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EXHIBIT 10(m)
[FORM OF EMPLOYMENT AGREEMENT]
TEXAS INSTRUMENTS INCORPORATED
________, 1999
[Name]
Telogy Networks, Inc.
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Re: Employment
Dear [Name]:
This letter confirms our proposal relating to your employment following
our acquisition of Telogy Networks, Inc. ("Telogy") in accordance with that
certain Agreement and Plan of Merger, dated as of May 29, 1999, among Telogy,
Texas Instruments Incorporated ("TI") and TNI Acquisition Corp. (the "Merger
Agreement"). This letter shall be null and void if such acquisition is not
consummated.
1. Position; Employment Term. From the Closing Date (as defined in the
Merger Agreement) through January 31, 2003, unless sooner terminated in
accordance with the terms hereof ("Employment Term"), you will be employed
either by Telogy or by TI, as TI may reasonably determine, as [Title] of
Telogy, subject to the following terms and conditions. You agree to devote your
full working time and efforts, to the best of your ability and experience, to
the performance of your services, duties and responsibilities with TI and its
subsidiaries. Such services, duties and responsibilities shall be performed
principally in Maryland (unless otherwise agreed by you and TI).
2. Compensation. During the Employment Term, you shall receive a base
salary at an annual rate of $***** per year, payable in accordance with the
applicable payroll practices and subject to increases at the sole discretion of
TI. In addition, with respect to 1999, you shall be entitled to a minimum
aggregate bonus of $***** payable in the first quarter of 2000, provided that
you are employed by Telogy or TI, as the case may be, on such payment date.
3. Employee Benefits and Policies. During the Employment Term, you will
participate in employee benefit plans generally provided to similarly situated
employees in accordance with the terms thereof from time to time. You will be
entitled to and shall abide by all applicable employment and personnel policies
in effect from time to time.
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4. Stock Options. We will recommend to the Compensation Committee of the
Board of Directors of TI that you be granted on or about the Closing Date (as
defined in the Merger Agreement) a non-qualified option under the Texas
Instruments 1996 Long-Term Incentive Plan (the "Plan") to purchase an aggregate
of **** shares of common stock of TI, par value of $1.00 ("TI Stock"), at an
exercise price equal to the fair market value of TI Stock as of the date of
grant. We will further recommend to the Compensation Committee of the Board of
Directors of TI that, with respect to 2000, you be granted a non-qualified
option under the Plan to purchase an aggregate of no less than **** shares of
TI Stock, at an exercise price equal to the fair market value of TI Stock as of
the date of grant. Each stock option shall have a term of ten (10) years and
shall vest, in twenty-five percent (25%) increments, on each of the first four
(4) anniversaries of the date of grant. Except as otherwise provided in this
letter agreement or any stock option grant agreement, the stock options granted
pursuant to this paragraph 4 shall be subject to the terms of the Plan.
5. Required Employee Forms. As a condition of employment with TI or any of
its subsidiaries, you shall promptly execute and deliver to TI an Employee
Trade Secrets Information Acknowledgement, an Assignment of Invention and
Company Information Agreement, a Release of Records and such other documents as
TI reasonably may require from time to time with respect to its new employees
or similarly situated employees.
6. Death or Disability. Upon your death or total disability during the
Employment Term, your employment with TI and its subsidiaries and the
Employment Term shall automatically end. You shall be entitled to your accrued
and unpaid salary through your date of death or total disability, and death or
disability benefits and other employee benefits in accordance with the terms of
the applicable benefit plans. As currently permitted under the terms of the
Telogy stock option plans, TI shall cause any stock options outstanding as of
the date hereof that are not vested on the date of your death or total
disability during the Employment Term to become fully vested on such date. For
purposes of this letter agreement, "total disability" means any physical or
mental condition which constitutes a disability for purposes of TI's long term
disability plan.
7. Termination of Employment. Prior to the end of the Employment Term,
Telogy or TI, as the case may be, may terminate your employment only for Cause
(as defined below), and the Employment Term shall end on the date of such
termination. For purposes of this letter agreement, "Cause" means any of the
following: (a) your conviction of, or plea of nolo contendere to, a felony
involving dishonesty or moral turpitude; (b) your use of illegal drugs; (c)
your material breach of the provisions of this letter agreement; (d) your
material breach of any other written agreement between you and Telogy or TI, as
the case may be, or otherwise executed by you, including but not limited to the
any intellectual property agreements; (e) your material fraud or dishonesty in
connection with your employment; (f) your willful neglect to perform your
duties or responsibilities in connection with your employment; or (g) your
commission of a major infraction as described in Telogy's or TI's written
policies with respect to employee discipline; provided, that any of the events
specified in clauses (c) through (g) of this paragraph 7 continues beyond ten
(10) days after a written demand for substantial performance is delivered to
you by Telogy or TI, as the case may be.
