exv10w01



 





Exhibit 10.01




CHANGE OF CONTROL RETENTION AGREEMENT




     This Change of Control Retention Agreement (the “Agreement”) is made and entered into as of
                    , 2007, by and between Silicon Image, Inc., a Delaware corporation (the “Company”), and
                                         (the “Executive”).



RECITALS




     WHEREAS, the Executive is a key employee of the Company who possesses valuable proprietary
knowledge of the Company, its business and operations and the markets in which the Company
competes;



     WHEREAS, the Company draws upon the knowledge, experience, expertise and advice of the
Executive to manage its business for the benefit of the Company’s stockholders;



     WHEREAS, the Company recognizes that if a Change of Control were to occur, the resulting
uncertainty regarding the consequences of such an event could adversely affect the performance of,
and the Company’s ability to attract and retain, its key employees, including the Executive;



     WHEREAS, the Company believes that the existence of this Agreement will serve as an incentive
to Executive to remain in the employ of the Company and to be focused and motivated to work to
maximize the value of the Company for the benefit of its stockholders, and would enhance the
Company’s ability to call on and rely upon Executive if a Change of Control were to occur; and



     WHEREAS, the Company and the Executive desire to enter into this Agreement to encourage the
Executive to continue to devote the Executive’s full attention and dedication to the success of the
Company, and to provide specified compensation and benefits to the Executive in the event of a
Termination Upon Change of Control pursuant to the terms of this Agreement.



     NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:




	1.	 	PURPOSE
	 
	 	 	The purpose of this Agreement is to provide specified compensation and benefits to the
Executive in the event of his Termination Upon Change of Control. Subject to the terms of
any applicable written employment agreement between Company and the Executive, either the
Executive or Company may terminate the Executive’s employment at any time for any reason.





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	2.	 	TERMINATION UPON CHANGE OF CONTROL
	 
	 	 	In the event of the Executive’s Termination Upon Change of Control, the Executive shall be
entitled to the benefits described in this Section 2:






	 	2.1	 	Prior Obligations.






	 	2.1.1	 	Accrued Salary and Vacation. A lump sum payment of all salary
and accrued vacation earned through the Termination Date.
	 
	 	2.1.2	 	Expense Reimbursement. Upon submission of proper expense
reports by the Executive, the Company shall reimburse the Executive for all
expenses incurred by the Executive, consistent with past practices, in
connection with the business of the Company prior to the Executive’s
Termination Date.
	 
	 	2.1.3	 	Employee Benefits. Benefits, if any, under any 401(k) plan,
nonqualified deferred compensation plan, employee stock purchase plan and other
Company benefit plans under which the Executive may be entitled to benefits,
payable pursuant to the terms of such plans.






	 	2.2	 	Additional Cash Severance Benefits. (a ) An amount equal to twelve (12) months
of Executive’s Base Salary and (b) an amount equal to fifty percent (50% ) of the
Executive’s target annual bonus under the Company’s incentive compensation or bonus
plan in effect immediately prior to the Change of Control, provided however, that
should the Termination Date occur in the last six (6) months of any calendar year, the
foregoing bonus payment shall be equal to one hundred percent (100%) of the Executive’s
target annual bonus under the applicable incentive compensation or bonus plan. The
foregoing amounts shall be payable in one lump sum within thirty (30) days following
the Termination Date.
	 
	 	2.3	 	Acceleration of Equity Awards. Fifty percent (50%) of all unvested,
outstanding Equity Awards granted to Executive prior to the Change of Control shall
have their vesting and exercisability accelerated. The Executive shall be entitled to
exercise any Equity Award within the period ending three (3) months following the
Termination Date, or such longer period as specified by the Equity Award, but in no
event later than the expiration date of the Equity Award; provided, however, that if
such Equity Awards are not assumed by the Successor in a Change of Control, they shall
accelerate in full and must be exercised or cashed out in full prior to the
consummation of the Change of Control regardless of whether there occurs a Termination
Upon Change of Control.
	 
	 	2.4	 	Extended Insurance Benefits.






	 	2.4.1	 	Benefit Continuation. If the Executive timely elects coverage
under COBRA, the Executive shall receive at the Company’s expense continued
provision of the Company’s health related and other standard employee insurance
coverage as in effect immediately prior to the Executive’s




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	 	 	 	Termination Upon Change of Control for a period of twelve (12) months
following such Termination Upon Change of Control. The date of the
“qualifying event” for the Executive and any dependents shall be the date of
his Termination Upon Change of Control.
	 
