KEY EXECUTIVE OFFICER SEVERANCE AGREEMENT
This Key Executive Officer Severance Agreement (the "Agreement") is effective
as of November 30, 1999 ("Effective Date"), and is by and between XXXXX
XXXXXXXX (the "Key Executive"), an individual currently residing at 000
Xxxxxxxxxx Xxx., Xxxxx Xxxx, XX 00000 and INSILICON CORPORATION, a Delaware
corporation (the "Company"), with its principal place of business at 000 Xxxx
Xxxxxxxx Xxxxx, Xxx Xxxx, XX 00000.
R E C I T A L S
A. The Company desires to employ Key Executive and Key Executive
desires to provide employment services to the Company, on all the terms and
conditions set forth herein.
B. The Board of Directors of the Company believes it to be in the
best interest of the Company and its stockholders to provide the Key Executive
with certain severance benefits should Key Executives employment with the
Company terminate under certain circumstances, and the parties wish to provide
Key Executive with financial security and with sufficient incentive and
encouragement for Key Executive to remain with the Company
C. Certain capitalized terms used in the Agreement are defined in
Section 9 below.
A G R E E M E N T
In consideration of the mutual covenants herein contained, and in
consideration of the continuing employment of Key Executive by the Company, the
parties agree as follows:
1. DUTIES AND SCOPE OF EMPLOYMENT. The Board of Directors has appointed
Key Executive as President and Chief Executive Officer of Company. Key
Executive shall have such other or additional duties or positions with the
Company, its subsidiaries or affiliates as the Board of Directors of the
Company shall determine. The Key Executive shall comply with and be bound by
the Company's operating policies, by-laws, procedures and practices from
time to time in effect during his employment. Key Executive shall devote his
full time, skill and attention to his duties and responsibilities, and shall
perform them faithfully, diligently and competently, and the Key Executive
will use his best efforts to further the business of the Company and its
affiliated entities. In connection with his employment under this agreement,
Key Executive shall be based at the Company's principal place of business
which is currently located in San Jose, California, but Key Executive
understands and agrees that he may be required to perform services anywhere
in the world, and will perform his employment at such location or locations
as may be determined by the Board of Directors of the Company.
2. BASE COMPENSATION. The Company will pay Key Executive an annual base
salary as authorized by the Compensation Committee of the Board of Directors. As
of the Effective Date of this Agreement Key Executive's annual base salary will
be $200,000.00 ("Base Compensation"). The Company will pay the Base
Compensation in accordance with normal Company payroll practices. The
Base Compensation shall be reviewed annually and may be increased from time
to time, in which case the "Base Compensation" will refer to the base salary
earned by Key Executive at the time in question.
3. KEY EXECUTIVE'S BENEFITS. The Key Executive shall be eligible to
participate in the employee benefit plans and Executive compensation programs
maintained by the Company applicable to other Executives of the Company,
including (without limitation) retirement plans, savings or profit-sharing
plans, stock option and employee stock purchase plans, incentive or other bonus
plans, life, disability, health, medical and hospital, accident and other
insurance programs, paid vacations, and similar plans or programs, subject in
each case to the terms and conditions of the plan or program in question and to
the sole determination of the Board of Directors, or any committee administering
such plan or program. The Company agrees that Key Executive shall maintain and
carry over to Company his current accrued vacation and sick time from his
employment with Phoenix Technologies Ltd., and thereafter while being employed
by Company earn vacation at a rate of 20 days per year provided Key Executive
does not accrue a total of more than 40 days of vacation. After Key Executive
has accrued 40 days of vacation, Key Executive shall no longer be eligible to
earn further vacation until he uses some vacation, at which point Key Executive
can again begin to accrue vacation up to the 40 day vacation cap. The following
additional Key Executive benefits will be made available:
(a) EXCHANGE OF PHOENIX STOCK OPTIONS. Key Executive shall be able to
participate in Company's option exchange plan, allowing Key Executive to
exchange his vested and unvested Phoenix stock options for Company stock options
at an exchange ratio of 1.862 Company stock options for each Phoenix stock
option. The vesting schedule for all stock options exchanged under the plan will
remain unchanged, generally over four years. The 35,000 stock options granted
on July 1, 1999, will continue to vest according to the terms of the agreed upon
schedule between Key Executive and Phoenix, a copy of which is attached hereto
as Exhibit B.
