EMPLOYMENT AGREEMENT
AGREEMENT
made and entered into by and between GigOptix, Inc., a Delaware corporation (the
“Company”) and
_______ (the “Executive” and, with
the Company, the “Parties”), dated as
of _______________.
WHEREAS,
the Company wishes to retain the services of the Executive to work for the
Company as its ____________ (herein referred to as the “Position”) upon the
terms and conditions hereinafter set forth; and
WHEREAS,
in consideration for continued service in the Position, the Executive has agreed
to enter into and be bound by the terms of this Agreement.
For good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Company and the Executive agree as follows:
1. Employment,
Term. Subject to the terms and conditions set forth in this
Agreement, the Company hereby employs Executive on a full-time basis in the
Position, effective December 10, 2008 (the “Effective
Date.”) The Executive’s employment shall continue until
terminated as provided herein, the term of this Agreement is hereafter referred
to as “the term of
this Agreement” or “the term
hereof.”
2. Capacity and
Performance.
(a) During
the term hereof, the Executive shall serve the Company as ____________ reporting
to the chief executive officer of the Company (the “CEO”).
(b) During
the term hereof, the Executive shall be employed by the Company on a full-time
basis. The Executive shall have the duties and
responsibilities assigned to the position by the Company from time to
time and such other duties and responsibilities, reasonably consistent with
the position, with respect to the business operations of the Company,
as may be assigned by the Company from time to time
(c) Subject
to business travel as necessary or desirable for the performance of the
Executive’s duties and responsibilities hereunder, the Executive’s primary
worksite during the term hereof shall be at the location of the Company’s
offices in Palo Alto, CA, USA as of the Effective Date (the “Location”) or such
other site as the Company may select from time to time, provided such site is no
more than thirty-five (35) miles from the Location unless the Executive has
expressly consented in writing thereto.
(d) During
the term hereof, the Executive shall devote full business time
and best efforts, business judgment, skill and knowledge exclusively to the
advancement of the business and interests of the Company and to the discharge of
the duties and responsibilities hereunder. During the term of this
Agreement, the Executive may engage in passive management
of personal investments and in such community and charitable
activities as do not individually or in the aggregate give rise to a conflict of
interest or otherwise interfere with the performance of the duties and
responsibilities hereunder. It is agreed that the Executive shall not
accept membership on a board of directors or other governing board of any Person
or engage in any other business activity without the prior approval of the
[CEO]. It also is agreed that if the CEO
subsequently determines, and gives notice to the Executive, that any such
membership or activity, previously approved, is materially inconsistent with the
Executive’s obligations under Section 6, Section 7 or Section 8 of this
Agreement or gives rise to a material conflict of interest, the Executive shall
cease such activity promptly following notice from the Company.
GigOptix,
Inc. § 0000 Xxxx
Xxxx, Xxxxx 000 §
Xxxx Xxxx, XX 00000 XXX
phone:
000.000.0000 § fax:
000.000.0000 §
xxx.xxxxxxxx.xxx
3. Compensation and
Benefits. As compensation for all services performed by the
Executive under and during the term hereof and subject to performance of the
Executive's duties and of the obligations of the Executive to the Company and
its Affiliates, pursuant to this Agreement or otherwise:
(a) Base
Salary. Initially during the term hereof, the Company shall
pay the Executive a base salary at the rate of ____________ Dollars
($____________) per annum, payable in accordance with the payroll practices of
the Company for its executives and, commencing in calendar year
2010, subject to annual review by the Board or its compensation
committee and to increase, but not decrease (unless all salaries of executives
are decreased proportionately), in the discretion of such committee or the
Board. The Executive’s base salary, as from time to time increased,
is hereafter referred to as the “Base
Salary.”
(b) Bonus
Compensation. For each fiscal year of the Company (“FY”) completed during
the term hereof, subject to the condition set forth in the final sentence of
this provision, the Executive shall have the opportunity to earn an annual bonus
(“Annual
Bonus”) under the executive incentive plan then applicable to the
Company’s executives, as in effect from time to time, with the actual amount of
each Annual Bonus being determined by the Board or its designated committee
based on the achievement of target objectives established by the Board or its
designated committee after consultation with the CEO. Any Annual
Bonus due to the Executive hereunder will be payable not later than one and
one-half months following the close of the fiscal year for which the bonus was
earned or as soon as administratively practicable thereafter, within the meaning
of Section 409A of the Internal Revenue Code and the regulations promulgated
thereunder, each as amended (“Section
409A”). Except as otherwise provided in Section 4 hereof, the
Executive must be employed on the date annual bonuses are paid under the
Company’s executive incentive plan in order to be eligible to earn an Annual
Bonus for the preceding fiscal year.
(c) Equity
Participation. The Executive was granted stock options by the
Company as of December 17, 2008. Any further equity awards granted to
the Executive during their employment with the Company shall be at the
discretion of the Board.
(d) Employee Benefit
Plans. During the term hereof, the Executive shall be entitled
to participate in all “Employee Benefit
Plans,” as that term is defined in Section 3(3) of ERISA, including both
health and welfare plans and retirement plans, from time to time in effect for
executives of the Company generally, except to the extent any of the Employee
Benefit Plans is duplicative of a benefit otherwise provided to the Executive
under this Agreement (e.g., a severance pay plan). The Executive’s
participation shall be subject to the terms of the applicable Employee Benefit
Plan documents and generally applicable Company policies.
