EXECUTIVE SEVERANCE BENEFITS AGREEMENT
Exhibit 10.1
EXECUTIVE SEVERANCE BENEFITS AGREEMENT
This EXECUTIVE SEVERANCE BENEFITS AGREEMENT (the Agreement) is entered into this day of , 2006 (the Effective Date), between (Executive) and SYMMETRICOM, INC. (the Company). This Agreement is intended to provide Executive with the compensation and benefits described herein upon the occurrence of specific events.
Certain capitalized terms used in this Agreement are defined below, in Article 5.
The Company and Executive hereby agree as follows:
ARTICLE 1
SCOPE OF AND CONSIDERATION FOR THIS AGREEMENT
1.1 Position and Duties. Executive is currently employed by the Company as . Executive reports directly to the Companys Chief Executive Officer.
1.2 Restrictions. During [his/her] employment by the Company, Executive agrees to the best of [his/her] ability and experience that [he/she] will at all times loyally and conscientiously perform all of the duties and obligations required of and from [him/her] as . During the term of [his/her] employment, Executive further agrees that [he/she] will devote all of [his/her] business time and attention to the business of the Company, the Company will be entitled to all of the benefits and profits arising from or incident to all such work, services and advice, Executive will not render commercial or professional services of any nature to any person or organization, whether or not for compensation, without the prior written consent of the Board or its authorized designee, and Executive will not directly or indirectly engage or participate in any business that is competitive in any manner with the business of the Company. Nothing in this Agreement will prevent Executive from accepting speaking or presentation engagements in exchange for honoraria or from service on boards of charitable organizations or otherwise participating in civic, charitable or fraternal organizations, or from owning no more than one percent (1%) of the outstanding equity securities of a corporation whose stock is listed on a national stock exchange.
1.3 Confidential Information and Invention Assignment Agreement. Executive acknowledges that [he/she] has previously executed and delivered to an officer of the Company the Companys Confidentiality and Invention Assignment Agreement (the Confidentiality Agreement) and that the Confidentiality Agreement remains in full force and effect.
1.4 Confidentiality of Terms. Executive agrees to follow the Companys strict policy that except as mandated by applicable law employees must not disclose, either directly or indirectly, any information, including any of the terms of this Agreement, regarding salary, bonuses, or stock purchase or option allocations to any person, including other employees of the Company; provided, however, that Executive may discuss such terms with members of [his/her] immediate family and any legal, tax or accounting specialists who provide Executive with individual legal, tax or accounting advice, and Executive may discuss such terms with other
employees of the Company on a need to know basis if required to carry out Executives duties, or at the request of the Board or any other superior officer of the Company.
1.5 Consideration. The duties and obligations of the Company to Executive under this Agreement shall be in consideration for Executives past services to the Company, Executives continued employment with the Company, and Executives execution of a release in accordance with Section 3.1.
1.6 Prior Agreement. This Agreement shall supersede any other agreement relating to severance benefits in the event of Executives severance from employment.
ARTICLE 2
SEVERANCE BENEFITS
2.1 Severance Benefits. A Covered Termination of Executives employment prior to or more than twelve (12) months following the effective date of a Change of Control entitles Executive to receive the benefits set forth in this Section 2.1.
(a) Base Salary and Bonus. The Company shall pay to Executive an amount (the Severance Amount) equal to the sum of Base Salary plus the excess, if any, of (i) Executives target annual bonus for the fiscal year during which the Covered Termination occurs, with such bonus determined assuming that all of the performance objectives for such fiscal year have been attained, over (ii) any portion of Executives annual bonus for the fiscal year in which the Covered Termination occurs that has been paid to Executive prior to the date of the Covered Termination, prorated by the Severance Period. Such Severance Amount shall be paid over the Severance Period commencing on the date of termination in substantially equal installments in accordance with the Companys regular payroll practices and shall be subject to all required tax withholding. Notwithstanding the foregoing, in the event that, as of the date of [his/her] Covered Termination, the Executive is determined to be a specified employee within the meaning of Section 409A of the Code, to the extent necessary to avoid the imposition of additional tax liability on the Executive under Section 409A of the Code a portion of the Severance Amount equal to the sum of Base Salary plus target annual bonus for the year in which the Covered Termination occurs pro-rated by six (6) months shall be paid on the six (6) month anniversary of the Covered Termination, with the remaining Severance Amount, if any, payable in equal monthly installments for the remainder of the Severance Period, all such payments to be subject to all required tax withholding.
