EXHIBIT 10.12
LSI LOGIC STORAGE SYSTEMS, INC.
CHANGE IN CONTROL SEVERANCE AGREEMENT
This Change in Control Severance Agreement (the "Agreement") is made and
entered into effective as of (the "Effective Date"), by and between
[NAME OF EXECUTIVE OFFICER] ("Employee") and LSI Logic Storage Systems, Inc., a
Delaware corporation (the "Company"). Certain capitalized terms used in this
Agreement are defined in Section 1 below.
R E C I T A L S
A. It is expected that the Company from time to time will consider the
possibility of a Change in Control. The Board of Directors of the Company (the
"Board") recognizes that such consideration can be a distraction to the Employee
and can cause the Employee to consider alternative employment opportunities.
B. The Board believes that it is in the best interests of the Company and
its shareholders to provide the Employee with an incentive to continue his or
her employment and to maximize the value of the Company upon a Change in Control
for the benefit of its shareholders.
C. In order to provide the Employee with enhanced financial security and
sufficient encouragement to remain with the Company notwithstanding the
possibility of a Change in Control, the Board believes that it is imperative to
provide the Employee with certain severance benefits upon the Employee's
termination of employment following a Change in Control.
AGREEMENT
In consideration of the mutual covenants herein contained and the continued
employment of Employee by the Company, the parties agree as follows:
1. Definition of Terms. The following terms referred to in this Agreement
shall have the following meanings:
(a) Cause. "Cause" shall mean (i) any act of personal dishonesty
taken by the Employee in connection with his or her responsibilities as an
employee with the intention or reasonable expectation that such may result
in substantial personal enrichment of the Employee, (ii) Employee's
conviction of a felony which the Board reasonably believes has had or will
have a material detrimental effect on the Company's reputation or business,
(iii) a willful act by the Employee which constitutes misconduct and is
injurious to the Company, or (iv) continued willful violations by the
Employee of the Employee's obligations to the Company after there has been
delivered to the Employee a written demand for performance from the Company
which describes the basis for the Company's belief that the Employee has
not substantially performed his or her duties.
(b) Change in Control. "Change in Control" shall mean the occurrence
of any of the following events on or after the IPO:
(i) the consummation by the Company 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) more than fifty percent (50%) of the total voting
power represented by the voting securities of the Company or such
surviving entity outstanding immediately after such merger or
consolidation; or
(ii) the approval by the shareholders of the Company, or if
shareholder approval is not required, by the Board, of a plan of
complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the Company's
assets; or
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(iii) any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended) becoming the
"beneficial owner" (as defined in Rule 13d-3 under said Act), directly
or indirectly, of securities of the Company representing 50% or more of
the total voting power represented by the Company's then outstanding
voting securities; or
(iv) a change in the composition of the Board, 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 hereof, 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 transactions described in subsections (i), (ii), or
(iii) or in connection with an actual or threatened proxy contest
relating to the election of directors of the Company.
Notwithstanding any provision to the contrary herein, a Change in
Control shall not include the IPO, nor shall it include any event or
series of events through which LSI Logic Corporation ceases to own a
majority of the total voting power represented by the voting securities
of the Company through a sale of Company securities to the public.
(c) Involuntary Termination. "Involuntary Termination" shall mean any
of the following: (i) without the Employee's express written consent, a
significant reduction of the Employee's duties, position or
responsibilities relative to the Employee's duties, position or
responsibilities in effect immediately prior to such reduction, or the
removal of the Employee from such position, duties and responsibilities,
unless the Employee is provided with comparable duties, position and
responsibilities; (ii) without the Employee's express written consent, a
substantial reduction, without good business reasons, of the facilities and
perquisites (including office space and location) available to the Employee
immediately prior to such reduction; (iii) without the Employee's express
written consent, a reduction by the Company of the Employee's base salary
as in effect immediately prior to such reduction; (iv) without the
Employee's express written consent, a material reduction by the Company in
the kind or level of employee benefits to which the Employee is entitled
immediately prior to such reduction with the result that the Employee's
overall benefits package is significantly reduced; (v) without the
Employee's express written consent, the relocation of the Employee to a
facility or a location more than thirty-five (35) miles from his or her
current location; (vi) any purported termination of the Employee by the
Company which is not effected for Cause or for which the grounds relied
upon are not valid; or (vii) the failure of the Company to obtain the
assumption of this Agreement by any successors contemplated in Section 5
below.
