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EXHIBIT (e)(4)
FORM OF
AMENDED AND RESTATED
EXECUTIVE SEVERANCE BENEFITS AGREEMENT
This AMENDED AND RESTATED EXECUTIVE SEVERANCE BENEFITS AGREEMENT (the
"Agreement") is entered into as of the 1st day of November, 2000 (the "Effective
Date"), between [______________________________] ("EXECUTIVE") and EGREETINGS
NETWORK, INC. (the "Company"). This Agreement is intended to provide Executive
with the compensation and benefits described herein upon the occurrence of
specific events. Certain capitalized terms used in this Agreement are defined in
Article 5.
The Company and Executive hereby agree as follows:
ARTICLE 1
SCOPE OF AND CONSIDERATION FOR THIS AGREEMENT
1.1 Executive is currently employed by the Company.
1.2 The Company and Executive wish to set forth the compensation and
benefits that Executive shall be entitled to receive in (a) recognition of
continued service with the Company through April 30, 2001 (the "Trigger Date"),
or (b) the event of Executive's severance from employment with the Company
following a Change in Control.
1.3 The duties and obligations of the Company to Executive under this
Agreement shall be in consideration for Executive's past services to the
Company, Executive's continued employment with the Company and, with respect to
the benefits described in Article 2, Executive's execution of a release in
accordance with Section 4.1.
1.4 This Agreement shall supersede any other agreement relating to cash
compensation benefits and/or bonus plans with the Company and benefits in the
event of Executive's severance from employment with the Company either following
a Change in Control or prior to the Trigger Date and any bonus plans or payments
promised for the fiscal year 2000.
ARTICLE 2
SEVERANCE BENEFITS FOR COVERED TERMINATION
2.1 SEVERANCE BENEFITS. If Executive's employment terminates due to an
Involuntary Termination Without Cause or a Constructive Termination, in either
case within thirteen (13) months following the effective date of a Change in
Control, such termination of employment will be deemed a Covered Termination. A
Covered Termination will entitle Executive to receive the benefits set forth in
Sections 2.2, 2.3, 2.4 and 2.5.
2.2 SALARY CONTINUATION. Executive shall continue to receive Base
Salary, as defined in Section 6.1, for ____ (__) months following a Covered
Termination. Such amount
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shall be paid in regular installments on the normal payroll dates of the Company
and shall be subject to all required tax withholding.
2.3 CONTINUED INSURANCE BENEFITS. Provided that Executive elects
continued coverage under the Consolidated Omnibus Budget Reconciliation Act of
1985 ("COBRA"), the Company shall pay the portion of premiums of Executive's
group medical, dental and vision coverage, including coverage for Executive's
eligible dependents, that the Company paid prior to the Covered Termination. The
number of months of such premium payments shall equal the number of months of
salary continuation payments pursuant to Section 2.2 above, but in no event
shall such premium payments be made for a period exceeding eighteen (18) months
or be made following the effective date of Executive's coverage by a medical,
dental or vision insurance plan of a subsequent employer. Executive shall be
required to notify the Company immediately if Executive becomes covered by a
medical, dental or vision insurance plan of subsequent employer.
No provision of this Agreement will affect the continuation coverage
rules under COBRA, except that the Company's payment of any applicable insurance
premiums during the period of salary continuation will be credited as payment by
Executive for purposes of Executive's payment required under COBRA. Therefore,
the period during which Executive must elect to continue the Company's group
medical coverage at Executive's own expense under COBRA, the length of time
during which COBRA coverage will be made available to Executive, and all other
rights and obligations of Executive under COBRA (except the obligation to pay
insurance premiums that the Company pays during the period of salary
continuation) will be applied in the same manner that such rules would apply in
the absence of this Agreement. At the conclusion of the period of salary
continuation during which the Company will pay a portion of the premiums for
Executive's group medical, dental and vision coverage, Executive will be
responsible for the entire payment of premiums required under COBRA for the
duration of the COBRA period. For purposes of this Section 2.4, applicable
premiums that will be paid by the Company shall not include any amounts payable
by Executive under a Section 125 health care reimbursement plan, which amounts,
if any, are the sole responsibility of Executive.
