WINTEGRA, INC. JACOB (KOBI) BEN ZVI EMPLOYMENT AGREEMENT
WINTEGRA,
INC.
JACOB
(KOBI) BEN ZVI EMPLOYMENT AGREEMENT
This
Employment Agreement (the “Agreement”) is entered into as of January 1, 2006,
(the “Effective Date”) by and between Wintegra, Inc. (the ”Company”) and
Jacob (Kobi) Ben Zvi (“Executive”) (together, the “Parties”).
RECITALS
WHEREAS,
Executive serves as President, Chief Executive Officer, and Chairman of the
Board of Directors (the “Board”) of the Company; and
WHEREAS,
Executive and the Company desire to state the terms and conditions of
Executive’s employment with the Company;
NOW
THEREFORE, for valuable consideration, the Parties agree as
follows:
1. Duties
and Scope of Employment.
(a) Position
and Duties.
As of
the Effective Date, Executive will continue to serve as President and Chief
Executive Officer of the Company. Executive will render such business and
professional services in the performance of his duties, consistent with
Executive's position within the Company, as shall reasonably be assigned to
him
by the Board.
(b) Board
Membership.
As of
the Effective Date, Executive will continue to serve as a member and Chairman
of
the Board, subject to any required Board and/or stockholder
approval.
(c) Obligations.
During
the Employment Term, Executive will perform his duties faithfully and to the
best of his ability and will devote his full business efforts and time to the
Company. For the duration of the Employment Term, Executive agrees not to
actively engage in any other employment, occupation or consulting activity
for
any direct or indirect remuneration without the prior approval of the Board.
Executive agrees and undertakes to inform the Company, immediately after he
becomes aware of it, of any matter that may in any way raise a conflict of
interest between Executive and the Company.
2. At-Will
Employment.
The
Parties agree that Executive’s employment with the Company will be “at-will”
employment and may be terminated at any time with or without Cause or notice
by
any Party.
3. Compensation.
During
the Employment Term, the Company will pay Executive as compensation for his
services a base salary at an aggregate annualized rate of $169,600 and effective
as of March 1, 2006, at an aggregate annualized rate of $183,168 (the “Base
Salary”). Unless specifically set forth herein, the Base Salary includes any and
all payments to which Executive is entitled from the Company hereunder and
under
any applicable law, regulation or agreement. The Base Salary includes, to the
extent required under applicable law, reimbursement of any daily travel costs.
The Base Salary will be paid periodically in accordance with the Company's
normal payroll practices and be subject to the usual, required withholding.
Executive and the Company expressly agree that Executive will be paid his Base
Salary based on a per diem rate attributable to those days during which
Executive performs services for the Company in the United States. Executive
and
the Company further expressly acknowledge that Executive will be compensated
for
his non-U.S. services by Wintegra Ltd., a wholly-owned subsidiary of the
Company.
4. Employee
Benefits.
During
the Employment Term, Executive will be entitled to participate in the employee
benefit plans currently and hereafter maintained by the Company of general
applicability to other similarly situated senior executives of the Company.
The
Company reserves the right to cancel or change the benefit plans and programs
it
offers to its employees at any time. In addition to generally applicable
executive benefits, the Company will pay, on a tax-neutral basis, for
preparation of the individual United States income tax return of
Executive.
5. Expenses.
The
Company will reimburse Executive for reasonable travel, entertainment or other
expenses incurred by Executive in the furtherance of or in connection with
the
performance of Executive's duties hereunder, in accordance with the Company’
expense reimbursement policy as in effect from time to time.
6. Severance
from the Company.
Upon
termination of employment from the Company for any reason, Executive shall
receive payment of (a) the Base Salary earned through the Termination Date,
and (b) all accrued but unused vacation, expense reimbursements and any
other benefits (other than severance benefits, except as provided below) due
to
Executive through the Termination Date in accordance with the Company’s
established plans and policies or applicable law (the “Accrued Obligations”). In
addition, the following will apply:
(a) Involuntary
Termination.
If the
Company terminates Executive’s employment with the Company for reasons other
than Cause, death or Disability, or Executive resigns from his employment with
the Company due to a Constructive Termination, then Executive shall be entitled
to receive:
(i) continuing
payments of severance pay (less applicable tax withholding) at the Base Salary
rate multiplied by the percentage of Executive’s total business days that were
worked in the United States in the most recently completed fiscal year, 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;
(ii) vesting
as of the Termination Date of such additional options as would have vested
if
Executive remained employed through the first anniversary of the Termination
Date; and
(iii) Company-paid
continuation for Executive and his eligible dependents under the Company’s group
medical, dental and vision plans as in effect for Executive on the day
immediately preceding the Termination Date until the earlier of six (6) months
following the Termination Date or the date Executive (or the applicable
dependent) becomes eligible for substantially similar coverage under another
employer’s group medical, dental, and vision plans.
