AMENDMENT TO OFFER LETTER
Exhibit
10.13
AMENDMENT
TO
This
Amendment to Offer Letter (the “Amendment”)
is made
and entered into as of April 12 2006 (“Effective Date”) by and
among Wintegra, Inc. a private company Incorporated under the laws of the State
of Delaware, with its principal offices at Austin, Texas (the “Company”),
and
Xxxxxxx
Xxxxxxx,
residing at 0000 Xxxxxxx Xxxx, Xxxxxx, XX 00000 (the “Employee”).
WHEREAS,
the Company and the Employee previously executed an Offer Letter dated 4
Sep, 2000 (the "Offer
Letter")
WHEREAS,
the Company and the Employee desire to amend certain of the terms of the
employment of Employee
NOW,
THEREFORE, in consideration of the promises and the mutual covenants, terms
and
conditions hereinafter set forth, and for other good and valuable consideration,
the receipt of which is hereby specifically acknowledged, the parties hereto
agree as follows:
1. Prior
Notice.
The
parties wish to amend the following sentence in the Offer Letter as follows:
"You
will
provide to us, and we agree to provide to you 60
days
written notice of any desire to terminate this agreement."
will
be
amended in its entirety to read:
"You
will
provide to us, and we agree to provide to you 90
days
written notice of any desire to terminate this agreement."
2. Severance
Without
derogation of Section 1, upon termination of employment from the Company for
any
reason, Employee shall receive payment of either the amounts set forth in
Section 2.1 or Section 2.2 below in consideration of Employee's undertaking
not
to compete with the Company.
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2.1
|
Involuntary
Termination.
If the Company terminates Employee’s employment with the Company for
reasons other than Cause, death or Disability, or Employee resigns
from
his employment with the Company due to a Constructive Termination,
then
Employee shall be entitled to receive continuing payments of severance
pay
(less applicable tax withholding) at the Salary as then in effect,
for a
period of three (3) months from the Termination Date, payable in
accordance with the Company’s normal payroll
policies.
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|
2.2
|
Change
of Control Severance.
If within twelve (12) months of a Change of Control of the Company,
the
Company terminates Employee’s employment with the Company for reasons
other than Cause, death, or Disability or Employee resigns from his
employment with the Company due to a Constructive Termination, Employee
will be entitled to receive:
|
| (a) |
Continuing
payments of severance pay (less applicable tax withholding) of Salary
as
then in effect, for a period of six (6) months from the Termination
Date,
payable in accordance with the Company’s normal payroll
policies;
|
| (b) |
Vesting
as of the Termination Date of fifty percent (50%) of all unvested
options
granted to Employee; and
|
| (c) |
Extension
of the exercise period enabling Employee to exercise his options
through
the first anniversary of the Termination Date; notwithstanding, in
no case
shall the exercise period be extended beyond the maximum term of
the
options. Additionally, the exercise period of the options may not
be
extended beyond the later to occur of (x) the fifteenth day of the
third
month after the options would have otherwise expired due to termination
of
Employee’s
employment, or (y) the end of the calendar year during which the
options
would have otherwise expired due to termination of Employee’s
employment.
|
3. Definitions.
| (a) |
Cause.
For purposes of this Amendment, “Cause” is defined as:
|
| i. |
an
act of dishonesty made by Employee in connection with Employee's
responsibilities as an employee;
|
| ii. |
Employee's
conviction of, or plea of nolo
contendere
to, a felony;
|
| iii. |
Employee's
gross misconduct; or
|
| iv. |
Employee's
continued substantial violations of his employment duties after Employee
has received a written demand for performance from the Company which
specifically sets forth the factual basis for the Company's belief
that
Employee has not substantially performed his
duties.
|
| (b) |
Change
of Control.
