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8-K - FORM 8-K - TRIDENT MICROSYSTEMS INC | f57655e8vk.htm |
EX-10.49 - EX-10.49 - TRIDENT MICROSYSTEMS INC | f57655exv10w49.htm |
EX-10.50 - EX-10.50 - TRIDENT MICROSYSTEMS INC | f57655exv10w50.htm |
Exhibit 10.48
TRIDENT MICROSYSTEMS, INC.
AMENDED AND RESTATED EXECUTIVE RETENTION AND
SEVERANCE PLAN
AMENDED AND RESTATED EXECUTIVE RETENTION AND
SEVERANCE PLAN
1. Establishment and Purpose
1.1 Establishment. The Trident Microsystems, Inc. Executive Retention and Severance Plan (the
Plan) was initially established by the Compensation Committee of the Board of Directors of
Trident Microsystems, Inc. (the Committee), effective January 23, 2008. The Plan is hereby
amended and restated in its entirety by the Committee effective December 15, 2010 (the Effective
Date). This Amended and Restated Executive Retention and Severance Plan is referred to hereafter
as the Amended Plan. As of the Effective Date, the Plan is of no further force or legal effect,
except as to any Plan Participants who fail to execute a Participation Agreement pursuant to the
Amended Plan.
1.2 Purpose. The Company draws upon the knowledge, experience and advice of the executive
officers and key employees of the Company and its subsidiaries in order to manage its business for
the benefit of the Companys stockholders. Due to the widespread awareness of the possibility of
mergers, acquisitions and other strategic alliances in the Companys industry, the topic of
compensation and other employee benefits in the event of a Change in Control is an issue in
competitive recruitment and retention efforts. The Committee recognizes that the possibility or
pending occurrence of a Change in Control could lead to uncertainty regarding the consequences of
such an event and could adversely affect the Companys ability to attract, retain and motivate
executive officers and key employees. The Committee has therefore determined that it is in the
best interests of the Company and its stockholders to provide for the continued dedication of
executive officers and key employees notwithstanding the possibility or occurrence of a Change in
Control by establishing this Amended Plan to provide designated executive officers and key
employees with enhanced financial security in the event of a Change in Control, as well as to
provide those individuals with appropriate severance payments and benefits in the event of the
termination of their employment under certain circumstances. The purpose of this Plan is to
provide its Participants with specified compensation and benefits in the event of a termination of
their employment under the circumstances specified herein. The Company intends that all payments
pursuant to the Amended Plan be exempt from or comply with all applicable requirements of Section
409A (as defined below), and the Amended Plan shall be so construed.
2. Definitions and Construction
2.1 Definitions. Whenever used in this Amended Plan, the following terms shall have the
meanings set forth below:
(a) Annual Bonus Rate means an amount equal to the aggregate of all annual incentive bonuses
that would be earned by the Participant at the targeted annual rate (assuming attainment of 100% of
all applicable performance goals) under the terms of the programs, plans or agreements providing
for such bonuses in which the Participant was
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participating for the fiscal year of the Company in which the Termination Upon a Change in
Control occurs. For this purpose, annual incentive bonuses shall not include signing bonuses or
other nonrecurring cash incentive awards.
(b) Base Salary Rate in the case of a Termination Upon a Change in Control means the greater
of the Participants (i) monthly base salary rate in effect immediately prior to the Participants
Termination Upon a Change in Control, or (ii) monthly base salary rate in effect immediately prior
to the Change in Control, in either case without giving effect to any reduction in the
Participants base salary rate that constitutes Good Reason. Base Salary Rate in the case of a
Termination Not in Connection With a Change in Control means the Participants monthly base salary
rate in effect immediately prior to the Participants Termination Not in Connection With a Change
in Control. For the purposes of this subsection (b), base salary does not include any bonuses,
commissions, fringe benefits, car allowances, other irregular payments or any other compensation
except base salary.
(c) Board means the Board of Directors of the Company.
(d) Cause means the occurrence of any of the following: (1) the Participants theft,
dishonesty, misconduct, breach of fiduciary duty for personal profit, or falsification of any
documents or records of the Company Group; (2) the Participants material failure to abide by the
code of conduct or other policies (including, without limitation, policies relating to
confidentiality and reasonable workplace conduct) of any member of the Company Group; (3)
misconduct by the Participant within the scope of Section 304 of the Sarbanes-Oxley Act of 2002 as
a result of which of the Company is required to prepare an accounting restatement; (4) the
Participants unauthorized use, misappropriation, destruction or diversion of any tangible or
intangible asset or corporate opportunity of a member of the Company Group (including, without
limitation, the Participants improper use or disclosure of the confidential or proprietary
information of a member of the Company Group); (5) any intentional act by the Participant which has
a material detrimental effect on the reputation or business of a member of the Company Group; (6)
the Participants repeated failure or inability to perform any reasonable assigned duties after
written notice from a member of the Company Group of, and a reasonable opportunity to cure, such
failure or inability; (7) any material breach by the Participant of any employment, non-disclosure,
non-competition, non-solicitation or other similar agreement between the Participant and a member
of the Company Group, which breach is not cured pursuant to the terms of such agreement; or (8) the
Participants conviction (including any plea of guilty or nolo contendere) of any criminal act
involving fraud, dishonesty, misappropriation or moral turpitude, or which impairs the
Participants ability to perform his or her duties with a member of the Company Group.
(e) Change in Control means, except as otherwise provided in the Participation Agreement
applicable to a given Participant, the occurrence of any of the following:
(1) any person (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange
Act of 1934, as amended (the Exchange Act)), other than a trustee or other fiduciary holding
securities of the Company under an employee benefit plan of the Company, acquires (or has acquired
during the 12-month period ending on the date of the
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most recent acquisition by such person) beneficial ownership (as defined in Rule 13d-3
promulgated under the Exchange Act), directly or indirectly, of stock of the Company representing
more than percent (50%) of the total combined voting power of the Companys then-outstanding stock
entitled to vote generally in the election of directors;
(2) the Company is party to a merger or consolidation which results in the holders of the
voting stock of the Company outstanding immediately prior thereto failing to retain immediately
after such merger or consolidation direct or indirect beneficial ownership of more than fifty
percent (50%) of the total combined voting power of the stock entitled to vote generally in the
election of directors of the Company or the surviving entity outstanding immediately after such
merger or consolidation;
(3) the sale or disposition of all or substantially all of the Companys assets or
consummation of any transaction having similar effect (other than a sale or disposition to one or
more subsidiaries of the Company); or
(4) a change in the composition of the Board within any consecutive 12-month period as a
result of which fewer than a majority of the directors are Incumbent Directors;
provided, however, that a Change in Control shall be deemed not to include a transaction
described in subsections (1) or (2) of this Section in which a majority of the members of the board
of directors of the continuing, surviving or successor entity, or parent thereof, immediately after
such transaction is comprised of directors who were members of the Board immediately prior to
consummation of such transaction. Notwithstanding the foregoing, to the extent that any amount
constituting Section 409A Deferred Compensation would become payable under this Amended Plan by
reason of a Change in Control, such amount shall become payable only if the event constituting a
Change in Control would also constitute a change in ownership or effective control of the Company
or a change in the ownership of a substantial portion of the assets of the Company within the
meaning of Section 409A.
(f) Change in Control Period means (1) with respect to a Participant who is the Chief
Executive Officer, a period commencing upon the consummation of a Change in Control Period and
ending on the date occurring twenty-four (24) months thereafter, and (2) with respect to a
Participant who is an Executive Officer (other than the Chief Executive Officer), a period
commencing upon the consummation of a Change in Control and ending on the date occurring eighteen
(18) months thereafter.