	 	2.4.2	 	Coverage Under Another Plan. Notwithstanding the preceding
provisions of this subsection 2.4, in the event the Executive becomes covered
as a primary insured (that is, not as a beneficiary under a spouse’s or
partner’s plan) under another employer’s group health plan during the period
provided for herein, the Executive promptly shall inform the Company and the
Company shall cease provision of continued group health insurance for the
Executive and any dependents.






	3.	 	FEDERAL EXCISE TAX UNDER SECTION 280G
	 
	 	 	If (1) any amounts payable to the Executive under this Agreement or otherwise are
characterized as excess parachute payments pursuant to Section 4999 of the Internal Revenue
Code of 1986, as amended (the “Code”), and (2) the Executive thereby would be subject to any
United States federal excise tax due to that characterization, then Executive’s termination
benefits hereunder will be payable, at Executive’s election, either in full or in such
lesser amount as would result, after taking into account the applicable federal, state and
local income taxes and the excise tax imposed by Section 4999, in Executive’s receipt on an
after-tax basis of the greatest amount of termination and other benefits. The determination
of any reduction required pursuant to this section (including the determination as to which
specific payments shall be reduced) shall be made by a neutral party designated by the
Company and such determination shall be conclusive and binding upon the Company or any
related corporation for all purposes.
	 
	4.	 	DEFINITIONS






	 	4.1	 	Capitalized Terms Defined. Capitalized terms used in this Agreement shall have
the meanings set forth in this Section 4, unless the context clearly requires a
different meaning.
	 
	 	4.2	 	“Base Salary” means the base salary of the Executive immediately preceding the
Executive’s Termination Date.
	 
	 	4.3	 	“Cause” means:






	 	(a)	 	a good faith determination by the Board of Directors of the
Company (the “Board”) that the Executive willfully failed to follow the lawful
written directions of the Board; provided that no termination for Cause shall
occur unless the Executive: (i) has been provided with notice of the Company’s
intention to terminate the Executive for Cause, and (ii) has had at least 30
days to cure or correct his behavior;




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	 	(b)	 	Executive’s engagement in gross misconduct, which the Board
determines in good faith is detrimental to the Company; provided that no
termination for Cause shall occur unless the Executive: (i) has been provided
with notice of the Company’s intention to terminate the Executive for Cause,
and (ii) has had at least 30 days to cure or correct his behavior;
	 
	 	(c)	 	Executive’s failure or refusal to comply in all material
respects with (i) the Company’s Employee Invention Assignment, Confidentiality
and Arbitration Agreement, (ii) the Company’s insider trading policy, or (iii)
any other policies of the Company, where such failure or refusal to comply
would be detrimental to the Company; provided that no termination for Cause
shall occur unless the Executive: (i) has been provided with notice of the
Company’s intention to terminate the Executive for Cause, and (ii) has had at
least 30 days to cure or correct his behavior if such behavior is curable;
	 
	 	(d)	 	Executive’s conviction of, or a plea of no contest to, a felony
or crime involving moral turpitude or commission of a fraud which the Board in
good faith believes would reflect adversely on the Company; or
	 
	 	(e)	 	Executive’s unreasonable or bad-faith failure or refusal to
cooperate with the Company in any investigation or formal proceeding initiated
by the Board in good faith.






	 	4.4	 	“Change of Control” means:






	 	(a)	 	any “person” (as such term is used in Sections 13(d) and 14(d)
of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), other
than a trustee or other fiduciary holding securities of the Company under an
employee benefit plan of the Company, becomes the “beneficial owner” (as
defined in Rule 13d-3 promulgated under the Exchange Act), directly or
indirectly, of securities of the Company representing fifty (50%) percent or
more of (A) the outstanding shares of common stock of the Company or (B) the
combined voting power of the Company’s outstanding securities;
	 
	 	(b)	 	the consummation of a merger or consolidation, or series of
related transactions, which results in the voting securities of the Company
outstanding immediately prior thereto failing to continue to represent (either
by remaining outstanding or by being converted into voting securities of the
surviving entity), directly or indirectly, at least fifty (50%) percent of the
combined voting power of the voting securities of the Company or such surviving
entity outstanding immediately after such merger, consolidation or series of
related transactions;




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	 	(c)	 	the sale or disposition of all or substantially all of the
Company’s assets (or consummation of any transaction, or series of related
transactions, having similar effect); or
	 
	 	(d)	 	the dissolution or liquidation of the Company.






