June 23, 2008 Mr. Thomas J. Smach 4504 Spruce Ridge Drive Manlius, New York 13104 Re: Separation Dear Tom:
Exhibit 10.27
June 23, 2008
Xx. Xxxxxx X. Xxxxx
0000 Xxxxxx Xxxxx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
0000 Xxxxxx Xxxxx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Re: Separation
Dear Xxx:
This letter, upon your signature, will constitute the separation agreement between you, on the
one hand, and Flextronics International USA, Inc., a wholly owned subsidiary of Flextronics
International Ltd (“FIL”), and its and their affiliates, parents, subsidiaries, and related
entities, on the other hand (collectively referred to herein as “Flextronics” or the “Company”)
(the “Letter Agreement”).
1. Executive’s Relationship with the Company. You acknowledge that you have been employed by the
Company as the Chief Financial Officer. Your full-time employment with the Company will be
terminated effective June 30, 2008 (“Employment Termination Date”).
2. Payments. You will be paid your earned salary and accrued personal time off pay through your
Employment Termination Date, subject to standard payroll deductions and withholdings. You are
entitled to this payment regardless of whether or not you sign this Agreement. You will be paid
your bonus for the June 30, 2008 ending quarter in accordance with the U.S. Quarterly Bonus Plan
Guidelines, without any holdback. You will not be eligible for a bonus for September 30, 2008
ending quarter, or thereafter. You will not be eligible for the FY09 Special Bonus.
Provided that you have signed and you do not revoke the Release attached as Exhibit A to
this Letter Agreement eight (8) days after you sign, you will be entitled to severance equivalent
to Seven Hundred Thousand Dollars (US$700,000) (the “Severance Payment”). The Severance Payment
will be paid in lump sum and will be grossed up to cover any statutory taxes in accordance with the
appropriate taxing jurisdictions in which you are liable for tax.
3. Health Coverage. Following your Employment Termination Date, you will continue to be entitled
to health coverage for yourself and your eligible dependents as provided in Section 3 of Amendment
No. 1 to Senior Executive Severance Agreement, dated as of November 21, 1999, by and between you
and the DII Group, Inc. (the “Amendment”), which amends Section 4(d) of
the Senior Executive Severance Agreement, dated as of January 1, 1997 (the “Severance Agreement”).
For clarity, Section 4(d) of the Severance Agreement as amended by Section 3 of the Amendment reads
in full as follows:
“(d) In addition, until the Executive reaches ages 65, the Corporation shall continue to provide
health and medical benefits equivalent to the benefits provided for the Executive prior to
Termination, provided that if the Executive is ineligible (e.g., by operation of law or the terms
of the applicable plan) to continue to participate in any such plan, the Corporation will provide
the Executive with a comparable level of compensation or benefit, provided further that the health
and medical benefits provided in this paragraph shall be reduced to the extent, if any, that the
Executive receives comparable benefits from another employer. The Corporation shall also make
additional payments to the Executive, on an after-tax basis, equal to the Executive’s actual
federal, state and local tax liability resulting from the benefits provided under this Section
4(d).”
You shall notify the Company immediately if you receive benefits from another employer.
4. Deferred Compensation — You are a participant in the Company’s Second Amended and Restated
Senior Executive Deferred Compensation Plan, as amended (“Deferred Compensation”) by and between
you and the Company (the “Deferred Compensation Plan”). The Deferred Compensation was credited to
a brokerage account at that time, and has been invested in various funds based on your election.