(iv) Voluntary
Termination; Termination for Cause, Death or Disability.
If
Executive’s employment with the Company is terminated voluntarily by Executive
(other than as the result of a Constructive Termination), or terminated by
the
Company for Cause, or due to death or Disability, then Executive will only
be
entitled to his Accrued Obligations.
(b) Change
of Control Severance. If
within
twelve (12) months of a Change of Control of the Company, the Company terminates
Executive’s employment with the Company for reasons other than Cause, death, or
Disability or Executive resigns from his employment with the Company, Executive
will be entitled to receive:
(i) continuing
payments of severance pay (less applicable tax withholding) at the Base Salary
rate multiplied by the percentage of Executive’s total business days that were
worked in the United States in the most recently completed fiscal year, as
then
in effect, for a period of twelve (12) months from the Termination Date, payable
in accordance with the Company’s normal payroll policies;
(ii) vesting
as of the Termination Date of all unvested options granted to Executive in
the
event that the Company terminates Executive's employment under the circumstances
described in Section 6(b) or in the event that Executive resigns from his
employment with the Company due to a Constructive Termination within 12 months
of a Change of Control; or vesting as of the Termination Date of fifty percent
(50%) of the unvested options granted to Executive, in the event that Executive
resigns from his employment as described in Section 6(b);
(iii) Extension
of the exercise period enabling Executive 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 Executive's employment,
or
(y) the end of the calendar year during which the options would have otherwise
expired due to termination of Executive's employment; and
(iv) Company-paid
continuation for Executive and his eligible dependents under the Company’s group
medical, dental and vision plans as in effect for Executive on the day
immediately preceding the Termination Date until the earlier of twelve (12)
months following the Termination Date or the date Executive becomes eligible
for
substantially similar coverage under another employer’s group medical, dental,
and vision plans.
(c) Conditions
to Receive Severance Package.
Except
for the Accrued Obligations, the severance payments described in Section 6
will
be provided to Executive only if Executive executes and delivers to the
Company, and does not revoke, a general release of claims in a form acceptable
to the Company.
7. Code
Section 409A.
(a) Notwithstanding
anything to the contrary in this Agreement, if the Company reasonably determines
that Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”)
will result in the imposition of additional tax to an earlier payment of any
severance benefits otherwise due to Executive on or within the six (6) month
period following Executive’s termination, the severance benefits will accrue
during such six (6) month period and will become payable in a lump sum payment
on the date six (6) months and one (1) day following the date of Executive’s
termination. All subsequent payments, if any, will be payable as provided in
this Agreement.
(b) This
Agreement will be deemed amended to the extent necessary to avoid imposition
of
any additional tax or income recognition prior to actual payment to Executive
under Section 409A of the Code and any temporary, proposed or final Treasury
Regulations and guidance promulgated thereunder and the Parties agree to
cooperate with each other and to take reasonably necessary steps in this
regard.
8. Definitions.
(a) Cause.
For
purposes of this Agreement, “Cause” is defined as:
(i) an
act of
dishonesty made by Executive in connection with Executive's responsibilities
as
an employee;
(ii) Executive's
conviction of, or plea of nolo
contendere
to, a
felony;
(iii) Executive's
gross misconduct; or
(iv) Executive's
continued substantial violations of his employment duties after Executive has
received a written demand for performance from the Company which specifically
sets forth the factual basis for the Company's belief that Executive has not
substantially performed his duties.
(b) Change
of Control.
For
purposes of this Agreement, “Change of Control” of the Company 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 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 Parent Company's public
offering, or (B) are elected, or nominated for election, to the Board 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 Executive’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 Executive’s consent:
(i) a
significant reduction of Executive’s duties, position or responsibilities
relative to Executive’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 Executive’s Base
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 executives of the Company or its successor).
In
each
case, prior to Executive 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 Executive
provides the Company written
notice of the actions or omissions constituting such breach, assignment,
reduction or requirement.
(d) Disability.
“Disability” means that Executive is determined by the Company to be disabled
under the provisions of the Company’s long-term disability plan, and Executive
has received long-term disability benefits for a period of at least three (3)
months under such plan.
(e) Termination
Date.
