SEVERANCE AND CHANGE OF CONTROL AGREEMENT
Exhibit 10.41
SEVERANCE AND CHANGE OF CONTROL AGREEMENT (“Agreement”), dated as of December 10, 2010 (the
“Effective Date”) by and between SMART Modular Technologies (WWH), Inc. (the “Company”), and Xxxxx
Xxxxxxxxx (“Executive”).
NOW THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements of
the parties set forth in this Agreement, and of other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally
bound, agree as follows:
ARTICLE 1
Definitions
Definitions
Section 1.01 Definitions. For purposes of this Agreement, the following definitions shall
have the following meanings:
(i) “Cause” shall mean the occurrence of one or more of the following: (A) an act of
material fraud or material dishonesty made by Executive against the Company in connection
with Executive’s responsibilities which the Company reasonably believes will damage its
business; (B) Executive’s conviction of, or plea of nolo contendere to, a felony (excluding
traffic offenses) which the Board of Directors reasonably believes had or will have a
material detrimental effect on the reputation or business of the Company or its affiliates;
(C) Executive’s intentional or gross misconduct; (D) Executive’s intentional improper
disclosure of confidential information; (E) Executive’s continued material violations of
material Company policies or material provisions of Executive’s agreements with the
Company, after written notice from the Company or one of its affiliates, and a reasonable
opportunity of not less than 30 days to cure (to the extent capable of cure) such
violations; (F) Executive’s failure to cooperate with the Company in any investigation or
formal proceeding; or (G) Executive’s continued material violations of Executive’s duties,
or repeated material failures or material inabilities to perform any reasonably assigned
duties, after written notice from the Company or one of its affiliates, and a reasonable
opportunity of not less than 30 days to cure (to the extent capable of cure) such
violations, failures or inabilities.
(ii) “Change of Control” means the occurrence of any one or more of the following:
(A) the consummation of a merger or consolidation of the Company with or into
any other entity (other than with any entity or group in which Executive has not
less than a 5% beneficial interest) pursuant to which the holders of outstanding
equity of the Company immediately prior to such merger or consolidation, hold
directly or
indirectly 50% or less of the voting power of the equity securities of the
surviving entity;
(B) the sale or other disposition of all or substantially all of the
Company’s assets (other than to any entity or group in which Executive has not
less than a 5% beneficial interest); or
(C) any acquisition by any person or persons (other than any entity or group
in which Executive has not less than a 5% beneficial interest) of the beneficial
ownership of more than 50% of the voting power of the Company’s equity securities
in a single transaction or series of related transactions; provided, however, that
an underwritten public offering of the Company’s securities shall not be
considered a Change of Control;
(D) if during any period of 12 consecutive months, individuals who at the
beginning of any such period constitute the Board, cease for any reason to
constitute at least a majority thereof, unless the election, or the nomination for
election by the Company’s stockholders, of each director of the Company first
elected during such period was approved or recommended by at least a majority of
the directors then still in office who were directors of the Company at the
beginning of any such period and any such newly approved directors;
provided, however, that a transaction shall not constitute a Change of Control if its sole purpose
is to change the state or jurisdiction of the Company’s incorporation or to create a holding
company that will be owned in substantially the same proportions by the persons who directly or
indirectly held the Company’s securities immediately before such transaction.
(iii) “Equity Awards” means all options to purchase shares of Company common stock as
well as any and all other stock-based awards granted to the Executive, including but not
limited to stock bonus awards, restricted stock, restricted stock units, stock appreciation
rights and performance-based stock awards.
(iv) “Good Reason” means:
(A) a material diminution in base or total cash compensation, other than a
Company-wide salary reduction program;
(B) a material diminution in title, operational duties or responsibilities;
provided that, for the avoidance of doubt, Good Reason shall not have occurred if
after a change of control of the Company, Executive is performing substantially
the same duties and responsibilities as before the change of control but the
Company (or its successor) is a larger organization, or Executive is performing
such duties and responsibilities for a business unit of a parent entity that is a
larger
organization than Company was before the change of control and the business
unit continues substantially all of the business of the Company;
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(C) relocation of Executive’s primary work location by at least 50 miles; or
(D) the failure of the successor entity to assume any agreement that
Executive had with the Company;
provided that notwithstanding the foregoing, an Executive’s termination will not be for
Good Reason unless the Executive (x) notifies the Company in writing of the existence of
the condition which the Executive believes constitutes Good Reason within 90 days of the
initial existence of such condition (which notice specifically identifies such condition),
(y) gives the Company at least 30 days following the date on which the Company receives
such notice (and prior to termination) in which to remedy the condition (to the extent such
condition is capable of being cured), and (z) if the Company does not remedy such condition
within such period, and Executive actually terminates employment within 30 days after the
expiration of such remedy period.