Subject to the Company’s confirmation that you are in compliance with paragraph 10 below during the
Standstill Period and further provided that you have signed and you do not revoke the Release
attached as Exhibit A to this Letter Agreement within eight (8) days after you sign, the
Company will accelerate the vesting of your Deferred Compensation, which would otherwise terminate
unvested as of the Employment Termination Date, and the Deferred Compensation Plan is hereby
amended as follows:
a. An amount equal to one hundred percent (100%) of the unvested balance of the Deferred
Compensation on the Employment Termination Date, less One Million US Dollars (US$1,000,000) (the
“Holdback”) will vest on June 30, 2008 and be paid to you in accordance with your Distribution
Election on your 2007 Deferral Agreement Form, or your 2009 Deferral Agreement Form, if applicable,
and the terms of the Deferred Compensation Plan, if (and only if) you have complied with your
obligations under paragraph 10 of this Letter Agreement. The total balance of the Deferred
Compensation as of the Employment Termination Date less the Holdback is referred to as the “Initial
Installment”. As of May 15, 2008, the total balance of your account under the Deferred
Compensation Plan was approximately Four Million Nine Hundred Forty-Two Thousand Two Hundred Eighty
Two US Dollars (US$4,942,282); of that amount approximately One Million Nine Hundred Fifty Seven
Thousand Eight Hundred Eighty US Dollars (US$1,957,880) was unvested. The actual amount
accelerated will vary based on the portfolio performance.
b. The Holdback amount will vest on December 31, 2009 and be paid to you in accordance with
your Distribution Election on your 2007 Deferral Agreement Form, or your 2009 Deferral Agreement
Form, if applicable, and the terms of the Deferred Compensation Plan,
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if (and only if) you have complied with your obligations under paragraph 10 of this Letter
Agreement. Any substantial breach of any such obligation on or before such date will result in the
cancellation and permanent forfeiture of the entire Holdback Amount. Once vested, the Holdback
will be paid to you in accordance with the provisions of the Deferred Compensation Plan.
All payments will be made in accordance with the terms of the Deferred Compensation Plan. The
distribution of the balance of the Deferred Compensation will be made pursuant to the Deferred
Compensation Plan.
The Initial Installment and the Holdback will continue to be subject to the terms and conditions of
the Deferred Compensation Plan as modified by this Agreement. In each instance when the Deferred
Compensation is split into a portion to be transferred to Executive and a portion to be retained by
the Company (i.e., the initial split into the Holdback and the Initial Installment and release of
the Initial Installment as provided in subparagraph (a) above and upon the release of the Holdback
on December 31, 2009 under subparagraph (b) above), the Deferred Compensation will be split into
accounts in a manner which ensures that the sums retained by the Company are invested in a manner
consistent with prevailing arrangements as between you and the Company as at the Effective Date.
Except as otherwise expressly set forth in this paragraphs 4(a) and 4(b), you acknowledge that you
are not entitled to any additional amounts under the Deferred Compensation Plan.
c. You are a participant in The DII Group Deferred Compensation Plan by and between you and
Flextronics Holding USA, Inc. (fka The DII Group, Inc. (the “DII Deferred Compensation Plan”)).
The DII Deferred Compensation was credited to a brokerage account, and has been invested in various
funds based on your election. The distribution of the balance of the DII Deferred Compensation
will be made pursuant to the DII Deferred Compensation Plan.
5. Equity Compensation — You have been granted stock options and share bonus awards pursuant to
the Flextronics International Ltd 1993 Share Option Plan; the Flextronics International Ltd. 2001
Equity Incentive Plan; and the Flextronics International Ltd. 2002 Interim Incentive Plan
(collectively, the “Share Option and Incentive Plans”) as provided in the applicable option grant
forms issued to you pursuant to each of the Share Option and Incentive Plans. The Share Option and
Incentive Plans are incorporated herein by reference. Your options that will be vested as of the
Employment Termination Date are listed on Exhibit B, which is attached hereto and
incorporated herein by reference. You acknowledge and agree that by their terms, the options will
no longer be exercisable after the “Last Date to Exercise” as indicated in Exhibit B.
In addition, Share Bonus Award numbers 028041 and 028049 were granted on April 17, 2006 (the “April
Awards”) and Share Bonus Award numbers 29357 and P29378 were granted on May 1, 2007 (the “May
Awards”).
In consideration of the covenants set forth in paragraph 10, 11, and 12, the Company will
accelerate the vesting of an aggregate of two hundred sixteen thousand six hundred sixty-six
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(216,666) Share Bonus Awards, including thirty-three thousand three hundred thirty-three (33,333)
shares subject to each of the April Awards and seventy-five thousand (75,000) shares subject to
each of the May Awards. The Share Bonus Awards will accelerate on June 30, 2008. You acknowledge
and agree that upon release of the Share Bonus Awards as provided in this paragraph, you will be
responsible for payroll taxes, which will be due and payable to Flextronics by you within three (3)
business days of the vesting occurrence.
You have been granted option number 017226 to purchase three hundred thousand shares (300,000)
shares, of which two hundred fifty thousand (250,000) shares are exercisable and option number
01725 to purchase four hundred twenty thousand (420,000) shares, pursuant to option grant forms
issued under the Share Option and Incentive Plans (collectively, the “July Options”).
In consideration for your agreement as set forth herein, the Company hereby agrees to waive the
requirement that stock options must be exercised within ninety (90) days of the date of Termination
or cessation of Service (as defined in the Share Option and Incentive Plans) with regard to the
July Options, so that the July Options will expire on December 31, 2008. Notwithstanding the
foregoing, in no event shall this modification extend the exercisability of the Options later than
such date as would cause such options to be subject to Section 409A of the Internal Revenue Code of
1986, as amended.
You acknowledge that you are not entitled to any additional grants of stock options or share bonus
awards in your capacity as an employee of Flextronics.
6. Other Matters.
a. You have returned by June 30, 2008 to Flextronics all Flextronics property, including
documents, keys, hardware, software, credit cards, vehicles and any other property of Flextronics
and any written or electronic information you have about Flextronics practices, procedures, trade
secrets, customer lists, or product marketing. You may retain your computer after the Company’s IT
personnel have removed all Flextronics’s confidential information and any software programs that
Flextronics is not legally authorized to transfer to you. You may retain your mobile phone and
telephone number and Flextronics will transfer the mobile phone account to you personally effective
June 30, 2008.
b. You will pay all amounts due and payable under any loans that the Company may have made to
you on or before June 30, 2008.
7. General Release of Employment-Related Matters — In consideration for the covenants and release
set forth in this Letter Agreement, you on your own behalf and on the behalf your heirs, executors,
administrators, successors, attorneys, and assigns shall release and discharge each of FIL,
Flextronics or in these capacities only, any of its or their respective affiliates (collectively
referred to as the “Flextronics Group”) and in these capacities only, any predecessor divisions or
entities, their respective past and present officers, directors, shareholders, partners, attorneys,
agents, employees, and their respective insurance companies, successors and assigns (hereinafter
“Flextronics Releasees”), from any and all claims, of any and every kind, nature and character,
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known and unknown, suspected and unsuspected, including any and all claims for attorneys’ fees and
costs which you either may now have, or have ever had, against the Flextronics Releasees, which
arise in whole or in part from your employment relationship with Flextronics, the termination of
that relationship, any other employment-related dealings of any kind between you and the
Flextronics Group and/or any past or present officer, director, agent or employees of the
Flextronics Group and/or with respect to any other obligation (contractual or otherwise), event,
matter, claim, damages or injury arising prior to the execution of this Letter Agreement by all
parties, other than claims for indemnification and defense and for the obligations of the
Flextronics Group owed to you under this Agreement.
This release covers, but is not limited to: any and all claims, rights, demands, and causes of
action for wrongful termination, intentional or negligent infliction of emotional distress,
defamation, breach of any employment contract or employment agreement, breach of the covenant of
good faith and fair dealing, claim for reinstatement or rehire, claims for reimbursement of taxes,
additions to tax or interest and penalties on tax, failure to pay wages, commissions, benefits,
paid time off (PTO), severance or other compensation of any sort, discrimination, right to paid or
unpaid leave, and/or violation of any and all statutes, rules, regulations or ordinances whether
state, federal or local. Nothing in this release shall affect your right, if any, to obtain
unemployment benefits or any obligation set forth in this Letter Agreement. This release does not
extend to any of the obligations of the Flextronics Group arising out of this Letter Agreement.