Subject
to the requirements of Section 11, “Termination Date” means the effective date
of any notice of termination delivered by one Party to the other hereunder,
such
date being Executive’s last day of employment with the Company.
9. Confidential
Information.
Executive acknowledges that he has entered into the Company’s standard
Confidential Information and Invention Assignment Agreement (the “Confidential
Information Agreement”) and affirms his obligations under such
agreement.
10. Assignment.
This
Agreement will be binding upon and inure to the benefit of (a) the heirs,
executors and legal representatives of Executive upon Executive's death and
(b) any successor of the Company. Any such successor of the Company will be
deemed substituted for the Company under the terms of this Agreement for all
purposes. For this purpose, “successor” means any person, firm, corporation or
other business entity which at any time, whether by purchase, merger or
otherwise, directly or indirectly acquires all or substantially all of the
assets or business of the Company. None of the rights of Executive to receive
any form of compensation payable pursuant to this Agreement may be assigned
or
transferred except by will or the laws of descent and distribution. Any other
attempted assignment, transfer, conveyance or other disposition of Executive’s
right to compensation or other benefits will be null and void.
11. Notices.
(a) Executive's
employment may be terminated by either party, at any time and for any reason,
pursuant to the delivery of ninety (90) days’ prior written notice by the
terminating party (hereinafter the “Notice Period”). During the Notice Period,
Executive shall continue to render services to the Company until the termination
of the Notice Period, and cooperate with the Company in assisting the
integration of the person who will assume his responsibilities. Notwithstanding
the aforementioned, the Company shall have the right not to take advantage
of
the full Notice Period and may terminate Executive‘s employment at any time
during the Notice Period. In the event of such termination, the Company shall
pay Executive’s full Base Salary for the remainder of the Notice Period. To
avoid any doubt, it is hereby expressed that the Company reserves the right
not
to take advantage of the Notice Period, in both the event the notice of
termination of employment was delivered by the Company, or in the event that
it
was delivered by Executive, and such an event shall not constitute a dismissal
of employment by the Company.
(b) All
notices, requests, demands and other communications called for hereunder shall
be in writing and shall be deemed given (i) on the date of delivery if
delivered personally, (ii) one (1) day after being sent by a well
established commercial overnight service, or (iii) four (4) days after
being mailed by registered or certified mail, return receipt requested, prepaid
and addressed to the Parties or their successors at the following addresses,
or
at such other addresses as the Parties may later designate in
writing:
If
to the
Company:
0000
Xxxxxx Xxxxxx Xxxx.
Xxxxx
000
Xxxxxx,
XX 00000
Attn: Xxxx
Xxxxxx,
Chief
Financial Officer
With
a
copy to:
Xxxxxx
Xxxxxxx Xxxxxxxx & Xxxxxx
000
Xxxx
Xxxx Xxxx
Xxxx
Xxxx, XX 00000
Attn: Xxxx
Xxxxx
Xxxxxxx
Xxxxxxx
If
to
Executive:
at
the
last residential address known by the Company.
12. Severability.
In the
event that any provision hereof becomes or is declared by a court of competent
jurisdiction to be illegal, unenforceable or void, this Agreement will continue
in full force and effect without said provision.
13. Integration.
This
Agreement, together with the Company’s stock plans, the Company’s stock options
agreements and the agreement entitled “Wintegra Ltd. - Jacob (Kobi) Ben Zvi
Employment Agreement”, including Appendix B thereto, represents the entire
agreement and understanding between the Company and Executive 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 will be binding unless in writing and signed by duly
authorized representatives of the Parties hereto.
14. Tax
Withholding.
All
payments made pursuant to this Agreement will be subject to withholding of
applicable taxes.
15. Governing
Law.
This
Agreement will be governed by the laws of the State of Texas (with the exception
of its conflict of laws provisions).
16. Acknowledgment.
Executive acknowledges that he has had the opportunity to discuss this matter
with and obtain advice from his private attorney, has had sufficient time to,
and has carefully read and fully understands all the provisions of this
Agreement, and is knowingly and voluntarily entering into this
Agreement.
IN
WITNESS WHEREOF, each of the Parties has executed this Agreement, in the case
of
the Company by their duly authorized officers, as of the day and year first
above written.
| COMPANY: | ||
| Wintegra Inc. |
| By: | [ILLEGIBLE SIGNATURE] | Date: | April 12, 2006 | |||
| Title: | CFO |
| EXECUTIVE: | |||||
| /s/ Xxxxx Xxx Xxx | Date: | April 12, 2006 | |||
|
Jacob
(Kobi) Ben Zvi
|
