CHANGE IN CONTROL SEVERANCE AGREEMENT
Exhibit 10.1
This Change in Control Severance Agreement
(“Agreement”) is made effective as of ______,
20___ (“Effective Date”), by and between ViaSat, Inc., a Delaware corporation (the “Company”), and
_________ (“Executive”). For purposes of this Agreement (other than Section 1(c) below), the
“Company” shall mean the Company and its subsidiaries.
The parties agree as follows:
1. Definitions. For purposes of this Agreement, the following terms shall have the
following meanings:
(a) “Board” shall mean the Board of Directors of the Company.
(b) “Cause” shall mean any of the following: (i) Executive’s gross negligence or willful
misconduct in the performance of his duties to the Company where such gross negligence or willful
misconduct has resulted or is likely to result in material damage to the Company or its
subsidiaries; (ii) Executive’s willful and habitual neglect of or failure to perform Executive’s
duties of consulting or employment, which neglect or failure is not cured within thirty (30) days
after written notice thereof is received by Executive; (iii) Executive’s commission of any act of
fraud or dishonesty with respect to the Company that causes material harm to the Company or is
intended to result in substantial personal enrichment; (iv) Executive’s conviction of or plea of
guilty or nolo contendere to felony criminal conduct; or (v) Executive’s material violation of the
Company’s Confidentiality and Proprietary Rights Agreement (as defined below) or similar agreement
that Executive has entered into with the Company.
(c) “Change in Control” shall mean and include each of the following:
(i) A transaction or series of transactions (other than an offering of the Company’s common
stock to the general public through a registration statement filed with the Securities and Exchange
Commission) whereby any “person” or related “group” of “persons” (as such terms are used in
Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”)) (other than the Company, any of its subsidiaries, an employee benefit plan maintained by the
Company or any of its subsidiaries or a “person” that, prior to such transaction, directly or
indirectly controls, is controlled by, or is under common control with, the Company) directly or
indirectly acquires beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act)
of securities of the Company possessing more than forty percent (40%) of the total combined voting
power of the Company’s securities outstanding immediately after such acquisition;
(ii) The individuals who, as of the date hereof are members of the Board (the “Incumbent
Board”), cease for any reason to constitute at least two-thirds of the members of the Board;
provided, however, that if the election, or nomination for election by the Company’s common
stockholders, of any new director was approved by a vote of at least two-thirds of the Incumbent
Board, such new director shall, for purposes of this Agreement, be considered as a member of the
Incumbent Board; provided, further, however, that no individual shall be considered a member of
the Incumbent Board if such individual initially assumed office as a result of either an actual or
threatened “Election Contest” (as described in Rule 14a-11 promulgated under the Exchange Act) or
other actual or threatened solicitation of proxies or consents by or on behalf of a Person other
than the Board (a “Proxy Contest”) including by reason of any agreement intended to avoid or settle
any Election Contest or Proxy Contest; or
(iii) 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 Company’s assets in any single transaction or series of related transactions or (z) the
acquisition of assets or stock of another entity, in each case other than a transaction:
(A) Which results in the Company’s 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 Company’s 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 Entity’s outstanding voting securities immediately after the transaction,
and
(B) After which no person or group beneficially owns voting securities representing forty
percent (40%) or more of the combined voting power of the Successor Entity; provided, however, that
no person or group shall be treated for purposes of this Section 1(c)(ii)(B) as beneficially owning
40% or more of combined voting power of the Successor Entity solely as a result of the voting power
held in the Company prior to the consummation of the transaction.
The Board shall have full and final authority, which shall be exercised in its discretion, to
determine conclusively whether a Change in Control of the Company has occurred pursuant to the
above definition, and the date of the occurrence of such Change in Control and any incidental
matters relating thereto.
