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EXHIBIT 10.15
EXECUTIVE STAFF
C-CUBE MICROSYSTEMS INC.
MANAGEMENT RETENTION AGREEMENT
This Management Retention Agreement (the "Agreement") is made and entered
into by and between [ ] (the "Employee") and C-Cube Microsystems Inc.
(the "Company"), effective as of [ ], 2001 (the "Effective Date").
R E C I T A L S
A. It is expected that the Company from time to time will consider
the possibility of an acquisition by another company or other change of control.
The Board of Directors of the Company (the "Board") recognizes that such
consideration can be a distraction to Employee and can cause Employee to
consider alternative employment opportunities. The Board has determined that it
is in the best interests of the Company and its shareholders to assure that the
Company will have the continued dedication and objectivity of Employee,
notwithstanding the possibility, threat or occurrence of a Change of Control
(as defined below) of the Company.
B. The Board believes that it is in the best interests of the
Company and its shareholders to provide Employee with an incentive to continue
his employment and to motivate Employee to maximize the value of the Company
upon a Change of Control for the benefit of its shareholders.
C. The Board believes that it is imperative to provide Employee with
certain severance benefits upon Employee's termination of employment in
anticipation of or following a Change of Control which provides Employee with
enhanced financial security and provides incentive and encouragement to
Employee to remain with the Company notwithstanding the possibility of a Change
of Control.
D. Certain capitalized terms used in the Agreement are defined in
Section 8 below.
The parties hereto agree as follows:
1. Term of Agreement. This Agreement shall terminate upon the date that
all obligations of the parties hereto with respect to this Agreement have been
satisfied.
2. At-Will Employment. The Company and Employee acknowledge that
Employee's employment is and shall continue to be at-will, as defined under
applicable law. If Employee's employment terminates for any reason, including
(without limitation) any termination prior to a Change of Control (other than a
termination in anticipation of a Change of Control), Employee shall not be
entitled to any payments, benefits, damages, awards or compensation other than
as provided by this Agreement, or as may otherwise be available in accordance
with the Company's established employee plans and practices or pursuant to other
agreements with the Company.
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3. Change of Control Severance Benefits.
(a) Termination Without Cause or by Reason of an Involuntary
Termination. If Employee's employment is terminated (i) for reasons other than
Cause (other than by reason of Employee's death or Disability) or (ii) by
reason of an Involuntary Termination, in either case in anticipation of, on or
within twelve (12) months following a Change of Control, then Employee shall be
entitled to receive the following benefits from the Company:
(i) Salary Continuation. Employee shall receive continuation of
Base Salary for a period of twelve (12) months following Employee's termination
of employment; provided, however, any such salary continuation shall
immediately terminate upon Employee's commencement of full-time employment with
another employer. All such severance payments shall be made in accordance with
the Company's normal payroll practices. Such continuation of Base Salary shall
be in lieu of any and all other benefits for which Employee is entitled to
receive on the date of Employee's termination of employment pursuant to any
Company severance and benefit plans and practices or pursuant to other
agreements with the Company.
(ii) Employee Benefits Continuation. Employee shall receive one
hundred percent (100%) of Company-paid health, dental, vision, long-term
disability and life insurance coverage at the same level of coverage as was
provided to Employee immediately prior to Employee's termination of employment
("Company-Paid Coverage"). If such coverage included Employee's dependents
immediately prior to Employee's termination, such dependents shall also be
covered at the Company's expense. Company-Paid Coverage shall continue until
the earlier of (8) twelve (12) months following the date of Employee's
termination, or (ii) the date upon which Employee or Employee's dependents
become covered under another employer's group health, dental and vision,
long-term disability or life insurance plans.
(iii) Equity Compensation Accelerated Vesting. Immediately upon
Employee's termination, the unvested portion of any stock option, restricted
stock or other Company equity compensation held by the Employee shall partially
accelerate and become immediately vested with respect to fifty percent (50%) of
the unvested shares that would have vested on each vesting date remaining on
the applicable vesting schedule had the Employee remained as an employee on
each such vesting date.