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(e) Vacations. During
the term hereof, the Executive will be eligible to earn vacation at the rate
of ____________ (___) days per year, to be taken at such
times and intervals as shall be determined by the Executive, subject to the
reasonable business needs of the Company and the approval of the
CEO. Vacation shall otherwise be governed by the policies of the
Company, as in effect from time to time.
(f) Business
Expenses. The Company will pay or reimburse the Executive for
all reasonable, customary and necessary business expenses incurred or paid by
the Executive in the performance of their duties and responsibilities hereunder,
subject to any maximum annual limit and other restrictions on such expenses set
by the Board, to such reasonable substantiation, documentation and submission
deadlines as may be specified by the Company from time to time. Any
such reimbursement that would constitute nonqualified deferred compensation
subject to under Section 409A shall be subject to the following additional
rules: (i) no reimbursement of any such expense shall affect the
Executive's right to reimbursement of any other such expense in any other
taxable year; (ii) reimbursement of the expense shall be made, if at all, not
later than the end of the calendar year following the calendar year in which the
expense was incurred; and (iii) the right to reimbursement shall not be subject
to liquidation or exchange for any other benefit.
(g) Directors & Officers
Insurance Coverage. During the term hereof, the Company shall
provide the Executive the same coverage under any directors and officers
(“D&O”) liability insurance that the Company elects to maintain as it
provides to its other executives and, after the termination of their employment
hereunder, the same coverage under any D&O liability insurance it elects to
maintain, as it provides its other former executives. The Company
shall be under no obligation hereunder, however, to maintain any D&O
liability insurance.
4. Termination of Employment
and Opportunity to Earn Post-Employment Compensation. Notwithstanding the
provisions of Section 2 hereof, the Executive's employment hereunder shall
terminate during the term hereof under the following circumstances:
(a) Death. In
the event of the Executive's death during the term hereof, the Executive's
employment hereunder shall immediately and automatically
terminate. In such event, the Company shall pay to the Executive’s
estate, promptly following Date of Termination (as defined in Section 12
hereof), the Final Compensation (as also defined in Section 12
hereof). In addition to Final Compensation: (A) The Company will pay
to the Executive’s estate an Annual Bonus for the fiscal year in which the Date
of Termination occurs (the “Termination Year”),
determined by multiplying the Annual Bonus the Executive would have received for
the Termination Year (if any), had employment been continued through
the date annual bonuses for the Termination Year were payable to Company
executives generally, by a fraction, the numerator of which shall be the number
of days the Executive was employed during the Termination Year, through the Date
of Termination, and the denominator of which shall be 365 (the “Final Pro-Rated
Bonus”). The Final Pro-Rated Bonus will be payable to the
Executive’s estate at the time annual bonuses for the Termination Year are paid
to Company executives generally under its executive incentive
plan. (B) The Company will pay the full premium cost of health and
dental plan coverage for each of Executive’s qualified beneficiaries until the
expiration of the period of twelve (12) months immediately following the Date of
Termination or, if earlier, until the date the qualified beneficiary ceases to
be eligible for coverage continuation under the federal law commonly known as
“COBRA”;
provided, however, that in order to be eligible for the Company’s payments
hereunder the qualified beneficiary must elect in a timely manner to continue
coverage under the Company’s health and dental plans under COBRA and must notify
the Company promptly if the qualified beneficiary ceases to be eligible for such
coverage under COBRA at any time during such twelve (12) month
period. (C) The Company will pay the Executive’s estate compensation
monthly, at the rate of one-twelfth of the Base Salary, for that period
immediately following the Date of Termination, not to exceed six (6) Months of
compensation.
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(b) Disability.
(i) The
Company may terminate the Executive's employment hereunder, upon notice to the
Executive, in the event that the Executive becomes disabled during their
employment through any illness, injury, accident or condition of either a
physical or psychological nature and, as a result, is unable to perform
substantially all of the duties and responsibilities hereunder, notwithstanding
the provision of any reasonable accommodation (exclusive of the leave of absence
provided hereunder), for one hundred and eighty (180) days during any period of
three hundred and sixty-five (365) consecutive calendar days. In the
event of such termination, and provided that the Executive satisfies in full all
of the conditions set forth in Section 5(g) hereof, then, in addition to Final
Compensation, the Company shall provide the Executive the
following: (A) The Company will pay the Executive a Final Pro-Rated
Bonus for the Termination Year, payable at the time annual bonuses are paid to
Company executives generally under its executive incentive plan or, if later, on
the tenth (10th)
business day following the later of the effective date of the Release of Claims,
as defined in Section 5(g) below, or the date the Release of Claims is received
by the person designated by the Company to receive notices on its behalf in
accordance with Section 19 hereof. (B) The Company will pay the full
premium cost of health and dental plan coverage for Executive and their
qualified beneficiaries until the expiration of the period of six (6) months
immediately following the Date of Termination or, if earlier, until the date the
Executive and their qualified beneficiaries cease to be eligible for coverage
continuation under COBRA; provided, however, that in order to be eligible for
the Company’s premium payments hereunder, the Executive and each qualified
beneficiary must elect in a timely manner to continue coverage under the
Company’s health and dental plans under COBRA and must notify the Company
promptly if the Executive or any of their qualified beneficiaries ceases to be
eligible for such coverage under COBRA during such twelve (12) month
period.
