Exhibit 10.21
FINISAR CORPORATION
EXECUTIVE RETENTION AND SEVERANCE PLAN
ADOPTED FEBRUARY 25, 2003
1. ESTABLISHMENT AND PURPOSE
1.1 ESTABLISHMENT. The Finisar Corporation Executive Retention and
Severance Plan (the "PLAN") is hereby established by the Compensation Committee
of the Board of Directors of Finisar Corporation, effective February 25, 2003
(the "EFFECTIVE DATE").
1.2 PURPOSE. The Company draws upon the knowledge, experience and
advice of its Officers and Key Employees in order to manage its business for the
benefit of the Company's stockholders. Due to the widespread awareness of the
possibility of mergers, acquisitions and other strategic alliances in the
Company's industry, the topic of compensation and other employee benefits in the
event of a Change in Control is an issue in competitive recruitment and
retention efforts. The Committee recognizes that the possibility or pending
occurrence of a Change in Control could lead to uncertainty regarding the
consequences of such an event and could adversely affect the Company's ability
to attract, retain and motivate its Officers and Key Employees. The Committee
has therefore determined that it is in the best interests of the Company and its
stockholders to provide for the continued dedication of its Officers and Key
Employees notwithstanding the possibility or occurrence of a Change in Control
by establishing this Plan to provide designated Officers and Key Employees with
enhanced financial security in the event of a Change in Control. The purpose of
this Plan is to provide its Participants with specified compensation and
benefits in the event of termination of employment under circumstances specified
herein upon or following a Change in Control.
2. DEFINITIONS AND CONSTRUCTION
2.1 DEFINITIONS. Whenever used in this Plan, the following terms shall
have the meanings set forth below:
(a) "BASE SALARY RATE" means a Participant's monthly base salary
determined at the greater of (1) the Participant's monthly base salary rate in
effect immediately prior to the Participant's Termination Upon a Change in
Control or (2) the Participant's monthly base salary rate in effect immediately
prior to the applicable Change in Control. For this purpose, base salary does
not include any bonuses, commissions, fringe benefits, car allowances, other
irregular payments or any other compensation except base salary.
(b) "BENEFIT PERIOD" means (1) with respect to a Participant who
is an Executive Officer a period of twenty-four (24) months and (2) with respect
to a Participant who is a Key Employee, a period of months determined by the
Committee and set forth in the Participant's Participation Agreement.
(c) "BOARD" means the Board of Directors of the Company.
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(d) "CAUSE" means the occurrence of any of the following, as
determined in good faith by a vote of not less than two-thirds of the entire
membership of the Board at a meeting of the Board called and held for such
purpose (after reasonable notice to the Participant and an opportunity for the
Participant, together with the Participant's counsel, to be heard before the
Board):
(1) the Participant's commission of any act of fraud,
embezzlement or dishonesty;
(2) the Participant's unauthorized use or disclosure of
confidential information or trade secrets of any member of the Company Group; or
(3) the Participant's intentional misconduct adversely
affecting the business or affairs of any member of the Company Group.
(e) "CHANGE IN CONTROL" means, except as otherwise provided in
the Participation Agreement applicable to a given Participant, the occurrence of
any of the following:
(1) any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")),
other than a trustee or other fiduciary holding securities of the Company under
an employee benefit plan of the Company, becomes the "beneficial owner" (as
defined in Rule 13d-3 promulgated under the Exchange Act), directly or
indirectly, of securities of the Company representing more than fifty percent
(50%) of (i) the outstanding shares of common stock of the Company or (ii) the
total combined voting power of the Company's then-outstanding securities
entitled to vote generally in the election of directors;
(2) the Company is party to a merger, consolidation or
similar corporate transaction, or series of related transactions, which results
in the holders of the voting securities of the Company outstanding immediately
prior to such transaction(s) failing to retain immediately after such
transaction(s) direct or indirect beneficial ownership of more than fifty
percent (50%) of the total combined voting power of the securities entitled to
vote generally in the election of directors of the Company or the surviving
entity outstanding immediately after such transaction(s);
(3) the sale or disposition of all or substantially all of
the Company's assets or consummation of any transaction, or series of related
transactions, having similar effect (other than a sale or disposition to one or
more subsidiaries of the Company); or
(4) a change in the composition of the Board within any
consecutive two-year period as a result of which fewer than a majority of the
directors are Incumbent Directors.
(f) "CHANGE IN CONTROL PERIOD" means a period commencing upon the
date of the consummation of a Change in Control and ending on the date occurring
eighteen (18) months thereafter.
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(g) "COBRA" means the group health plan continuation coverage
provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985 and any
applicable regulations promulgated thereunder.
(h) "CODE" means the Internal Revenue Code of 1986, as amended,
or any successor thereto and any applicable regulations promulgated thereunder.
(i) "COMMITTEE" means the Compensation Committee of the Board.
(j) "COMPANY" means Finisar Corporation, a Delaware corporation,
and, following a Change in Control, a Successor that agrees to assume all of the
terms and provisions of this Plan or a Successor which otherwise becomes bound
by operation of law to this Plan.
(k) "COMPANY GROUP" means the group consisting of the Company and
each present or future parent and subsidiary corporation or other business
entity thereof.
(l) "DISABILITY" means a Participant's permanent and total
disability within the meaning of Section 22(e)(3) of the Code.
(m) "EXECUTIVE OFFICER" means an individual appointed by the
Board as an executive officer of the Company and serving in such capacity both
upon becoming a Participant (unless then serving as a Key Employee) and
immediately prior to the consummation of a Change in Control.
(n) "GOOD REASON" means the occurrence of any of the following
conditions upon or following a Change in Control, without the Participant's
informed written consent, which condition(s) remain(s) in effect ten (10) days
after written notice to the Company from the Participant of such condition(s):
(1) assignment of the Participant to a position that is not
a Substantive Functional Equivalent of the position which the Participant
occupied immediately prior to the Change in Control;
(2) a decrease in the Participant's Base Salary Rate or a
decrease in the Participant's target bonus amount (subject to applicable
performance requirements with respect to the actual amount of bonus compensation
earned by the Participant);
(3) any failure by the Company Group to (i) continue to
provide the Participant with the opportunity to participate, on terms no less
favorable than those in effect for the benefit of any employee group which
customarily includes a person holding the employment position or a comparable
position with the Company Group then held by the Participant, in any benefit or
compensation plans and programs, including, but not limited to, the Company
Group's life, disability, health, dental, medical, savings, profit sharing,
stock purchase and retirement plans, if any, in which the Participant was
participating immediately prior to the date of the Change in Control, or their
equivalent, or (ii) provide the Participant with all other fringe benefits (or
their equivalent) from time to time in effect for the benefit of any employee
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group which customarily includes a person holding the employment position or a
comparable position with the Company Group then held by the Participant;
(4) the relocation of the Participant's work place for the
Company Group to a location that increases the regular commute distance between
the Participant's residence and work place by more than thirty (30) miles
(one-way), or the imposition of travel requirements substantially more demanding
of the Participant than such travel requirements existing immediately prior to
the Change in Control; or
(5) any material breach of this Plan by the Company with
respect to the Participant.