(b) ADDITIONAL STOCK OPTION GRANTS. Key Executive will receive an
additional grant of stock options as of December 21, 1999, in the amount of
205,009 shares at $7.36 per share. These options will vest ratably over a
four-year term and expire on December 21, 2009. In addition, Key Executive
will be entitled to receive future annual grants of options during the term
of this Agreement at the discretion of the Compensation Committee of the
Board of Directors.
(b) BONUS ELIGIBILITY AND PAYMENT. The target amount of Key
Executive's fiscal year 2000 bonus will be $100,000.00. Actual payments
under the bonus plan will be based on application of the terms of the
published Executive Bonus Plan.
(c) DIRECTORS AND OFFICERS INSURANCE. The Company shall purchase
and maintain in force Directors and Officers insurance, from a company
qualified to conduct such business in California, having an A.M. Best rating
of at least A (or equivalent rating), insuring against claims resulting from
the Key Employee's performance of duties and responsibilities on behalf of
Company. Such coverage shall be in an amount at least equal to any coverage
in effect on behalf of the Key Employee with respect to his duties as an
officer of Phoenix Technologies Ltd., having standard coverage for past
present and future directors, with Key Executive having the benefit of such
coverage after leaving Company.
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4. OTHER BUSINESS AFFILIATIONS. In addition to Key Executive's obligations
under Section 8, Key Executive agrees that, without the approval of the Board of
Directors of the Company, he shall not, during the term hereof, devote any time
to any business affiliation which would interfere with or derogate from his
obligations under this Agreement with respect of the Company and any of its
subsidiaries, parents or affiliates, except that Key Executive may serve as a
member of a Board of Directors with outside companies, for which Key Executive
shall be unrestricted in becoming a member, provided his fiduciary duties to
Company are at all times maintained and Key Executive has received prior
approval from the Board of Directors.
5. EXPENSES. The Company shall reimburse Key Executive for all reasonable
business expenses incurred in the performance of his duties hereunder on behalf
of the Company, upon submission of expense reports to the extent necessary to
substantiate the Company's federal income tax deductions for such expenses under
the Internal Revenue Code (as amended) and the Regulations thereunder and
according to such expense report regulations as may be established by the Board
of Directors of the Company.
6. TERM AND TERMINATION.
(a) TERM OF AGREEMENT. Key Executive's employment with the Company
under this Agreement shall continue from the Effective Date until terminated in
accordance with the terms of this Agreement.
(b) TERMINATION FOR CAUSE. The Board Of Directors may terminate this
Agreement and the employment of Key Executive hereunder, with immediate effect,
including, without limitation, the termination of all compensation and benefits
(except as may be expressly provided in this Agreement), for Cause, as defined
hereunder. However, the Key Executive shall remain eligible for severance and
other benefits (if any) as may then be available under the Company's then
existing severance and benefit plans and policies at the time of Key Executive's
termination.
(c) TERMINATION NOT FOR CAUSE If the Company terminates Key
Executive's employment for any reason other than Cause, or Key Executive's
employment is terminated by Constructive Termination as defined in this
Agreement, the Key Executive shall be entitled to receive the severance benefits
stated in Section 7(a) below unless the termination or Constructive Termination
is the result of death or disability, in which event Key Executive shall be
entitled to receive the benefits set forth in Section 7(b), if any. Both Company
and Key Executive agree that Key Executive's employment is "at will" and may be
terminated be either party at any time for any reason.
(d) EXECUTIVE'S RESIGNATION. In the event Key Executive voluntarily
resigns, Key Executive shall give the Board of Directors thirty (30) days
written notice of resignation. Upon such notice, the Board of Directors, at its
discretion, may terminate the relationship immediately, but in such event the
Company's obligation to Key Executive shall be limited to compensation through
the remainder of the thirty (30) days resignation notice period.
(e) RETURN OF INFORMATION. On termination of employment for any
reason, Key Executive will return to the Company all originals and copies of all
or any part of: lists and sources of customers and suppliers; lists of
employees; proposals to clients or drafts of proposals; business plans and
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projections; reports; job notes; specifications; and drawings pertaining to the
Company or its customers; or any and all other things, equipment and written
materials obtained by Key Executive during the course of employment from the
Company or from any client of the Company, unless Company provided in writing
its waiver of the forgoing.