(b) Voluntary Resignation; Termination for Cause. If the Employee's
employment terminates by reason of the Employee's voluntary resignation that is
not an Involuntary Termination, or if the Employee is terminated for Cause,
then the Employee shall not be entitled to receive severance or other benefits
except for those (if any) as may then be established under the Company's then
existing severance and benefits plans or pursuant to other written agreements
with the Company.
(c) Disability; Death. If the Employee's employment with the Company
terminates as a result of the Employee's Disability, or if Employee's
employment is terminated due to the death of the Employee, then the Employee
shall not be entitled to receive severance or other benefits except for those
(if any) as may then be established under the Company's then existing severance
and benefits plans or pursuant to other written agreements with the Company.
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(d) Termination Apart from Change of Control. In the event the
Employee's employment is terminated for any reason, either prior to the
occurrence of a Change of Control (but not in anticipation of such Change of
Control) or after the twelve (12) month period following a Change of Control,
then the Employee shall be entitled to receive severance and any other benefits
only as may then be established under the Company's existing severance and
benefits plans or pursuant to other written agreements with the Company.
4. Non-solicitation. Employee agrees that during the period of
Employee's employment with the Company and for a period of twenty-four (24)
months following the Employee's termination of employment for any reason,
Employee will not:
(a) Directly or indirectly induce or attempt to influence any
employee of the Company to leave its employ; or
(b) Without prior written authorization from the Company, disclose
to anyone outside the Company, or use in other than the Company's business, any
confidential information and material relating to the business of the Company.
5. Execution of Release Agreement upon Termination. As a condition of
entering into this Agreement and receiving the benefits hereunder, Employee
agrees to execute a release of claims agreement substantially in the form
attached hereto as Exhibit A upon the termination of his employment with the
Company.
6. Limitation on Payments. In the event that the severance and other
benefits provided for in this Agreement or otherwise payable to Employee (i)
constitute "parachute payments" within the meaning of Section 280G of the
Internal Revenue Code of 1986, as amended (the "Code") and (ii) but for this
Section 6, would be subject to the excise tax imposed by Section 4999 of the
Code (the "Excise Tax"), then Employee's benefits hereunder shall be either
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no
portion of such severance benefits being subject to the Excise Tax,
whichever of the foregoing amounts, taking into account the applicable federal,
state and local income and employment taxes and the Excise Tax, results in the
receipt by Employee on an after-tax basis, of the greatest amount of severance
benefits, notwithstanding that all or some portion of such benefits may be
taxable under the Excise Tax. Unless the Company and Employee agree in writing,
any determination required under this Section 6 shall be made in writing in
good faith by the accounting firm serving as the Company's independent public
accountants immediately prior to the Change of Control (the "Accountants"). For
purposes of making the calculations required by this Section 6, Accountants may
make reasonable assumptions and approximations concerning applicable taxes and
may rely on reasonable, good faith interpretations concerning the application
of the Code. The Company and Employee shall furnish to the Accountants such
information and documents as the Accountants may reasonably request in order to
make a determination under this Section. The Company shall
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bear all costs the Accountants may reasonably incur in connection with any
calculations contemplated by this Section 6.
7. Pooling of Interests Limitation. To the extent any of the benefits
(including the equity compensation vesting acceleration) hereunder would cause a
contemplated Change of Control transaction that was intended to be accounted for
as a "pooling-of-interests" transaction to become ineligible for such accounting
treatment under generally accepted accounting principles, as determined by the
Accountants, then this Agreement shall automatically be deemed amended to
provide Employee with such lesser benefits as would allow for the contemplated
Change of Control transaction to be accounted for as a "pooling-of-interests"
transaction.
8. Definition of Terms. The following terms, when capitalized to in this
Agreement, shall have the following meanings:
(a) Base Salary. "Base Salary" shall mean Employee's annual Company
salary at the rate in effect immediately preceding Employee's date of
termination with the Company.