2.4 ACCELERATION OF VESTING. Effective as of the date of the Covered
Termination, Executive shall be credited with an additional [___________( )]
months of vesting under all options to purchase the Company's Common Stock that
Executive holds on such date.
2.5 MITIGATION. Except as otherwise specifically provided herein,
Executive shall not be required to mitigate damages or the amount of any payment
provided under this Agreement by seeking other employment or otherwise, nor
shall the amount of any payment provided for under this Agreement be reduced by
any compensation earned by Executive as a result of employment by another
employer or by any retirement benefits received by Executive after the date of
the Covered Termination.
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ARTICLE 3
BENEFITS FOR CONTINUED EMPLOYMENT THROUGH TRIGGER DATE
3.1 BONUS PAYMENT. Upon continued employment, with satisfactory job
performance, through the Trigger Date, the Company shall pay Executive a
retention bonus for past services constituting the equivalent of ___ (__) months
Base Salary, subject to applicable withholding, payable as a lump sum payment,
subject to all applicable limitations and conditions on benefits described in
Article 4. Any commissions paid to Executive during the course of his or her
employment shall be expressly excluded from the calculation of payments.
3.2 SEVERANCE BENEFITS. If Executive's employment terminates due to an
Involuntary Termination Without Cause or a Constructive Termination, in either
case within six (6) months preceding the Trigger Date, that is not in connection
with a Change of Control, such date of termination of employment will be deemed
to be a Trigger Date for the purposes of determining severance payments to
Executive, subject to all other limitations and conditions on benefits described
in Article 4. If a Covered Termination occurs in the (6) months prior to the
Trigger Date, Executive shall receive the greater of (i) the benefits payable
under Article 2, section 2.3 and 2.4 hereof, or (ii) the bonus payment payable
under this Article 3. If a Covered Termination occurs after the Trigger Date,
the provisions of Article 2 shall apply regardless of whether a bonus payment
was paid to Executive on the Trigger Date.
3.3 MITIGATION. Executive shall not be required to mitigate damages or
the amount of any payment provided under Section 3.2 by seeking other employment
or otherwise, nor shall the amount of any payment provided for under this
Agreement be reduced by any compensation earned by Executive as a result of
employment by another employer or by any retirement benefits received by
Executive after the date of the Covered Termination, Involuntary Termination
Without Cause or a Constructive Termination under Section 3.2 above.
ARTICLE 4
LIMITATIONS AND CONDITIONS ON BENEFITS
4.1 RELEASE PRIOR TO PAYMENT OF BENEFITS. Upon the occurrence of a
Covered Termination, and prior to the payment of any benefits under this
Agreement on account of such Covered Termination, Executive shall execute a
release (the "Release") in the form attached hereto and incorporated herein as
Exhibit A, Exhibit B or Exhibit C, as applicable. Such Release shall
specifically relate to all of Executive's rights and claims in existence at the
time of such execution and shall confirm Executive's obligations under the
Company's standard form of proprietary information and inventions agreement. It
is understood that, as specified in the applicable Release, Executive has a
certain number of calendar days to consider whether to execute such Release, and
Executive may revoke such Release within seven (7) calendar days after
execution. In the event Executive does not execute such Release within the
applicable period, or if Executive revokes such Release within the subsequent
seven (7) day period, no benefits shall be payable under this Agreement, and
this Agreement shall be null and void.