7. SEVERANCE BENEFITS.
(a) TERMINATION NOT FOR CAUSE. If the Board of Directors terminates
Key Executive's employment for any reason other than Cause, or Key Executive's
employment is terminated by Constructive Termination as defined in this
Agreement, the Key Executive shall be entitled to receive the following
severance benefits:
(1) GUARANTEED SEVERANCE PAYMENTS. Subject to Key
Executive entering into a Release of Claims (in a form substantially
similar to the form of release of claims attached as Exhibit A), Key
Executive shall be entitled to receive severance payments for twelve (12)
months from the date of termination at Key Executive's then current base
salary, which may be greater than, but will not be less than the Base
Compensation (the "Guaranteed Severance Payment"). The Guaranteed
Severance Payment will be paid to Key Executive in accordance with the
Company's standard payroll practices. Upon termination, Key Executive
will also be entitled to receive a pro-rated portion of his then current
targeted bonus for the fiscal year of his termination as described in
Section 3(b) based on the date that Key Executive's employment is
terminated.
(2) MEDICAL BENEFITS. The Company, at the Company's sole
expense, shall provide Key Executive (and, if applicable, his eligible
dependents) with the same level of health coverage and benefits as in
effect for Key Executive (and, if applicable, his eligible dependents) on
the day immediately preceding the day of the Key Executive's termination
of employment (the "Company-Paid Coverage"); provided, however, that: (i)
Key Executive and each eligible dependent constitutes a qualified
beneficiary, as defined in Section 4980B(g)(1) of the Internal Revenue
Code of 1986, as amended (collectively, "Qualified Beneficiaries"); (ii)
each Qualified Beneficiary elects continuation coverage under the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended
("COBRA"), within the time period prescribed pursuant to COBRA; and (iii)
if the health coverage is no longer offered by the Company to its current
employees, then the Company shall be under no obligation to continue the
existing coverage for Key Executive (and, if applicable, his eligible
dependents). Such Company-Paid Coverage shall continue in effect for
each Qualified Beneficiary until the earlier of (i) the Qualified
Beneficiary is no longer eligible to receive continuation coverage under
COBRA, or (ii) thirty (30) months following termination of employment.
Except as described in subsection(2)(ii) above, the Company's obligations under
paragraphs 1 and 2 of this Section 7(a) shall terminate upon Key Executive's
breach of his agreements under Section 8 hereof.
(b) DISABILITY; DEATH. If the Company terminates the Key Executive's
employment as a result of the Executive's Disability or if the Key Executive's
employment terminates due to the death of the Key Executive, then the Key
Executive shall not be entitled to receive severance or other benefits pursuant
to this Agreement, unless the Company has no benefit plan in place to account
for death or disability of employees, in which case Key Executive will be
entitled to receive the Guaranteed
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Severance Payment specified in Section 7(a)(1). Key Executive shall remain
eligible for those severance and other benefits (if any) as may then be
available under the Company's then existing severance and benefits plans and
policies at the time of Executive's termination or death.
(c) STOCK OPTIONS. All of Key Executive's options not otherwise
forfeited under the terms of this Agreement will continue to vest during the
twelve month Severance Benefits Period. Key Executive will forfeit options
that have not vested as of the end of the twelve month Severance Benefits
Period. Key Executive and the Company will negotiate a consulting agreement
under which Key Executive will provide advisory services to the Company's
executive management or board of directors during the 12 months after his
termination. In the event the Company undergoes a Change in Control, or other
material event in which the Company or Key Executive's position undergoes a
material change as a result of the material event, Key Executive's stock
options will accelerate vesting such that fifty percent (50%) of the options
will vest at the completion of the Change in Control, or material event, and
the remaining fifty percent (50%) will vest 90 days thereafter. If there is
an inconsistency between this Agreement and the Company's stock option plans
or a stock option agreement, the terms of this Agreement shall prevail.
(d) XXXXXXX XXXXXXX. While Key Executive receives severance payments,
Executive will no longer be deemed a Section 16(b) officer, but agrees to be
considered an "insider" and comply with the Company's Xxxxxxx Xxxxxxx Policy,
unless otherwise agreed to in writing by the Board of Directors for matters
related to reduction of Key Executive's stock holding.