(ii) The
Board may designate another employee to act in the Executive's place during any
period of the Executive's disability. Notwithstanding any such
designation, the Executive shall continue to receive compensation and benefits
in accordance with Sections 4(a) through 4(e) of this Agreement, subject to the
terms and conditions of any plans, policies, agreements and other documents to
which reference is made therein (collectively, the “Plan Documents”),
while the disability continues, until the Executive becomes eligible for
disability income benefits under any disability plan in which the Executive is a
participant as a result of the employment with the Company or until they recover
sufficiently to resume their duties and responsibilities hereunder (provided
they do so within the aforesaid one hundred and eighty (180) days or such longer
period as the CEO in its discretion may provide) or until the termination of the
employment, whichever shall first occur. If, while the employment
hereunder continues, the Executive is receiving disability income benefits under
any such disability plan, the Executive shall not be eligible to receive the
Base Salary, but shall continue to be eligible for payments and benefits in
accordance with Sections 4(b) through 4(e) of this Agreement, subject to the
terms and conditions of the Plan Documents, until the earlier to occur of their
recovery or the termination of their employment under this
Agreement.
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(iii) If
any question shall arise as to whether during any period the Executive is
disabled through any illness, injury, accident or condition of either a physical
or psychological nature so as to be unable to perform substantially all of the
duties and responsibilities hereunder, the Executive may, and at the request of
the Company shall, submit to a medical examination by a physician selected by
the Company to whom the Executive or the Executive’s duly appointed guardian, if
any, has no reasonable objection to determine whether the Executive is so
disabled and such determination shall for the purposes of this Agreement be
conclusive of the issue. If such question shall arise and the
Executive shall fail to submit to such medical examination, the Company's
determination of the issue shall be binding on the Executive.
(c) By the Company for
Cause. The Company may terminate the Executive's employment
hereunder for Cause at any time upon notice to the Executive setting forth in
reasonable detail the nature of such Cause. For purposes of this
Agreement, “Cause” shall be
limited to: (i) Executive's indictment, charge or conviction of, or plea of
nolo contendere to, (A) a felony or (B) any other crime involving fraud or
material financial dishonesty or (C) any other crime involving moral turpitude
that might be reasonably expected to, or does, materially adversely affect the
Company or any of its Affiliates, whether that effect is to economics, to
reputation or otherwise; (ii) Executive's gross negligence or willful
misconduct with regard to the Company or any of its Affiliates, which has a
material adverse impact on Company or any of its Affiliates, whether economic or
to reputation or otherwise; (iii) Executive's refusal or willful failure to
substantially perform the duties or to follow a material lawful written
directive of the CEO or the Board within the scope of the
Executive’s duties hereunder which refusal or failure remains uncured or
continues thirty (30) days after written notice from the CEO or the Board which
references the potential for a “for Cause” termination and specifies in
reasonable detail the nature of the refusal or willful failure which must be
cured; (iv) Executive's theft, fraud or any material act of financial dishonesty
related to the Company or any of its Affiliates; (v) the failure by the
Executive to disclose any legal impediments to the employment by the Company
or breach of any of the obligations to a former employer in
connection with the employment by the Company (e.g., the disclosure or use of
proprietary confidential information of a former employer on behalf of the
Company without such former employer’s consent); provided that Executive has
been provided with written notification of any of such failure or breach and has
been given five (5) days to present any mitigating, corrective or clarifying
information to the CEO or the Board; (vi) the Executive’s breach or
violation of those provisions of this Agreement setting forth the Executive’s
obligations with respect to confidentiality, non-competition and
non-solicitation; or (vii) the Executive’s breach of any other material
provision of this Agreement unless corrected by the Executive within thirty (30)
days of the Company’s written notification to the Executive of such
breach. In the event of such termination, the Company shall have no
obligation to the Executive under this Agreement other than provision of Final
Compensation. Any equity in the Company held by the Executive on the
Date of Termination hereunder shall be governed by the terms of the Company’s
equity incentive plans and the Executive’s agreements
thereunder.
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(d) By the Company other than
for Cause. The Company may terminate the Executive's
employment hereunder other than for Cause at any time upon notice to the
Executive. In the event of such termination and provided that the
Executive satisfies the conditions set forth in Section 4(g) hereof, then, in
addition to Final Compensation, the Executive, as compensation for him or her
satisfying those conditions, shall be entitled to earn the following (in the
aggregate, “Post-Employment
Compensation”):
(i) The
Company will pay the Executive a Final Pro-Rated Bonus for the Termination Year,
payable at the time annual bonuses for that year are paid to Company executives
generally under its executive incentive plan or, if later, on the tenth (10th)
business day following the later of the effective date of the Release of Claims
or the date the Release of Claims, signed by the Executive, is received on
behalf of the Company by such other person as has been designated by the Company
to receive notices on its behalf in accordance with Section 17
hereof.
(ii) The
Company will pay the Executive compensation monthly, at the rate of one-twelfth
of the Base Salary, for that period immediately following the Date of
Termination that the Executive elects to continue to meet the conditions set
forth in Section 4(g) hereof, not to exceed six (6) months of
compensation. Such monthly payments shall commence on the next
regular Company payday for its executives that is at least five (5) business
days following the later of the effective date of the Release of Claims or the
date the Release of Claims, signed by the Executive, is received by the person
designated by the Company to receive notices on its behalf in accordance with
Section 17 hereof, but with the first payment being retroactive to the day
immediately following the Date of Termination.