(b) Cause. "Cause" shall mean either (i) any act of personal
dishonesty taken by Employee in connection with his responsibilities as an
employee and intended to result in substantial personal enrichment of Employee,
(ii) Employee's conviction of or entry of a plea of nolo contendere to a felony,
(iii) a willful act by Employee which constitutes gross misconduct and which is
demonstrably injurious to the Company, or (iv) following delivery to Employee of
a written demand for performance from the Company which describes the basis for
the Company's belief that Employee has not substantially performed his duties,
continued substantial violations by Employee of Employee's obligations to the
Company which are demonstrably willful and deliberate on Employee's part.
(c) Change of Control. "Change of Control" shall mean the occurrence
of any of the following events:
(i) Any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended) becomes the
"beneficial owner" (as defined in Rule 13d-3 under said Act), directly or
indirectly, of securities of the Company representing fifty percent (50%) or
more of the total voting power represented by the Company's then outstanding
voting securities; or
(ii) The consummation of the sale or disposition by the Company
of all or substantially all the Company's assets; or
(iii) The consummation of a merger or consolidation of the
Company with any other corporation, other than a merger or consolidation which
would result in the voting securities of the Company outstanding immediately
prior thereto continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity or its parent) at
least fifty percent (50%) of the total voting power represented by the voting
securities of the Company or such surviving entity or its parent outstanding
immediately after such merger or consolidation; or
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(iv) A change in the composition of the board occurring within a
two-year period, as a result of which fewer than a majority of the directors
are Incumbent Directors. "Incumbent Directors" shall mean directors who either
(A) are directors of the Company as of the date upon which this Agreement was
entered into, or (B) are elected, or nominated for election, to the Board with
the affirmative votes of at least a majority of those directors whose election
or nomination was not in connection with any transaction described in
subsections (i), (ii), or (iii) above, or in connection with an actual or
threatened proxy contest relating to the election of directors to the Company;
or
(v) The sale or disposition to third parties by the Company of all
or substantially all of the business or division of the Company that employs
the Employee.
(d) Disability. "Disability" shall mean that the Employee has been unable
to perform his Company duties as the result of his incapacity due to physical or
mental illness, and such inability, at least 26 weeks after its commencement, is
determined to be total and permanent by a physician selected by the Company or
its insurers and acceptable to the Employee or the Employee's legal
representative (such Agreement as to acceptability not to be unreasonably
withheld). Termination resulting from Disability may only be effected after at
least 30 days' written notice by the Company of its intention to terminate the
Employee's employment. In the event that the Employee resumes the performance of
substantially all of his duties hereunder before the termination of his
employment becomes effective, the notice of intent to terminate shall
automatically be deemed to have been revoked.
(e) Involuntary Termination. "Involuntary Termination" shall mean (i)
without Employee's express written consent, a material reduction of Employee's
duties, authority and responsibilities, relative to Employee's duties, authority
and responsibilities as in effect immediately prior to such reduction, or the
assignment to Employee of such reduced duties, authority and responsibilities;
provided, however, that a reduction in duties, authority and responsibilities
solely by virtue of the Company being acquired and made part of a larger entity
(as, for example, when the Chief Financial Officer of C-Cube Microsystems Inc.
remains as such following a Change of Control and is not made the Chief
Financial Officer of the acquiring corporation) shall not constitute
"Involuntary Termination;" (ii) a reduction by the Company in the Base Salary of
Employee as in effect immediately prior to such reduction, other than any such
reduction which is part of, and generally consistent with, a general reduction
of officers salaries or cash incentive compensation; (iii) a material reduction
by the Company in the kind or level of employee benefits, to which Employee was
entitled immediately prior to such reduction with the result that Employee's
overall benefits package is materially reduced; (iv) the relocation of Employee
to a facility or a location more than thirty-five (35) miles from Employee's
then present location, without Employee's express written consent; (v) any
purported termination of Employee by the Company which is not effected for
Disability or for Cause, or any purported termination for which the grounds
relied upon are not valid; or (vi) the failure of the Company to obtain the
assumption of this agreement by any successors contemplated in Section 9(a)
below.
