EXHIBIT 10.12
EXECUTIVE
SEVERANCE BENEFITS AGREEMENT
THIS EXECUTIVE SEVERANCE BENEFITS AGREEMENT (the "AGREEMENT") is
entered into as of the 12TH day of April, 2004 (the "Effective Date"), between
DAN GREY ("EXECUTIVE") and SBE, INC. (the "COMPANY"). This Agreement is intended
to provide Executive with the compensation and benefits described herein upon
the occurrence of specific events. Certain capitalized terms used in this
Agreement are defined in Article 5.
The Company and Executive hereby agree as follows:
ARTICLE 1
SCOPE OF AND CONSIDERATION FOR THIS AGREEMENT
1.1 Executive is currently employed by the Company.
1.2 The Company and Executive wish to set forth the compensation and
benefits that Executive shall be entitled to receive in the event of a
termination of Executive's employment with the Company in the circumstances
described in this Agreement.
1.3 The duties and obligations of the Company to Executive under this
Agreement shall be in consideration for Executive's past services to the
Company, Executive's continued employment with the Company, and, with respect to
the benefits described in Article 2, Executive's execution of a release in
accordance with Section 3.1.
1.4 This Agreement shall supersede any other agreement relating to cash
compensation benefits in the event of Executive's severance from employment with
the Company.
ARTICLE 2
SEVERANCE BENEFITS
2.1 CHANGE IN CONTROL TERMINATION. If Executive's employment terminates
due to a Change in Control Termination, as defined in Section 5.4, Executive
will be entitled to receive the benefits set forth in subsections 2.2(a) through
2.2(c).
2.2 (a) SALARY CONTINUATION. Executive shall continue to receive an
amount equal to six (6) months of Base Salary, as defined in Section 5.1. Such
amount shall be paid in equal monthly installments over the six (6) months
following Executive's Change in Control Termination and shall be subject to all
required tax withholding.
(b) BONUS PAYMENT. Within fifteen (15) days following the last
day of the fiscal quarter during which Executive's Change in Control Termination
occurs. Executive shall receive the pro-rata share of any bonus to which
Executive would have been entitled had Executive's employment with the Company
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continued. The bonus amount paid will be the product of the bonus percentage of
Base Salary derived per the Executive's bonus plan multiplied by Executive's
Base Salary from the beginning of the Fiscal Year through the date of
Executive's Involuntary Termination Without Cause. Such payment shall be subject
to all required tax withholding.
(c) ACCELERATION OF OPTION VESTING. Effective as of the date
of Executive's Change in Control Termination, Executive shall be credited with
full vesting under all options to purchase the Company's Common Stock that
Executive holds on such date. By entering into this Agreement, Executive
acknowledges that Executive understands that such acceleration may result in
some of Executive's incentive stock options being reclassified as nonqualified
stock options, which could result in adverse tax consequences to Executive.
2.3 NON-DUPLICATION OF BENEFITS. Notwithstanding any of the foregoing
to the contrary, to the extent that Executive is eligible to receive severance
benefits under Section 2.2 above due to Executive's Change in Control
Termination, Executive shall not be entitled to receive severance benefits under
Section 2.1 above. Executive shall not be eligible to receive severance benefits
pursuant to this Agreement more than one time.
2.4 MITIGATION. Except as otherwise specifically provided herein,
Executive shall not be required to mitigate damages or the amount of any payment
provided under this Agreement by seeking other employment or otherwise, nor
shall the amount of any payment provided for under this Agreement be reduced by
any compensation earned by Executive as a result of employment by another
employer or by any retirement benefits received by Executive after the date of
Executive's Change in Control Termination.
ARTICLE 3
LIMITATIONS AND CONDITIONS ON BENEFITS
3.1 RELEASE PRIOR TO PAYMENT OF BENEFITS. Upon the occurrence of
Executive's Change in Control Termination that occurs at any time other than
during the six (6) months following the effective date of a Change in Control,
and prior to the payment of any benefits under this Agreement on account of such
termination, Executive shall execute a release (the "Release") in the form (or
in a substantially similar form to that) attached hereto and incorporated herein
as Exhibit A, Exhibit B or Exhibit C, as applicable. Such Release shall
specifically relate to all of Executive's rights and claims in existence at the
time of such execution and shall confirm Executive's obligations under the
Company's standard form of proprietary information and inventions agreement. It
is understood that, as specified in the applicable Release, Executive has a
certain number of calendar days to consider whether to execute such Release, and
Executive may revoke such Release within seven (7) calendar days after he signs
it. If Executive does not execute such Release within the applicable period, or
if Executive revokes such Release within the subsequent seven (7) day period, no
benefits shall be payable under this Agreement, and this Agreement shall be null
and void.
