Exhibit 10.40.2
SPECTRIAN COMPANY
CHANGE OF CONTROL SEVERANCE AGREEMENT
This Change of Control Severance Agreement (the "Agreement") is made and entered
into effective as of July 19, 2001 (the "Effective Date"), by and between Thomas
H. Waechter (the "Employee") and Spectrian Company, 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 of 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 employment
and to maximize the value of the Company upon a Change of 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 of 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 of Control.
D. The Board and Employee understand, agree and intend that this Agreement
supercede and replace in full any prior verbal or written agreements as to the
matters provided for herein, including, but not limited to, the Change of
Control Severance Agreement previously entered into as of March 31, 2000, which
prior agreement is hereby rendered null and void.
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 Employee's responsibilities as an employee which is intended to
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,
and (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
Employee's duties.
(b) Change of Control.
"Change of Control" shall mean the occurrence of any of the following events:
(i) the approval by shareholders of the Company of a
merger or consolidation of the Company with any other Company, 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;
(ii) any approval by the shareholders of the Company
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;
(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 of this Agreement, 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) or in connection with an
actual or threatened proxy contest relating to the election of directors of the
Company.
(c) Involuntary Termination.
"Involuntary Termination" shall mean (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 as the CEO of an
independent public company of equal or greater size reporting to the Board of
Directors; (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) a reduction by the Company of the Employee's base
salary or target bonus as in effect immediately prior to such reduction; (iv) 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
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Employee's express written consent, the relocation of the Employee to a facility
or a location more than thirty-five (35) miles from his 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 the "Successors" clause below.
2. Term of Agreement.
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 may otherwise be established under the Company's then
existing employee benefit plans or policies at the time of termination.
4. Change of Control and Severance Benefits.
(a) Termination Following A Change of Control.
(i) Severance and Benefits. If the Employee's
employment with the Company terminates as a result of an Involuntary Termination
at any time after a Change of Control, and provided that the Employee duly
executes a General Release of All Claims, in the form attached hereto as Exhibit
A or in another form provided by the Company, then:
(1) the Employee shall be entitled to
receive a sum equal to thirty-six (36) months of Employee's annualized base
salary (as in effect immediately prior to the Change of Control (less applicable
tax withholdings). Such severance shall be paid bi-weekly in accordance with the
Company's normal payroll practices unless the Employee elects to receive the
severance in one lump sum payment. Payment(s) will be made or will begin within
30 days from the effective date of the General Release of All Claims.
(2) the Employee shall be entitled to
receive a sum equal to three times Employee's annual target bonus in effect
immediately prior to the Change of Control (less applicable tax withholdings).
Such amount shall be paid biweekly in accordance with the Company's normal
payroll practices unless the Employee elects to receive the amount in one lump
sum payment. Payment(s) will be made or will begin within 30 days from the
effective date of the General Release of All Claims.
(3) for a period of thirty-six (36) months
following the Involuntary Termination, the Company shall continue to make
available to the Employee and Employee's spouse and dependents, at the same cost
to the Employee as was in effect prior to the Change of Control, all group
health, life and other similar insurance plans in which Employee or Employee's
dependents participate on the date of the Employee's termination, including the
Executive Benefits identified in the Employee's offer letter.
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(ii) Option Acceleration. If the Employee's
employment with the Company terminates as a result of an Involuntary Termination
at any time after a Change of Control, and provided that the Employee duly
executes a General Release of All Claims, in the form attached hereto as Exhibit
A or in another form provided by the Company, then the vesting and
exercisability of each option granted to the Employee by the Company (the
"Options") shall be automatically accelerated in full and the Employee will have
90 days to exercise such options pursuant to the terms of the applicable stock
option agreements.
(b) Other Termination. If the Employee's employment with the
Company terminates other than as a result of an Involuntary Termination after a
Change of 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 time of such termination.
5. 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 date of termination; (ii) the Company shall pay the
Employee all of the Employee's accrued and unused vacation through the date of
termination; 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 date of termination. These payments shall be made promptly
upon termination and within the period of time mandated by law.
6. Section 280G Gross Up Payment.
Notwithstanding anything to the contrary contained herein, in the event it shall
be determined that any payment or distribution by the Company to or for the
benefit of Employee (whether paid or payable or distributed or distributable
pursuant to the terms of a Change in Control but determined without regard to
any additional payments required under this Agreement (collectively the
"Payment"), would be subject to the excise tax imposed by Section 4999 of the
Internal Revenue Code of 1986, as amended (the "Code") or any comparable
federal, state or local excise tax, (such excise tax, together with any interest
and penalties, are hereinafter collectively referred to as the "Excise Tax"),
then Employee shall be entitled to receive an additional payment (a "Gross-Up
Payment") in such an amount that after the payment of all taxes (including,
without limitation, any interest and penalties on such taxes and the Excise Tax)
on the Payment and on the Gross-Up Payment, Employee shall retain an amount
equal to the Payment minus all applicable taxes on the Payment; provided,
however, that Employee will be entitled to receive a Gross-Up Payment only if
the amount of a parachute payment, as defined in Section 280G(b)(2) of the Code,
exceeds the sum of (A) the greater of (i) $100,000 or (ii) ten (10) percent of
the payments under this Agreement plus (B) 2.99 times the Employee's base
amount, as defined in Section 280G(b)(3) of the Code, and provided further, that
if Employee is not entitled to receive a Gross-Up Payment, Employee will receive
only an amount of total payments that would not include any excess parachute
payment, as defined in Section 280G(b)(1) of the Code. The intent of the parties
is that the Company shall be solely responsible for, and shall pay, any Excise
Tax on any Payment and Gross-Up Payment and any income and employment taxes
(including, without limitation, penalties and interest) imposed on any Gross-Up
Payment, as well as any loss of tax deduction caused by the Gross-Up Payment.
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All determinations required to be made under this Paragraph, including, without
limitation, whether and when a Gross-Up Payment is required and the amount of
such Gross-Up Payment and the assumptions to be utilized in arriving at such
determinations, shall be made by Price Waterhouse or any other nationally
recognized accounting firm which is the Company's outside auditor at the time of
such determinations, which firm must be reasonably acceptable to Employee (the
"Accounting Firm"). The Company shall cause the Accounting Firm to provide
detailed supporting calculations to the Company and Employee within fifteen (15)
business days after notice is given by Employee to the Company that there has
been a Payment, or such earlier time as is requested by the Company. Within two
(2) business days after said notice is given to the Company, the Company shall
instruct the Accounting Firm to timely provide the data required by this
Paragraph to Employee. All fees and expenses of the Accounting firm shall be
borne solely by the Company. Any Gross-Up Payment as determined pursuant to this
Paragraph, shall be paid by the Company to the Internal Revenue Service and/or
other appropriate taxing authority on Employee's behalf within five (5) days
after receipt of the Accounting Firm's determination. If the Accounting Firm
determines that there is substantial authority (within the meaning of Section
6662 of the Code) that no Excise Tax is payable by Employee, the Accounting Firm
shall furnish Employee with a written opinion that failure to disclose or report
the Excise Tax on Employee's federal income tax return will not constitute a
substantial understatement of tax or be reasonably likely to result in the
imposition of a negligence or similar penalty. Any determination by the
Accounting Firm shall be binding upon the Company and Employee in the absence of
material mathematical or legal error. As a result of the uncertainty in the
application of Section 4999 of the Code at the time of the initial determination
by the Accounting Firm hereunder, it is possible that Gross-Up Payment will not
have been made by the Company that should have been made ("Underpayment") or
that Gross-Up Payment have been made that should not have been made
("Overpayment"), in each case, consistent with the calculations required to be
made hereunder. In the event that the Company exhausts its remedies provided
below and Employee hereafter is required to make a payment of any Excise Tax,
the Accounting Firm shall determine the amount of Underpayment that has occurred
and any such Underpayment shall be promptly paid by the Company to the Internal
Revenue Service or other appropriate taxing authority on Employee's behalf or,
if such Underpayment has been previously paid by Employee, to Employee. In the
event that the Accounting Firm determines that an Overpayment has been made, any
such Overpayment shall be treated for all purposes as a loan to Employee with
interest at applicable federal rate provided for in Section 7872(f) (2) of the
Code, due and payable within ninety (90) days after written demand to Employee
by the Company; provided, however that Employee shall have no duty or obligation
whatsoever to repay said loan unless Employee's receipt of the Overpayment, or
any portion thereof, is includible in Employee's income and Employee's repayment
of same is not deductible by Employee for federal and state income tax purposes.
Employee shall notify the Company in writing of any claim by the Internal
Revenue Service or state or local taxing authority, that, if successful, would
result in any Excise Tax or an Underpayment ("Claim"). Such notice shall be
given as soon as practicable but no later than fifteen (15) business days after
Employee is informed in writing of the Claim and shall reprise the Company of
the nature of the Claim, the administrative or judicial appeal period, and the
date on which any payment of the claim must be paid. Employee shall not pay any
portion of the claim prior to the expiration of the thirty (30) day period
following the date on which Employee gives such notice to the Company (or such
shorter period ending on the date that any amount under the Claim is due). If
the Company notifies Employee in writing prior to the expiration of such thirty
(30) day period that it desires to contest the Claim, Employee shall:
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(i) give the Company any information reasonably
requested by the Company relating to the Claim;
(ii) take such action in connection with contesting
the Claim as the Company shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation concerning the
Claim by an attorney selected by the Company who is reasonably acceptable to
Employee; and
(iii) cooperate with the Company in good faith in
order to effectively contest the Claim; provided, however, that the Company
shall bear and pay directly all costs and expenses (including, without
limitation, additional interest and penalties and attorneys' fees) incurred in
such contests and shall indemnify and hold Employee harmless, on an after-tax
basis, for any Excise Tax or income tax (including, without limitation interest
and penalties thereon) imposed as a result of such representation. Without
limitation upon the foregoing provisions, except as provided below, the Company
shall control all proceedings concerning such contest and, at its sole option,
may pursue or forego any and all administrative appeal, proceedings, hearings
and conferences with the taxing authority pertaining to the Claim. At the
written request of the Company and upon payment to Employee of an amount at
least equal to the Claim plus any additional amount necessary to obtain the
jurisdiction of the appropriate tribunal and/or court ("Additional Sum")
Employee shall pay same and sue for a refund. Employee agrees to prosecute any
contest of a Claim to a determination before any administrative tribunal, in a
court of initial jurisdiction and in one or more appellate courts, as the
Company shall determine; provided, however, that if the Company requests
Employee to pay the Claim and sue for interest-free basis, and shall indemnify
and hold Employee harmless on an after-tax basis, from any Excise Tax or income
tax (including, without limitation, interest and penalties thereon) imposed on
such advance or for any imputed income on such advance. Any extension of the
statute of limitations relating to assessment of any Excise Tax for the taxable
year of Employee which is the subject of the Claim is to be limited solely to
the Claim. Furthermore, the Company's control of the contest shall be limited to
issues for which a Gross-Up Payment would be payable hereunder. Employee shall
be entitled to settle or contest, as the case may be, any other issue raised by
the Internal Revenue Service or any other taxing authority.
If, after the receipt by Employee of an amount advanced by the Company pursuant
to this Agreement, Employee receives any refund of a Claim and/or any Additional
Sum, Employee shall promptly pay to the Company the amount of such refund
(together with any interest paid or credited thereon after taxes applicable
thereto). If, after the receipt by Employee of an amount advanced by the Company
pursuant to this Agreement, a determination is made that Employee shall not be
entitled to any refund of the Claim and the Company does not notify Employee in
writing of its intent to contest such denial of refund of a Claim prior to the
expiration of thirty (30) business days after such determination, then the
portion of such advance attributable to a Claim shall be forgiven and shall not
be required to be repaid. The amount of such advance attributable to a Claim
shall offset, to the extent thereof, the amount of the Underpayment required to
be paid by the Company to Employee.
