exv10w30



 




Exhibit 10.30


ACCELERATION AGREEMENT




This Acceleration Agreement (the “Agreement”) is entered into as of _______, 2005 (the
“Effective Date”), by and between _______ (the “Optionee”) and ESS Technology, Inc., a
California corporation (the “Company”).




	1.  	Definitions. The following definitions shall apply for all purposes under this
Agreement:





     (a) Cause. “Cause” means the determination by the Company’s Board of Directors of any
of the following: (i) the Optionee’s willful failure to perform substantially his or her duties
and responsibilities to the Company; (ii) the Optionee’s commission of any act of fraud,
embezzlement, dishonesty or any other willful misconduct that has caused, or is reasonably expected
to result in, injury to the Company; (iii) the Optionee’s commission of, conviction of, or a plea
of “guilty” or “no contest” to, a felony under the laws of the United States or any state; (iv) the
Optionee’s unauthorized use or disclosure of any proprietary information or trade secrets of the
Company or any other party to whom the Optionee owes an obligation of nondisclosure as a result of
his or her relationship with the Company; or (v) the Optionee’s material breach of any or his or
her obligations under any written agreement or covenant with the Company.



     (b) Change in Control. “Change in Control” means:




            (i) the occurrence of any of the events described in Section 18.1 of the 1995 Plan for
Covered Options granted thereunder; or




            (ii) a “Change of Control” as defined in Section 2(f) of the 1997 Plan for Covered
Options granted thereunder.



     (c) Covered Option. “Covered Option” means any stock option granted to the Optionee
pursuant to one of the Covered Plans, whether such stock option was granted before, on, or after
the Effective Date.



     (d) Covered Plans. “Covered Plans” means the 1995 Equity Incentive Plan (as amended
and restated January 25, 2003) (the “1995 Plan”) or the ESS Technology, Inc. 1997 Equity Incentive
Plan (as amended and restated April 26, 2003) (the “1997 Plan”).



     (e) Good Reason. “Good Reason” means any one or more of the following, without the
Optionee’s prior written consent: (i) a change in the Optionee’s position such that he or she is
not a corporate officer of the Company or the assignment to the Optionee of any duties or
responsibilities which are substantially inconsistent with Optionee’s duties and responsibilities
to the Company on the Effective Date; (ii) the relocation of the principal place of the Optionee’s
service to a location that is more than 50 miles from the Optionee’s principal place of service on
the Effective Date, or the imposition of travel requirements that are substantially more demanding
than the travel requirements existing on the Effective Date; (iii) any failure by the Company to
pay, or any material reduction by the Company of the Optionee’s base salary or bonus compensation
(subject to applicable performance requirements with respect to the actual amount of bonus
compensation earned by the Optionee); (iv) any failure by the Company to provide the Optionee with
the



 









 





opportunity to participate, on terms no less favorable than those in effect for the benefit of
any other employee who holds a comparable position with the Company, in any benefit or compensation
plans and programs or other fringe benefits (or their equivalent) from time to time in effect for
the benefit of any other employee who holds a comparable position with the Company; or (v) the
refusal of any successor or assign of the Company to assume this Agreement.



     (f) Involuntary Termination. “Involuntary Termination” means (i) the Optionee’s
service is terminated by the Company without Cause or (ii) the Optionee’s resignation for Good
Reason.




	2.  	Benefits.





     (a) Change in Control.



            (i) Notwithstanding anything to the contrary in the Covered Plans or applicable stock option
agreements, in the event of the Optionee’s Involuntary Termination within 2 months before a Change
in Control, the vesting schedule for all Covered Options that are outstanding as of such Change in
Control shall be accelerated to provide that all such Covered Options shall be immediately vested
upon the effective date of such Change in Control and exercisable in full.



            (ii) Notwithstanding anything to the contrary in the Covered Plans or applicable stock option
agreements, the vesting schedule for all Covered Options that are outstanding as of the effective
date of a Change in Control shall be accelerated to provide that 50% of the unvested shares subject
to such Covered Options (determined as of the effective date of the Change in Control) shall vest
immediately upon the effective date of such Change in Control and become exercisable. For purposes
of the foregoing provision, the unvested shares subject to acceleration shall be determined pro
rata such that 50% of the shares that would have otherwise vested on each vesting date absent a
Change in Control shall vest immediately upon the effective date of such Change in Control (e.g.,
if prior to a Change in Control 50 shares vest on each monthly anniversary of the option grant date
and 2 years remain on the vesting schedule, then after a Change in Control 25 shares will vest on
each monthly anniversary of the option grant date for the 2 years remaining on the vesting
schedule). Further, in the event of the Optionee’s Involuntary Termination within 12 months after
a Change in Control, the balance of the unvested shares subject to the Covered Options shall vest
immediately upon Optionee’s Involuntary Termination and become exercisable in full.