For purposes of this Agreement, “Change of Control” is defined as:
|
| i. |
any
“person” (as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended) is or becomes the “beneficial
owner” (as defined in Rule 13d-3 under said Act), directly or
indirectly, of securities of the Company representing fifty percent
(50%)
or more of the total voting power represented by the Company's then
outstanding voting securities;
|
| ii. |
a
change in the composition of the Board of Directors of the Company
occurring within a two (2) year period, as a result of which fewer
than a
majority of the directors are Incumbent Directors. “Incumbent Directors”
will mean directors who either (A) are directors of the Company as of
the date of the consummation of the Company's public offering, or
(B) are elected, or nominated for election, to the Board of Directors
of the Company with the affirmative votes of at least a majority
of the
Incumbent Directors at the time of such election or nomination (but
will
not include an individual whose election or nomination is in connection
with an actual or threatened proxy contest relating to the election
of
directors to the Company);
|
| iii. |
the
date of the consummation of a merger or consolidation of the Company
with
any other corporation that has been approved by the stockholders
of the
Company, other than a merger or consolidation which would result
in the
voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) more than
fifty
percent (50%) of the total voting power represented by the voting
securities of the Company, or such surviving entity outstanding
immediately after such merger or consolidation, or the stockholders
of the
Company approve a plan of complete liquidation of the Company; or
|
| iv. |
the
date of the consummation of the sale or disposition by the Company
of all
or substantially all the Company's
assets.
|
| (c) |
Constructive
Termination.
“Constructive Termination” means Employee’s resignation from his
employment within ninety (90) days, plus any applicable thirty (30) day
cure period, following the occurrence of any of the following without
Employee’s consent:
|
| i. |
a
significant reduction of Employee’s duties, position or responsibilities
relative to Employee’s duties, position or responsibilities in effect
immediately prior to such reduction; provided, however, that a reduction
in duties, position or responsibilities solely by virtue of the Company
being acquired and made part of a larger entity will not constitute
a
“Constructive Termination”; or
|
| ii. |
a
reduction of more than ten percent (10%) by the Company of Employee’s
Company Salary as in effect either on the Effective Date or immediately
prior to such reduction (other than as part of an overall reduction
applicable to similarly situated senior Employees of the Company
or its
successor).
|
| (d) |
In
each case, prior to Employee being permitted to resign from his employment
due to a “Constructive Termination”, the Company will have thirty (30)
days to cure any such alleged breach, assignment, reduction or
requirement, after Employee provides the Company written
notice of the actions or omissions constituting such breach, assignment,
reduction or requirement.
|
| (e) |
Disability.
“Disability” means that Employee is determined by the Company to be
disabled under the provisions of the Disability Insurance, and Employee
has received long-term disability benefits for a period of at least
three
(3) months under such plan.
|
| (f) |
Termination
Date.
Subject to the requirements of Section 1 of this Amendment, “Termination
Date” means the effective date of any notice of termination of employment
delivered by one party to the
other.
|
4 Conditions
to Receive Severance Package.
The
severance payments described in this Amendment will be provided to Employee
only
if Employee executes and delivers to the Company, and does not revoke, a
general release of claims in a form acceptable to the Company.
5. Offer
Letter.
The
rights described in this Amendment are in addition to any rights granted to
Employee in the Offer Letter. All terms and conditions of the Offer Letter
that
are not specifically amended by this Amendment shall remain in full force and
effect.
IN
WITNESS WHEREOF, the Company and the Employee have executed this Amendment,
as
of the day and year first above written.
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/s/
Xxxxx Xxx-Xxx
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/s/
Xxxxxxx Xxxxxxx
XXXXXXX
XXXXXXX
|
|
|
By:
/s/ Xxxxx Xxx-Xxx
|
Dear
Xxxx:
Wintegra,
Inc. (“We”, “Us”, “Our”) is pleased to offer you a position of Vice-President
of Software, an officer of Wintegra, Inc.,
with
your employment commencing on September 4, 2000. If you decide to
join us, you will receive a starting monthly salary of $10833.33,
less
applicable withholding, which will be paid semi-monthly in accordance with
our
normal payroll procedures. You will also receive a grant of 225,000
shares
of common stock that will be priced at the value of the common stock on your
start date. These stock options will vest 25% on the anniversary date of
your
first year of employment, and thereafter 1/48 per month for a 100% vesting
after
4 years. As our employee, you are also eligible to receive certain employee
benefits including health, dental, life insurance, short and long term
disability and an employer participation of up to 3% in a 401K plan. If you
wish
to cover your dependents on the health and dental plans, you will be asked
to
contribute a portion of the health and dental premiums, as determined by
the
plan. Your position includes 10 floating holidays, 10 vacation days and 5
sick
days per year. These days will be pro-rated for the first calendar year in
which
you join us. Any sick days not used may be converted to vacation days. This
offer and your employment relationship with us are subject to the terms and
conditions of this offer letter (“Offer Letter”).