If, after the advance of an Additional Sum by the Company, there is a "Final
Determination" (as defined below) made by the taxing authority that Employee is
not entitled to any refund of such Additional Sum, or any portion thereof, then
such nonrefundable amount shall be repaid to the Company by Employee within
thirty (30) business days after Employee receives notice of such Final
Determination. A "Final Determination" shall occur when the period to contest or
otherwise appeal
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any decision by an administrative tribunal or court of initial jurisdiction has
been waived or the tie for contesting or appealing same has expired.
7. Successors.
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.
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.
8. 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 at the home address that 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 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. 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.
9. Arbitration.
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 Palo Alto, California, in accordance with the National Rules for the
Resolution of Employment Disputes then in effect of the American Arbitration
Association (the "Rules") provided, however, that the arbitrator shall allow the
discovery authorized by California
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Code of Civil Procedure section 1280, et seq., or any other discovery required
by California law in arbitration proceedings. Also, to the extent that any of
the Rules or anything in this Agreement conflicts with any arbitration
procedures required by California law, the arbitration procedures required by
California law shall govern. 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.
The arbitrator(s) shall apply California law to the merits of any dispute or
claim, without reference to conflicts of law rules. 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.
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.
EMPLOYEE AND COMPANY HAVE READ AND UNDERSTAND THIS SECTION, WHICH DISCUSSES
ARBITRATION. EMPLOYEE AND COMPANY UNDERSTAND THAT ANY CLAIMS ARISING OUT OF,
RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, OR THE INTERPRETATION,
VALIDITY, CONSTRUCTION, PERFORMANCE, BREACH OR TERMINATION THEREOF MUST BE
SUBMITTED TO BINDING ARBITRATION TO THE EXTENT PERMITTED BY LAW, AND THAT THIS
ARBITRATION CLAUSE CONSTITUTES A WAIVER OF EMPLOYEE'S RIGHT TO A JUDGE OR JURY
TRIAL (CIVIL ACTION) 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
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.
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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.
SPECTRIAN COMPANY
/s/ Thomas H. Waechter /s/ Garrett A. Garrettson
_________________________________ By: ________________________________
Employee Signature
Chairman of the Board
Its: _______________________________
July 19, 2001
________________________________ July 20, 2001
Date ____________________________________
Date
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Exhibit A
GENERAL RELEASE OF ALL CLAIMS
(to Change of Control Severance Agreement)
On behalf of myself, my heirs, executors, administrators and assigns, I hereby
make the following agreements and acknowledgements in exchange for the
severance, benefits and option acceleration to be received by me under the
Spectrian Company Change of Control Severance Agreement (the "CIC Agreement").
1. I agree that I fully and forever waive, release, acquit and discharge
Spectrian Company and any and all past, current and future parent, subsidiary
and affiliated companies, predecessors and successors thereto, as well as the
Company's officers, directors, agents, employees, affiliates, representatives,
shareholders and assigns (collectively the "Company"), from any and all claims,
actions, charges, complaints, grievances and causes of action of whatever
nature, whether now known or unknown, including but not limited to, all claims
arising from or relating to my recruitment and hiring by the Company, my
employment with the Company and the Involuntary Termination thereof, including
but not limited to: claims for bonuses, or for severance except pursuant to the
CIC Agreement; claims of breach of contract, breach of the covenant of good
faith and fair dealing, wrongful termination, violation of public policy, fraud,
intentional or negligent misrepresentation, defamation, personal injury,
infliction of emotional distress, and claims under Title VII of the 1964 Civil
Rights Act, the Equal Pay Act of 1963, the Age Discrimination in Employment Act,
the Americans with Disabilities Act, the Civil Rights Act of 1866, the Employee
Retirement Income Security Act of 1974, the Worker Adjustment Retraining and
Notification Act, the Family Medical Leave Act, the California Government Code,
the California Labor Code, and any other local, state and federal laws and
regulations relating to employment, except any claim I may have for:
a. unemployment or any state disability insurance benefits
pursuant to the terms of applicable state law;
b. workers' compensation insurance benefits under the terms of
any worker's compensation insurance policy or fund of the Company.