This release does not extend to any act or omission of the Flextronics Group taken after the
Effective Date with respect to any employee benefit plans of the Flextronics Group, including but
not limited to, non-qualified deferred compensation plans.
These claims include, but are not limited to, claims arising under federal, state and local
statutory or common law, such as the Age Discrimination in Employment Act, Title VII of the Civil
Rights Act of 1964 as amended, the California Fair Employment and Housing Act and any other state
employment discrimination statutes, and the laws of contract and tort.
This Agreement is intended to satisfy the requirements of the Older Workers’ Benefit Protection
Act. You hereby acknowledge that you are waiving and releasing any rights you have or may have
under the Age Discrimination in Employment Act of 1967 (“ADEA”) and that this waiver and release is
knowing and voluntary. You and Flextronics 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. In
addition, this Agreement does not prohibit you from challenging the validity of this Agreement’s
waiver and release of claims under ADEA. You acknowledge that a portion of the consideration given
for this waiver is in addition to anything of value to which you were already entitled for salary
and PTO up to the Employment Termination Date. You further acknowledge by this writing that you
have been advised that (a) you should consult with an attorney prior to executing this
Agreement; (b) you have at least twenty-one (21) days within which to consider this Agreement; (c)
you have 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.
You acknowledge that, except as expressly provided in this Agreement, you will receive no other
salary, wages, advances, insurances, bonuses, commissions, stock, stock options, equity
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participation, vacation pay, PTO, benefits, or other monies or benefits from the Company at any
time, and you agree that you are entitled to no other salary, wages, advances, benefits,
insurances, bonuses, commissions, stock, stock options, equity participation, vacation pay, PTO or
other monies of any nature from the Company after the Separation Date. Your rights and obligations
under any applicable Company 401(k) plan shall be in accordance with the written terms of that plan
and applicable law.
You also waive and release and promise never to assert any such claims, even if you do not believe
that you have such claims. You therefore waive your rights under section 1542 of the Civil Code of
California, which states:
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 TO HIM OR HER MUST HAVE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
You agree that, except as provided in paragraph 2 above, you shall bear full responsibility for any
tax liability owed by you that may arise with respect to the payment of amounts payable under this
Agreement and any actions contemplated under this Agreement, and you agree that you shall indemnify
and hold the Company harmless from any such tax liability, including, but not limited to, any
taxes, penalties and/or interest that are assessed by any tax authority in connection with such
payment or actions. Notwithstanding the foregoing, the Company shall indemnify and hold you
harmless from any tax liability, including, but not limited to, any taxes penalties and/or interest
that are assessed by any tax authority and any costs associated with an audit or legal challenge in
connection with any reimbursement payment made to you by the Company during or within one month
following your employment.
You acknowledge and agree that you have not relied on any express or implied representation of the
Company or any of its lawyers, agents or representatives as to the tax consequences of any payment
provided pursuant to this Agreement.
Notwithstanding anything herein, if (i) on the date of Executive’s separation from service, within
the meaning of Code Section 409A, Employee is a specified employee within the meaning of such Code
Section and Treasury Regulations thereunder, and (ii) as a result of such termination, Employee
would receive any payment that, absent the application of this paragraph, would be subject to
interest and additional tax imposed pursuant to Code Section 409A(a) as a result of the application
of Code Section 409A(2)(B)(i) of the Code, then, any portion of such payment that would otherwise
be subject to such interest and additional tax shall be deferred and shall not be paid until the
date that is the earlier of (1) six (6) months after Employee’s separation from service, or (2)
your death or (3) such other date as will cause such payment not to be subject to such interest and
additional tax. It is the intention of the parties that payments or benefits payable under this
Agreement not be subject to the additional tax imposed pursuant to Section 409A of the Code.