	 	4.5	 	“Company” shall mean Silicon Image, Inc., a Delaware company and, following a
Change of Control, any Successor.
	 
	 	4.6	 	“Equity Award” shall mean any option, restricted stock award, restricted stock
unit award, stock appreciation right or other equity award to acquire shares of the
Company’s common stock granted or issued to the Executive.
	 
	 	4.7	 	“Good Reason” means the occurrence of any of the following conditions, without
the Executive’s written consent:






	 	(a)	 	assignment to the Executive of authorities, responsibilities or
duties that are materially less than the authorities, responsibilities or
duties which the Executive occupied immediately preceding the Change of
Control;
	 
	 	(b)	 	a material change in the position to whom Executive is to
report from the position to whom Executive reports immediately preceding the
Change of Control;
	 
	 	(c)	 	a reduction in the Executive’s Base Salary or a material
reduction in the Executive’s target bonus opportunity from the Executive’s Base
Salary or target bonus opportunity immediately preceding the Change of Control
(other than an equivalent percentage reduction in annual base salaries and
target bonus opportunities that applies to employees similarly situated to the
Executive); or
	 
	 	(d)	 	the Company requiring the Executive to be based at any office
or location more than 50 miles from the office where the Executive was based
immediately preceding the Change of Control.






	 	4.8	 	“Permanent Disability” means “disability” as defined in Section 409A and Treasury
Regulations promulgated thereunder:
	 
	 	4.9	 	“Successor” means the Company as defined above and any successor to or assignee
of substantially all of its business and/or assets whether or not as part of a Change
of Control.
	 
	 	4.10	 	“Termination Date” means the effective date of an Executive’s “separation from
service” (as defined in Section 409A and Treasury Regulations promulgated thereunder).




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	 	4.11	 	“Termination Upon Change of Control” means any termination of the employment of
the Executive by the Company without Cause or any resignation by the Executive for Good
Reason during the period commencing three (3) months prior to the completion of a
Change in Control and ending on the date which is twelve (12) months following the
completion of the Change of Control. In the event of the resignation of the Executive
for Good Reason, the Executive must provide the Company with notice of the existence of
Good Reason within ninety (90) days of the existence of such Good Reason and with a
thirty (30) day opportunity to cure. Notwithstanding the foregoing, the term
“Termination Upon Change of Control” shall not include any termination of the
employment of the Executive (1) by the Company for Cause; (2) by the Company as a
result of the Permanent Disability of the Executive; (3) as a result of the death of
the Executive; or (4) as a result of the voluntary termination of employment by the
Executive for reasons other than Good Reason.






	5.	 	RELEASE OF CLAIMS
	 
	 	 	Executive’s receipt of payments and benefits under this Agreement is conditioned upon the
delivery by Executive of a signed Termination Release Agreement in substantially the form
attached hereto as Exhibit A, provided, however, that the Executive shall not be required to
release any rights the Executive may have to be indemnified by the Company pursuant to
applicable law, contract or otherwise.
	 
	6.	 	EXCLUSIVE REMEDY
	 
	 	 	The Executive shall be entitled to no other termination, severance or change of control
compensation, benefits, or other payments from the Company as a result of any Termination
Upon a Change of Control with respect to which the payments and/or benefits described in
Section 2 have been provided to the Executive, except as expressly set forth in this
Agreement.
	 
	7.	 	CONFLICT IN BENEFITS; NONCUMULATION OF BENEFITS






	 	7.1	 	No Limitation of Regular Benefit Plans. Except as provided in Section 7.2
below, this Agreement is not intended to and shall not affect, limit or terminate any
plans, programs or arrangements of the Company that are regularly made available to a
significant number of employees or officers of the Company, including without
limitation the Company’s equity incentive plans.
	 