ARTICLE 2
Term And Nature Of Agreement
Term And Nature Of Agreement
Section 2.01. Term. This Agreement shall be in force until the fourth anniversary of the
Effective Date, and thereafter renew for automatic one-year terms, unless at least 30 days before
the expiration of the then-current term the Company shall give the Executive written notice of
termination of this Agreement as of the end of the then-current term; provided that the Company may
not give such notice if a Change of Control has occurred prior to such date until at least 12
months following such Change of Control.
Section 2.02. At-Will Employment. Nothing in this Agreement shall change the at-will nature
of Executive’s employment with the Company.
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ARTICLE 3
Severance and Change of Control Benefits
Severance and Change of Control Benefits
Section 3.01. Severance Benefits.
(a) If Executive is terminated by the Company without Cause, Executive shall be entitled to
all of the following (the “Severance Benefits”), provided that Executive executes and lets become
effective, a release of claims in substantially the form attached hereto as Exhibit A (the
“Release”) within the period of time specified by the Company (which shall be 21 days to sign and 7
days to revoke, unless a longer period is required by law) following the termination of employment:
(i) a lump sum cash payment within 60 days following termination of employment
(subject to Section 5.12 below) equal to:
(A) 0.5 times Executive’s then existing annual base salary;
(B) to the extent any bonus could be earned in the current fiscal year under
the terms of the Company’s bonus program but is not yet earned or paid, a prorated
bonus (based on the determination by the Company’s compensation committee
(“Compensation Committee”) of Company performance through the date of
termination), prorated through the date of termination; and
(ii) payment or reimbursement of health benefit continuation coverage under COBRA or
otherwise from the termination date through the earlier of (A) 6 months following the
termination date or (B) the date Executive becomes eligible for health benefits with
another employer, which shall be paid no later than the due date for such coverage.
Section 3.02. Treatment of Performance-Based Equity on Change of Control. Upon a Change of
Control, to the extent Executive holds any Equity Awards that remain subject to issuance or vesting
based on performance (the “Performance Awards”), a prorated portion of the Performance Awards shall
become issued and/or vested upon the Change of Control based on performance measured immediately
prior to the Change of Control (as determined by the Compensation Committee prior to the Change of
Control), and the remainder of the Performance Awards (the “Remainder Awards”) shall issue and/or
vest in equal monthly installments over the original performance period (unless accelerated under
Section 3.03 below); provided, that if the successor to the Company does not assume or
substitute the Remainder Awards with a substantially equivalent award, the amount of the Remainder
Awards shall become issued and/or vested upon the Change of Control.
Section 3.03. Change of Control Severance Benefits.
(a) If within two months prior to, or within 12 months following, a Change of Control,
Executive is terminated by the Company without Cause or Executive resigns for Good Reason,
Executive shall be entitled to the following (“Change of Control Severance Benefits”) in lieu of
any Severance Benefits under Section 3.01 above, provided that Executive executes and lets
become effective the Release within the period of time specified by the Company (which shall be 21
days to sign and 7 days to revoke, unless a longer period is required by law) following the
termination of employment:
(i) a lump sum cash payment within 60 days following termination of employment
(subject to Section 5.12 below) equal to:
(A) 1 times Executive’s then existing annual base salary;
(B) 1 times the cash bonus paid or payable for the most recently completed
fiscal year (in addition to the cash bonus paid or payable with respect to the
most recently completed fiscal year); and
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(C) to the extent any bonus could be earned in the current fiscal year under
the terms of the Company’s bonus program but is not yet earned or paid, a prorated
bonus (based on the Compensation Committee’s determination of Company performance
through the date of termination), prorated through the date of termination;
(ii) payment or reimbursement of health benefit continuation coverage under COBRA or
otherwise from the termination date through the earlier of (A) 12 months following the
termination date or (B) the date Executive becomes eligible for health benefits with
another employer, which shall be paid no later than the due date of payments for such
coverage; provided that if Executive is no longer eligible for COBRA continuation coverage,
the Company may provide a lump sum payment calculated based on the monthly premiums
immediately prior to the expiration of COBRA coverage; and
(iii) 50% of all of the Executive’s unvested and outstanding Equity Awards (including
the Performance Awards) shall become vested.