The existence of Good Reason shall not be affected by the Participant's
temporary incapacity due to physical or mental illness not constituting a
Disability. The Participant's continued employment shall not constitute consent
to, or a waiver of rights with respect to, any condition constituting Good
Reason hereunder. For the purposes of any determination regarding the existence
of Good Reason hereunder, any claim by the Participant that Good Reason exists
shall be presumed to be correct unless the Company establishes to the Board that
Good Reason does not exist, and the Board, acting in good faith, affirms such
determination by a vote of not less than two-thirds of its entire membership
(excluding the Participant if the Participant is a member of the Board).
(o) "INCUMBENT DIRECTOR" means a director who either (1) is a
member of the Board as of the Effective Date, or (2) is elected, or nominated
for election, to the Board with the affirmative votes of at least a majority of
the Incumbent Directors at the time of such election or nomination, but (3) was
not elected or nominated in connection with an actual or threatened proxy
contest relating to the election of directors of the Company.
(p) "KEY EMPLOYEE" means an individual, other than an Executive
Officer, who has been designated by the Committee as eligible to participate in
the Plan, and who, immediately prior to the consummation of a Change in Control,
is employed by the Company Group.
(q) "OPTION" means any option to purchase shares of the capital
stock of the Company or of any other member of the Company Group granted to a
Participant by the Company or any other Company Group member, whether granted
before or after a Change in Control, including any such option which is assumed
by, or for which a replacement option is substituted by, the Successor or any
other member of the Company Group in connection with the Change in Control.
(r) "PARTICIPANT" means each Executive Officer and Key Employee
designated by the Committee to participate in the Plan, provided such individual
has executed a Participation Agreement.
(s) "PARTICIPATION AGREEMENT" means an Agreement to Participate
in the Finisar Corporation Executive Retention and Severance Plan in the form
attached hereto as Exhibit A or in such other form as the Committee may approve
from time to time; provided, however, that, after a Participation Agreement has
been entered into between a Participant
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and the Company, it may be modified only by a supplemental written agreement
executed by both the Participant and the Company. The terms of such forms of
Participation Agreement need not be identical with respect to each Participant.
For example, a Participation Agreement may limit the duration of a Participant's
participation in the Plan or may modify the definition of "Change in Control"
with respect to a Participant, or, in the case of a Key Employee, may specify a
Benefit Period that is not identical to the Benefit Period specified for other
Participants.
(t) "RELEASE" means a general release of all known and unknown
claims against the Company and its affiliates and their stockholders, directors,
officers, employees, agents, successors and assigns substantially in the form
attached hereto as Exhibit B ("General Release of Claims, Age 40 and Over") or
Exhibit C ("General Release of Claims, Under Age 40"), whichever is applicable,
with any modifications thereto determined by legal counsel to the Company to be
necessary or advisable to comply with applicable law or to accomplish the intent
of Section 8 (Exclusive Remedy) hereof.
(u) "RESTRICTED STOCK" means any shares of the capital stock of
the Company or of any other member of the Company Group granted to a Participant
by the Company or any other Company Group member or acquired upon the exercise
of an Option, whether such shares are granted or acquired before or after a
Change in Control, including any shares issued in exchange for any such shares
by a Successor or any other member of the Company Group in connection with a
Change in Control.
(v) "SUBSTANTIVE FUNCTIONAL EQUIVALENT" means an employment
position occupied by a Participant after a Change in Control that:
(1) is in a substantive area of competence (such as,
accounting, executive management, finance, human resources, marketing, sales and
service, or operations, etc.) that is consistent with the Participant's
experience and not materially different from the position occupied by the
Participant immediately prior to the Change in Control;
(2) allows the Participant to serve in a role and perform
duties that are functionally equivalent to those performed immediately prior to
the Change in Control (such as business unit executive with profit and loss
responsibility, product line manager, marketing strategist, geographic sales
manager, executive officer, etc.); and
(3) does not otherwise constitute a material, adverse change
in the Participant's responsibilities or duties, as measured against the
Participant's responsibilities or duties prior to the Change in Control, causing
it to be of materially lesser rank or responsibility within the Company or an
equivalent business unit of its parent.
(w) "SUCCESSOR" means any successor in interest to substantially
all of the business and/or assets of the Company.
(x) "TERMINATION UPON A CHANGE IN CONTROL" means the occurrence
of any of the following events:
(1) termination by the Company Group of the Participant's
employment for any reason other than Cause during a Change in Control Period; or
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(2) the Participant's resignation for Good Reason from
employment with the Company Group during a the Change in Control Period;
provided, however, that Termination Upon a Change in Control shall not include
any termination of the Participant's employment which is (i) for Cause, (ii) a
result of the Participant's death or Disability, or (iii) a result of the
Participant's voluntary termination of employment other than for Good Reason.
2.2 CONSTRUCTION. Captions and titles contained herein are for
convenience only and shall not affect the meaning or interpretation of any
provision of the Plan. Except when otherwise indicated by the context, the
singular shall include the plural and the plural shall include the singular. Use
of the term "or" is not intended to be exclusive, unless the context clearly
requires otherwise.
3. ELIGIBILITY AND PARTICIPATION
The Committee shall designate those Executive Officers and Key
Employees who shall be eligible to become Participants in the Plan. To become a
Participant, an Executive Officer or Key Employee must execute a Participation
Agreement.
