EXHIBIT 10.23
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EMPLOYMENT SEVERANCE AND CONSULTING AGREEMENT
This Employment Severance and Consulting Agreement is entered into
effective as of this 2nd day of December, 1996 (the "Execution Date") by and
between Xxxx Xxxxxx ("Xxxxxx") and DSP Group, Inc., a Delaware corporation
("DSPG").
RECITALS
X. Xxxxxx has served as DSPG's Controller and Chief Accounting
Officer.
X. Xxxxxx has resigned as DSPG's Controller and Chief Accounting
Officer as of October 31, 1996, on the terms set forth below.
AGREEMENT
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Eight (8) days after DSPG receives satisfactory evidence of the
fully executed original of this Agreement (assuming that Xxxxxx has executed
this Agreement and has not revoked acceptance within the seven (7) day period
as set forth in Section 2 (below), DSPG will cause to be delivered to Xxxxxx
$250.
2. Provided that Xxxxxx does not revoke this Agreement prior to
the eighth day after the date that this Agreement was executed by Xxxxxx, and
so long as Xxxxxx is not in breach of this Agreement or any Confidentiality
Agreement with DSPG, DSPG shall agree (a) to pay to Xxxxxx a salary of
$9,533.34 per month through January 31, 1997 (the "Salary"), subject to
applicable withholding taxes, deductions, etc., in exchange for Xxxxxx'x
continued full-time employment with DSPG reporting directly to the Chief
Financial Officer of DSPG and to not compete, in any way directly or
indirectly, with DSPG through January 31, 1997, (b) thereafter if Xxxxxx has
remained a full time employee of DSPG through January 31, 1997, to pay to
Xxxxxx an additional amount equal to $9,533.34 per month through April 30,
1997 (the "Consulting Fee"), subject to applicable withholding taxes,
deductions, etc. in exchange for Xxxxxx'x agreement to consult with the Chief
Financial Officer of DSPG and (c) provide a mutually acceptable letter of
reference. The Salary and Consulting Fee shall be paid bi-monthly, in
arrears. Xxxxxx'x stock options in DSPG shall continue to vest up to and
through April 30, 1997. Thereafter, Xxxxxx shall have through June 14, 1997,
to exercise his stock options vested as of April 30, 1997 in accordance with
the terms of such stock options and thereafter all unexercised stock options
shall be null and void. Up to and through April 30, 1997, so long as Xxxxxx
has remained a full time employee of DSPG through January 31, 1997, DSPG
shall also continue to provide to Xxxxxx at its cost the employment benefits
which Xxxxxx is currently receiving to the extent it may lawfully and
contractually provide such benefits to him. Upon Xxxxxx'x termination of
full time employment, Xxxxxx shall be paid immediately for all accrued
vacation and unreimbursed travel expenses.
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3. Upon execution of this Agreement, Xxxxxx shall submit to DSPG a
written report describing in detail all on-going contacts and activities made
or performed by Xxxxxx on DSPG's behalf in order to provide a smooth
transition. On, or before January 31, 1997, Xxxxxx shall return to DSPG all
DSPG property in Xxxxxx'x possession and control, including, but not limited
to, all keys to DSPG offices and facilities, equipment, and all DSPG credit
cards owned by DSPG. Until the earlier to occur of (i) Xxxxxx'x full time
employment with another business and (ii) December 31, 1997, DSPG shall (a)
agree to maintain and allow Xxxxxx access and use of the (000) 000-0000
voicemail so long as DSPG maintains its current voicemail system and (b)
allow Xxxxxx the reasonable use and access during DSPG's regular business
hours to DSPG's computer and Internet network, printers, fax machines and
copiers.
4. Upon execution of this Agreement, Xxxxxx acknowledges that he
has resigned as the Controller and Chief Accounting Officer of DSPG effective
as of October 31, 1996, and confirms that he has resigned as the Controller
and Chief Accounting Officer of DSPG, notwithstanding any right to revoke
other terms of this Agreement concerning his employment as set forth herein.
5. Subject to the terms and conditions of this Agreement, Xxxxxx
hereby agrees that he is entitled to no further severance or bonus from DSPG
and agrees that the compensation to be paid hereunder is greater than the
compensation and/or severance, if any, to which Xxxxxx was entitled.
Notwithstanding the foregoing, on, or before, January 31, 1997, DSPG shall
pay to Xxxxxx his annual bonus of $22,800, subject to applicable withholding
taxes, deductions, etc., as contemplated in Xxxxxx'x offer of employment from
DSPG dated December 10, 1993. Such bonus shall be paid to Xxxxxx even if
Xxxxxx shall terminate employment with DSPG prior to January 31, 1997.
6. Xxxxxx represents that Xxxxxx has had the opportunity to
thoroughly discuss all aspects of this Agreement, including the general
release provisions, with his advisors; has carefully read and understood all
of the provisions of this Agreement; and, that Xxxxxx has voluntarily entered
into this Agreement.
7. Xxxxxx acknowledges that this Agreement was delivered to Xxxxxx
on the Execution Date, and DSPG agreed that Xxxxxx had until the close of
business on December 23, 1996 (21 days later), to consider the Agreement.
Xxxxxx elected to execute this Agreement on the Execution Date as a matter of
Xxxxxx'x choice and acknowledges that he has been afforded sufficient time to
consider the Agreement and has obtained legal advice. DSPG acknowledges that
Xxxxxx may revoke this Agreement for a period of seven (7) days following the
date this Agreement is executed by Xxxxxx, but such revocation shall not
effect the termination of Xxxxxx'x employment status as the Controller and
Chief Accounting Officer of DSPG.