8. COVENANTS NOT TO COMPETE AND NOT TO SOLICIT.
(a) During the term hereof, Key Executive agrees that he shall not,
directly or indirectly, engage on his own behalf, or as owner, manager, advisor,
principal, agent, partner, employee consultant, director, officer, stockholder
or other proprietor owning more than a five percent (5%) interest, in any firm,
corporation, partnership or other organization which is in the business of
manufacturing, selling or distributing products in competition with the products
of the Company. In case of any such ownership or participation, Key Executive
shall furnish a detailed statement thereof to the Board of Directors of the
Company, and, as from time to time requested by said Board, resubmit for
approval a detailed statement thereof, which statement may be approved by said
Board as not constituting such a violation or conflict, and in the event said
Board determines that such violation or conflict exists, Key Executive shall
immediately divest himself of such ownership or participation (or of
representing or promoting others engaged in any such business). It is intended
and agreed that during the term of this Agreement, Key Executive will not
knowingly perform any act which may confer any competitive benefit or advantage
upon any enterprise competing with the Company or any successor.
(b) Upon the termination of the Key Executive 's employment with the
Company within the terms of Section 7(a) and for a period of eighteen (18)
months thereafter, Key Executive agrees that he shall not, on his own behalf, or
as owner, manager, advisor, principal, agent, partner, employee consultant,
director, officer, stockholder or other proprietor owning more than a five
percent (5%) interest of any business entity, or otherwise, in any territory in
which the Company is actively engaged in business: (i) open or operate any
business which is in competition with any business of the Company, (ii) act as
an employee, agent, advisor or consultant of any competitor of the Company,
(iii) take any action to or do anything reasonably intended to divert business
from the Company or influence or attempt to influence any existing customers of
the Company to cease doing business with the Company
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or to alter its business relationship with the Company, or (iv) take any
action or do anything reasonably intended to influence any suppliers of the
Company to cease doing business with the Company or to alter its business
relationship with the Company. Key Executive further covenants and agrees
that he will not for himself or on behalf of any other person, partnership,
firm, association or corporation in any territory served by the Company,
directly or indirectly solicit or accept business from any of the Company's
existing customers for the purchase or sale of products or services of a like
kind to those sold or provided the Company. The foregoing covenant shall not
be deemed to prohibit Key Executive from acquiring an investment not more
than one percent (1%) of the capital stock of a competing business, whose
stock is traded on a national securities exchange or through the automated
quotation system of a registered securities association.
(c) During the term of this Agreement, and upon the termination of the
Key Executive's employment with the Company within the terms of Section 7(a) and
for a period of eighteen (18) months thereafter, Key Executive agrees that he
shall not either directly solicit, induce, attempt to hire, recruit, encourage,
take away, hire any employee of the Company or cause any employee of the Company
to leave his or her employment either for Key Executive or for any other entity
or person.
(d) Key Executive represents that he (i) is familiar with the
foregoing covenants not to compete and not to directly solicit, and (ii) is
fully aware of his obligations hereunder, including, without limitation, the
reasonableness of the length of time, scope and geographic coverage of these
covenants. Key Executive agrees that the provisions of this Section 8 contain
restrictions that are not greater than necessary to protect the interests of the
Company. In the event of the breach or threatened breach by Key Executive of
this Section 8, the Company, in addition to all other remedies available to it
at law or in equity, will be entitled to seek injunctive relief and/or specific
performance to enforce this Section 8.
(e) Company will respond within14 days to any written request by Key
Executive to exclude a particular company or business entity from the scope of
this Section 8. Company will not unreasonably deny such a request. The parties
agree that a passive financial investment by Key Executive in a third party will
not constitute competition within the scope of this Section 8.
9. DEFINITION OF CERTAIN TERMS. The following terms referred to in this
Agreement shall have the following meanings for the purposes of this Agreement
only:
(a) CAUSE. "Cause" shall mean (i) any act of personal dishonesty
taken by the Key Executive in connection with his responsibilities as President
and Chief Executive Officer and intended to result in substantial personal
enrichment of the Key Executive, (ii) conviction of a felony resulting from any
action or failure to act by the Key Executive in the performance of Executive's
duties, that is injurious to the Company, (iii) a willful act by the Key
Executive which constitutes gross misconduct and which results in material
injury to the Company, (iv) continued violations by the Key Executive of the his
material obligations under this Agreement that are demonstrably willful and
deliberate on the Key Executive's part after there has been delivered to the Key
Executive a written demand for performance from the Company which describes the
basis for the Company's belief that the Key Executive has not substantially
performed his duties; and (v) the breach by Key Executive of the non-competition
provisions of this Agreement, or of the Company's standard form of
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confidentiality and proprietary inventions agreement, which shall be
supplemental hereto and incorporated by reference herein.
