Exhibit 10.1
Symmetricom, Inc.
July 17, 2009
David Cote
[address redacted]
Dear Dave:
On behalf of the Board of Directors
(the “Board”) of Symmetricom, Inc. (the
“Company”), it is our pleasure to offer you the
position of Chief Executive Officer of the Company. The terms of
our offer and the benefits provided by the Company are as
follows:
1. You will report to the Board,
which will nominate and appoint you to the Board following the date
you start your employment with the Company (the “Start
Date”). During your employment, you shall comply with and be
bound by the Company’s operating policies, procedures and
practices from time to time in effect during your employment, and
you shall devote your full business time to your duties and
responsibilities to the Company.
2. Your annual base salary will be
$450,000 per year, and your base salary will be paid in accordance
with the Company’s normal payroll practices. In addition, for
the 2010 fiscal year, you will have the opportunity to earn an
annual target bonus (the “Annual Bonus”) in an amount
equal to 100% of your base salary based upon your achievement of
performance goals to be mutually determined by you and the Board
within 45 days after your Start Date. The exact amount of the
Annual Bonus which is earned will be determined by the Board or its
Compensation Committee subject to the terms of such bonus plans as
the Company may adopt from time-to-time. Your cash compensation and
Annual Bonus for subsequent fiscal years will be subject to annual
review by the Compensation Committee of the Board.
3. Subject to the approval of the
Board or its Compensation Committee, as soon as practicable
following your Start Date, you will be granted an option to
purchase 900,000 shares of the Company’s common stock
pursuant to the Company’s 2006 Incentive Award Plan (the
“Plan”) at an exercise price per share equal to the
fair market value of a share of the Company’s common stock on
the grant date, as determined in accordance with the Plan (the
“Option”). The shares subject to the Option will vest
over four years, with 1/4 of the shares vesting one year after your
Start Date and the remaining shares vesting in monthly increments
over the succeeding three years, subject to your continued service
with the Company. The Option will be subject to the terms and
conditions of the Plan and except as otherwise described in this
letter, the Company’s standard form of stock option
agreement, which you will be required to sign as a condition of
receiving the Option.
4. Subject to the discretion of the
Board or its Compensation Committee, you shall be eligible to
receive additional equity awards, from time to time in the future,
on such terms and subject to such conditions as the Board or its
Compensation Committee shall determine as of the date of any such
grant.
5. You will be eligible to
participate in the Company’s group welfare and retirement
benefit plans, as well as the Company’s deferred compensation
plan, in accordance with the Company’s plans or policies as
in effect from time to time and the rules established for
individual participation in any such plan and under applicable law.
You will be eligible for vacation and sick leave in accordance with
the Company’s policies in effect during the term of your
employment.
6. Upon termination of your
employment with the Company for any reason, you will receive
payment for all unpaid salary and vacation accrued to the date of
your termination of employment and your benefits will be continued
under the Company’s then existing benefit plans and policies
as provided under the terms of such plans and policies and as
required by applicable law. Under certain circumstances, you will
also be entitled to receive separation benefits as set forth below,
but you will not be entitled to any other compensation, award or
damages with respect to your employment or termination; in
addition, the benefits described in subsections B and C below shall
be provided only to the extent that your termination of employment
with the Company constitutes a separation from service within the
meaning of Section 409A of the Internal Revenue Code of 1986,
as amended (the “Code”) and the regulations promulgated
thereunder, including Treasury Regulation Section 1.409A-1(h)
(“Separation from Service”). A full unilateral release
in favor of the Company and its directors, officers and other
related persons and an agreement not to solicit employees of the
Company for a period of one year following termination, each in the
form provided by the Company, must be executed by you (or your
estate or beneficiaries) and become irrevocable within 60 days
following your termination date in order to receive any separation
benefits described in subsections B and C below; provided, however,
you will not be required to release any right to indemnification
that you may have under applicable law, the Company’s bylaws
or any indemnity agreement between you and the Company.
A. In the event of your voluntary
termination or termination for Cause (as defined below) or your
termination due to death or disability, you will not be entitled to
any cash severance benefits or additional vesting of shares subject
to the Option or any other equity-based award held by you
(“Equity Awards”).
B. In the event your employment is
terminated without Cause prior to or more than twelve months after
a Change of Control (as defined below), you shall be entitled to
cash severance (at the rate of your then current annual base
salary) and Company payment of your COBRA insurance premiums (if
you elect COBRA coverage), less applicable deductions and
withholdings and in accordance with the Company’s normal
payroll practices, for nine months following your termination;
provided your right to receive COBRA insurance premiums shall
terminate upon your commencement of full-time employment or
consulting with another company (which you shall promptly notify
the Company of).
C. In the event (i) there is a
Change of Control (as defined below), and (ii) your employment
is terminated without Cause or you resign for Good Reason (as
defined below) within twelve months thereafter, then in lieu of the
separation benefits described in paragraph B above, you shall be
entitled to (x) cash severance (at the rate of your then
current annual base salary) and Company payment of your COBRA
insurance premiums (if you elect COBRA
2
coverage), less applicable
deductions and withholdings and in accordance with the
Company’s normal payroll practices, for twelve months
following your termination, provided your right to receive COBRA
insurance premiums shall terminate upon your commencement of
full-time employment or consulting with another company (which you
shall promptly notify the combined company of), (y) an
additional cash severance amount equal to the target Annual Bonus
for the fiscal year in which the termination of employment occurs,
less applicable deductions and withholdings and which shall be paid
in installments in accordance with the Company’s normal
payroll practices over the twelve months following your
termination, and (z) accelerated vesting of 50% of the
unvested shares subject to the Option and any other outstanding
Equity Award granted to you which vests based solely on your
continued employment or service, if your termination of employment
occurs within one year after your Start Date; provided, however,
that if your termination of employment occurs on or after the first
anniversary of your Start Date and prior to the second anniversary
of your Start Date, the percentage of such unvested shares to be
accelerated shall be 75%, and if your termination of employment
occurs on or after the second anniversary of your Start Date, 100%
of such unvested shares shall be accelerated.
D. “Cause” means your
(i) conviction of a felony under the laws of the United States
or any state thereof or any act of fraud, embezzlement or
dishonesty, (ii) breach of fiduciary duties,
(iii) material breach of this letter agreement or any other
written agreement with the Company, which breach, if curable, is
not cured within fifteen (15) days following your receipt of
written notice from the Board of Directors alleging such a breach
and providing reasonable detail of the facts and
circumsta
