EXHIBIT 10.48
EXECUTIVE OFFICER
RETENTION AGREEMENT
This Executive Officer Retention Agreement (the "Agreement") is made
and entered into as of November 3, 1998 (the "Effective Date"), by and between
Applied Digital Access, Inc., a Delaware corporation (the "Company") and
___________________________ ("Executive").
RECITALS
The Company recognizes that the possibility of a Change of Control may
change the nature and structure of the Company and that uncertainty regarding
the consequences of such events may adversely affect the Company's ability to
retain its executives and other key employees. The Company also recognizes that
Executive possesses an intimate and essential knowledge of the Company upon
which the Company may need to draw for objective advice and continued services
in connection with any Change of Control that is potentially advantageous to the
Company's stockholders. The Company believes that the existence of this
Agreement will serve as an incentive to Executive to remain in the employ of the
Company and will enhance its ability to call on and rely upon Executive in
connection with a Change of Control.
The Company and Executive desire to enter into this Agreement in order
to provide additional compensation and benefits to Executive upon a Covered
Termination and to encourage Executive to continue to devote full attention and
dedication to the Company and to continue employment with the Company.
1. DEFINITIONS. As used in this Agreement, unless the context
requires a different meaning, the following terms shall have the meanings set
forth herein:
(a) "BASE SALARY" means the Executive's then current annual
base salary.
(b) "BOARD" means the Board of Directors of the Company or
any successor corporation thereto.
(c) "CAUSE" means:
(i) a proven willful act or failure to act including
theft, a material act of dishonesty, fraud, or the intentional falsification of
any employment or Company records which substantially impairs Executive's
ability to perform his duties under this Agreement;
(ii) willful improper disclosure of the Company's
confidential, business or proprietary information by Executive;
(iii) willful failure to substantially perform, or gross
neglect of, Executive's duties, including the refusal to perform any reasonable
act requested by the Board; provided such condition(s) remain(s) in effect
twenty (20) days after written notice is delivered by the Board to Executive of
such condition(s);
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(iv) any willful and intentional failure by Executive
to take or prevent any action which, in the reasonable determination of the
Board, hinders the possibility of, or process surrounding, any possible Change
in Control, or
(v) the Executive's conviction (including any plea of
guilty or nolo contendere) for a felony causing material harm to the reputation
and standing of the Company.
No act or failure shall be considered willful unless committed without good
faith and without a reasonable belief that the act or omission was in the best
interests of the Company.
Notwithstanding the foregoing, Executive shall not have been deemed to been
terminated for Cause without an opportunity for Executive, together with counsel
(if any) to be heard before the Board.
(d) "CHANGE OF CONTROL" means:
(i) 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 fifty
percent (50%) or more of (A) the outstanding shares of common stock of the
Company or (B) the combined voting power of the Company's then-outstanding
securities;
(ii) the Company is party to a merger or consolidation
which results in the holders of voting securities of the Company outstanding
immediately prior thereto failing to continue to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) at least fifty percent (50%) of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately after
such merger or consolidation;
(iii) there occurs a change in the Board within a
two-year period, as a result of which fewer than a majority of the Directors are
Incumbent Directors. For purposes of this Agreement, an Incumbent Director is
any director who is either:
(A) a director of the Company as of the
Effective Date; or
(B) a director who 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 shall not
include an individual whose election or nomination is in connection with an
actual or threatened proxy contest relating to the election of directors to the
Company);
(iv) the sale or disposition of all or substantially
all of the Company's assets (or any transaction having similar effect is
consummated); or
(v) the dissolution or liquidation of the Company.
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Notwithstanding any other provision herein to the contrary, for purposes of this
Agreement no Change of Control shall be deemed to have occurred as a result of
any ownership change which may occur as a result of an underwritten public
offering or private placement of the Company's stock.
(e) "COVERED TERMINATION" means:
(i) any termination of Executive's employment by the
Company without Cause within twelve (12) months after the date of a Change of
Control; or
(ii) any resignation by Executive for Good Reason
within twelve (12) months after the date of a Change of Control.