4. TREATMENT OF EQUITY AWARDS UPON A CHANGE IN CONTROL
4.1 OPTIONS AND RESTRICTED STOCK. Notwithstanding any provision to the
contrary contained in any plan or agreement evidencing an Option granted to a
Participant, the Participant shall be credited effective immediately prior to,
but conditioned upon, the consummation of a Change in Control and thereafter,
for purposes of determining the extent of the vesting and exercisability of each
outstanding Option then held by the Participant and the vesting of any shares of
Restricted Stock acquired by the Participant upon the exercise of an Option,
with one (1) additional year of employment or service with the Company Group.
Furthermore, in the event of a Change in Control in which the surviving,
continuing, successor, or purchasing corporation or other business entity or
parent thereof, as the case may be (the "ACQUIROR"), does not assume the
Company's rights and obligations under the then-outstanding Options held by the
Participant or substitute for such Options substantially equivalent options for
the Acquiror's stock, then the vesting and exercisability of each such Option
shall be accelerated in full effective immediately prior to, but conditioned
upon, the consummation of the Change in Control.
4.2 OTHER EQUITY AWARDS. Except as set forth in Section 4.1 above, the
treatment of stock-based compensation upon the consummation of a Change in
Control shall be determined in accordance with the terms of the plans or
agreements providing for such awards.
5. BENEFITS UPON TERMINATION UPON A CHANGE IN CONTROL
In the event of a Participant's Termination Upon a Change in Control,
the Participant shall be entitled to receive the compensation and benefits
described in this Section 5.
5.1 ACCRUED OBLIGATIONS. The Participant shall be entitled to receive:
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(a) all salary, bonuses, commissions and accrued but unused
vacation earned through the date of the Participant's termination of employment;
(b) reimbursement within ten (10) business days of submission of
proper expense reports of all expenses reasonably and necessarily incurred by
the Participant in connection with the business of the Company Group prior to
his or her termination of employment; and
(c) the benefits, if any, under any Company Group retirement
plan, nonqualified deferred compensation plan, stock purchase or other
stock-based compensation plan or agreement (other than any such plan or
agreement pertaining to Options, Restricted Stock or other stock-based
compensation whose treatment is prescribed by Section 5.2(c) below), health
benefits plan or other Company Group benefit plan to which the Participant may
be entitled pursuant to the terms of such plans or agreements.
5.2 SEVERANCE BENEFITS. Provided that the Participant executes and
does not revoke the Release applicable to such Participant at or following the
time of the Participant's Termination Upon a Change in Control and subject to
the provisions of Section 6, the Participant shall be entitled to receive the
following severance payments and benefits:
(a) CASH SEVERANCE PAYMENT. Within ten (10) business days
following the later of the Participant's termination of employment or the last
day on which the Participant may revoke the Release in accordance with its
terms, the Company shall pay to the Participant in a lump sum cash payment an
amount equal to the product of (a) the Participant's Base Salary Rate and (b)
the number of months in the Benefit Period applicable to the Participant.
(b) HEALTH AND LIFE INSURANCE BENEFITS. For the period commencing
immediately following the Participant's termination of employment and continuing
for the duration of the Benefit Period applicable to the Participant, the
Company shall arrange to provide the Participant and his or her dependents with
health (including medical and dental) and life insurance benefits substantially
similar to those provided to the Participant and his or her dependents
immediately prior to the date of such termination of employment (without giving
effect to any reduction in such benefits constituting Good Reason). Such
benefits shall be provided to the Participant at the same premium cost to the
Participant and at the same coverage level as in effect as of the Participant's
termination of employment (without giving effect to any reduction in such
benefits constituting Good Reason); provided, however, that the Participant
shall be subject to any change in the premium cost and/or level of coverage
applicable generally to all employees holding the position or comparable
position with the Company which the Participant held immediately prior to the
Change in Control. The Company may satisfy its obligation to provide a
continuation of health insurance benefits by paying that portion of the
Participant's premiums required under COBRA that exceed the amount of premiums
that the Participant would have been required to pay for continuing coverage had
he or she continued in employment. If the Company is not reasonably able to
continue such health and/or life insurance coverage under the Company's benefit
plans, the Company shall provide substantially equivalent coverage under other
sources or will reimburse the Participant for premiums (in excess of the
Participant's premium cost described above) incurred by the Participant to
obtain his or her own
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such coverage. If the Participant and/or the Participant's dependents become
eligible to receive any such coverage under another employer's benefit plans
during the applicable Benefit Period, the Participant shall report such
eligibility to the Company, and the Company's obligations under this subsection
shall be secondary to the coverage provided by such other employer's plans. For
the balance of any period in excess of the applicable Benefit Period during
which the Participant is entitled to continuation coverage under COBRA, the
Participant shall be entitled to maintain coverage for himself or herself and
the Participant's eligible dependents at the Participant's own expense.
(c) ACCELERATION OF VESTING OF OPTIONS, RESTRICTED STOCK AND
OTHER STOCK-BASED COMPENSATION; EXTENSION OF OPTION EXERCISE PERIOD.
Notwithstanding any provision to the contrary contained in any agreement
evidencing an Option, Restricted Stock or other stock-based compensation award
granted to a Participant, the vesting and/or exercisability of each of the
Participant's outstanding Options, Restricted Stock and other stock-based
compensation awards shall be accelerated in full effective as of the date of the
Participant's termination of employment so that each Option, share of Restricted
Stock and other stock-based compensation award held by the Participant shall be
immediately exercisable and/or fully vested as of such date; provided, however,
that such acceleration of vesting and/or exercisability shall not apply to any
stock-based compensation award where such acceleration would result in plan
disqualification or would otherwise be contrary to applicable law (e.g., an
employee stock purchase plan intended to qualify under Section 423 of the Code).
Furthermore, each such Option, to the extent unexercised on the date on which
the Participant's employment terminated, may be exercised by the Participant (or
the Participant's guardian or legal representative) at any time prior to the
later of the date specified in the agreement evidencing such Option or the
expiration of one (1) year after the date on which the Participant's employment
terminated, but in any event no later than the date of expiration of the
Option's term as set forth in the agreement evidencing such Option.
