FORM OF EXECUTIVE EMPLOYMENT AGREEMENT
EXHIBIT (e)(8)
FORM OF EXECUTIVE EMPLOYMENT AGREEMENT
This Agreement is entered into as of August 1, 2007 (the “Effective Date”) by and between the
Company and (“Executive”).
1. Duties and Scope of Employment.
(a) Position and Duties. As of the Effective Date, Executive will serve as
of the Company, reporting to the Chief Executive Officer or his
delegate. Executive will render such business and professional services in the performance of his
duties, consistent with Executive’s position within the Company, as shall reasonably be assigned to
him by the Chief Executive Officer [and/or the Company’s Board of Directors (the “Board”)].
Executive’s title, duties and responsibilities may be altered, modified and changed as the Chief
Executive Officer deems appropriate.
(b) Obligations. During the Term, Executive will perform his duties faithfully
and to the best of his ability and will devote his full business efforts and time to the Company.
For the duration of the Term, Executive agrees not to engage in any other employment, occupation or
consulting activity for any direct or indirect remuneration without the prior written approval of
the Board.
(c) Conflicting Employment. Executive agrees that, while employed by the Company, he
will not engage in any other employment, occupation, consulting or other business activity directly
related to the business in which the Company is now involved or becomes involved during the term of
Executive’s employment, nor will Executive engage in any other activities that conflict with
Executive’s obligations to the Company.
2. Term. Executive’s employment with the Company under the terms of this Agreement
(the “Term”) will commence on the Effective Date and will continue, unless otherwise terminated
earlier as provided herein, until the date that is twenty-four months from the Effective Date,
after which date this Agreement shall be without further force and effect (except with respect to
severance obligations triggered prior to its termination), even if Executive then continues to be
employed by the Company. Notwithstanding the foregoing, the parties agree that Executive’s
employment with the Company will be “at-will” employment and may be terminated at any time with or
without cause by giving the Executive a written notice. Executive understands and agrees that
neither his job performance nor promotions, commendations, bonuses or the like from the Company
give rise to or in any way serve as the basis for continuation, modification, amendment, or
extension, by implication or otherwise, of his employment with the Company. However, as described
in this Agreement, Executive may be entitled to severance benefits depending on the circumstances
of Executive’s termination of employment with the Company as expressly provided in Sections 6 and 7
of this Agreement.
3. Compensation.
(a) Base Salary. During the Term, the Company will pay Executive as compensation for
his services, a base salary at the annualized rate of $ (the “Base Salary”). The Base
Salary will be paid periodically in accordance with the Company’s normal payroll practices and is
subject to lawfully required withholdings. Annual adjustments to the Base Salary may be made in
the Company’s sole discretion.
(b) Target Incentive Plan. Executive will be eligible to participate in the Company’s
Target Incentive Plan, and for such annual bonuses as are payable under the plan (“Incentive
Bonus”).
4. Employee Benefits. During the Term, Executive will continue to be entitled to
participate in the employee benefit plans currently and hereafter maintained by the Company of
general applicability to other senior executive of the Company, including, without limitation, the
Company’s group medical, dental, vision, disability, life insurance, vacation and flexible-spending
account plans and programs. The Company reserves the right to cancel or change the benefit plans
and programs it offers to its employees at any time.
5. Equity. Executive may from time to time be eligible to receive a grant of stock
options and/or restricted stock, as the Board of Directors deems appropriate.
6. Severance.
(a) Involuntary Termination Without Cause Prior to a Change of Control or More than 6
Months Following a Change of Control. If Executive’s employment with the Company terminates
other than voluntarily or for “Cause” prior to a “Change of Control” (both as defined herein) or
more than six (6) months following a Change of Control, and Executive signs and does not revoke a
release of claims with the Company in the form provided by the Company, the Company shall provide
severance pay and benefits, subject to certain conditions, as follows:
(i) The Company shall provide monetary severance to Executive equal to twelve (12)
months’ of Base Salary. Such severance (“Severance Payments”) shall be paid no later than
March 15th of the year following the year in which Executive’s termination of
employment occurs (the “Final Severance Date”), through monthly Severance Payments made in
the same installments and subject to the same deductions as Executive’s Base Salary at the
time of termination, until the payroll immediately preceding the Final Severance Date, then
through a final lump sum payment of the remaining severance amount no later than one day
prior to the Final Severance Date. The Severance Payments shall be subject to offset for
any amounts then owed to the Company by Executive.
(ii) If Executive elects to continue his/her benefits under the Company’s Employee
Benefits Plans, including life, disability and health insurance, through COBRA, the Company
shall reimburse the cost of COBRA continuation coverage for Executive (and, where
applicable, Executive’s dependents) over a period of twelve (12) months following the date
of termination (the “Severance Period”) as if Executive were still employed by the Company
(the “COBRA Continuation Payments”).
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Executive will continue to pay the same portion of the cost of such benefits as he/she
currently pays as of the last day of his/her employment with the Company. The COBRA
Continuation Payments will cease, and the Company will have no further obligations with
respect to the payment of any premiums for continuation coverage to Executive, as of the
earlier of (a) Executive becoming eligible for comparable coverage (for example, through
obtaining alternative employment); (b) the conclusion of the Severance Period; or (c) the
cessation of Executive’s COBRA eligibility.
(iii) Any outstanding and unvested non-qualified stock options and any restricted stock
previously granted Executive shall immediately vest and become exercisable as to the number
of shares that would have otherwise vested had Executive remained employed by the Company
through the end of the Severance Period. Thereafter, any such awards will remain subject to
the terms of the applicable stock plan, grant and/or agreement.