(g) Chief Executive Officer means (1) for purposes of a Termination Upon a Change in
Control, the individual who, immediately prior to the consummation of a Change in Control, serves
as the Companys Chief Executive Officer appointed by the Board, and (2) for purposes of a
Termination Not in Connection With a Change in Control, any individual who, at the time of such
Termination, serves as the Companys Chief Executive Officer appointed by the Board.
(h) Code means the Internal Revenue Code of 1986, as amended, or any successor thereto and
any applicable regulations promulgated thereunder.
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(i) Committee means the Compensation Committee of the Board.
(j) Company means Trident Microsystems, Inc., a Delaware corporation, and, following a
Change in Control, a Successor that agrees to assume all of the terms and provisions of this Plan
or a Successor which otherwise becomes bound by operation of law to this Amended Plan.
(k) Company Group means the group consisting of the Company and each present or future
parent and subsidiary corporation or other business entity thereof.
(l) Disability means a Participants permanent and total disability within the meaning of
Section 22(e)(3) of the Code.
(m) Equity Award means any Option, Restricted Stock, Restricted Stock Units, performance
shares, performance units or other stock-based compensation award granted by the Company or any
other Company Group member to a Participant, including any such award which is assumed by, or for
which a replacement award is substituted by, the Successor or any other member of the Company Group
in connection with a Change in Control.
(n) Executive Officer means (1) for purposes of a Termination Upon a Change in Control, an
individual who, immediately prior to the consummation of a Change in Control, serves as an
executive officer of the Company appointed by the Board, and (2) for purposes of a Termination Not
in Connection With a Change in Control, any individual who, at the time of such Termination, serves
as an executive officer of the Company appointed by the Board.
(o) Good Reason means the occurrence of any of the following conditions without the
Participants informed written consent, which condition(s) remain(s) in effect thirty (30) days
after written notice to the Company from the Participant of such condition(s) and which notice must
have been given within ninety (90) days following the initial occurrence of such condition(s):
(1) a material diminution in the Participants authority, duties or responsibilities, causing
the Participants position to be of materially lesser rank or responsibility within the Company or
an equivalent business unit of its parent, as measured against the Participants authority, duties
or responsibilities at any time during the ninety (90) day period prior to the date on which the
required notice of Good Reason is delivered by the Participant;
(2) a material diminution in the authority, duties or responsibilities of the officer to whom
the Participant is required to report, causing such officers position to be of materially lesser
rank or responsibility within the Company or an equivalent business unit of its parent, as measured
against the authority, duties and responsibilities of the officer to whom the Participant was
required to report at any time during the ninety (90) day period prior to the date on which the
required notice of Good Reason is delivered by the Participant, including a requirement that the
Participant report to a corporate officer or employee instead of reporting directly to the board of
directors of the Company Group or the Successor;
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(3) a material decrease in the Participants Base Salary Rate or Annual Bonus Rate (subject to
applicable performance requirements with respect to the actual amount of the Annual Bonus Rate
earned and paid), other than any such material decrease that occurs in connection with a decrease
that is imposed on all employees of the Company Group at the time of such decrease;
(4) a material decrease in the size of the budget within the Company Group over which the
Participant has responsibility, measured against the budget within the Company Group over which the
Participant had responsibility at any time during the ninety (90) day period prior to the date on
which the required notice of Good Reason is delivered by the Participant;
(5) the relocation of the Participants work place for the Company Group to a location that
increases the regular commute distance between the Participants residence and work place by more
than thirty (30) miles (one-way); or
(6) any material breach of this Amended Plan by the Company or its Successor with respect to
the Participant.
The existence of Good Reason shall not be affected by the Participants temporary incapacity due to
physical or mental illness not constituting a Disability. The Participants continued employment
for a period not exceeding one hundred eighty (180) days following the occurrence of any condition
constituting Good Reason shall not constitute consent to, or a waiver of rights with respect to,
such condition. For the purposes of any determination regarding the existence of Good Reason
hereunder, any claim by the Participant that Good Reason exists shall be presumed to be correct
unless the Company establishes to the Board that Good Reason does not exist, and the Board, acting
in good faith, affirms such determination by a vote of not less than two-thirds of its entire
membership (excluding the Participant if the Participant is a member of the Board).
(p) Incumbent Director means a director who either (1) is a member of the Board as of the
Effective Date, or (2) is elected, or nominated for election, to the Board with the affirmative
votes of at least a majority of the Incumbent Directors at the time of such election or nomination,
but (3) was not elected or nominated in connection with an actual or threatened proxy contest
relating to the election of directors of the Company.
(q) Key Employee means an individual, other than the Chief Executive Officer or an Executive
Officer, who has been designated by the Board or Committee as eligible to participate in the
Amended Plan.
(r) Option means any option to purchase shares of the capital stock of the Company or of any
other member of the Company Group granted to a Participant by the Company or any other Company
Group member, whether granted before or after a Change in Control, including any such option which
is assumed by, or for which a replacement option is substituted by, the Successor or any other
member of the Company Group in connection with a Change in Control.
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(s) Participant means each Chief Executive Officer, Executive Officer, and Key Employee
designated by the Committee to participate in the Amended Plan, provided such individual has
executed a Participation Agreement.
(t) Participation Agreement means an Agreement to Participate in the Amended Plan in the
form attached hereto as Exhibit A or in such other form as the Committee may approve from
time to time; provided, however, that, after a Participation Agreement has been entered into
between a Participant and the Company, it may be modified only by a supplemental written agreement
executed by both the Participant and the Company. The terms of such forms of Participation
Agreement need not be identical with respect to each Participant. For example, a Participation
Agreement may limit the duration of a Participants participation in the Amended Plan or may modify
the definitions of Change in Control, Cause, or Good Reason with respect to a Participant.
(u) Performance-Based Equity Award means an Equity Award granted to a Participant prior to a
Change in Control, the vesting or earning of which is conditioned in whole or in part upon the
achievement of one or more performance goals (e.g., the attainment of a target stock price or
achievement of a corporate financial goal), notwithstanding that the vesting or earning of such
Equity Award may also be conditioned upon the continued performance of services by the Participant
for the Company Group.
(v) Release means a general release of all known and unknown claims against the Company
Group and its affiliates and their stockholders, directors, officers, employees, agents, successors
and assigns substantially in the form attached hereto as Exhibit B (General Release of
Claims [Age 40 and over]) or Exhibit C (General Release of Claims [Under age 40]),
whichever is applicable, with any modifications thereto determined by legal counsel to the Company
Group to be necessary or advisable to comply with applicable law or to accomplish the intent of
Section 10 (Exclusive Remedy) hereof.
(w) Restricted Stock means any compensatory award of shares of the capital stock of the
Company or of any other member of the Company Group granted to a Participant by the Company or any
other Company Group member, whether such shares are granted or acquired before or after a Change in
Control, including any shares issued in exchange for any such shares by the Successor or any other
member of the Company Group in connection with a Change in Control.
(x) Restricted Stock Units mean any compensatory award of rights to receive shares of the
capital stock or cash in an amount measured by the value of shares of the capital stock of the
Company or of any other member of the Company Group granted to a Participant by the Company or any
other Company Group member, whether such rights are granted before or after a Change in Control,
including any such rights assumed by, or issued in exchange for any such rights by, the Successor
or any other member of the Company Group in connection with a Change in Control.
(y) Section 409A means Section 409A of the Code and any applicable regulations and other
administrative guidance promulgated thereunder.
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(z) Section 409A Deferred Compensation means compensation and benefits provided by the
Amended Plan that constitute deferred compensation subject to and not exempted from the
requirements of Section 409A.
(aa) Separation from Service means a separation from service within the meaning of Section
409A.
(bb) Service-Based Equity Award means an Equity Award granted to a Participant prior to a
Change in Control, the vesting or earning of which is conditioned solely upon the continued
performance of services by the Participant for the Company Group.