If
you
choose to accept this offer, your employment with us will be voluntarily
entered
into and will be for no specified period. As a result, you will be free to
resign at any time, for any reason or for no reason, as you deem appropriate.
We
will have a similar right and may conclude our employment relationship with
you
at any time, with or without cause. You will provide to us, and we agree
to
provide to you 60
days
written notice of any desire to terminate this agreement.
If
you
choose to accept this offer, you will receive a bonus of $35,000
after
your first month of employment at Wintegra, and an additional bonus of
$35,000
after
your 9th
month of
employement at Wintegra. Should you choose to terminate this agreement prior
to
your second anniversary of your first day of employment, you must pay back
to
Wintegra all bonus funds received (i.e. up to a maximum of $70,000).
If
you
choose to accept this offer, you agree that during the period of your employment
you will devote full-time efforts to your duties as our employee and that
you
will not participate in business or other activities that conflict with our
best
interests, without prior written concent of the company.
For
purposes of federal immigration law, you will be required to provide to us
documentary evidence of your identity and eligibility for employment in the
United States. You must provide such documentation to us within three (3)
business days of your date of hire as a condition of this offer and of your
employment, and your failure to comply with this condition gives us the right
to
immediately terminate our employment relationship with you.
In
the
event of any dispute or claim relating to or arising out of your employment
relationship with us, this Offer Letter, or the termination of your employment
relationship with us (including, but not limited to, any claims of wrongful
termination or age, sex, disability, race or other discrimination), you and
we
(i) each agree that all such disputes shall be fully and finally resolved
by
binding arbitration conducted by the American Arbitration Association in
Xxxxxx
County, Texas, and (ii) each waives its rights to have such disputes tried
by a
court or jury. However, you and we agree that this arbitration provision
shall
not apply to any disputes or claims relating to or arising out of the misuse
or
misappropriation of our trade secrets, proprietary information, other
proprietary rights or property.
To
indicate your acceptance of our offer, please sign and date this Offer Letter
in
the space provided below and return it to me. A duplicate original is enclosed
for your records. You will be required to sign an Employee Innovations and
Proprietary Rights Assignment Agreement as a condition of this offer and
of your
employment. This letter, along with any agreements relating to proprietary
rights between you and us, set forth the terms of your employment with us
and
supersede any prior representations or agreements, whether written or oral.
This
letter may not be modified or amended except in a writing signed by us and
by
you.
We
look
forward to working with you at Wintegra, Inc. Welcome aboard!
Sincerely,
Wintegra,
Inc.
Signed:
/s/ Xxxxxx O’Dell
Title:
V.P. Marketing
AGREED
TO
AND ACCEPTED
/s/
Xxxxxxx X.
Xxxxxxx Dated:
August 25, 2000
Employee
Name:
EMPLOYEE
INNOVATIONS AND PROPRIETARY RIGHTS
ASSIGNMENT
AGREEMENT
This
Agreement is intended to formalize in writing certain understandings and
procedures which have been in effect since the time I was initially employed
by
Wintegra, Inc. (“Company”). In return for my new or continued employment by
Company and other good and valuable consideration, the receipt and sufficiency
of which I hereby acknowledge, I acknowledge and agree that:
1. Duties;
At-Will Employment; No Conflict.
I will
perform for Company such duties as may be designated by Company from time
to
time. I agree that my employment with Company is for no specified term, and
may
be terminated by Company at any time, with or without cause, with the amount
notice specified in the Offer Letter. Similarly, I may terminate my employment
with Company at any time, with or without cause, with the amount notice
specified in the Offer Letter. During my period of employment by Company,
I will
devote my best efforts to the interests of Company and will not engage in
other
employment or in any activities determined by Company to be detrimental to
the
best interests of Company without the prior written consent of
Company.
2. Prior
Work.
All
previous work done by me for Company relating in any way to the conception,
reduction to practice, creation, derivation, design, development, manufacture,
sale or support of products or services for Company is the property of Company,
and I hereby assign to Company all of my right, title and interest in and
to
such previous work.