5.3 INDEMNIFICATION; INSURANCE.
(a) In addition to any rights a Participant may have under any
indemnification agreement previously entered into between the Company and such
Participant (a "PRIOR INDEMNITY AGREEMENT"), from and after the date of the
Participant's termination of employment, the Company shall indemnify and hold
harmless the Participant against any costs or expenses (including attorneys'
fees), judgments, fines, losses, claims, damages or liabilities incurred in
connection with any claim, action, suit, proceeding or investigation, whether
civil, criminal, administrative or investigative, by reason of the fact that the
Participant is or was a director, officer, employee or agent of the Company
Group, or is or was serving at the request of the Company Group as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, whether asserted or claimed prior to, at or after the
date of the Participant's termination of employment, to the fullest extent
permitted under applicable law, and the Company shall also advance fees and
expenses (including attorneys' fees) as incurred by the Participant to the
fullest extent permitted under applicable law. In the event of a conflict
between the provisions of a Prior Indemnity Agreement and the provisions of this
Plan, the Participant may elect which provisions shall govern.
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(b) For a period of six (6) years from and after the date of
termination of employment of a Participant who was an officer and/or director of
the Company at any time prior to such termination of employment, the Company
shall maintain a policy of directors' and officers' liability insurance for the
benefit of such Participant which provides him or her with coverage no less
favorable than that provided for the Company's continuing officers and
directors.
6. FEDERAL EXCISE TAX UNDER SECTION 4999 OF THE CODE
6.1 EXCESS PARACHUTE PAYMENT. In the event that any payment or benefit
received or to be received by the Participant pursuant to this Plan or otherwise
(collectively, the "PAYMENTS") would subject the Participant to any excise tax
pursuant to Section 4999 of the Code (the "EXCISE TAX") due to the
characterization of such Payments as an excess parachute payment under Section
280G of the Code, then, notwithstanding the other provisions of this Plan, the
amount of such Payments will not exceed the amount which produces the greatest
after-tax benefit to the Participant.
6.2 DETERMINATION BY ACCOUNTANTS. Upon the occurrence of any event
(the "EVENT") that would give rise to any Payments pursuant to this Plan, the
Company shall promptly request a determination in writing by independent public
accountants (the "ACCOUNTANTS") selected by the Company and reasonably
acceptable to the Participant of the amount and type of such Payments which
would produce the greatest after-tax benefit to the Participant. For the
purposes of such determination, the Accountants may rely on reasonable, good
faith interpretations concerning the application of Sections 280G and 4999 of
the Code. The Company and the Participant shall furnish to the Accountants such
information and documents as the Accountants may reasonably request in order to
make their required determination. The Company shall bear all fees and expenses
charged by the Accountants in connection with their services contemplated by
this Section.
7. CONFLICT IN BENEFITS; NONCUMULATION OF BENEFITS
7.1 EFFECT OF PLAN. The terms of this Plan, when accepted by a
Participant pursuant to an executed Participation Agreement, shall supersede all
prior arrangements, whether written or oral, and understandings regarding the
subject matter of this Plan and shall be the exclusive agreement for the
determination of any payments and benefits due to the Participant upon the
events described in Sections 4, 5 and 6.
7.2 NONCUMULATION OF BENEFITS. Except as expressly provided in a
written agreement between a Participant and the Company entered into after the
date of such Participant's Participation Agreement and which expressly disclaims
this Section 7.2 and is approved by the Board or the Committee, the total amount
of payments and benefits that may be received by the Participant as a result of
the events described in Sections 4, 5 and 6 pursuant to (a) this Plan, (b) any
agreement between the Participant and the Company or (c) any other plan,
practice or statutory obligation of the Company, shall not exceed the amount of
payments and benefits provided by this Plan upon such events (plus any payments
and benefits provided pursuant to a Prior Indemnity Agreement, as described in
Section 5.3(a)), and the aggregate
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amounts payable under this Plan shall be reduced to the extent of any excess
(but not below zero).
8. EXCLUSIVE REMEDY
The payments and benefits provided by Section 5 and Section 6 (plus
any payments and benefits provided pursuant to a Prior Indemnity Agreement, as
described in Section 5.3(a)), if applicable, shall constitute the Participant's
sole and exclusive remedy for any alleged injury or other damages arising out of
the cessation of the employment relationship between the Participant and the
Company in the event of the Participant's Termination Upon a Change in Control.
The Participant shall be entitled to no other compensation, benefits, or other
payments from the Company as a result of any Termination Upon a Change in
Control with respect to which the payments and benefits described in Section 5
and Section 6 (plus any payments and benefits provided pursuant to a Prior
Indemnity Agreement, as described in Section 5.3(a)), if applicable, have been
provided to the Participant, except as expressly set forth in this Plan or,
subject to the provisions of Sections 7.2, in a duly executed employment
agreement between Company and the Participant.
9. PROPRIETARY AND CONFIDENTIAL INFORMATION
The Participant agrees to continue to abide by the terms and
conditions of the confidentiality and/or proprietary rights agreement between
the Participant and the Company or any other member of the Company Group.
10. NONSOLICITATION
If the Company performs its obligations to deliver the payments and
benefits set forth in Section 5 and Section 6 (plus any payments and benefits
provided pursuant to a Prior Indemnity Agreement, as described in Section
5.3(a)), then for a period equal to the Benefit Period applicable to a
Participant following the Participant's Termination Upon a Change in Control,
the Participant shall not, directly or indirectly, recruit, solicit or invite
the solicitation of any employees of the Company to terminate their employment
relationship with the Company.
11. NO CONTRACT OF EMPLOYMENT
Neither the establishment of the Plan, nor any amendment thereto, nor
the payment of any benefits shall be construed as giving any person the right to
be retained by the Company, a Successor or any other member of the Company
Group. Except as otherwise established in an employment agreement between the
Company and a Participant, the employment relationship between the Participant
and the Company is an "at-will" relationship. Accordingly, either the
Participant or the Company may terminate the relationship at any time, with or
without cause, and with or without notice except as otherwise provided by
Section 15. In addition, nothing in this Plan shall in any manner obligate any
Successor or other member of the Company Group to offer employment to any
Participant or to continue the employment of any Participant which it does hire
for any specific duration of time.
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12. CLAIMS FOR BENEFITS
12.1 ERISA PLAN. This Plan is intended to be (a) an employee welfare
plan as defined in Section 3(1) of Employee Retirement Income Security Act of
1974 ("ERISA") and (b) a "top-hat" plan maintained for the benefit of a select
group of management or highly compensated employees of the Company Group.
12.2 APPLICATION FOR BENEFITS. All applications for payments and/or
benefits under the Plan ("BENEFITS") shall be submitted to the Company's General
Counsel (the "CLAIMS ADMINISTRATOR"). Applications for Benefits must be in
writing on forms acceptable to the Claims Administrator and must be signed by
the Participant or beneficiary. The Claims Administrator reserves the right to
require the Participant or beneficiary to furnish such other proof of the
Participant's expenses, including without limitation, receipts, canceled checks,
bills, and invoices as may be required by the Claims Administrator.