(b) CONSTRUCTIVE TERMINATION. "Constructive Termination" shall mean
any of the following: (1) any material reduction in compensation, including
bonus, unless such a reduction is applied, by resolution of the Board of
Directors, to all members of the Company's officers; (2) reduction of Key
Executive's title; (3) material reduction in Key Executive's responsibilities;
(4) a relocation that is more than 75 miles from San Jose, California; and (5)
material reduction in the number of Company employees in the organization for
which Key Executive is responsible (said reduction not being based on voluntary
resignation of Company employees, but through an internal reorganization, or
other shifting of personnel that is not under the control of Key Executive).
(c) DISABILITY. "Disability" shall mean that Key Executive has been
unable to perform his duties under this Agreement as the result of his
incapacity due to physical or mental illness, and such inability, at least
ninety (90) days after its commencement, is determined to be total and permanent
by a physician selected by the Company or its insurers and acceptable to the Key
Executive or the Key Executive's legal representative (such Agreement as to
acceptability not to be unreasonably withheld). Termination resulting from
Disability may only be effected after at least 30 days' written notice by the
Company of its intention to terminate the Key Executive 's employment. In the
event that the Key Executive resumes the performance of substantially all of his
duties hereunder before the termination of his employment becomes effective, the
notice of intent to terminate shall automatically be deemed to have been
revoked.
(d) CHANGE IN CONTROL. "CHANGE IN CONTROL" means the occurrence of
any of the following:
(i) The consummation of a merger or consolidation of the
Company with or into another entity or any other
corporate reorganization, if more than 50% of the
combined voting power of the continuing or surviving
entity's securities outstanding immediately after
such merger, consolidation or other reorganization
is owned by persons who were not stockholders of the
Company immediately prior to such merger,
consolidation or other reorganization;
(ii) The sale, transfer or other disposition of all or
substantially all of the Company's assets;
(iii) Any transaction as a result of which any person
becomes the "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company
representing at least 20% of the total voting power
represented by the Company's then outstanding voting
securities. For purposes of this Paragraph (iii),
the term "person" shall have the same meaning as
when used in sections 13(d) and 14(d) of the
Exchange Act but shall exclude:
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(A) A trustee or other fiduciary holding
securities under an employee benefit plan of the
Company or a subsidiary of the Company;
(B) A corporation owned directly or indirectly by
the stockholders of the Company in substantially the
same proportions as their ownership of the common
stock of the Company; and
(C) Any direct or indirect acquisition of the
Company's voting securities by Phoenix Technologies
Ltd.
A transaction shall not constitute a Change in Control if its sole
purpose is to change the state of the Company's incorporation or
to create a holding company that will be owned in substantially
the same proportions by the persons who held the Company's
securities immediately before such transactions.
10. NO BREACH OF DUTY. Key Executive represents that Key Executive's
performance of this Agreement and as an employee of the Company does not and
will not breach any agreement or duty to keep in confidence proprietary
information acquired by Key Executive in confidence or in trust prior to
employment with the Company. Key Executive has not and will not enter into any
agreement either written or oral in conflict with this Agreement. Key Executive
is not presently restricted from being employed by the Company or entering into
this Agreement.
11. SUCCESSORS.
(a) COMPANY'S SUCCESSORS. Any successor to the Company (whether
direct or indirect and whether by purchase, lease, merger, consolidation,
liquidation or otherwise) to all or substantially all of the Company's business
and assets shall assume the obligations under this Agreement and agree expressly
to perform the obligations under this Agreement in the same manner and to the
same extent as the Company would be required to perform such obligations in the
absence of a succession. For all purposes under this Agreement, the term
"Company" shall include any successor to the Company's business and assets which
executes and delivers the assumption agreement described in this Section or
which becomes bound by the terms of this Agreement by operation of law.
(b) KEY EXECUTIVE'S SUCCESSORS. The terms of this Agreement, and all
rights of the Key Executive hereunder, shall inure to the benefit of, and be
enforceable by, the Key Executive's personal or legal representatives,
executors, administrators, successors, heirs, devisees and legatees.
