Exhibit
10.1


 


EXECUTIVE
SEVERANCE BENEFITS AGREEMENT


 


This EXECUTIVE SEVERANCE BENEFITS AGREEMENT (the
“Agreement”) is entered into this                   
day of                             ,
2008 (the “Effective Date”),
between                                                                    
(“Executive”) and SYMMETRICOM, 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 below, in Article 5.


 


The Company and Executive
hereby agree as follows:


 


ARTICLE 1


 


SCOPE OF AND CONSIDERATION FOR THIS AGREEMENT


 


1.1          Position and Duties. 
Executive is
currently employed by the Company as                               .  Executive reports directly to the Company’s
Chief Executive Officer.


 


1.2          Restrictions.  During
his employment by the Company, Executive agrees to the best of his ability and
experience that he will at all times loyally and conscientiously perform all of
the duties and obligations required of and from him as                                               .  During the term of his employment, Executive
further agrees that he will devote all of his business time and attention to
the business of the Company, the Company will be entitled to all of the
benefits and profits arising from or incident to all such work, services and
advice, Executive will not render commercial or professional services of any
nature to any person or organization, whether or not for compensation, without
the prior written consent of the Board or its authorized designee, and
Executive will not directly or indirectly engage or participate in any business
that is competitive in any manner with the business of the Company.  Nothing in this Agreement will prevent
Executive from accepting speaking or presentation engagements in exchange for
honoraria or from service on boards of charitable organizations or otherwise
participating in civic, charitable or fraternal organizations, or from owning
no more than one percent (1%) of the outstanding equity securities of a
corporation whose stock is listed on a national stock exchange.


 


1.3          Confidential
Information and Invention Assignment Agreement.  Executive
acknowledges that he has previously executed and delivered to an officer of the
Company the Company’s Confidentiality and Invention Assignment Agreement (the “Confidentiality  Agreement”) and
that the Confidentiality Agreement remains in full force and effect.


 


1.4          Confidentiality
of Terms.  Executive agrees to follow the Company’s
strict policy that except as mandated by applicable law employees must not
disclose, either directly or indirectly, any information, including any of the
terms of this Agreement, regarding salary, bonuses, or stock purchase or option
allocations to any person, including other employees of the Company; provided, however, that
Executive may discuss such terms with members of his immediate family and any
legal, tax or accounting specialists who provide Executive with individual
legal, tax or accounting advice, and Executive may discuss such terms with
other 


 

















 


employees of the Company on a need to know basis if
required to carry out Executive’s duties, or at the request of the Board or any
other superior officer of the Company.


 


1.5          Consideration.  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
Executive’s execution of a release in accordance with Section 3.1.


 


1.6          Prior Agreement.  This Agreement shall supersede any other
agreement relating to severance benefits in the event of Executive’s severance
from employment.


 


ARTICLE 2


 


SEVERANCE
BENEFITS


 


2.1          Severance Benefits.  A
Covered Termination of Executive’s employment prior to or more than twelve (12)
months following the effective date of a Change of Control entitles Executive
to receive the benefits set forth in this Section 2.1.


 


(a)           Base Salary and Bonus.  The
Company shall pay to Executive an amount (the “Severance
Amount”) equal to the sum of Base Salary plus the excess, if any, of
(i) Executive’s target annual bonus for the fiscal year during which the
Covered Termination occurs, with such bonus determined assuming that all of the
performance objectives for such fiscal year have been attained, over (ii) any
portion of Executive’s annual bonus for the fiscal year in which the Covered
Termination occurs that has been paid to Executive prior to the date of the
Covered Termination, prorated by the Severance Period.  Such Severance Amount shall be paid  over
the Severance Period commencing
on the date of termination in substantially equal installments in
accordance with the Company’s regular payroll practices and shall be subject to
all required tax withholding; provided, however, that any such payments that
would otherwise have been made before the first normal payroll payment date
falling on or after the First Payment Date shall be made on the First Payment
Date.