12.3 APPEAL OF DENIAL OF CLAIM.
(a) If a claimant's claim for Benefits is denied, the Claims
Administrator shall provide notice to the claimant in writing of the denial
within ninety (90) days after its submission. The notice shall be written in a
manner calculated to be understood by the claimant and shall include:
(1) The specific reason or reasons for the denial;
(2) Specific references to the Plan provisions on which the
denial is based;
(3) A description of any additional material or information
necessary for the applicant to perfect the claim and an explanation of why such
material or information is necessary; and
(4) An explanation of the Plan's claims review procedures
and a statement of claimant's right to bring a civil action under ERISA Section
502(a) following an adverse benefit determination.
(b) If special circumstances require an extension of time for
processing the initial claim, a written notice of the extension and the reason
therefor shall be furnished to the claimant before the end of the initial ninety
(90) day period. In no event shall such extension exceed ninety (90) days.
(c) If a claim for Benefits is denied, the claimant, at the
claimant's sole expense, may appeal the denial to the Committee (the "APPEALS
ADMINISTRATOR") within sixty (60) days of the receipt of written notice of the
denial. In pursuing such appeal the applicant or his duly authorized
representative:
(1) may request in writing that the Appeals Administrator
review the denial;
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(2) may review pertinent documents; and
(3) may submit issues and comments in writing.
(d) The decision on review shall be made within sixty (60) days
of receipt of the request for review, unless special circumstances require an
extension of time for processing, in which case a decision shall be rendered as
soon as possible, but not later than one hundred twenty (120) days after receipt
of the request for review. If such an extension of time is required, written
notice of the extension shall be furnished to the claimant before the end of the
original sixty (60) day period. The decision on review shall be made in writing,
shall be written in a manner calculated to be understood by the claimant, and,
if the decision on review is a denial of the claim for Benefits, shall include:
(1) The specific reason or reasons for the denial;
(2) Specific references to the Plan provisions on which the
denial is based;
(3) A description of any additional material or information
necessary for the applicant to perfect the claim and an explanation of why such
material or information is necessary; and
(4) An explanation of the Plan's claims review procedures
and a statement of claimant's right to bring a civil action under ERISA Section
502(a) following an adverse benefit determination.
13. DISPUTE RESOLUTION
13.1 WAIVER OF JURY TRIAL. In the event of any dispute or claim
relating to or arising out of this Plan that is not resolved in accordance with
procedure described in Section 12, the Company and the Participant, each by
executing a Participation Agreement, agree that all such disputes or claims
shall be resolved by means of a court trial conducted by the superior or
district court in Santa Clara County, California or as otherwise required by
ERISA. The Company and the Participant, each by executing a Participation
Agreement, irrevocably waive their respective rights to have any such disputes
or claims tried by a jury, and agree that such courts will have personal and
subject matter jurisdiction over all such claims or disputes. Notwithstanding
the foregoing, in the event of any such dispute, the Company and the Participant
may agree to mediate or arbitrate the dispute on such terms and conditions as
may they may agree in writing.
13.2 ATTORNEYS' FEES. The prevailing party shall be entitled to
recover from the losing party its attorneys' fees and costs incurred in any
action brought to enforce any right arising out of this Plan.
14. SUCCESSORS AND ASSIGNS
14.1 SUCCESSORS OF THE COMPANY. The Company shall require any
successor or assign (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or
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substantially all of the business and/or assets of the Company, expressly,
absolutely and unconditionally to assume and agree to perform this Plan in the
same manner and to the same extent that the Company would be required to perform
it if no such succession or assignment had taken place.
14.2 ACKNOWLEDGMENT BY COMPANY. If, after a Change in Control, the
Company fails to reasonably confirm that it has performed the obligation
described in Section 13.1 within thirty (30) days after written notice from the
Participant, such failure shall be a material breach of this Plan and shall
entitle the Participant to resign for Good Reason and to receive the benefits
provided under this Plan in the event of Termination Upon a Change in Control.
14.3 HEIRS AND REPRESENTATIVES OF PARTICIPANT. This Plan shall inure
to the benefit of and be enforceable by the Participant's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devises, legatees or other beneficiaries. If the Participant should die while
any amount would still be payable to the Participant hereunder (other than
amounts which, by their terms, terminate upon the death of the Participant) if
the Participant had continued to live, then all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this Plan to the
executors, personal representatives or administrators of the Participant's
estate.
15. NOTICES
15.1 GENERAL. For purposes of this Plan, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when personally delivered or when mailed by United States
certified mail, return receipt requested, or by overnight courier, postage
prepaid, as follows:
(a) if to the Company:
Finisar Corporation
1308 Moffett Park Drive
Sunnyvale, California 94089
Attention: President
(b) if to the Participant, at the home address which the
Participant most recently communicated to the Company in writing.
Either party may provide the other with notices of change of address, which
shall be effective upon receipt.
15.2 NOTICE OF TERMINATION. Any termination by the Company of the
Participant's employment during the Change in Control Period or any resignation
by the Participant during the Change in Control Period shall be communicated by
a notice of termination or resignation to the other party hereto given in
accordance with Section 15.1. Such notice shall indicate the specific
termination provision in this Plan 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.
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16. TERMINATION AND AMENDMENT OF PLAN
This Plan and/or any Participation Agreement executed by a Participant
may not be terminated with respect to such Participant without the written
consent of the Participant and the approval of the Board or the Committee. The
Plan and/or any Participation Agreement executed by a Participant may be
modified, amended or superseded with respect to such Participant only by a
supplemental written agreement between the Participant and the Company approved
by the Board or the Committee.
17. MISCELLANEOUS PROVISIONS
17.1 UNFUNDED OBLIGATION. Any amounts payable to Participants pursuant
to the Plan are unfunded obligations. The Company shall not be required to
segregate any monies from its general funds, or to create any trusts, or
establish any special accounts with respect to such obligations. The Company
shall retain at all times beneficial ownership of any investments, including
trust investments, which the Company may make to fulfill its payment obligations
hereunder. Any investments or the creation or maintenance of any trust or any
Participant account shall not create or constitute a trust or fiduciary
relationship between the Board or the Company and a Participant, or otherwise
create any vested or beneficial interest in any Participant or the Participant's
creditors in any assets of the Company.