(cc) Severance Benefit Period means (1) with respect to a Participant who is the Chief
Executive Officer (i) for purposes of Section 5 of this Amended Plan, a period of twenty-four (24)
months, and (ii) for purposes of Section 6 of this Amended Plan, a period of twelve (12) months,
(2) with respect to a Participant who is an Executive Officer (other than the Chief Executive
Officer), a period of twelve (12) months, and (3) with respect to a Participant who is a Key
Employee, a period as determined by the Committee and set forth in such Participants Participation
Agreement.
(dd) Specified Employee means a specified employee within the meaning of Section 409A.
(ee) Successor means any successor in interest to substantially all of the business and/or
assets of the Company.
(ff) Termination means the termination of a Participants employment by the Company Group,
or a resignation by a Participant from all employment with the Company Group. Upon a Participants
Termination for any reason (including, but not limited to, his/her Termination Not in Connection
With a Change in Control or Termination Upon a Change in Control), he/she shall have the right to
exercise his/her vested Option(s) for the post-Termination exercise period set forth in the
applicable Company Option plan(s)/agreement(s), or any longer exercise period set forth in any
separate employment or other agreement between the Participant and the Company (including without
limitation any Participation Agreement).
(gg) Termination Not in Connection With a Change in Control means a Termination of the
Participant by the Company Group for any reason other than Cause outside the Change in Control
Period. A Termination Not in Connection With a Change in Control will not include any Termination
which is (i) for Cause, (ii) a result of the Participants death or Disability, or (iii) a result
of the Participants voluntary termination of employment for any reason.
(hh) Termination Upon a Change in Control means the occurrence of any of the following
events during the Change in Control Period:
(1) termination by the Company Group of the Participants employment for any reason other than
Cause; or
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(2) the Participants resignation for Good Reason from all capacities in which the Participant
is then rendering service to the Company Group, provided that such resignation occurs no later than
one hundred eighty (180) days following the initial occurrence of the condition constituting Good
Reason;
provided, further, however, that Termination Upon a Change in Control shall not include any
termination of the Participants employment which is (i) for Cause, (ii) a result of the
Participants death or Disability, or (iii) a result of the Participants voluntary termination of
employment other than for Good Reason.
2.2 Construction. Captions and titles contained herein are for convenience only and shall not
affect the meaning or interpretation of any provision of the Amended Plan. Except when otherwise
indicated by the context, the singular shall include the plural and the plural shall include the
singular. Use of the term or is not intended to be exclusive, unless the context clearly
requires otherwise.
3. Eligibility
The Committee shall designate those Executive Officers and Key Employees of the Company or any
other member of the Company Group who shall be eligible to become Participants in the Amended Plan.
To become a Participant, the designated Executive Officer or Key Employee must execute a
Participation Agreement on or after the Effective Date.
4. Treatment of Equity Awards Upon a Change in Control
4.1 Acceleration of Vesting Upon Non-Assumption of Service-Based Equity Awards.
Notwithstanding any provision to the contrary contained in any plan or agreement evidencing a
Service-Based Equity Award, in the event of a Change in Control in which the surviving, continuing,
successor, or purchasing corporation or other business entity or parent thereof, as the case may be
(the Acquiring Corporation), does not assume or continue the Companys rights and obligations
under the then-outstanding Service-Based Equity Award or substitute for such Service-Based Equity
Award a substantially equivalent equity award for the Acquiring Corporations stock, then the
vesting and exercisability of such Service-Based Equity Award which is not assumed, continued or
substituted for shall be accelerated in full effective immediately prior to but conditioned upon
the consummation of the Change in Control, provided that the Participant remains an employee or
other service provider with the Company Group immediately prior to the Change in Control.
4.2 Acceleration of Vesting of Performance-Based Equity Awards. Notwithstanding any provision
to the contrary contained in any plan or agreement evidencing a Performance-Based Equity Award, in
the event of a Change in Control the vesting and exercisability of such Performance-Based Equity
Awards shall be accelerated in full immediately prior to but conditioned upon the consummation of
the Change in Control (assuming for the purpose of determining the extent of such acceleration, if
applicable, that one hundred percent (100%) of the target level of performance has been achieved),
provided that the Participant remains an employee or other service provider with the Company Group
immediately prior to the Change in Control.
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The provisions of this Section 4 with respect to all amounts that constitute Section 409A Deferred
Compensation shall be subject to, limited by and construed in accordance with the requirements of
Section 409A and Section 8.2 below.
5. Termination Upon a Change in Control
In the event of a Participants Termination Upon a Change in Control:
5.1 Accrued Obligations. The Participant shall be entitled to receive:
(a) all salary, commissions, bonuses (including any annual incentive bonuses earned by the
Participant for the fiscal year prior to the year of the Participants Termination which remain
unpaid as of the date of such Termination) and accrued but unused vacation earned through the date
of the Participants termination of employment;
(b) reimbursement within ten (10) business days of submission, within thirty (30) days
following the Participants termination of employment, of proper expense reports of all expenses
reasonably and necessarily incurred by the Participant in connection with the business of the
Company Group prior to his or her termination of employment; and
(c) the benefits, if any, under any Company Group retirement plan, nonqualified deferred
compensation plan or stock-based compensation plan or agreement (other than any such plan or
agreement pertaining to an Equity Award whose treatment is prescribed by Section 4 or Section
5.2(c)), health benefits plan or other Company Group benefit plan to which the Participant may be
entitled pursuant to the terms of such plans or agreements.
The compensation and benefits described in this Section 5.1 are hereafter referred to as the
Accrued Obligations.
5.2 Severance Benefits. Provided that the Participant executes the Release applicable to such
Participant and such Release becomes effective in accordance with its terms prior to the applicable
date on which payment is to be made, the Participant shall be entitled to receive the following
severance payments and benefits:
(a) Salary and Bonus. Subject to Section 8.2, the Company shall pay to the Participant in a
lump sum cash payment on the sixtieth (60th) day following the Participants Termination Upon a
Change in Control an amount equal to the sum of:
(1) the product of the Participants Severance Benefit Period and the Participants Base
Salary Rate; and
(2) (i) for a Participant who is the Chief Executive Officer, two hundred percent (200%) of
the Participants Annual Bonus Rate, (ii) for a Participant who is an Executive Officer (other than
the Chief Executive Officer), one hundred percent (100%) of the Participants Annual Bonus Rate and
(iii) for a Participant who is a Key Employee, such percentage of the Participants Annual Bonus
Rate as is determined by the Committee and set forth in such Participants Participation Agreement;
and
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(b) Health and Life Insurance Benefits. Subject to Section 8.2, for the period commencing
immediately following the Participants Termination Upon a Change in Control and continuing for the
duration of the Severance Benefit Period applicable to the Participant, the Company shall arrange
to provide the Participant and his or her dependents with health benefits (including medical and
dental) and life insurance substantially similar to that provided to the Participant and his or her
dependents immediately prior to the date of such termination of employment, including the
continuation of Exec-U-Care or any similar policy in force for the benefit of the Participant
immediately prior to the Termination Upon a Change in Control or shall reimburse the Participant
for the cost of obtaining such benefits to the extent described below. Such benefits shall be
provided to the Participant at the same premium cost to the Participant and at the same coverage
level as in effect as of the Participants Termination Upon a Change in Control; provided, however,
that the Participant shall be subject to any change in the premium cost and/or level of coverage
applicable generally to all employees holding the position or comparable position with the Company
Group which the Participant held immediately prior to the Termination Upon a Change in Control.
The Company may satisfy its obligation to provide a continuation of health benefits, other than
continuation of the Exec-U-Care or similar policy, by paying that portion of the Participants
premiums required under the Consolidated Omnibus Reconciliation Act of 1985 (COBRA) that exceeds
the amount of premiums that the Participant would have been required to pay for continuing coverage
had he or she continued in employment. If the Company is not reasonably able to continue such
coverage under the Companys health benefit plans, the Company shall provide substantially
equivalent coverage under other sources or will reimburse (without a tax gross-up) the Participant
for premiums (in excess of the Participants premium cost described above) incurred by the
Participant to obtain his or her own such coverage. If the Participant and/or the Participants
dependents become eligible to receive such coverage under another employers health benefit plans
during the applicable Severance Benefit Period, the Participant shall report such eligibility to
the Company, and the Companys obligations under this subsection shall be secondary to the coverage
provided by such other employers plans. For the balance of any period in excess of the applicable
Severance Benefit Period during which the Participant is entitled to continuation coverage under
COBRA, the Participant shall be entitled to maintain coverage for himself or herself and the
Participants eligible dependents at the Participants own expense; and
(c) Acceleration of Vesting of Equity Awards. Notwithstanding any provision to the contrary
contained in any plan or agreement evidencing an Equity Award granted to a Participant but, subject
to Section 8.2, the vesting, exercisability and settlement of each of the Participants outstanding
Equity Awards which were not otherwise accelerated pursuant to Section 4 shall be accelerated in
full effective as of the date on which the Release becomes effective so that each Equity Award held
by the Participant shall be immediately exercisable and fully vested (and, in the case of
Restricted Stock Units, performance shares, performance units and similar stock-based compensation,
shall be settled in full), as of the date on which the Release becomes effective (provided,
however, that with respect to Section 409A Deferred Compensation, the effective date of the vesting
and settlement shall be the date which is sixty (60) days following the Participants Termination
Upon a Change in Control).
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5.3 Indemnification; Insurance.
(a) In addition to any rights a Participant may have under any indemnification agreement
previously entered into between the Company and such Participant (a Prior Indemnity Agreement),
from and after the date of the Participants Termination Upon a Change in Control, the Company
shall indemnify and hold harmless the Participant against any costs or expenses (including
attorneys fees), judgments, fines, losses, claims, damages or liabilities incurred in connection
with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative
or investigative, by reason of the fact that the Participant is or was a director, officer,
employee or agent of the Company Group, or is or was serving at the request of the Company Group as
a director, officer, employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, whether asserted or claimed prior to, at or after the date of the Participants
termination of employment, to the fullest extent permitted under applicable law, and the Company
shall also advance fees and expenses (including attorneys fees) as incurred by the Participant to
the fullest extent permitted under applicable law. In the event of a conflict between the
provisions of a Prior Indemnity Agreement and the provisions of this Plan, the Participant may
elect which provisions shall govern.
(b) For a period of six (6) years from and after the date of the Termination Upon a Change in
Control of a Participant who was an officer and/or director of the Company at any time prior to
such termination of employment, the Company shall maintain a policy of directors and officers
liability insurance for the benefit of such Participant which provides him/her with coverage no
less favorable than that provided for the Companys continuing officers and directors.
6. Termination Not in Connection With A Change in Control
In the event of a Participants Termination Not in Connection With a Change in Control:
6.1 Accrued Obligations. The Participant shall be entitled to receive the Accrued
Obligations.
6.2 Severance Benefits. Provided that the Participant executes the Release applicable to such
Participant and such Release becomes effective in accordance with its terms prior to the applicable
date on which payment is to be made, the Participant shall be entitled to receive the following
severance payments and benefits:
(a) Salary (and Bonus for CEO Only). Subject to Section 8.2, the Company shall pay to the
Participant in a lump sum cash payment on the sixtieth (60th) day following the Participants
Termination Not in Connection With a Change in Control an amount equal to (1) the sum of the
product of the Participants Severance Benefit Period and the Participants Base Salary Rate; and
(2) only for a Participant who is the Chief Executive Officer, one hundred percent (100%) of
his/her Annual Bonus Rate; and
(b) Group Health Insurance Continuation Benefits (For U.S. based Participants only). Subject
to Section 8.2, and only with respect to Participants employed by the Company in the United States,
for the period commencing immediately following the
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Participants Termination Not in Connection With a Change in Control and continuing for the
duration of the Severance Benefit Period applicable to the Participant, the Company shall pay the
Participants premiums required to continue the group health insurance coverage for the Participant
and his/her dependants under the Consolidated Omnibus Reconciliation Act of 1985 (COBRA) (less
the amount of the premiums that the Participant would have been required to pay for continuing
coverage had he or she continued in employment). The Companys obligations under this Section 3(b)
are subject to the Participants timely election to obtain continuation insurance coverage under
COBRA, and the Companys obligations under this Section 3(b) will terminate if the Participant
becomes eligible to receive group health insurance coverage under another employers health benefit
plans during the applicable Severance Benefit Period. (The Participant shall promptly report such
eligibility to the Company.) For the balance of any period in excess of the applicable Severance
Benefit Period during which the Participant is entitled to continuation coverage under COBRA, the
Participant shall be entitled to maintain coverage for himself or herself and the Participants
eligible dependents at the Participants own expense; and
(c) Acceleration of Vesting of Equity Awards (For CEO Only). Notwithstanding any provision to
the contrary contained in any plan or agreement evidencing an Equity Award granted to the Chief
Executive Officer but, subject to Section 8.2, the vesting, exercisability and settlement of each
of the Chief Executive Officers outstanding Equity Awards which were not otherwise accelerated
pursuant to Section 4 shall be accelerated with respect to the unvested portion of such Equity
Awards that would have become vested during the one-year period following the date of his/her
Termination Not in Connection With a Change in Control as of the date on which the Release becomes
effective so that the vested portion of each Equity Award held by the Chief Executive Officer shall
be immediately exercisable and fully vested (and, in the case of Restricted Stock Units,
performance shares, performance units and similar stock-based compensation, shall be settled in
full), as of the date on which the Release becomes effective (provided, however, that with respect
to Section 409A Deferred Compensation, the effective date of the vesting and settlement shall be
the date which is sixty (60) days following the Eligible Employees Termination Not in Connection
With a Change in Control).
7. Other Termination
In the event of a Participants Termination other than a Termination Upon a Change in Control
or a Termination Not in Connection With a Change in Control, he/she shall not be entitled to any
severance pay or other benefits pursuant to this Amended Plan.
8. Certain Federal Tax Considerations
8.1 Federal Excise Tax Under Section 4999 of the Code.
(a) Treatment of Excess Parachute Payments. In the event that any payment or benefit received
or to be received by a Participant pursuant to this Plan or otherwise payable to the Participant
(collectively, the Payments) would subject the Participant to any excise tax pursuant to Section
4999 of the Code, or any similar or successor provision (the Excise Tax), due to the
characterization of the Payments as excess parachute payments under Section 280G of the Code or
any similar or successor provision (Section 280G), then,
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notwithstanding the other provisions of this Amended Plan, the amount of such Payments will
not exceed the amount which produces the greatest after-tax benefit to the Participant.
(b) Determination of Amounts. All computations and determinations called for by this Section
8.1 shall be promptly determined and reported in writing to the Company and the Participant by
independent public accountants or other independent advisors selected by the Company and reasonably
acceptable to the Participant (the Accountants), and all such computations and determinations
shall be conclusive and binding upon the Participant and the Company. For the purposes of such
determinations, the Accountants may rely on reasonable, good faith interpretations concerning the
application of Sections 280G and 4999 of the Code. The Company and the Participant shall furnish
to the Accountants such information and documents as the Accountants may reasonably request in
order to make their required determinations. The Company shall bear all fees and expenses charged
by the Accountants in connection with such services.
8.2 Compliance with Section 409A. Notwithstanding any other provision of the Amended Plan to
the contrary, the provision, time and manner of payment or distribution of all compensation and
benefits provided by the Amended Plan that constitute Section 409A Deferred Compensation shall be
subject to, limited by and construed in accordance with the requirements of Section 409A, including
the following:
(a) Separation from Service. Payments and benefits constituting Section 409A Deferred
Compensation otherwise payable or provided pursuant to Sections 5, 6, or 8.1 upon a Participants
Termination shall be paid or provided only at the time of a termination of Participants employment
which constitutes a Separation from Service.