 


(b)           Health Benefits. 
Provided that Executive elects continued coverage under the Consolidated
Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”),
the Company shall pay the premiums of Executive’s group health insurance
coverage and Executive’s “Exec-U-Care” or similar secondary health insurance
coverage, including coverage for Executive’s eligible dependents, until the
earlier of the expiration of the Severance Period or the applicable COBRA
continuation period; provided, however,
that the Company shall pay premiums for Executive’s eligible dependents only
for coverage for which those eligible dependents were enrolled immediately
prior to the Covered Termination; provided, further, that Executive shall be solely responsible for all
matters relating to his continuation of coverage pursuant to COBRA, including,
without limitation, the election of such coverage.  For the balance of the period that Executive
is entitled to coverage under federal COBRA law, if any, Executive shall be entitled
to maintain such coverage at Executive’s own expense.


 


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2.2          Change of Control Severance Benefits.  A
Covered Termination of Executive’s employment within twelve (12) months
following the effective date of a Change of Control entitles Executive to
receive the benefits set forth in this Section 2.2.


 


(a)           Base Salary.  The
Company shall pay to Executive an amount equal to twelve (12) months’ Base
Salary.  Such severance amount shall be
paid over a period of twelve (12) months commencing on the date of termination
in substantially equal installments in accordance with the Company’s regular
payroll practices and shall be subject to all required tax withholding;
provided, however, that any such payments that would otherwise have been made
before the first normal payroll payment date falling on or after the First
Payment Date shall be made on the First Payment Date.


 


(b)           Bonus.  The
Company shall pay to Executive an amount equal to the sum of (x) the excess,
if any, of (i) Executive’s target annual bonus for the fiscal year during
which the Covered Termination occurs, with such bonus determined assuming that
all of the performance objectives for such fiscal year have been attained, over
(ii) any portion of Executive’s annual bonus for the fiscal year in which
the Covered Termination occurs that has been paid to Executive prior to the
date of the Covered Termination, prorated by the portion of the fiscal year
that the Executive was employed by the Company and (y) Executive’s target
annual bonus for the fiscal year during which the Covered Termination occurs,
with such bonus determined assuming that all of the performance objectives for
such fiscal year have been attained (i.e., Executive shall be entitled to receive
a prorated target bonus for the current year and an additional year’s target
bonus).  Such severance amount shall be
paid over a period of twelve (12) months commencing on the date of termination
in substantially equal installments in accordance with the Company’s regular
payroll practices and shall be subject to all required tax withholding;
provided, however, that any such payments that would otherwise have been made
before the first normal payroll payment date falling on or after the First
Payment Date shall be made on the First Payment Date.


 


(c)            Covered Termination Stock Award Acceleration.  In the event of a Covered Termination of Executive’s
employment within twelve (12) months following the effective date of a Change
of Control:


 


(i)            if
the applicable Change of Control occurs within twelve (12) months after the
date on which Executive commenced employment with the Company (the “Employment Commencement Date”), the vesting and/or
exercisability of fifty percent (50%) of Executive’s outstanding unvested Stock
Awards shall be automatically accelerated on the date of termination; or


 


(ii)           if
the applicable Change of Control occurs on or after the first anniversary of
the Employment Commencement Date, the vesting and/or exercisability of one
hundred percent (100%) of Executive’s outstanding Stock Awards shall be
automatically accelerated on the date of termination.


 


(d)           Health Benefits. 
Provided that Executive elects continued coverage under federal COBRA
law, the Company shall pay the premiums of Executive’s group health insurance
coverage, including coverage for Executive’s eligible dependents, until the
earlier of 


 


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the
expiration of the twelve (12) month period following the Covered Termination or
the applicable COBRA continuation period; provided, however,
that the Company shall pay premiums for Executive’s eligible dependents only
for coverage for which those eligible dependents were enrolled immediately
prior to the Covered Termination; provided, further, that Executive shall be solely responsible for all
matters relating to his continuation of coverage pursuant to federal COBRA law,
including, without limitation, the election of such coverage.  For the balance of the period that Executive
is entitled to coverage under federal COBRA law, if any, Executive shall be
entitled to maintain such coverage at Executive’s own expense.


 


(e)           No
Duplication of Benefits.  The payments and benefits provided for in
this Section 2.2 shall only be payable in the event of a Covered
Termination of Executive’s employment within twelve (12) months following the
effective date of a Change of Control. 
In the event of a Covered Termination of Executive’s employment prior to
or more than twelve (12) months following a Change Control, then Executive
shall receive the payments and benefits described in Section 2.1 and shall
not be eligible to receive any of the payments and benefits described in this Section 2.2.