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9. Successors.
(a) Company's Successors. Any successors to the Company (whether
director or indirect and whether by purchase, merger, consolidation, liquidation
or otherwise) to all or substantially all of the Company's business and/or
assets (or, in the case of a transaction described in subsection 8(c)(v), the
successor to such business or division) shall assume the obligations under this
Agreement and agree expressly to perform the obligations under this Agreement in
the same manner and to the same extent as the Company would be required to
perform such obligations in the absence of a succession. For all purposes under
this Agreement, the term "Company" shall include any such successor to the
Company which executes and delivers the assumption agreement described in this
Section 9(a) or which becomes bound by the terms of this Agreement by operation
of law.
(b) Employee's Successors. The terms of this Agreement and all rights
of Employee hereunder shall inure to the benefit of, and be enforceable by,
Employee's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
10. Notice.
(a) General. Notices and all other communications contemplated by this
Agreement shall be in writing and shall be deemed to have been duly given when
personally delivered or when mailed by U.S. registered or certified mail, return
receipt requested and postage prepaid. In the case of Employee, mailed notices
shall be addressed to him at the home address which he most recently
communicated to the Company in writing. In the case of the Company, mailed
notices shall be addressed to its corporate headquarters, and all notices shall
be directed to the attention of its Secretary.
(b) Notice of Termination. Any termination by the Company for Cause or
by Employee as a result of an Involuntary Termination shall be communicated by a
notice of termination to the other party hereto given in accordance with Section
10(a) of this Agreement. Such notice shall indicate the specific termination
provision of this Agreement relied upon, shall set forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination under the
provision so indicated, and shall specify the termination date (which shall be
not more than 30 days after the giving of such notice). The failure by Employee
to include in the notice any fact or circumstance which contributes to a showing
of Involuntary Termination shall waive any right of Employee hereunder or
preclude Employee from asserting such fact or circumstance in enforcing his
rights hereunder.
11. Miscellaneous Provisions.
(a) Waiver. No provision of this Agreement shall be modified, waived or
discharged unless the modification, waiver or discharge is agreed to in writing
and signed by Employee and by an authorized officer of the Company (other than
Employee). No waiver by either party of any breach of, or of compliance with,
any condition or provision of this
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Agreement by the other party shall be considered a waiver of any other
condition or provision or of the same condition or provision at another time.
(b) Whole Agreement. No agreements, representations or understandings
(whether oral or written and whether express or impled) which are not expressly
set forth in this Agreement have been made or entered into by either party with
respect to the subject matter hereof. This Agreement represents the entire
understanding of the parties hereto with respect to the subject matter hereof
and supersedes all prior arrangements and understandings regarding same.
(c) Choice of Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
California.
(d) Severability. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity of enforceability of
any other provision hereof, which shall remain in full force and effect.
(e) Withholding. All payments made pursuant to this Agreement will be
subject to withholding of applicable income and employment taxes to the extent
required by law.
(f) Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together will constitute
one and the same instrument.
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IN WITNESS WHEREOF, each of the parties has executed this Agreement, in
the case of the Company by its duly authorized officer, as of the day and year
set forth below.
COMPANY
By:
----------------------------
Title:
---------------------------
Date:
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EMPLOYEE, an individual
By:
-----------------------
Print Name:
-----------------------
Date:
-----------------------
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EXHIBIT A
FORM RELEASE OF CLAIMS AGREEMENT
This Release of Claims Agreement ("Agreement") is made by and between
____________________ (the "Company") and __________________ ("Employee").
WHEREAS, Employee was employed by the Company;
WHEREAS, the Company (or the Company's predecessor) and Employee have
entered into a Management Retention Agreement effective as of _____________,
2000 (the "Management Agreement");
NOW THEREFORE, in consideration of the mutual promises made herein, the
Company and Employee (collectively referred to as "the Parties") hereby agree as
follows:
1. Termination. Employee's employment with the Company terminated on
_________, 200_.
2. Consideration. Subject to and in consideration of Employee's
release of claims as provided herein, the Company has agreed to pay Employee
certain benefits as set forth in the Management Agreement.