4.2 PARACHUTE PAYMENTS. If any payment or benefit Executive would
receive pursuant to a Change in Control from the Company or otherwise
("Payment") would (i)
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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 Payment shall be reduced to the Reduced Amount. The
"Reduced Amount" shall be either (x) the largest portion of the Payment that
would result in no portion of the Payment being subject to the Excise Tax or (y)
the largest portion, up to and including the total, of the 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 Payment notwithstanding that all or some
portion of the Payment may be subject to the Excise Tax. If a reduction in
payments or benefits constituting "parachute payments" is necessary so that the
Payment equals the Reduced Amount, reduction shall occur in the following order
unless Executive elects in writing a different order (provided, however, that
such election shall be subject to Company approval if made on or after the date
on which the event that triggers the Payment occurs): reduction of cash
payments; cancellation of accelerated vesting of stock awards; reduction of
employee benefits. In the event that acceleration of vesting of stock award
compensation is to be reduced, such acceleration of vesting shall be cancelled
in the reverse order of the date of grant of Executive's stock awards unless
Executive elects in writing a different order for cancellation.
The accounting firm engaged by the Company for general audit purposes as
of the day prior to the effective date of the Change in Control shall perform
the foregoing calculations. If the accounting firm so engaged by the Company is
serving as accountant or auditor for the individual, entity or group effecting
the Change in Control, the Company shall appoint a nationally recognized
accounting firm to make the determinations required hereunder. The Company shall
bear all expenses with respect to the determinations by such accounting firm
required to be made hereunder.
The accounting firm engaged to make the determinations hereunder shall
provide its calculations, together with detailed supporting documentation, to
the Company and Executive within fifteen (15) calendar days after the date on
which Executive's right to a Payment is triggered (if requested at that time by
the Company or Executive) or such other time as requested by the Company or
Executive. If the accounting firm determines that no Excise Tax is payable with
respect to a Payment, either before or after the application of the Reduced
Amount, it shall furnish the Company and Executive with an opinion reasonably
acceptable to Executive that no Excise Tax will be imposed with respect to such
Payment. Any good faith determinations of the accounting firm made hereunder
shall be final, binding and conclusive upon the Company and Executive.
4.3 CERTAIN REDUCTIONS AND OFFSETS. Notwithstanding any other provision
of this Agreement to the contrary, any benefits or bonuses payable to Executive
under this Agreement shall be reduced by any severance benefits payable by the
Company to such individual under any other policy, plan, program or arrangement,
including, without limitation, a contract between Executive and any entity.
Furthermore, to the extent that any federal, state or local laws, including,
without limitation, so-called "plant closing" laws, require the Company to give
advance notice or make a payment of any kind to Executive because of Executive's
involuntary termination due to a layoff, reduction in force, plant or facility
closing, sale of business, change in control, or any other similar event or
reason, the benefits payable under this Agreement shall
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either be reduced or eliminated by such amount. The benefits provided under this
Agreement are intended to satisfy any and all statutory obligations that may
arise out of Executive's involuntary termination of employment for the foregoing
reasons, and the parties shall so construe and enforce the terms of the
Agreement.
ARTICLE 5
OTHER RIGHTS AND BENEFITS
Nothing in the Agreement shall prevent or limit Executive's continuing
or future participation in any benefit, bonus, incentive or other plans,
programs, policies or practices provided by the Company and for which Executive
may otherwise qualify, nor shall anything herein limit or otherwise affect such
rights as Executive may have under other agreements with the Company except as
provided in Section 1.4 above. Except as otherwise expressly provided herein,
amounts which are vested benefits or which Executive is otherwise entitled to
receive under any plan, policy, practice or program of the Company at or
subsequent to the date of a Change in Control shall be payable in accordance
with such plan, policy, practice or program.
ARTICLE 6
DEFINITIONS
For purposes of the Agreement, the following terms are defined as
follows:
6.1 "BASE SALARY" means Executive's annual base salary as in effect
during the last regularly scheduled payroll period immediately preceding the
Change in Control or as increased thereafter, excluding any commissions or
bonuses paid to Executive.
6.2 "BOARD" means the Board of Directors of the Company.