 


2.3          Other Terminations. 
If Executive’s employment is terminated by the Company for Cause, by
Executive other than pursuant to a Constructive Termination or as a result of
Executive’s death or disability, the Company shall not have any other or
further obligations to Executive under this Agreement (including any financial
obligations) except that Executive shall be entitled to receive (a) Executive’s
fully earned but unpaid base salary, through the date of termination at the
rate then in effect, and (b) all other amounts or benefits to which
Executive is entitled under any compensation, retirement or benefit plan or
practice of the Company at the time of termination in accordance with the terms
of such plans or practices, including, without limitation, any continuation of
benefits required by federal COBRA law or applicable law.  The foregoing shall be in addition to, and
not in lieu of, any and all other rights and remedies which may be available to
the Company under the circumstances, whether at law or in equity.


 


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 the Covered Termination.


 


2.5          Exclusive
Remedy.  Except as otherwise expressly required by law
(e.g., COBRA) or as specifically provided herein, all of Executive’s rights to
salary, severance, benefits, bonuses and other amounts hereunder (if any)
accruing after the termination of Executive’s employment shall cease upon such
termination.  In the event of a termination
of Executive’s employment with the Company, Executive’s sole remedy shall be to
receive the payments and benefits described in this Agreement.


 


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ARTICLE 3


 


LIMITATIONS AND CONDITIONS ON BENEFITS


 


3.1          Release Prior to Payment of Benefits.  Upon
the occurrence of a Covered Termination of Executive’s employment, and prior to
the payment of any benefits under this Agreement on account of such Covered
Termination, Executive shall execute and not revoke a release (the “Release”) in the form attached hereto and
incorporated herein as Exhibit A or Exhibit B, as applicable.  Executive shall execute and deliver such
Release to the Company no later than fifty (50) days following the date of the
Covered Termination.  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
Confidentiality 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
execution.  In the event 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.


 


3.2          Termination of Benefits. 
Benefits under this Agreement shall terminate immediately if the
Executive, at any time, violates any proprietary information or confidentiality
obligation to the Company, including, without limitation, the Confidentiality
Agreement.


 


3.3          Code Section 409A.  Notwithstanding any provision to the contrary in the
Agreement, if the Executive is deemed by the Company at the time of his
Separation from Service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of
the Code, to the extent delayed commencement of any portion of the termination
benefits to which Executive is entitled under this Agreement is required in
order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of
the Code, such portion of Executive’s termination benefits shall not be
provided to Executive prior to the earlier of (a) the expiration of the
six-month period measured from the date of the Executive’s Separation from
Service with the Company or (b) the date of Executive’s death.  Upon the first business day following the
expiration of the applicable Code Section 409A(a)(2)(B)(i) deferral
period, all payments deferred pursuant to this Section 3.3 shall be paid
in a lump sum to the Executive, and any remaining payments due under the
Agreement shall be paid as otherwise provided herein, with all such payments to
be subject to all required tax withholding. 
For purposes of Section 409A of the Code (including, without
limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)),
Executive’s right to receive the installment payments payable pursuant to Article 2
(the “Installment Payments”) shall be treated as a right to receive a series of
separate payments and, accordingly, each Installment Payment shall at all times
be considered a separate and distinct payment.


 


ARTICLE 4


 


PARACHUTE
PAYMENTS


 


4.1          Parachute
Payment Cut-Back.  Anything in this Agreement to the
contrary notwithstanding, in the event it shall be determined that any Payment
under this Agreement would, when combined with all other Payments Executive
receives from the Company or any 


 


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successor or parent or subsidiary thereof, but for
this Article 4, be considered an “excess parachute payment” under Section 280G
of the Code, then such Payments shall be reduced (with cash payments being
reduced before Stock Award compensation) as would result in no portion of the
payments being considered “excess parachute payments” under Section 280G
of the Code.