(d) IPO. "IPO" shall mean the first registration statement that is
filed by the Company and declared effective pursuant to Section 12(g) of
the Exchange Act, with respect to any class of the Company's securities.
(e) Termination Date. "Termination Date" shall mean the effective
date of any notice of termination delivered by one party to the other
hereunder.
2. Term of Agreement. This Agreement shall terminate on NOVEMBER 20, 2008,
unless within such term a Change in Control has occurred, in which case this
Agreement shall terminate upon the date that all obligations of the parties
hereto under this Agreement have been satisfied.
3. At-Will Employment. The Company and the Employee acknowledge that the
Employee's employment is and shall continue to be at-will, as defined under
applicable law. If the Employee's employment terminates for any reason, the
Employee shall not be entitled to any payments, benefits, damages, awards or
compensation other than as provided by this Agreement, or as otherwise also may
be established under the Company's then existing employee benefit plans or
policies at the time of termination.
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4. Severance Benefits.
(a) Termination Following A Change in Control.
(i) Involuntary Termination.
(A) Equity Acceleration. If the Employee's employment with the
Company terminates as a result of an Involuntary Termination at any
time within twelve (12) months after a Change in Control, then as of
the Termination Date, each unexpired option to purchase shares of the
Company's equity securities, each grant of Company restricted stock
and each other unexpired equity-based compensation award that was
granted to the Employee by the Company at least six (6) months prior
to the Change in Control (collectively, the "Awards"), shall be
automatically accelerated and be fully vested and exercisable as at
the date of Involuntary Termination.
(B) Severance Benefits. If the Employee's employment with the
Company terminates as a result of an Involuntary Termination at any
time within twelve (12) months after a Change in Control, the
Employee, within seven (7) days of such Involuntary Termination,
shall be paid a lump sum that shall be equal to the sum of: (i)
twenty-four (24) months of the Employee's base salary (as in effect
immediately prior to the Change in Control), plus (ii) 200% of the
Employee's target bonus for the year in which the Change in Control
occurs. In addition, the Company shall provide the Employee with
health, dental and vision coverage benefits during the period of
twenty-four (24) months following the date of Involuntary
Termination, provided, however, that the Employee elects continuation
coverage pursuant to the Consolidated Omnibus Budget Reconciliation
Act of 1985, as amended ("COBRA"), within the time period prescribed
pursuant to COBRA and life insurance benefits during the period of
eighteen (18) months following the date of Involuntary Termination,
at the same level as each of such benefits were in effect for the
Employee on the day immediately preceding the day of the Employee's
termination of employment.
(ii) Other Termination. If the Employee's employment with the
Company terminates other than as a result of an Involuntary Termination
at any time within twelve (12) months after a Change in Control, then
the Employee shall not be entitled to receive severance or other
benefits hereunder, but may be eligible for those benefits (if any) as
may then be established under the Company's then existing severance and
benefits plans and policies at the Termination Date.
(b) Accrued Wages and Vacation; Expenses. Without regard to the reason
for, or the timing of, Employee's termination of employment: (i) the
Company shall pay the Employee any unpaid base salary due for periods prior
to the Termination Date; (ii) the Company shall pay the Employee all of the
Employee's accrued and unused vacation through the Termination Date; and
(iii) following submission of proper expense reports by the Employee, the
Company shall reimburse the Employee for all expenses reasonably and
necessarily incurred by the Employee in connection with the business of the
Company prior to the Termination Date. These payments shall be made
promptly upon termination and within the period of time mandated by law.
