Exhibit 10.1


 


SECOND AMENDED AND RESTATED


EXECUTIVE SEVERANCE BENEFITS AGREEMENT


 


On May       , 2006,
                                                                    
(“Executive”) and SYMMETRICOM,
INC. (the “Company”)
entered into an EXECUTIVE SEVERANCE BENEFITS AGREEMENT,
which was intended to provide Executive with certain compensation and benefits
upon the occurrence of specific events and the parties amended and restated
such agreement on September 11, 2007 (as amended and restated, the “Prior Agreement”). 
The Company and Executive wish to amend and restate the Prior Agreement
in its entirety, effective as of this
             day of
                    ,
2008 (the “Effective Date”),
pursuant to the terms and conditions set forth in this SECOND AMENDED AND RESTATED EXECUTIVE SEVERANCE
BENEFITS AGREEMENT (the “Agreement”).


 


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, including the Prior Agreement.


 


ARTICLE 2


 


SEVERANCE BENEFITS


 


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


 


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


 


(b)           Health Benefits.  Provided that Executive elects continued
coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended (“COBRA”), the Company shall pay the
premiums of Executive’s group health insurance coverage and Executive’s “Exec-U-Care”
or similar secondary health insurance coverage, including coverage for
Executive’s eligible dependents, until the earlier of the expiration of the
Severance Period or the applicable COBRA continuation period; provided, however, that the Company shall pay premiums for
Executive’s eligible dependents only for coverage for which those eligible
dependents were enrolled immediately prior to the Covered Termination; provided, further, that
Executive shall be solely responsible for all matters relating to [his/her]
continuation of coverage 


 


2

















 


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; provided, however, that any such payments that
would otherwise have been made before the first normal payroll payment date
falling on or after the First Payment Date shall be made on the First Payment
Date.


 


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


 


(c)           Covered Termination Stock Award
Acceleration.  In
the event of a Covered Termination of Executive’s employment within twelve (12)
months following the effective date of a Change of Control, the vesting and/or
exercisability of one hundred percent (100%) of Executive’s outstanding Stock
Awards shall be automatically accelerated on the date of termination.


 


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


 


3

















 


pursuant to federal COBRA law,
including, without limitation, the election of such coverage.  For the balance of the period that Executive
is entitled to coverage under federal COBRA law, if any, Executive shall be
entitled to maintain such coverage at Executive’s own expense.


 


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


 


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


 


2.4          Mitigation.  Except as otherwise specifically provided
herein, Executive shall not be required to mitigate damages or the amount of
any payment provided under this Agreement by seeking other employment or
otherwise, nor shall the amount of any payment provided for under this
Agreement be reduced by any compensation earned by Executive as a result of
employment by another employer or by any retirement benefits received by
Executive after the date of the Covered Termination.


 


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


 


ARTICLE 3


 


LIMITATIONS AND CONDITIONS ON BENEFITS


 


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


 


4

















 


later than fifty (50) days
following the date of the Covered Termination. 
Such Release shall specifically relate to all of Executive’s rights and
claims in existence at the time of such execution and shall confirm Executive’s
obligations under the Confidentiality Agreement.  It is understood that, as specified in the
applicable Release, Executive has a certain number of calendar days to consider
whether to execute such Release, and Executive may revoke such Release within
seven (7) calendar days after execution. 
In the event Executive does not execute such Release within the
applicable period, or if Executive revokes such Release within the subsequent
seven (7) day period, no benefits shall be payable under this Agreement.


 


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


 


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


 


ARTICLE 4


 


PARACHUTE PAYMENTS


 


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


 


5

















 


such firm declines to serve,
such other nationally recognized certified public accounting firm as may be
designated by the Executive (the “Accounting
Firm”).  The Accounting Firm
shall provide detailed supporting calculations both to the Company and the Executive
at such time as is requested by the Company. 
All fees and expenses of the Accounting Firm shall be borne solely by
the Company.  Any determination by the
Accounting Firm shall be binding upon the Company and the Executive.  For purposes of making the calculations
required by this Article 4, the Accounting Firm may make reasonable
assumptions and approximations concerning applicable taxes and may rely on
reasonable, good-faith interpretations concerning the application of Sections
280G and 4999 of the Code.


 


ARTICLE 5


 


DEFINITIONS


 


For purposes
of the Agreement, the following terms are defined as follows:


 


5.1          “Base Salary”
means Executive’s annual base salary as in effect during the last regularly
scheduled payroll period immediately preceding the Covered Termination.


 


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


 


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


 


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


 


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


 


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


 


(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).


 


6

















 


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


 


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


 


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


 


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


 


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


 


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


 


7

















 


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


 


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


 


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


 


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


 


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


 


provided,
however, that notwithstanding the foregoing the Executive may not resign
[his/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,
provided that such termination constitutes a Separation from Service.


 


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


 


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


 


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


 


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


 


5.13        “Separation
from Service” means a termination of Executive’s
employment with the Company which constitutes a separation from service within
the meaning of Section 


 


8

















 


409A of the Code and the
regulations promulgated thereunder, including Treasury Regulation Section 1.409A-1(h).


 


5.14        “Severance
Period” shall be determined as follows:


 


(a)           If,
as of the date of [his/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.


 


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


 


ARTICLE 6


 


GENERAL
PROVISIONS


 


6.1          Employment Status.  This Agreement does not constitute a contract
of employment or impose upon Executive any obligation to remain as an employee,
or impose on the Company any obligation (a) to retain Executive as an
employee, (b) to change the status of Executive as an at-will employee, or
(c) to change the Company’s policies regarding termination of employment.


 


6.2          Notices.  Any notices provided hereunder must be in
writing, and such notices or any other written communication shall be deemed
effective upon the earlier of personal delivery (including personal delivery by
facsimile) or the third day after mailing by first class mail to the Company at
its primary office location and to Executive at Executive’s address as listed
in the Company’s payroll records.  Any
payments made by the Company to Executive under the terms of this Agreement
shall be delivered to Executive either in person or at the address as listed in
the Company’s payroll records.


 


6.3          Severability.  Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in
any jurisdiction, such invalidity, illegality or unenforceability will not
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.


 


9

















 


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 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.


 


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6.9          Headings.  The headings of the Articles and Sections
hereof are inserted for convenience only and shall not be deemed to constitute
a part hereof nor to affect the meaning thereof.


 


6.10        Successors and Assigns.  This Agreement is intended to bind and inure
to the benefit of and be enforceable by Executive, and the Company, and any
surviving entity resulting from a Change of Control and upon any other person
who is a successor by merger, acquisition, consolidation or otherwise to the
business formerly carried on by the Company, and their respective successors,
assigns, heirs, executors and administrators, without regard to whether or not
such person actively assumes any rights or duties hereunder; provided, however, that Executive may not assign any duties
hereunder and may not assign any rights hereunder without the written consent
of the Company, which consent shall not be withheld unreasonably.


 


6.11        Choice of Law.  All questions concerning the construction,
validity and interpretation of this Agreement will be governed by the law of
the State of California, without regard to such state’s conflict of laws rules.


 


6.12        Non-Publication.  The parties mutually agree not to disclose
publicly the terms of this Agreement except to the extent that disclosure is
mandated by applicable law or regulation or to their respective advisors (e.g., attorneys, accountants).


 


6.13        Construction of Agreement.  In the event of a conflict between the text
of the Agreement and any summary, description or other information regarding
the Agreement, the text of the Agreement shall control.


 


(Signature
Page Follows)


 


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


 




	
  SYMMETRICOM, INC.

  	
   

  	
  [EXECUTIVE]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
						






 


 


Exhibit A: Release (Individual Termination)


Exhibit B: Release (Group Termination)


 


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EXHIBIT A


 


RELEASE

(INDIVIDUAL TERMINATION)


 


Certain capitalized terms used in this
Release are defined in the Second Amended and Restated 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:

  	
   

  



 


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EXHIBIT B


 


RELEASE

(GROUP TERMINATION)


 


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


 


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


 


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


 


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


 


1

















 


I acknowledge that I am knowingly and
voluntarily waiving and releasing any rights I may have under ADEA.  I also acknowledge that the consideration
given under the Agreement for the waiver and release in the preceding paragraph
hereof is in addition to anything of value to which I was already
entitled.  I further acknowledge that I
have been advised by this writing, as required by the ADEA, that: 
(A) my waiver and release do not apply to any rights
or claims that may arise on or after the date I execute this Release; (B) I have the
right to consult with an attorney prior to executing this Release; (C) I have
forty-five (45) days to consider this Release (although I may choose to
voluntarily execute this Release earlier); (D) I have seven (7) days
following the execution of this Release by the parties to revoke the Release; (E) this Release
shall not be effective until the date upon which the revocation period has
expired, which shall be the eighth day after this Release is executed by me;
and (F) I have received with this Release a detailed list of the job
titles and ages of all employees who were terminated in this group termination
and the ages of all employees of the Company in the same job classification or
organizational unit who were not terminated.


 


	
   

  	
  [EXECUTIVE]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Date:

  	
   

  



 


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