 


4.2          Determinations.  All determinations required to be made under this Article 4,
including whether and to what extent the Payments shall be reduced and the
assumptions to be utilized in arriving at such determination, shall be made by
the nationally recognized certified public accounting firm used by the Company
immediately prior to the Change of Control or, if such firm declines to serve,
such other nationally recognized certified public accounting firm as may be
designated by the Executive (the “Accounting
Firm”).  The Accounting Firm
shall provide detailed supporting calculations both to the Company and the Executive
at such time as is requested by the Company. 
All fees and expenses of the Accounting Firm shall be borne solely by
the Company.  Any determination by the
Accounting Firm shall be binding upon the Company and the Executive.  For purposes of making the calculations
required by this Article 4, the Accounting Firm may make reasonable
assumptions and approximations concerning applicable taxes and may rely on
reasonable, good-faith interpretations concerning the application of Sections
280G and 4999 of the Code.


 


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 during the last regularly scheduled payroll period immediately preceding
the Covered Termination.


 


5.2          “Board” means the Board of Directors of the Company.


 


5.3          The
Company shall have “Cause” to
terminate the Executive’s employment hereunder upon:


 


(a)           The
Executive’s willful failure to substantially perform the duties set forth in
this Agreement (other than any such failure resulting from the Executive’s
Disability) which is not remedied within 30 days after receipt of written
notice from the Company specifying such failure;


 


(b)           The
Executive’s willful failure to carry out, or comply with, in any material
respect any lawful and reasonable directive of the Board or the appropriate
individual to whom Executive reports not inconsistent with the terms of this
Agreement, which is not remedied within 30 days after receipt of written notice
from the Company specifying such failure;


 


(c)           The
Executive’s commission at any time of any act or omission that results in, or
that may reasonably be expected to result in, a conviction, plea of no contest
or imposition of unadjudicated probation for any felony or crime involving
moral turpitude;


 


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(d)           The
Executive’s unlawful use (including being under the influence) or possession of
illegal drugs on the Company’s premises or while performing the Executive’s
duties and responsibilities under this Agreement; or


 


(e)           The Executive’s commission at any time of
any act of fraud, embezzlement, misappropriation, material misconduct, or
breach of fiduciary duty against the Company (or any predecessor thereto or
successor thereof).


 


5.4          “Change of Control” means and includes each of the following:


 


(a)           the
acquisition, directly or indirectly, by any “person” or “group” (as those terms
are defined in Sections 3(a)(9), 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended, and the rules thereunder) of “beneficial
ownership” (as determined pursuant to Rule 13d-3 under the Securities
Exchange Act of 1934, as amended) of securities entitled to vote generally in
the election of directors (“voting securities”)
of the Company that represent fifty percent (50%) or more of the combined
voting power of the Company’s then outstanding voting securities, other than:


 


(i)            an
acquisition by a trustee or other fiduciary holding securities under any
employee benefit plan (or related trust) sponsored or maintained by the Company
or any person controlled by the Company or by any employee benefit plan (or
related trust) sponsored or maintained by the Company or any person controlled
by the Company, or


 


(ii)           an acquisition of voting securities by
the Company or a corporation owned, directly or indirectly by the stockholders
of the Company in substantially the same proportions as their ownership of the
stock of the Company;


 


Notwithstanding the foregoing, the following event
shall not constitute an “acquisition” by any person or group for purposes of
this Section: an acquisition of the Company’s securities by the Company that
causes the Company’s voting securities beneficially owned by a person or group
to represent fifty percent (50%) or more of the combined voting power of the
Company’s then outstanding voting securities; provided,
however, that if a person or group shall become the beneficial owner
of fifty percent (50%) or more of the combined voting power of the Company’s
then outstanding voting securities by reason of share acquisitions by the
Company as described above and shall, after such share acquisitions by the
Company, become the beneficial owner of any additional voting securities of the
Company, then such acquisition shall constitute a Change of Control; or


 


(b)           the
consummation by the Company (whether directly involving the Company or
indirectly involving the Company through one or more intermediaries) of (x) a
merger, consolidation, reorganization, or business combination or (y) a
sale or other disposition of all or substantially all of the Company’s assets
or (z) the acquisition of assets or stock of another entity, in each case
other than a transaction which results in the Company’s voting securities
outstanding immediately before the transaction continuing to represent (either
by remaining outstanding or by being converted into voting securities of the
Company or the person that, as a result of the transaction, controls, directly
or indirectly, the Company or owns, directly or indirectly, all or
substantially all of the Company’s assets or otherwise succeeds to the 


 


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business of the Company (the Company or such person, the “Successor Entity”))
directly or indirectly, at least a majority of the combined voting power of the
Successor Entity’s outstanding voting securities immediately after the
transaction.