(d) “Good Reason” shall mean the occurrence of any of the following events or conditions
without Executive’s written consent:
(i) a material diminution in Executive’s authority, duties or responsibilities with the
Company, including, without limitation, the continuous assignment to Executive of any duties
materially inconsistent with Executive’s position with the Company, or a material negative change
in the nature or status of Executive’s responsibilities or the conditions of Executive’s employment
with the Company;
(ii) a material diminution in Executive’s annualized cash and benefits compensation
opportunity, which shall include Executive’s base compensation, Executive’s annual target bonus
opportunity and Executive’s aggregate employee benefits (including equity compensation), as in
effect on the Effective Date as the same may be increased from time to time thereafter;
(iii) a material change in the geographic location at which Executive must perform his or her
duties (and the Company and Executive agree that any involuntary relocation of the Company’s
offices at which Executive is principally employed to a location more than fifty (50) miles from
such location would constitute a material change); or
(iv) any other action or inaction that constitutes a material breach by the Company or any
successor or affiliate of its obligations to Executive under this Agreement.
Executive’s right to terminate employment with the Company pursuant to this section shall not
be affected by Executive’s incapacity due to physical or mental illness. Executive’s continued
employment with the Company shall not constitute consent to, or a waiver of rights with respect to,
any circumstance constituting Good Reason hereunder.
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Executive must provide written notice to the Company of the occurrence of any of the foregoing
events or conditions without Executive’s written consent within ninety (90) days of the occurrence
of such event. The Company or any successor or affiliate shall have a period of thirty (30) days
to cure such event or condition after receipt of written notice of such event from Executive. Any
voluntary Separation from Service for “Good Reason” following such thirty (30) day cure period must
occur no later than the date that is six (6) months following the initial occurrence of one of the
foregoing events or conditions without Executive’s written consent. Executive’s voluntary
Separation from Service by reason of resignation from employment with the Company for Good Reason
shall be treated as involuntary.
(e) “Code” means the Internal Revenue Code of 1986, as amended, and the Treasury Regulations
and other interpretive guidance thereunder.
(f) “Permanent Disability” means Executive’s inability to perform the essential functions of
his or her position, with or without reasonable accommodation, for a period of at least 120
consecutive days because of a physical or mental impairment.
(g) “Separation from Service” means an involuntary separation from service within the meaning
of Section 409A of the Code.
(h) “Stock Awards” means all stock options, restricted stock and such other awards granted
pursuant to the Company’s stock option and equity incentive award plans or agreements and any
shares of stock issued upon exercise thereof.
2. Term.
(a) The initial term of this Agreement (the “Initial Term”) shall continue until the earlier
of the one (1) year anniversary of the Effective Date or the date on which all payments or benefits
required to be made or provided hereunder have been made or provided in their entirety, except as
otherwise provided in this Section 2.
(b) At the expiration of any term of this Agreement, the term of this Agreement shall be
automatically extended for an additional one year term unless the Company or the Executive shall
have previously provided notice to the other party that the term of this Agreement shall not be
further extended.
(c) Notwithstanding the provisions of Sections 2(a) and (b), the then-effective Initial Term
or Renewal Term shall automatically be extended in the event that such term would otherwise expire
during the period commencing upon the first public announcement of a definitive agreement that
would result in a Change in Control (even though still subject to approval of the Company’s
stockholders and other conditions and contingencies) and ending on the date that is eighteen (18)
months following the occurrence of such Change in Control. Such extension shall be upon the terms
and conditions of this Agreement as then in effect, provided that such extension of the Term of
this Agreement shall expire upon the first to occur of the first public announcement of the
termination of such definitive agreement or the date that is eighteen (18) months following the
occurrence of such Change in Control.
(d) Notwithstanding the provisions of Section 2(a) and 2(b), the obligation of the Company to
make payments or provide benefits pursuant to this Agreement to which Executive has acquired a
right in accordance with the applicable provisions of this Agreement prior to the expiration of the
then-effective Initial Term or Renewal Term shall survive the termination of this Agreement until
such payments and benefits have been provided in full.
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3. Severance.