(iii) The
Company will pay the full premium cost of health and dental plan coverage for
Executive and their qualified beneficiaries until the earliest to occur of (A)
the date the Executive elects to cease meeting the conditions set forth in
Section 4(g) hereof, (B) the expiration of six (6) months following the Date of
Termination, (C) the date the Executive becomes eligible for participation in
health and dental plans of another employer or (C) the date the Executive ceases
to be eligible for participation under the Company’s health and dental plans
under COBRA; provided, however, that, in
order to be eligible for the Company’s payments hereunder, the Executive and
each of their qualified beneficiaries must elect in a timely manner to continue
coverage under the Company’s health and dental plans under COBRA.
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(iv) 25% of
Executive’s outstanding unvested options shall vest and be exercisable for a
period of one year (365 days)]
(e) By the Executive for Good
Reason. The Executive may terminate the employment hereunder
for Good Reason, whether preceding or following a Change of
Control, by providing notice to the Company of the condition giving
rise to the Good Reason no later than thirty (30) days following the occurrence
of the condition, by giving the Company thirty (30) days to remedy the condition
and by terminating employment for Good Reason within thirty (30) days thereafter
if the Company fails to remedy the condition. For purposes of
this Agreement, “Good
Reason” shall mean the occurrence of any one or more of the following
events without the Employee’s consent: (i) a material breach of this
Agreement by the Company; (ii) a material diminution of the Executive’s title
from that of VP of Marketing or a material adverse change in the Executive's
significant duties, authority or responsibilities, taken as a whole, that
effectively constitutes a demotion; (iii) any reduction in (except to the extent
all executives receive a proportional decrease) or failure to pay the Base
Salary; or (iv) any relocation of the Executive's primary worksite to a site
that is more than thirty-five (35) miles from the
assigned Location. In the event of termination in
accordance with this Section 4(e), and provided that the Executive satisfies the
conditions set forth in Section 4(g) hereof, then, in addition to Final
Compensation, the Company shall provide the Executive the same opportunity to
earn Post-Employment Compensation as would have received had
the employment been terminated by the Company other than for Cause under Section
4(d) hereof.
(f) By the Executive Other than
for Good Reason. The Executive may terminate their employment
hereunder at any time upon sixty (60) days' notice to the Company. In
the event of termination of the Executive pursuant to this Section 4(f), the
CEO may elect to waive the period of notice, or any portion
thereof, and, if the CEO so elects, the Company will pay the Executive the Base
Salary for the initial sixty (60) days of the notice period (or for any
remaining portion of thereof).
(g) Conditions. The
Executive’s eligibility to receive and retain any Post-Employment Compensation,
as set forth in clauses (i) through (iv) of Section 4(d) hereof, is subject to
satisfaction of all of the following as well as the covenant of confidentiality
set forth in Section 6 below and the assignment of rights to Intellectual
Property (as hereafter defined), but with the express understanding and
agreement of the parties that the Executive is free to elect not to comply with
clause (i) below and is free not to forbear from competition or solicitation as
set forth in clauses (ii), (iii) and (iv) immediately below, but that their
right to Post-Employment Compensation under this Agreement is expressly
conditioned on compliance with said clause (i) and the forbearance required
under all of said clauses (ii), (iii) and (iv), as well as full
satisfaction of the obligations under the covenant of confidentiality and
assignment of rights to Intellectual Property (which obligations are not
optional and shall survive any termination, howsoever occurring). The
conditions to receipt of Post-Employment Compensation are as
follows:
(i) The
Executive’s execution and return, to the person designated by the Company to
receive notices on its behalf in accordance with Section 18 hereof, of a timely
and effective release of claims in the form attached hereto and marked Exhibit A
(“Release of
Claims”), within the time period specified therein. The
Release of Claims creates legally binding obligations and the Company therefore
advises the Executive to consult an attorney before signing it.
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(ii) Forbearance
by the Executive for six (6) months following the Date of Termination
from competition with the business of the Company and its Affiliates anywhere in
the world where the Company or any of those Affiliates is doing business,
whether as owner, partner, investor, consultant, agent, employee, co-venturer or
otherwise. Specifically, but without limiting the foregoing, in order to satisfy
this condition, the Executive must forbear from engaging in any activity that is
competitive, or is in preparation to engage in competition, with the business of
the Company and its Affiliates and further the Executive must forbear from
working or providing services, in any capacity, whether as an employee,
independent contractor or otherwise, whether with or without compensation, for
or to any person or entity engaged in the business of the Company and its
Affiliates. The business of the Company and its Affiliates is optical network
component. The foregoing condition, however, shall not fail to be met
solely due to the Executive’s passive ownership of less than 3% of the equity
securities of any publicly traded company.
(iii) Forbearance
by the Executive for six (6) months following the Date of
Termination from any direct or indirect solicitation or encouragement of any of
the Customers of the Company or any of its Affiliates to terminate or diminish
their relationship with the Company or any of its Affiliates and from any direct
or indirect solicitation or encouragement of any of the Customers or Prospective
Customers of the Company or any of its Affiliates to conduct with the Executive
or with any other Person (as defined in Section 12 hereof) any business or
activity which such Customer or Prospective Customer conducts or could conduct
with the Company or any of its Affiliates. For purposes of this
Section 4(g), a Customer is a person or entity which was such at any time during
the twelve (12) months immediately preceding the Date of Termination and a
Potential Customer is a person or entity contacted by the Company or
any of its Affiliates to become a Customer at any time within twelve (12) months
prior to the Date of Termination other than by general advertisement, provided
in each case, however, that the Executive had contact with such Customer or
Potential Customer through her employment or her other associations with the
Company or any of its Affiliates or had access to Confidential Information that
would assist in her solicitation of such Customer or Potential Customer in
competition with the Company or any of its Affiliates.