17.2 NO DUTY TO MITIGATE; OBLIGATIONS OF COMPANY. A Participant shall
not be required to mitigate the amount of any payment or benefit contemplated by
this Plan by seeking employment with a new employer or otherwise, nor shall any
such payment or benefit (except for benefits to the extent described in Section
5.2(b)) be reduced by any compensation or benefits that the Participant may
receive from employment by another employer. Except as otherwise provided by
this Plan, the obligations of the Company to make payments to the Participant
and to make the arrangements provided for herein are absolute and unconditional
and may not be reduced by any circumstances, including without limitation any
set-off, counterclaim, recoupment, defense or other right which the Company may
have against the Participant or any third party at any time.
17.3 NO REPRESENTATIONS. By executing a Participation Agreement, the
Participant acknowledges that in becoming a Participant in the Plan, the
Participant is not relying and has not relied on any promise, representation or
statement made by or on behalf of the Company which is not set forth in this
Plan.
17.4 WAIVER. No waiver by the Participant or the Company of any breach
of, or of any lack of compliance with, any condition or provision of this Plan
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.
17.5 CHOICE OF LAW. The validity, interpretation, construction and
performance of this Plan shall be governed by the substantive laws of the State
of California, without regard to its conflict of law provisions.
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17.6 VALIDITY. The invalidity or unenforceability of any provision of
this Plan shall not affect the validity or enforceability of any other provision
of this Plan, which shall remain in full force and effect.
17.7 BENEFITS NOT ASSIGNABLE. Except as otherwise provided herein or
by law, no right or interest of any Participant under the Plan shall be
assignable or transferable, in whole or in part, either directly or by operation
of law or otherwise, including, without limitation, by execution, levy,
garnishment, attachment, pledge or in any other manner, and no attempted
transfer or assignment thereof shall be effective. No right or interest of any
Participant under the Plan shall be liable for, or subject to, any obligation or
liability of such Participant.
17.8 TAX WITHHOLDING. All payments made pursuant to this Plan will be
subject to withholding of applicable income and employment taxes.
17.9 CONSULTATION WITH LEGAL AND FINANCIAL ADVISORS. By executing a
Participation Agreement, the Participant acknowledges that this Plan confers
significant legal rights, and may also involve the waiver of rights under other
agreements; that the Company has encouraged the Participant to consult with the
Participant's personal legal and financial advisors; and that the Participant
has had adequate time to consult with the Participant's advisors before
executing the Participation Agreement.
17.10 FURTHER ASSURANCES. From time to time, at the Company's request
and without further consideration, the Participant shall execute and deliver
such additional documents and take all such further action as reasonably
requested by the Company to be necessary or desirable to make effective, in the
most expeditious manner possible, the terms of the Plan and the Participant's
Participation Agreement, Release and Restrictive Covenants Agreement, and to
provide adequate assurance of the Participant's due performance thereunder.
18. AGREEMENT
By executing a Participation Agreement, the Participant acknowledges
that the Participant has received a copy of this Plan and has read, understands
and is familiar with the terms and provisions of this Plan. This Plan shall
constitute an agreement between the Company and the Participant executing a
Participation Agreement.
IN WITNESS WHEREOF, the undersigned Secretary of the Company certifies that
the foregoing Plan was duly adopted by the Committee on February 25, 2003.
----------------------------------------
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EXHIBIT A
FORM OF
AGREEMENT TO PARTICIPATE IN THE
FINISAR CORPORATION
EXECUTIVE RETENTION AND SEVERANCE PLAN
AGREEMENT TO PARTICIPATE IN THE
FINISAR CORPORATION
EXECUTIVE RETENTION AND SEVERANCE PLAN
ADOPTED FEBRUARY 25, 2003
In consideration of the benefits provided by the Maxtor Corporation
Executive Retention and Severance Plan (the "PLAN"), the undersigned employee of
Finisar Corporation (the "COMPANY") and the Company agree that, as of the date
written below, the undersigned shall become a Participant in the Plan and shall
be fully bound by and subject to all of its provisions. All references to a
"Participant" in the Plan shall be deemed to refer to the undersigned.
[THE UNDERSIGNED IS A "KEY EMPLOYEE" (AS DEFINED BY THE PLAN) AS OF THE
DATE OF THIS AGREEMENT. IF THE UNDERSIGNED REMAINS A KEY EMPLOYEE, BUT NOT AN
"EXECUTIVE OFFICER," FOR THE PURPOSE OF DETERMINING ANY SEVERANCE PAYMENTS OR
BENEFITS TO WHICH THE UNDERSIGNED MAY BECOME ENTITLED UNDER THE PLAN, THEN THE
"BENEFIT PERIOD" APPLICABLE TO THE UNDERSIGNED UNDER THE PLAN SHALL BE PERIODS
OF ________ MONTHS.]
The undersigned employee acknowledges that the Plan confers significant
legal rights and may also constitute a waiver of rights under other agreements
with the Company; that the Company has encouraged the undersigned to consult
with the undersigned's personal legal and financial advisors; and that the
undersigned has had adequate time to consult with the undersigned's advisors
before executing this agreement.
The undersigned employee acknowledges that he or she has received a copy of
the Plan and has read, understands and is familiar with the terms and provisions
of the Plan. The undersigned employee further acknowledges that (1) the
undersigned is waiving any right to a jury trial in the event of any dispute
arising out of or related to the Plan and (2) except as otherwise established in
an employment agreement between the Company and the undersigned, the employment
relationship between the undersigned and the Company is an "at-will"
relationship.
Executed on _________________________.
PARTICIPANT FINISAR CORPORATION
By:
- --------------------------------- -------------------------------------
Signature
Title:
- --------------------------------- ----------------------------------
Name Printed
- ---------------------------------
Address
- ---------------------------------
EXHIBIT B
FORMS OF
GENERAL RELEASE OF CLAIMS
[Age 40 and Over]
GENERAL RELEASE OF CLAIMS
[AGE 40 AND OVER]
This Agreement is by and between [EMPLOYEE NAME] ("Employee") and
[FINISAR CORPORATION OR SUCCESSOR THAT AGREES TO ASSUME THE EXECUTIVE RETENTION
AND SEVERANCE PLAN FOLLOWING A CHANGE IN CONTROL] (the "Company"). This
Agreement will become effective on the eighth (8th) day after it is signed by
Employee (the "Effective Date"), provided that the Company has signed this
Agreement and Employee has not revoked this Agreement (by written notice to
[COMPANY CONTACT NAME] at the Company) prior to that date.