5. Successors.
(a) Company's Successors. Any successor to the Company (whether direct or
indirect and whether by purchase, lease, merger, consolidation, liquidation or
otherwise) to all or substantially all of the Company's business and/or assets
shall assume the Company's obligations under this Agreement and agree expressly
to perform the Company's 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 successor to the Company's business and/or assets
which executes and delivers the assumption agreement described in this
subsection (a) or which becomes bound by the terms of this Agreement by
operation of law.
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(b) Employee's Successors. Without the written consent of the Company,
Employee shall not assign or transfer this Agreement or any right or obligation
under this Agreement to any other person or entity. Notwithstanding the
foregoing, 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.
6. Limitation on Payments.
(a) In the event that the severance and other benefits provided for in this
Agreement or otherwise payable to the 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, then at the Employee's
election, the Employee's severance benefits under Section 4 shall be payable
either (i) in full, or (ii) as to such lesser amount selected by Employee that,
taking into account the applicable federal, state and local income taxes and the
excise tax imposed by Section 4999, results in the receipt by the Employee on an
after-tax basis, of the greatest amount of severance benefits under this
Agreement, notwithstanding that all or some portion of such severance benefits
may be taxable under Section 4999 of the Code.
(b) If the Employee elects (pursuant to Section 6(a)) a reduction in the
payments and benefits that would otherwise be paid or provided to the Employee
under the terms of this Agreement, the Employee shall be entitled to select the
particular payments or benefits that will be reduced and the manner and method
of any such reduction of such payments or benefits (including but not limited to
which equity-based awards that would vest under Sections 4(a)(i)(A)), subject to
reasonable limitations (including, for example, express provisions under the
Company's benefit plans). Within thirty (30) days after the amount of any
elected reduction in payments and benefits is finally determined in accordance
with the provisions of this Section 6(b), the Employee shall notify the Company
in writing regarding the payments or benefits that are to be reduced. If no
notification is given by the Employee, no amounts shall be reduced and the
Employee's election under Section 6(a) shall be of no effect. If, as a result of
any reduction elected under Section 6(a), amounts previously paid to the
Employee exceed the amount to which the Employee is entitled, the Employee will
promptly return the excess amount to the Company.
(c) Limited Tax Gross-Up. In the event that the Employee's "parachute
payments" (as described in Section 6(a) and after applying any reduction elected
under such Section ) are subject to the excise tax imposed by Section 4999 of
the code, then the Company shall make a supplemental payment to the Employee in
an amount that equals the excise tax on the parachute payments, plus any
additional excise tax and federal, state and local and employment income taxes,
on such supplemental payment. However, under no circumstances shall the total
supplemental payment described in this Section 6(c) exceed the "Maximum Payment"
described in the following sentence. For purposes of this Agreement, the Maximum
Payment shall equal the sum of the Employee's (i) annual base salary immediately
prior to the Change in Control, and (ii) target bonus for the year in which the
Change in Control occurs.
(d) Unless the Company and the Employee otherwise agree in writing, the
Company's independent public accountants (the "Accountants"), shall make any
calculations necessary or appropriate to implement this Section 6. For purposes
of making such calculations, the Accountants 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. The Accountants shall assume that the Employee pays federal, state,
and local income taxes at the highest marginal rates in effect on the date of
termination (unless the Employee clearly does not do so) and the calculation of
federal income tax shall take into account the deduction of any state and local
income taxes. The Company and the 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 6. The Company shall bear all costs the
Accountants may reasonably incur in connection with any such calculations.
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7. Notices.
(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 the Employee, mailed
notices shall be addressed to him or her at the home address which he or she
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
the Employee as a result of a voluntary resignation or an Involuntary
Termination shall be communicated by a notice of termination to the other party
hereto given in accordance with this Section. Such notice shall indicate the
specific termination provision in 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 the Employee to include in the notice any fact or circumstance which
contributes to a showing of Involuntary Termination shall not waive any right of
the Employee hereunder or preclude the Employee from asserting such fact or
circumstance in enforcing his rights hereunder.
8. Execution of Release Agreement upon Termination. As a condition of
entering into this Agreement and receiving the benefits under Section 4, the
Employee agrees to execute and not revoke a release of claims agreement
substantially in the form attached hereto as Exhibit A upon the termination of
his or her employment with the Company.