(a) If Executive has a Separation from Service as a result of Executive’s discharge by the
Company without Cause or by reason of Executive’s resignation for Good Reason, in either case (x)
within eighteen (18) months following a Change in Control or (y) two (2) months prior to a Change
in Control, Executive shall be entitled to receive, in lieu of any severance benefits to which
Executive may otherwise be entitled under any severance plan or program of the Company, the
benefits provided below, which, with respect to clause (ii) and the last sentence of clause (iii)
below, will be payable in a lump sum within ten (10) days following the effective date of
Executive’s Release, but in no event later than two and one-half (2 1/2) months following the last
day of the calendar year in which the date of Executive’s Separation from Service occurs:
(i) The Company shall pay to Executive his or her fully earned but unpaid base salary, when
due, through the date of Executive’s Separation from Service at the rate then in effect, plus all
other the benefits, if any, under any Company group retirement plan, nonqualified deferred
compensation plan, equity award plan or agreement (other than any such plan or agreement pertaining
to Stock Awards whose treatment is prescribed by Section 3(a)(iii) below), health benefits plan or
other Company group benefit plan to which Executive may be entitled pursuant to the terms of such
plans or agreements at the time of Executive’s Separation from Service;
(ii) Subject to Section 3(c) and Executive’s continued compliance with Section 4, Executive
shall be entitled to receive severance pay in an amount equal to _________ (___%) of Executive’s
aggregate annual base salary and target annual cash bonus as in effect immediately prior to the
date of Executive’s Separation from Services;
(iii) Subject to Section 3(c) and Executive’s continued compliance with Section 4, for the
period beginning on the date of Executive’s Separation from Service and ending on the date which is
eighteen (18) full months following the date of Executive’s Separation from Service (or, if
earlier, the date on which the applicable continuation period under COBRA expires), the Company
shall arrange to provide Executive and his or her eligible dependents who were covered under the
Company’s health insurance plans as of the date of Executive’s Separation from Service with health
(including medical and dental) insurance and other benefits substantially similar to those provided
to Executive and his dependents immediately prior to the date of such Separation from Service. If
the Company is not reasonably able to continue health insurance benefits coverage under the
Company’s insurance plans, the Company shall provide substantially equivalent coverage under other
third-party insurance sources reasonably acceptable to Executive. If any of the Company’s health
benefits are self-funded as of the date of Executive’s Separation from Service, instead of
providing continued health insurance benefits as set forth above, the Company shall instead pay to
Executive an amount equal to eighteen (18) multiplied by the monthly premium Executive would be
required to pay for continuation coverage pursuant to the COBRA for Executive and his or her
eligible dependents who were covered under the Company’s health plans as of the date of Executive’s
Separation from Service (calculated by reference to the premium as of the date of Separation from
Service);
(iv) Subject to Section 3(c) and Executive’s continued compliance with Section 4, the vesting
and/or exercisability of each of Executive’s outstanding Stock Awards shall be accelerated in full
effective as of the date of Executive’s Separation from Service. Nothing in this Section 3(a)(iv)
shall be construed to limit any more favorable vesting applicable to Executive’s Stock Awards in
the Company’s equity plan(s) and/or the stock award agreements under which the Stock Awards were
granted. The foregoing provisions are hereby deemed to be a part of each Stock Award and to
supersede any less favorable provision in any agreement or plan regarding such Stock Award; and
(v) Notwithstanding any other provision of this Agreement to the contrary, any severance
benefits payable to Executive under this Agreement shall be reduced by any severance benefits
payable by the Company or an affiliate of the Company to such individual under any other
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policy, plan, program, agreement or arrangement, including, without limitation, any severance
agreement between such individual and any entity.
(b) Other Terminations. If Executive’s employment is terminated by the Company
without Cause or by Executive for Good Reason more than two (2) months prior to a Change in Control
or more than eighteen (18) months following a Change in Control, or at any time by the Company for
Cause, by Executive without Good Reason, or as a result of Executive’s death or Permanent
Disability, the Company shall not have any other or further obligations to Executive under this
Agreement (including any financial obligations).
(c) Release. As a condition to Executive’s receipt of any post-termination benefits
pursuant to Section 3(a) above, Executive shall execute and not revoke a general release of all
claims in favor of the Company (the “Release”) in the form to that attached hereto as Exhibit A
(and any applicable revocation period applicable to such Release shall have expired) within the
sixty (60) day period following the date of Executive’s Separation from Service.
