EMPLOYMENT AGREEMENT
Exhibit
10.36
This
Employment Agreement (the “Employment Agreement”)
is
entered into as of September 25, 2006 (the “Date
of this Employment Agreement”)
by and
between Xxx Xx, an individual (“Executive”)
and
Jazz Semiconductor, Inc.,
a
Delaware corporation (the “Company”).
Executive and the Company are hereinafter collectively referred to as the
“Parties”,
each
as a “Party”.
A. Whereas,
Acquicor Technology Inc., a Delaware corporation (the “Parent”),
Joy
Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of
Parent (the “Merger
Sub”),
the
Company and the stockholders’ representative named therein are entering into
that certain Agreement and Plan of Merger (the “Merger
Agreement”)
dated
as of the date hereof pursuant to which the
Company will become a wholly-owned subsidiary of Parent (the “Merger”);
B. Whereas,
Executive is a key employee of the Company, and is intimately familiar with
the
Company’s operations, plans, trade secrets, proprietary information, business
activities and operations;
C. Whereas,
Executive’s past experience and skills make Executive singularly qualified to
render special, unique, unusual and extraordinary services to the Company,
and
Executive will receive significant consideration and other benefits from the
consummation of the Merger Agreement;
D. Whereas,
as an
inducement to, and in consideration of, the Parent’s agreement to enter into the
Merger Agreement, Executive has offered to continue to serve as an employee
of
the Company after the date the Merger closes pursuant to the Merger Agreement
(the “Effective
Date”)
and to
provide personal services in exchange for certain compensation and benefits;
and
E. Whereas,
the
Parent would not enter into the Merger Agreement but for Executive’s agreement
to enter into this Employment Agreement and to provide continuing employment
services to the Company pursuant to the terms and conditions set forth herein;
Now,
Therefore,
in
consideration of the mutual promises and covenants contained herein, the Parties
agree as follows:
1. Condition
Precedent. Executive’s
employment with the Company pursuant to this Employment Agreement shall commence
immediately on the Effective Date. If Executive’s employment with the Company
ends for any reason prior to the Effective Date, or the Merger is not
consummated for any reason, the Employment Agreement shall be deemed null and
void, and the offer of employment contained herein shall not be binding upon
the
Company, the Parent or any other person or entity.
2. Employment
by the Company.
2.1 Job
Title and Responsibilities.
The
Company shall employ Executive in the position of Chief Executive Officer and
President
(“CEO”)
and
Executive hereby accepts such employment on the terms set forth herein.
Executive shall report directly to the Chief Executive Officer of Parent (the
“Parent
CEO”),
and
shall perform all duties customarily associated with Executive’s job title and
all such other duties as may be reasonably assigned to Executive. Executive
shall perform his duties from the Company’s corporate headquarters in Newport
Beach, California or from such other location that Executive and the Company
may
agree upon. Executive will devote his best efforts and substantially all of
his
professional time and attention to the business of the Company, subject to
reasonable vacation or sick leave allowed by Company policy or as otherwise
permitted by the Company. The Company reserves the right to change Executive’s
job title, duties, reporting relationship and work location from time to time,
as it deems necessary, subject to the terms and conditions set forth
herein.
2.2 Company
Employment Policies.
Executive agrees to abide by all Company employment policies and procedures
in
effect from time to time that are applicable to management level employees
of
the Company, and to sign and acknowledge receipt of any such written policies
or
procedures as requested by the Company from time to time. Except for the
Company’s at-will employment policy (described below), the Company may modify,
revoke, suspend or terminate its policies and procedures at any time, with
or
without notice.
3. Compensation
and Benefits.
3.1 Salary.
Executive shall receive for services rendered hereunder a base salary paid
at
the rate of $422,923 per year, less required payroll deductions and withholdings
(the “Base
Salary”),
paid
on the Company’s customary payroll payment dates. The Company reserves the right
to modify Executive’s compensation at other times, subject to all other terms
and conditions set forth in this Employment Agreement.
3.2 Annual
Performance Bonus. Executive
shall be eligible to earn annual bonus compensation (the “Bonus”)
as a
participant in the Company's current 2006 Employee Quarterly Performance Bonus
Program and in any annual bonus plan that may hereafter be established by the
Company for the Executive or its executive team generally. The prerequisites
for
Executive’s earning of any Bonus in a 2007 plan and in any plan hereafter
established, as well as the amount of any bonus that may be awarded, shall
be
determined by the terms and conditions of the applicable bonus plan and/or
by
the Parent's Board of Directors (the “Board”)
in its
discretion. To the extent that the amount of Executive’s Bonus is based
on Executive’s achievement of certain Company and personal performance and
business objectives (the “Performance
Objectives”),
the
Performance Objectives shall be approved by the Parent CEO for the relevant
Bonus year. It shall be Executive’s responsibility to obtain written approval of
the Performance Objectives before the start of the applicable Bonus year. The
Parent CEO, after consulting with the Board, will determine, in his sole
discretion, to what extent Executive achieved the Performance Objectives, and
the amount of the Bonus earned as a result, if any. Executive must remain
employed with the Company through the end of the accounting quarter in order
to
be eligible to earn a Bonus for that quarter. No pro-rated or partial Bonus
may
be earned or paid. Executive shall not be eligible to earn any other bonus
or
incentive compensation from the Company except as expressly authorized in a
writing signed by the Parent CEO.
