exv10w1






Exhibit 10.1




			
	 	 	 
	
	 	KEY EMPLOYEE RETENTION AGREEMENT





1. Introduction. This Key Employee Retention Agreement (the “Agreement”) was
approved by the Compensation Committee of the Board of Directors of Emulex Corporation, a Delaware
corporation (“ELX”), on January 15, 2009 and is entered into by ELX and its Affiliates
(collectively, the “Company”) and [INSERT NAME], [INSERT TITLE] (the “Executive”), effective
January 16, 2009. “Affiliates” shall have the meaning set forth in the Delaware General
Corporations Law, Section 203(c). Because the Company and its Affiliates wish to assure
themselves of both present and future continuity of management in the event of any Change in
Control (as defined below), as well as the objectivity of management in the event of a proposed
Change in Control, the Executive and the Company are hereby entering into this Agreement which
amends, restates and supersedes any and all prior Key Employee Retention Agreements between the
Executive and the Company, and any other severance agreement, policy or practice previously
maintained by the Company that is applicable to the Executive, except as explicitly set forth in
Section 10(a). For the avoidance of doubt, the Executive is not eligible to participate in the
Emulex Corporation Change in Control Retention Plan, effective on November 20, 2008.



2. Eligibility for Benefits.




     (a) General Rules. Subject to the requirements set forth in this Section, the Company
will grant severance benefits under the Agreement to the Executive.



          (i) Eligible Termination. The Executive will receive the benefits set forth in the
Agreement in the event the Executive is either (i) involuntarily terminated by the Company for a
reason other than Cause or (ii) resigns for Good Reason (collectively, a “Termination Event”), in
either case during the Change in Control Period and in either case provided that such Termination
Event constitutes a “separation from service” within the meaning of Section 409A of the Code.



          (ii) In order to be eligible to receive benefits under the Agreement, the Executive must (A)
execute a general waiver and release of all employment-related claims against the Company
substantially in the form attached to this Agreement, and deliver such general waiver and release
to the Company within thirty (30) days after the Termination Date and such release must become
effective and (B) comply throughout the Change in Control Period and at all applicable times
thereafter with the covenants set forth in Section 7 of this Agreement.



     (b) Ineligible Terminations. For avoidance of doubt, the Executive will not receive
benefits under the Agreement in any of the following circumstances:



          (i) The Executive is involuntarily terminated for Cause.



          (ii) The Executive voluntarily terminates employment with the Company for a reason other than
Good Reason or for no reason. Voluntary terminations include, but are not limited to, death,
Disability, resignation, retirement, or failure to return from a leave of absence on the scheduled
date.


3. Definitions.



Capitalized terms used in this Agreement, unless defined elsewhere in this Agreement, shall have
the following meanings:




     (a) “Beneficial Owner” or “Beneficially Owned” has the definition given in Rule 13d-3
promulgated under the Exchange Act.



     (b) “Board” means the Board of Directors of ELX.



     (c) “Cause” means (i) the Executive’s continued failure to substantially perform the material
duties of his office (other than as a result of total or partial incapacity due to physical or
mental illness), (ii) embezzlement or theft by the Executive of the Company’s property that is
materially injurious to the financial condition of the Company, (iii) the commission of any act or
acts on the Executive’s part resulting in the conviction of the Executive of a felony under the
laws of the United States or any state, (iv) the Executive’s willful malfeasance or willful
misconduct in connection with the Executive’s duties to Company or any other act or omission which
is materially injurious to the financial condition or business reputation of the Company or any of
its subsidiaries or affiliates, or (v) a material breach by the Executive of any of the material
provisions of (A) this Agreement, (B) any non-compete, non-solicitation or confidentiality
provisions to which the Executive is subject or (C) any policy of the Company to which the
Executive is subject, including policies regarding proprietary information. However, no termination
shall be deemed for Cause under clause (i), (iv) or (v) unless the Executive is first given written
notice by the Company of the specific acts or omissions which the Company deems constitute grounds
for a termination for Cause, is provided with at least thirty (30) days after such notice to cure
the specified deficiency and fails to substantially cure such deficiency within such time frame in
the reasonable determination of the Board.



     (d) “Change in Control” means the occurrence of any of the following events:



          (i) The sale, exchange, lease or other disposition of all or substantially all of the assets
of the Company to a person or group of related persons, as such terms are defined or described in
Sections 3(a)(9) and 13(d)(3) of the Exchange Act, that will continue the business of the Company
in the future; or



          (ii) A merger, consolidation or similar transaction involving the Company and at least one
other entity in which the voting securities of the Company Beneficially Owned by the shareholders
of the Company immediately prior to such merger, consolidation or similar transaction do not
represent, after conversion if applicable, more than fifty percent (50%) of the total voting power
of the surviving controlling entity outstanding immediately after such merger, consolidation or
similar transaction; provided that any person who (A) was a Beneficial Owner of the voting
securities of the Company immediately prior to such merger, consolidation or similar transaction,
and (B) is a Beneficial Owner of more than 20% of the securities of the Company or the surviving
controlling entity immediately after such merger, consolidation or similar transaction, shall be
excluded from the list of “shareholders of the Company immediately prior to such merger,
consolidation or similar transaction” for purposes of the preceding calculation; or



          (iii) Any person or group is or becomes the Beneficial Owner, directly or indirectly, of more
than fifty percent (50%) of the total voting power of the voting stock of the Company (including by
way of merger, consolidation or otherwise); or



          (iv) During any period of two (2) consecutive years, individuals who at the beginning of such
period constituted the



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Board (together with any new directors whose election by such Board or whose nomination for
election by the shareholders of ELX was approved by a vote of a majority of the directors of ELX
then still in office, who were either directors at the beginning of such period or whose election
or nomination for election was previously so approved) cease for any reason to constitute a
majority of the Board then in office; or




          (v) A dissolution or liquidation of the Company,



          provided, as to each of events (i) to (v), and for avoidance of doubt, no Change in Control
will be deemed to have occurred as a result of any transaction that takes place solely between or
among ELX and its Affiliates, including, by way of example and without limitation, (a) a transfer
of assets between or among ELX and its Affiliates or a transfer of assets between or among the
Affiliates themselves, (b) a merger of ELX and any one or more Affiliates or a merger of one or
more Affiliates with each other, (c) the dissolution or liquidation of one of the Affiliates of ELX
without the dissolution or liquidation of all of the Affiliates of ELX, or (d) the transfer of
ownership of one of the Affiliates of ELX to another Affiliate of ELX.



     (e) “Change in Control Period” means the period commencing twelve (12) months prior to and
ending twenty four (24) months following the effective date of a Change in Control.



     (f) “Code” means the Internal Revenue Code of 1986, as amended.



     (g) “Company” means Emulex Corporation (a Delaware corporation), its Affiliates, and any
successor as provided in Section 10(b) hereof.



     (h) “Disability” means the physical or mental incapacitation such that for a period of six (6)
consecutive months or for an aggregate of nine (9) months in any twenty-four (24) month consecutive
period, the Executive is unable to substantially perform his duties. Any question as to the
existence of the Executive’s physical or mental incapacitation as to which the Executive or the
Executive’s representative and the Company cannot agree shall be determined in writing by a
qualified independent physician mutually acceptable to the Executive and the Company. If the
Executive and the Company cannot agree as to a qualified independent physician, each shall appoint
such a physician and those two physicians shall select a third who shall make such determination in
writing. The determination of a “Disability” made in writing to the Company and the Executive shall
be final and conclusive for all purposes of the benefits under this Agreement.



     (i) “Emulex Option” means each option to purchase shares of the Company that is granted to the
Executive prior to a Change in Control and each option to purchase shares of the stock of the
Company’s successor (by purchase of assets, merger, consolidation, reorganization or otherwise)
that is granted to the Executive by such successor in connection with or after a Change in Control,
whether in exchange or substitution for an option granted to the Executive by the Company prior to
the Change in Control or otherwise.



     (j) “Exchange Act” means the Securities Exchange Act of 1934, as amended.



     (k) “Good Reason” means the Executive’s resignation of his or her employment with the Company
as a result of the occurrence of one or more of the actions listed below, which such action or
actions remain uncured for at least thirty (30) days following written notice from the Executive to
the Company describing the occurrence of such action or actions and asserting that such action or
actions constitute grounds for a Good Reason resignation which notice must be provided by the
Executive no later than ninety (90) days after the initial existence of such condition, provided
that such resignation occurs no later than sixty (60) days after the expiration of the cure period.
The listed actions are the following, if they occur without the Executive’s express written
consent: (i) any material diminution in the level of the Executive’s authority, responsibilities or
duties; (ii) a reduction of ten percent (10%) or more in the level of the base salary, target
bonus, or employee benefits to be provided to the Executive; (iii) the relocation of the Executive
to a principal place of employment that increases the Executive’s one-way commute by more than
thirty-five (35) miles from the Executive’s current principal place of employment, without the
Executive’s express written consent; or (iv) the failure of any successor to the business of the
Company or to substantially all of the assets and/or business of the Company to assume the
Company’s obligations under this Agreement as required by Section 10(b).



     (l) “IRS” means the Internal Revenue Service.



     (m) “Pay” means the Executive’s monthly base pay at the rate in effect on the Termination Date
(or if greater, the last regularly scheduled payroll period immediately preceding a Change in
Control) and inclusive of the Executive’s target bonus level (expressed as a percentage of base
pay) with respect to the fiscal year prior to the Termination Date. One-time bonuses paid by the
Company that are not paid under a bonus plan adopted by the Company shall be excluded from Pay for
purposes of this Agreement. Examples of such one-time bonuses are sign-on bonuses or special
recognition bonuses.



     (n) “Severance Period” means [INSERT NUMBER OF MONTHS] months.



     (o) “Stock Award” means shares of restricted stock, and restricted stock units, stock
appreciation rights, and other equity-based awards which are awarded to the Executive prior to a
Change in Control; and each share of restricted stock, each restricted stock unit, each stock
appreciation right, and each other equity-based award of the Company’s successor (by purchase of
assets, merger, consolidation, reorganization or otherwise) which is awarded to the Executive by
such successor in connection with or after a Change in Control, whether in exchange or substitution
for restricted stock, restricted stock units, stock appreciation rights, or other equity-based
award granted to the Executive by the Company prior to the Change in Control or otherwise; which
shares or units are subject to a substantial risk of forfeiture and restrictions on transferability
during a specified vesting period.



     (p) “Termination Date” means the last date on which the Executive is in active employment
status with the Company.



4. Amount of Benefit. Severance benefits payable under the Agreement are as follows:




     (a) The Executive will receive a cash severance payment equal to Pay multiplied by the
Severance Period as well as the other severance benefits described in Section 8 of the Agreement.



     (b) Notwithstanding any other provision of the Agreement to the contrary, any amount paid or
benefit provided to the Executive under this Agreement shall be in lieu of any severance payment or
other benefits to which the Executive otherwise would have been entitled under any other
arrangement covering the Executive, unless expressly otherwise agreed to by the Company in writing.
In the event that the Executive is entitled to receive severance pay or severance benefits under
any agreement or contract with the Company or any plan, policy, program or other arrangement
adopted or established by the Company (“Other Benefits”), the severance payments and other
severance benefits payable hereunder shall be reduced by the Other Benefits.



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5. Emulex Options and Stock Awards.




     (a) Vesting Acceleration. Upon a Termination Event during the Change in Control
Period, the vesting of the Executive’s right to exercise each Emulex Option, and vest in the Stock
Awards held by the Executive as of the Termination Date will be fully accelerated as of the
Termination Date so that the Executive will have the right to exercise such Emulex Option in full
at any time during its remaining term and all grants of Stock Awards received by the Executive
shall thereafter be fully vested and non-forfeitable.



     (b) Exercise Extension. In addition to the acceleration described above in Section
5(a), following a Termination Event during the Change in Control Period, the Executive will be
permitted to exercise any Emulex Option for a period of twelve (12) months following his
Termination Date, provided that such Emulex Option has not by such time expired according to its
terms.



6. Time of Payment and form of benefit, no mitigation.




     (a) Subject to Section 13, the cash severance payment under this Agreement shall be paid in a
lump sum within fifteen (15) days following the last day of any waiting period or revocation period
as required by applicable law in order for the general waiver and release required by Section
2(a)(ii) of this Agreement to be effective, and in no case later than March 15 of the year
following the year in which the Executive’s employment was terminated.



     (b) The Executive will not be obligated to seek employment or otherwise mitigate the severance
payment or other benefits provided hereunder. Severance payments will not be reduced by other
compensation earned by the Executive from another employer following termination.



7. Executive Covenants.




     (a) Scope of Covenants. The cash severance payment, the option acceleration, and the
other severance benefits provided for under the Agreement are subject to the covenants made by the
Executive (the “Covenants”) in the Employee Creation and Nondisclosure Agreement previously signed
by the Executive.



     (b) Compliance Determinations. It is expressly understood and agreed that although the
Executive and the Company consider the restrictions contained in the Covenants to be reasonable, if
a final judicial determination is made by a court of competent jurisdiction that the time or
territory or any other restriction contained in the Covenants is an unenforceable restriction
against the Executive, for which injunctive relief is unavailable, the provisions of the Covenants
shall not be rendered void but shall be deemed amended to apply as to such maximum time and
territory and to such maximum extent as such court may judicially determine or indicate to be
enforceable. Furthermore, such a determination shall not limit the Company’s ability to cease
providing payments or benefits during the remainder of any Severance Period, if applicable, unless
a court of competent jurisdiction has expressly declared that action to be unlawful. Alternatively,
if any court of competent jurisdiction finds that any restriction contained in the Covenants is
unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding
shall not affect the enforceability of any of the other restrictions contained in the Covenants or
other provisions of this Agreement.



     (c) No Right to Severance Payment; Benefit Termination. The Executive’s right to the
cash severance payment, the option acceleration, and the other severance benefits under this
Agreement will terminate immediately if the Executive, at any time, violates any Covenants.



8. Continuation of Employment Benefits.




Following a Termination Event during the Change in Control Period, the Executive shall receive the
severance benefits described in this Section.



     (a) Health Plan Benefits Continuation.



          (i) If the Executive is enrolled in a health, vision or dental plan sponsored by the Company,
he may be eligible to continue coverage (the “Continued Coverage”) under such health, vision or
dental plan (or to convert to an individual policy) under the Consolidated Omnibus Budget
Reconciliation Act of 1985 (“COBRA”). The Company will notify the individual of any such right to
continue health coverage at the time of termination. In the event that the Executive is not
eligible to receive Continued Coverage through the Company (because the Executive is not enrolled
in any plan sponsored by the Company), it is understood and agreed that Section 8(a) shall not be
applicable to the Executive and he shall not be eligible to receive the Continued Coverage Premiums
(as defined below).



          (ii) In connection with the Continued Coverage, the Company will pay, on behalf of the
Executive, the full amount of the Executive’s Continued Coverage premiums until the earlier of (A)
the end of the Severance Period or (B) the date the Executive and his or her dependants become
covered under a new employer’s health plan (the “Continued Coverage Premiums”). The Continued
Coverage Premiums will cover the Executive’s dependents if, and only to the extent that, such
dependents were enrolled in a health, vision or dental plan sponsored by the Company prior to the
Executive’s Termination Date and such dependents’ premiums under such plans were paid by the
Company prior to the Executive’s Termination Date. Notwithstanding the foregoing, no provision of
this Agreement will affect the continuation coverage rules under COBRA or any other applicable law.
Therefore, the period during which the Executive must elect to continue the Company’s group
medical, vision or dental coverage under COBRA or other applicable law, the length of time during
which Continued Coverage will be made available to the Executive, and all other rights and
obligations of the Executive under COBRA or any other applicable law (except the obligation to pay
premiums that the Company pays during the Severance Period) will be applied in the same manner that
such rules would apply in the absence of this Agreement It is expressly understood and agreed that
the Executive will be solely responsible for payment of premiums for continuation coverage under
COBRA or any applicable state continuation coverage law following the earlier to occur of
subsections (A) and (B) above.



     (b) Other Employee Benefits. All non-health benefits (such as life insurance and
disability coverage) terminate as of the Executive’s Termination Date (except to the extent that
any conversion privilege is available thereunder).



     (c) Outplacement Services. A payment of up to USD $15,000 for reimbursement of the
cost of outplacement services utilized by the Executive within twelve (12) months after his or her
Termination Date or, such shorter period as the Company determines to be consistent with the
requirements of Section 409A of the Code, and in any case, such reimbursement to be paid not later
than the end of the calendar year following the year in which the expense is incurred.



9. Excise Taxes.




     (a) After Tax Amount. In the event that any benefits payable to the Executive pursuant
to this Agreement (“Payments”) (i) constitute “parachute payments” within the meaning of
Section 280G of the Code, and (ii) but for this Section 9 would be subject to the excise tax
imposed by Section 4999 of the Code, or any comparable successor provisions (the “Excise Tax”),
then the



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Executive’s payments hereunder shall be either (a) provided to the Executive in full, or
(b) provided to the Executive as to such lesser extent which would result in no portion of such
benefits being subject to the Excise Tax, whichever of the foregoing amounts, when taking into
account applicable federal, state, local and foreign income and employment taxes, the Excise Tax,
and any other applicable taxes, results in the receipt by the Executive, on an after-tax basis, of
the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be
taxable under the Excise Tax. In the case of a reduction in payments, the lump sum cash severance
payment shall be reduced first. Unless the Company and the Executive otherwise agree in writing,
any determination required under this Section 9 shall be made in writing in good faith by a
recognized accounting firm selected by the Company (the “Accountants”). For purposes of making the
calculations required by this Section 9, the Accountants may make reasonable assumptions and
approximations concerning applicable taxes and may rely on reasonable, good faith interpretations
concerning the application of the Code and other applicable legal authority. The Company and the
Executive shall furnish to the Accountants such information and documents as the Accountants may
reasonably request in order to make a determination under this Section 9. The Company shall bear
all costs the Accountants may reasonably incur in connection with any calculations contemplated by
this Section 9.




     (b) IRS Determinations. If, notwithstanding any reduction described in Section 9(a),
the IRS determines that the Executive is liable for the Excise Tax as a result of the receipt of
any payments made pursuant to this Agreement, then the Executive shall be obligated to pay back to
the Company, within thirty (30) days after a final IRS determination or in the event that the
Executive challenges the final IRS determination, a final judicial determination, a portion of the
Payments equal to (the “Repayment Amount.”) The Repayment Amount shall be the smallest such amount,
if any, as shall be required to be paid to the Company so that the Executive’s net after-tax
proceeds with respect to the Payments (after taking into account the payment of the Excise Tax and
all other applicable taxes imposed on such benefits) shall be maximized. The Repayment Amount shall
be zero if a Repayment Amount of more than zero would not result in the Executive’s net after-tax
proceeds with respect to the Payments being maximized. If the Excise Tax is not eliminated pursuant
to this Section 9(b), the Executive shall pay the Excise Tax.



     (c) Company Payment. Notwithstanding any other provision of this Section 9, if
(i) there is a reduction in the payments to an Executive as described in this Section 9, (ii) the
IRS later determines that the Executive is liable for the Excise Tax, the payment of which would
result in the maximization of the Executive’s net after-tax proceeds (calculated as if the
Executive’s benefits had not previously been reduced), and (iii) the Executive pays the Excise Tax,
then the Company shall pay to the Executive those payments which were reduced pursuant to this
Section 9 as soon as administratively possible after the Executive pays the Excise Tax so that the
Executive’s net after-tax proceeds with respect to the Payments are maximized.



10. Severability; Entire Agreement; Amendments; binding nature of Agreement.




     (a) Severability; Entire Agreement; Amendments. This Agreement sets forth the entire
understanding between the Executive and the Company as to the subject matter hereof. The terms of
any prior plans, policies or agreements relating to the subject matter hereof are hereby superseded
and replaced by this Agreement, provided that this Agreement shall not supersede any severance
provisions set forth in any applicable contract of employment between the Executive and the
Company, except that in order to avoid a duplication of benefits, Executive shall not be entitled
to any severance payments or benefits under such contract of employment if Executive is entitled to
severance payments and benefits under this Agreement. There are no terms, conditions,
representations, warranties or covenants other than those contained herein. No term or provision
of this Agreement may be amended, waived, released, discharged or modified in any respect, except
in writing, signed by the both parties. No waiver of any breach or default shall constitute a
waiver of any other breach or default whether of the same or any other covenant or condition.
The invalidity or unenforceability of any provision of this Agreement shall not affect the validity
or enforceability of any other provision of this Agreement.



          (b) Binding Effect On Successor To Company. This Agreement shall be binding upon any
successor or assignee, whether direct or indirect, by purchase, merger, consolidation or otherwise,
to all or substantially all the business or assets of the Company, or upon any successor to the
Company as the result of a Change in Control, and any such successor or assignee shall be required
to perform the Company’s obligations under the Agreement, in the same manner and to the same extent
that the Company would be required to perform if no such succession or assignment or Change in
Control had taken place. In such event, the term “Company,” as used in the Agreement, shall mean
the Company as hereinafter defined and any successor or assignee as described above which by reason
hereof becomes bound by the terms and provisions of this Agreement.


11. No Implied Employment Contract.



The Agreement shall not be deemed (a) to give the Executive any right to be retained in the employ
of the Company or (b) to interfere with the right of the Company to discharge the Executive at any
time and for any reason, subject to the provisions of any contract of employment between the
Executive and the Company, which right is hereby reserved.



12. Legal Construction. This Agreement is intended to be governed by and shall be
construed in accordance with the laws of the State of California, without giving effect to its
principles of conflict of laws.



13. Effect of Section 409A of the Code. If the Executive is deemed on the Termination
Date to be a “specified employee” (as such term is defined under Section 409A of the Code and the
regulations and other Treasury Department guidance promulgated thereunder), then with regard to any
payment or the provision of any benefit that is considered deferred compensation under Section 409A
of the Code payable on account of a “separation from service,” to the extent required to avoid any
taxes imposed under Section 409A(a)(1) of the Code, such payment or benefit shall be made or
provided at the date which is no more than fifteen (15) days following the earlier of (i) the
expiration of the six (6) month period measured from the date of such “separation from service” of
the Executive, and (ii) the date of the Executive’s death.



14. Notice. Notices and all other communications provided for in this Agreement
(including any notice of termination) shall be in writing and shall be deemed to have been duly
given when personally delivered or sent by certified mail, return receipt requested, postage
prepaid, addressed to the respective addresses last given by each party to the other; provided,
that all notices to the Company shall be directed to the attention of the Board with a copy to the
Secretary of the Company. All notices and communications shall be deemed to have been received on
the date of delivery thereof or on the third business day after the mailing




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thereof, except that notice of change of address shall be effective only upon receipt.



15. Counterparts. This Agreement may be executed in one or more counterparts.



16. Execution. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, effective as of the 16th day of January, 2009.




EMULEX CORPORATION:




	 	 	 	 	 	 	 
	By:

	 	 	 	Date:	 	 
	 

	 	 
	 	 	 	 
	Name:
	 	 	 	 	 	 
	Title:
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	AGREED:
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	By:

	 	 	 	Date:	 	 
	 

	 	 
	 	 	 	 
	Name:
	 	 	 	 	 	 






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	 	GENERAL WAIVER AND RELEASE FORM