RECITALS
A. Employee was employed by the Company as of ___________, ____.
B. Employee and the Company entered into an Agreement to Participate in the
Finisar Corporation Executive Retention and Severance Plan (such agreement and
plan being referred to herein as the "Plan") effective as of __________, ____
wherein Employee is entitled to receive certain benefits in the event of a
Termination Upon a Change in Control (as defined by the Plan), provided Employee
signs and does not revoke a Release (as defined by the Plan).
C. A Change in Control (as defined by the Plan) has occurred as a result of
[BRIEFLY DESCRIBE CHANGE IN CONTROL]
D. Employee's employment is being terminated as a result of a Termination
Upon a Change in Control. Employee's last day of work and termination are
effective as of _______________, ____. Employee desires to receive the payments
and benefits provided by the Plan by executing this Release.
NOW, THEREFORE, the parties agree as follows:
1. Commencing on the Effective Date, the Company shall provide Employee
with the applicable payments and benefits set forth in the Plan in accordance
with the terms of the Plan. Employee acknowledges that the payments and benefits
made pursuant to this paragraph are made in full satisfaction of the Company's
obligations under the Plan. Employee further acknowledges that Employee has been
paid all wages and accrued, unused vacation that Employee earned during his or
her employment with the Company.
2. Employee and Employee's successors release the Company, its respective
subsidiaries, stockholders, investors, directors, officers, employees, agents,
attorneys, insurers, legal successors and assigns of and from any and all
claims, actions and causes of action, whether now known or unknown, which
Employee now has, or at any other time had, or shall or may have against those
released parties based upon or arising out of any matter, cause, fact, thing,
act or omission whatsoever directly related to Employee's employment by the
Company or the termination of such employment and occurring or existing at any
time up to and including the Effective Date, including, but not limited to, any
claims of breach of written contract, wrongful termination, retaliation, fraud,
defamation, infliction of emotional distress, or national origin, race, age,
sex, sexual orientation, disability or other discrimination or harassment under
the Civil
Rights Act of 1964, the Age Discrimination In Employment Act of 1967, the
Americans with Disabilities Act, the Fair Employment and Housing Act or any
other applicable law. Notwithstanding the foregoing, this release shall not
apply to any right of the Employee pursuant to Section 5.4 of the Plan or
pursuant to a Prior Indemnity Agreement (as such term is defined by the Plan).
3. Employee acknowledges that he or she has read Section 1542 of the Civil
Code of the State of California, which states in full:
A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the release,
which if known by him must have materially affected his settlement with the
debtor.
Employee waives any rights that Employee has or may have under Section 1542 and
comparable or similar provisions of the laws of other states in the United
States to the full extent that he or she may lawfully waive such rights
pertaining to this general release of claims, and affirms that Employee is
releasing all known and unknown claims that he or she has or may have against
the parties listed above.
4. Employee and the Company acknowledge and agree that they shall continue
to be bound by and comply with the terms and obligations under the following
agreements: (i) any proprietary rights or confidentiality agreements between the
Company and Employee, (ii) the Plan, (iii) any Prior Indemnity Agreement (as
such term is defined by the Plan) to which Employee is a party, and (iv) any
stock option, stock grant or stock purchase agreements between the Company and
Employee.
5. This Agreement shall be binding upon, and shall inure to the benefit of,
the parties and their respective successors, assigns, heirs and personal
representatives.
6. The parties agree that any and all disputes that both (i) arise out of
the Plan, the interpretation, validity or enforceability of the Plan or the
alleged breach thereof and (ii) relate to the enforceability of this Agreement
or the interpretation of the terms of this Agreement shall be subject to the
provisions of Section 12 and Section 13 of the Plan.
7. The parties agree that any and all disputes that (i) do not arise out of
the Plan, the interpretation, validity or enforceability of the Plan or the
alleged breach thereof and (ii) relate to the enforceability of this Agreement,
the interpretation of the terms of this Agreement or any of the matters herein
released or herein described shall be resolved by means of a court trial
conducted by the superior or district court in Santa Clara County, California.
The parties hereby irrevocably waive their respective rights to have any such
disputes tried to a jury, and the parties hereby agree that such courts will
have personal and subject matter jurisdiction over all such disputes.
Notwithstanding the foregoing, in the event of any such dispute, the parties may
agree to mediate or arbitrate the dispute on such terms and conditions as may be
agreed in writing by the parties. The prevailing party shall be entitled to
recover from the losing party its attorneys' fees and costs incurred in any
action brought to resolve any such dispute.
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8. This Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior negotiations and
agreements, whether written or oral, with the exception of any agreements
described in paragraph 4 of this Agreement. This Agreement may not be modified
or amended except by a document signed by an authorized officer of the Company
and Employee. If any provision of this Agreement is deemed invalid, illegal or
unenforceable, such provision shall be modified so as to make it valid, legal
and enforceable, and the validity, legality and enforceability of the remaining
provisions of this Agreement shall not in any way be affected.
EMPLOYEE UNDERSTANDS THAT EMPLOYEE SHOULD CONSULT WITH AN ATTORNEY PRIOR TO
SIGNING THIS AGREEMENT AND THAT EMPLOYEE IS GIVING UP ANY LEGAL CLAIMS EMPLOYEE
HAS AGAINST THE PARTIES RELEASED ABOVE BY SIGNING THIS AGREEMENT. EMPLOYEE
FURTHER UNDERSTANDS THAT EMPLOYEE MAY HAVE UP TO 45 DAYS TO CONSIDER THIS
AGREEMENT, THAT EMPLOYEE MAY REVOKE IT AT ANY TIME DURING THE 7 DAYS AFTER
EMPLOYEE SIGNS IT, AND THAT IT SHALL NOT BECOME EFFECTIVE UNTIL THAT 7-DAY
PERIOD HAS PASSED. EMPLOYEE ACKNOWLEDGES THAT EMPLOYEE IS SIGNING THIS AGREEMENT
KNOWINGLY, WILLINGLY AND VOLUNTARILY IN EXCHANGE FOR THE COMPENSATION AND
BENEFITS DESCRIBED IN PARAGRAPH 1.