8. As a material inducement to execute this Agreement, and except
for the provisions herein and except for claims, if any, that arise under
Xxxxxx'x Indemnification Agreement with DSPG dated July 22, 1994 (the
"Indemnification Agreement") for
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Xxxxxx'x actions as an officer or employee of DSPG through the date of
termination of his employment with DSPG, Xxxxxx hereby irrevocably and
unconditionally releases, acquits, and forever discharges DSPG (for purposes
of this Section and Sections 9, 10 and 11 (below), DSPG shall include DSPG's
predecessors, successors, assigns, agents, subsidiaries, former subsidiaries,
directors, former directors, officers, former officers, employees,
representatives, attorneys, affiliates (and agents, directors, officers,
employees, representatives, and attorneys of such affiliates and former
officers, directors, and agents thereof)), and all persons acting by,
through, under, or in concert with any of them (collectively "Releasees"), or
any of them, from any and all charges, complaints, claims, liabilities,
obligations, promises, agreements, controversies, damages, actions, causes of
actions, suits, rights, demands, costs, losses, debts, and expenses
(including attorneys' fees and costs actually incurred), of any nature
whatsoever, known or unknown ("Claim" or "Claims") which Xxxxxx now has,
owns, or holds, or claims to have, owns, or holds, or which Xxxxxx at any
time heretofore had, owned, or held, or claimed to have, owns, or holds,
against DSPG or any of DSPG's Releasees.
9. Except for the provisions of this Agreement and except for any
claims, causes of action or any other rights of DSPG against Xxxxxx,
including but not limited to any DSPG Claim (as defined below), for which
Xxxxxx is NOT entitled to indemnification under the Indemnification
Agreement, DSPG hereby irrevocably and unconditionally releases, acquits, and
forever discharges Xxxxxx from any and all charges, complaints, claims,
liabilities, obligations, promises, agreements, controversies, damages,
actions, causes of actions, suits, rights, demands, costs, losses, debts, and
expenses (including attorneys' fees and costs actually incurred), of any
nature whatsoever, known or unknown (a "DSPG Claim") which DSPG now has,
owns, or holds, or claims to have, owns, or holds, or which DSPG at any time
heretofore had, owned, or held, or claimed to have, owns, or holds, against
Xxxxxx.
00. Xxxxxx and DSPG each expressly waives and relinquishes all
rights and benefits afforded by Section 1542 of the Civil Code of the State
of California and does so understanding and acknowledging the significance
and consequence of such specific waiver of Section 1542. Section 1542 of the
Civil Code of the State of California states as follows:
"A general release does not extend to claims which
the creditor does not know or suspect to exist in his favor at
the time of executing the release, which if known by him must
have materially affected his settlement with the debtor."
Thus, notwithstanding the provisions of Section 1542, and for the
purpose of implementing a full and complete release and discharge of the
Releasees, DSPG and Xxxxxx expressly acknowledge that this Agreement is
intended to include in its effect, without limitation except as expressly
set forth in Sections 8 and 9, all Claims which DSPG or Xxxxxx may have
against the other, up to and through the last date of execution of
this document, including but not limited to those under the Age
Discrimination and
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Employment Act, even though one or the other is not currently aware of or
suspects such claim to exist in his favor at the time of execution hereof,
and that this Agreement contemplates the extinguishment of any such Claim or
Claims.
11. Without limiting the generality of the foregoing, DSPG and
Xxxxxx, each hereby agree that in the event that any party hereto should
bring any action, suit, or other proceedings against any other party hereto,
concerning a breach of this Agreement, the claims released by this Agreement,
or contesting the validity of this Agreement, or attempting to rescind,
negate, modify or reform this Agreement or any of its terms or provisions, or
to remedy, prevent or obtain relief from a breach of this Agreement, the
prevailing party to such an action, suit or proceeding, shall be entitled to
the attorneys' fees reasonably incurred in each and every such action, suit,
or other proceeding, including any and all appeals or petitions therefrom.
12. Xxxxxx represents and acknowledges that in executing this
Agreement he has not relied upon any representation or statement made by any
of the Releasees or by any of the Releasees' agents, representatives, or
attorneys with regard to the subject matter, basis, or effect of this
Agreement, or otherwise.
13. This Agreement shall be binding upon the parties hereto and
their heirs, administrators, representatives, executors, successors and
assigns (collectively, the "Interested Parties"), and shall inure to the
benefit of DSPG and Xxxxxx, their respective Interested Parties and each of
them, and to their heirs, administrators, representatives, executors,
successors, and assigns.
14. This Agreement is made and entered into in the State of
California, and shall in all respects be interpreted, enforced, and governed
under the laws of said State.
15. This Agreement constitutes the entire agreement and
understanding between the parties with respect to the subject matter herein,
and supersedes and replaces any prior agreements and understandings, whether
oral or written between them with respect to such matters. The provisions of
this Agreement may be waived, altered, amended or repealed in whole or in
part only upon the written consent of both parties to this Agreement.
DSP GROUP, INC.
By /s/ Xxx Xxxxxx /s/ Xxxxxxx Xxxxxx
___________________________________ ______________________________
Xxx Xxxxxx, Xxxx Xxxxxx
Chief Executive Officer
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