3.3 Stock
Options/Equity. Executive
may be awarded stock options or other equity awards (collectively, the
“Equity
Awards”)
pursuant to terms of the Company’s governing equity incentive plan (the
“Plan”)
as
determined by the Compensation Committee of the Board in its sole discretion.
The exercisability, vesting and other terms and conditions governing the Equity
Awards will be governed solely by the Plan and separate written agreements
governing such Equity Awards, and not by this Employment Agreement.
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3.4 Expense
Reimbursements. Executive
will be reimbursed by the Company for all reasonable, documented business
expenses incurred in the course of performing his duties hereunder, in
accordance with the Company’s governing expense reimbursement policies and
procedures, in effect from time to time. When traveling on Company business,
Executive shall be entitled to business class or first class airline travel.
3.5 Company
Benefits Package.
Executive will continue to be eligible to participate in the Company’s standard
employee benefits package (including group medical, dental and vision insurance
coverage, paid holiday, vacation and sick leave, and 401(k) plan participation)
on the terms and conditions applicable to such benefit plans, as may be in
effect from time to time. Executive and the Company each hereby represent that
as of the Date of this Employment Agreement, Executive has a balance of 100.28
hours of accrued, unused vacation time, and that Executive will continue to
accrue additional vacation after the Effective Date at his then-current accrual
rate (i.e.,
4.62
hours per pay period) in accordance with the Company’s vacation policies and
procedures in effect from time to time, up to a maximum accrued balance of
1.75
times Executive’s annual vacation accrual rate. For purposes of determining
Executive’s eligibility and/or rights under any applicable Company benefit plan,
Executive will be credited as providing employment services effective as of
his
start date as reflected in the Company’s records (i.e,
January
24, 2000). The Company reserves the right to suspend, modify or terminate
employee benefits at any time, in its sole discretion.
4. Proprietary
Information, Rights and Duties.
4.1 Employee
Confidential Information and Inventions Agreement.
As a
condition of employment, Executive must sign the Employee Confidential
Information and Inventions Assignment Agreement (the “Confidential
Information Agreement”),
attached hereto as Exhibit
A.
4.2 Exclusive
Property.
Executive agrees that all Company-related business procured by Executive, and
all Company-related business opportunities and plans made known to Executive
while employed by the Company, are and shall remain the permanent and exclusive
property of the Company.
5.
Outside
Activities During Employment.
5.1 Activities.
Except
with the prior written consent of the Board and as otherwise provided below,
Executive will not during his employment with the Company undertake or engage
in
any other employment, occupation or business enterprise. Executive may engage
in
civic and not-for-profit activities so long as such activities do not materially
interfere with the performance of
his
duties hereunder. Subject to the limitations of Sections 5.2 and 5.3 of this
Employment Agreement and with the prior written consent of the Board, Executive
may serve as a director of other corporations and may devote a reasonable amount
of his time to other types of business or public activities not expressly
mentioned in this Section.
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5.2 Investments
and Interests.
During
Executive’s employment with the Company, Executive
agrees
not to acquire, assume or participate in, directly or indirectly, any position,
investment or interest known by his to be adverse or antagonistic to the
Company, its business or prospects, financial or otherwise.
5.3 Non-Competition.
During
Executive’s employment with the Company, except on behalf of the Company,
Executive will not directly or indirectly, whether as an officer, director,
stockholder, partner, proprietor, associate, representative, consultant, or
in
any capacity whatsoever engage in, become financially interested in, be employed
by or have any business connection with any other person, corporation, firm,
partnership or other entity whatsoever known by his to compete directly with
the
Company, anywhere in the world, in any line of business engaged in (or planned
to be engaged in) by the Company; provided,
however,
that
the Executive may purchase or otherwise acquire up to (but not more than) one
percent (1%) of any class of securities of any enterprise (but without
participating in the activities of such enterprise) if such securities are
listed on any national or regional securities exchange or have been registered
under Section 12(g) of the Securities Exchange Act of 1934, as
amended.
6. Termination/Severance
Benefits.
6.1 At-Will
Employment. Executive’s
relationship with the Company is at-will. Accordingly, both the Company and
Executive may terminate the employment relationship at any time, with or without
Cause or good reason, and with or without advance notice. Upon termination
of
Executive’s employment for any reason (the “Termination
Date”),
the
Company will pay Executive all accrued but unpaid base salary, accrued but
unpaid bonuses, unpaid expense reimbursements and accrued but unused vacation
earned through the Termination Date, less applicable withholdings and
deductions, in accordance with applicable law. Except as expressly provided
in
Section 6.2 and 6.3 of this Employment Agreement, Executive shall not be
entitled to receive any additional compensation (including Base Salary, Bonuses,
incentive compensation, or equity), severance, or benefits from the Company
after the Termination Date, with the exception of any vested right Executive
may
have under the express terms of a written ERISA-qualified benefit plan
(e.g.,
401(K)
account). To the extent Executive is governed by any severance plan, program
or
policy which the Company has in effect now or may adopt in the future, Executive
shall be entitled to receive only the greater of the severance benefits
available to him under any such plan, program or policy, or under this
Employment Agreement.
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6.2 Severance
Benefits.
(a) Benefits.