     (b) Death. Notwithstanding Section 2(a) of this Agreement or anything to the contrary
in the Covered Plans or applicable stock option agreements, in the event of the Optionee’s death at
any time on or after the Effective Date, the vesting schedule for all Covered Options that are
outstanding as of the Optionee’s death shall be accelerated to provide that all such Covered
Options shall be immediately vested and exercisable in full.



     (c) Conditions. All benefits provided under this Section 2 are conditioned on (i) the
Optionee’s continuing compliance with this Agreement, any employment agreement and the Company’s
policies and by-laws, and (ii) the Optionee’s execution of a general release of all claims in a
form prescribed by the Company.



 









 





     (d) Excise Taxes. In the event that any benefit received by Optionee pursuant to this
Agreement would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code
of 1986, as amended (the “Excise Tax”), then Optionee shall be entitled to either the full amount
of the benefits or such lesser amount that would result in no portion of the benefits being subject
to the Excise Tax, whichever of the foregoing amounts results in the receipt by Optionee, on an
after-tax basis, of the greater benefit. Unless the Company and Optionee agree otherwise in
writing, any calculation required under this Section 2(d) shall be made in writing by independent
public accountants agreed to by the Company and Optionee, whose calculation shall be conclusive and
binding upon the Company and Optionee for all purposes. The Company and Optionee shall furnish to
the accountants such information and documents as the accountants may reasonably request in order
to make a determination under this Section 2(d). All fees and expenses of the accounting firm
shall be borne solely by the Company.




	3.  	Successors.





     (a) Company’s Successors. Any successor to all or substantially all of the Company’s
business and/or assets (whether direct or indirect and whether by purchase, lease, merger,
consolidation, liquidation or otherwise), shall be obligated to perform this Agreement in the same
manner and to the same extent as the Company would be required to perform it in the absence of a
succession.



     (b) Optionee’s Successors. This Agreement and all rights of the Optionee hereunder
shall inure to the benefit of, and be enforceable by, the Optionee’s personal or legal
representatives, executors, administrators, successors, heirs, distributees, devisees and legatees.




	4.  	Miscellaneous Provisions.





     (a) Notice. Notices and all other communications contemplated by this Agreement shall
be in writing and shall be deemed to have been duly given when personally delivered or when mailed
by U.S. registered or certified mail, return receipt requested and postage prepaid. In the case of
the Optionee, mailed notices shall be addressed to him or her at the home address which he or she
most recently communicated to the Company in writing. In the case of the Company, mailed notices
shall be addressed to its corporate headquarters, and all notices shall be directed to the
attention of its Chief Financial Officer.



     (b) Waiver. No provision of this Agreement shall be modified, waived or discharged
unless the modification, waiver or discharge is agreed to in writing and signed by the Optionee and
by an authorized officer of the Company (other than the Optionee). No waiver by either party of
any breach of, or of compliance with, any condition or provision of this Agreement by the other
party shall be considered a waiver of any other condition or provision or of the same condition or
provision at another time.



     (c) Whole Agreement. This Agreement contains all the legally binding understandings
and agreements between Optionee and the Company pertaining to the subject matter of this Agreement
and supersedes all such agreements, whether oral or in writing, previously entered into between the
parties. Any and all stock option agreements regarding the Covered Options are hereby modified and
amended as necessary to comport with this Agreement. To the extent that any



 









 







such stock option agreement is inconsistent with this Agreement or conflicts with this
Agreement, then the terms of this Agreement shall control.



     (d) Choice of Law. The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of California without regard to the conflicts
of laws principles thereof.



     (e) Severability. The invalidity or unenforceability of any provision or provisions
of this Agreement shall not affect the validity or enforceability of any other provision hereof,
which shall remain in full force and effect.



     (f) No Assignment. The rights of the Optionee to benefits under this Agreement shall
not be made subject to option or assignment, either by voluntary or involuntary assignment or by
operation of law, including (without limitation) bankruptcy, garnishment, attachment or other
creditor’s process, and any action in violation of this subsection (f) shall be void.



     (g) Retention Rights. This Agreement does not give the Optionee the right to be
retained by the Company in any capacity. The Company reserves the right to terminate Optionee’s
engagement at any time and for any reason.



5.  Term of Agreement. This Agreement shall continue in effect until the Company shall have
given the Optionee written notice of cancellation. This Agreement shall terminate automatically in
the event the Optionee ceases to provide services to Company prior to a Change in Control or
Optionee’s death. Notwithstanding the foregoing, this Agreement shall remain effective in the
event of Optionee’s Involuntary Termination within 2 months before a Change in Control.



     IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the
Company by its duly authorized officer, as of the day and year first above written.


	 	 	 	 	 
	 	Optionee



_________________________________________________



Company



_________________________________________________

 	 
	 	By:  	 	 
	 	As Its: