Exhibit 10.1


 


AMENDED AND RESTATED


EXECUTIVE SEVERANCE
BENEFITS AGREEMENT


 


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


 


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


 


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


 


(a)           Base
Salary. The Company shall pay to Executive an amount
equal to twelve (12) months’ Base Salary. Such severance amount shall be paid over
a period of twelve (12) months commencing on the date of termination in substantially
equal installments in accordance with the Company’s regular payroll practices and
shall be subject to all required tax withholding.


 


(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.


 


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


 


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


 


(e)           No Duplication of
Benefits. The payments and benefits provided for in
this Section 2.2 shall only be payable in the event of a Covered Termination of
Executive’s employment within twelve (12) months following the effective date
of a Change of Control. In the event of a Covered Termination of Executive’s
employment prior to or more than twelve (12) 


 


3

















 


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. 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.


 


4

















 


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 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 (as such
term is defined in the Treasury Regulations issued under Section 409A of the
Code) or (b) the date of Executive’s death. Upon 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.


 


ARTICLE 4



PARACHUTE PAYMENTS


 


4.1          Parachute Payment Cut-Back. Anything
in this Agreement to the contrary notwithstanding, in the event it shall be
determined that any Payment under this Agreement would, when combined with all
other Payments Executive receives from the Company or any successor or parent
or subsidiary thereof, but for this Article 4, be considered an “excess
parachute payment” under Section 280G of the Code, then such Payments shall be
reduced (with cash payments being reduced before Stock Award compensation) as
would result in no portion of the payments being considered “excess parachute
payments” under Section 280G of the Code.


 


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


 


5

















 


ARTICLE 5



DEFINITIONS


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


6

















 


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


 


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


 


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


 


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


 


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


 


5.6          “Company”
means Symmetricom, 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;


 


7

















 


(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.


 


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


 


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


 


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


 


5.12        “Severance
Period” shall be determined as follows:


 


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


 


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


 


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


 


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


 


8

















 


ARTICLE 6


 


GENERAL
PROVISIONS


 


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


 


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


 


6.3          Severability. Whenever
possible, each provision of this Agreement will be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of this
Agreement is held to be invalid, illegal or unenforceable in any respect under
any applicable law or rule in any jurisdiction, such invalidity, illegality or
unenforceability will not affect any other provision or any other jurisdiction,
but this Agreement will be reformed, construed and enforced in such
jurisdiction as if such invalid, illegal or unenforceable provisions had never
been contained herein.


 


6.4          Waiver. If
either party should waive any breach of any provisions of this Agreement, [he/she]
or it shall not thereby be deemed to have waived any preceding or succeeding
breach of the same or any other provision of this Agreement.


 


6.5          Arbitration. Any
dispute, claim or controversy based on, arising out of or relating to Executive’s
employment or this Agreement shall be settled by final and binding arbitration
in Santa Clara County, California, before a single neutral arbitrator in
accordance with the National Rules for the Resolution of Employment Disputes
(the “Rules”) of the American Arbitration
Association, and judgment on the award rendered by the arbitrator may be
entered in any court having jurisdiction. Arbitration may be compelled pursuant
to the California Arbitration Act (Code of Civil Procedure §§ 1280 et  seq.).
If the parties are unable to agree upon an arbitrator, one shall be appointed
by the AAA in accordance with its Rules. Each party shall pay the fees of its
own attorneys, the expenses of its witnesses and all other expenses connected
with presenting its case; however,
Executive and the Company agree that, to the extent permitted by law, the
arbitrator may, in [his/her] discretion, award reasonable attorneys’ fees to
the prevailing party. Other costs of the arbitration, including the cost of any
record or transcripts of the arbitration, AAA’s administrative fees, the fee of
the arbitrator, and all other fees and 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 


 


9

















 


relief, including, without limitation,
injunctive relief, in any court of competent jurisdiction pursuant to
California Code of Civil Procedure § 1281.8 or any similar statute of an
applicable jurisdiction. Seeking any such relief shall not be deemed to be a
waiver of such party’s right to compel arbitration. Both Executive and the
Company expressly waive their right to a jury trial. Pursuant to California
Civil Code Section 1717, each party warrants that it was represented by counsel
in the negotiation and execution of this Agreement, including the attorneys’
fees provision herein.


 


6.6          Complete Agreement. This
Agreement, including Exhibit A and Exhibit B, constitutes the entire agreement
between Executive and the Company and is the complete, final, and exclusive
embodiment of their agreement with regard to this subject matter, wholly
superseding all written and oral agreements with respect to severance benefits
to Executive in the event of employment termination. It is entered into without
reliance on any promise or representation other than those expressly contained
herein. Notwithstanding anything herein to the contrary, this Agreement shall
not supersede any indemnification agreement between Executive and the Company.


 


6.7          Amendment or
Termination of Agreement. This Agreement may be
changed or terminated only upon the mutual written consent of the Company and
Executive. The written consent of the Company to a change or termination of
this Agreement must be signed by an executive officer of the Company after such
change or termination has been approved by the Board.


 


6.8          Counterparts. This
Agreement may be executed in separate counterparts, any one of which need not
contain signatures of more than one party, but all of which taken together will
constitute one and the same Agreement.


 


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


 


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


 


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


 


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).


 


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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)


 


12

















 


EXHIBIT A


 


RELEASE

(INDIVIDUAL TERMINATION)


 


Certain capitalized terms used in this
Release are defined in the 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 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:

  	
   

  



 


2