(d) Exclusive Remedy. In the event of a termination of Executive’s employment with
the Company within the period two months prior to a Change in Control or 18 months after a Change
in Control, Executive’s sole remedy shall be to receive the payments and benefits described in this
Section 3 and except as otherwise expressly required by law (e.g., COBRA) or as specifically
provided herein, all of Executive’s rights to salary, severance, benefits, bonuses and other
amounts hereunder (if any) accruing after the termination of Executive’s employment shall cease
upon such termination.
(e) No Mitigation. Except as otherwise provided in Section 3(a)(iii) above, Executive
shall not be required to mitigate the amount of any payment provided for in this Section 3 by
seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for
in this Section 3 be reduced by any compensation earned by Executive as the result of employment by
another employer or self-employment or by retirement benefits; provided, however, that loans,
advances or other amounts owed by Executive to the Company may be offset by the Company against
amounts payable to Executive under this Section 3.
(f) Return of the Company’s Property. If Executive’s employment is terminated for any
reason, the Company shall have the right, at its option, to require Executive to vacate his or her
offices prior to or on the effective date of termination and to cease all activities on the
Company’s behalf. Upon the termination of his or her employment in any manner, as a condition to
Executive’s receipt of any post-termination benefits described in this Agreement, Executive shall
immediately surrender to the Company all lists, books and records of, or in connection with, the
Company’s business, and all other property belonging to the Company, it being distinctly understood
that all such lists, books and records, and other documents, are the property of the Company.
Executive shall deliver to the Company a signed statement certifying compliance with this Section
3(g) prior to the receipt of any post-termination benefits described in this Agreement.
(g) Best Pay Provision.
(i) If any payment or benefit Executive would receive under this Agreement, when combined
with any other payment or benefit Executive receives pursuant to the termination of Executive’s
employment with the Company (“Payment”), would (A) constitute a “parachute payment” within the
meaning of Section 280G of the Code, and (B) but for this sentence, be subject to the excise tax
imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be either (1) the
full amount of such Payment or (2) such lesser amount (with cash payments being reduced before
stock option compensation) as would result in no portion of the Payment being subject to the Excise
Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and
local
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employment taxes, income taxes, and the Excise Tax, results in Executive’s receipt, on an after-tax
basis, of the greater amount of the Payment notwithstanding that all or some portion of the Payment
may be subject to the Excise Tax.
(ii) All determinations required to be made under this Section 3(g), 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 effective date of the Change in Control or, if such firm
declines to serve, such other nationally recognized certified public accounting firm as may be
designated by the Company (the “Accounting Firm”). The Accounting Firm shall provide detailed
supporting calculations both to Executive and the Company 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 Executive and the Company. For purposes
of making the calculations required by this Section 3(g), the Accounting Firm may make reasonable
assumptions and approximations concerning applicable taxes and may rely on reasonable, good-faith
interpretations concerning the application of Sections 280G and 4999 of the Code.
4. Confidentiality and Proprietary Rights. Executive and the Company have executed
the Company’s Employee Proprietary Information and Inventions Agreement. The Company shall be
entitled to cease all severance payments and benefits to Executive in the event of his or
her material breach of this Section 4.
5. Agreement to Arbitrate. Any dispute, claim or controversy based on, arising out of
or relating to Executive’s employment or this Agreement shall be settled by final and binding
arbitration in San Diego, 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 (“AAA”), 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. At the election of
Executive, expedited arbitration procedures under AAA may be employed for such dispute. Each party
shall pay the fees of its own attorneys, the expenses of its witnesses and all other expenses
connected with presenting its case; provided, however, the Company acknowledges and agrees that
Executive shall be entitled to indemnification for such fees and expenses under applicable
indemnification agreements or the Company’s charter and bylaws, as applicable; provided, further
that the parties’ obligations pursuant to this sentence shall terminate on the tenth
(10th) anniversary of the date of Executive’s termination of employment. Other costs of
the arbitration, including the cost of any record or transcripts of the arbitration, AAA’s
administrative fees, the fee of the arbitrator, and all other fees and costs, shall be borne by the
Company. This Section 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
Executive’s 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 party’s right to compel arbitration. Both Executive and
the Company expressly waive their right to a jury trial.