6.3 "CHANGE IN CONTROL" means (i) a merger involving the Company
pursuant to which the shareholders of the Company immediately prior to the
merger do not continue to hold at least a fifty percent (50%) equity interest in
the successor entity (which may be the Company) or the closing of any tender
offer to purchase substantially all of the outstanding shares of the Company; or
(ii) the sale of all or substantially all of the Company's assets.
6.4 "COMPANY" means Egreetings Network, Inc. or, following a Change in
Control, the surviving entity resulting from such transaction.
6.5 "CONSTRUCTIVE TERMINATION" means that Executive voluntarily
terminates employment with the Company after the Executive's position, as
established prior to the effective date of the Change in Control, is eliminated
or the Executive is assigned duties or responsibilities that result in a
diminution in Executive's position or function as in effect immediately prior to
the effective date of the Change in Control; provided, however, that a mere
change in Executive's title or reporting relationships shall not constitute
grounds for a Constructive Termination.
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6.6 "COVERED TERMINATION" means an Involuntary Termination Without Cause
or a Constructive Termination, either of which occurs within thirteen (13)
months following a Change in Control or within six (6) months preceding the
Trigger Date.
6.7 "INVOLUNTARY TERMINATION WITHOUT CAUSE" means Executive's dismissal
or discharge for reasons other than Cause. For this purpose, "Cause" means that,
in the reasonable determination of the Company, Executive (i) has committed an
intentional act or acted with gross negligence and, as a result, has materially
injured the business of the Company; (ii) has intentionally refused or failed to
follow lawful and reasonable directions of the Board or the appropriate
individual to whom Executive reports; (iii) has willfully and habitually
neglected Executive's duties for the Company; or (iv) has been convicted of a
felony involving moral turpitude that is likely to inflict or has inflicted
material injury on the business of the Company. Notwithstanding the foregoing,
Cause shall not exist based on conduct described in clause (ii) or (iii) unless
the conduct described in such clause has not been cured within fifteen (15) days
following Executive's receipt of written notice from the Company or the Board,
as the case may be, specifying the particulars of the conduct constituting
Cause.
6.8 "TRIGGER DATE" means April 30, 2001.
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GENERAL PROVISIONS
7.1 EMPLOYMENT STATUS. This Agreement does not constitute a contract of
employment or impose upon Executive any obligation to remain as an employee, or
impose on the Company any obligation (i) to retain Executive as an employee,
(ii) to change the status of Executive as an at-will employee or (iii) to change
the Company's policies regarding termination of employment.
7.2 NOTICES. Any notices provided hereunder must be in writing, and such
notices or any other written communication shall be deemed effective upon the
earlier of personal delivery (including personal delivery by facsimile) or the
third day after mailing by first class mail, to the Company at its primary
office location and to Executive at Executive's address as listed in the
Company's payroll records. Any payments made by the Company to Executive under
the terms of this Agreement shall be delivered to Executive either in person or
at the address as listed in the Company's payroll records.
7.3 SEVERABILITY. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provisions had never been contained herein.
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7.4 WAIVER. If either party should waive any breach of any provisions of
this Agreement, he or it shall not thereby be deemed to have waived any
preceding or succeeding breach of the same or any other provision of this
Agreement.
7.5 ARBITRATION. Unless otherwise prohibited by law or specified below,
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 shall be resolved solely and exclusively by final and binding
arbitration held in San Francisco County, California through Judicial
Arbitration & Mediation Services/Endispute ("JAMS") under the then existing JAMS
arbitration rules. However, nothing in this section is intended to prevent
either party from obtaining injunctive relief in court to prevent irreparable
harm pending the conclusion of any such arbitration. Each party in any such
arbitration shall be responsible for its own attorneys' fees, costs and
necessary disbursement; provided, however, that in the event one party refuses
to arbitrate and the other party seeks to compel arbitration by court order, if
such other party prevails, it shall be entitled to recover reasonable attorneys'
fees, costs and necessary disbursements. Pursuant to California Civil Code
Section 1717, each party warrants that it was represented by counsel in the
negotiation and execution of this Agreement, including the attorneys' fees
provision herein.