	 	7.2	 	Noncumulation of Benefits. The Executive may not cumulate cash severance
payments, acceleration of Equity Award vesting or other termination benefits under both
this Agreement, any other written agreement with the Company and/or another plan or
policy of the Company. If the Executive has any other binding written agreement or
other binding arrangement with the Company that provides that upon a Change of Control
or termination of employment the Executive shall receive Change of Control,
termination, severance or similar benefits, then




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	 	 	 	Executive hereby waives Executive’s rights to such other benefits to the extent that
the payments and/or benefits described in Section 2 have been provided to the
Executive.






	8.	 	PROPRIETARY AND CONFIDENTIAL INFORMATION
	 
	 	 	Executive’s receipt of the payments and benefits described in this Agreement are conditioned
upon the Executive’s acknowledgment of Executive’s continuing obligation under, and
Executive’s agreement to abide by the terms and conditions of, the Company’s Confidentiality
and/or Proprietary Rights Agreement between the Executive and the Company. Accordingly,
during the term of this Agreement and following any Termination Upon Change of Control,
Executive agrees to continue to abide by the terms and conditions of the Company’s
Confidentiality and/or Proprietary Rights Agreement between the Executive and the Company.
	 
	9.	 	NON-SOLICITATION
	 
	 	 	For a period of one (1) year after the Executive’s Termination Upon Change of Control, the
Executive will not solicit the services or business of any employee or consultant of the
Company to discontinue that person’s or entity’s relationship with or to the Company without
the written consent of the Company.
	 
	10.	 	CONTINUATION OF BENEFITS; TRANSITION SERVICES
	 
	 	 	If the Company and/or Successor provides the payments and/or benefits described in
Section 2 of the Agreement, and the Company and/or Successor request that Executive
provide transition services following the Change of Control, then for sixty (60) days after
the Executive’s Termination Upon Change of Control, to the maximum extent enforceable by law
and to the extent that such transition services do not conflict with duties to any
subsequent employer, the Executive will provide reasonable transition services as requested
by the Company and/or Successor
	 
	11.	 	ARBITRATION






	 	11.1	 	Disputes Subject to Arbitration. Any claim, dispute or controversy arising out
of this Agreement, the interpretation, validity or enforceability of this Agreement or
the alleged breach thereof shall be submitted by the parties to binding arbitration by
a sole arbitrator under the rules of the American Arbitration Association; provided,
however, that (1) the arbitrator shall have no authority to make any ruling or judgment
that would confer any rights with respect to the trade secrets, confidential and
proprietary information or other intellectual property of the Company upon the
Executive or any third party; and (2) this arbitration provision shall not preclude the
Company from seeking legal and equitable relief from any court having jurisdiction with
respect to any disputes or claims relating to or arising out of the misuse or
misappropriation of the Company’s intellectual property. Judgment may be entered on the
award of the arbitrator in any court having jurisdiction.




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	 	11.2	 	Site of Arbitration. The site of the arbitration proceeding shall be in Santa
Clara County, California.






	12.	 	NOTICES
	 
	 	 	For purposes of this Agreement, notices and all other communications provided for in the
Agreement shall be in writing and shall be deemed to have been duly given when delivered or
mailed return receipt requested as follows:





If to the Company:




Silicon Image, Inc.

1060 E. Arques Ave.

Sunnyvale, CA 94085

Att: Human Resources Department





	 	 	and, if to the Executive, at the address indicated below or such other address specified by
the Executive in writing to the Company. Either party may provide the other with notices of
change of address, which shall be effective upon receipt.
	 
	13.	 	MISCELLANEOUS PROVISIONS






	 	13.1	 	Heirs and Representatives of the Executive; Successors and Assigns of the
Company. This Agreement shall be binding upon and shall inure to the benefit of and be
enforceable by the Executive’s personal and legal representatives, executors,
administrators, successors, heirs, distributees, devises and legatees. This Agreement
shall be binding upon and inure to the benefit of and be enforceable by the successors
and assigns of the Company.
	 
	 	13.2	 	No Assignment of Rights. The interest of the Executive in this Agreement or in
any distribution to be made under this Agreement may not be assigned, pledged,
alienated, anticipated, or otherwise encumbered (either at law or in equity) and shall
not be subject to attachment, bankruptcy, garnishment, levy, execution, or other legal
or equitable process. Any act in violation of this Section 13.2 shall be void.
	 