3.2 PARACHUTE PAYMENTS. If any payment or benefit Executive would
receive pursuant to a Change in Control from the Company or otherwise
("Payment") would (i) constitute a "parachute payment" within the meaning of
Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and
(ii) but for this sentence, be subject to the excise tax imposed by Section 4999
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of the Code (the "Excise Tax"), then such Payment shall be reduced to the
Reduced Amount. The "Reduced Amount" shall be either (x) the largest portion of
the Payment that would result in no portion of the Payment being subject to the
Excise Tax or (y) the largest portion, up to and including the total, of the
Payment, whichever amount, after taking into account all applicable federal,
state and local employment taxes, income taxes, and the Excise Tax (all computed
at the highest applicable marginal rate), results in Executive's receipt, on an
after-tax basis, of the greater amount of the Payment notwithstanding that all
or some portion of the Payment may be subject to the Excise Tax. If a reduction
in payments or benefits constituting "parachute payments" is necessary so that
the Payment equals the Reduced Amount, reduction shall occur in the following
order unless Executive elects in writing a different order (provided, however,
that such election shall be subject to Company approval if made on or after the
date on which the event that triggers the Payment occurs): reduction of cash
payments; cancellation of accelerated vesting of stock awards; reduction of
employee benefits. In the event that acceleration of vesting of stock award
compensation is to be reduced, such acceleration of vesting shall be cancelled
in the reverse order of the date of grant of Executive's stock awards unless
Executive elects in writing a different order for cancellation.
The accounting firm engaged by the Company for general audit purposes
as of the day prior to the effective date of the Change in Control shall perform
the foregoing calculations. If the accounting firm so engaged by the Company is
serving as accountant or auditor for the individual, entity or group effecting
the Change in Control, the Company shall appoint a nationally recognized
accounting firm to make the determinations required hereunder. The Company shall
bear all expenses with respect to the determinations by such accounting firm
required to be made hereunder.
The accounting firm engaged to make the determinations hereunder shall
provide its calculations, together with detailed supporting documentation, to
the Company and Executive within fifteen (15) calendar days after the date on
which Executive's right to a Payment is triggered (if requested at that time by
the Company or Executive) or such other time as requested by the Company or
Executive. If the accounting firm determines that no Excise Tax is payable with
respect to a Payment, either before or after the application of the Reduced
Amount, it shall furnish the Company and Executive with an opinion reasonably
acceptable to Executive that no Excise Tax will be imposed with respect to such
Payment. Any good faith determinations of the accounting firm made hereunder
shall be final, binding and conclusive upon the Company and Executive.
3.3 CERTAIN REDUCTIONS AND OFFSETS. Notwithstanding any other provision
of this Agreement to the contrary, any benefits payable to Executive under this
Agreement shall be reduced by any severance benefits payable by the Company to
such individual under any other policy, plan, program or arrangement, including,
without limitation, a contract between Executive and any entity. Furthermore, to
the extent that any federal, state or local laws, including, without limitation,
so-called "plant closing" laws, require the Company to give advance notice, make
a payment of any kind or provide any benefits to Executive because of
Executive's involuntary termination due to a layoff, reduction in force, plant
or facility closing, sale of business, change in control, or any other similar
event or reason, the payments and other benefits payable under this Agreement
shall be reduced by the full amount and extent of such notice, payment and/or
benefits. The benefits provided under this Agreement are intended to satisfy any
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and all statutory obligations that may arise out of Executive's involuntary
termination of employment for the foregoing reasons, and the parties shall so
construe and enforce the terms of the Agreement.
ARTICLE 4
OTHER RIGHTS AND BENEFITS
Nothing in the Agreement shall prevent or limit Executive's continuing or future
participation in any benefit, bonus, incentive or other plans, programs,
policies or practices provided by the Company and for which Executive may
otherwise qualify, nor shall anything herein limit or otherwise affect such
rights as Executive may have under other agreements with the Company except as
provided in Section 1.4 above. Except as otherwise expressly provided herein,
amounts which are vested benefits or which Executive is otherwise entitled to
receive under any plan, policy, practice or program of the Company at or
subsequent to the effective date of a Change in Control shall be payable in
accordance with such plan, policy, practice or program.