(iv) Forbearance
by the Executive for six (6) months following the Date of Termination from
directly or indirectly hiring or otherwise engaging the services of any
employee, independent contractor or other agent providing services to the
Company or any of its Affiliates and from soliciting any such employee,
independent contractor or agent to terminate or diminish their relationship with
the Company or any of its Affiliates. For purposes of this Section
4(g), an employee, independent contractor or agent means any person or entity
performing services for the Company or any of its Affiliates in such capacity at
any time during the twelve (12) months immediately preceding the Date of
Termination.
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(h) Timing of Payments.
Notwithstanding anything to the contrary in this Agreement, if at the time of
the Executive’s separation from service the Executive is a “specified
employee,” as hereinafter defined, any and all amounts payable under this
Agreement on account of that separation from service that constitute deferred
compensation subject to Section 409A of the Internal Revenue Code of 1986, as
amended, (“Section 409A”), as determined by the Company in its reasonable good
faith discretion, and that would (but for this provision) be payable within six
(6) months following the date of termination, shall instead be paid on the next
business day following the expiration of that six month period. Also,
for purposes of this Agreement, the phrase “termination of employment“ and
correlative phrases mean a “separation from service” as defined in Treas.
Regs.§1.409A-1(h), and the term “specified employee” means an individual
determined by the Company to be a specified employee under Treas.
Regs.§1.409A-1(i). For the avoidance of doubt, any tax liability to
which the Executive is subject under Section 409A shall be solely the
Executive’s responsibility.
5. Effect of
Termination. The provisions of this Section 5 shall apply to
any termination of the Executive’s employment under this Agreement, whether
pursuant to Section 4 or otherwise.
(a) Provision
by the Company of Final Compensation, if any, to which the Executive is entitled
and Post-Employment Compensation, if any, which the Executive has the
opportunity to earn under Section 4(d) or 4(e) hereof and does earn in
accordance with Section 4(g) shall constitute the entire obligation of the
Company to the Executive hereunder following termination of their employment
with the Company. The Executive shall promptly give the Company
notice of all facts necessary for the Company to determine the amount and
duration of its obligations in connection with any termination pursuant to
Section 4 hereof.
(b) Except
for health and dental plan participation continued in accordance with COBRA, the
Executive’s participation in Employee Benefit Plans shall terminate pursuant to
the terms of the applicable Plan Documents based on the Date of Termination
without regard to any Post-Employment Compensation earned by the Executive, or
any other payment to him or her hereunder, following the Date of
Termination.
(c) Provisions
of this Agreement shall survive any termination if so provided herein or if
necessary or desirable to accomplish the purposes of other surviving provisions,
including without limitation the conditions to earning Post-Employments
Compensation set forth in Section 4(g) and the obligations of the Executive
under Sections 6 and 7 hereof. The Executive recognizes that, except
as expressly provided in accordance with Sections 4(d), 4(e) and 4(g) (with
respect to Post-Employment Compensation) or Section 4(f) (with respect to Base
Salary for any notice period waived), no compensation is earned after
termination of employment.
6. Confidential
Information.
(a) The
Executive acknowledges that the Company and its Affiliates continually develop
Confidential Information (as defined in Section 12 hereof); that the Executive
may develop Confidential Information for the Company or its Affiliates; and that
the Executive may learn of Confidential Information during the course of
employment. The Executive will comply with the policies and
procedures of the Company and its Affiliates for protecting Confidential
Information and shall not disclose to any Person or use, other than as required
by applicable law or for the proper performance of their duties and
responsibilities to the Company and its Affiliates, any Confidential Information
obtained by the Executive incident to their employment or other association with
the Company or any of its Affiliates. The Executive understands that
the restrictions set forth in this Section 6(a) shall continue to apply after
their employment terminates, regardless of the reason for such
termination.
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(b) All
documents, records, tapes and other media of every kind and description relating
to the business, present or otherwise, of the Company or any of its Affiliates
and any copies, in whole or in part, thereof (in the aggregate, the “Documents”), whether
or not prepared by the Executive, shall be the sole and exclusive property of
the Company and its Affiliates. The Executive shall safeguard all
Documents and shall surrender to the Company at the time their employment
terminates, or at such earlier time or times as the CEO or the Board or its
designee may specify, all Documents and all other property of the Company and
its Affiliates then in the Executive's possession or control.
