Section 5.3(d) of the Employment Agreement. In the event of a qualifying Change of Control of the Company pursuant to Sections 5.5 and 5.4(d) of the Employment Agreement, the unvested balance of the Equity Arrangements shown on Exhibit A which are eligible for acceleration will be accelerated in accordance with the Employment Agreement.
The spreadsheet attached hereto as Exhibit B contains the calculation applicable to the determination of my eligibility for a Pro-Rata Bonus payment pursuant to Section 5.3(b) of the Employment Agreement.
Notwithstanding Section 4.4 of the Employment Agreement, the Company and I agree that I may retain the iPhone, iPad, and iMac computer (and related accessories) issued to me by the Company, provided that I must first i) deliver such items to the Company for purging and cleaning of all software licensed by the Company and all Company-related information and ii) pay the Company for the book value of each items the sum of $550.
This Release and Waiver constitutes the complete, final and exclusive embodiment of the entire agreement between the Company and me with regard to the subject matter hereof. I am not relying on any promise or representation by the Company that is not expressly stated herein. This Release and Waiver may only be modified by a writing signed by both me and a duly authorized member of the Board of Directors of the Company.
Date:
11/10/2014
 
    /S/ Patrick C Henry
 
 
 
PATRICK HENRY
 
 
 
 
 
 
 
ENTROPIC COMMUNICATIONS, INC.
 
 
 
 
Date:
November 11, 2014
 
    /S/ Suzanne C. Zoumaras
 
 
 
BY: ___Suzanne C. Zoumaras_____________________




EXHIBIT A
Patrick Henry Calculation of Equity Acceleration

Name: Patrick Henry
 
 
 
 
 
 
 
 
 
 
 
Termination Date: Nov 10, 2014
 
 
 
 
 
 
 
 
 
 
ID #: 244331
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Exercisable Options
 
 
 
 
 
 
 
 
Calculations
 
 
Number
 
Grant Date
Plan/ Type
Price ($)
Shares Granted
Shares Exercised
Shares Exercisable
Vesting Stop Date
Total Price ($)
Vesting End Date
Unvested Shares Subject to Acceleration
Acceleration (50% Shares Unvested)
 
00000089
 
December 21, 2005
2001/ISO
0.3250
307,692
307,692
0
November 10, 2014
0.00
 
0
0
 
NQ0505
 
December 21, 2005
2001/NQ
0.3250
107,693
107,693
0
November 10, 2014
0.00
 
0
0
 
NQ2047
 
April 11, 2014
2007/NQ
3.8600
240,000
0
0
November 10, 2014
0.00
 
240,000
120,000
 
NQ2019
 
April 12, 2013
2007/NQ
4.1100
240,000
0
90,000
November 10, 2014
369,900.00
November 10, 2015
150,000
75,000
 
NQ1987
 
April 13, 2012
2007/NQ
5.1000
240,000
0
150,000
November 10, 2014
765,000.00
November 10, 2015
90,000
45,000
 
NQ1677
 
April 13, 2011
2007/NQ
7.4500
315,000
0
275,625
November 10, 2014
2,053,406.25
November 10, 2015
39,375
19,688
 
00000090
 
October 18, 2006
2001/ISO
0.3250
100,000
100,000
0
November 10, 2014
0.00
 
0
0
 
00000091
 
October 18, 2006
2001/ISO
0.3250
100,000
100,000
0
November 10, 2014
0.00
 
0
0
 
00000092
 
May 17, 2007
2001/ISO
1.4950
66,889
66,889
0
November 10, 2014
0.00
 
0
0
 
NQ0501
 
May 17, 2007
2001/NQ
1.4950
240,802
0
240,802
November 10, 2014
359,998.99
November 10, 2015
0
0
 
RF0189
 
January 30, 2004
RFM/NQ
0.4284
4,672
4,672
0
November 10, 2014
0.00
 
0
0
 
00000088
 
September 12, 2003
2001/ISO
0.3250
1,122,116
1,122,116
0
November 10, 2014
0.00
 
0
0
 
NQ0504
 
September 12, 2003
2001/NQ
0.3250
62,499
62,499
0
November 10, 2014
0.00
 
0
0
 
NQ1130
 
May 21, 2009
2007/NQ
2.4100
250,000
0
250,000
November 10, 2014
602,500.00
November 10, 2015
0
0
 
XQ0528
 
May 15, 2009
2007/NQ
1.9900
266,667
0
266,667
November 10, 2014
530,667.33
November 10, 2015
0
0
 
NQ1375
 
April 8, 2010
2007/NQ
4.8600
400,000
0
400,000
November 10, 2014
1,944,000.00
November 10, 2015
0
0
 
 
 
 
TOTALS
 
4,064,030
1,871,561
1,673,094
 
6,625,472.57
 
519,375
259,687.50
 
 
 
 
 
 
 
 
 
 
 
TOTAL
 
259,687.00
Rounded down to nearest full share
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Releasable Restricted Stock Awards
 
 
 
 
 
 
 
 
 
Number
 
Grant Date
Plan/ Type
Price ($)
Shares Granted
Shares Released
Shares Releasable
Shares That Are Subject to Cancellation
 
 
 
 
 
RS0246
 
April 13, 2012
2007/RSU
0
64,000
32,000
0
32,000
 
 
32,000
16,000
 
RS0110
 
April 13, 2011
2007/RSU
0
54,000
40,500
0
13,500
 
 
13,500
6,750
 
RS1909
 
April 11, 2014
2007/RSU
0
80,000
0
0
80,000
 
 
80,000
40,000
 
RS1135
 
April 12, 2013
2007/RSU
0
80,000
20,000
0
60,000
 
 
60,000
30,000
 
PS1938
 
May 14, 2014
2007/PSU
0
479,328
0
0
479,328
 
 
0
0
not subject to acceleration
TOTALS
 
 
 
 
757,328
92,500
 
664,828
 
TOTAL
185,500
92,750.00
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
# Options & Shares Not Accelerated
 
352,438
 




EXHIBIT B
Calculation of Pro-Rata
2014 Bonus



 
 
 
 
 
 
 
 
Target Annual Bonus
100% of Base Salary
 
 
 
 
 
 
Base Salary
$500,000
 
 
 
 
 
 
Target Annual Bonus
$500,000
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Metrics
Weighting
Threshold
Cap
2014 Annual Target (through Q3)
2014 Actual (through Q3)
Calculation
Exceeded Threshold
Annual Revenue
50%
80% of Target
100% of Target
187,000,000
149,033,233
79.7%
No
Operating Profit/Loss
50%
80% of Target
100% of Target
-28,000,000
-35,611,798
72.8%
No
 
 
 
 
 
 
 
 
Termination Date
November 10, 2014
 
 
 
 
 
 
Service Period
86.0%
314 day/365 days
 
 
 
 
 
 
 
 
 
 
 
 
 
Pro-Rata Bonus Payment Due:
$0