EXHIBIT 10.13
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EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into effective the 9th day of May, 2000, between
Simtek Corporation ("Simtek") and Xxxx X. Xxxxxxx ("Employee").
Simtek desires to retain the services of Employee, and Employee desires to
perform services for Simtek, and in consideration of the mutual covenants
contained herein, the parties agree as follows:
AGREEMENT
1. EMPLOYMENT. Simtek hereby retains Employee in the position of Director of
Logic Products. Employee hereby accepts such employment and agrees that he shall
devote his best efforts in performing, faithfully and diligently, and in a
competent and professional manner, all of the duties and responsibilities
assumed by him under this Agreement.
2. DUTIES AND RESPONSIBILITIES. Employee shall have the duties and
responsibilities as are typical of the position of Director of Logic Products of
a public corporation. Employee is not an officer of Simtek. Employee shall
perform such duties and responsibilities in accordance with the bylaws, rules,
regulations, and policies of Simtek, pursuant to the direction of employee's
immediate supervisor or Simtek's President. Employee's duties and
responsibilities under this Agreement shall include, but are not limited to, the
following:
(1) Employing, managing, and terminating the employment of Simtek
personnel, in accordance with relevant Simtek policies and applicable
governmental regulations;
(2) Managing and overseeing the day to day operations of Simtek's
Logic programs;
(3) Carrying out other tasks that may be determined appropriate by
Employee's immediate supervisor or the Simtek President.
3. DURATION. Employee's employment is "at-will" and may be terminated by
either Simtek or Employee for any or no reason at any time.
4. COMPENSATION. For all services rendered by Employee in any capacity under
this Agreement and for Employee's obligations set forth in Sections 7 through 11
hereof, Employee shall receive compensation as follows:
(1) SALARY. Simtek shall pay or cause to be paid to Employee a salary
as determined by Simtek's President, payable in accordance with Simtek's
then-current payroll policies. Simtek shall pay or cause to be paid to
Employee a salary in the amount of $70,000 (annualized), which amount may
be increased by Simtek, in its discretion, and which will be payable in
accordance with Simtek's then-current payroll policies.
(2) BENEFITS. Employee shall receive such benefits under various
insurance, profit-sharing, and other benefit plans as may be available to
Simtek employees in the sole discretion of Simtek's President. For the
purposes of determining eligibility dates for benefits under Simtek plans
(including vacation and sick leave, but excluding vesting under any stock
option plan and provided that no vacation or sick leave shall accrue prior
to the one year before the date hereof), Employee's date of hire shall be
the date of hire with Integrated Logic Systems, Inc., a wholly-owned
subsidiary of Simtek.
(3) OPTION. Employee shall be granted a stock option to purchase
200,000 shares of Common Stock of Simtek under its existing stock option
plan. Such option shall be a non-qualified stock option and shall become
exercisable upon Simtek's normal terms and conditions with the vesting
commencement date being the date of this Agreement and the grant date being
no later than 30 days from the date of this Agreement.
5. VACATION AND LEAVE. Employee shall be permitted to take vacation and leave in
accordance with Simtek policies and procedures.
6. REIMBURSEMENT OF EXPENSES. Except as otherwise provided in this Agreement,
Employee shall be paid or reimbursed for ordinary and necessary expenses
incurred in the performance of his duties under this Agreement, upon submission
of appropriate vouchers and supporting documentation. Such expenses may include
costs of out-of-state travel, including meals, lodging, and transportation.
Payment or reimbursement shall be governed by the provisions of Simtek's
policies and procedures.
7. OUTSIDE EMPLOYMENT AND OTHER ACTIVITIES. It is expected that Employee will
devote all of his working time and efforts to the performance of the duties and
responsibilities that he has assumed under this Agreement. Employee may not
engage in outside activities (including, by way of illustration, educational
pursuits and other business or consulting work) that interfere with the
performance of his duties under this Agreement, unless he receives the express
and prior permission of the Simtek President. Employee agrees that, during the
term of this Agreement and for the period one year after he leaves the employ of
Simtek, he will not, either directly or indirectly, anywhere in the world.
(1) Be engaged or otherwise involved as an owner, sole proprietor,
partner, shareholder, director, officer, or in any other capacity in
business competitive to the business conducted by Simtek (other than being
a shareholder of not more than 1% of any public company); or
(2) Enter the employment of or render any services or information to
any other person, corporation, limited liability company, partnership,
business trust, association or other entity engaged in any business
competitive to the business conducted by Simtek; or
(3) Be engaged or otherwise involved in any activity which interferes
with or xxxxx the business relationship Simtek has with any of its
respective customers, contractors, vendors, partners, or investors. For all
purposes under this Section, a business shall be deemed competitive with
the business conducted by Simtek if the business develops or produces
integrated circuits converted from programmable logic devices.
8. INTERFERENCE WITH RELATIONSHIPS. Employee agrees that, during the term of
this Agreement and for one year after he leaves the employ of Simtek, he will
not (i) hire, engage or assist in or influence the engagement or hiring of any
employee of Simtek by any business deemed competitive to the business conducted
by Simtek, or (ii) employ, recruit, encourage or induce in any way any employee
or contractor of Simtek to resign or sever his or her employment or relationship
with Simtek.
9. DEVELOPMENTS. All inventions, discoveries, ideas, improvements, developments,
devices, tools, software, programming, code, data compilations, work product,
and video, audio and multimedia productions, including, but not limited to,
materials prepared for use on the Internet, apparatus, designs, promotional
ideas, books, articles, publications, practices, processes, formulas or products
(all of which are together referred to in this Agreement as "Developments")
useful in or related to the business in which Simtek may at the time be engaged
or proposes to be engaged, whether patentable, copyrightable or otherwise, made,
discovered, conceived, developed, reduced to practice or secured by Employee,
solely or jointly with others, or otherwise, during the term of this Agreement
will be disclosed promptly and fully to Simtek, constitute works for hire, and
are the property of Simtek. All right, title, and
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interest in and to such inventions belong to Simtek, and are hereby assigned and
transferred to Simtek. Simtek owns and has the exclusive worldwide right to use,
reproduce, make and distribute copies of, sell, lease, license, lend, and
prepare derivative works on the basis of the inventions. Employee is obligated
and agrees to take all steps deemed necessary by Simtek, either during or
subsequent to his employment with Simtek, to present, perfect and maintain
Simtek's rights in such inventions, including, but not limited to, executing
confirmation assignments and executing, acknowledging and delivering to Simtek
all instruments which Simtek may deem necessary or desirable to enable Simtek to
file and prosecute applications for, and to acquire, maintain and enforce, all
trademarks, service marks, trade dress, registrations, domain name rights, trade
names, copyrights, licenses, patents and other intellectual property rights,
covering such Developments. No royalty shall be paid Employee for use of any of
the Developments subject to this Agreement. Employee agrees that his
compensation is full and adequate consideration for such Developments.
10. CONFIDENTIALITY. In the course of his management responsibilities, Employee
will have access to valuable proprietary information concerning Simtek's
operations, including but not limited to the identity of past and present
funding sources, vendors and clients; the identity of past and present
applicants and employees; technological information, developments and data;
computer software; hiring and recruiting systems; financial data; marketing and
business plans; and personnel and other corporate information (all of which are
together referred to in this Agreement as the "Confidential Information").
Employee acknowledges and agrees that the Confidential Information constitutes
Simtek's trade secrets. For good and valuable consideration, including, but not
limited to, Employee's employment and the compensation provided for herein,
Employee agrees as follows:
Employee will keep the Confidential Information confidential and will not
utilize such information or any part of it, or disclose such information or any
part of it to any other person, except in a manner consistent with the business
purposes of Simtek and, for a period of four years subsequent to Employee's
separation from employment with Simtek, such Confidential Information shall not
be disclosed without the express written consent of Simtek.