Dated:
---------------------------- ----------------------------------------
[Employee Name]
[Company]
Dated: By:
---------------------------- -------------------------------------
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EXHIBIT C
FORMS OF
GENERAL RELEASE OF CLAIMS
[Under Age 40]
GENERAL RELEASE OF CLAIMS
[UNDER AGE 40]
This Agreement is by and between [EMPLOYEE NAME] ("Employee") and [FINISAR
CORPORATION OR SUCCESSOR THAT AGREES TO ASSUME THE EXECUTIVE RETENTION AND
SEVERANCE PLAN FOLLOWING A CHANGE IN CONTROL] (the "Company"). This Agreement is
effective on the day it is signed by Employee (the "Effective Date").
RECITALS
A. Employee was employed by the Company as of ____________, ____.
B. Employee and the Company entered into an Agreement to Participate in the
Finisar Corporation Executive Retention and Severance Plan (such agreement and
plan being referred to herein as the "Plan") effective as of ___________, ____
wherein Employee is entitled to receive certain benefits in the event of a
Termination Upon a Change in Control (as defined by the Plan), provided Employee
signs a Release (as defined by the Plan).
C. A Change in Control (as defined by the Plan) has occurred as a result of
[BRIEFLY DESCRIBE CHANGE IN CONTROL]
D. Employee's employment is being terminated as a result of a Termination
Upon a Change in Control. Employee's last day of work and termination are
effective as of ______________, ____ (the "Termination Date"). Employee desires
to receive the payments and benefits provided by the Plan by executing this
Release.
NOW, THEREFORE, the parties agree as follows:
1. Commencing on the Effective Date, the Company shall provide Employee
with the applicable payments and benefits set forth in the Plan in accordance
with the terms of the Plan. Employee acknowledges that the payments and benefits
made pursuant to this paragraph are made in full satisfaction of the Company's
obligations under the Plan. Employee further acknowledges that Employee has been
paid all wages and accrued, unused vacation that Employee earned during his or
her employment with the Company.
2. Employee and Employee's successors release the Company, its respective
subsidiaries, stockholders, investors, directors, officers, employees, agents,
attorneys, insurers, legal successors and assigns of and from any and all
claims, actions and causes of action, whether now known or unknown, which
Employee now has, or at any other time had, or shall or may have against those
released parties based upon or arising out of any matter, cause, fact, thing,
act or omission whatsoever directly related to Employee's employment by the
Company or the termination of such employment and occurring or existing at any
time up to and including the Termination Date, including, but not limited to,
any claims of breach of written contract, wrongful termination, retaliation,
fraud, defamation, infliction of emotional distress, or national origin, race,
age, sex, sexual orientation, disability or other discrimination or harassment
under the Civil Rights Act of 1964, the Age Discrimination In Employment Act of
1967, the Americans with Disabilities Act, the Fair Employment and Housing Act
or any other applicable
law. Notwithstanding the foregoing, this release shall not apply to any right of
the Employee pursuant to Sections 5.4 of the Plan or pursuant to a Prior
Indemnity Agreement (as such terms are defined by the Plan).
3. Employee acknowledges that he or she has read Section 1542 of the Civil
Code of the State of California, which states in full:
A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor.
Employee waives any rights that Employee has or may have under Section 1542 and
comparable or similar provisions of the laws of other states in the United
States to the full extent that he or she may lawfully waive such rights
pertaining to this general release of claims, and affirms that Employee is
releasing all known and unknown claims that he or she has or may have against
the parties listed above.
4. Employee and the Company acknowledge and agree that they shall continue
to be bound by and comply with the terms and his obligations under the following
agreements: (i) any proprietary rights or confidentiality agreements between the
Company and Employee, (ii) the Plan, (iii) any Prior Indemnity Agreement (as
such term is defined by the Plan) to which Employee is a party, and (iv) any
stock option, stock grant or stock purchase agreements between the Company and
Employee.
5. This Agreement shall be binding upon, and shall inure to the benefit of,
the parties and their respective successors, assigns, heirs and personal
representatives.
6. The parties agree that any and all disputes that both (i) arise out of
the Plan, the interpretation, validity or enforceability of the Plan or the
alleged breach thereof and (ii) relate to the enforceability of this Agreement
or the interpretation of the terms of this Agreement shall be subject to the
provisions of Section 12 and Section 13 of the Plan.
7. The parties agree that any and all disputes that (i) do not arise out of
the Plan, the interpretation, validity or enforceability of the Plan or the
alleged breach thereof and (ii) relate to the enforceability of this Agreement,
the interpretation of the terms of this Agreement or any of the matters herein
released or herein described shall be resolved by means of a court trial
conducted by the superior or district court in Santa Clara County, California.
The parties hereby irrevocably waive their respective rights to have any such
disputes tried to a jury, and the parties hereby agree that such courts will
have personal and subject matter jurisdiction over all such disputes.
Notwithstanding the foregoing, in the event of any such dispute, the parties may
agree to mediate or arbitrate the dispute on such terms and conditions as may be
agreed in writing by the parties. The prevailing party shall be entitled to
recover from the losing party its attorneys' fees and costs incurred in any
action brought to resolve any such dispute.
8. This Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior negotiations and
agreements, whether
-2-
written or oral, with the exception of any agreements described in paragraph 4
of this Agreement. This Agreement may not be modified or amended except by a
document signed by an authorized officer of the Company and Employee. If any
provision of this Agreement is deemed invalid, illegal or unenforceable, such
provision shall be modified so as to make it valid, legal and enforceable, and
the validity, legality and enforceability of the remaining provisions of this
Agreement shall not in any way be affected.
EMPLOYEE UNDERSTANDS THAT EMPLOYEE SHOULD CONSULT WITH AN ATTORNEY PRIOR TO
SIGNING THIS AGREEMENT AND THAT EMPLOYEE IS GIVING UP ANY LEGAL CLAIMS EMPLOYEE
HAS AGAINST THE PARTIES RELEASED ABOVE BY SIGNING THIS AGREEMENT. EMPLOYEE
ACKNOWLEDGES THAT EMPLOEE IS SIGNING THIS AGREEMENT KNOWINGLY, WILLINGLY AND
VOLUNTARILY IN EXCHANGE FOR THE COMPENSATION AND BENEFITS DESCRIBED IN
PARAGRAPH 1.
Dated:
---------------------------- ----------------------------------------
[Employee Name]
[Company]
Dated: By:
---------------------------- -------------------------------------
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