2. I understand and agree that if, hereafter, I discover facts different from or
in addition to those which I now know or believe to be true, that the waivers
and releases of this General Release shall be and remain effective in all
respects notwithstanding such different or additional facts or the discovery of
such facts. I agree that I fully and forever waive any and all rights and
benefits conferred upon me by the provisions of Section 1542 of the Civil Code
of the State of California (or other comparable provision of any applicable
state statutory or common law), which states as follows (parentheticals added):
A general release does not extend to claims which the creditor
[i.e., me] 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.e.,
the Company].
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3. I understand and agree that the severance, benefits, and options acceleration
provided under the CIC Agreement shall constitute the entire consideration
provided under this General Release and that I will not seek any further
compensation or benefits in connection with my employment or for any other
claims, damages, costs, or attorneys' fees in connection with the matters
encompassed in this General Release.
4. I agree that neither the fact nor any aspect of this General Release is
intended, or should be construed at any time, to be an admission of liability or
wrongdoing by either myself or by the Company.
5. I agree that I will not make any negative or disparaging statements or
comments, either as fact or as opinion, about the Company, including but not
limited to its employees, officers, directors, shareholders, vendors, products
or services, business, technologies, market position, performance and other
similar information concerning the Company.
6. I agree that if any provision, or portion of a provision, of this General
Release is, for any reason, held to be unenforceable, that such unenforceability
will not affect any other provision, or portion of a provision, and this General
Release shall be construed as if such unenforceable provision or portion had
never been contained herein.
7. I understand that this Agreement constitutes the entire agreement between the
Company and me on the subjects addressed herein, and no promises and
representations were made to me which do not appear in this Agreement. This
Agreement may not be modified or changed orally. I understand that no
modification of any of the terms or conditions of this Agreement shall be
effective unless made in writing and signed by the Company and me.
8. I understand that this Agreement supercedes and replaces all prior agreements
between the Company and me, whether express or implied, oral or written, except
that this Agreement (a) does not supercede the terms of any obligation which I
have to maintain confidentiality of and not misappropriate trade secrets, or
proprietary or confidential information of the Company; and (b) does not
supercede the terms of any obligation which I have pertaining to the assignment
of inventions to the Company.
9. I understand that I may review and consider, and discuss with an attorney of
my own choosing, and decide whether or not to sign this General Release. I
understand that through this General Release I am releasing the Company from any
and all claims I have or may have against the Company, including age
discrimination claims up through the Effective Date of this General Release.
10. I understand that if I choose to accept this General Release, I must date,
sign, and deliver it to the Company no later than the 21st calendar day
following my Involuntary Termination.
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11. I understand that after signing this Agreement, I have seven (7) days within
which to revoke the Agreement. In order to revoke this Agreement, I understand
that I must do so in writing and that I must deliver the written revocation so
that it is received in the Company's physical possession before the end of the
seven (7)-day revocation period. The written revocation must be delivered to the
Company at the following address:
Vice President, Human Resources
Spectrian Company
350 West Java Drive
Sunnyvale, CA 94089
Facsimile: (408) 541-0260
I further understand that I may not sign this General Release any earlier than
the effective date of my Involuntary Termination, and that the Effective Date of
this General Release will be the eighth day after I have signed it, provided
that I have delivered it to the Company and I have not revoked it during the
seven days after I signed it. I understand that I should return my signed
General Release as noted above.
SPECTRIAN COMPANY
Dated: _____________________________ By: ______________________________
Its: _____________________________
____________________________________ __________________________________
Dated Employee's Signature
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