If,
within one (1) year after the Effective Date, Executive’s employment with the
Company is terminated without Cause or Executive resigns his employment for
any
or no reason (each a “Covered Termination”), the Company shall pay Executive, as
severance, an amount equal to two (2) times the sum of (i) Executive’s
annualized Base Salary in effect as of the Effective Date (i.e., $845,846),
plus
(ii) an amount equal to the total bonus compensation paid to Executive during
the twelve (12) month period immediately preceding the Termination Date(the
“Severance Payment”). The Severance Payment shall be subject to payroll
withholding and deduction. (For purposes of calculating the Severance Payment,
the Parties acknowledge and agree that, during the twelve (12) month period
immediately prior to Date of this Employment Agreement, Executive received
the
bonus compensation set forth in Exhibit B hereto.) To the extent provided by
the
federal COBRA law or, if applicable, state insurance laws (collectively,
“COBRA”) and by the Company’s then-current group health insurance policies,
provided Executive timely elects continued health insurance coverage pursuant
to
the governing COBRA laws and the terms of the applicable health insurance plans,
as a further severance benefit, the Company will pay directly to the applicable
insurance carrier all COBRA premiums necessary to continue Executive’s health
insurance coverage as of the Termination Date (including dependent coverage,
if
applicable) in effect for eighteen (18) months after the Termination Date (the
“COBRA Reimbursement”). In addition, the Company shall, at the end of such
eighteen (18) month period, pay directly to Executive a lump sum equal to six
(6) times the then most recent monthly COBRA premium paid by Company to the
applicable insurance carrier (the “Additional Health Reimbursement”). The COBRA
Reimbursement and the Additional Health Reimbursement shall be reported for
tax
purposes as earnings. The Additional Health Reimbursement shall be subject
to
payroll withholding and deduction. The Executive shall at his discretion be
allowed to receive the Severance Payment shall be paid in a lump sum or as
salary and benefits continuation in bi-weekly installments. If the Executive
chooses to be paid in a lump sum, such amount, less applicable withholdings
and
deductions, will be paid within ten (10) business days after Executive provides
the Company with an effective Release, as required under Section 6.2(d) below.
If the Executive chooses to be paid in salary continuation, then the Severance
Payment, less applicable withholdings and deductions, will be paid in bi-weekly
installments over the applicable 52 week or 104 week period after the Executive
provides the Company with an effective Release, as required under Section 6.2(d)
below.
(b) Cause.
For
purposes of this Employment Agreement, “Cause” to terminate Executive’s
employment shall mean any of the following: (i) Executive’s conviction of, a
guilty plea with respect to, or a plea of
nolo
contendere
to, a
charge that Executive has committed a felony under the laws of the United States
or of any state; (ii) willful and material breach of Executive’s obligations
under any written agreement between Executive and the Company, including without
limitation this Employment Agreement and the Confidential Information Agreement;
(iii) Executive’s willful misconduct, material failure or refusal to perform his
job duties, or gross neglect of his duties, provided
that such unsatisfactory performance, if reasonably susceptible of cure, has
not
been cured within thirty (30) days following Executive’s receipt of written
notice from the Company specifying the particulars of the conduct constituting
Cause;
and
(iv)
Executive’s engagement in any activity that constitutes a material conflict of
interest with the Company, the Parent or any of their affiliated entities.
Termination of Executive’s employment because of Executive’s death or certified
disability (which disability renders Executive unable to perform the essential
duties of his position with or without reasonable accommodation for sixty (60)
consecutive days or a total of one hundred and twenty (120) days in any twelve
(12) month period) shall not constitute
“Cause” for termination under this Employment Agreement. No act, nor failure to
act, on the Executive’s part, shall be considered “willful” unless he has acted
or failed to act, with an absence of good faith and without a reasonable belief
that his action or failure to take action was in the best interests of the
Company.
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(c) Release
And Other Requirements. Executive
must provide the Company with an effective general release of claims in
substantially the form attached hereto as Exhibit
B
(the
“Release”)
as a
precondition to receiving the Severance Payment or COBRA Reimbursement
(together, the “Severance
Benefits”).
Executive further understands and agrees that, if Executive materially breaches
his obligations under the Confidential Information Agreement or that certain
Noncompetition Agreement entered into by the Executive on behalf of the Company,
the Parent and certain other Indemnitees on the date hereof (the “Noncompetition
Agreement”),
and
such
material breach, if reasonably susceptible of cure, has not been cured within
thirty (30) days following Executive’s receipt of written notice from the
Company specifying the particulars of the conduct constituting a material breach
of either such agreement, then in
addition (and without prejudice) to all other remedies and relief available
to
the Company; (i) Executive shall be eligible to receive only $100.00 of total
Severance Benefits available under this Employment Agreement, (ii) Executive’s
entitlement to all other severance benefits, including any unpaid balance of
Severance Benefits, shall immediately terminate; (iii) if the Severance Benefits
have already been paid to Executive, Executive agrees to immediately remit
to
the Company the gross amount of all Severance Benefits paid or otherwise
provided to him except for $100.00; and (iv) Executive’s Release shall remain in
full force and effect, notwithstanding the reduction in Severance Benefits.