All files, records (including records relating to current and former
clients, customers, applicants, and employees), documents, computer systems,
handbooks and other records relating to Simtek's business, coming into
Employee's possession, shall remain the exclusive property of Simtek, and shall
be returned to Simtek immediately on termination of this Agreement, for
whatever
reason.
11. NEED FOR ARTICLES 7 THROUGH 11. Employee agrees as follows:
(1) Articles 7 through 11 are reasonable and necessary to protect the
goodwill and business interests of Simtek;
(2) The time duration of Articles 7 through 11 is reasonable and
necessary to protect the goodwill and business interests of Simtek;
(3) The worldwide geographical scope of Articles 7 through 11 are
reasonable and necessary to protect the goodwill and business interests of
Simtek; and
(4) Articles 7 through 11 are not oppressive to Employee and do not
impose a greater restraint on Employee than is reasonably necessary to
protect the goodwill and other valid business interests of Simtek. Employee
(i) represents to Simtek that, in the event his employment with Simtek
terminates for any reason, he believes he will be able to earn a
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livelihood without violating the provisions of Articles 7 through 11, and
(ii) acknowledges that this statement concerning his ability to earn a
livelihood without violating the provisions of Articles 7 through 11 is a
material condition to his continued employment with Simtek. If Employee
violates any of the provisions of Articles 7 through 11, entitling Simtek
to injunctive relief or any other relief against him as may be provided by
law or in equity, Articles 7 through 11 shall extend and be in effect for
an additional time period equal to the length of time Employee acts in
violation of any provision of Articles 7 through 11. Employee and Simtek
agree that the provisions of Articles 7 through 11 are independent of any
other provisions of this Agreement and that the breach by Simtek of any
other provision of this Agreement is not a defense to any breach of any
provision of Articles 7 through 11 by the Employee.
12. REMEDIES. Employee acknowledges that compliance with the restrictions above
is necessary to protect the programs and goodwill of Simtek, and that a breach
of this Agreement by Employee will result in irreparable and continuing damage
to Simtek, for which money damages may not provide adequate relief.
Consequently, Employee agrees that, in the event that he breaches or threatens
to breach the restrictive covenants contained in this Agreement, Simtek shall be
entitled to both (1) a preliminary or permanent injunction to prevent the
continuation of such harm, and (2) money damages insofar as that can be
determined, and costs and expenses including attorneys fees, if any, incurred in
any enforcement proceeding. Nothing in this Agreement shall be construed to
prohibit Simtek from also pursuing any other remedy available in law or equity.
13. Survival. In the event that any clause or provision of this Agreement
becomes or is found to be invalid or unenforceable for any reason, such clause
or provision may be severed or modified to the extent necessary to make this
Agreement legal and enforceable and, if such clause or provision is so severed
or modified, the remainder of this Agreement shall continue unabated in full
force and effect.
14. NOTICE. Notice given under this Agreement shall be provided in writing to
Employee's immediate supervisor.
15. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between
the parties hereto with reference to the subject matter hereof. There are no
other understandings, warranties, or representations of any kind except as
expressly set forth or referenced or described herein. In the event of a
conflict between this Agreement and the Simtek employee handbook or policies, or
any other document referenced herein, the terms of this Agreement shall control.
16. AMENDMENT. This Agreement may be amended, altered or revoked at any time in
whole or in part only through a written instrument setting forth such changes
signed by both parties.
17. WAIVER. No provision of this Agreement shall be waived except by an
agreement in writing signed by the waiving party. A waiver of any term or
provision of this Agreement shall not be construed as a waiver of any other term
or provision.
18. ASSIGNMENT. In the event of a sale or other transfer of Simtek's assets or
substantially all of such assets, Simtek may assign its rights, duties and
obligations hereunder to another. Neither this Agreement, nor any rights or
duties arising under it, may be assigned by Employee to another.
19. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado.
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IN WITNESS WHEREOF the undersigned have executed this Agreement.
SIMTEK CORPORATION
Date: May 9, 2000 By: /s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx, President
Address: 0000 Xxxxx Xxxxxxx Xxxx., Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
EMPLOYEE
Date: May 9, 2000 /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
Address: 0000 Xxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
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