	 	13.3	 	Amendment; Waiver. No provision of this Agreement shall be modified,
amended, waived or discharged unless the modification, amendment, waiver or discharge
is agreed to in writing and signed by the Executive and by an authorized officer of
the Company (other than the Executive). 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.
	 
	 	13.4	 	Entire Agreement. This Agreement represents the entire agreement and
understanding between the parties as to the subject matter herein (whether oral or
written and whether express or implied) and expressly supersedes any existing




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	 	 	 	agreement or understanding providing for any change control, severance, termination
or similar benefits by and between the Executive and the Company.
	 
	 	13.5	 	Withholding Taxes; 409A. All payments made under this Agreement shall be
subject to reduction to reflect all federal, state, local and other taxes required to
be withheld by applicable law. To the extent (i) any payments to which Executive
becomes entitled under this Agreement, or any agreement or plan referenced herein, in
connection with Executive’s termination of employment with the Company constitute
deferred compensation subject to Section 409A of the Code, and (ii) Executive is deemed
at the time of such termination of employment to be a “specified” employee under
Section 409A of the Code, then such payment or payment shall not be made or commence
until the expiration of the six (6)-month period measured from the date of Executive’s
“separation from service” (as such term is at the time defined in Treasury Regulations
under Section 409A of the Code) with the Company; provided, however, that such deferral
shall only be effected to the extent required to avoid adverse tax treatment to
Executive, including (without limitation) the additional twenty percent (20%) tax for
which Executive would otherwise be liable under Section 409A(a)(1)(B) of the Code in
the absence of such deferral. Upon the expiration of the applicable deferral period,
any payments which would have otherwise been made during that period (whether in a
single sum or in installments) in the absence of this paragraph shall be paid to
Executive in one lump sum.
	 
	 	13.6	 	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.
	 
	 	13.7	 	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 where the Executive has his residence or principal office or where he performs his
duties hereunder.
	 
	 	13.8	 	Effective Date; Term of Agreement.






	 	13.8.1	 	Effective Date. The Effective Date of this Agreement is                     , 2007, the
date this Agreement was adopted by the Board.
	 
	 	13.8.2	 	Term of Agreement. The term of this Agreement shall commence on the
Effective Date and continue until                     , 2009, provided, however, that,
notwithstanding the foregoing, if a Change of Control is consummated, prior to
such date, the term of this Agreement shall continue until the later of (a) the
date which is twelve (12) months following the consummation of the Change of
Control and (b) such time as all of the obligations of the parties hereto with
respect to this Agreement have been satisfied.




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     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.



Executive




[NAME]




Address:




Silicon Image, inc.




By:




Title:




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EXHIBIT A




TERMINATION RELEASE AGREEMENT



As required by the Change of Control Retention Agreement, dated                     , 2007, between you and
Silicon Image, Inc., a Delaware corporation (the “Change of Control Retention Agreement”) to which
this Termination Release Agreement (the “Agreement”) is attached as Exhibit A, this Agreement sets
forth below your waiver and release of claims in favor of Silicon Image, Inc., and its officers,
directors, employees, agents, representatives, subsidiaries, divisions, affiliated companies,
successors, and assigns (collectively, the “Company”) in exchange for the consideration provided
for under the terms of the Change of Control Retention Agreement.





	1.	 	General Release and Waiver of Claims.






	 	(a)	 	The payments set forth in the Change of Control Retention Agreement fully
satisfy any and all accrued salary, vacation pay, bonus and commission pay,
stock-based compensation, profit sharing, termination benefits or other compensation
to which you may be entitled by virtue of your employment with the Company or your
termination of employment. You acknowledge that you have no claims and have not filed
any claims against the Company based on your employment with or the separation of your
employment with the Company.
	 
	 	(b)	 	To the fullest extent permitted by law, you hereby release and forever
discharge the Company, its successors, subsidiaries and affiliates, directors,
shareholders, current and former officers, agents and employees (all of whom are
collectively referred to as “Releasees”) from any and all existing claims, demands,
causes of action, damages and liabilities, known or unknown, that you ever had, now
have or may claim to have had arising out of or relating in any way to your employment
or non-employment with the Company through the Effective Date of this Agreement (as
defined in Section 11), including, without limitation, claims based on any oral,
written or implied employment agreement, claims for wages, bonuses, commissions,
stock-based compensation, expense reimbursement, and any claims that the terms of your
employment with the Company, or the circumstances of your separation, were wrongful,
in breach of any obligation of the Company or in violation of any of your rights,
contractual, statutory or otherwise. Each of the Releasees is intended to be a third
party beneficiary of this General Release and Waiver of Claims.