No
breach by Executive of the Confidential Information Agreement shall be
considered “material” for purposes of the immediately preceding sentence unless
it is reasonably foreseeable that the breach could result in material
competitive harm to the Company or Executive has acted or failed to act, either
intentionally or with an absence of good faith or with substantial lack of
concern for his compliance with Confidential Information Agreement.
6.3 Deferred
Compensation.
Because
of the uncertainty of the application of Section 409A of the Internal Revenue
Code of 1986, as amended (the “Code”),
to
payment of the Severance Benefits, Executive and the Company hereby agree that
if any Severance Benefits are subject to the provisions of Section 409A of
the
Code by reason of this Employment Agreement, or any part thereof, being
considered a “nonqualified deferred compensation plan” pursuant to Section 409A
of the Code, then such payments shall be made in accordance with, and this
Employment Agreement shall be amended to comply with, Section 409A of the Code,
including, without limitation, any necessary delay of six (6) months applicable
to payment of deferred compensation to a “specified employee” (as defined in
Section 409A(2)(B)(i) of the Code) upon separation from service.
7. Dispute
Resolution.
7.1 Mandatory
Arbitration.
To
ensure the rapid and economical resolution of disputes that may arise in
connection with Executive’s employment with the Company, Executive and the
Company agree that any and all disputes, claims, or causes of action, in law
or
equity, arising from or relating to the enforcement, breach, performance,
execution or interpretation of this Employment Agreement, Executive’s
employment, or the termination of that employment, shall be resolved, to the
fullest extent permitted by law, by final, binding and confidential arbitration
conducted in Newport Beach, California by a single arbitrator with JAMS
(formerly known as “Judicial Arbitration and Mediation Services”), or its
successor, under the then-applicable JAMS’ arbitration rules. Executive
acknowledges that by agreeing to this arbitration procedure, both Executive
and
the Company are waiving the right to resolve any such dispute through a trial
by
jury or judge or administrative proceeding.
The
arbitrator shall: (a) have the authority to compel adequate discovery for
the resolution of the dispute and to award such relief as would otherwise be
permitted by law; and (b) issue a written arbitration decision including
the arbitrator’s essential findings and conclusions and a statement of the
award. The arbitrator shall be authorized to determine if an issue is subject
to
this arbitration obligation, and to award any or all remedies that Executive
or
the Company would be entitled to seek in a court of law. To the extent permitted
by applicable law, the Company shall reimburse the Executive for all legal
costs
and expenses reasonably incurred (and documented in invoices) in connection
with
any dispute under this Agreement, so long as the Executive substantially
prevails in such dispute. The Company shall pay all JAMS’ arbitration fees.
6
7.2 Limitations.
Nothing
in this Section 7 shall or is intended to prevent either Executive or the
Company from obtaining injunctive relief in court to prevent irreparable harm
pending the conclusion of any arbitration held pursuant to this Section.
8. General
Provisions.
8.1 Notices.
Any
notices provided hereunder must be in writing and shall be deemed to be received
upon the earlier of personal delivery (including, personal delivery by facsimile
transmission), delivery by express delivery service (e.g.
Federal
Express), or the third day after mailing by first class mail, to the Company
at
its primary office location and to Executive at most current home address as
listed on the Company payroll (which address may be changed by written
notice).
8.2 Severability.
Whenever
possible, each provision of this Employment Agreement will be interpreted in
such manner as to be effective and valid under
applicable law, but if any provision of this Employment 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 such invalid,
illegal or unenforceable provision will be reformed, construed and enforced
in
such jurisdiction so as to render it valid, legal, and enforceable consistent
with the intent of the parties insofar as possible.
8.3 Waiver.
Any
waiver of any right hereunder must be in evidenced in a writing signed by the
waiving party to be effective, and any such waiver shall not be construed to
be
a waiver of any preceding or succeeding breach of the same or any other
provision of this Employment Agreement.
8.4 Entire
Agreement.
This
Employment Agreement, together with the Confidential Information Agreement,
the
Noncompetition Agreement, constitutes the entire agreement between Executive
and
the Company regarding the subject matter hereof and it supersedes any and all
prior agreements, promises, representations or understandings, written or
otherwise, between Executive and the Company with regard to this subject matter.
This Employment Agreement is entered into without reliance on any agreement,
or
promise, or representation, other than those expressly contained or incorporated
herein, and it cannot be modified or amended except in a writing signed by
Executive and a duly authorized representative of the Board.
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8.5 Headings
and Construction.
The
headings of the sections hereof are inserted for convenience only and shall
not
be deemed to constitute a part hereof or to affect the meaning thereof. Any
ambiguities in this Employment Agreement shall not be construed against either
Party as the drafter.
8.6 Successors
and Assigns.
This
Employment Agreement is intended to bind and inure to the benefit of and be
enforceable by Executive, the Company and their respective successors, assigns,
heirs, executors and administrators, except that Executive may not assign any
of
his duties hereunder and he may not assign any of his rights hereunder without
the written consent of the Company.
8.7 Governing
Law.
All
questions concerning the construction, validity and interpretation of this
Employment Agreement shall be governed by the law of the State of California
as
applied to contracts made and to be performed entirely within
California.
8.8 Counterparts.
This
Employment Agreement may be executed in separate counterparts, which shall
be
taken together and shall constitute one agreement. Facsimile and PDF signatures
shall be as effective as originals.
In
Witness Whereof,
the
parties enter into this Employment Agreement as of the Effective Date (as
defined above).