Section 3.04. Resignation of Corporate Offices. In connection with any termination of
employment, Executive will resign Executive’s office, if any, as a director, officer, trustee or
employee of the Company, its subsidiaries or affiliates and of any other corporation or trust of
which Executive serves as such at the request of the Company, effective as of the date of
termination of employment.
Section 3.05. Accrued Compensation and Benefits. In connection with any termination of
employment upon or following a Change of Control (whether or not under Section 3.01 above),
the Company shall pay Executive’s earned but unpaid base salary and other vested but unpaid cash
entitlements for the period through and including the termination of employment, including unused
earned vacation pay and unreimbursed documented business expenses incurred by Executive prior to
the date of termination (collectively “Accrued Compensation and Expenses”), as required by law and
the applicable Company plan or policy. In addition, Executive shall be entitled to any other vested
benefits earned by Executive for the period through and including the termination date of
Executive’s employment under any other employee benefit plans and arrangements maintained by the
Company, in accordance with the terms of such plans and arrangements, except as modified herein
(collectively “Accrued Benefits”). Any Accrued Compensation and Expenses to which the Executive is
entitled shall be paid to the Executive in cash as soon as administratively practicable after the
termination, and, in any event, no later than two and one-half (2-1/2) months after the end of the
taxable year of the Executive in which the termination occurs. Any Accrued Benefits to which the
Executive is entitled shall be paid to the Executive as provided in the relevant plans and
arrangement.
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Section 3.06. Continuing Obligations. Executive acknowledges his or her continuing
obligations under the Employment, Confidential Information and Invention Assignment Agreement (or
similar agreement) with the Company (the “Confidentiality Agreement”), including but not limited to
Executive’s obligations not to use or disclose, at any time, any trade secret, confidential or
proprietary information of the Company.
Section 3.07. Limitation on Change of Control Payments.
(a) If the Change of Control Severance Benefits together with any other payment or benefit
Executive would receive pursuant to a Change of Control (collectively, “COC Payment”) would (i)
constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of
1986, as amended (the “Code”), and (ii) but for this sentence, be subject to the excise tax imposed
by Section 4999 of the Code (the “Excise Tax”), then such COC Payment shall be equal to the Reduced
Amount. The “Reduced Amount” shall be either (x) the largest portion of the COC Payment that would
result in no portion of the COC Payment being subject to the Excise Tax or (y) the largest portion,
up to and including the total, of the COC Payment, whichever amount, after taking into account all
applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all
computed at the highest applicable marginal rate), results in Executive’s receipt, on an after-tax
basis, of the greater amount of the COC Payment notwithstanding that all or some portion of the COC
Payment may be subject to the Excise Tax. If a reduction in payments or benefits constituting
“parachute payments” is necessary so that the COC Payment equals the Reduced Amount, reduction
shall occur in the following order (in case prorated between those not subject to Section 409A and
those subject to Section 409A as deferred compensation): (1) reduction of cash payments; (2)
cancellation of acceleration of vesting; and (3) reduction of non-cash employee benefits. In the
event that acceleration of vesting is to be reduced, it shall be cancelled in the reverse order of
the date of grant of the Equity Awards. To the extent any such benefit is to be provided over
time, then the benefit shall be reduced in reverse chronological order.
(b) The Company may engage the accounting firm engaged by the Company for general audit
purposes as of the day prior to the effective date of the Change of Control or another firm to
perform the foregoing calculations. The Company shall bear all expenses with respect to the
determinations by such firm required to be made hereunder.
(c) The accounting firm engaged to make the determinations hereunder shall be engaged by the
Company to provide its calculations, together with detailed supporting documentation, to Executive
and the Company within fifteen (15) calendar days after the date on which Executive’s right to a
COC Payment is triggered (if requested at that time by Executive or the Company) or such other time
as requested by Executive or the Company.
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ARTICLE 4
Executive Covenants
Executive Covenants
Section 4.01. Confidentiality and Non-Disclosure Agreement. Executive agrees to continue to
comply with the Confidentiality Agreement during and after the term of this Agreement.
Section 4.02. Non-Solicitation; Non-Disparagement.