(b) Health Benefits. Provided that Executive elects continued coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (COBRA), the Company shall pay the premiums of Executives group health insurance coverage and Executives Exec-U-Care or similar secondary health insurance coverage, including coverage for Executives eligible dependents, until the earlier of the expiration of the Severance Period or the applicable COBRA continuation period; provided, however, that the Company shall pay premiums for Executives eligible dependents only for coverage for which those eligible dependents were enrolled immediately prior to the Covered Termination; provided, further, that Executive shall be solely responsible for all matters relating to [his/her] continuation of coverage
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pursuant to COBRA, including, without limitation, the election of such coverage. For the balance of the period that Executive is entitled to coverage under federal COBRA law, if any, Executive shall be entitled to maintain such coverage at Executives own expense.
2.2 Change of Control Severance Benefits. A Covered Termination of Executives employment within twelve (12) months following the effective date of a Change of Control entitles Executive to receive the benefits set forth in this Section 2.2.
(a) Base Salary. The Company shall pay to Executive an amount equal to twelve (12) months Base Salary. Such severance amount shall be paid over a period of twelve (12) months commencing on the date of termination in substantially equal installments in accordance with the Companys regular payroll practices and shall be subject to all required tax withholding. Notwithstanding the foregoing, in the event that, as of the date of [his/her] Covered Termination, the Executive is determined to be a specified employee within the meaning of Section 409A of the Code, to the extent necessary to avoid the imposition of additional tax liability on the Executive under Section 409A of the Code an amount equal to six (6) months Base Salary shall be paid on the six (6) month anniversary of the Covered Termination, with an additional six (6) months Base Salary payable in equal monthly installments during the period beginning on the six (6) month anniversary of the Covered Termination and ending on the twelve month anniversary thereof, all such payments to be subject to all required tax withholding.
(b) Bonus. The Company shall pay to Executive an amount equal to the sum of (x) the excess, if any, of (i) Executives target annual bonus for the fiscal year during which the Covered Termination occurs, with such bonus determined assuming that all of the performance objectives for such fiscal year have been attained, over (ii) any portion of Executives annual bonus for the fiscal year in which the Covered Termination occurs that has been paid to Executive prior to the date of the Covered Termination, prorated by the portion of the fiscal year that the Executive was employed by the Company and (y) Executives target annual bonus for the fiscal year during which the Covered Termination occurs, with such bonus determined assuming that all of the performance objectives for such fiscal year have been attained (i.e., Executive shall be entitled to receive a prorated target bonus for the current year and an additional years target bonus). Such severance amount shall be paid over a period of twelve (12) months commencing on the date of termination in substantially equal installments in accordance with the Companys regular payroll practices and shall be subject to all required tax withholding. Notwithstanding the foregoing, in the event, as of the date of [his/her] Covered Termination that the Executive is determined to be a specified employee within the meaning of Section 409A of the Code, to the extent necessary to avoid the imposition of additional tax liability on the Executive under Section 409A of the Code an amount equal to one-half of the amount payable under this Section 2.2(b) shall be paid on the six (6) month anniversary of the Covered Termination, with the remaining one-half of such amount payable in equal monthly installments during the period beginning on the six (6) month anniversary of the Covered Termination and ending on the twelve (12) month anniversary thereof, all such payments to be subject to all required tax withholding.
(c) Covered Termination Option Acceleration. In the event of a Covered Termination of Executives employment within twelve (12) months following the effective date of a Change of Control, the vesting and/or exercisability of one hundred percent (100%) of
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Executives outstanding Stock Awards shall be automatically accelerated on the date of termination.