Jazz
Semiconductor, Inc.
By:
/s/
Xxxxxxx
Xxxxxx
Print
Name: Xxxxxxx
Xxxxxx
Title:
General
Counsel
/s/
Xxx
Xx
Xxx
Xx
8
Exhibit
A
EMPLOYEE
CONFIDENTIAL INFORMATION AND INVENTIONS ASSIGNMENT AGREEMENT
(CEO)
In
consideration of my employment or continued employment by
Jazz Semiconductor, Inc.,
a
Delaware corporation (“Company”),
and
the compensation paid to me now and during my employment with the Company,
I
agree to the terms of this Agreement as follows:
1. Confidential
Information Protections.
1.1 Nondisclosure;
Recognition of Company’s Rights.
At all
times during and after my employment, I will hold in confidence and will not
disclose, use, lecture upon, or publish any of Company’s Confidential
Information (defined below), except as may be required in connection with my
work for Company, or as expressly authorized by the Company’s Board of Directors
(the “Board”),
or
the Chief Executive Officer (the “CEO”)
of
Company (if I am no longer employed with the Company at the time such
authorization is requested). I will obtain written approval from the Board
or
the CEO (as applicable) before publishing or submitting for publication any
material (written, oral, or otherwise) that relates to my work at Company and/or
incorporates any Confidential Information. I hereby assign to Company any rights
I may have or acquire in any and all Confidential Information and recognize
that
all Confidential Information shall be the sole and exclusive property of Company
and its assigns.
1.2 Confidential
Information.
The term
“Confidential
Information”
shall
mean any and all confidential knowledge, data or information related to
Company’s business or its actual or demonstrably anticipated research or
development, including without limitation (a) trade secrets, inventions, ideas,
processes, computer source and object code, data, formulae, programs, other
works of authorship, know-how, improvements, discoveries, developments, designs,
and techniques; (b) information regarding products, services, plans for research
and development, marketing and business plans, budgets, financial statements,
contracts, prices, suppliers, and customers; (c) information regarding the
skills and compensation of Company’s employees, contractors, and any other
service providers of Company; and (d) the existence of any business discussions,
negotiations, or agreements between Company and any third party. Notwithstanding
the forgoing, “Confidential Information” shall not include any of the forgoing
items which has become publicly known and made generally available other than
through my violation of this Agreement.
1.3 Third
Party Information. I
understand that Company has received and in the future will receive from third
parties confidential or proprietary information (“Third
Party Information”)
subject
to a duty on Company’s part to maintain the confidentiality of such information
and to use it only for certain limited purposes. During and after the term
of my
employment, I will, in accordance with and subject to the terms and limitations
of the Company’s duties to maintain the confidentiality of such information and
to use it only for certain limited purposes, hold Third Party Information in
strict confidence and will not disclose to anyone (other than Company personnel
who need to know such information in connection with their work for Company)
or
use, Third Party Information, except in connection with my work for Company
or
unless expressly authorized by an officer of Company in writing.
1.4 No
Improper Use of Information of Prior Employers and Others.
I
represent that my employment by Company does not and will not breach any
agreement with any former employer, including any noncompete agreement or any
agreement to keep in confidence or refrain from using information acquired
by me
prior to my employment by Company. I further represent that I have not entered
into, and will not enter into, any agreement, either written or oral, in
conflict with my obligations under this Agreement. During my employment by
Company, I will not improperly make use of, or disclose, any information or
trade secrets of any former employer or other third party, nor will I bring
onto
the premises of Company or use any unpublished documents or any property
belonging to any former employer or other third party, in violation of any
lawful agreements with that former employer or third party. I will use in the
performance of my duties only information that is generally known and used
by
persons with training and experience comparable to my own, is common knowledge
in the industry or otherwise legally in the public domain, or is otherwise
provided or developed by Company.
2. Inventions.
2.1 Inventions
and Intellectual Property Rights. As
used
in this Agreement, the term “Invention”
means
any ideas, concepts, information, materials, processes, data, programs,
know-how, improvements, discoveries, developments, designs, artwork, formulae,
other copyrightable works, and techniques and all Intellectual Property Rights
in any of the items listed above. The term “Intellectual
Property Rights”
means
all trade secrets, copyrights, trademarks, mask work rights, patents and other
intellectual property rights recognized by the laws of any jurisdiction or
country. Nothing in this Agreement shall prohibit me from (i) disclosing
information and documents when required by law, subpoena or court order, (ii)
disclosing information and documents to any attorney or tax adviser for the
purpose of securing legal or tax advice; (iii) disclosing my post-employment
restrictions in this Agreement in confidence to any potential new employer,
or
(iv) retaining, at any time, my personal correspondence and documents relating
only to my own person benefits, entitlements and obligations.
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2.2 Prior
Inventions.
I have
disclosed on Exhibit
A a
complete list of all Inventions that (a) I have, or I have caused to be, alone
or jointly with others, conceived, developed, or reduced to practice prior
to
the commencement of my employment by Company; (b) in which I have an ownership
interest or which I have a license to use; (c) and that I wish to have excluded
from the scope of this Agreement (collectively referred to as “Prior
Inventions”).