7. Assignment of Rights to
Intellectual Property. The Executive shall promptly and fully
disclose all Intellectual Property (as defined in Section 12 hereof) to the
Company. The Executive hereby assigns and agrees to assign to the
Company (or as otherwise directed by the Company) the Executive's full right,
title and interest in and to all Intellectual Property. The Executive
agrees to execute any and all applications for domestic and foreign patents,
copyrights or other proprietary rights and to do such other acts (including
without limitation the execution and delivery of instruments of further
assurance or confirmation) requested by the Company to assign the Intellectual
Property to the Company and to permit the Company to enforce any patents,
copyrights or other proprietary rights to the Intellectual
Property. The Executive will not charge the Company for time spent in
complying with these obligations. The Executive acknowledges their understanding
that any provision of this Agreement requiring them to assign rights to
Intellectual Property does not apply to any invention that qualifies under
California Labor Code §2870, which is reproduced in Exhibit B (“Written
Notification to the Employee”), attached hereto, which the Executive here
acknowledges that they have received. All copyrightable works that
the Executive creates during the course of their employment by the Company and
which pertains to the business of the Company or is suggested by any work
performed by the Executive for the Company or makes use of Confidential
Information shall be considered “work made for hire” and, upon creation, shall
be owned exclusively by the Company. Further, the
Executive hereby waives, expressly and irrevocably, any and all moral rights
they may have as an author, whether arising under the copyright laws of the
United States or any other jurisdiction or at common law or otherwise, with
respect to any copyrighted works prepared by the Executive in the course of
their employment, including without limitation the right to attribution of
authorship, the right to restrain any distortion, mutilation or other
modification of any such work and the right to prohibit any use of any such work
in association with a product, service, cause or institution that might be
prejudicial to the Company’s reputation.
8. Restricted
Activities. The Executive agrees that certain restrictions
on activities during the employment are necessary to protect
the goodwill, Confidential Information and other legitimate interests of the
Company and its Affiliates:
10
(a) While
the Executive is employed by the Company, the Executive shall not, directly or
indirectly, whether as owner, partner, investor, consultant, agent, employee,
co-venturer or otherwise, compete with the Company or any of its Affiliates
anywhere in the world or undertake any planning for competition with the Company
or any of its Affiliates. Specifically, but without limiting the
foregoing, the Executive agrees not to engage in any manner in any activity that
is directly or indirectly competitive or potentially competitive with the
business of the Company or any of its Affiliates as conducted or under
consideration at any time during the Executive's employment or to provide
services in any capacity to a Person which is a competitor of the Company or any
of its Affiliates.
(b) The
Executive agrees that, while is employed by the Company, and
excluding any activities undertaken on behalf of the Company or any of its
Affiliates in the course of their duties, the Executive will not hire or attempt
to hire any employee of the Company or any of its Affiliates; assist in such
hiring by any Person; encourage any such employee to terminate their
relationship with the Company or any of its Affiliates; or solicit or encourage
any customer of the Company or any of its Affiliates to terminate or diminish
its relationship with them; or solicit or encourage any customer or potential
customer of the Company or any of its Affiliates to conduct with any Person any
business or activity which such customer or potential customer conducts or could
conduct with the Company or any of its Affiliates.
(c) The
Executive agrees that during the employment by the Company the Executive shall
not publish any work that disparages the Company or any of its Affiliates, their
management or their business or the Products.
9. Enforcement of
Covenants. The Executive acknowledges that they have carefully
read and considered all the terms and conditions of this Agreement, including
the restraints imposed upon them pursuant to Sections 6, 7 and 8
hereof. The Executive agrees that those restraints are necessary for
the reasonable and proper protection of the Company and its Affiliates and that
each and every one of the restraints is reasonable in respect to subject matter,
length of time and geographic area. The Executive further
acknowledges that, were they to breach any of the covenants contained in
Sections 6, 7 or 8 hereof, the damage to the Company and its Affiliates
would be irreparable. The Executive therefore agrees that the
Company, in addition to any other remedies available to it, shall be entitled to
preliminary and permanent injunctive relief against any breach or threatened
breach by the Executive of any of said covenants, without having to post
bond. The parties further agree that, in the event that any provision
of Section 6, 7 or 8 hereof shall be determined by any court of competent
jurisdiction to be unenforceable by reason of its being extended over too great
a time, too large a geographic area or too great a range of activities, such
provision shall be deemed to be modified to permit its enforcement to the
maximum extent permitted by law.
10. Conflicting
Agreements. The Executive hereby represents and warrants that
the execution of this Agreement and the performance of obligations hereunder
will not breach or be in conflict with any other agreement to which the
Executive is a party or is bound and that the Executive is not now subject to
any covenants against competition or similar covenants or any court order or
other legal obligation that would affect the performance of their obligations
hereunder. The Executive will not disclose to or use on behalf of the
Company any proprietary information of their former employer or any other Person
without such Person’s consent.
11
11. Indemnification. The
Company shall indemnify the Executive in accordance with its provided in its
articles of organization and by-laws as in effect at the time indemnification is
applicable. The Executive agrees promptly to notify the Company of
any actual or threatened claim arising out of or as a result of their employment
or offices with the Company or any of its Affiliates.
12. Definitions. Words
or phrases which are initially capitalized or are within quotation marks shall
have the meanings provided in this Section and as provided elsewhere
herein. For purposes of this Agreement, the following definitions
apply:
(a) “Affiliates” means all
persons and entities directly or indirectly controlling, controlled by or under
common control with the entity specified, where control may be by management
authority, contract or equity interest.