7.6 COMPLETE AGREEMENT. This Agreement, including Exhibit A, Exhibit B
and Exhibit C, constitutes the entire agreement between Executive and the
Company and is the complete, final, and exclusive embodiment of their agreement
with regard to this subject matter, wholly superseding all written and oral
agreements with respect to payments and benefits to Executive in the event of
employment termination. It is entered into without reliance on any promise or
representation other than those expressly contained herein.
7.7 AMENDMENT OR TERMINATION OF AGREEMENT. This Agreement may be changed
or terminated only upon the mutual written consent of the Company and Executive.
The written consent of the Company to a change or termination of this Agreement
must be signed by an executive officer of the Company after such change or
termination has been approved by the Board.
7.8 COUNTERPARTS. This Agreement may be executed in separate
counterparts, any one of which need not contain signatures of more than one
party, but all of which taken together will constitute one and the same
Agreement.
7.9 HEADINGS. The headings of the Articles and Sections hereof are
inserted for convenience only and shall not be deemed to constitute a part
hereof nor to affect the meaning thereof.
7.10 SUCCESSORS AND ASSIGNS. This Agreement is intended to bind and
inure to the benefit of and be enforceable by Executive, and the Company, and
any surviving entity resulting from a Change in Control and upon any other
person who is a successor by merger, acquisition, consolidation or otherwise to
the business formerly carried on by the Company, and their respective
successors, assigns, heirs, executors and administrators, without regard to
whether or not such person actively assumes any rights or duties hereunder;
provided, however, that
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Executive may not assign any duties hereunder and may not assign any rights
hereunder without the written consent of the Company, which consent shall not be
withheld unreasonably.
7.11 CHOICE OF LAW. All questions concerning the construction, validity
and interpretation of this Agreement will be governed by the law of the State of
California, without regard to such state's conflict of laws rules.
7.12 NON-PUBLICATION. The parties mutually agree not to disclose
publicly the terms of this Agreement except to the extent that disclosure is
mandated by applicable law or to respective advisors (e.g., attorneys,
accountants).
7.13 CONSTRUCTION OF AGREEMENT. In the event of a conflict between the
text of the Agreement and any summary, description or other information
regarding the Agreement, the text of the Agreement shall control.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
Effective Date written above.
EGREETINGS NETWORK, INC. [NAME OF EXECUTIVE]
By:
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Name:
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Title:
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Exhibit A: Release (Individual Termination of Executive 40 or Older)
Exhibit B: Release (Group Termination of Executive 40 or Older)
Exhibit C: Release (Termination of Executive under 40)
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EXHIBIT A
RELEASE
(INDIVIDUAL TERMINATION OF EXECUTIVE 40 OR OLDER)
Certain capitalized terms used in this Release are defined in the
Executive Severance Benefits Agreement (the "Agreement") which I have executed
and of which this Release is a part.
I hereby confirm my obligations under the Company's proprietary
information and inventions agreement.
I acknowledge that I have read and understand Section 1542 of the
California Civil Code which reads as follows: "A GENERAL RELEASE DOES NOT EXTEND
TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT
THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR." I hereby expressly waive and
relinquish all rights and benefits under that section and any law of any
jurisdiction of similar effect with respect to my release of any claims I may
have against the Company.