(a) Without limiting the terms of the Confidentiality Agreement, Executive agrees that during
his employment with the Company and for a period of 12 months thereafter, he shall not, on his own
behalf or on behalf of or in connection with any other person, without the prior written consent of
the Company, directly or indirectly, in any capacity whatsoever, alone or through or in connection
with any person, solicit the employment or engagement of or otherwise entice away from the
employment or engagement of the Company or any of its affiliates, any individual who is employed or
engaged by the Company or any of its affiliates.
(b) Executive agrees that he shall not make negative statements or representations, or
otherwise communicate negatively, directly or indirectly, in writing, orally, or otherwise, or take
any action which may, directly or indirectly, disparage or be damaging to the Company, its
subsidiaries, affiliates, successors or their officers, directors, employees, business or
reputation; provided that nothing herein shall prevent Executive from responding accurately and
fully to any question, inquiry or request for information when required by law or legal process.
(c) Company shall direct its executives, and shall request in writing that the executives of
the successor to the Company, not make negative statements or representations, or otherwise
communicate negatively, directly or indirectly, in writing, orally, or otherwise, or take any
action which may, directly or indirectly, disparage or be damaging to Executive or Executive’s
reputation; provided that nothing herein shall prevent executives of the Company or the successor
to the Company from responding accurately and fully to any question, inquiry or request for
information when required by law or legal process.
Section 4.03. Material Inducement; Specific Performance. If any provision of this Agreement
or the Confidentiality Agreement is determined by a court or arbitrator of competent jurisdiction
not to be enforceable in the manner set forth herein or therein, the Company and Executive agree
that it is the intention of the parties that such provision should be enforceable to the maximum
extent possible under applicable law and that such court or arbitrator shall reform such provision
to make it enforceable in accordance with the intent of the parties. Executive agrees that a
material breach or threatened breach of this Article or the Confidentiality Agreement may cause the
Company irreparable injury for which adequate remedies are not available at law. Therefore,
Executive agrees that, if Executive materially breaches any of those covenants during or following
termination of employment, the Company may be entitled to an injunction or other equitable relief
in addition to any other relief to which the Company may become entitled.
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ARTICLE 5
Miscellaneous
Miscellaneous
Section 5.01. Assignment; Successors and Assigns. This Agreement shall inure to the benefit
of and be enforceable by Executive’s personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees, and legatees. If Executive should die or become subject
to a permanent disability while any amount is owed but unpaid to Executive hereunder, all such
amounts, unless otherwise provided herein, shall be paid to Executive’s devisee, legatee, legal
guardian or other designee, or if there is no such designee, to Executive’s estate. Executive’s
rights hereunder shall not otherwise be assignable. This Agreement shall be binding on the
Company’s successors and assigns.
Section 5.02. Dispute Resolution. To ensure rapid and economical resolution of any and all
disputes that might arise in connection with this Agreement, Executive and the Company agree that
any and all disputes, claims, and causes of action, in law or equity, arising from or relating to
this Agreement or its enforcement, performance, breach, or interpretation, will be resolved solely
and exclusively by final, binding, and confidential arbitration, by a single arbitrator, in San
Francisco, California, and conducted by Judicial Arbitration & Mediation Services, Inc. (“JAMS”)
under its then-existing employment rules and procedures. Nothing in this section, however, is
intended to prevent either party from obtaining injunctive relief in court to prevent irreparable
harm pending the conclusion of any such arbitration. In all events, other than and to the extent
of those involving a violation by Executive of Section 4.01 and 4.02, the Company shall be
responsible for the payment of all costs of arbitration as well as both parties’ attorneys’ fees;
provided that the Company shall not be responsible for the payment of Executive’s attorneys’ fees
if Executive does not prevail on at least one material issue in dispute.
Section 5.03. Unfunded Agreement. The obligations of the Company under this Agreement
represent an unsecured, unfunded promise to pay benefits to Executive and/or Executive’s
beneficiaries, and shall not entitle Executive or such beneficiaries to a preferential claim to any
asset of the Company.