(b) “Confidential
Information” shall mean any and all information of the Company and its
Affiliates that is not generally known by those with whom the Company or any of
its Affiliates competes or does business, or with whom the Company or any of its
Affiliates plans to compete or do business, including without limitation (i)
information related to the Products, technical data, methods, processes,
know-how and inventions of the Company and its Affiliates, (ii) the development,
research, testing, marketing and financial activities and strategic plans of the
Company and its Affiliates, (iii) the manner in which they operate, (iv) their
costs and sources of supply, (v) the identity and special needs of the customers
and prospective customers of the Company and its Affiliates and (vi) the persons
and entities with whom the Company and its Affiliates have business
relationships and the nature and substance of those relationships. Confidential
Information also includes any information that the Company or any of its
Affiliates may receive or has received from customers, subcontractors, suppliers
or others, with any understanding, express or implied, that the information
would not be disclosed. Confidential Information does not include information
that enters the public domain, other than through a breach by the Executive or
another Person of an obligation of confidentiality to the Company or one of its
Affiliates.
(c) “Date of Termination”
means the date the Executive’s employment with the Company terminates,
regardless of the reason for such termination.
(d) “Final Compensation”
means (i) Base Salary earned but not paid through the Date of Termination, (ii)
pay at the final rate of the Base Salary for any vacation earned but not used
through the Date of Termination and (iii) any business expenses incurred by the
Executive but un-reimbursed on the Date of Termination, provided that such
expenses and required substantiation and documentation are submitted prior to,
or within sixty (60) days following, the Date of Termination and that such
expenses are reimbursable under Section 3(g) hereof and Company
policies.
(e) “Intellectual
Property” means any invention, formula, process, discovery, development,
design, innovation or improvement (whether or not patentable or registrable
under copyright statutes) made, conceived, or first actually reduced to practice
by the Executive solely or jointly with others, during their employment by the
Company; provided, however, that, as used in this Agreement, the term
"Intellectual Property" shall not apply to any invention that the
Executive develops on their own time, without using the equipment, supplies,
facilities or trade secret information of the Company or any of its Affiliates
to which the Executive has access as a result of their employment, unless such
invention (i) relates at the time of conception or reduction to practice of the
invention (A) to the business of the Company or (B) to the actual or
demonstrably anticipated research or development of the Company or (iii) results
from any work performed by the Executive for the Company.
12
(f) Other
than for purposes of Section 12(b), above, “Person” means an
individual, a corporation, a limited liability company, an association, a
partnership, an estate, a trust and any other entity or organization, other than
the Company or any of its Affiliates.
(g) “Products” means all
products planned, researched, developed, tested, manufactured, sold, licensed,
leased or otherwise distributed or put into use by the Company or any of its
Affiliates, together with all services provided or planned by the Company or any
of its Affiliates, during the Executive's employment.
13. Withholding. All
payments made by the Company under this Agreement shall be reduced by any tax or
other amounts required to be withheld by the Company under applicable
law.
14. Assignment. Neither
the Company nor the Executive may make any assignment of this Agreement or any
interest herein, by operation of law or otherwise, without the prior written
consent of the other; provided, however, that the Company may assign its rights
and obligations under this Agreement without the consent of the Executive in the
event the Company shall hereafter effect a corporate reorganization, consolidate
with, or merge into, any Person or transfer all or substantially all of its
properties or assets to any Person. This Agreement shall inure to the
benefit of and be binding upon the Company and the Executive, their respective
successors, executors, administrators, heirs and permitted assigns.
15. Severability. If
any portion or provision of this Agreement shall to any extent be declared
illegal or unenforceable by a court of competent jurisdiction, then the
remainder of this Agreement, or the application of such portion or provision in
circumstances other than those as to which it is so declared illegal or
unenforceable, shall not be affected thereby, and each portion and provision of
this Agreement shall be valid and enforceable to the fullest extent permitted by
law.
16. Waiver. No
waiver of any provision hereof shall be effective unless made in writing and
signed by the waiving party. The failure of either party to require
the performance of any term or obligation of this Agreement, or the waiver by
either party of any breach of this Agreement, shall not prevent any subsequent
enforcement of such term or obligation or be deemed a waiver of any subsequent
breach.
17. Notices. Any
and all notices, requests, demands and other communications provided for by this
Agreement shall be in writing and shall be effective when delivered in person,
consigned to a reputable national courier for next day or next business day
delivery or deposited in the United States mail, postage prepaid, registered or
certified, and addressed to the Executive at their last known address on the
books of the Company or, in the case of the Company, to it at 0000 Xxxx Xxxx,
Xxx. 000, Xxxx Xxxx, XX 00000, or to such other address as either
party may specify by notice to the other actually received.
13
18. Entire
Agreement. This Agreement contains the entire agreement of the
parties, and supersedes all prior agreements, whether written or
oral, with respect to the Executive’s employment and all related matters, except
for the agreements set forth on Exhibit C hereto, which shall remain in
effect.
19. Amendment. This
Agreement may be amended or modified only by a written instrument signed by the
Executive and by an expressly authorized representative of the
Board.
20. Headings. The
headings and captions in this Agreement are for convenience only and in no way
define or describe the scope or content of any provision of this
Agreement.
21. Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be an
original and all of which together shall constitute one and the same
instrument.
22. Governing
Law. This is a California contract and shall be construed and
enforced under and be governed in all respects by the laws of the State of
California, without regard to the conflict of laws principles thereof, and, for
the avoidance of doubt, shall include both the statutory and common law of
California, except to the extent preempted by federal law.
[Remainder
of page intentionally left blank. Signature page follows
immediately.]