ARTICLE 5
DEFINITIONS
For purposes of the Agreement, the following terms are defined as
follows:
5.1 "BASE SALARY" means Executive's annual base salary as in effect on
the date of his termination.
5.2 "BOARD" means the Board of Directors of the Company.
5.3 "CHANGE IN CONTROL" means:
(a) the sale of all or substantially all of the Company's
assets to a single purchaser or a group of related purchasers;
(b) the sale, exchange or other disposition, in a single
transaction, of more than fifty percent (50%) of the Company's outstanding
capital stock; or
(c) a merger or consolidation of the Company in a transaction
following which the Company's stockholders receive less than fifty percent (50%)
of the outstanding voting shares of the surviving entity.
5.4 "CHANGE IN CONTROL TERMINATION" means an Involuntary Termination
Without Cause or a Voluntary Termination for Good Reason, effective as of
Executive's termination date, either of which occurs within six (6) months
following the effective date of a Change in Control.
5.5 "COMPANY" means SBE, Inc. or, following a Change in Control, the
surviving entity resulting from such transaction.
5.6 "INVOLUNTARY TERMINATION WITHOUT CAUSE" means Executive's dismissal
or discharge for reasons other than Cause, effective as of Executive's
termination date. For this purpose, "Cause" means that, in the reasonable
determination of the Company, Executive has
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(a) been convicted of or pled guilty or nolo contendere to a
felony or any crime involving moral turpitude or dishonesty;
(b) participated in a fraud or act of dishonesty against the
Company,
(c) willfully and materially breached a Company policy;
(d) intentionally damaged the Company's property;
(e) willfully and materially breached Executive's Proprietary
Information and Inventions Agreement with the Company;
(f) engaged in conduct that demonstrates gross unfitness to
serve; or
(g) failed to perform Executive's job duties in a satisfactory
manner, including, but not limited to, by engaging in willful misconduct,
neglecting Executive's job duties, refusing to comply with any lawful directive
of the Company, or failing to meet expected performance standards.
Notwithstanding the foregoing, Cause shall not exist based on conduct described
in clause (c), (f) or (g) unless the conduct described in such clause, if
capable of cure, has not been cured within thirty (30) days following
Executive's receipt of written notice from the Company or the Board, as the case
may be, specifying the particulars of the conduct constituting Cause.
5.7 "VOLUNTARY TERMINATION FOR GOOD REASON" means that Executive
voluntarily terminates employment with the Company after any of the following is
undertaken by the Company without Executive's written consent:
(a) the assignment to Executive of any duties or
responsibilities that results in a significant diminution in Executive's job
duties and responsibilities, taken as a whole, as in effect immediately prior to
the effective date of the Change in Control;
(b) a reduction in Executive's title or reporting
relationships as in effect immediately prior to the effective date of the Change
in Control;
(c) a reduction by the Company in Executive's Base Salary by
five percent (5%) or more; provided, however, that a reduction by the Company of
Executive's Base Salary by up to ten percent (10%) shall not constitute Good
Reason for purposes of this Agreement if it is made in connection with an
across-the-board reduction by the Company of all executives' annual base
salaries by a percentage at least equal to the percentage by which Executive's
Base Salary is reduced;
(d) a relocation of Executive's business office to a location
that requires Executive to commute more than seventy-five (75) miles each way,
except for required travel by Executive on the Company's business to an extent
substantially consistent with Executive's business travel obligations prior to
the effective date of a Change in Control; provided, however, that no relocation
of Executive's business office shall constitute Good Reason for purposes of this
Agreement if Executive provides services to the Company from a remote location
(e.g., through telecommuting) at the time of the relocation;
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(e) a material breach by the Company of any provision of this
Agreement; or
(f) any failure by the Company to obtain the assumption of
this Agreement by any successor or assign of the Company.
Notwithstanding the foregoing, Good Reason shall not exist based on conduct
described in clauses (a), (b), (c), (d), (e) or (f) above unless the conduct
described in such clause, if capable of cure, has not been cured within thirty
(30) days following receipt by the Company or the Board, as the case may be, of
written notice from Executive specifying the particulars of the conduct
constituting Good Reason.
ARTICLE 6
GENERAL PROVISIONS
6.1 EMPLOYMENT STATUS. This Agreement does not constitute a contract of
employment or impose upon Executive any obligation to remain as an employee, or
impose on the Company any obligation (i) to retain Executive as an employee,
(ii) to change the status of Executive as an at-will employee, which at-will
status Executive hereby acknowledges, or (iii) to change the Company's policies
regarding termination of employment.