6. At-Will Employment Relationship. Executive’s employment with the Company is
at-will and not for any specified period and may be terminated at any time, with or without Cause
or advance notice, by either Executive or the Company. Any change to the at-will employment
relationship must be by specific, written agreement signed by Executive and an authorized
representative of the Company. Nothing in this Agreement is intended to or should be construed to
contradict, modify or alter this at-will relationship.
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7. General Provisions.
7.1 Successors and Assigns. The rights of the Company under this Agreement may,
without the consent of Executive, be assigned by the Company, in its sole and unfettered
discretion, to any person, firm, corporation or other business entity which at any time, whether by
purchase, merger or otherwise, directly or indirectly, acquires all or substantially all of the
assets or business of the Company. The Company will require any successor (whether direct or
indirect, by purchase, merger or otherwise) to all or substantially all of the business or assets
of the Company expressly to assume and to agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform it if no such succession had taken
place; provided, however, that no such assumption shall relieve the Company of its obligations
hereunder; provided, further, that the failure of any such successor to so assume this Agreement
shall constitute a material breach of this Agreement. As used in this Agreement, the “Company”
shall mean the Company as hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of law or otherwise.
Executive shall not be entitled to assign any of Executive’s rights or obligations under this
Agreement. 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.
7.2 Severability. In the event any provision of this Agreement is found to be
unenforceable by an arbitrator or court of competent jurisdiction, such provision shall be deemed
modified to the extent necessary to allow enforceability of the provision as so limited, it being
intended that the parties shall receive the benefit contemplated herein to the fullest extent
permitted by law. If a deemed modification is not satisfactory in the judgment of such arbitrator
or court, the unenforceable provision shall be deemed deleted, and the validity and enforceability
of the remaining provisions shall not be affected thereby.
7.3 Interpretation; Construction. The headings set forth in this Agreement are for
convenience only and shall not be used in interpreting this Agreement. This Agreement has been
drafted by legal counsel representing the Company, but Executive has participated in the
negotiation of its terms. Furthermore, Executive acknowledges that Executive has had an
opportunity to review and revise the Agreement and have it reviewed by legal counsel, if desired,
and, therefore, the normal rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation of this Agreement.
Either party’s failure to enforce any provision of this Agreement shall not in any way be construed
as a waiver of any such provision, or prevent that party thereafter from enforcing each and every
other provision of this Agreement.
7.4 Governing Law and Venue. This Agreement will be governed by and construed in
accordance with the laws of the United States and the State of California applicable to contracts
made and to be performed wholly within such State, and without regard to the conflicts of laws
principles thereof. Any suit brought hereon shall be brought in the state or federal courts
sitting in San Diego County, California, the Parties hereby waiving any claim or defense that such
forum is not convenient or proper. Each party hereby agrees that any such court shall have in
personam jurisdiction over it and consents to service of process in any manner authorized by
California law.
7.5 Notices. Any notice required or permitted by this Agreement shall be in writing
and shall be delivered as follows with notice deemed given as indicated: (a) by personal delivery
when delivered personally; (b) by overnight courier upon written verification of receipt; (c) by
telecopy or facsimile transmission upon acknowledgment of receipt of electronic transmission; or
(d) by certified or registered mail, return receipt requested, upon verification of receipt.
Notice shall be sent to Executive at the address set forth below and to the Company at its
principal place of business, or such other address as either party may specify in writing.
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7.6 Survival. Sections 1 (“Definitions”), 3 (“Severance”), 4 (“Confidentiality and
Proprietary Rights”), 5 (“Agreement to Arbitrate”) and 7 (“General Provisions”) of this Agreement
shall survive termination of Executive’s employment by the Company.
7.7 Entire Agreement. This Agreement and the Company Confidentiality and Proprietary
Rights Agreement incorporated herein by reference together constitute the entire agreement between
the parties in respect of the subject matter contained herein and therein and supersede all prior
or simultaneous representations, discussions, negotiations, and agreements, whether written or
oral. This Agreement may be amended or modified only with the written consent of Executive and an
authorized representative of the Company. No oral waiver, amendment or modification will be
effective under any circumstances whatsoever.