 


5.5          “Code”
means the Internal Revenue Code of 1986, as amended from time to time and the
Treasury Regulations thereunder.


 


5.6          “Company” means Symmetricom, Inc. or, following a Change of Control, the
surviving entity resulting from such transaction, including the acquirer of
substantially all the Company’s assets.


 


5.7          “Constructive Termination” means that Executive voluntarily terminates
employment after any of the following are undertaken without Executive’s
express written consent:


 


(a)           A material diminution in the nature
or scope of the Executive’s responsibilities, title, duties or authority;


 


(b)           Failure of the Company to make any
material payment or provide any material benefit under an agreement pursuant to
which the Executive performs services for the Company; or


 


(c)           A relocation of Executive’s place of
employment by more than thirty (30) miles from such Executive’s place of
employment on the Effective Date;


 


provided, however, that notwithstanding the foregoing
the Executive may not resign his employment as a Constructive Termination
unless:  (A) the Executive provides
the Company with at least 30 days prior written notice of his intent to resign
as a Constructive Termination (which notice is provided not later than the 30th
day following the occurrence of the event constituting Constructive
Termination), and (B) the Company has not remedied the alleged violation(s) within
the 30-day period.  The termination of
Executive’s employment as a result of Executive’s death or disability will not
be deemed to be a Constructive Termination.


 


5.8          “Covered Termination” means an Involuntary Termination Without
Cause or a Constructive Termination, provided that such termination constitutes
a Separation from Service.


 


5.9          “Excise Tax”
means the excise tax imposed by Section 4999 of the Code, together with
any interest or penalties imposed with respect to such excise tax.


 


5.10        “First Payment Date” means the date on which the Release
becomes irrevocable.


 


5.11        “Involuntary Termination
Without Cause” means Executive’s dismissal or discharge by the
Company other than for Cause.  The
termination of Executive’s employment as a result of Executive’s death or
disability will not be deemed to be an Involuntary Termination Without Cause.


 


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5.12        A “Payment”
shall mean any payment or distribution in the nature of compensation (within
the meaning of Section 280G(b)(2) of the Code) to or for the benefit
of the Executive, whether paid or payable pursuant to this Agreement or
otherwise.


 


5.13        “Separation from Service” means a termination of Executive’s
employment with the Company which constitutes a separation from service within
the meaning of Section 409A of the Code and the regulations promulgated
thereunder, including Treasury Regulation Section 1.409A-1(h).


 


5.14        “Severance Period” shall be determined as follows:


 


(a)           If, as of the date of his Covered Termination,
Executive has been employed by the Company for less than one year, the
Severance Period shall be six (6) months;


 


(b)           If, as of the date of his Covered Termination,
Executive has been employed by the Company for one year or more, but less than
three years, the Severance Period shall be nine (9) months;


 


(c)           If, as of the date of his Covered Termination,
Executive has been employed by the Company for three years or more, the
Severance Period shall be twelve (12) months.


 


5.15        “Stock Awards” means all stock options, restricted stock and
such other awards granted pursuant to the Company’s stock option and equity
incentive award plans or agreements and any shares of stock issued upon
exercise thereof.


 


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 (a) to retain Executive as an employee, (b) to change the
status of Executive as an at-will employee, or (c) 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 


 