6.2 NOTICES. Any notices provided hereunder must be in writing, and
such notices or any other written communication shall be deemed effective upon
the earlier of personal delivery (including personal delivery by facsimile) or
the third day after mailing by first class mail, to the Company at its primary
office location and to Executive at Executive's address as listed in the
Company's payroll records. Any payments made by the Company to Executive under
the terms of this Agreement shall be delivered to Executive either in person or
at the address as listed in the Company's payroll records.
6.3 SEVERABILITY. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provisions had never been contained herein.
6.4 WAIVER. If either party should waive any breach of any provisions
of this Agreement, he or it shall not thereby be deemed to have waived any
preceding or succeeding breach of the same or any other provision of this
Agreement.
6.5 ARBITRATION. Unless otherwise prohibited by law or specified below,
all disputes, claims and causes of action, in law or equity, arising from or
relating to this Agreement or its enforcement, performance, breach, or
interpretation shall be resolved solely and exclusively by final and binding
arbitration, by a single arbitrator, held in San Francisco County, California
through Judicial Arbitration & Mediation Services/Endispute ("JAMS") under the
then existing JAMS arbitration rules and as otherwise required by law. However,
nothing in this section is intended to prevent either party from obtaining
injunctive relief in court to prevent irreparable harm pending the conclusion of
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any such arbitration. Each party in any such arbitration shall be responsible
for its own attorneys' fees, costs and necessary disbursements; provided,
however, that in the event one party refuses to arbitrate and the other party
seeks to compel arbitration by court order, if such other party prevails, it
shall be entitled to recover reasonable attorneys' fees, costs and necessary
disbursements. Pursuant to California Civil Code Section 1717, each party
warrants that it was represented by counsel in the negotiation and execution of
this Agreement, including the attorneys' fees provision herein.
6.6 COMPLETE AGREEMENT. This Agreement, including Exhibit A, Exhibit B
and Exhibit C, constitutes the entire agreement between Executive and the
Company and is the complete, final, and exclusive embodiment of their agreement
with regard to this subject matter, wholly superseding all written and oral
agreements with respect to payments and benefits to Executive in the event of
employment termination. It is entered into without reliance on any promise or
representation other than those expressly contained herein.
6.7 AMENDMENT OR TERMINATION OF AGREEMENT. This Agreement may be
changed or terminated only upon the mutual written consent of the Company and
Executive. The written consent of the Company to a change or termination of this
Agreement must be signed by an executive officer of the Company after such
change or termination has been approved by the Board.
6.8 COUNTERPARTS. This Agreement may be executed in separate
counterparts, any one of which need not contain signatures of more than one
party, but all of which taken together will constitute one and the same
Agreement.
6.9 HEADINGS. The headings of the Articles and Sections hereof are
inserted for convenience only and shall not be deemed to constitute a part
hereof nor to affect the meaning thereof.
6.10 SUCCESSORS AND ASSIGNS. This Agreement is intended to bind and
inure to the benefit of and be enforceable by Executive, and the Company, and
any surviving entity resulting from a Change in Control and upon any other
person who is a successor by merger, acquisition, consolidation or otherwise to
the business formerly carried on by the Company, and their respective
successors, assigns, heirs, executors and administrators, without regard to
whether or not such person actively assumes any rights or duties hereunder;
provided, however, that Executive may not assign any duties hereunder and may
not assign any rights hereunder without the written consent of the Company,
which consent shall not be withheld unreasonably.
6.11 CHOICE OF LAW. All questions concerning the construction, validity
and interpretation of this Agreement will be governed by the law of the State of
California, without regard to such state's conflict of laws rules.
6.12 NON-PUBLICATION. The parties mutually agree not to disclose the
terms of this Agreement except to the extent that disclosure is mandated by
applicable law or corporate reporting requirements, or to respective advisors
(e.g., attorneys, accountants).
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6.13 CONSTRUCTION OF AGREEMENT. In the event of a conflict between the
text of the Agreement and any summary, description or other information
regarding the Agreement, the text of the Agreement shall control.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
Effective Date written above.
SBE, INC. DAN GREY
By: /s/ William B. Heye, Jr. /s/ Dan Grey
----------------------------- -------------------------
Name: William B. Heye, Jr.
---------------------------
Title: President & CEO
--------------------------
Exhibit A: Release (Termination of Executive under Age 40)
Exhibit B: Release (Individual Termination of Executive Age 40 or Older)
Exhibit C: Release (Group Termination of Executive Age 40 or Older)
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EXHIBIT A
RELEASE
(TERMINATION OF EXECUTIVE UNDER AGE 40)
I understand that my position with SBE, Inc. (the "COMPANY") terminated
effective ___________, 200_. The Company has agreed that if I choose to sign
this Release, the Company will provide me with the severance benefits described
in that certain Executive Severance Benefits Agreement (the "AGREEMENT") between
me and the Company dated _____, 2004. The severance benefits will be provided to
me within five (5) business days of the date I return this signed Release to the
Company. I understand that I am not entitled to any severance benefits unless I
sign this Release. In addition to the severance benefits, the Company will pay
me all of my accrued salary and vacation, to which I am entitled by law.
In consideration for the severance benefits I am receiving under the Agreement,
I acknowledge my obligations under my Proprietary Information and Inventions
Agreement not to use or disclose any of the Company's proprietary information,
and I agree to immediately return all Company property and documents (including
all embodiments of proprietary information) and all copies thereof in my
possession or control. I hereby release the Company and its officers, directors,
agents, attorneys, employees, shareholders, and affiliates from any and all
claims, liabilities, demands, causes of action, attorneys' fees, damages, or
obligations of every kind and nature, whether they are known or unknown, arising
at any time prior to and including the date I sign this Release. This general
release includes, but is not limited to: all federal and state statutory and
common law claims, claims related to my employment or the termination of my
employment or related to breach of contract, tort, wrongful termination,
discrimination, wages or benefits, or claims for any form of compensation. In
releasing claims unknown to me at present, I am waiving all rights and benefits
under Section 1542 of the California Civil Code, and any law or legal principle
of similar effect in any jurisdiction: "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."
This Release, together with the Agreement and my Proprietary Information and
Inventions Agreement, constitutes the complete, final and exclusive embodiment
of the entire agreement between the Company and me with regard to the subject
matter hereof. I am not relying on any promise or representation by the Company
that is not expressly stated herein. This agreement may only be modified by a
writing signed by both me and a duly authorized officer of the Company.
I accept and agree to the terms and conditions stated above:
- -------------------------- --------------------------
Date Dan Grey
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EXHIBIT B
RELEASE
(INDIVIDUAL TERMINATION OF EXECUTIVE AGE 40 OR OLDER)
I understand that my position with SBE, Inc. (the "COMPANY") terminated
effective ___________, 200_. The Company has agreed that if I choose to sign
this Release, the Company will provide me with the severance benefits described
in that certain Executive Severance Benefits Agreement (the "AGREEMENT") between
me and the Company dated _____, 2004. The severance benefits will be provided to
me within five (5) business days of the Effective Date of this Release. I
understand that I am not entitled to any severance benefits unless I sign this
Release. In addition to the severance benefits, the Company will pay me all of
my accrued salary and vacation, to which I am entitled by law.
In consideration for the severance benefits I am receiving under the Agreement,
I acknowledge my obligations under my Proprietary Information and Inventions
Agreement not to use or disclose any of the Company's proprietary information,
and I agree to immediately return all Company property and documents (including
all embodiments of proprietary information) and all copies thereof in my
possession or control. I hereby release the Company and its officers, directors,
agents, attorneys, employees, shareholders, and affiliates from any and all
claims, liabilities, demands, causes of action, attorneys' fees, damages, or
obligations of every kind and nature, whether they are known or unknown, arising
at any time prior to and including the date I sign this Agreement. This general
release includes, but is not limited to: all federal and state statutory and
common law claims, claims related to my employment or the termination of my
employment or related to breach of contract, tort, wrongful termination,
discrimination, wages or benefits, or claims for any form of compensation. In
releasing claims unknown to me at present, I am waiving all rights and benefits
under Section 1542 of the California Civil Code, and any law or legal principle
of similar effect in any jurisdiction: "A GENERAL RELEASE DOES NOT EXTEND TO
CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
I acknowledge that I am knowingly and voluntarily waiving and releasing any
rights I may have under the federal Age Discrimination in Employment Act of
1967, as amended ("ADEA WAIVER"). I also acknowledge that the consideration
given for the ADEA Waiver is in addition to anything of value to which I was
already entitled. I further acknowledge that I have been advised by this
writing, as required by the ADEA, that: (i) my ADEA Waiver does not apply to any
rights or claims that arise after the date I sign this Release; (ii) I should
consult with an attorney prior to signing this Release; (iii) I have twenty-one
(21) days to consider this Release (although I may choose to voluntarily sign it
sooner); (iv) I have seven (7) days following the date I sign this Release to
revoke the ADEA Waiver; and (v) the ADEA Waiver will not be effective until the
date upon which the revocation period has expired unexercised, which will be the
eighth day after I sign this Release ("EFFECTIVE DATE"). Nevertheless, my
general release of claims, except for the ADEA Waiver, is effective immediately,
and not revocable.