7.8 Code Section 409A Exempt.
(a) This Agreement is not intended to provide for any deferral of compensation subject to
Section 409A of the Code, and, accordingly, the severance payments payable under Section 7(d) shall
be paid no later than the later of: (i) the fifteenth (15th) day of the third month
following Executive’s first taxable year in which such severance benefit is no longer subject to a
substantial risk of forfeiture, and (ii) the fifteenth (15th) day of the third month
following first taxable year of the Company in which such severance benefit is no longer subject to
substantial risk of forfeiture, as determined in accordance with Code Section 409A and any Treasury
Regulations and other guidance issued thereunder. To the extent applicable, this Agreement shall
be interpreted in accordance with Code Section 409A and Department of Treasury regulations and
other interpretive guidance issued thereunder.
(b) If the Executive is a “specified employee” (as defined in Section 409A of the Code), as
determined by the Company in accordance with Section 409A of the Code, on the date of the
Executive’s Separation from Service, to the extent that the payments or benefits under this
Agreement are subject to Section 409A of the Code and the delayed payment or distribution of all or
any portion of such amounts to which Executive is entitled under this Agreement is required in
order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code, then such
portion deferred pursuant to this Section 7.8(b) shall be paid or distributed to Executive in a
lump sum on the earlier of (a) the date that is six (6)-months following Executive’s Separation
from Service, (b) the date of Executive’s death or (c) the earliest date as is permitted under
Section 409A of the Code. Any remaining payments due under the Agreement shall be paid as
otherwise provided herein.
7.9 Consultation with Legal and Financial Advisors. By executing this Agreement,
Executive acknowledges that this Agreement confers significant legal rights, and may also involve
the waiver of rights under other agreements; that the Company has encouraged Executive to consult
with Executive’s personal legal and financial advisors; and that Executive has had adequate time to
consult with Executive’s advisors before executing this Agreement.
7.10 Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original but all of which together shall constitute one and the same
instrument.
(Signature Page Follows)
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THE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT AND FULLY UNDERSTAND EACH AND
EVERY PROVISION CONTAINED HEREIN. WHEREFORE, THE PARTIES HAVE EXECUTED THIS AGREEMENT ON THE DATES
SHOWN BELOW.
| ViaSat, Inc. |
||||
| Dated: | By: | |||
| Name: | ||||
| Title: | ||||
| Executive |
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| Dated: | ||||
| Address: | ||||
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EXHIBIT A
GENERAL RELEASE OF CLAIMS
[The language in this Release may change based on legal developments and evolving best
practices; this form is provided as an example of what will be included in the final Release
document.]
This General Release of Claims (“Release”)
is entered into as of this ______ day of ______,
______, between ______ (“Executive”), and ViaSat, Inc., a Delaware corporation (the “Company”)
(collectively referred to herein as the “Parties”).
WHEREAS, Executive and the Company are parties to that certain Change in Control Severance
Agreement dated as of ______, 20___ (the “Agreement”);
WHEREAS, the Parties agree that Executive is entitled to certain severance benefits under the
Agreement, subject to Executive’s execution of this Release; and
WHEREAS, the Company and Executive now wish to fully and finally to resolve all matters
between them.
NOW, THEREFORE, in consideration of, and subject to, the severance benefits payable to
Executive pursuant to the Agreement, the adequacy of which is hereby acknowledged by Executive, and
which Executive acknowledges that he or she would not otherwise be entitled to receive, Executive
and the Company hereby agree as follows:
1. General Release of Claims by Executive.
(a) Executive, on behalf of himself or herself and his or her executors, heirs,
administrators, representatives and assigns, hereby agrees to release and forever discharge the
Company and all predecessors, successors and their respective parent corporations, affiliates,
related, and/or subsidiary entities, and all of their past and present investors, directors,
shareholders, officers, general or limited partners, employees, attorneys, agents and
representatives, and the employee benefit plans in which Executive is or has been a participant by
virtue of his or her employment with or service to the Company (collectively, the “Company
Releasees”), from any and all claims, debts, demands, accounts, judgments, rights, causes of
action, equitable relief, damages, costs, charges, complaints, obligations, promises, agreements,
controversies, suits, expenses, compensation, responsibility and liability of every kind and
character whatsoever (including attorneys’ fees and costs), whether in law or equity, known or
unknown, asserted or unasserted, suspected or unsuspected (collectively, “Claims”), which Executive
has or may have had against such entities based on any events or circumstances arising or occurring
on or prior to the date hereof or on or prior to the date hereof, arising directly or indirectly
out of, relating to, or in any other way involving in any manner whatsoever Executive’s employment
by or service to the Company or the termination thereof, including any and all claims arising under
federal, state, or local laws relating to employment, including without limitation claims of
wrongful discharge, breach of express or implied contract, fraud, misrepresentation, defamation, or
liability in tort, and claims of any kind that may be brought in any court or administrative agency
including, without limitation, claims under Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. Section 2000, et seq.; the Americans with Disabilities Act, as amended,
42 U.S.C. § 12101 et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §
701 et seq.; the Civil Rights Act of 1866, and the Civil Rights Act of 1991; 42
U.S.C. Section 1981, et seq.; the Age Discrimination in Employment Act, as amended,
29 U.S.C. Section 621, et seq. (the “ADEA”); the Equal Pay Act, as amended, 29
U.S.C. Section 206(d); regulations of the
Office of Federal Contract Compliance, 41 C.F.R. Section 60, et seq.; the
Family and Medical Leave Act, as amended, 29 U.S.C. § 2601 et seq.; the Fair Labor
Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq.; the Employee Retirement
Income Security Act, as amended, 29 U.S.C. § 1001 et seq.; and the California Fair
Employment and Housing Act, California Government Code Section 12940, et seq.
Notwithstanding the generality of the foregoing, Executive does not release the following
claims:
(i) Claims for unemployment compensation or any state disability insurance benefits
pursuant to the terms of applicable state law;
(ii) Claims for workers’ compensation insurance benefits under the terms of any
worker’s compensation insurance policy or fund of the Company;
(iii) Claims pursuant to the terms and conditions of the federal law known as COBRA;
(iv) Claims for indemnity under the bylaws of the Company, as provided for by
California law or under any applicable insurance policy with respect to Executive’s
liability as an employee, director or officer of the Company;
(v) Claims based on any right Executive may have to enforce the Company’s executory
obligations under the Agreement; and
(vi) Claims Executive may have to vested or earned compensation and benefits.
(b) EXECUTIVE ACKNOWLEDGES THAT HE OR SHE HAS BEEN ADVISED OF AND IS FAMILIAR WITH THE
PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES 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.”
BEING AWARE OF SAID CODE SECTION, EXECUTIVE HEREBY EXPRESSLY WAIVES ANY RIGHTS HE OR SHE MAY
HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT.
(c) Executive acknowledges that this Release was presented to him or her on the date indicated
above and that Executive is entitled to have twenty-one (21) days’ time in which to consider it.
Executive further acknowledges that the Company has advised him or her that he or she is waiving
his or her rights under the ADEA, and that Executive should consult with an attorney of his or her
choice before signing this Release, and Executive has had sufficient time to consider the terms of
this Release. Executive represents and acknowledges that if Executive executes this Release before
twenty-one (21) days have elapsed, Executive does so knowingly, voluntarily, and upon the advice
and with the approval of Executive’s legal counsel (if any), and that Executive voluntarily waives
any remaining consideration period.
(d) Executive understands that after executing this Release, Executive has the right to revoke
it within seven (7) days after his or her execution of it. Executive understands that this Release
will not become effective and enforceable unless the seven (7) day revocation period passes and
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Executive does not revoke the Release in writing. Executive understands that this Release may
not be revoked after the seven (7) day revocation period has passed. Executive also understands
that any revocation of this Release must be made in writing and delivered to the Company at its
principal place of business within the seven (7) day period.
(e) Executive understands that this Release shall become effective, irrevocable, and binding
upon Executive on the eighth (8th) day after his or her execution of it, so long as
Executive has not revoked it within the time period and in the manner specified in clause (d)
above. Executive further understands that Executive will not be given any severance benefits under
the Agreement unless this Release is effective on or before the date that is sixty (60) days
following the date of Executive’s termination of employment.