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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.  Any dispute, claim or
controversy based on, arising out of or relating to Executive’s employment or
this Agreement shall be settled by final and binding arbitration in Santa Clara
County, California, before a single neutral arbitrator in accordance with the
National Rules for the Resolution of Employment Disputes (the “Rules”) of the American Arbitration Association, and
judgment on the award rendered by the arbitrator may be entered in any court
having jurisdiction.  Arbitration may be
compelled pursuant to the California Arbitration Act (Code of Civil Procedure
§§ 1280 et  seq.).  If the
parties are unable to agree upon an arbitrator, one shall be appointed by the
AAA in accordance with its Rules.  Each
party shall pay the fees of its own attorneys, the expenses of its witnesses
and all other expenses connected with presenting its case; however,
Executive and the Company agree that, to the extent permitted by law, the
arbitrator may, in his discretion, award reasonable attorneys’ fees to the
prevailing party.  Other costs of the
arbitration, including the cost of any record or transcripts of the
arbitration, AAA’s administrative fees, the fee of the arbitrator, and all
other fees and costs, shall be borne by the Company.  This Section 6.5 is intended to be the
exclusive method for resolving any and all claims by the parties against each
other for payment of damages under this Agreement or relating to Executive’s
employment; provided, however,
that neither this Agreement nor the submission to arbitration shall limit the
parties’ right to seek provisional relief, including, without limitation,
injunctive relief, in any court of competent jurisdiction pursuant to
California Code of Civil Procedure § 1281.8 or any similar statute of an
applicable jurisdiction.  Seeking any
such relief shall not be deemed to be a waiver of such party’s right to compel
arbitration.  Both Executive and the
Company expressly waive their right to a jury trial. 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 and Exhibit B, 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 severance
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.  Notwithstanding anything herein to the
contrary, this Agreement shall not supersede any indemnification agreement
between Executive and the Company.


 


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.


 


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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 of
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 publicly the terms of this Agreement
except to the extent that disclosure is mandated by applicable law or
regulation or to their respective advisors (e.g.,
attorneys, accountants).


 


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.


 


(Signature Page Follows)


 


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IN WITNESS WHEREOF, the parties have executed this Agreement on the Effective
Date written above.


 


 


	
  SYMMETRICOM, INC.

   

   

  	
   

  	
  EXECUTIVE

  	 

	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
							



 


 


Exhibit A:
Release (Individual Termination)


Exhibit B:
Release (Group Termination)


 


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EXHIBIT A


 


RELEASE

(INDIVIDUAL TERMINATION)


 


Certain
capitalized terms used in this Release are defined in the Executive Severance
Benefits Agreement (the “Agreement”)
which I have executed and of which this Release is a part.


 


I hereby confirm
my obligations under the Company’s proprietary information and inventions
agreement.


 


I acknowledge that
I have read and understand Section 1542 of the California Civil Code which
reads as follows: “A general release does
not extend to claims which the creditor does not know or suspect to exist in
his or her favor at the time of executing the release, which if known by him or
her must have materially affected his or her settlement with the debtor.”  I hereby expressly waive and relinquish all
rights and benefits under that section and any law of any jurisdiction of
similar effect with respect to my release of any claims I may have against the
Company.


 


Except as
otherwise set forth in this Release, I hereby release, acquit and forever
discharge the Company, its parents and subsidiaries, and their officers,
directors, agents, servants, employees, shareholders, successors, assigns and
affiliates, of and from any and all claims, liabilities, demands, causes of
action, costs, expenses, attorneys fees, damages, indemnities and obligations
of every kind and nature, in law, equity, or otherwise, known and unknown,
suspected and unsuspected, disclosed and undisclosed (other than any claim for
indemnification I may have as a result of any third party action against me
based on my employment with the Company), arising out of or in any way related
to agreements, events, acts or conduct at any time prior to the date I execute
this Release, including, but not limited to: 
all such claims and demands directly or indirectly arising out of or in
any way connected with my employment with the Company or the termination of
that employment, including but not limited to, claims of intentional and
negligent infliction of emotional distress, any and all tort claims for
personal injury, claims or demands related to salary, bonuses, commissions,
stock, stock options, or any other ownership interests in the Company, vacation
pay, fringe benefits, expense reimbursements, severance pay, or any other form
of disputed compensation; claims pursuant to any federal, state or local law or
cause of action including, but not limited to, the federal Civil Rights Act of
1964, as amended; the federal Age Discrimination in Employment Act of 1967, as
amended (“ADEA”); the federal
Employee Retirement Income Security Act of 1974, as amended; the federal
Americans with Disabilities Act of 1990; the California Fair Employment and
Housing Act, as amended; tort law; contract law; statutory law; common law;
wrongful discharge; discrimination; fraud; defamation; emotional distress; and
breach of the implied covenant of good faith and fair dealing; provided, however, that nothing in this paragraph shall be
construed in any way to release the Company from its obligation to indemnify me
pursuant to the Company’s indemnification obligation pursuant to agreement or
applicable law.