(b) Six-Month Delay Applicable to Specified Employees. Payments and benefits constituting
Section 409A Deferred Compensation to be paid or provided pursuant to Sections 5, 6, or 8.1
pursuant to the Separation from Service of a Participant who is a Specified Employee shall be paid
or provided commencing on the later of (1) the date that is six (6) months and one (1) day after
the date of such Separation from Service or, if earlier, the date of death of the Participant (in
either case, the Delayed Payment Date), or (2) the date or dates on which such Section 409A
Deferred Compensation would otherwise be paid or provided in accordance with Section 5, 6, or 8.1,
as applicable. All such amounts that would, but for this Section 8.2(b), become payable prior to
the Delayed Payment Date shall be accumulated and paid on the Delayed Payment Date.
(c) Limitation on Health and Life Insurance Benefits. To the extent that all or any portion
of the Companys payment or reimbursement to the Participant for the cost of the Companys
obligation to provide health benefits and/or life insurance benefits pursuant to Sections 5.2(b) or
6.2(b) (the Company-Provided Benefits) would exceed an amount for which, or continue for a period
of time in excess of which, such Company Provided Benefits would qualify for an exemption from
treatment as Section 409A Deferred Compensation, the Company shall, for the duration of the
applicable Severance Benefit Period, pay or reimburse the Participant for the applicable
Company-Provided Benefits in an amount not to exceed $50,000 per calendar year or any portion
thereof included in the Severance Benefit Period. The amount of Company-Provided Benefits
furnished in any taxable year of the
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Participant shall not affect the amount of Company-Provided Benefits furnished in any other
taxable year of the Participant. Any right of a Participant to Company-Provided Benefits shall not
be subject to liquidation or exchange for another benefit. Any reimbursement for Company-Provided
Benefits to which a Participant is entitled shall be paid no later than the last day of the
Participants taxable year following the taxable year in which the Participants expense for such
Company-Provided Benefits was incurred.
(d) Equity Awards. The vesting of any Equity Award which constitutes Section 409A Deferred
Compensation and is held by a Participant who is a Specified Employee shall be accelerated in
accordance with Section 5.2(c) and 6.2(c) to the extent applicable; provided, however, that the
payment in settlement of any such Equity Award shall occur on the Delayed Payment Date. Equity
Awards which vest and become payable upon a Change in Control in accordance with Section 4 shall
not be subject to this Section.
9. Conflict in Benefits; Noncumulation of Benefits
9.1 Effect of Amended Plan. The terms of this Amended Plan, when accepted by a Participant
pursuant to an executed Participation Agreement, shall supersede all prior arrangements, whether
written or oral, and understandings regarding the subject matter of this Amended Plan and, subject
to Section 9.2, shall be the exclusive agreement for the determination of any payments and benefits
due to the Participant upon the events described in Sections 4, 5, 6, and 8.
9.2 Noncumulation of Benefits. Except as expressly provided in a written agreement between a
Participant and the Company entered into after the date of such Participants Participation
Agreement and which expressly disclaims this Section 9.2 and is approved by the Committee, the
total amount of payments and benefits that may be received by the Participant as a result of the
events described in Sections 4, 5, 6, and 8 pursuant to (a) the Amended Plan, (b) any agreement
between the Participant and the Company or (c) any other plan, practice or statutory obligation of
the Company, shall not exceed the amount of payments and benefits provided by this Amended Plan
upon such events (plus any payments and benefits provided pursuant to an agreement evidencing a
Prior Indemnity Agreement), and the aggregate amounts payable under this Amended Plan shall be
reduced to the extent of any excess (but not below zero).
10. Exclusive Remedy
The payments and benefits provided by Sections 5, 6, and 8 (plus any payments and benefits
provided pursuant to an agreement evidencing a Prior Indemnity Agreement), if applicable, shall
constitute the Participants sole and exclusive remedy for any alleged injury or other damages
arising out of the cessation of the employment relationship between the Participant and the Company
in the event of the Participants Termination Upon a Change in Control or Termination Not in
Connection With a Change in Control . The Participant shall be entitled to no other compensation,
benefits, or other payments from the Company as a result of any Termination Upon a Change in
Control or Termination Not in Connection With a Change in Control with respect to which the
payments and benefits described in Sections 5, 6, and 8 (plus any payments and benefits provided
pursuant to an agreement evidencing a Prior Indemnity
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Agreement), if applicable, have been provided to the Participant, except as expressly set
forth in this Amended Plan or, subject to the provisions of Section 9.2, in a duly executed
employment agreement between Company and the Participant.
11. Proprietary and Confidential Information
The Participant agrees to continue to abide by the terms and conditions of the confidentiality
and/or proprietary rights agreement between the Participant and the Company.
12. Nonsolicitation
If the Company performs its obligations to deliver the payments and benefits set forth herein
(including any payments and benefits provided pursuant to an agreement evidencing an Equity Award
or a Prior Indemnity Agreement), then for a period equal to the Severance Benefit Period applicable
to a Participant following the Participants Termination Upon a Change in Control, the Participant
shall not, directly or indirectly, recruit, solicit or invite the solicitation of any employees of
the Company or any other member of the Company Group to terminate their employment relationship
with the Company Group.
13. No Contract of Employment
Neither the establishment of the Amended Plan, nor any amendment thereto, nor the payment of
any benefits shall be construed as giving any person the right to be retained by the Company, a
Successor or any other member of the Company Group. Except as otherwise established in an
employment agreement between the Company and a Participant, the employment relationship between the
Participant and the Company is an at-will relationship. Accordingly, either the Participant or
the Company may terminate the relationship at any time, with or without cause, and with or without
notice except as otherwise provided by Section 17.2. In addition, nothing in this Amended Plan
shall in any manner obligate any Successor or other member of the Company Group to offer employment
to any Participant or to continue the employment of any Participant which it does hire for any
specific duration of time.
14. Claims for Benefits
14.1 ERISA Plan. This Amended Plan is intended to be (a) an employee welfare plan as defined
in Section 3(1) of Employee Retirement Income Security Act of 1974 (ERISA) and (b) a top-hat
plan maintained for the benefit of a select group of management or highly compensated employees of
the Company Group.
14.2 Application for Benefits. All applications for payments and/or benefits under the Plan
(Benefits) shall be submitted to the Companys Vice President, Human Resources (the Claims
Administrator), with a copy to the Companys General Counsel. Applications for Benefits must be
in writing on forms acceptable to the Claims Administrator and must be signed by the Participant or
beneficiary. The Claims Administrator reserves the right to require the Participant or beneficiary
to furnish such other proof of the Participants expenses, including without limitation, receipts,
canceled checks, bills, and invoices as may be required by the Claims Administrator.
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14.3 Appeal of Denial of Claim.
(a) If a claimants claim for Benefits is denied, the Claims Administrator shall provide
notice to the claimant in writing of the denial within ninety (90) days after its submission. The
notice shall be written in a manner calculated to be understood by the claimant and shall include:
(1) The specific reason or reasons for the denial;
(2) Specific references to the Amended Plan provisions on which the denial is based;
(3) A description of any additional material or information necessary for the applicant to
perfect the claim and an explanation of why such material or information is necessary; and
(4) An explanation of the Amended Plans claims review procedures and a statement of
claimants right to bring a civil action under ERISA Section 502(a) following an adverse benefit
determination.
(b) If special circumstances require an extension of time for processing the initial claim, a
written notice of the extension and the reason therefor shall be furnished to the claimant before
the end of the initial ninety (90) day period. In no event shall such extension exceed ninety (90)
days.