2. No Assignment. Executive represents and warrants to the Company Releasees that
there has been no assignment or other transfer of any interest in any Claim that Executive may have
against the Company Releasees. Executive agrees to indemnify and hold harmless the Company
Releasees from any liability, claims, demands, damages, costs, expenses and attorneys’ fees
incurred as a result of any such assignment or transfer from Executive.
3. Severability. In the event any provision of this Release is found to be
unenforceable by an arbitrator or court of competent jurisdiction, such provision shall be deemed
modified to the extent necessary to allow enforceability of the provision as so limited, it being
intended that the parties shall receive the benefit contemplated herein to the fullest extent
permitted by law. If a deemed modification is not satisfactory in the judgment of such arbitrator
or court, the unenforceable provision shall be deemed deleted, and the validity and enforceability
of the remaining provisions shall not be affected thereby.
4. Interpretation; Construction. The headings set forth in this Release are for
convenience only and shall not be used in interpreting this Agreement. This Release has been
drafted by legal counsel representing the Company, but Executive has participated in the
negotiation of its terms. Furthermore, Executive acknowledges that Executive has had an
opportunity to review and revise the Release and have it reviewed by legal counsel, if desired,
and, therefore, the normal rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation of this Release.
Either party’s failure to enforce any provision of this Release shall not in any way be construed
as a waiver of any such provision, or prevent that party thereafter from enforcing each and every
other provision of this Release.
5. Governing Law and Venue. This Release will be governed by and construed in
accordance with the laws of the United States of America and the State of California applicable to
contracts made and to be performed wholly within such State, and without regard to the conflicts of
laws principles thereof. Any suit brought hereon shall be brought in the state or federal courts
sitting in San Diego, California, the Parties hereby waiving any claim or defense that such forum
is not convenient or proper. Each party hereby agrees that any such court shall have in personam
jurisdiction over it and consents to service of process in any manner authorized by California law.
6. Entire Agreement. This Release and the Agreement constitute the entire agreement
of the Parties in respect of the subject matter contained herein and therein and supersede all
prior or simultaneous representations, discussions, negotiations and agreements, whether written or
oral. This Release may be amended or modified only with the written consent of Executive and an
authorized representative of the Company. No oral waiver, amendment or modification will be
effective under any circumstances whatsoever.
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7. Counterparts. This Release may be executed in multiple counterparts, each of which
shall be deemed to be an original but all of which together shall constitute one and the same
instrument.
(Signature Page Follows)
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IN WITNESS WHEREOF, and intending to be legally bound, the Parties have executed the foregoing
Release as of the date first written above.
Executive |
ViaSat, Inc. | ||||
| By: | |||||
Print Name:
|
Print Name: | ||||
| Title: | |||||
5
EXHIBIT B
COMPANY EMPLOYEE PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
SCHEDULE I TO EXHIBIT 10.1
As of the date of filing this report, the Company has entered into this form of Change in
Control Severance Agreement with the executive officers of the Company listed below. In accordance
with Instruction 2 to Item 601 of Regulation S-K, the Company has filed only the form of such
agreement as the agreements are substantially identical in all material respects, except as to the
parties thereto and, in Section 3(a)(ii) of the agreements, the percentage of annual base salary
and target annual cash bonus included in the severance payment. The Company agrees to furnish the
agreements at the request of the SEC.
| Name | Percentage | |||
Xxxx X. Xxxxxxxx |
300 | % | ||
Xxxxxxx X. Xxxxxxxxx |
300 | % | ||
H. Xxxxxxx Xxxxx |
200 | % | ||
Xxxxx X. Xxxxxxxxxxx |
200 | % | ||
Xxxxxx X. Xxxx |
200 | % | ||
Xxxxx X. Xxxxxxx |
200 | % | ||
Xxxx X. Xxxxxx |
200 | % | ||
Xxxxxx X. Xxxxx |
200 | % | ||
Xxxxxx X. Xxxxxxxx |
200 | % | ||