6
Nothing in this Agreement, including the preceding provisions of this Section 7, shall be construed
as superseding, altering or reducing any contractual rights to severance benefits, health benefits,
deferred compensation, or other payments that (in each case) are specifically provided to Executive
in any other agreement between Executive and the Company, its affiliates or the DII Group,
including any such rights specifically provided to Executive in the Senior Executive Severance
Agreement, dated as of November 21, 1999, by and between Executive and the DII Group, Inc., as
amended or in the Deferred Compensation Plan or the DII Deferred Compensation Plan, except to the
extent that the provisions of this Agreement expressly address any such right.
8. No Legal Action — You represent that you have not filed a legal action with any local,
state or federal agency or court relating in any manner to any claim released herein, and that if
any such governmental agency or court assumes jurisdiction of any complaint or charge against
Flextronics Releasees on behalf of yourself, relative to any claim released herein, you will
request such agency or court to withdraw from the matter.
9. Confidentiality — You acknowledge and agree that you will remain bound by the
confidentiality obligations set forth below (the “Confidentiality Agreement”).
You agree that any original works of authorship, products, software, and/or applications that you
created or developed for the Flextronics Group while in the employ of FIL, Flextronics, or any
other subsidiary of FIL, is the sole property of the Flextronics Group. You further acknowledge
and agree that you shall not, without the prior written consent of the Chief Executive Officer of
FIL, disclose or use for any purpose (except in furtherance of the business of the Flextronics
Group) any Confidential Information of the Flextronics Group.
Confidential Information shall mean any and all proprietary or confidential information of the
Flextronics Group or any of its vendors or customers, whether or not developed by you, including
without limitation the following:
(i) Any and all technical information, including, without limitation, product data and
specifications, know-how, formulae, source code, or other software information, test
results, processes, inventions, research projects or product development.
(ii) Any and all business information, including, without limitation, cost information,
profits, profit margins, sales information, costs, overhead, accounting and unpublished
financial information, business plans, markets, marketing methods, vendor or customer lists,
including without limitation, a vendor’s or customer’s specific needs, advertising and
operating strategies.
(iii) Any and all employee information, including, without limitation, salaries, and
specific strengths, weaknesses and skills of employees of the Flextronics Group.
10. Non Solicitation and Non Hire.
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a. Non-Solicitation and Non Hire of Employees. You recognize the highly competitive nature of
the business of the Company and acknowledge that you have been exposed to confidential information
regarding its employees. You understand and agree that the relationship between Flextronics and
each of its employees constitutes a valuable asset of Flextronics, that information related to
employees’ skills and compensation is kept confidential, and may not be disclosed or converted for
your use or any third party for any reason whatsoever. You will not, without the prior written
consent of the Chief Executive Officer of the Company, either directly or indirectly
recruit, hire, solicit, assist others in recruiting or hiring, attempt to recruit or hire, or refer
to others concerning employment, any person who is an employee of the Flextronics Group, or induce
or attempt to induce any such employee to terminate his employment with the Flextronics Group
through December 31, 2009 (the “Standstill Period”).
b. Non-Solicitation of Customers and Vendors. You understand and agree that the relationship
between Flextronics and each of its customers or vendors constitutes a valuable asset of
Flextronics, that information related to customers is kept confidential and may not be disclosed or
converted for your use or any third party for any reason whatsoever. Accordingly, you shall not,
without the prior written consent of the Chief Executive officer of the Company and throughout the
Standstill Period, directly or indirectly, on behalf of yourself or any third party, solicit any
customer or vendor with whom you have had direct and material contact during the course of your
employment.
c. Scope of Non-Solicitation and Non-Hire Agreements. You acknowledge that the Standstill
period and the scope and period of restrictions are fair and reasonable and are reasonably required
for the protection of Flextronics.