(c) If a claim for Benefits is denied, the claimant, at the claimants sole expense, may
appeal the denial to the Committee (the Appeals Administrator) within sixty (60) days of the
receipt of written notice of the denial. In pursuing such appeal the applicant or his duly
authorized representative:
(1) may request in writing that the Appeals Administrator review the denial;
(2) may review pertinent documents; and
(3) may submit issues and comments in writing.
(d) The decision on review shall be made within sixty (60) days of receipt of the request for
review, unless special circumstances require an extension of time for processing, in which case a
decision shall be rendered as soon as possible, but not later than one hundred twenty (120) days
after receipt of the request for review. If such an extension of time is required, written notice
of the extension shall be furnished to the claimant before the end of the original sixty (60) day
period. The decision on review shall be made in writing, shall be written in a manner calculated
to be understood by the claimant, and, if the decision on review is a denial of the claim for
Benefits, shall include:
(1) The specific reason or reasons for the denial;
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(2) Specific references to the Amended Plan provisions on which the denial is based;
(3) A description of any additional material or information necessary for the applicant to
perfect the claim and an explanation of why such material or information is necessary; and
(4) An explanation of the Amended Plans claims review procedures and a statement of
claimants right to bring a civil action under ERISA Section 502(a) following an adverse benefit
determination.
15. Successors and Assigns
15.1 Successors of the Company. The Company shall require any successor or assign (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of
the business and/or assets of the Company, expressly, absolutely and unconditionally to assume and
agree to perform this Amended Plan in the same manner and to the same extent that the Company would
be required to perform it if no such succession or assignment had taken place.
15.2 Acknowledgment by Company. If, after a Change in Control, the Company fails to
reasonably confirm that it has performed the obligation described in Section 15.1 within twenty
(20) business days after written notice from the Participant, such failure shall be a material
breach of this Amended Plan and shall entitle the Participant to resign for Good Reason and to
receive the benefits provided under this Amended Plan in the event of Termination Upon a Change in
Control.
15.3 Heirs and Representatives of Participant. This Amended Plan shall inure to the benefit
of and be enforceable by the Participants personal or legal representatives, executors,
administrators, successors, heirs, distributees, devises, legatees or other beneficiaries. If the
Participant should die while any amount would still be payable to the Participant hereunder (other
than amounts which, by their terms, terminate upon the death of the Participant) if the Participant
had continued to live, then all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Amended Plan to the executors, personal representatives or
administrators of the Participants estate.
16. Notices
16.1 General. For purposes of this Amended Plan, notices and all other communications
provided for herein shall be in writing and shall be deemed to have been duly given when personally
delivered or when mailed by United States certified mail, return receipt requested, or by overnight
courier, postage prepaid, as follows:
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(a) if to the Company:
Trident Microsystems, Inc.
3408 Garrett Drive
Santa Clara, CA 95054-28803
Attention: General Counsel
3408 Garrett Drive
Santa Clara, CA 95054-28803
Attention: General Counsel
(b) if to the Participant, at the home address which the Participant most recently
communicated to the Company in writing.
Either party may provide the other with notices of change of address, which shall be effective upon
receipt.
16.2 Notice of Termination. Any Termination by the Company of the Participants employment or
any resignation by the Participant from his/her employment with the Company Group shall be
communicated by a notice of termination or resignation to the other party hereto given in
accordance with Section 16.1. Such notice shall indicate the specific termination provision in
this Amended Plan relied upon (if any), shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination under the provision so indicated, and
shall specify the termination date.
17. Termination and Amendment of Amended Plan
This Amended Plan and/or any Participation Agreement executed by a Participant may not be
terminated with respect to such Participant without the written consent of the Participant and the
approval of the Committee. This Amended Plan and/or any Participation Agreement executed by a
Participant may be modified, amended or superseded with respect to such Participant only by a
supplemental written agreement between the Participant and the Company approved by the Committee.
Notwithstanding any other provision of the Amended Plan to the contrary, the Committee may, in its
sole and absolute discretion and without the consent of any Participant, amend the Amended Plan or
any Participation Agreement, to take effect retroactively or otherwise, as it deems necessary or
advisable for the purpose of conforming the Amended Plan or such Participation Agreement to any
present or future law relating to plans of this or similar nature (including, but not limited to,
Section 409A of the Code), and to the administrative regulations and rulings promulgated
thereunder.
18. Miscellaneous Provisions
18.1 Administration. The Amended Plan shall be administered by the Committee. The Committee
shall have the exclusive discretion and authority to establish rules, forms and procedures for the
administration of the Amended Plan, to construe and interpret the Amended Plan, and to decide all
questions of fact, interpretation, definition, computation or administration arising in connection
with the Amended Plan, including, but not limited to, eligibility to participate in the Amended
Plan and the amount of benefits paid under the Amended Plan. The rules, interpretations and other
actions of the Committee shall be binding and conclusive on all persons.
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18.2 Unfunded Obligation. Any amounts payable to Participants pursuant to the Amended Plan
are unfunded obligations. The Company shall not be required to segregate any monies from its
general funds, or to create any trusts, or establish any special accounts with respect to such
obligations. The Company shall retain at all times beneficial ownership of any investments,
including trust investments, which the Company may make to fulfill its payment obligations
hereunder. Any investments or the creation or maintenance of any trust or any Participant account
shall not create or constitute a trust or fiduciary relationship between the Board or the Company
and a Participant, or otherwise create any vested or beneficial interest in any Participant or the
Participants creditors in any assets of the Company.
18.3 No Duty to Mitigate; Obligations of Company. A Participant shall not be required to
mitigate the amount of any payment or benefit contemplated by this Amended Plan by seeking
employment with a new employer or otherwise, nor shall any such payment or benefit (except for
benefits to the extent described in Sections 5.2(b) and 6.2(b)) be reduced by any compensation or
benefits that the Participant may receive from employment by another employer. Except as otherwise
provided by this Amended Plan, the obligations of the Company to make payments to the Participant
and to make the arrangements provided for herein are absolute and unconditional and may not be
reduced by any circumstances, including without limitation any set-off, counterclaim, recoupment,
defense or other right which the Company may have against the Participant or any third party at any
time.
18.4 No Representations. By executing a Participation Agreement, the Participant acknowledges
that in becoming a Participant in the Amended Plan, the Participant is not relying and has not
relied on any promise, representation or statement made by or on behalf of the Company which is not
set forth in this Amended Plan.
18.5 Waiver. No waiver by the Participant or the Company of any breach of, or of any lack of
compliance with, any condition or provision of this Amended Plan by the other party shall be
considered a waiver of any other condition or provision or of the same condition or provision at
another time.
18.6 Choice of Law. The validity, interpretation, construction and performance of this
Amended Plan shall be governed by the substantive laws of the State of California, without regard
to its conflict of law provisions.
18.7 Validity. The invalidity or unenforceability of any provision of this Amended Plan shall
not affect the validity or enforceability of any other provision of this Amended Plan, which shall
remain in full force and effect.
18.8 Benefits Not Assignable. Except as otherwise provided herein or by law, no right or
interest of any Participant under the Amended Plan shall be assignable or transferable, in whole or
in part, either directly or by operation of law or otherwise, including, without limitation, by
execution, levy, garnishment, attachment, pledge or in any other manner, and no attempted transfer
or assignment thereof shall be effective. No right or interest of any Participant under the
Amended Plan shall be liable for, or subject to, any obligation or liability of such Participant.
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18.9 Tax Withholding. All payments made pursuant to this Amended Plan will be subject to
withholding of applicable income and employment taxes.
18.10 Consultation with Legal and Financial Advisors. By executing a Participation Agreement,
the Participant acknowledges that this Amended Plan confers significant legal rights, and may also
involve the waiver of rights under other agreements; that the Company has encouraged the
Participant to consult with the Participants personal legal and financial advisors; and that the
Participant has had adequate time to consult with the Participants advisors before executing the
Participation Agreement.