9. Arbitration.
(a) Any dispute or controversy arising out of, relating to, or in
connection with this Agreement, or the interpretation, validity, construction,
performance, breach, or termination thereof, shall be settled by binding
arbitration to be held in Santa Xxxxx County, California, in accordance with the
National Rules for the Resolution of Employment Disputes then in effect of the
American Arbitration Association (the "Rules"). The arbitrator may grant
injunctions or other relief in such dispute or controversy. The decision of the
arbitrator shall be final, conclusive and binding on the parties to the
arbitration. Judgment may be entered on the arbitrator's decision in any court
having jurisdiction.
(b) The arbitrator(s) shall apply California law to the merits of any
dispute or claim, without reference to conflicts of law rules. The arbitration
proceedings shall be governed by federal arbitration law and by the Rules,
without reference to state arbitration law. Employee hereby consents to the
personal jurisdiction of the state and federal courts located in California for
any action or proceeding arising from or relating to this Agreement or relating
to any arbitration in which the parties are participants.
(c) The Company and Employee shall each pay one-half of the costs and
expenses of such arbitration, and each shall separately pay its counsel fees and
expenses.
(d) Employee understands that nothing in this Section modifies Employee's
at-will employment status. Either Employee or the Company can terminate the
employment relationship at any time, with or without Cause.
(e) EMPLOYEE HAS READ AND UNDERSTANDS THIS SECTION, WHICH DISCUSSES
ARBITRATION. EMPLOYEE UNDERSTANDS THAT SUBMITTING ANY CLAIMS ARISING OUT OF,
RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, OR THE INTERPRETATION,
VALIDITY, CONSTRUCTION, PERFORMANCE, BREACH OR TERMINATION THEREOF TO BINDING
ARBITRATION, CONSTITUTES A WAIVER OF EMPLOYEE'S RIGHT TO A JURY TRIAL AND
RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS OF THE
EMPLOYER/EMPLOYEE RELATIONSHIP, INCLUDING BUT NOT LIMITED TO, THE FOLLOWING
CLAIMS:
(i) ANY AND ALL CLAIMS FOR WRONGFUL DISCHARGE OF EMPLOYMENT; BREACH OF
CONTRACT, BOTH EXPRESS AND IMPLIED; BREACH OF THE COVENANT
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OF GOOD FAITH AND FAIR DEALING, BOTH EXPRESS AND IMPLIED; NEGLIGENT OR
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS; NEGLIGENT OR INTENTIONAL
MISREPRESENTATION; NEGLIGENT OR INTENTIONAL INTERFERENCE WITH CONTRACT OR
PROSPECTIVE ECONOMIC ADVANTAGE; AND DEFAMATION.
(ii) 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 CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT,
AND LABOR CODE SECTION 201, et seq.;
(iii) ANY AND ALL CLAIMS ARISING OUT OF ANY OTHER LAWS AND REGULATIONS
RELATING TO EMPLOYMENT OR EMPLOYMENT DISCRIMINATION.
10. Miscellaneous Provisions.
(a) No Duty to Mitigate. The Employee shall not be required to mitigate
the amount of any payment contemplated by this Agreement, nor shall any such
payment be reduced by any earnings that the Employee may receive from any other
source.
(b) Waiver. No provision of this Agreement may be modified, waived or
discharged unless the modification, waiver or discharge is agreed to in writing
and signed by the Employee and by an authorized officer of the Company (other
than the Employee). No waiver by either party of any breach of, or of compliance
with, any condition or provision of this 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.
(c) Integration. This Agreement and the stock option agreements
representing the Options represent the entire agreement and understanding
between the parties as to the subject matter herein and supersede all prior or
contemporaneous agreements, whether written or oral.
(d) Choice of Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the internal substantive
laws, but not the conflicts of law rules, of the State of California.
(e) Severability. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision hereof, which shall remain in full force and effect.