Except as otherwise set forth in this Release, I hereby release, acquit
and forever discharge the Company, its parents and subsidiaries, and their
officers, directors, agents, servants, employees, shareholders, successors,
assigns and affiliates, of and from any and all claims, liabilities, demands,
causes of action, costs, expenses, attorneys fees, damages, indemnities and
obligations of every kind and nature, in law, equity, or otherwise, known and
unknown, suspected and unsuspected, disclosed and undisclosed (other than any
claim for indemnification I may have as a result of any third party action
against me based on my employment with the Company), arising out of or in any
way related to agreements, events, acts or conduct at any time prior to the date
I execute this Release, including, but not limited to: all such claims and
demands directly or indirectly arising out of or in any way connected with my
employment with the Company or the termination of that employment, including but
not limited to, claims of intentional and negligent infliction of emotional
distress, any and all tort claims for personal injury, claims or demands related
to salary, bonuses, commissions, stock, stock options, or any other ownership
interests in the Company, vacation pay, fringe benefits, expense reimbursements,
severance pay, or any other form of compensation; claims pursuant to any
federal, state or local law or cause of action including, but not limited to,
the federal Civil Rights Act of 1964, as amended; the federal Age Discrimination
in Employment Act of 1967, as amended ("ADEA"); the federal Employee Retirement
Income Security Act of 1974, as amended; the federal Americans with Disabilities
Act of 1990; the California Fair Employment and Housing Act, as amended; tort
law; contract law; wrongful discharge; discrimination; fraud; defamation;
emotional distress; and breach of the implied covenant of good faith and fair
dealing; provided, however, that nothing in this paragraph shall be construed in
any way to release the Company from its obligation to indemnify me pursuant to
the Company's indemnification obligation pursuant to agreement or applicable
law.
I acknowledge that I am knowingly and voluntarily waiving and releasing
any rights I may have under ADEA. I also acknowledge that the consideration
given under the Agreement
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for the waiver and release in the preceding paragraph hereof 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 do not apply to any rights or claims that may arise on or after the
date I execute this Release; (B) I have the right to consult with an attorney
prior to executing this Release; (C) I have twenty-one (21) days to consider
this Release (although I may choose to voluntarily execute this Release
earlier); (D) I have seven (7) days following my execution of this Release to
revoke the Release; and (E) this Release shall not be effective until the date
upon which the revocation period has expired, which shall be the eighth (8th)
day after I execute this Release.
[NAME OF EXECUTIVE]
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Date:
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EXHIBIT B
RELEASE
(GROUP TERMINATION OF EXECUTIVE OVER 40)
Certain capitalized terms used in this Release are defined in the
Executive Severance Benefits Agreement (the "Agreement") which I have executed
and of which this Release is a part.
I hereby confirm my obligations under the Company's proprietary
information and inventions agreement.
I acknowledge that I have read and understand Section 1542 of the
California Civil Code which reads as follows: "A GENERAL RELEASE DOES NOT EXTEND
TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT
THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR." I hereby expressly waive and
relinquish all rights and benefits under that section and any law of any
jurisdiction of similar effect with respect to my release of any claims I may
have against the Company.
Except as otherwise set forth in this Release, I hereby release, acquit
and forever discharge the Company, its parents and subsidiaries, and their
officers, directors, agents, servants, employees, shareholders, successors,
assigns and affiliates, of and from any and all claims, liabilities, demands,
causes of action, costs, expenses, attorneys fees, damages, indemnities and
obligations of every kind and nature, in law, equity, or otherwise, known and
unknown, suspected and unsuspected, disclosed and undisclosed (other than any
claim for indemnification I may have as a result of any third party action
against me based on my employment with the Company), arising out of or in any
way related to agreements, events, acts or conduct at any time prior to the date
I execute this Release, including, but not limited to: all such claims and
demands directly or indirectly arising out of or in any way connected with my
employment with the Company or the termination of that employment, including but
not limited to, claims of intentional and negligent infliction of emotional
distress, any and all tort claims for personal injury, claims or demands related
to salary, bonuses, commissions, stock, stock options, or any other ownership
interests in the Company, vacation pay, fringe benefits, expense reimbursements,
severance pay, or any other form of compensation; claims pursuant to any
federal, state or local law or cause of action including, but not limited to,
the federal Civil Rights Act of 1964, as amended; the federal Age Discrimination
in Employment Act of 1967, as amended ("ADEA"); the federal Employee Retirement
Income Security Act of 1974, as amended; the federal Americans with Disabilities
Act of 1990; the California Fair Employment and Housing Act, as amended; tort
law; contract law; wrongful discharge; discrimination; fraud; defamation;
emotional distress; and breach of the implied covenant of good faith and fair
dealing; provided, however, that nothing in this paragraph shall be construed in
any way to release the Company from its obligation to indemnify me pursuant to
the Company's indemnification obligation pursuant to agreement or applicable
law.