3. Proprietary
Information.
My
employment creates a relationship of confidence and trust between Company
and me
with respect to any information:
(a) Applicable
to the business of Company; or
(b) Applicable
to the business of any client or customer of Company, which may be made known
to
me by Company or by any client or customer of Company, or learned by me in
such
context during the period of my employment.
All
such
information has commercial value in the business in which Company is engaged
and
is hereinafter called “Proprietary Information.” By way of illustration, but not
limitation, Proprietary Information includes any and all technical and
non-technical information including patent, copyright, trade secret, and
proprietary information, techniques, sketches, drawings, models, inventions,
know-how, processes, apparatus, equipment, algorithms, software programs,
software source documents, and formulae related to the current, future and
proposed products and services of Company, and includes, without limitation,
respective information concerning research, experimental work, development,
design details and specifications, engineering, financial information,
procurement requirements, purchasing manufacturing, customer lists, business
forecasts, sales and merchandising and marketing plans and information.
“Proprietary Information” also includes proprietary or confidential information
of any third party who may disclose such information to Company or to me
in the
course of Company's business.
4. Ownership
and Nondisclosure of Proprietary Information.
All
Proprietary Information is the sole property of Company, Company’s assigns, and
Company’s customers, and Company, Company’s assigns and Company’s customers
shall be the sole and exclusive owner of all patents, copyrights, mask works,
trade secrets and other rights in the Proprietary Information. I hereby do
and
will assign to Company all rights, title and interest I may have or acquire
in
the Proprietary Information. At all times, both during my employment by Company
and after termination of such employment, I will keep in confidence and trust
all Proprietary Information, and I will not use or disclose any Proprietary
Information or anything directly relating to Proprietary Information without
the
written consent of Company, except as may be necessary in the ordinary course
of
performing my duties as an employee of Company.
5. Ownership
and Return of Materials.
All
materials (including, without limitation, documents, drawings, models,
apparatus, sketches, designs, lists, and all other tangible media of expression)
furnished to me by Company shall remain the property of Company. Upon
termination of my employment, or at any time on the request of Company before
termination, I will promptly (but no later than five (5) days after the
earlier of my employment’s termination or Company’s request) destroy or deliver
to Company, at Company’s option, (a) all materials furnished to me by
Company, (b) all tangible media of expression which are in my possession
and which incorporate any Proprietary Information or otherwise relate to
Company’s business, and (c) written certification of my compliance with my
obligations under this sentence.
6. Innovations.
As used
in this Agreement, the term “Innovations” means all processes, machines,
manufactures, compositions of matter, improvements, inventions (whether or
not
protectable under patent laws), works of authorship, information fixed in
any
tangible medium of expression (whether or not protectable under copyright
laws),
moral rights, mask works, trademarks, trade names, trade dress, trade secrets,
know-how, ideas (whether or not protectable under trade secret laws), and
all
other subject matter protectable under patent, copyright, moral right, mask
work, trademark, trade secret or other laws, and includes without limitation
all
new or useful art, combinations, discoveries, formulae, manufacturing
techniques, technical developments, discoveries, artwork, software, and designs.
“Innovations” includes “Inventions,” which is defined to mean any inventions
protected under patent laws.
7. Disclosure
of Prior Innovations.
I have
identified on Exhibit A (“Prior Innovations”) attached hereto all
Innovations, applicable to the business of Company or relating in any way
to
Company's business or demonstrably anticipated research and development or
business, which were conceived, reduced to practice, created, derived,
developed, or made by me prior to my employment with Company (collectively,
the
“Prior Innovations”), and I represent that such list is complete. I represent
that I have no rights in any such Innovations other than those Prior Innovations
specified in Exhibit A (“Prior Innovations”). If there is no such list on
Exhibit A (“Prior Innovations”), I represent that I have neither conceived,
reduced to practice, created, derived, developed nor made any such Prior
Innovations at the time of signing this Agreement.
8. Assignment
of Innovations; License of Prior Innovations.
