Exhibit 10.1


 


EXECUTIVE SEVERANCE BENEFITS AGREEMENT


 


This EXECUTIVE SEVERANCE
BENEFITS AGREEMENT (the “Agreement”)
is entered into this                     day
of                                 ,
2006 (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/her] employment by the Company,
Executive agrees to the best of [his/her] ability and experience that [he/she]
will at all times loyally and conscientiously perform all of the duties and
obligations required of and from [him/her] as                                                 .
During the term of [his/her] employment, Executive further agrees that [he/she]
will devote all of [his/her] 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/she] 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/her] 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.
Notwithstanding the foregoing, in the event that, as of the date of [his/her]
Covered Termination, the Executive is determined to be a “specified employee”
within the meaning of Section 409A of the Code, to the extent necessary to
avoid the imposition of additional tax liability on the Executive under Section
409A of the Code a portion of the Severance Amount equal to the sum of Base
Salary plus target annual bonus for the year in which the Covered Termination
occurs pro-rated by six (6) months shall be paid on the six (6) month
anniversary of the Covered Termination, with the remaining Severance Amount, if
any, payable in equal monthly
installments for the remainder of the Severance Period, all such payments to be
subject to all required tax withholding.


 


(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/her] continuation of coverage


 


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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.


 


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. Notwithstanding the
foregoing, in the event that, as of the date of [his/her] Covered Termination,
the Executive is determined to be a “specified employee” within the meaning of
Section 409A of the Code, to the extent necessary to avoid the imposition of
additional tax liability on the Executive under Section 409A of the Code an
amount equal to six (6) months Base Salary shall be paid on the six (6) month
anniversary of the Covered Termination, with an additional six (6) months Base
Salary payable in equal monthly
installments during the period beginning on the six (6) month
anniversary of the Covered Termination and ending on the twelve month
anniversary thereof, all such payments
to be subject to all required tax withholding.


 


(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. Notwithstanding the
foregoing, in the event, as of the date of [his/her] Covered Termination that
the Executive is determined to be a “specified employee” within the meaning of
Section 409A of the Code, to the extent necessary to avoid the imposition of
additional tax liability on the Executive under Section 409A of the Code an
amount equal to one-half of the amount payable under this Section 2.2(b) shall
be paid on the six (6) month anniversary of the Covered Termination, with the
remaining one-half of such amount payable in equal monthly installments during the period beginning on the six
(6) month anniversary of the Covered Termination and ending on the twelve (12)
month anniversary thereof, all such
payments to be subject to all required tax withholding.


 


(c)           Covered
Termination Option 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, the vesting and/or exercisability of one hundred
percent (100%) of


 


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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 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/her]
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


 


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Executive’s employment with the Company, Executive’s sole remedy shall
be to receive the payments and benefits described in this Agreement.


 


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. 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.


 


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 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


 


5

















 


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;


 


(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


 


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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
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 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:


 


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(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 this Agreement; 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/her] employment as a
Constructive Termination unless:  (A) the
Executive provides the Company with at least 30 days prior written notice of
[his/her] 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.


 


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        “Involuntary
Termination Without Cause” means Executive’s dismissal or discharge
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.


 


5.11        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.


 


5.12        “Severance
Period” shall be determined as follows:


 


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


 


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5.13        “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 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/she] 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/her] 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


 


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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.


 


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.


 


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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.


 


6.14        Code
Section 409A. This Agreement shall be interpreted, construed and
administered in a manner that satisfies the requirements of Sections 409A of
the Code, and any payment scheduled to be made hereunder that would otherwise
violate Section 409A of the Code shall be delayed to the extent necessary for
this Agreement and such payment to comply with Section 409A of the Code.


 


(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.


 


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 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:

  	
   

  



 


2

















 


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:

  	
   

  



 


2