I acknowledge that I am knowingly and voluntarily waiving and releasing
any rights I may have under ADEA. I also acknowledge that the consideration
given under the Agreement
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for the waiver and release in the preceding paragraph hereof 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 do not apply to any rights or claims that may arise on or after the
date I execute this Release; (B) I have the right to consult with an attorney
prior to executing this Release; (C) I have forty-five (45) days to consider
this Release (although I may choose to voluntarily execute this Release
earlier); (D) I have seven (7) days following my execution of this Release to
revoke the Release; (E) this Release shall not be effective until the date upon
which the revocation period has expired, which shall be the eighth day (8th)
after I execute this Release; and (F) I have received with this Release a
detailed list of the job titles and ages of all employees who were terminated in
this group termination and the ages of all employees of the Company in the same
job classification or organizational unit who were not terminated.
[NAME OF EXECUTIVE]
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Date:
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EXHIBIT C
RELEASE
(TERMINATION OF EXECUTIVE UNDER 40)
Certain capitalized terms used in this Release are defined in the
Executive Severance Benefits Agreement (the "Agreement") which I have executed
and of which this Release is a part.
I hereby confirm my obligations under the Company's proprietary
information and inventions agreement.
I acknowledge that I have read and understand Section 1542 of the
California Civil Code which reads as follows: "A GENERAL RELEASE DOES NOT EXTEND
TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT
THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR." I hereby expressly waive and
relinquish all rights and benefits under that section and any law of any
jurisdiction of similar effect with respect to my release of any claims I may
have against the Company.
Except as otherwise set forth in this Release, I hereby release, acquit
and forever discharge the Company, its parents and subsidiaries, and their
officers, directors, agents, servants, employees, shareholders, successors,
assigns and affiliates, of and from any and all claims, liabilities, demands,
causes of action, costs, expenses, attorneys fees, damages, indemnities and
obligations of every kind and nature, in law, equity, or otherwise, known and
unknown, suspected and unsuspected, disclosed and undisclosed (other than any
claim for indemnification I may have as a result of any third party action
against me based on my employment with the Company), arising out of or in any
way related to agreements, events, acts or conduct at any time prior to the date
I execute this Release, including, but not limited to: all such claims and
demands directly or indirectly arising out of or in any way connected with my
employment with the Company or the termination of that employment, including but
not limited to, claims of intentional and negligent infliction of emotional
distress, any and all tort claims for personal injury, claims or demands related
to salary, bonuses, commissions, stock, stock options, or any other ownership
interests in the Company, vacation pay, fringe benefits, expense reimbursements,
severance pay, or any other form of compensation; claims pursuant to any
federal, state or local law or cause of action including, but not limited to,
the federal Civil Rights Act of 1964, as amended; the federal Employee
Retirement Income Security Act of 1974, as amended; the federal Americans with
Disabilities Act of 1990; the California Fair Employment and Housing Act, as
amended; tort law; contract law; wrongful discharge; discrimination; fraud;
defamation; emotional distress; and breach of the implied covenant of good faith
and fair dealing; provided, however, that nothing in this paragraph shall be
construed in any way to release the Company from its obligation to indemnify me
pursuant to the Company's indemnification obligation pursuant to agreement or
applicable law.
[NAME OF EXECUTIVE]
-----------------------------------
Date:
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