(f) Employment Taxes. All payments made pursuant to this Agreement shall
be subject to withholding of applicable income and employment taxes.
(g) 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.
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 first
above written.
EMPLOYEE LSI Logic Storage Systems, Inc.
--------------------------------------------- By:
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Title:
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EXHIBIT A
FORM RELEASE OF CLAIMS AGREEMENT
This Release of Claims Agreement (this "Agreement") is made and entered
into by and between LSI Logic Storage Systems, Inc. (the "Company") and [NAME OF
EXECUTIVE OFFICER] (the "Employee").
WHEREAS, the Employee was employed by the Company; and
WHEREAS, the Company (or the Company's predecessor) and the Employee have
entered into a Change of Control Severance Agreement effective as of ,
2004 (the "Severance Agreement").
NOW THEREFORE, in consideration of the mutual promises made herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Company and the Employee (collectively referred to as
the "Parties") desiring to be legally bound do hereby agree as follows:
1. Termination. The Employee's employment with the Company
terminated on , 20 .
2. Consideration. Subject to and in consideration of the Employee's
release of claims as provided herein, the Company has agreed to pay the
Employee certain benefits and the Employee has agreed to provide certain
benefits to the Company, both as set forth in the Severance Agreement.
3. Payment of Salary. The Employee acknowledges and represents that
the Company has paid all salary, wages, bonuses, accrued vacation,
commissions and any and all other benefits due to the Employee.
4. Release of Claims. The Employee agrees that the foregoing
consideration represents settlement in full of all outstanding obligations
owed to the Employee by the Company. The Employee, on his own behalf 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, suspected or
unsuspected, that he may possess arising from any omissions, acts or facts
that have occurred up until and including the Effective Date (as defined
below) of this Agreement including, without limitation:
(a) any and all claims relating to or arising from the Employee's
employment relationship with the Company and the termination of that
relationship;
(b) any and all claims relating to, or arising from, the 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;
(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
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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.
The Employee agrees that the release set forth in this Section 4 shall be
and remain in effect in all respects as a complete general release as to the
matters released. This release does not extend to any obligations incurred under
this Agreement.
5. Acknowledgment of Waiver of Claims under ADEA. The 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. The 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.
The Employee acknowledges that the consideration given for this waiver and
release agreement is in addition to anything of value to which the Employee
was already entitled. The 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 the Company by the close of business on the seventh (7th) day
from the date that the Employee signs this Agreement.
6. Civil Code Section 1542. The Employee represents that he is not
aware of any claims against the Company other than the claims that are
released by this Agreement. The 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.
The 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. The 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. The 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. The 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"). The
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.
The 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. The Employee agrees he will not act in any manner
that might damage the business of the Company. The 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
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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. The Company represents and warrants that the
undersigned has the authority to act on behalf of the Company and to bind
the Company and all who may claim through it to the terms and conditions of
this Agreement. The 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. The 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.
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 Severance Agreement and
the agreements and plans referenced therein represent the entire agreement
and understanding between the Company and the Employee concerning the
Employee's separation from the Company, and supersede and replace any and
all prior agreements and understandings concerning the Employee's
relationship with the Company and his compensation by the Company. This
Agreement may only be amended in writing signed by the 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 the Parties (the "Effective Date").
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; and
(d) They are fully aware of the legal and binding effect of this
Agreement.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the Parties have executed this Agreement on the
respective dates set forth below.
LSI LOGIC STORAGE SYSTEMS, INC.
By:
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Title:
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Date:
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EMPLOYEE
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[EMPLOYEE NAME]
Date:
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SCHEDULE TO EXHIBIT 10.12 -- FORM OF
CHANGE IN CONTROL SEVERANCE AGREEMENT
The registrant has entered into a
Change in Control Severance Agreement, in
exactly the form attached as Exhibit 10.12, with each of the following executive
officers effective as of April 6, 2004: Xxxxxx Xxxxxxxx; Xxxxxxx X. Xxxxx;
Xxxxxx Xxxxxxx; Xxxxxx X. Xxxxxxxxxxx; and Xxxxx X. Xxxxxxx.