If no
Prior Inventions are listed in Exhibit
A,
I
warrant that there are no Prior Inventions. I agree that I will not incorporate,
or permit to be incorporated, Prior Inventions in any Company Inventions
(defined below) without Company’s prior written consent. If, in the course of my
employment with Company, I incorporate a Prior Invention into a Company process,
machine or other work, I hereby grant Company a non-exclusive, perpetual,
fully-paid and royalty-free, irrevocable and worldwide license, with rights
to
sublicense through multiple levels of sublicensees, to reproduce, make
derivative works of, distribute, publicly perform, and publicly display in
any
form or medium, whether now known or later developed, make, have made, use,
sell, import, offer for sale, and exercise any and all present or future rights
in, such Prior Invention.
Assignment
of Company Inventions.
Inventions assigned to the Company or to a third party as directed by the
Company pursuant to the section titled “Government or Third Party” are referred
to in this Agreement as “Company
Inventions.”
Subject to the section titled “Government or Third Party” and except for
Inventions that I can prove qualify fully under the provisions of California
Labor Code section 2870 and I have set forth in Exhibit
A,
I
hereby assign and agree to assign in the future (when any such Inventions or
Intellectual Property Rights are first reduced to practice or first fixed in
a
tangible medium, as applicable) to Company all my right, title, and interest
in
and to any and all Inventions (and all Intellectual Property Rights with respect
thereto) made, conceived, reduced to practice, or learned by me, either alone
or
with others, during the period of my employment by Company.
2.3 Government
or Third Party.
I agree
that, as directed by the Company, I will assign to a third party, including
without limitation the United States, all my right, title, and interest in
and
to any particular Company Invention.
2.4 Enforcement
of Intellectual Property Rights and Assistance.
During
and after the period of my employment, I will assist Company in every proper
way
to obtain and enforce United States and foreign Intellectual Property Rights
relating to Company Inventions in all countries. If the Company is unable to
secure my signature on any document needed in connection with such purposes,
I
hereby irrevocably designate and appoint Company and its duly authorized
officers and agents as my agent and attorney in fact, which appointment is
coupled with an interest, to act on my behalf to execute and file any such
documents and to do all other lawfully permitted acts to further such purposes
with the same legal force and effect as if executed by me.
2.5 Incorporation
of Software Code.
I agree
that I will not incorporate into any Company software or otherwise deliver
to
Company any software code licensed under the GNU General Public License or
Lesser General Public License or any other license that, by its terms, requires
or conditions the use or distribution of such code on the disclosure, licensing,
or distribution of any source code owned or licensed by Company.
3. Records.
I agree
to keep and maintain adequate and current records (in the form of notes,
sketches, drawings and in any other form that is required by the Company) of
all
Inventions made by me during the period of my employment by the Company, which
records shall be available to, and remain the sole property of, the Company
at
all times.
4. Additional
Activities.
I agree
that during the term of my employment by Company, I will not directly or
indirectly, without Company’s express written consent: (a) engage in any
employment or business activity that is competitive with, or would otherwise
conflict with my employment by, Company; or (b) solicit or attempt to solicit
any employee, independent contractor, consultant or customer of Company to
terminate his, her or its relationship with Company in order to become an
employee, consultant, independent contractor, or customer to or for any other
person or entity.
5. Return
of Company Property. Upon
termination of my employment or upon Company’s request at any other time, I will
deliver to Company all of Company’s property, equipment, and documents, together
with all copies thereof, and any other material containing or disclosing any
Inventions, Third Party Information or Confidential Information and certify
in
writing that I have fully complied with the foregoing obligation. I agree that
I
will not copy, delete, or alter any information contained upon my Company
computer or Company equipment before I return it to Company. In
addition, if I have used any personal computer, server, or e-mail system to
receive, store, review, prepare or transmit any Company
information, including but not limited to, Confidential Information, I agree
to
provide the Company with a computer-useable copy of all such Confidential
Information and then permanently delete and expunge such Confidential
Information from those systems; and I agree to provide the Company access to
my
system as reasonably requested to verify that the necessary copying and/or
deletion is completed. I
further
agree that any property situated on Company’s premises and owned by Company is
subject to inspection by Company’s personnel at any time with or without notice.
Prior to the termination of my employment or promptly after termination of
my
employment, I will cooperate with Company in attending an exit interview and
certify in writing that I have complied with the requirements of this section.
10
6. Notification
of New Employer.
If I
leave the employ of Company, I consent to the notification of my new employer
of
my rights and obligations under this Agreement, by Company providing a copy
of
this Agreement or otherwise.
7. General
Provisions.
7.1 Governing
Law and Venue.
This
Agreement and any action related thereto will be governed and interpreted by
and
under the laws of the State of California, without giving effect to any
conflicts of laws principles that require the application of the law of a
different state. I
expressly consent to personal jurisdiction and venue in the state and federal
courts for the county in which Company’s principal place of business is located
for any lawsuit filed there against me by Company arising from or related to
this Agreement.
7.2 Severability.
If any
provision of this Agreement is, for any reason, held to be invalid or
unenforceable, the other provisions of this Agreement will remain enforceable
and the invalid or unenforceable provision will be deemed modified so that
it is
valid and enforceable to the maximum extent permitted by law.
7.3 Survival.
This
Agreement shall survive the termination of my employment and the assignment
of
this Agreement by Company to any successor or other assignee and be binding
upon
my heirs and legal representatives.