(d) Health Benefits. Provided that Executive elects continued coverage under federal COBRA law, the Company shall pay the premiums of Executives group health insurance coverage, including coverage for Executives eligible dependents, until the earlier of the expiration of the twelve (12) month period following the Covered Termination or the applicable COBRA continuation period; provided, however, that the Company shall pay premiums for Executives eligible dependents only for coverage for which those eligible dependents were enrolled immediately prior to the Covered Termination; provided, further, that Executive shall be solely responsible for all matters relating to [his/her] continuation of coverage pursuant to federal COBRA law, including, without limitation, the election of such coverage. For the balance of the period that Executive is entitled to coverage under federal COBRA law, if any, Executive shall be entitled to maintain such coverage at Executives own expense.
(e) No Duplication of Benefits. The payments and benefits provided for in this Section 2.2 shall only be payable in the event of a Covered Termination of Executives employment within twelve (12) months following the effective date of a Change of Control. In the event of a Covered Termination of Executives employment prior to or more than twelve (12) months following a Change Control, then Executive shall receive the payments and benefits described in Section 2.1 and shall not be eligible to receive any of the payments and benefits described in this Section 2.2.
2.3 Other Terminations. If Executives employment is terminated by the Company for Cause, by Executive other than pursuant to a Constructive Termination or as a result of Executives death or disability, the Company shall not have any other or further obligations to Executive under this Agreement (including any financial obligations) except that Executive shall be entitled to receive (a) Executives fully earned but unpaid base salary, through the date of termination at the rate then in effect, and (b) all other amounts or benefits to which Executive is entitled under any compensation, retirement or benefit plan or practice of the Company at the time of termination in accordance with the terms of such plans or practices, including, without limitation, any continuation of benefits required by federal COBRA law or applicable law. The foregoing shall be in addition to, and not in lieu of, any and all other rights and remedies which may be available to the Company under the circumstances, whether at law or in equity.
2.4 Mitigation. Except as otherwise specifically provided herein, Executive shall not be required to mitigate damages or the amount of any payment provided under this Agreement by seeking other employment or otherwise, nor shall the amount of any payment provided for under this Agreement be reduced by any compensation earned by Executive as a result of employment by another employer or by any retirement benefits received by Executive after the date of the Covered Termination.
2.5 Exclusive Remedy. Except as otherwise expressly required by law (e.g., COBRA) or as specifically provided herein, all of Executives rights to salary, severance, benefits, bonuses and other amounts hereunder (if any) accruing after the termination of Executives employment shall cease upon such termination. In the event of a termination of
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Executives employment with the Company, Executives sole remedy shall be to receive the payments and benefits described in this Agreement.
ARTICLE 3
LIMITATIONS AND CONDITIONS ON BENEFITS
3.1 Release Prior to Payment of Benefits. Upon the occurrence of a Covered Termination of Executives employment, and prior to the payment of any benefits under this Agreement on account of such Covered Termination, Executive shall execute and not revoke a release (the Release) in the form attached hereto and incorporated herein as Exhibit A or Exhibit B, as applicable. Such Release shall specifically relate to all of Executives rights and claims in existence at the time of such execution and shall confirm Executives obligations under the Confidentiality Agreement. It is understood that, as specified in the applicable Release, Executive has a certain number of calendar days to consider whether to execute such Release, and Executive may revoke such Release within seven (7) calendar days after execution. In the event Executive does not execute such Release within the applicable period, or if Executive revokes such Release within the subsequent seven (7) day period, no benefits shall be payable under this Agreement.
3.2 Termination of Benefits. Benefits under this Agreement shall terminate immediately if the Executive, at any time, violates any proprietary information or confidentiality obligation to the Company, including, without limitation, the Confidentiality Agreement.
ARTICLE 4
PARACHUTE PAYMENTS
4.1 Parachute Payment Cut-Back. Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any Payment under this Agreement would, when combined with all other Payments Executive receives from the Company or any successor or parent or subsidiary thereof, but for this Article 4, be considered an excess parachute payment under Section 280G of the Code, then such Payments shall be reduced (with cash payments being reduced before Stock Award compensation) as would result in no portion of the payments being considered excess parachute payments under Section 280G of the Code.