Section 5.04. Non-Exclusivity of Benefits. Unless specifically provided herein, neither the
provisions of this Agreement nor the benefits provided hereunder shall reduce any amounts otherwise
payable, or in any way diminish Executive’s rights as an employee of the Company, whether existing
now or hereafter, under any compensation and/or benefit plans (qualified or nonqualified),
programs, policies, or practices provided by the Company, for which Executive may qualify; provided
that the Severance Benefits and the Change of Control Severance Benefits shall not be duplicative
of any severance benefits under any such plans, programs, policies or practices or any other
agreement between Executive and the Company and that any amounts payable to Executive hereunder
shall be reduced by any amounts paid or notice due to Executive as required by any applicable
federal, state or local law (including without limitation the WARN Act) in connection with any
termination of Executive’s employment. Vested benefits or other amounts which Executive is
otherwise entitled to receive under any plan, policy, practice,
or program of the Company (i.e., including, but not limited to, vested benefits under any
qualified or nonqualified retirement plan, but not including severance benefits), at or subsequent
to the termination date shall be payable in accordance with such plan, policy, practice, or program
except as expressly modified by this Agreement.
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Section 5.05. Mitigation. In no event shall Executive be obligated to seek other employment
or take any other action by way of mitigation of the amounts payable to Executive under any of the
provisions of this Agreement nor shall the amount of any payment or benefit hereunder be reduced by
any compensation earned by Executive as a result of employment by another employer.
Section 5.06. Entire Agreement. This Agreement represents the entire agreement between
Executive and the Company and its affiliates with respect to the matters herein, and supersedes all
prior and contemporaneous discussions, negotiations, and agreements concerning such rights
including, without limitation, the Offer Letter dated July 10, 1995.
Section 5.07. Tax Withholding. Notwithstanding anything in this Agreement to the contrary,
the Company shall be entitled to withhold from any amounts payable under this Agreement all
federal, state, city, or other taxes as the Company determines are required to be withheld.
Section 5.08. Waiver of Rights. The waiver by either party of a breach of any provision of
this Agreement shall not operate or be construed as a continuing waiver or as a consent to or
waiver of any subsequent breach hereof.
Section 5.09. Severability. In the event any provision of this Agreement shall be held
illegal or invalid for any reason, the illegality or invalidity shall not affect the remaining
parts of this Agreement, and this Agreement shall be construed and enforced as if the illegal or
invalid provision had not been included.
Section 5.10. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of California without reference to principles of conflict of laws.
Section 5.11. Counterparts. This Agreement may be signed in several counterparts, each of
which shall be an original, with the same effect as if the signatures thereto and hereto were on
the same instrument.
Section 5.12. Code Section 409A.
(a) Any lump sum payments due as Severance Benefits or Change of Control Severance Benefits
hereunder shall be paid within 60 days following termination of employment so long as the Release
has become effective during such 60-day period, but if such 60-day period during which Executive
may sign and let become effective the Release, begins in a first taxable year and ends in a second
taxable year, such payment shall only be made in the second taxable year.
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(b) This Agreement and the payments and benefits hereunder are intended to qualify for the
short-term deferral exception to Section 409A of the Code, and all regulations, rulings and other
guidance issued thereunder, all as amended and in effect from time to time (“Section 409A”),
described in Treasury Regulation Section 1.409A-1(b)(4) to the maximum extent possible, and
therefore, unless otherwise expressly provided herein, all Severance Benefits or Change in Control
Severance Benefits shall be paid no later than two and one-half (2 1/2) months after the end of the
taxable year of the Executive in which the termination of employment occurs. To the extent they do
not so qualify, the Severance Benefits and Change of Control Severance Benefits are intended to
qualify for the involuntary separation pay plan exception to Section 409A described in Treasury
Regulation Section 1.409A-1(b)(9)(iii) to the maximum extent possible.
(c) To the extent Section 409A is applicable to this Agreement, this Agreement is intended to
comply with Section 409A. Without limiting the generality of the foregoing, if on the date of
termination of employment Executive is a “specified employee” within the meaning of Section 409A as
determined in accordance with the Company’s procedures for making such determination, then to the
extent required in order to comply with Section 409A (including with respect to any payments or
benefits hereunder that are determined to be in substitution for “deferred compensation” subject to
Section 409A), amounts that would otherwise be payable under this Agreement during the six-month
period immediately following the termination date shall instead be paid on the earlier of (i) the
first business day after the date that is six months following the termination date or (ii)
Executive’s death. All references herein to “termination date” or “termination of employment”
shall mean “separation from service” as an employee within the meaning of Section 409A.