This Release, together with the Agreement and my Proprietary Information and
Inventions Agreement, constitutes the complete, final and exclusive embodiment
of the entire agreement between the Company and me with regard to the subject
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matter hereof. I am not relying on any promise or representation by the Company
that is not expressly stated herein. This agreement may only be modified by a
writing signed by both me and a duly authorized officer of the Company.
I accept and agree to the terms and conditions stated above:
- -------------------------- --------------------------
Date Dan Grey
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EXHIBIT C
RELEASE
(GROUP TERMINATION OF EXECUTIVE AGE 40 OR OLDER)
I understand that my position with SBE, Inc. (the "COMPANY") terminated
effective ___________, 200_. The Company has agreed that if I choose to sign
this Release, the Company will provide me with the severance benefits described
in that certain Executive Severance Benefits Agreement (the "AGREEMENT") between
me and the Company dated _____, 2004. The severance benefits will be provided to
me within five (5) business days of the Effective Date of this Release. I
understand that I am not entitled to any severance benefits unless I sign this
Release. In addition to the severance benefits, the Company will pay me all of
my accrued salary and vacation, to which I am entitled by law.
In consideration for the severance benefits I am receiving under the Agreement,
I acknowledge my obligations under my Proprietary Information and Inventions
Agreement not to use or disclose any of the Company's proprietary information,
and I agree to immediately return all Company property and documents (including
all embodiments of proprietary information) and all copies thereof in my
possession or control. I hereby release the Company and its officers, directors,
agents, attorneys, employees, shareholders, and affiliates from any and all
claims, liabilities, demands, causes of action, attorneys' fees, damages, or
obligations of every kind and nature, whether they are known or unknown, arising
at any time prior to and including the date I sign this Agreement. This general
release includes, but is not limited to: all federal and state statutory and
common law claims, claims related to my employment or the termination of my
employment or related to breach of contract, tort, wrongful termination,
discrimination, wages or benefits, or claims for any form of compensation. In
releasing claims unknown to me at present, I am waiving all rights and benefits
under Section 1542 of the California Civil Code, and any law or legal principle
of similar effect in any jurisdiction: "A GENERAL RELEASE DOES NOT EXTEND TO
CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
I acknowledge that I am knowingly and voluntarily waiving and releasing any
rights I may have under the federal Age Discrimination in Employment Act of
1967, as amended ("ADEA WAIVER"). I also acknowledge that the consideration
given for the ADEA Waiver is in addition to anything of value to which I was
already entitled. I further acknowledge that I have been advised by this
writing, as required by the ADEA, that: (i) my ADEA Waiver does not apply to any
rights or claims that arise after the date I sign this Release; (ii) I should
consult with an attorney prior to signing this Release; (iii) I have twenty-one
(21) days to consider this Release (although I may choose to voluntarily sign it
sooner); (iv) I have seven (7) days following the date I sign this Release to
revoke the ADEA Waiver; and (v) the ADEA Waiver will not be effective until the
date upon which the revocation period has expired unexercised, which will be the
eighth day after I sign this Release ("EFFECTIVE DATE"); and (f) I have received
with this Release a detailed list of the job titles and ages of all employees
who were terminated in this group termination and the ages of all employees of
the Company in the same job classification or organizational unit who were not
terminated. While I have the right to revoke the ADEA Waiver, my general release
of claims (except for the ADEA Waiver), is effective immediately, and not
revocable.
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This Release, together with the Agreement and my Proprietary Information and
Inventions Agreement, constitutes the complete, final and exclusive embodiment
of the entire agreement between the Company and me with regard to the subject
matter hereof. I am not relying on any promise or representation by the Company
that is not expressly stated herein. This agreement may only be modified by a
writing signed by both me and a duly authorized officer of the Company.
I accept and agree to the terms and conditions stated above:
- -------------------------- --------------------------
Date Dan Grey
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