d. It is the desire of the parties that the provisions of this paragraph 10 shall be enforced
to the fullest extent permissible under applicable law. If any particular provision or portion of
this paragraph 10 shall be adjudicated to be invalid or unenforceable, this Letter Agreement shall
be deemed amended to revise those provisions or portions to the minimum extent necessary to render
them enforceable. Such amendment shall apply only with respect to the operation of this paragraph
10 in the particular jurisdiction in which such adjudication was made.
e. You acknowledge that any breach of the covenants of this paragraph 10 will result in
immediate and irreparable injury to Flextronics and, accordingly, consent to the application of
injunctive relief and Flextronics may be entitled to the forfeiture of the Holdback as described in
paragraph 4 above. Flextronics will not be entitled to legal remedies, including but not limited
to monetary damages, other than forfeiture of the Holdback, in the event of any breach of the
covenants of this paragraph 10.
11. Disclosures — You will not, unless required or otherwise permitted by law, disclose to
others any information regarding the following:
(a) Any information regarding Flextronics’ practices, procedures, trade secrets,
customer lists, or product marketing.
8
(b) The terms of this Letter Agreement, the benefit being paid under it or the fact of
its payment, except that you may disclose this information to your spouse or domestic
partner, attorney, accountant or other professional advisor to whom you must make the
disclosure in order for them to render professional services to you. You will instruct
them, however, to maintain the confidentiality of this information just as you must.
12. Slander — For a period of three years following your Employment Termination Date, you
agree to refrain from any disparagement, criticism, defamation, slander of the Company, and/or
tortious interference with the contracts and relationships of Company, unless such statements are
made truthfully in response to a subpoena or other legal process. In the event that you breach
this provision, the Company will be entitled to recover the benefit paid under this Letter
Agreement and to obtain all other relief provided by law or equity.
For a period of three years following your Employment Termination Date, Flextronics agrees that its
executive officers will refrain from disparagement, criticism, defamation, or slander of you,
unless such statements are made truthfully in response to a subpoena or other legal process. In
response to inquiries from prospective employers about you, Flextronics will provide no information
other than your dates of employment and positions held with Flextronics.
13. Review Period — As explained above in paragraph 7, you have up to twenty-one (21) days
from the date of this letter, to accept the terms of this Letter Agreement, although you may accept
it at any time within those twenty-one (21) days. You are advised to consult an attorney about
this Letter Agreement.
To accept this Letter Agreement, please date and sign this letter, and return it to me. (An
extra copy for your files is attached.) Once you accept this Letter Agreement, you will still have
an additional seven days in which to revoke your acceptance. To revoke, you must send me a written
statement of revocation. You also agree to execute on or after the Employment Termination Date,
the release attached hereto as Exhibit A.
Sincerely,
Flextronics International USA, Inc.
/s/ Xxxxxxx X. XxXxxxxx
Xxxxxxx X. XxXxxxxx
Chief Executive Officer
Xxxxxxx X. XxXxxxxx
Chief Executive Officer
Attachments: Ex. A — Release; Duplicate Letter; Ex. B — Closing Statement as of June 30, 2008
9
By signing this letter, I acknowledge that I have had the opportunity to review this Letter
Agreement carefully with an attorney of my choice, that I understand the terms of the agreement,
and that I voluntarily agree to them.
| Dated: 6/23/08 | /s/ Xxxxxx X. Xxxxx | |||
| Xxxxxx X. Xxxxx | ||||
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Exhibit A
Release
Release
I, Xxxxxx X. Xxxxx, hereby waive and release and promise never to assert any claims against
Flextronics International USA, Inc., even if I do not believe that I have such claims, other than
claims for indemnification and defense and for the obligations of the Flextronics Group owed to me
under this Agreement. I therefore waive my rights under section 1542 of the Civil Code of
California, which states:
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 TO HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR.