(d) It is intended that each installment of payments provided hereunder constitute separate
“payments” for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). To the extent that any
provision of this Agreement is ambiguous as to its compliance with Section 409A, the provision will
be read in such a manner so that all payments hereunder comply with Section 409A. Except as
otherwise expressly provided herein, to the extent any expense reimbursement or the provision of
any in-kind benefit under this Agreement is determined to be subject to Section 409A, the amount of
any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one
calendar year shall not affect the expenses eligible for reimbursement in any other taxable year
(except for any lifetime or other aggregate limitation applicable to medical expenses); in no event
shall any expenses be reimbursed after the last day of the calendar year following the calendar
year in which Executive incurred such expenses; and in no event shall any right to reimbursement or
the provision of any in-kind benefit be subject to liquidation or exchange for another benefit.
The Company makes no representation or warranty and shall have no liability to the Executive or any
other person if any provisions of this Agreement are determined to constitute deferred compensation
subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of,
such Section.
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IN WITNESS WHEREOF, the Company and the Executive have executed this Agreement, to be
effective as of the date and year first written above.
| SMART MODULAR TECHNOLOGIES (WWH), INC. | ||||||||
| By: | ||||||||
| Name: Xxxx XxxXxxxxx | ||||||||
| Title: President and CEO | ||||||||
| EXECUTIVE: | ||||||||
| Date: | ||||||||
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Exhibit A — Form of Release
Reference is made in this Release (“Release”) to the terms set forth in the Severance and
Change of Control Agreement dated (the “Agreement”) between SMART Modular Technologies (WWH),
Inc. (together with its successors and assigns, the “Company”) and the undersigned
(“Executive”).
1. Release. In consideration for the benefits outlined in the Agreement (the “Severance
Benefits”), to which I am not otherwise entitled, I hereby generally and completely release the
Company and its affiliated entities (collectively “Company Entities”) and their directors,
officers, employees, 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 the time I sign this Release. 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 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 or
breach of the implied covenant of good faith and fair dealing; (4) all tort claims, including
claims for fraud, defamation, emotional distress, and discharge in violation of public policy; (5)
all federal, state, and local statutory claims, including 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”), Sections 1981 through 1988 of Title 42 of the
United States Code, the California Fair Employment and Housing Act (as amended), Calif. Gov’t Code
§ 12900 et seq., California Business and Professions Code § 17200 or any other provisions of the
California unfair trade or business practices laws, the California Family Rights Act, Calif. Gov’t
Code § 12945.2, the California Occupational Safety and Health Act, Divisions 4, 4.5, and 4.7 of the
California Labor Code beginning at § 3200, any provision of the California Constitution, any
provision of the California Labor Code that may lawfully be released, the Employee Retirement
Income Security Act of 1974 (“ERISA”) (except for any vested benefits under any tax qualified
benefit plan), the Immigration Reform and Control Act, the Workers Adjustment and Retraining
Notification Act, the Fair Credit Reporting Act; and (6) any other federal, state or local law,
rule, regulation, or ordinance; (7) any public policy, contract, tort, or common law; and (8) any
basis for recovering costs, fees, or other expenses including attorneys’ fees incurred in these
matters. This Release does not apply to (x) claims which cannot be released as a matter of law,
(y) any right I may have to enforce the Agreement, or (z) my eligibility for indemnification and
similar matters in accordance with applicable laws, the articles, charter and bylaws of the Company
or any indemnification agreement I have with the Company.
X-0
0. XXXX Xxxxxx. I acknowledge that I am knowingly and voluntarily waiving and releasing any
rights I have under the ADEA and that the consideration given for the waiver and release 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 specified in this paragraph do not apply to any rights or
claims that arise after the date I sign this Release;
(b) I have the right to consult with an attorney prior to signing this Release;
(c) I have twenty-one (21) days to consider this Release (although I may choose
voluntarily to sign this Release earlier);
(d) I have seven (7) days after I sign this Release to revoke the Release; and
(e) this Release will not be effective until the date on which the revocation period
has expired, which will be the eighth day after I sign this Release, assuming I have
returned it to the Company by such date.
3. Waiver of Unknown Claims. In granting the general release herein, I acknowledge that I have
read and understand California Civil Code section 1542, which states:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
I expressly waive and relinquish all rights and benefits under that section and any law of any
jurisdiction of similar effect.
This Release, together with the Agreement, constitutes the entire understanding of the parties
on the subjects covered.
| EXECUTIVE: | ||||||
| [NAME] | ||||||
| Dated: | ||||||
A-2