7.4 Employment.
I agree
and understand that nothing in this Agreement shall give me any right to
continued employment by Company, and it will not interfere in any way with
my
right or Company’s right to terminate my employment at any time, with or without
cause and with or without advance notice.
7.5 Notices.
Each
party must deliver all notices or other communications required or permitted
under this Agreement in writing to the other party at the address listed on
the
signature page, by courier, by certified or registered mail (postage prepaid
and
return receipt requested), or by a nationally-recognized express mail service.
Notice will be effective upon receipt or refusal of delivery. If delivered
by
certified or registered mail, notice will be considered to have been given
five
(5) business days after it was mailed, as evidenced by the postmark. If
delivered by courier or express mail service, notice will be considered to
have
been given on the delivery date reflected by the courier or express mail service
receipt. Each party may change its address for receipt of notice by giving
notice of the change to the other party.
7.6 Injunctive
Relief.
I
acknowledge that, because my services are personal and unique and because I
will
have access to the Confidential Information of Company, any breach of this
Agreement by me would cause irreparable injury to Company for which monetary
damages would not be an adequate remedy and, therefore, will entitle Company
to
injunctive relief (including specific performance). The rights and remedies
provided to each party in this Agreement are cumulative and in addition to
any
other rights and remedies available to such party at law or in
equity.
7.7 Waiver.
Any
waiver or failure to enforce any provision of this Agreement on one occasion
will not be deemed a waiver of that provision or any other provision on any
other occasion.
7.8 Export.
I agree
not to export, directly or indirectly, any U.S. technical data acquired from
Company or any products utilizing such data, to countries outside the United
States, because such export could be in violation of the United States export
laws or regulations.
7.9 Entire
Agreement.
If no
other agreement governs nondisclosure and assignment of inventions during any
period in which I was previously employed or am in the future employed by
Company as an independent contractor, the obligations pursuant to sections
of
this Agreement titled “Confidential Information Protections” and “Inventions”
shall apply. If any other agreement governs my nondisclosure of information
and
assignment of inventions during any period in which I was previously employed
with the Company, this Agreement and such prior agreements shall be taken
together and construed as one agreement; provided, however, that to the extent
any term of any such prior agreement conflicts or is in consistent with the
terms set forth herein, this Agreement shall control. This Agreement is the
final, complete and exclusive agreement of the parties with respect to the
subject matter hereof and supersedes and merges all prior communications between
us with respect to such matters, and is meant to be consistent with the
Noncompetition Agreement between me and the Company. No modification of or
amendment to this Agreement, or any waiver of any rights under this Agreement,
will be effective unless in writing and signed by me and a duly authorized
representative of the Board (if I am an employee of the Company at the time
of
such modification) or the CEO of Company (if I am not an employee at the time
of
such modification). Any subsequent change or changes in my duties, salary or
compensation will not affect the validity or scope of this Agreement.
11
This
Agreement shall be effective as of the first day of my employment with
Company.
| EMPLOYEE: | JAZZ SEMICONDUCTOR, INC.: | |||
| I have read, understand, and Accept this agreement and have been given the opportunity to Review it with independent legal counsel. | Accepted and agreed: | |||
|
/s/
Xxx Xx
|
/s/
Xxxxxxx Xxxxxx
|
|||
|
(Signature)
|
(Signature)
|
|||
| By: |
Xxx
Xx
|
By: |
Xxxxxxx
Xxxxxx
|
|
| Title: |
Chief
Executive
Officer
|
Title: |
General
Counsel
|
|
| Date: |
9/26/06
|
Date: |
9/26/06
|
|
| Address: |
000
Xxxx Xxxxx
Xxxxxx
Xxxxx, Xxxxxxxxxx 00000
|
Address: |
0000
Xxxxxxxx Xxxx
Xxxxxxx
Xxxxx, Xxxxxxxxxx 00000
|
|
12
EXHIBIT
A OF EMPLOYEE CONFIDENTIAL INFORMATION AND INVENTIONS ASSIGNMENT
AGREEMENT
INVENTIONS
1. Prior
Inventions Disclosure.
The
following is a complete list of all Prior Inventions (as provided in Section
2.2
of the attached Employee Confidential Information and Inventions Assignment
Agreement, defined herein as the “Agreement”):
o
None
o
See immediately
below:
2. Limited
Exclusion Notification.
This
is to notify you
in
accordance with Section 2872 of the California Labor Code that the foregoing
Agreement between you and Company does not require you to assign or offer to
assign to Company any Invention that you develop entirely on your own time
without using Company’s equipment, supplies, facilities or trade secret
information, except for those Inventions that either:
a. Relate
at
the time of conception or reduction to practice to Company’s business, or actual
or demonstrably anticipated research or development; or
b. Result
from any work performed by you for Company.
To
the
extent a provision in the foregoing Agreement purports to require you to assign
an Invention otherwise excluded from the preceding paragraph, the provision
is
against the public policy of this state and is unenforceable.
This
limited exclusion does not apply to any patent or Invention covered by a
contract between Company and the United States or any of its agencies requiring
full title to such patent or Invention to be in the United States.