	 	(i)	 	Release of Statutory and Common Law Claims. Such rights
include, but are not limited to, your rights under the following federal and
state statutes: the Employee Retirement Income Security Act (ERISA) (regarding
employee benefits); the Occupational Safety and Health Act (safety matters);
the Family and Medical Leave Act of 1993; the Worker Adjustment and Retraining
Act (WARN)




 









 






	 	 	 	(notification requirements for employers who are curtailing or closing an
operation) and common law; tort; wrongful discharge; public policy;
workers’ compensation retaliation; tortious interference with contractual
relations, misrepresentation, fraud, loss of consortium; slander, libel,
defamation, intentional or negligent infliction of emotional distress;
claims for wages, bonuses, commissions, stock-based compensation or fringe
benefits; vacation pay; sick pay; insurance reimbursement, medical
expenses, and the like.
	 
	 	(ii)	 	Release of Discrimination Claims. You understand that various
federal, state and local laws prohibit age, sex, race, disability, benefits,
pension, health and other forms of discrimination, harassment and retaliation,
and that these laws can be enforced through the U.S. Equal Employment
Opportunity Commission, the National Labor Relations Board, the Department of
Labor, and similar state and local agencies and federal and state courts. You
understand that if you believe your treatment by the Company violated any
laws, you have the right to consult with these agencies and to file a charge
with them. Instead, you have decided voluntarily to enter into this
Agreement, release the claims and waive the right to recover any amounts to
which you may have been entitled under such laws, including but not limited
to, any claims you may have based on age or under the Age Discrimination in
Employment Act of 1967 (ADEA; 29 U.S.C. Section 621 et. seq.) (age); the Older
Workers Benefit Protection Act (OWBPA) (age); Title VII of the Civil Rights
Act of 1964 (race, color, religion, national origin or sex); the 1991 Civil
Rights Act; the Vocational Rehabilitation Act of 1973 (disability); The
Americans with Disabilities Act of 1990 (disability); 42 U.S.C. Section 1981,
1986 and 1988 (race); the Equal Pay Act of 1963 (prohibits pay differentials
based on sex); the Immigration Reform and Control Act of 1986; Executive Order
11246 (race, color, religion, sex or national origin); Executive Order 11141
(age); Vietnam Era Veterans Readjustment Assistance Act of 1974 (Vietnam era
veterans and disabled veterans); and California state statutes and local laws
of similar effect.
	 
	 	(iii)	 	Releasees and you do not intend to release claims which you
may not release as a matter of law (including, but not limited to,
indemnification claims under applicable law). To the fullest extent permitted
by law, any dispute regarding the scope of this general release shall be
determined by an arbitrator under the procedures set forth below.





 









 






	2.	 	Waiver of Unknown Claims. You expressly waive any benefits of Section 1542 of the Civil Code
of the State of California (and any other laws of similar effect), which provides:
	 
	 	 	“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.”
	 
	3.	 	Covenant Not to Sue.






	 	(a)	 	To the fullest extent permitted by law, you agree that you will not now or at
any time in the future pursue any charge, claim, or action of any kind, nature and
character whatsoever against any of the Releasees, or cause or knowingly permit any
such charge, claim or action to be pursued, in any federal, state or municipal court,
administrative agency, arbitral forum, or other tribunal, arising out of any of the
matters covered by paragraphs 1 and 2 above.
	 
	 	(b)	 	You further agree that you will not pursue, join, participate, encourage, or
directly or indirectly assist in the pursuit of any legal claims against the
Releasees, whether the claims are brought on your own behalf or on behalf of any other
person or entity.
	 
	 	(c)	 	Nothing herein prohibits you from: (1) providing truthful testimony in
response to a subpoena or other compulsory legal process, and/or (2) filing a charge
or complaint with a government agency such as the Equal Employment Opportunity
Commission, the National Labor Relations Board or applicable state anti-discrimination
agency.