14
IN
WITNESS WHEREOF, this Agreement has been executed by the Company, by its duly
authorized representative, and by the Executive, as of the date first above
written.
|
THE
EXECUTIVE:
|
THE
COMPANY:
|
|
_____________________________
|
By: ________________________________
|
|
Name:
______________________________
|
|
|
Title:
_______________________________
|
15
EXHIBIT
A
RELEASE
OF CLAIMS
FOR AND IN CONSIDERATION OF the
Post-Employment Compensation that I am eligible to earn following the
termination of my employment, as that term is defined in the employment
agreement between me and GigOptix, Inc. (the “Company”) dated as
of _______________
(the “Agreement”), which is
conditioned, inter alia,
on my signing this Release of Claims and to which I am not otherwise
entitled, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, I, on my own behalf and on behalf
of my heirs, executors, administrators, beneficiaries, representatives and
assigns, and all others connected with or claiming through me, hereby release
and forever discharge the Company and its Affiliates (as that term is defined in
the Agreement) and all of their respective past, present and future officers,
directors, trustees, shareholders, employees, agents, general and limited
partners, members, managers, joint venturers, representatives, successors and
assigns, and all others connected with any of them (all of the foregoing,
collectively, the “Released”), both
individually and in their official capacities, from any and all causes of
action, rights and claims of any type or description, known or unknown, which I
have had in the past, now have, or might now have, through the date of my
signing of this Release of Claims, including without limitation any causes of
action, rights or claims in any way resulting from, arising out of or connected
with my employment by the Company or any of its Affiliates or the
termination of that employment or pursuant to any federal, state or local law,
regulation or other requirement, including without limitation Title VII of the
Civil Rights Act of 1964, the Age Discrimination in Employment Act, the
Americans with Disabilities Act and the fair employment practices laws of the
state or states in which I have been employed by the Company or any of its
Affiliates, each as amended from time to time, (all of the foregoing, in the
aggregate, “Claims”)
In
signing this Release of Claims, I expressly waive and relinquish all rights and
benefits afforded by Section 1542 of the Civil Code of the State of California,
and do so understanding and acknowledging the significance of such specific
waiver of Section 1542, which Section states as follows:
A general
release does not extend to claims which the creditor does not know or suspect to
exist in their favor at the time of executing the release, which if known by
them must have materially affected their 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 Released, I
expressly acknowledge that this Release of Claims is intended to include in its
effect, without limitation, all Claims which I do not know or suspect to exist
in my favor at the time of execution hereof, and that this Release of Claims
contemplates the extinguishment of all such Claims.
Excluded
from the scope of this Release of Claims is (i) any claim arising under the
terms of the Agreement after the effective date of this Release of Claim and
(ii) any right of indemnification or contribution that I have pursuant to the
articles of incorporation, by-laws or other governing documents of the Company
or any of its Affiliates (as that term is defined in the
Agreement).
16
In
signing this Release of Claims, I acknowledge my understanding that I may not
sign it prior to the termination of my employment, but that I may consider the
terms of this Release of Claims for up to twenty-one (21) days (or such longer
period as the Company may specify) from the date my employment with the Company
terminates. I also acknowledge that I am advised by the Company and
its Affiliates to seek the advice of an attorney prior to signing this Release
of Claims; that I have had and full and sufficient time to consider this Release
of Claims and to consult with an attorney, if I wished to do so, or to consult
with any other person of my choosing before signing; and that I am signing this
Release of Claims voluntarily and with a full understanding of its
terms.
I further
acknowledge that, in signing this Release of Claims, I have not relied on any
promises or representations, express or implied, that are not set forth
expressly in the Agreement.
I
understand that I may revoke this Release of Claims at any time within seven (7)
days of the date of my signing by written notice to the Company
c/o Human Resources or to such other designated person and/or address
as the Company may specify and that this Release of Claims shall take effect on
the eighth calendar day following the date of my signing it and only if I have
not timely revoked it.
Intending
to be legally bound, I have signed this Release of Claims as of the date written
below.
Signature:
_____________________________________________
Date
Signed: ___________________________________________
17
EXHIBIT
B
WRITTEN
NOTIFICATION TO THE EMPLOYEE
In accordance with California Labor
Code § 2872, GigOptix, Inc. (the “Company”) hereby notifies you that your
acceptance, by your signing, of the Employment Agreement to which this notice is
attached as Exhibit
B does not require you to assign to the Company any Intellectual Property
(as defined in Section 12 of the Employment Agreement) or any other invention
for which no equipment, supplies, facility or trade secret information of the
Company was used and that was developed entirely on your own time, and does not
relate to the business of the Company or to the Company actual or demonstrably
anticipated research or development, or does not result from any work performed
by you for the Company.
The
following is the text of California Labor Code § 2870:
§ 2870 (a)
Any provision in an employment agreement which provides that an employee shall
assign, or offer to assign, any of his or her rights in an invention to his or
her employer shall not apply to an invention that the employee developed
entirely on his or her own time without using the employer's equipment,
supplies, facilities, or trade secret information except for those inventions
that either:
1. Relate at the time of
conception or reduction to practice of the invention to the employer's business,
or actual or demonstrably anticipated research or development of the employer;
or
2. Result
from any work performed by the employee for the employer.
(b) To the extent a provision in an
employment agreement purports to require an employee to assign an invention
otherwise excluded from being required to be assigned under subdivision (a), the
provision is against the public policy of this state and is
unenforceable.
18
EXHIBIT
B
(List of
Other Employment Agreements Still in Effect)
19