"Covered Termination" shall not include any termination of
Executive's employment (a) by the Company for Cause; (b) by the Company as a
result of the Permanent Disability of Executive; (c) as a result of the death of
Executive; or (d) as a result of Executive's voluntary termination of employment
for any reason other than Good Reason.
(f) "GOOD REASON" means the occurrence of any of the
following conditions, without Executive's written consent, which condition(s)
remain(s) in effect twenty (20) days after written notice is delivered by
Executive to the Board of such condition(s):
(i) a demotion which results in Executive no longer
holding a substantially similar position as an executive officer of the Company
with substantially similar pay. Any such determination under this subsection
shall be made by the Company; provided, however, that any decrease greater than
five percent (5%) in Executive's Base Salary following a Change of Control shall
not be deemed substantially similar pay;
(ii) the relocation of Executive's work place to a
location more than fifty (50) miles from the location of Executive's work place
prior to the Change of Control; or
(iii) any material breach of this Agreement by the
Company.
(g) "PERMANENT DISABILITY" means that:
(i) Executive has been incapacitated by bodily injury
or disease so as to be prevented thereby from engaging in the performance of
duties on behalf of the Company;
(ii) such total incapacity has continued for a period
of six (6) consecutive months; and
(iii) such incapacity will, in the opinion of a
qualified physician selected by the Company, be permanent and continuous during
the remainder of Executive's life.
2. POSITION AND DUTIES. Executive shall continue to be an at-will
employee of the Company employed in his current position at his current salary
rate. Executive shall also be entitled to continue to participate in and to
receive benefits on the same basis as other similarity-situated employees under
any and all of the Company's employee benefit plans as in effect from time to
time. In addition, Executive shall be entitled to the benefits afforded to other
similarly-
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situated employees under the Company's vacation, holiday and business
expense reimbursement policies. Executive agrees to devote Executive's full
business time, energy and skill to the duties of the Company. These duties shall
include, but not be limited to, any duties consistent with Executive's position
which may be assigned to Executive from time to time.
3. NO BENEFITS PAYABLE UNLESS A COVERED TERMINATION. This Agreement
is intended to address the benefits payable to Executive upon a Covered
Termination. As such, upon any termination of Executive which is not a Covered
Termination, Executive shall be entitled to only that compensation and those
benefits from the Company which have been earned under Section 2 above through
the date of such termination. PROVIDED, HOWEVER, that, pursuant to the terms of
one or more other written agreements, Executive may be entitled to benefits upon
a termination which is not a Covered Termination.
4. COVERED TERMINATION.
(a) SEVERANCE BENEFITS. In the event of a Covered
Termination, Executive shall be entitled to the following separation benefits:
(i) all accrued salary and accrued but unused vacation
earned through the date of Executive's termination;
(ii) twelve (12) months of Base Salary, paid in
accordance with the Company's then-existing payroll practices; provided,
however, that during such twelve (12) month-period (the "Consulting Period")
Executive shall be deemed to be a consultant of the Company, including for tax
purposes. Accordingly, Executive shall be liable for all income and employment
taxes;
(iii) continued vesting of Executive's then outstanding
stock options during the Consulting Period;
(iv) reimbursement for all expenses reasonably and
necessarily incurred by the Executive in connection with the business of the
Company prior to Executive's termination of employment; provided Executive
remits to the Company, within fourteen (14) days following the Covered
Termination, a proper and complete expense report;
(v) provided Executive elects continued medical
insurance coverage in accordance with the applicable provisions of federal law
(commonly referred to as "COBRA"), the payment by Company of Executive's COBRA
premiums for the duration of such Consulting Period; provided, further, if
Executive's medical coverage immediately prior to the date of the Covered
Termination included Executive's dependents, the Company-paid COBRA premiums
shall include such dependents. Notwithstanding the above, in the event Executive
becomes covered under another employer's group health plan (other than a plan
which imposes a preexisting condition exclusion, unless the preexisting
condition exclusion does not apply) during the Consulting Period, the Company
shall cease payment of the COBRA premiums; and
(vi) all benefits, if any, under the Company's 401(k)
Plan and other Company benefit plans to which Executive may be entitled pursuant
to the terms of such plan(s).