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8. Voluntary Resignation. You may resign your employment with Telogy or
TI, as the case may be, at any time, provided that you furnish thirty (30)
days' prior written notice thereof, and the Employment Term shall end on the
date of such termination. You shall be entitled to your accrued and unpaid
salary through the date of such termination, and employee benefits in
accordance with the terms of the applicable benefit plans. In the event that
you resign your employment under this paragraph 8, any option granted under the
Telogy Networks, Inc. Amended and Restated 1990 Option Plan shall terminate in
accordance with its terms upon the earlier of (i) thirty (30) days after such
termination of employment or (ii) the expiration date of such option.
9. Waiver. You hereby waive the provisions in Sections 17(b) and (c) of
the Telogy Networks, Inc. Amended and Restated 1990 Stock Option Plan to the
extent it provides "(i) Optionee is not offered employment, in substantially
the same job capacity and duties, with the Surviving Company" and acknowledge
and agree that, pursuant to discussions among you, TI and Telogy, this letter
agreement constitutes an offer of employment after the merger that is
substantially the same with respect to your job capacity and duties before the
merger. Unless your employment is sooner terminated in accordance with the
terms hereof, TI agrees to use its good faith efforts to maintain or cause to
be maintained your title of [Title] of Telogy and substantially the same duties
as of the Effective Time (as defined in the Merger Agreement) for a period of
twelve (12) months from the Closing Date (as defined in the Merger Agreement).
10. Noncompetition. For a period of two (2) years from the end of the
Employment Term, you undertake that, without the express prior written consent
of the Board of Directors of Telogy, you will not, directly or indirectly,
individually or through any affiliate, engage, participate, make any financial
investment in, or become employed by or render advisory services to any
business, whether in corporate, proprietorship, or partnership form or
otherwise, engaged in any activities that are directly competitive with any
business conducted at any time during the Employment Term, or under development
at the end of the Employment Term, by Telogy and its subsidiaries ("Prohibited
Business"). Notwithstanding the foregoing, holding up to three percent (3%) of
the shares of a company whose securities are publicly traded on a recognized
stock exchange, or the National Market of the National Association of
Securities Dealers Automated Quotation System or any other nationally
recognized over-the-counter market, shall not be deemed to be a breach of this
undertaking.
11. No-Hire. For a period of two (2) years from the end of the Employment
Term, you shall not, directly or indirectly, hire or solicit (for the benefit
of you or any third party) the employment of any person employed by TI or
Telogy or any subsidiary thereof or otherwise encourage any such employee to
terminate his or her employment with TI or Telogy or any subsidiary thereof, in
each case without the prior written consent of the Board of Directors of
Telogy.
12. Confidentiality. For a period of at least five (5) years from the end
of the Employment Term, you undertake not to disclose to any person, or use or
otherwise exploit for your own benefit or for the benefit of anyone other than
TI, Telogy or any of their subsidiaries, any Confidential Information (as
defined below). You shall have no obligation to keep confidential any
Confidential Information if and to the extent disclosure thereof is
specifically
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required by law, judicial or governmental order, or other legal process;
provided, however, that in the event such disclosure is required, you shall, to
the extent reasonably possible, provide TI or Telogy, as the case may be, with
prompt notice of such requirement, prior to making any disclosure, so that TI
or Telogy, as the case may be, may seek an appropriate protective order or
waive compliance with this provision in respect of such disclosure. For
purposes of this letter agreement, "Confidential Information" means any
confidential information in respect of the conduct or details of the business
of TI, Telogy and any of their subsidiaries, including, without limitation,
methods of operation, customer lists, products (existing and proposed), prices,
fees, costs, strategic and other plans, customer projects, designs, technology,
inventions, trade secrets, know-how, software, marketing methods, policies,
personnel, suppliers, competitors, markets, or other specialized information or
proprietary matters of TI, Telogy and any of their subsidiaries. The term
"Confidential Information" does not include, and there shall be no obligation
hereunder in respect of, information that (i) is generally available to the
public on the date of this letter agreement or (ii) becomes generally available
to the public other than as a result of a disclosure by you in violation of
this letter agreement.