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12. NOTICE.
(a) GENERAL. Notices and all other communications contemplated by
this Agreement shall be in writing and shall be deemed to have been duly given
when personally delivered or when mailed by U.S. registered or certified mail,
return receipt requested and postage prepaid. In the case of the Key Executive,
mailed notices shall be addressed to him at the home address that he most
recently communicated to the Company in writing. In the case of the Company,
mailed notices shall be addressed to its corporate headquarters, and all notices
shall be directed to the attention of its Vice President and General Counsel.
(b) NOTICE OF TERMINATION. Any termination by the Company for Cause
pursuant to Section 6(b) hereof shall be communicated by a notice of termination
to the Key Executive given in accordance with Section 12(a) of this Agreement.
Such notice shall indicate the specific termination provision in this Agreement
relied upon, shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination under the provision so indicated, and
shall specify the termination date (which shall be not more than 15 days after
the giving of such notice).
13. ARBITRATION.
(a) The Company and Key Executive agree that any dispute or
controversy arising out of, relating to, or in connection with this
Agreement, the interpretation, validity, construction, performance, breach,
or termination hereof, or any of the matters herein released, excepting
claims under applicable workers' compensation law and unemployment insurance
claims, shall be settled exclusively by binding arbitration to be held in
Santa Xxxxx County, California in accordance with the National Rules for the
Resolution of Employment Disputes then in effect of the American Arbitration
Association (the "Rules"). The arbitrator may grant injunctions or other
relief in such dispute or controversy. The decision of the arbitrator shall
be final, conclusive and binding on the parties to the arbitration. Judgment
may be entered on the arbitrator's decision in any court having jurisdiction.
This provision confers complete and total jurisdiction for final, binding
arbitration with full and complete relief for any and all covered disputes,
including all contract, tort, and statutory claims, and any other causes of
action unless otherwise prohibited by law. This arbitration provision will
survive after the termination of this Agreement.
(b) The arbitrator(s) shall apply California law to the merits of any
dispute or claim, without reference to conflicts of law rules. Key Executive
hereby consents to the personal jurisdiction of the state and federal courts
located in California for any action or proceeding arising from or relating to
this Agreement or relating to any arbitration in which the Parties are
participants, and hereby waives any rights he may have to a jury trial with
respect thereto.
(c) KEY EXECUTIVE HAS READ AND UNDERSTANDS THIS SECTION, WHICH
DISCUSSES ARBITRATION. KEY EXECUTIVE UNDERSTANDS THAT BY SIGNING THIS
AGREEMENT, KEY EXECUTIVE AGREES TO SUBMIT ANY CLAIMS ARISING OUT OF, RELATING
TO, OR IN CONNECTION WITH THIS AGREEMENT, THE INTERPRETATION, VALIDITY,
CONSTRUCTION, PERFORMANCE, BREACH OR TERMINATION THEREOF, OR ANY OF THE MATTERS
HEREIN TO BINDING ARBITRATION, AND THAT THIS ARBITRATION CLAUSE CONSTITUTES A
WAIVER OF KEY EXECUTIVE'S RIGHT TO A
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JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL
ASPECTS OF THIS SEVERANCE AGREEMENT AND RELEASE OF ALL CLAIMS.
14. MISCELLANEOUS PROVISIONS.
(a) WAIVER. No provision of this Agreement shall be modified,
waived or discharged unless the modification, waiver or discharge is agreed to
in writing and signed by the Key Executive and by an authorized officer of the
Company (other than the Key Executive). No waiver by either party of any breach
of, or of compliance with, any condition or provision of this Agreement by the
other party shall be considered a waiver of any other condition or provision or
of the same condition or provision at another time.
(b) WHOLE AGREEMENT. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter hereof and
supersedes in its entirety any and all prior undertakings and agreements of the
Company and Key Executive with respect to the subject matter hereof.
(c) CHOICE OF LAW. The validity, interpretation, construction
and performance of this Agreement shall be governed by the internal substantive
laws but not the choice of law rules of the State of California.
(d) SEVERABILITY. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision hereof, which shall remain in full force
and effect.