1. In return for payment of severance benefits pursuant to the Key Employee Retention
Agreement (the “Agreement”), I hereby generally and completely release the Company (as defined in
the Agreement) and its directors, officers, employees, shareholders, partners, agents, attorneys,
predecessors, successors, insurers, and assigns (collectively the “Released Parties”) from any and
all claims, liabilities and obligations, both known and unknown, that arise out of or are in any
way related to events, acts, conduct, or omissions occurring prior to my signing this Release. This
general release includes, but is not limited to: (1) all claims arising out of or in any way
related to my employment with the Company or the termination of that employment; (2) all claims
related to my compensation or benefits from the Company, including wages, salary, bonuses,
commissions, vacation pay, expense reimbursements (to the extent permitted by applicable law),
severance pay, fringe benefits, stock, stock options, or any other ownership interests in the
Company; (3) all claims for breach of contract, wrongful termination, and breach of the implied
covenant of good faith and fair dealing; (4) all tort claims, including without limitation claims
for fraud, defamation, emotional distress, and discharge in violation of public policy; (5) all
federal, state, and local statutory claims, including without limitation claims for discrimination,
harassment, retaliation, attorneys’ fees and costs, or other claims arising under the federal Civil
Rights Act of 1964 (as amended), the federal Americans with Disabilities Act of 1990, the federal
Age Discrimination in Employment Act of 1967 (as amended) (“ADEA”), the Older Worker Benefit
Protection Act (“OWBPA”), the federal Worker Adjustment and Retraining Notification Act (as
amended) and similar laws in other jurisdictions, the Employee Retirement Income Security Act of
1974 (as amended), the Family and Medical Leave Act of 1993, and California Fair Employment and
Housing Act (as amended), the California Family Rights Act (as amended), California Labor Code
section 1400 et. seq. and any similar laws in other jurisdictions; and (6) any and all claims for
violation of the federal, or any state, constitution; provided, however, that this Release does not
waive, release or otherwise discharge any claim or cause of action arising after the date I sign
this Agreement, nor does this Release extend to any obligation incurred under the Agreement or any
right to enforce my rights under the Agreement.



2. This Agreement includes a release of claims of discrimination or retaliation on the basis of
workers’ compensation status, but does not include workers’ compensation claims. Excluded from this
Agreement are any claims which by law cannot be waived in a private agreement between employer and
employee, including but not limited to claims under California Labor Code section 2802 and the
right to file a charge with or participate in an investigation conducted by the Equal Employment
Opportunity Commission (“EEOC”) or any state or local fair employment practices agency. I waive,
however, any right to any monetary recovery or other relief should the EEOC or any other agency
pursue a claim on my behalf.



3. I acknowledge and represent that I have not suffered any age or other discrimination,
harassment, retaliation, or wrongful treatment by any of the Released Parties. I also acknowledge
and represent that I have not been denied any rights including, but not limited to, rights to a
leave or reinstatement from a leave under the Family and Medical Leave Act of 1993, the California
Family Rights Act, the Uniformed Services Employment and Reemployment Rights Act of 1994, or any
similar law of any jurisdiction.



4. I agree that I am voluntarily executing this Release. I acknowledge that I am knowingly and
voluntarily waiving and releasing any rights I may have under the ADEA and that the consideration
given for this Release 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 specified in this paragraph does not apply to any rights or claims that may
arise after the date I sign this Release; (b) I have been advised to consult with an attorney prior
to signing this Release; (c) I have at least twenty-one (21) days to consider this Release
(although I may choose to sign it any time on or after my Termination Date); (d) I have seven (7)
calendar days after I sign this Release to revoke it (“Revocation Period”); and (e) this Release
will not be effective until I have signed it and returned it to the Company’s Human Resources
Department and the Revocation Period has expired. I further acknowledge that, upon executing this
Release, I have used all or as much of the twenty-one (21) day period as I deem necessary to fully
consider this Release, and, if I have used less than the full twenty-one (21) day period, I waive
the portion not used. In addition, if my termination of employment has occurred in connection with
a layoff or exit incentive program, I acknowledge that (x) I have received a disclosure from the
Company that includes a description of the class, unit or group of individuals covered by such
layoff or exit incentive program, the eligibility factors for such program, and any time limits
applicable to such program and a list of job titles and ages of all employees selected for this
group termination and ages of those individuals in the same job classification or organizational
unit who were not selected for termination (“Disclosures”); and (y) I have at least forty-five (45)
days after I have received the Disclosures to consider this Release (although I may choose to sign
it any time on or after my Termination Date) in lieu of the twenty-one (21) day period described
above.



5. I UNDERSTAND THAT THIS AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS. In giving
this release, which includes claims which may be unknown to me at present, I acknowledge that I
have read and understand Section 1542 of the California Civil Code, which states:



“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 unknown or unsuspected claims
that I may have against the Company.





Employee
Signature (to be signed only after a Termination Event):
 

Employee Name: 

Date Signed: 




Key Employee Retention Agreement - Exhibit