18.11 Further Assurances. From time to time, at the Companys request and without further
consideration, the Participant shall execute and deliver such additional documents and take all
such further action as reasonably requested by the Company to be necessary or desirable to make
effective, in the most expeditious manner possible, the terms of the Amended Plan, the
Participants Participation Agreement and the Release, and to provide adequate assurance of the
Participants due performance thereunder.
19. Agreement
By executing a Participation Agreement, the Participant acknowledges that the Participant has
received a copy of this Amended Plan and has read, understands and is familiar with the terms and
provisions of this Amended Plan. This Amended Plan shall constitute an agreement between the
Company and the Participant executing a Participation Agreement.
IN WITNESS WHEREOF, the undersigned Secretary of the Company certifies that the foregoing
Amended Plan was duly adopted by the Compensation Committee of the Board effective on December 15,
2010.
/s/ David L. Teichmann | ||||
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EXHIBIT A
FORM OF
AGREEMENT TO PARTICIPATE IN THE
TRIDENT MICROSYSTEMS, INC.
AMENDED AND RESTATED EXECUTIVE RETENTION AND SEVERANCE PLAN
AGREEMENT TO PARTICIPATE IN THE
TRIDENT MICROSYSTEMS, INC.
AMENDED AND RESTATED EXECUTIVE RETENTION AND SEVERANCE PLAN
As Adopted December 15, 2010
TRIDENT MICROSYSTEMS, INC.
AMENDED AND RESTATED EXECUTIVE RETENTION AND SEVERANCE PLAN
As Adopted December 15, 2010
In consideration of the benefits provided by the Trident Microsystems, Inc. Amended and
Restated Executive Retention and Severance Plan, as adopted December 15, 2010 (the Amended Plan),
the undersigned employee of Trident Microsystems, Inc. (the Company) or any of its subsidiaries
and the Company agree that, as of the date written below, the undersigned shall become a
Participant in the Amended Plan and shall be fully bound by and subject to all of its provisions.
All references to a Participant in the Amended Plan shall be deemed to refer to the undersigned.
[By signing this Participation Agreement, the undersigned employee and the Company hereby
agree that the prior Agreement to Participate in the Trident Microsystems, Inc. Executive Retention
and Severance Plan between the undersigned employee and the Company of [date] is hereby terminated
and no longer of any legal force or effect.]
[The undersigned is a Key Employee (as defined by the Amended Plan) as of the date of this
Agreement. If the undersigned remains a Key Employee, but not an Executive Officer, for the
purpose of determining any severance payments or benefits to which the undersigned may become
entitled under the Amended Plan, the Severance Benefit Period applicable to the undersigned shall
be periods of ________ months and the applicable percentage of the undersigneds Annual Bonus Rate
for purposes of Section 5.2(a)(2) of the Amended Plan shall be ______%.]
The undersigned employee acknowledges that the Amended Plan confers significant legal rights
and may also constitute a waiver of rights under other agreements with the Company; that the
Company has encouraged the undersigned to consult with the undersigneds personal legal and
financial advisors; and that the undersigned has had adequate time to consult with the
undersigneds advisors before executing this agreement.
The undersigned employee acknowledges that he or she has received a copy of the Amended Plan
and has read, understands and is familiar with the terms and provisions of the Amended Plan. The
undersigned employee further acknowledges that except as otherwise established in an employment
agreement between a member of the Company Group and the undersigned, the employment relationship
between the undersigned and his or her employer is an at-will relationship.
This Participation Agreement, along with the Amended Plan, constitutes the entire agreement
between the undersigned employee and the Company regarding the subject matters described therein.
This Participation Agreement cannot be modified or terminated except by a subsequent written
agreement executed by the undersigned employee and an authorized member of the Companys
Compensation Committee.
AGREED TO AND ACCEPTED:
Executed on ________________________.
PARTICIPANT | TRIDENT MICROSYSTEMS, INC. | |||||||
By: | ||||||||
Signature |
||||||||
Title: | ||||||||
Name Printed |
||||||||
Address |
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EXHIBIT B
FORM OF
GENERAL RELEASE OF CLAIMS
[Age 40 and over]
[Age 40 and over]
GENERAL RELEASE OF CLAIMS
[Age 40 and over]
[Age 40 and over]
This General Release of Claims (Agreement) is by and between [Employee Name] (Employee)
and [Trident Microsystems, Inc. or successor that agrees to assume the Executive Retention and
Severance Plan following a Change in Control] (the Company). This Agreement will become
effective on the eighth (8th) day after it is signed by Employee (the Effective Date), provided
that the Company has signed this Agreement and Employee has not revoked this Agreement (by written
notice to [Company Contact Name] at the Company) prior to that date.
RECITALS
A. Employee was employed by the Company or its ____________________ subsidiary as of
___________, ___.
B. Employee and the Company entered into an Agreement to Participate in the Trident
Microsystems, Inc. Amended and Restated Executive Retention and Severance Plan (such agreement and
plan being referred to herein as the Plan) effective as of __________, ____ wherein Employee is
entitled to receive certain benefits in the event of his/her Termination Upon a Change in Control
or Termination Not in Connection With a Change in Control (as defined by the Plan), provided
Employee signs and does not revoke a Release (as defined by the Plan).
C. Employees employment is being terminated as a result of a [Termination Upon a Change in
Control/Termination Not in Connection With a Change in Control]. Employees last day of work and
termination are effective as of _______________, ___. Employee desires to receive the payments and
benefits provided by the Plan by executing this Release.
NOW, THEREFORE, the parties agree as follows: |
1. The Company shall provide Employee with the applicable payments and benefits set forth in
the Plan in accordance with the terms of the Plan. Employee acknowledges that the payments and
benefits made pursuant to this paragraph are made in full satisfaction of the Companys obligations
under the Plan. Employee further acknowledges that Employee has been paid all wages and accrued,
unused vacation that Employee earned during his or her employment with the Company or its
subsidiary.
2. Employee and Employees successors release the Company, its respective subsidiaries,
stockholders, investors, directors, officers, employees, agents, attorneys, insurers, legal
successors and assigns of and from any and all claims, actions and causes of action, whether now
known or unknown, which Employee now has, or at any other time had, or shall or may have against
those released parties based upon or arising out of any matter, cause, fact, thing, act or omission
whatsoever related to Employees employment by the Company or a subsidiary or the termination of
such employment and occurring or existing at any time up to and including the date on which
Employee signs this Agreement, including, but not limited to, any
claims of breach of written, oral or implied contract, wrongful termination, retaliation, fraud,
defamation, infliction of emotional distress, or national origin, race, age, sex, sexual
orientation, disability or other discrimination or harassment under the Civil Rights Act of 1964,
the Age Discrimination In Employment Act of 1967, the Americans with Disabilities Act, the Fair
Employment and Housing Act or any other applicable law. Notwithstanding the foregoing, this
release shall not apply to (a) any right of the Employee pursuant to Section 5.3 of the Plan or
pursuant to a Prior Indemnity Agreement (as such term is defined by the Plan) or (b) any rights or
claims that cannot be released by Employee as a matter of law, including, but not limited to, any
claims for indemnity under California Labor Code Section 2802.
3. Employee acknowledges that he or she has read Section 1542 of the Civil Code of the State
of California, which states in full:
A general release does not extend to claims which the creditor does not know
or suspect to exist in his favor at the time of executing the release, which
if known by him must have materially affected his settlement with the
debtor.
Employee waives any rights that Employee has or may have under Section 1542 and any comparable or
similar provisions of the laws of other states in the United States to the full extent that he or
she may lawfully waive such rights pertaining to this general release of claims, and affirms that
Employee is releasing all known and unknown claims that he or she has or may have against the
parties listed above.