I
hereby agree promptly to disclose and describe to Company, and I hereby do
and
will assign to Company or Company’s designee my entire right, title, and
interest in and to, (a) each of the Innovations (including Inventions), and
any associated intellectual property rights, which I may solely or jointly
conceive, reduce to practice, create, derive, develop or make during the
period
of my employment with Company, which either (i) relate, at the time of
conception, reduction to practice, creation, derivation, development, or
making
of such Innovation, to Company's business or actual or demonstrably anticipated
research or development, or (ii) were developed on any amount of Company's
time or with the use of any of Company's equipment, supplies, facilities
or
trade secret information, or (iii) resulted from any work I performed for
Company, and (b) each of the Innovations which is not an Invention (as
demonstrated by me by evidence meeting the clear and convincing standard
of
proof), and any associated intellectual property rights, which I may solely
or
jointly conceive, develop, reduce to practice, create, derive, develop, or
make
during the period of my employment with Company, which are applicable to
the
business of Company (collectively, the Innovations identified in clauses
(a) and (b) are hereinafter the “Company Innovations”). To the extent any
of the rights, title and interest in and to Company Innovations cannot be
assigned by me to Company, I hereby grant to Company an exclusive, royalty-free,
transferable, irrevocable, worldwide license (with rights to sublicense through
multiple tiers of sublicensees) to practice such non-assignable rights, title
and interest. To the extent any of the rights, title and interest in and
to
Company Innovations can be neither assigned nor licensed by me to Company,
I
hereby irrevocably waive and agree never to assert such non-assignable and
non-licensable rights, title and interest against Company or any of Company’s
successors in interest to such non-assignable and non-licensable rights.
I
hereby grant to Company or Company’s designees a royalty free, irrevocable,
worldwide license (with rights to sublicense through multiple tiers of
sublicensees) to practice all applicable patent, copyright, moral right,
mask
work, trade secret and other intellectual property rights relating to any
Prior
Innovations which I incorporate, or permit to be incorporated, in any Company
Innovations. Notwithstanding the foregoing, I agree that I will not incorporate,
or permit to be incorporated, any Prior Innovations in any Company Innovations
without Company's prior written consent.
9. Cooperation
in Perfecting Rights to Proprietary Information and Innovations.
(a) I
agree
to perform, during and after my employment, all acts deemed necessary or
desirable by Company to permit and assist Company, at Company’s expense, in
obtaining and enforcing the full benefits, enjoyment, rights and title
throughout the world in the Proprietary Information and Innovations assigned
or
licensed to, or whose rights are irrevocably waived and shall not be asserted
against, Company under this Agreement. Such acts may include, but are not
limited to, execution of documents and assistance or cooperation (i) in the
filing, prosecution, registration, and memorialization of assignment of any
applicable patents, copyrights, mask work, or other applications, (ii) in
the enforcement of any applicable patents, copyrights, mask work, moral rights,
trade secrets, or other proprietary rights, and (iii) in other legal
proceedings related to the Proprietary Information or Innovations.
(b) In
the
event that Company is unable for any reason to secure my signature to any
document required to file, prosecute, register, or memorialize the assignment
of
any patent, copyright, mask work or other applications or to enforce any
patent,
copyright, mask work, moral right, trade secret or other proprietary right
under
any Proprietary Information (including improvements thereof) or any Innovations
(including derivative works, improvements, renewals, extensions, continuations,
divisionals, continuations in part, continuing patent applications, reissues,
and reexaminations thereof), I hereby irrevocably designate and appoint Company
and Company’s duly authorized officers and agents as my agents and
attorneys-in-fact to act for and on my behalf and instead of me, (i) to
execute, file, prosecute, register and memorialize the assignment of any
such
application, (ii) to execute and file any documentation required for such
enforcement, and (iii) to do all other lawfully permitted acts to further
the filing, prosecution, registration, memorialization of assignment, issuance,
and enforcement of patents, copyrights, mask works, moral rights, trade secrets
or other rights under the Proprietary Information, or Innovations, all with
the
same legal force and effect as if executed by me.
10. No
Violation of Rights of Third Parties.
My
performance of all the terms of this Agreement and as an employee of Company
does not and will not breach any agreement to keep in confidence proprietary
information, knowledge or data acquired by me prior to my employment with
Company, and I will not disclose to Company, or induce Company to use, any
confidential or proprietary information or material belonging to any previous
employer or others. I am not a party to any other agreement which will interfere
with my full compliance with this Agreement. I agree not to enter into any
agreement, whether written or oral, in conflict with the provisions of this
Agreement.