4.2 Determinations. All determinations required to be made under this Article 4, including whether and to what extent the Payments shall be reduced and the assumptions to be utilized in arriving at such determination, shall be made by the nationally recognized certified public accounting firm used by the Company immediately prior to the Change of Control or, if such firm declines to serve, such other nationally recognized certified public accounting firm as may be designated by the Executive (the Accounting Firm). The Accounting Firm shall provide detailed supporting calculations both to the Company and the Executive at such time as is requested by the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. For purposes of making the calculations required by this Article 4, the Accounting Firm may make reasonable assumptions and approximations concerning
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applicable taxes and may rely on reasonable, good-faith interpretations concerning the application of Sections 280G and 4999 of the Code.
ARTICLE 5
DEFINITIONS
For purposes of the Agreement, the following terms are defined as follows:
5.1 Base Salary means Executives annual base salary as in effect during the last regularly scheduled payroll period immediately preceding the Covered Termination.
5.2 Board means the Board of Directors of the Company.
5.3 The Company shall have Cause to terminate the Executives employment hereunder upon:
(a) The Executives willful failure to substantially perform the duties set forth in this Agreement (other than any such failure resulting from the Executives Disability) which is not remedied within 30 days after receipt of written notice from the Company specifying such failure;
(b) The Executives willful failure to carry out, or comply with, in any material respect any lawful and reasonable directive of the Board or the appropriate individual to whom Executive reports not inconsistent with the terms of this Agreement[, which is not remedied within 30 days after receipt of written notice from the Company specifying such failure];
(c) The Executives commission at any time of any act or omission that results in, or that may reasonably be expected to result in, a conviction, plea of no contest or imposition of unadjudicated probation for any felony or crime involving moral turpitude;
(d) The Executives unlawful use (including being under the influence) or possession of illegal drugs on the Companys premises or while performing the Executives duties and responsibilities under this Agreement; or
(e) The Executives commission at any time of any act of fraud, embezzlement, misappropriation, material misconduct, or breach of fiduciary duty against the Company (or any predecessor thereto or successor thereof).
5.4 Change of Control means and includes each of the following:
(a) the acquisition, directly or indirectly, by any person or group (as those terms are defined in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended, and the rules thereunder) of beneficial ownership (as determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of securities entitled to vote generally in the election of directors (voting securities) of the Company that represent fifty
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percent (50%) or more of the combined voting power of the Companys then outstanding voting securities, other than:
(i) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(ii) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company;
Notwithstanding the foregoing, the following event shall not constitute an acquisition by any person or group for purposes of this Section: an acquisition of the Companys securities by the Company that causes the Companys voting securities beneficially owned by a person or group to represent fifty percent (50%) or more of the combined voting power of the Companys then outstanding voting securities; provided, however, that if a person or group shall become the beneficial owner of fifty percent (50%) or more of the combined voting power of the Companys then outstanding voting securities by reason of share acquisitions by the Company as described above and shall, after such share acquisitions by the Company, become the beneficial owner of any additional voting securities of the Company, then such acquisition shall constitute a Change of Control; or
(b) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Companys assets or (z) the acquisition of assets or stock of another entity, in each case other than a transaction which results in the Companys voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Companys assets or otherwise succeeds to the business of the Company (the Company or such person, the Successor Entity)) directly or indirectly, at least a majority of the combined voting power of the Successor Entitys outstanding voting securities immediately after the transaction.
5.5 Code means the Internal Revenue Code of 1986, as amended from time to time and the Treasury Regulations thereunder.
5.6 Company means Symmetricom or, following a Change of Control, the surviving entity resulting from such transaction, including the acquirer of substantially all the Companys assets.
5.7 Constructive Termination means that Executive voluntarily terminates employment after any of the following are undertaken without Executives express written consent:
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(a) A material diminution in the nature or scope of the Executives responsibilities, title, duties or authority;
(b) Failure of the Company to make any material payment or provide any material benefit under this Agreement; or
(c) A relocation of Executives place of employment by more than thirty (30) miles from such Executives place of employment on the Effective Date;
provided, however, that notwithstanding the foregoing the Executive may not resign [his/her] employment as a Constructive Termination unless: (A) the Executive provides the Company with at least 30 days prior written notice of [his/her] intent to resign as a Constructive Termination (which notice is provided not later than the 30th day following the occurrence of the event constituting Constructive Termination) and (B) the Company has not remedied the alleged violation(s) within the 30-day period. The termination of Executives employment as a result of Executives death or disability will not be deemed to be a Constructive Termination.