3. Payment of Salary. Employee acknowledges and represents that except
as to amounts that remain payable to Employee pursuant to the terms of the
Management Agreement, the Company has paid all salary, wages, bonuses, accrued
vacation, commissions and any and all other benefits due to Employee.
4. Release of Claims. Employee agrees that the foregoing consideration
represents settlement in full of all outstanding obligations owed to Employee by
the Company. Employee, on behalf of himself, and his respective heirs, family
members, executors and assigns, hereby fully and forever releases the Company
and its past, present and future officers, agents, directors, employees,
investors, shareholders, administrators, affiliates, divisions, subsidiaries,
parents, predecessor and successor corporations, and assigns, from, and agrees
not to xxx or otherwise institute or cause to be instituted any legal or
administrative proceedings concerning any claim, duty, obligation or cause of
action relating to any matters of any kind, whether presently known or unknown,
suspects or unsuspected, that he may possess arising from any omissions, acts or
facts that have occurred up until and including the Effective Date of this
Agreement including, without limitation,
(a) any and all claims relating to or arising from Employee's
employment relationship with the Company and the termination of that
relationship;
(b) any and all claims relating to, or arising from, Employee's
right to purchase, or actual purchase of shares of stock of the Company,
including, without limitation, any claims for fraud, misrepresentation, breach
of fiduciary duty, breach of duty under applicable state corporate law, and
securities fraud under any state or federal law;
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(c) any and all claims for wrongful discharge of employment;
termination in violation of public policy; discrimination; breach of contract,
both express and implied; breach of a covenant of good faith and fair dealing,
both express and implied; promissory estoppel; negligent or intentional
infliction of emotional distress; negligent or intentional misrepresentation;
negligent or intentional interference with contract or prospective economic
advantage; unfair business practices; defamation; libel; slander; negligence;
personal injury; assault; battery; invasion of privacy; false imprisonment; and
conversion;
(d) any and all claims for violation of any federal, state or
municipal statute, including, but not limited to, Title VII of the Civil Rights
Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in Employment
Act of 1967, the Americans with Disabilities Act of 1990, the Fair Labor
Standards Act, the Employee Retirement Income Security Act of 1974, The Worker
Adjustment and Retraining Notification Act, the California Fair Employment and
Housing Act, and Labor Code section 201, et seq. and section 970, et seq. and
all amendments to each such Act as well as the regulations issued thereunder;
(e) any and all claims for violation of the federal, or any
state, constitution;
(f) any and all claims arising out of any other laws and
regulations relating to employment or employment discrimination; and
(g) any and all claims for attorneys' fees and costs.
(h) Employee agrees that the release set forth in this section
shall be and remain in effect in all respects as a complete general release as
to the matters released. This release doses not extend to any obligations
incurred under this Agreement. This release does not extend to the Company's
obligations to indemnify Employee for acts committed in the course and scope of
his employment with the Company (or its predecessor) to the fullest extent
provided for in the California Labor Code, or any other right or contract of
indemnification. This release does not apply under any Company employee benefit
and/or retirement plan to the extent rights are provided for in such plan(s).
5. Acknowledgment of Waiver of Claims under ADEA. Employee
acknowledges that he is waiving and releasing any rights he may have under the
Age Discrimination in Employment Act of 1967 ("ADEA") and that this waiver and
release is knowing and voluntary. Employee and the Company agree that this
waiver and release does not apply to any rights or claims that may arise under
the ADEA after the Effective Date of this Agreement. Employee acknowledges that
the consideration given for this waiver and release agreement is in addition to
anything of value to which Employee was already entitled. Employee further
acknowledges that he has been advised by this writing that (a) he should consult
with an attorney prior to executing this Agreement; (b) he has at least
twenty-one (21) days within which to consider this Agreement; (c) he has 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. Any revocation should be in writing and delivered to an
authorized officer of the Company by close of business on the seventh day from
the date that Employee signs this Agreement.