(e) NO ASSIGNMENT OF BENEFITS. The rights of any person to
payments or benefits under this Agreement shall not be made subject to option or
assignment, either by voluntary or involuntary assignment or by operation of
law, including (without limitation) bankruptcy, garnishment, attachment or other
creditor's process, and any action in violation of this Section 14(e) shall be
void.
(f) EMPLOYMENT TAXES. All payments made pursuant to this
Agreement will be subject to withholding of applicable income and employment
taxes.
(g) COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together will constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in
the case of the Company by its duly authorized officer, as of the day and year
first above written.
INSILICON CORPORATION Key Executive: PRESIDENT AND CEO
/s/ Xxxxxx X. Xxxxx /s/ Xxxxx Xxxxxxxx
--------------------------------- -----------------------------------
By: Xxxxxx X. Xxxxx By: Xxxxx Xxxxxxxx
Chairman of the Board Date: 2/11/2000
-----------------
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EXHIBIT A
In consideration for Key Executive accepting the benefits under his Key
Executive Officer Severance Agreement dated November 30, 1999, Key Executive
agrees to release Company of all claims arising from or relating to his
employment as set forth below.
Key Executive hereby forever waives for himself, his attorneys, heirs,
executors, administrators, successors and assigns any claim against Company,
including its subsidiaries, affiliates, insurers, shareholders, officers,
directors and employees (the "Parties Released"), for any action, loss, expense
or any damages arising from any occurrence from the beginning of time until the
date of the signing of this Agreement and arising or in any way resulting from
Executive's employment with Company or the termination thereof. The only
exceptions to the above waiver are claims by Employee under any worker's
compensation or unemployment statutes and any right arising under this
Agreement. Employee represents that he has no current intention to assert any
claim on any basis against the Parties Released. Company releases its claims on
intellectual property created by Employee after the date of execution of this
Agreement.
KEY EXECUTIVE ACKNOWLEDGES THAT HE HAS BEEN GIVEN AT LEAST TWENTY-ONE
(21) DAYS WITHIN WHICH TO CONSIDER SIGNING THIS RELEASE. KEY EXECUTIVE MAY
REVOKE THIS AGREEMENT BY WRITTEN NOTICE TO COMPANY WITHIN SEVEN DAYS FOLLOWING
ITS EXECUTION. THIS RELEASE SHALL NOT BECOME EFFECTIVE AND BINDING UNTIL SUCH
PERIOD HAS EXPIRED. KEY EXECUTIVE WILL RETURN ALL CONSIDERATION AND BENEFITS
PROVIDED IN CONNECTION WITH THE GRANTING OF THIS RELEASE IF HE REVOKES THE
RELEASE.
In the event of breach of this Agreement by Company, Executive's
exclusive remedy for such breach shall be limited to the enforcement of the
terms of this Agreement.
COMPANY: KEY EXECUTIVE:
INSILICON CORPORATION
--------------------------------- -----------------------------------
By: Name:
---------------------------- -----------------------------
Title:
-------------------------
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EXHIBIT B
INCENTIVES. As a retention and performance incentive, Company agrees to grant
to Executive a non-qualified option to purchase 35,000 shares of the Company's
common stock at an exercise price of $9.30 per share, the vesting of which will
be according to the terms set forth below.
a. QUARTERLY OBJECTIVES. Company and Executive have agreed that
22,500 shares (the "Objectives Shares") will vest ratably over a four-year
period from the date of grant. Vesting will accelerate, however, upon the
completion of each of the three sets of objectives identified in Exhibit B.
The number of shares subject to accelerated vesting will be based upon: 1)
the number of the three objectives met times 7,500 shares (the "Total
Accelerated Shares"), less 2) the number of Objectives Shares previously
vested. The Company will have the right to repurchase up to 50% of: 1) the
exercised Objectives Shares, less 2) the Total Accelerated Shares, at a
repurchase price of $9.30 per share. The determination of whether Executive
has completed objectives will be in Company's sole discretion.
b. CORPORATE RE-STRUCTURING. If the Company completes a Corporate
Re-Structuring, options on 12,500 shares will immediately vest in full as of
the date of such transaction. Until such a restructuring event occurs, this
portion of options will vest according to the Company's standard four-year
vesting schedule commencing on the date of grant. . "Corporate
Re-Structuring" shall mean the sale, divestiture, or merger of the Company's
Semiconductor Intellectual Property Group with another entity such that
Company no longer owns the majority of its net assets or equity, or controls
its operations
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