	4.	 	Arbitration of Disputes. Except for claims for injunctive relief arising out of a breach of
the Confidentiality Agreement, you and the Company agree to submit to mandatory binding
arbitration any future disputes between you and the Company, including any claim arising out
of or relating to this Agreement. By signing below, you and the Company waive any rights you
and the Company may have to trial by jury of any such claims. You agree that the American
Arbitration Association will administer any such arbitration(s) under its National Rules for
the Resolution of Employment Disputes, with administrative and arbitrator’s fees to be borne
by the Company. The arbitrator shall issue a written arbitration decision stating his or her
essential findings and conclusions upon which the award is based. A party’s right to review
of the decision is limited to the grounds provided under applicable law. The parties agree
that the arbitration award shall be enforceable in any court having jurisdiction to enforce
this Agreement. This Agreement does not extend or waive any statutes of limitations or other
provisions of law that specify the time within which a claim must be brought. Notwithstanding
the foregoing, each party retains the right to seek preliminary injunctive relief in a court
of competent jurisdiction to




 









 












	 	 	preserve the status quo or prevent irreparable injury before a matter can be heard in
arbitration.






	5.	 	Review of Agreement. You may take up to twenty-one (21) days from the date you receive this
Agreement, to consider whether to sign this Agreement. By signing below, you affirm that you
were advised to consult with an attorney before signing this Agreement and were given ample
opportunity to do so. You understand that this Agreement will not become effective until you
return the original of this Agreement, properly signed by you, to the Company, Attention:
[CONTACT], and after expiration of the revocation period without revocation by you.






	6.	 	Revocation of Agreement. You acknowledge and understand that you may revoke this Agreement
by faxing a written notice of revocation to [CONTACT] at [NUMBER] any time up to seven (7)
days after you sign it. After the revocation period has passed, however, you may no longer
revoke your Agreement.






	7.	 	Entire Agreement. This Agreement and the Change of Control Retention Agreement are the entire
agreement between you and the Company with respect to the subject matter herein and supersede
all prior negotiations and agreements, whether written or oral, relating to this subject
matter. You acknowledge that neither the Company nor its agents or attorneys, made any
promise or representation, express or implied, written or oral, not contained in this
Agreement to induce you to execute this Agreement. You acknowledge that you have signed this
Agreement voluntarily and without coercion, relying only on such promises, representations and
warranties as are contained in this document and understand that you do not waive any right or
claim that may arise after the date this Agreement becomes effective.






	8.	 	Modification. By signing below, you acknowledge your understanding that this Agreement may
not be altered, amended, modified, or otherwise changed in any respect except by another
written agreement that specifically refers to this Agreement, executed by your and the
Company’s authorized representatives.






	9.	 	Governing Law. This Agreement is governed by, and is to be interpreted according to, the
laws of the State of California.






	10.	 	Savings and Severability Clause. Should any court, arbitrator or government agency of
competent jurisdiction declare or determine any of the provisions of this Agreement to be
illegal, invalid or unenforceable, the remaining parts, terms or provisions shall not be
affected thereby and shall remain legal, valid and enforceable. Further, if a court,
arbitrator or agency concludes that any claim under paragraph 1 above may not be released as a
matter of law, the General Release in paragraph 1 and the Waiver Of Unknown Claims in
paragraph 2 shall otherwise remain effective as to any and all other claims.




 









 












	11.	 	Effective Date. The effective date of this Agreement shall be the eighth day following the
date this Agreement was signed, without having been revoked within seven (7) days thereafter,
by you.




PLEASE SIGN THIS AGREEMENT NO EARLIER THAN YOUR TERMINATION DATE (AS DEFINED IN THE CHANGE OF
CONTROL RETENTION AGREEMENT) AND RETURN IT TO SHERRY WHITELEY AT THE ADDRESS ABOVE.





	 	 	PLEASE REVIEW CAREFULLY. THIS AGREEMENT CONTAINS A
RELEASE OF KNOWN AND UNKNOWN CLAIMS.
	 
	 	 	REVIEWED, UNDERSTOOD AND AGREED:





	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 	 	Date:	 	 	 	 
	 

	 	 
[Executive]
	 	 	 	 	 	 

	 	 
	 
	 

	 	DO NOT SIGN PRIOR TO THE TERMINATION DATE