11. Covenant
Not to Compete.
During
the term of this Agreement, and for a period of eight
(8) months
following the termination of my employment for any reason, in Texas
and in
any other geographic region of the United States in which the Company does
business, or any other country in which the Company does business, I agree
not
to be employed by, serve as director of, consultant or advisor to any business
that engages directly in the development or sale of products or services
that
compete against the Company and I further agree not to develop or assist
others
in developing products or services with the same or similar functionality
to the
products developed or under development by the Company prior to and during
the
term of my employment at the Company. I further acknowledge and agree to
the
reasonableness of this covenant not to complete and the reasonableness of
the
geographic area and duration of time which are a part of said covenant. I
also
acknowledge and agree that this covenant will not preclude me from becoming
gainfully employed following termination of employment with
Company.
12. No
Solicitation.
During
the term of my employment with Company and for a period of one
(1) year
thereafter, I will not solicit, encourage, or cause others to solicit or
encourage any employees of Company to terminate their employment with Company.
13. Survival.
This
Agreement (a) shall survive my employment by Company; (b) does not in
any way restrict my right or the right of Company to terminate my employment
at
any time, for any reason or for no reason; (c) inures to the benefit of
successors and assigns of Company; and (d) is binding upon my heirs and
legal representatives.
14. Notices.
Any
notice required or permitted by this Agreement shall be in writing and shall
be
delivered as follows, with notice deemed given as indicated: (a) by
personal delivery, when delivered personally; (b) by overnight courier,
upon written verification of receipt; (c) by telecopy or facsimile
transmission, upon acknowledgment of receipt of electronic transmission;
or
(d) by certified or registered mail, return receipt requested, upon
verification of receipt. Notices to me shall be sent to any address in Company's
records or such other address as I may specify in writing. Notices to Company
shall be sent to Company's Human Resources Department or to such other address
as Company may specify in writing.
15. Governing
Law.
This
Agreement shall be governed in all respects by the laws of the United States
of
America and by the laws of the State of Texas. Each of the parties irrevocably
consents to the exclusive personal jurisdiction of the federal and state
courts
located in Xxxxxx County, Texas, as applicable, for any matter arising out
of or
relating to this Agreement, except that in actions seeking to enforce any
order
or any judgment of such federal or state courts located in Texas, such personal
jurisdiction shall be nonexclusive.
16. Severability.
If any
provision of this Agreement is held by a court of law to be illegal, invalid
or
unenforceable, (i) that provision shall be deemed amended to achieve as
nearly as possible the same economic effect as the original provision, and
(ii) the legality, validity and enforceability of the remaining provisions
of this Agreement shall not be affected or impaired thereby.
17. Waiver;
Amendment; Modification.
The
waiver by Company of a term or provision of this Agreement, or of a breach
of
any provision of this Agreement by me, shall not be effective unless such
waiver
is in writing signed by Company. No waiver by Company of, or consent by Company
to, a breach by me, will constitute a waiver of, consent to or excuse of
any
other or subsequent breach by me. This Agreement may be amended or modified
only
with the written consent of both me and Company. No oral waiver, amendment
or
modification shall be effective under any circumstances whatsoever.
18. Entire
Agreement.
This
Agreement represents my entire understanding with Company with respect to
the
subject matter of this Agreement and supersedes all previous understandings,
written or oral.
I
certify
and acknowledge that I have carefully read all of the provisions of this
Agreement and that I understand and will fully and faithfully comply with
such
provisions.
| “COMPANY” | EMPLOYEE: | ||
| Wintegra, Inc. | |||
| By: /s/ Xxxxxx O’Dell | By: /s/ Xxxxxxx X. Xxxxxxx | ||
| Title: V.P. Marketing | Printed Name: Xxxxxxx X. Xxxxxxx | ||
| Dated: August 25, 2000 | Dated: August 25, 2000 |
Exhibit A
PRIOR
INNOVATIONS
(Please
list prior innovations here, or write “no prior innovations
exist”.)
No
prior innovations exist.