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5. CONFLICT OF INTEREST. During the Consulting Period, Executive
agrees not to compete with the Company, either directly or indirectly, without
the prior written consent of the Company, which shall not be unreasonably
withheld. Executive also agrees that during the Consulting Period, Executive
will not, directly or indirectly, solicit the services of or in any other manner
persuade employees or customers of the Company to discontinue that person's or
entity's relationship with or to the Company as an employee or customer, as the
case may be.
6. PAYMENT OF TAXES. All payments made to Executive under this
Agreement shall be subject to all applicable federal, state and local income,
employment and payroll taxes.
7. PARACHUTE PAYMENT. If the benefits provided under this Agreement
result in Executive being subject to any excise tax due to characterization of
any amounts payable hereunder as "excess parachute payments" (pursuant to
Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code")),
the Company agrees to offer the Executive the option of (i) receiving the full
parachute payment subject to the excise tax, or (ii) receiving a reduced
parachute payment that would not subject Executive to the excise tax (which in
some circumstances may maximize the net benefit to Executive). Unless the
Company and Executive otherwise agree in writing, any calculation required under
this Section shall be made in writing by independent public accountants agreed
to by the Company and Executive (the "Accountants"), whose calculation shall be
conclusive and binding upon Executive and the Company for all purposes. For
purposes of this Section, the Accountants may rely on reasonable, good faith
interpretations concerning the application of Sections 280G and 4999 of the
Code. The Company and Executive shall furnish to the Accountants such
information and documents as the Accountants may reasonably request in order to
make a determination. The Company shall bear all costs the Accountants may
reasonably incur in connection with any calculations contemplated by this
Section.
8. EXCLUSIVE REMEDY. The payments and benefits provided for in
Section 4 shall constitute the Executive's sole and exclusive remedy for any
alleged injury or other damages arising out of the cessation of Executive's
employment relationship with the Company in connection with a Covered
Termination. To the extent Executive is entitled to severance or other benefits
upon termination of employment under this Agreement and any other agreement, the
benefits payable under this Agreement shall be reduced by the amounts paid to
Executive under any other such agreement. However, this Agreement is not
intended to and shall not affect, limit or terminate (i) any plans, programs, or
arrangements of the Company that are regularly made available to a significant
number of employees of the Company, (ii) any agreement or arrangement with
Executive that has been reduced to writing and which does not relate to the
subject matter hereof, or (iii) any agreements or arrangements hereafter entered
into by the parties in writing, except as otherwise expressly provided herein.
9. PROPRIETARY AND CONFIDENTIAL INFORMATION. The Executive agrees to
continue to abide by the terms and conditions of any confidentiality and/or
proprietary rights agreement previously entered into by the Executive and the
Company.
10. ARBITRATION. Any claim, dispute or controversy arising out of
this Agreement, the interpretation, validity or enforceability of this Agreement
or the alleged breach thereof shall be submitted by the parties to binding
arbitration by the American Arbitration Association in San Diego County,
California or elsewhere by mutual agreement. The selection of the arbitrator and
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the arbitration procedure shall be governed by the Commercial Arbitration Rules
of the American Arbitration Association. All costs and expenses of arbitration
(or litigation to enforce such arbitration), including but not limited to
attorneys fees and other costs reasonably incurred by Executive, shall be paid
by party which does not prevail. Judgment may be entered on the award of the
arbitration in any court having jurisdiction.
11. INTERPRETATION. The Company and Executive agree that this
Agreement shall be interpreted in accordance with and governed by the laws of
the State of California, without regard to such state's conflict of laws rules.