This Agreement is intended to satisfy the requirements of the Older Workers’ Benefit Protection
Act. You hereby acknowledge that you are waiving and releasing any rights you have or may have
under the Age Discrimination in Employment Act of 1967 (“ADEA”) and that this waiver and release is
knowing and voluntary. You and Flextronics 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. In
addition, this Agreement does not prohibit you from challenging the validity of this Agreement’s
waiver and release of claims under ADEA. You acknowledge that a portion of the consideration given
for this waiver is in addition to anything of value to which you were already entitled for salary
and PTO up to the Employment Termination Date. You further acknowledge by this writing that you
have been advised that (a) you should consult with an attorney prior to executing this
Agreement; (b) you have at least twenty-one (21) days within which to consider this Agreement; (c)
you have 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.
Dated: 6/23/08
| /s/ Xxxxxx X. Xxxxx | ||||
| Xxxxxx X. Xxxxx | ||||
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Xxx
Xxxxx
Final Statement — Exhibit B
Final Statement — Exhibit B
Exercisable Options
| Grant | Plan/ | Shares | Shares | Shares | Vesting | Total | Last Date | |||||||||||||||||||||||||||||
| Number | Date | Type | Price | Granted | Exercised | Exercisable | Stop Date | Price | To Exercise | |||||||||||||||||||||||||||
026806 |
5/13/2005 | 2001/NQ | $ | 12.3700 | 500,000 | 0 | 500,000 | 7/1/2008 | $ | 6,185,000.00 | 5/13/2015 | |||||||||||||||||||||||||
012822 |
9/21/2001 | 1993/NQ | $ | 13.9800 | 100,000 | 0 | 100,000 | 7/1/2008 | $ | 1,398,000.00 | 9/21/2011 | |||||||||||||||||||||||||
028040 |
4/17/2006 | 2001/NQ | $ | 11.2300 | 400,000 | 0 | 216,667 | 7/1/2008 | $ | 2,433,170.41 | 4/17/2016 | |||||||||||||||||||||||||
023595 |
8/23/2004 | 2001/NQ | $ | 11.5300 | 500,000 | 0 | 479,167 | 7/1/2008 | $ | 5,524,795.51 | 8/23/2014 | |||||||||||||||||||||||||
017260 |
7/1/2002 | 2002/NQ | $ | 7.9000 | 300,000 | 50,000 | 250,000 | 7/1/2008 | $ | 1,975,000.00 | 12/31/2008 | |||||||||||||||||||||||||
017259 |
7/1/2002 | 2002/NQ | $ | 7.9000 | 420,000 | 0 | 420,000 | 7/1/2008 | $ | 3,318,000.00 | 12/31/2008 | |||||||||||||||||||||||||
| TOTALS | 2,220,000 | 50,000 | 1,965,834 | $ | 20,833,965.92 | |||||||||||||||||||||||||||||||
Releasable Restricted Stock Awards
| Grant | Plan/ | Shares | Shares | Shares | Shares | |||||||||||||||||||||||
| Number | Date | Type | Price | Granted | Released | Accelerated | Cancelled | |||||||||||||||||||||
028041 |
4/17/2006 | 2002/RSA | $ | 0.0000 | 100,000 | 66,667 | 33,333 | 0 | ||||||||||||||||||||
028049 |
4/17/2006 | 2002/RSA | $ | 0.0000 | 100,000 | 66,667 | 33,333 | 0 | ||||||||||||||||||||
29357 |
5/1/2007 | 2001/RSA | $ | 0.0000 | 150,000 | 37,500 | 75,000 | 37,500 | ||||||||||||||||||||
P29378 |
5/1/2007 | 2001/RSA | $ | 0.0000 | 150,000 | 37,500 | 75,000 | 37,500 | ||||||||||||||||||||
| TOTALS | 500,000 | 208,334 | 216,666 | 75,000 | ||||||||||||||||||||||||