4. Employee and the Company acknowledge and agree that they shall continue to be bound by and
comply with the terms and their obligations under the following agreements: (i) any proprietary
rights or confidentiality agreements between the Company or its subsidiary and Employee, (ii) the
Plan, (iii) any Prior Indemnity Agreement (as such term is defined by the Plan) to which Employee
is a party, and (iv) any agreement between the Company or its subsidiary and Employee evidencing an
Equity Award (as such term is defined by the Plan), as modified by the Plan.
5. This Agreement shall be binding upon, and shall inure to the benefit of, the parties and
their respective successors, assigns, heirs and personal representatives.
6. This Agreement constitutes the entire agreement between the parties with respect to the
subject matter hereof and supersedes all prior negotiations and agreements, whether written or
oral, with the exception of any agreements described in paragraph 4 of this Agreement. This
Agreement may not be modified or amended except by a document signed by an authorized officer of
the Company and Employee. If any provision of this Agreement is deemed invalid, illegal or
unenforceable, such provision shall be modified so as to make it valid, legal and enforceable, and
the validity, legality and enforceability of the remaining provisions of this Agreement shall not
in any way be affected.
EMPLOYEE UNDERSTANDS THAT EMPLOYEE SHOULD CONSULT WITH AN ATTORNEY PRIOR TO SIGNING THIS
AGREEMENT AND THAT EMPLOYEE IS GIVING UP ANY LEGAL CLAIMS EMPLOYEE HAS AGAINST THE PARTIES
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RELEASED ABOVE BY SIGNING THIS AGREEMENT. EMPLOYEE FURTHER UNDERSTANDS THAT EMPLOYEE MAY HAVE
UP TO [45/21] DAYS TO CONSIDER THIS AGREEMENT, THAT EMPLOYEE MAY REVOKE IT AT ANY TIME DURING THE 7
DAYS AFTER EMPLOYEE SIGNS IT, AND THAT IT SHALL NOT BECOME EFFECTIVE UNTIL THAT 7-DAY PERIOD HAS
PASSED. EMPLOYEE ACKNOWLEDGES THAT EMPLOYEE IS SIGNING THIS AGREEMENT KNOWINGLY, WILLINGLY AND
VOLUNTARILY IN EXCHANGE FOR THE COMPENSATION AND BENEFITS DESCRIBED IN PARAGRAPH 1.
Dated: _____________________
|
||||||||
[Employee Name] | ||||||||
[Company] | ||||||||
Dated: _____________________
|
By: | |||||||
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EXHIBIT C
FORM OF
GENERAL RELEASE OF CLAIMS
[Under age 40]
[Under age 40]
GENERAL RELEASE OF CLAIMS
[Under age 40]
[Under age 40]
This General Release of Claims (Agreement) is by and between [Employee Name] (Employee)
and [Trident Microsystems, Inc. or successor that agrees to assume the Executive Retention and
Severance Plan following a Change in Control] (the Company). This Agreement is effective on the
day it is signed by Employee (the Effective Date).
RECITALS
A. Employee was employed by the Company or its ____________________ subsidiary as of
____________, ___.
B. Employee and the Company entered into an Agreement to Participate in the Trident
Microsystems, Inc. Amended and Restated Executive Retention and Severance Plan (such agreement and
plan being referred to herein as the Plan) effective as of ___________, ____ wherein Employee is
entitled to receive certain benefits in the event of his/her Termination Upon a Change in Control
or Termination Not in Connection With a Change in Control (as defined by the Plan), provided
Employee signs a Release (as defined by the Plan).
C. Employees employment is being terminated as a result of a [Termination Upon a Change in
Control/Termination Not in Connection With a Change in Control]. Employees last day of work and
termination are effective as of ______________, ___. Employee desires to receive the payments and
benefits provided by the Plan by executing this Release.
NOW, THEREFORE, the parties agree as follows: |
1. The Company shall provide Employee with the applicable payments and benefits set forth in
the Plan in accordance with the terms of the Plan. Employee acknowledges that the payments and
benefits made pursuant to this paragraph are made in full satisfaction of the Companys obligations
under the Plan. Employee further acknowledges that Employee has been paid all wages and accrued,
unused vacation that Employee earned during his or her employment with the Company or its
subsidiary.
2. Employee and Employees successors release the Company, its respective subsidiaries,
stockholders, investors, directors, officers, employees, agents, attorneys, insurers, legal
successors and assigns of and from any and all claims, actions and causes of action, whether now
known or unknown, which Employee now has, or at any other time had, or shall or may have against
those released parties based upon or arising out of any matter, cause, fact, thing, act or omission
whatsoever related to Employees employment by the Company or a subsidiary or the termination of
such employment and occurring or existing at any time up to and including the date on which
Employee signs this Agreement, including, but not limited to, any claims of breach of written, oral
or implied contract, wrongful termination, retaliation, fraud, defamation, infliction of emotional
distress, or national origin, race, sex, sexual orientation, disability or other discrimination or
harassment under the Civil Rights Act of 1964, the Americans with Disabilities Act, the Fair
Employment and Housing Act or any other applicable
law. Notwithstanding the foregoing, this release shall not apply to (a) any right of the Employee
pursuant to Sections 5.3 of the Plan or pursuant to a Prior Indemnity Agreement (as such term is
defined by the Plan), or (b) any rights or claims that cannot be released by Employee as a matter
of law, including, but not limited to, any claims for indemnity under California Labor Code Section
2808.
3. Employee acknowledges that he or she has read Section 1542 of the Civil Code of the State
of California, which states in full:
A general release does not extend to claims which the creditor does not know
or suspect to exist in his favor at the time of executing the release, which
if known by him must have materially affected his settlement with the
debtor.
Employee waives any rights that Employee has or may have under Section 1542 and any comparable or
similar provisions of the laws of other states in the United States to the full extent that he or
she may lawfully waive such rights pertaining to this general release of claims, and affirms that
Employee is releasing all known and unknown claims that he or she has or may have against the
parties listed above.
4. Employee and the Company acknowledge and agree that they shall continue to be bound by and
comply with the terms and their obligations under the following agreements: (i) any proprietary
rights or confidentiality agreements between the Company or its subsidiary and Employee, (ii) the
Plan, (iii) any Prior Indemnity Agreement (as such term is defined by the Plan) to which Employee
is a party, and (iv) any agreement between the Company or its subsidiary and Employee evidencing an
Equity Award (as such term is defined by the Plan), as modified by the Plan.
5. This Agreement shall be binding upon, and shall inure to the benefit of, the parties and
their respective successors, assigns, heirs and personal representatives.
6. This Agreement constitutes the entire agreement between the parties with respect to the
subject matter hereof and supersedes all prior negotiations and agreements, whether written or
oral, with the exception of any agreements described in paragraph 4 of this Agreement. This
Agreement may not be modified or amended except by a document signed by an authorized officer of
the Company and Employee. If any provision of this Agreement is deemed invalid, illegal or
unenforceable, such provision shall be modified so as to make it valid, legal and enforceable, and
the validity, legality and enforceability of the remaining provisions of this Agreement shall not
in any way be affected.
EMPLOYEE UNDERSTANDS THAT EMPLOYEE SHOULD CONSULT WITH AN ATTORNEY PRIOR TO SIGNING THIS
AGREEMENT AND THAT EMPLOYEE IS GIVING UP ANY LEGAL CLAIMS EMPLOYEE HAS AGAINST THE PARTIES RELEASED
ABOVE BY SIGNING THIS AGREEMENT. EMPLOYEE ACKNOWLEDGES THAT EMPLOEE IS SIGNING THIS AGREEMENT
KNOWINGLY, WILLINGLY AND VOLUNTARILY IN EXCHANGE FOR THE COMPENSATION AND BENEFITS DESCRIBED IN
PARAGRAPH 1.
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Dated: _____________________
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[Employee Name] | ||||||||
[Company] | ||||||||
Dated: _____________________
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By: | |||||||
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