13
Exhibit
B
Bonus
compensation Paid prior to Date of this Employment
Agreement
|
Date
of Payment
|
Gross
Amount of Bonus Paid
|
|
7/27/2006
|
$73,078.54
|
14
Exhibit
C
Release
of Claims
I,
_____________, hereby acknowledge and agree that: (a) I
have
been paid all accrued salary and other compensation, as well as all accrued
unused vacation, owed to me for my services to Jazz Semiconductor, Inc. (the
“Company”)
through and including the date my employment with the Company terminated (the
“Termination
Date”);
(b) I
understand and will abide by all continuing obligations under my Confidential
Information Agreement and Noncompetition Agreement with the Company (as defined
in my Employment Agreement with the Company dated August __, 2006 (the
“Employment
Agreement”));
and (c)
within thirty (30) days after Termination Date, I will submit all final
documented expense reimbursement statements reflecting all business expenses
incurred by me through and including the Termination Date, if any, for which
I
seek reimbursement.
In
consideration for the Severance Benefits to
be
provided to me under the Employment Agreement to which I would not otherwise
be
entitled, I hereby release the Company, Acquicor Technology,
Inc., The Carlyle Group, each of such entities’ parents,
subsidiaries, successors, predecessors and affiliates, and each of such
entities’ directors, officers, employees, agents, attorneys, insurers,
affiliates and assigns (individually and collectively, the “Released Parties”),
of and from any and all claims, liabilities, demands, causes of action, costs,
expenses, attorneys fees, damages, indemnities and obligations of every kind
and
nature, in law, equity, or otherwise, known and unknown, suspected and
unsuspected, arising out of or in any way related to agreements, events, acts
or
conduct at any time prior to and including the date I sign this Release of
Claims (the “Release”).
This
general release includes, but is not limited to: (a) all claims arising out
of
or in any way related to my employment with the Company or the termination
of
that employment; (b) all claims related to my compensation or benefits,
including salary, bonuses, commissions, vacation pay, expense reimbursements,
severance pay, fringe benefits, stock, stock options, or any other equity
interests in the Company; (c) all claims for breach of contract, wrongful
termination, and breach of the implied covenant of good faith and fair dealing;
(d) all tort claims, including claims for fraud, defamation, emotional
distress, and discharge in violation of public policy; and (e) all federal,
state, and local statutory claims, including claims for discrimination,
harassment, retaliation, attorneys’ fees, or other claims arising under the
federal Civil Rights Act of 1964 (as amended), the federal Americans with
Disabilities Act of 1990 (as amended), the federal Age Discrimination in
Employment Act (as amended), the California Labor Code, and the California
Fair
Employment and Housing Act (as amended). Notwithstanding the foregoing, this
release shall not release the Company from: (i) its obligation (consistent
with
applicable Company policy) to reimburse me for valid business expenses that
I
have incurred on behalf of the Company and that I submit for reimbursement
within thirty (30) days after the Termination Date; (ii) its obligations to
provide me with the Severance Benefits set forth in the Employment Agreement;
or
(iii) any obligation to indemnify me pursuant to the Company’s certificate of
incorporation and bylaws, any written indemnification agreement to which I
am a
party or applicable law. Further notwithstanding the foregoing, this release
shall not release any of the Released Parties from: (y) any rights that I may
have under the Merger Agreement; or (z) any rights I may have to seek
contribution or indemnification for third party claims. I represent that I
have
no lawsuits, claims or actions pending in my name, or on behalf of any other
person or entity, against the Company or any other person or entity subject
to
the release granted in this paragraph.
15
I
acknowledge that I am also knowingly and voluntarily waiving and releasing
any
rights that I may have under the under the Age Discrimination in Employment
Act
of 1967, as amended (the “ADEA”).
I
acknowledge that the consideration given for this waiver and release is in
addition to anything of value to which I was already entitled. I further
acknowledge that I have been advised by this writing, as required by the ADEA,
that: (a) my waiver and release do not apply to any rights or claims that may
arise after the date I sign this Release; (b) I have been advised hereby that
I
should consult with an attorney prior to executing this Release; (c) I have
twenty-one (21) days to consider this Release (although I may choose to
voluntarily sign it earlier); (d) I have seven (7) days after the date I sign
this Release to revoke my agreement to it (by providing the Company (through
its
General Counsel) with written notice of such revocation); and (e) my acceptance
of this Release will not be effective until the date upon which the revocation
period has expired, which will be the eighth day after I sign it (provided
I do
not earlier revoke my acceptance of it) (the “Release
Effective Date”).
I
understand that this Release includes a release of all unknown and unsuspected
claims. I acknowledge that I have read and understand Section 1542 of the
California Civil Code, which states: “A
general release does not extend to claims which the creditor does not know
or
suspect to exist in his or her favor at the time of executing the release,
which
if known by him or her must have materially affected his or her settlement
with
the debtor.”
I hereby
waive all rights and benefits under Section 1542 of the California Civil Code
and any law or legal principle of similar effect in any jurisdiction with regard
to this Release, including my release of unknown and unsuspected claims
herein.
This
Release, together with the Employment Agreement, the Confidential Information
Agreement, and the Noncompetition Agreement (including the exhibits thereto)
(collectively, the “Agreements”),
constitutes the complete, final and exclusive embodiment of the entire agreement
between the Company and me with regard to the subject matter hereof. I am not
relying on any promise or representation not expressly stated in the Agreements.
Understood
and agreed:
|
____________________________________
|
Date:______________________
|
[Executive]
16
