RELEASE AND WAIVER OF CLAIMS
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, XXXXXXX XXXXX, 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 $550.
This Release and Waiver constitutes the complete, final and exclusive embodiment of the entire agreement between the Company and me with regard to the subject matter hereof. I am not relying on any promise or representation by the Company that is not expressly stated herein. This Release and Waiver may only be modified by a writing signed by both me and a duly authorized member of the Board of Directors of the Company.
Date: | 11/10/2014 | /S/ Xxxxxxx X Xxxxx | |
XXXXXXX XXXXX | |||
ENTROPIC COMMUNICATIONS, INC. | |||
Date: | November 11, 2014 | /S/ Xxxxxxx X. Xxxxxxxx | |
BY: ___Xxxxxxx X. Xxxxxxxx_____________________ | |||
EXHIBIT A
Xxxxxxx Xxxxx Calculation of Equity Acceleration
Name: Xxxxxxx Xxxxx | |||||||||||||
Termination Date: Nov 10, 2014 | |||||||||||||
ID #: 244331 | |||||||||||||
Exercisable Options | Calculations | ||||||||||||
Number | Grant Date | Plan/ Type | Price ($) | 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 | ||||||
