EXHIBIT 10.8
TRANSCRIPTION ENTERPRISES, INC.
EMPLOYMENT AGREEMENT
This Agreement is entered between Transcription Enterprises, Inc., a
Delaware corporation (the "Company"), and Xxxxx XxxXxxx (the "Employee") this
1st day of January, 2000 (the "Effective Date").
WHEREAS, upon the effectiveness of the merger of the Company, a wholly
owned subsidiary of Numerical Technologies, Inc., a California corporation, with
Transcription Enterprises Limited, a California corporation (the "Merger"), the
Company will be the surviving entity;
WHEREAS, in connection with the Merger, the parties desire and agree to
enter into an employment relationship by means of this Agreement;
WHEREAS, the consideration for this Agreement is separate and apart from
the consideration for the agreement evidencing the Merger;
NOW THEREFORE in consideration of the promises and mutual covenants herein
contained, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, it is mutually covenanted and
agreed by and among the parties as follows:
1. Position and Duties. As of the Effective Date, Employee shall be
-------------------
employed as Vice-President and General Manager of the Company, reporting to Xx.
Xxxx Pati, Chief Executive Officer of Numerical Technologies, Inc., and assuming
and discharging such responsibilities as are commensurate with Employee's
position. Employee shall have the additional responsibility of ensuring a
smooth, efficient and rapid transition of the Company to its new status as a
subsidiary of Numerical Technologies, Inc. Employee shall perform his duties
faithfully and to the best of Employee's ability and shall devote Employee's
full business time and effort to the performance of Employee's duties hereunder.
2. Term. The term of this Agreement shall commence on the Effective Date
----
and shall terminate two (2) years following the Effective Date.
3. Compensation.
------------
(a) Base Salary. For all services to be rendered by Employee pursuant
-----------
to this Agreement, Employee shall receive an annual base salary of Two Hundred
Thousand Dollars ($200,000) payable in accordance with the Company's normal
payroll practices.
(b) Commission. For fiscal year 2000, Employee shall be eligible to
----------
receive an annual commission based on the attainment of certain annual revenue
quotas mutually agreed upon by Employee and the Company. Employee's annual
commission target for fiscal year 2000 will be One Hundred Thousand Dollars
($100,000) for Employee's achievement of one hundred percent (100%) of all
mutually agreed upon revenue quotas. The Company and Employee agree to work
together to establish the annual revenue quotas for fiscal year 2000 as soon as
practicable following commencement of employment. The annual commission, if any,
for fiscal year 2000 shall be paid on or before March 31, 2001.
(c) Option. As soon as reasonably practicable following the Effective
------
Date the Company shall recommend that the Employee be granted an option under
the Numerical Technologies, Inc. 1997 Stock Plan (the "Plan") to purchase up to
one hundred fifty thousand (150,000) shares of Numerical Technologies, Inc. (the
"Parent") Common Stock (the "Shares"), at an exercise price per Share equal to
the fair market value per Share on the grant date (the "Option"). The Option
shall be immediately exercisable for all of the Shares on the date of grant.
However, the Shares shall initially be unvested and subject to repurchase by
Parent upon Employee's termination of employment prior to Employee vesting in
such Shares. The Shares shall vest, and the Parent's repurchase right shall
accordingly lapse, in accordance with the following schedule: fifty percent
(50%) of the Shares shall vest on the second anniversary of the Effective Date,
and six and one-quarter percent (6.25%) of the Shares shall vest at the end of
each three (3) month period thereafter, provided Employee continues in the
employment of the Company on each such vesting date. However, if the Employee's
employment is terminated prior to the second anniversary of the Effective Date
by reason of Employee's death or disability (as defined in the Plan), then the
Shares shall become vested on an accelerated basis, and the Parent's repurchase
right shall accordingly lapse, in accordance with the following schedule: six
and one-quarter percent (6.25%) of the Shares shall vest for each three (3)
month period, measured from the Effective Date, for which Employee completed
employment with the Company prior to Employee's termination by reason of death
or disability. The Option shall be subject to the terms and conditions of the
Numerical Technologies, Inc. 1997 Stock Plan and the stock option agreement
evidencing the Option.
4. Other Benefits. Employee shall be entitled to participate in the
--------------
employee benefit plans and programs of the Company, if any, to the extent that
Employee's position, tenure, salary, age, health and other qualifications make
Employee eligible to participate in such plans or programs, subject to the rules
and regulations applicable thereto. The Company reserves the right to cancel or
change the benefit plans and programs it offers to its employees at any time.
5. Expenses. The Company shall reimburse Employee for reasonable travel,
--------
entertainment or other expenses incurred by Employee in the furtherance of or in
connection with the performance of Employee's duties hereunder, in accordance
with the Company's expense reimbursement policy as in effect from time to time.
-2-
6. Confidential Information. Employee agrees to maintain the
------------------------
confidentiality of all confidential and proprietary information of the Company
and agrees to enter into the Transcription Enterprises, Inc. Confidential
Information and Inventions Assignment Agreement ("Confidentiality Agreement").
7. Arbitration.
-----------
(a) Employee agrees that any dispute or controversy arising out of,
relating to, or in connection with this Agreement, or the interpretation,
validity, construction, performance, breach, or termination thereof, shall be
settled by binding arbitration, to the extent permitted by law, to be held in
Santa Clara, California in accordance with the National Rules for the Resolution
of Employment Disputes then in effect of the American Arbitration Association
(the "Rules"). The arbitrator may grant injunctions or other relief in such
dispute or controversy. The decision of the arbitrator shall be final,
conclusive and binding on the parties to the arbitration. Judgment may be
entered on the arbitrator's decision in any court having jurisdiction.
(b) The arbitrator(s) shall apply California Law to the merits of any
dispute or claim, without reference to rules of conflicts of law. The Employee
hereby consents to the personal jurisdiction of the state and federal courts
located in California for any action or proceeding arising from or relating to
this Agreement or relating to any arbitration in which the parties are
participants.
(c) The parties may apply to any court of competent jurisdiction for a
temporary restraining order, preliminary injunction, or other interim or
conservatory relief, as necessary, without breach of this arbitration agreement
and without abridgment of the powers of the arbitrator.
(d) EMPLOYEE HAS READ AND UNDERSTANDS THIS SECTION, WHICH DISCUSSES
ARBITRATION. EMPLOYEE UNDERSTANDS THAT BY SIGNING THIS AGREEMENT, EMPLOYEE
AGREES TO SUBMIT ANY CLAIMS ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH
THIS AGREEMENT, OR THE INTERPRETATION, VALIDITY, CONSTRUCTION, PERFORMANCE,
BREACH OR TERMINATION THEREOF TO BINDING ARBITRATION, TO THE EXTENT PERMITTED BY
LAW, AND THAT THIS ARBITRATION CLAUSE CONSTITUTES A WAIVER OF EMPLOYEE'S RIGHT
TO A JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL
ASPECTS OF THE EMPLOYER/EMPLOYEE RELATIONSHIP, INCLUDING BUT NOT LIMITED TO,
DISCRIMINATION CLAIMS.
8. Right to Advice of Counsel. Employee acknowledges that Employee has
--------------------------
had the right to consult with counsel and is fully aware of Employee's rights
and obligations under this Agreement.
9. Successors.
----------
(a) Company's Successors. Any successor to the Company (whether direct
--------------------
or indirect and whether by purchase, lease, merger, consolidation, liquidation
or otherwise) to all or substantially all of the Company's business and/or
assets shall assume the obligations under this
-3-
Agreement and agree expressly to perform the obligations under this Agreement in
the same manner and to the same extent as the Company would be required to
perform such obligations in the absence of a succession. For all purposes under
this Agreement, the term "Company," as applicable, shall include any successor
to the Company's business and/or assets which executes and delivers the
assumption agreement described in this subsection (a) or which becomes bound by
the terms of this Agreement by operation of law.
(b) Employee's Successors. Without the written consent of the Company,
---------------------
Employee shall not assign or transfer this Agreement or any right or obligation
under this Agreement to any other person or entity. Notwithstanding the
foregoing, the terms of this Agreement and all rights of Employee hereunder
shall inure to the benefit of, and be enforceable by, Employee's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
10. Notice Clause.
-------------
(a) Manner. Any notice hereby required or permitted to be given shall
------
be sufficiently given if in writing and upon mailing by registered or certified
mail, postage prepaid, to either party at the address of such party or such
other address as shall have been designated by written notice by such party to
the other party.
(b) Effectiveness. Any notice or other communication required or
-------------
permitted to be given under this Agreement will be deemed given on the day when
delivered in person, or the third business day after the day on which such
notice was mailed in accordance with Section 11(a).
11. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the internal substantive laws, but not the choice of law rules,
of the state of California.
12. Severability. The invalidity or unenforceability of any provision of
------------
this Agreement, or any terms hereof, shall not affect the validity or
enforceability of any other provision or term of this Agreement.
13. Integration. This Agreement and the Confidentiality Agreement
-----------
represents the entire agreement and understanding between the parties as to the
subject matter herein and supersedes all prior or contemporaneous agreements
whether written or oral. No waiver, alteration, or modification of any of the
provisions of this Agreement shall be binding unless in writing and signed by
duly authorized representatives of the parties hereto.
14. Taxes. All payments made pursuant to this Agreement shall be subject
-----
to withholding of applicable income and employment taxes.
-4-
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the
case of the Company by its duly authorized officers, as of the day and year
first above written.
TRANSCRIPTION ENTERPRISES, INC.
By: /s/ Xxxxxxxx X. Xxxx
-----------------------------------
Title: President & CEO
--------------------------------
EMPLOYEE:
/s/ Xxxxx XxxXxxx
--------------------------------------
Xxxxx XxxXxxx
-5-