12. RELEASE OF CLAIMS. No severance benefits shall be paid to
Executive under this Agreement unless and until Executive shall, in
consideration of the payment of such severance benefit, execute a release of
claims in a form attached hereto; provided, however, that such release shall not
apply to any right of Executive may have to be indemnified by the Company.
13. SUCCESSORS AND ASSIGNS.
(a) SUCCESSORS OF THE COMPANY. The Company will require any
successor or assign (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or
assets of the Company, expressly, absolutely and unconditionally to assume and
agree to perform this Agreement 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. Failure of the Company to obtain such agreement prior to the
effectiveness of any such succession transaction shall be a breach of this
Agreement which entitles Executive to terminate employment with the Company for
Good Reason and receive the benefits provided under Section 4 of this Agreement.
As used in this Agreement, "Company" shall mean the Company and any successor or
assign to the Company's business and/or assets as aforesaid which executes and
delivers the agreement provided for in this Section 13 or which otherwise
becomes bound by all the terms and provisions of this Agreement by operation of
law.
(b) HEIRS OF EXECUTIVE. This Agreement shall inure to the
benefit of and be enforceable by the Executive's personal and legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees.
14. NOTICES. For purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, as follows:
if to the Company: Applied Digital Access, Inc.
9855 Scranton Road
San Diego, CA 92121
Attn: Compensation Committee of the Board
and if to the Executive at the address specified below Executive's signature.
Notice may also be given at such other address as either party may furnish to
the other in writing in accordance herewith, except that notices of change of
address shall be effective only upon receipt.
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15. VALIDITY. If any one or more of the provisions (or any part
thereof) of this Agreement shall be held invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining
provisions (or any part thereof) shall not in any way be affected or impaired
thereby.
16. MODIFICATION. This Agreement may only be modified or amended by a
written agreement signed by Executive and the Company.
17. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
APPLIED DIGITAL ACCESS, INC.
By:
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Title:
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EXECUTIVE:
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Address for Notice:
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EXHIBIT A: RELEASE OF CLAIMS
In consideration for the benefits to be received under that Retention
Agreement to which this Release is attached as EXHIBIT A, Executive and his
successors release the Company and all affiliated companies, and their
shareholders, investors, directors, officers, employees, agents, attorneys,
legal successors and assigns of and from any and all claims, actions and causes
of action, whether now known or unknown, which Executive now has, or at any
other time had, or shall or may have against the released parties based upon or
arising out of any matter, cause, fact, thing, act or omission whatsoever
occurring or existing at any time up to and including the date on which this
Release becomes effective, including, but not limited to, any claims of breach
of contract, wrongful termination, 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, Executive does not release any claim for
any additional benefits pursuant to the Agreement which Executive is entitled to
receive following the date on which this Release is executed. In addition,
Executive shall continue to be entitled to all of the rights and benefits set
forth in any indemnification agreement between Executive and the Company.
Further, notwithstanding anything in this Release, Executive shall continue to
be indemnified to the full extent permitted by law for any event or occurrence
related to Executive's status as an employee, director, officer, agent or
fiduciary of the Company or any affiliate thereof or by reason of any action or
inaction on the part of Executive while serving in such capacity.
Executive acknowledges that he 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.
Executive waives any rights that he has or may have under Section 1542
to the full extent that he may lawfully waive such rights pertaining to this
release of claims, and affirms that he is releasing all known and unknown claims
that he has or may have against the parties listed above.
Executive understands that Executive should consult with an attorney
prior to signing this Release and that Executive is giving up any legal claims
Executive has against the parties released above by signing this Release.
Executive acknowledges that Executive is signing this Release knowingly,
willingly and voluntarily in exchange for the benefits described herein.
Executive further understands that, IF AND ONLY IF EXECUTIVE IS AGE 40 OR OLDER,
Executive has up to 21 days to consider this Release, that Executive may revoke
it at any time during the 7 days after the date it is signed, and that it shall
not become effective until that 7-day period has passed.
Signature: Date:
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