13. Enforcement. You agree that (i) any breach of the provisions of
paragraph 10, 11 or 12 of this letter agreement would cause irreparable damage
to TI and Telogy for which monetary damages and other remedies at law would be
inadequate and (ii) TI and Telogy shall have the right, without the posting of
any bond whatsoever, in addition to any rights and remedies existing in their
favor, to enforce their rights and your obligations under this letter agreement
not only by an action or actions for damages, but also by an action or actions
for specific performance and/or injunctive relief or other equitable relief in
order to enforce, or prevent any violations of, the provisions of this letter
agreement.
14. Acknowledgements. You acknowledge and that the prohibited activities
and the scope and duration of the obligations set forth in paragraphs 10, 11
and 12 of this letter agreement (i) are reasonable and no broader than
necessary to protect the legitimate business interests of Telogy and the
goodwill thereof acquired by TI and (ii) do not and will not impose an
unreasonable burden upon you.
15. Amendment and Waiver. This letter agreement may be amended and any
provision of this letter agreement may be waived, provided that any such
amendment or waiver will be binding upon a party only if such amendment or
waiver is set forth in a writing executed by the parties hereto.
16. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given upon the earlier of delivery thereof if by
hand or upon receipt if sent by mail (registered or certified mail, postage
prepaid, return receipt requested) or on the second next business day after
deposit if sent by a recognized overnight delivery service or upon transmission
if sent by telecopy or facsimile transmission (with request of assurance of
receipt in a manner customary for communication of such type) as follows:
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If to Telogy or TI, to:
Texas Instruments Incorporated
0000 Xxxxxxxxx Xxx
P.O. Box 650311M/S 3995
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Facsimile No.: (000) 000-0000
with copies to:
Texas Instruments Incorporated
0000 Xxxxxx Xxxx, X/X 0000
Xxxxxx, Xxxxx 00000
- or -
X.X. Xxx 000000, X/X 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
and
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: R. Xxxxx Xxxxx, Esq.
Facsimile No.: (000) 000-0000
If to you, to:
[Name]
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Attention:
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Facsimile No.:
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17. Entire Agreement. This letter agreement and the documents referred to
herein contain the entire agreement between the parties hereto in respect of
the subject matter hereof, and supersede any prior understandings, agreements,
or representations by or between the parties, written or oral, which may have
related to the subject matter hereof in any way. Notwithstanding the foregoing,
however, this letter agreement shall not supersede, and is in addition to, any
agreements between Telogy and you entered into in connection with your
employment by Telogy or its subsidiaries.
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18. Counterparts. This letter agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement.
19. Governing Law. This letter agreement shall be governed by and
construed in accordance with the laws of the State of Maryland without regard
to the conflicts-of-laws rules thereof. You hereby consent to the enforcement
of this letter agreement in any state or federal court in the State of Maryland
and consent to personal jurisdiction in those courts.
20. Headings. The article and section headings contained in this letter
agreement are solely for the purpose of reference, are not part of the
agreement of the parties and shall not affect in any way the meaning or
interpretation of this letter agreement.
21. Severability. Whenever possible, each provision of this letter
agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this letter 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 letter
agreement will be reformed, construed, and enforced in such jurisdiction as if
such invalid, illegal, or unenforceable provision had never been contained
herein. In lieu of such invalid, illegal, or unenforceable provisions, the
parties hereto agree that there shall be automatically substituted therefor,
and direct any court so construing this letter agreement to add, as a part
hereof, a provision as similar in terms to such invalid, illegal, or
unenforceable provisions as may be possible and be valid, legal, and
enforceable.
22. Successors and Assigns. This letter agreement and the rights and
duties hereunder shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns. You shall not assign,
delegate, or otherwise transfer (whether voluntary, by operation of law, or
otherwise) this letter agreement or any right or obligation hereunder without
the prior written consent of TI and Telogy.
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Please indicate your agreement to the terms and conditions of employment
with Telogy or TI, as the case may be, set forth herein, including your
covenants regarding noncompetition, no-hire and confidentiality, by affixing
your signature to the enclosed copy of this letter and returning the same to
the undersigned as soon as possible.
Very truly yours,
TEXAS INSTRUMENTS INCORPORATED
By:
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I agree to the foregoing
terms and conditions:
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Date [Name]
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