 


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I acknowledge that
I am knowingly and voluntarily waiving and releasing any rights I may have
under ADEA.  I also acknowledge that the
consideration given under the Agreement for the waiver and release in the
preceding paragraph hereof 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: 
(A) my waiver and release do not apply to any rights
or claims that may arise on or after the date I execute this Release; (B) I have the
right to consult with an attorney prior to executing this Release; (C) I have
twenty-one (21) days to consider this Release (although I may choose to
voluntarily execute this Release earlier); (D) I have seven (7) days
following the execution of this Release by the parties to revoke the Release;
and (E) this
Release shall not be effective until the date upon which the revocation period
has expired, which shall be the eighth day after this Release is executed by
me.


 


	
   

  	
   

  	
  EXECUTIVE

   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Date:

  	
   

  



 


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EXHIBIT B


 


RELEASE


(GROUP TERMINATION)


 


Certain
capitalized terms used in this Release are defined in the Executive Severance
Benefits Agreement (the “Agreement”)
which I have executed and of which this Release is a part.


 


I hereby confirm
my obligations under the Company’s proprietary information and inventions
agreement.


 


I acknowledge that
I have read and understand Section 1542 of the California Civil Code which
reads as follows: “A general release does
not extend to claims which the creditor does not know or suspect to exist in
his or her favor at the time of executing the release, which if known by him or
her must have materially affected his or her settlement with the debtor.”  I hereby expressly waive and relinquish all
rights and benefits under that section and any law of any jurisdiction of
similar effect with respect to my release of any claims I may have against the
Company.


 


Except as
otherwise set forth in this Release, I hereby release, acquit and forever
discharge the Company, its parents and subsidiaries, and their officers,
directors, agents, servants, employees, shareholders, successors, assigns and
affiliates, of and from any and all claims, liabilities, demands, causes of
action, costs, expenses, attorneys fees, damages, indemnities and obligations
of every kind and nature, in law, equity, or otherwise, known and unknown,
suspected and unsuspected, disclosed and undisclosed (other than any claim for
indemnification I may have as a result of any third party action against me
based on my employment with the Company), arising out of or in any way related
to agreements, events, acts or conduct at any time prior to the date I execute
this Release, including, but not limited to: 
all such claims and demands directly or indirectly arising out of or in
any way connected with my employment with the Company or the termination of
that employment, including but not limited to, claims of intentional and
negligent infliction of emotional distress, any and all tort claims for
personal injury, claims or demands related to salary, bonuses, commissions,
stock, stock options, or any other ownership interests in the Company, vacation
pay, fringe benefits, expense reimbursements, severance pay, or any other form
of disputed compensation; claims pursuant to any federal, state or local law or
cause of action including, but not limited to, the federal Civil Rights Act of
1964, as amended; the federal Age Discrimination in Employment Act of 1967, as
amended (“ADEA”); the federal
Employee Retirement Income Security Act of 1974, as amended; the federal
Americans with Disabilities Act of 1990; the California Fair Employment and
Housing Act, as amended; tort law; contract law; statutory law; common law;
wrongful discharge; discrimination; fraud; defamation; emotional distress; and
breach of the implied covenant of good faith and fair dealing; provided, however, that nothing in this paragraph shall be
construed in any way to release the Company from its obligation to indemnify me
pursuant to the Company’s indemnification obligation pursuant to agreement or
applicable law.


 


1

















 


I acknowledge that
I am knowingly and voluntarily waiving and releasing any rights I may have
under ADEA.  I also acknowledge that the
consideration given under the Agreement for the waiver and release in the
preceding paragraph hereof 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: 
(A) my waiver and release do not apply to any rights
or claims that may arise on or after the date I execute this Release; (B) I have the
right to consult with an attorney prior to executing this Release; (C) I have
forty-five (45) days to consider this Release (although I may choose to
voluntarily execute this Release earlier); (D) I have seven (7) days following
the execution of this Release by the parties to revoke the Release; (E) this Release
shall not be effective until the date upon which the revocation period has
expired, which shall be the eighth day after this Release is executed by me;
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.


 


	
   

  	
   

  	
  EXECUTIVE

   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Date:

  	
   

  



 


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