5.8 Covered Termination means an Involuntary Termination Without Cause or a Constructive Termination.
5.9 Excise Tax means the excise tax imposed by Section 4999 of the Code, together with any interest or penalties imposed with respect to such excise tax.
5.10 Involuntary Termination Without Cause means Executives dismissal or discharge other than for Cause. The termination of Executives employment as a result of Executives death or disability will not be deemed to be an Involuntary Termination Without Cause.
5.11 A Payment shall mean any payment or distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of the Executive, whether paid or payable pursuant to this Agreement or otherwise.
5.12 Severance Period shall be determined as follows:
(a) If, as of the date of [his/her] Covered Termination, Executive has been employed by the Company for less than one year, the Severance Period shall be six (6) months;
(b) If, as of the date of [his/her] Covered Termination, Executive has been employed by the Company for one year or more, but less than three years, the Severance Period shall be nine (9) months;
(c) If, as of the date of [his/her] Covered Termination, Executive has been employed by the Company for three years or more, the Severance Period shall be twelve (12) months.
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5.13 Stock Awards means all stock options, restricted stock and such other awards granted pursuant to the Companys stock option and equity incentive award plans or agreements and any shares of stock issued upon exercise thereof.
ARTICLE 6
GENERAL PROVISIONS
6.1 Employment Status. This Agreement does not constitute a contract of employment or impose upon Executive any obligation to remain as an employee, or impose on the Company any obligation (a) to retain Executive as an employee, (b) to change the status of Executive as an at-will employee, or (c) to change the Companys policies regarding termination of employment.
6.2 Notices. Any notices provided hereunder must be in writing, and such notices or any other written communication shall be deemed effective upon the earlier of personal delivery (including personal delivery by facsimile) or the third day after mailing by first class mail to the Company at its primary office location and to Executive at Executives address as listed in the Companys payroll records. Any payments made by the Company to Executive under the terms of this Agreement shall be delivered to Executive either in person or at the address as listed in the Companys payroll records.
6.3 Severability. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement will be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provisions had never been contained herein.
6.4 Waiver. If either party should waive any breach of any provisions of this Agreement, [he/she] or it shall not thereby be deemed to have waived any preceding or succeeding breach of the same or any other provision of this Agreement.
6.5 Arbitration. Any dispute, claim or controversy based on, arising out of or relating to Executives employment or this Agreement shall be settled by final and binding arbitration in Santa Clara County, California, before a single neutral arbitrator in accordance with the National Rules for the Resolution of Employment Disputes (the Rules) of the American Arbitration Association, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction. Arbitration may be compelled pursuant to the California Arbitration Act (Code of Civil Procedure §§ 1280 et seq.). If the parties are unable to agree upon an arbitrator, one shall be appointed by the AAA in accordance with its Rules. Each party shall pay the fees of its own attorneys, the expenses of its witnesses and all other expenses connected with presenting its case; however, Executive and the Company agree that, to the extent permitted by law, the arbitrator may, in [his/her] discretion, award reasonable attorneys fees to the prevailing party. Other costs of the arbitration, including the cost of any record or transcripts of the arbitration, AAAs administrative fees, the fee of the arbitrator, and all other fees and
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costs, shall be borne by the Company. This Section 6.5 is intended to be the exclusive method for resolving any and all claims by the parties against each other for payment of damages under this Agreement or relating to Executives employment; provided, however, that neither this Agreement nor the submission to arbitration shall limit the parties right to seek provisional relief, including, without limitation, injunctive relief, in any court of competent jurisdiction pursuant to California Code of Civil Procedure § 1281.8 or any similar statute of an applicable jurisdiction. Seeking any such relief shall not be deemed to be a waiver of such partys right to compel arbitration. Both Executive and the Company expressly waive their right to a jury trial. Pursuant to California Civil Code Section 1717, each party warrants that it was represented by counsel in the negotiation and execution of this Agreement, including the attorneys fees provision herein.
6.6 Complete Agreement. This Agreement, including Exhibit A and Exhibit B, constitutes the entire agreement between Executive and the Company and is the complete, final, and exclusive embodiment of their agreement with regard to this subject matter, wholly superseding all written and oral agreements with respect to severance benefits to Executive in the event of employment termination. It is entered into without reliance on any promise or representation other than those expressly contained herein. Notwithstanding anything herein to the contrary, this Agreement shall not supersede any indemnification agreement between Executive and the Company.
6.7 Amendment or Termination of Agreement. This Agreement may be changed or terminated only upon the mutual written consent of the Company and Executive. The written consent of the Company to a change or termination of this Agreement must be signed by an executive officer of the Company after such change or termination has been approved by the Board.
6.8 Counterparts. This Agreement may be executed in separate counterparts, any one of which need not contain signatures of more than one party, but all of which taken together will constitute one and the same Agreement.
6.9 Headings. The headings of the Articles and Sections hereof are inserted for convenience only and shall not be deemed to constitute a part hereof nor to affect the meaning thereof.
6.10 Successors and Assigns. This Agreement is intended to bind and inure to the benefit of and be enforceable by Executive, and the Company, and any surviving entity resulting from a Change of Control and upon any other person who is a successor by merger, acquisition, consolidation or otherwise to the business formerly carried on by the Company, and their respective successors, assigns, heirs, executors and administrators, without regard to whether or not such person actively assumes any rights or duties hereunder; provided, however, that Executive may not assign any duties hereunder and may not assign any rights hereunder without the written consent of the Company, which consent shall not be withheld unreasonably.
6.11 Choice of Law. All questions concerning the construction, validity and interpretation of this Agreement will be governed by the law of the State of California, without regard to such states conflict of laws rules.
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6.12 Non-Publication. The parties mutually agree not to disclose publicly the terms of this Agreement except to the extent that disclosure is mandated by applicable law or regulation or to their respective advisors (e.g., attorneys, accountants).
6.13 Construction of Agreement. In the event of a conflict between the text of the Agreement and any summary, description or other information regarding the Agreement, the text of the Agreement shall control.
6.14 Code Section 409A. This Agreement shall be interpreted, construed and administered in a manner that satisfies the requirements of Sections 409A of the Code, and any payment scheduled to be made hereunder that would otherwise violate Section 409A of the Code shall be delayed to the extent necessary for this Agreement and such payment to comply with Section 409A of the Code.
(Signature Page Follows)
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IN WITNESS WHEREOF, the parties have executed this Agreement on the Effective Date written above.
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Exhibit A: Release (Individual Termination)
Exhibit B: Release (Group Termination)
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EXHIBIT A
RELEASE
(INDIVIDUAL TERMINATION)
Certain capitalized terms used in this Release are defined in the Executive Severance Benefits Agreement (the Agreement) which I have executed and of which this Release is a part.
I hereby confirm my obligations under the Companys proprietary information and inventions agreement.
I 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 my release of any claims I may have against the Company.
Except as otherwise set forth in this Release, I hereby release, acquit and forever discharge the Company, its parents and subsidiaries, and their officers, directors, agents, servants, employees, shareholders, successors, assigns and affiliates, of and from any and all claims, liabilities, demands, causes of action, costs, expenses, attorneys fees, damages, indemnities and obligations of every kind and nature, in law, equity, or otherwise, known and unknown, suspected and unsuspected, disclosed and undisclosed (other than any claim for indemnification I may have as a result of any third party action against me based on my employment with the Company), arising out of or in any way related to agreements, events, acts or conduct at any time prior to the date I execute this Release, including, but not limited to: all such claims and demands directly or indirectly arising out of or in any way connected with my employment with the Company or the termination of that employment, including but not limited to, claims of intentional and negligent infliction of emotional distress, any and all tort claims for personal injury, claims or demands related to salary, bonuses, commissions, stock, stock options, or any other ownership interests in the Company, vacation pay, fringe benefits, expense reimbursements, severance pay, or any other form of disputed compensation; claims pursuant to any federal, state or local law or cause of action including, but not limited to, the federal Civil Rights Act of 1964, as amended; the federal Age Discrimination in Employment Act of 1967, as amended (ADEA); the federal Employee Retirement Income Security Act of 1974, as amended; the federal Americans with Disabilities Act of 1990; the California Fair Employment and Housing Act, as amended; tort law; contract law; statutory law; common law; wrongful discharge; discrimination; fraud; defamation; emotional distress; and breach of the implied covenant of good faith and fair dealing; provided, however, that nothing in this paragraph shall be construed in any way to release the Company from its obligation to indemnify me pursuant to the Companys indemnification obligation pursuant to agreement or applicable law.
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I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have under ADEA. I also acknowledge that the consideration given under the Agreement for the waiver and release in the preceding paragraph hereof is in addition to anything of value to which I was already entitled. I further acknowledge that I have been advised by this writing, as required by the ADEA, that: (A) my waiver and release do not apply to any rights or claims that may arise on or after the date I execute this Release; (B) I have the right to consult with an attorney prior to executing this Release; (C) I have twenty-one (21) days to consider this Release (although I may choose to voluntarily execute this Release earlier); (D) I have seven (7) days following the execution of this Release by the parties to revoke the Release; and (E) this Release shall not be effective until the date upon which the revocation period has expired, which shall be the eighth day after this Release is executed by me.
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EXHIBIT B
RELEASE
(GROUP TERMINATION)
Certain capitalized terms used in this Release are defined in the Executive Severance Benefits Agreement (the Agreement) which I have executed and of which this Release is a part.
I hereby confirm my obligations under the Companys proprietary information and inventions agreement.
I 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 my release of any claims I may have against the Company.
Except as otherwise set forth in this Release, I hereby release, acquit and forever discharge the Company, its parents and subsidiaries, and their officers, directors, agents, servants, employees, shareholders, successors, assigns and affiliates, of and from any and all claims, liabilities, demands, causes of action, costs, expenses, attorneys fees, damages, indemnities and obligations of every kind and nature, in law, equity, or otherwise, known and unknown, suspected and unsuspected, disclosed and undisclosed (other than any claim for indemnification I may have as a result of any third party action against me based on my employment with the Company), arising out of or in any way related to agreements, events, acts or conduct at any time prior to the date I execute this Release, including, but not limited to: all such claims and demands directly or indirectly arising out of or in any way connected with my employment with the Company or the termination of that employment, including but not limited to, claims of intentional and negligent infliction of emotional distress, any and all tort claims for personal injury, claims or demands related to salary, bonuses, commissions, stock, stock options, or any other ownership interests in the Company, vacation pay, fringe benefits, expense reimbursements, severance pay, or any other form of disputed compensation; claims pursuant to any federal, state or local law or cause of action including, but not limited to, the federal Civil Rights Act of 1964, as amended; the federal Age Discrimination in Employment Act of 1967, as amended (ADEA); the federal Employee Retirement Income Security Act of 1974, as amended; the federal Americans with Disabilities Act of 1990; the California Fair Employment and Housing Act, as amended; tort law; contract law; statutory law; common law; wrongful discharge; discrimination; fraud; defamation; emotional distress; and breach of the implied covenant of good faith and fair dealing; provided, however, that nothing in this paragraph shall be construed in any way to release the Company from its obligation to indemnify me pursuant to the Companys indemnification obligation pursuant to agreement or applicable law.
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I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have under ADEA. I also acknowledge that the consideration given under the Agreement for the waiver and release in the preceding paragraph hereof is in addition to anything of value to which I was already entitled. I further acknowledge that I have been advised by this writing, as required by the ADEA, that: (A) my waiver and release do not apply to any rights or claims that may arise on or after the date I execute this Release; (B) I have the right to consult with an attorney prior to executing this Release; (C) I have forty-five (45) days to consider this Release (although I may choose to voluntarily execute this Release earlier); (D) I have seven (7) days following the execution of this Release by the parties to revoke the Release; (E) this Release shall not be effective until the date upon which the revocation period has expired, which shall be the eighth day after this Release is executed by me; and (F) I have received with this Release a detailed list of the job titles and ages of all employees who were terminated in this group termination and the ages of all employees of the Company in the same job classification or organizational unit who were not terminated.
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