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6. Civil Code Section 1542. Employee represents that he is not aware
of any claims against the Company other than the claims that are released by
this Agreement. Employee acknowledges that he has been advised by legal counsel
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 FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR.
Employee, being aware of said code section, agrees to expressly waive any
rights he may have thereunder, as well as under any other statute or common law
principles of similar effect.
7. No Pending or Future Lawsuits. Employee represents that he has
no lawsuits, claims, or actions pending in his name, or on behalf of any other
person or entity, against the Company or any other person or entity referred to
herein. Employee also represents that he does not intend to bring any claims on
his own behalf or on behalf of any other person or entity against the Company
or any other person or entity referred to herein.
8. Confidentiality. Employee agrees to use his best efforts to
maintain in confidence the existence of this Agreement, the contents and terms
of this Agreement, and the consideration for this Agreement (hereinafter
collectively referred to as "Release Information"). Employee agrees to take
every reasonable precaution to prevent disclosure of any Release Information to
third parties, and agrees that there will be no publicity, directly or
indirectly, concerning any Release Information. Employee agrees to take every
precaution to disclose Release Information only to those attorneys, accountants,
governmental entities, and family members who have a reasonable need to know of
such Release Information.
9. No Cooperation. Employee agrees he will not act in any manner
that might damage the business of the Company. Employee agrees that he will not
counsel or assist any attorneys or their clients in the presentation or
prosecution of any disputes, differences, grievances, claims, charges, or
complaints by any third party against the Company and/or any officer, director,
employee, agent, representative, shareholder or attorney of the Company, unless
under a subpoena or other court order to do so.
10. Costs. The Parties shall each bear their own costs, expert fees,
attorneys' fees and other fees incurred in connection with this Agreement.
11. Authority. Employee represents and warrants that he has the
capacity to act on his own behalf and on behalf of all who might claim through
him to bind them to the terms and conditions of this Agreement.
12. No Representations. Employee represents that he has had the
opportunity to consult with an attorney, and has carefully read and understands
the scope and effect of the provisions of this Agreement. Neither party has
relied upon any representations or statements made by the other party hereto
which are not specifically set forth in this Agreement.
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13. Severability. In the event that any provision hereof becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement shall continue in full force and effect without said
provision.
14. Entire Agreement. This Agreement and the Management Agreement and the
agreements and plans referenced therein represent the entire agreement and
understanding between the Company and Employee concerning Employee's separation
from the Company, and supersede and replace any and all prior agreements and
understandings concerning Employee's relationship with the Company and his
compensation by the Company. This Agreement may only be amended in writing
signed by Employee and an executive officer of the Company.
15. Governing Law. This Agreement shall be governed by the internal
substantive laws, but not the choice of law rules, of the State of California.
16. Effective Date. This Agreement is effective eight (8) days after it
has been signed by both Parties.
17. Counterparts. This Agreement may be executed in counterparts, and
each counterpart shall have the same force and effect as an original and shall
constitute an effective, binding agreement on the part of each of the
undersigned.
18. Voluntary Execution of Agreement. This Agreement is executed
voluntarily and without any duress or undue influence on the part or behalf of
the Parties hereto, with the full intent of releasing all claims. The Parties
acknowledge that:
(a) They have read this Agreement;
(b) They have been represented in the preparation, negotiation, and
execution of this Agreement by legal counsel of their own choice or that they
have voluntarily declined to seek such counsel;
(c) They understand the terms and consequences of this Agreement and
of the releases it contains;
(d) They are fully aware of the legal and binding effect of this
Agreement.
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IN WITNESS WHEREOF, the Parties have executed this Agreement on the
respective dates set forth below.
COMPANY
By:
-------------------------------------
Title:
----------------------------------
Date:
-----------------------------------
EMPLOYEE, an individual
By:
-------------------------------------
Print Name:
-----------------------------
Date:
-----------------------------------