(iv) If Executive is entitled to compensation and benefits arising from termination of
employment due to change of control pursuant to Section 7 below, compensation and benefits
under that change of control provision shall be in lieu of and not in addition to
compensation under this Section 6.
(v) Notwithstanding the foregoing, the Company’s obligation to make severance payments,
pay bonus payments, provide benefits and vest stock and/or options hereunder is expressly
conditioned upon Executive’s ongoing compliance with the provisions of the Employee
Invention, Authorship, Proprietary and Confidential Information Agreement. In the event
Executive breaches the terms of such agreement, the Company’s obligations hereunder shall
automatically terminate, without any notice to Executive, and, in addition to any other
damages to which the Company may be entitled, the Company shall be entitled to recover from
Executive any payments already made to Executive hereunder.
(vi) Executive agrees that severance as provided herein shall be the sole consideration
to which he is entitled in the event of the termination of his employment without Cause, and
that severance will not be paid in the event of termination with Cause, and Executive
expressly waives and relinquishes any claim to other or further consideration.
(vii) Severance pay, bonus pay, benefits and/or stock/option vesting are expressly
conditioned upon Executive’s execution and delivery of a release of all claims Executive may
have against the Company in a form provided by the Company.
(b) Voluntary Termination; Termination for Cause. If Executive’s employment with the
Company terminates voluntarily by Executive or for Cause by the Company, then (i) all vesting of
any restricted stock or options to purchase shares of the Company’s common stock held by Executive
will terminate immediately and all payments of compensation by the Company to Executive hereunder
will terminate immediately (except as to amounts already earned, including unused and accrued
vacation); and (ii) Executive shall not be eligible for severance or other benefits, except in
accordance with any generally applicable Company plans or policies as are then in effect.
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7. Change of Control Severance Benefits. In the event of a “Change of Control” (as
defined herein) followed by Executive’s termination other than voluntarily or for “Cause” within
six (6) months following the consummation of a Change of Control, Executive shall be entitled to
receive benefits as set forth below, provided he signs and does not revoke a release of claims with
the Company in a form provided by the Company.
For the purpose of this Section 7, Executive shall be deemed to have been terminated other
than for “Cause” if, on or within six months after the Change of Control, Executive is
involuntarily terminated without “Cause” as such term is defined in Section 9 hereof, or without
the consent of the Executive, Executive voluntarily resigns following a (1) material reduction in
the: (A) Executive’s base compensation; (B) Executive’s authority, duties, or responsibilities; (C)
authority, duties, or responsibilities of the Executive’s supervisor to whom the Executive is
required to report, including a requirement to report to a corporate officer or employee, instead
of reporting directly to the board of directors; or (D) budget over which the Executive must
perform his/her services; (2) material change in Executive’s geographic location relative to
Executive’s geographic location prior to the Change of Control; or (3) any other action or inaction
that constitutes a material breach of the terms of this Agreement. In addition, for purposes of
this Section 7, upon any such voluntary termination the Executive must provide notice to the
Company of the existence of the one or more of the above conditions within 90 days of its initial
existence and the Company must be provided at least 30 days to remedy the condition.
(a) A lump sum payment within thirty (30) days of such termination equal to the Severance
Payment as set forth in section 6(a)(i) above.
(b) An additional lump sum payment within thirty (30) days of such termination in an amount
equal to the annual Incentive Bonus, calculated on the basis of all targets under the current
Target Incentive Plan being met.
(c) On the date of termination, all stock options and restricted stock previously granted to
Executive shall become immediately and fully vested and exercisable by Executive or his
representative. Such exercise shall be governed by and shall be in accordance with the terms of
the applicable agreement, whose terms are incorporated herein by reference.
(d) Executive (and, where applicable, Executive’s dependents) shall be entitled to COBRA
Continuation Payments in accordance with the provisions of section 6(a)(ii) above.
(e) In the event that the benefits provided for in this agreement (a) constitute “parachute
payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the
“Code”), (b) would be subject to the excise tax imposed by Section 4999 of the Code, and (c) the
aggregate value of such parachute payments, as determined in accordance with Section 280G of the
Code and the Treasury Regulations thereunder is less than the product obtained by multiplying 3.59
by Executive’s “base amount” within the meaning of Code Section 280G(b)(3), then such benefits
shall be reduced to the extent necessary (but only to that extent) so that no portion of such
benefits will be subject to excise tax under Section 4999 of the Code. In the event that the
benefits provided for in this agreement (a) constitute “parachute payments” within the meaning of
Section 280G of the Code, (b) would be subject to the excise tax imposed by Section 4999 of the
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Code, and (c) the aggregate value of such parachute payments, as determined in accordance with
Section 280G of the Code and the Treasury Regulations thereunder is equal to or greater than the
product obtained by multiplying 3.59 by Executive’s “base amount” within the meaning of Code
Section 280G(b)(3), then the Executive shall receive (i) a payment from the Company sufficient to
pay such excise tax plus any interest or penalties incurred by Executive with respect to such
excise tax, plus (ii) an additional payment from the Company sufficient to pay the excise tax and
federal and state income and employment taxes arising from the payments made by the Company to
Executive pursuant to this sentence. The Executive shall receive such payments no later than the
end of the Executive’s taxable year following the taxable year in which the Executive remitted the
applicable taxes. Unless the Company and the Executive otherwise agree in writing, the
determination of Executive’s excise tax liability and the amount required to be paid or reduced
under this Section shall be made in writing by the Company’s independent auditors who are primarily
used by the Company immediately prior to the Change of Control (the “Accountants”). For purposes
of making the calculations required by this Section 7, the Accountants may make reasonable
assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith
interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and
the Executive shall furnish to the Accountants such information and documents as the Accountants
may reasonably request in order to make a determination under this Section. The Company shall bear
all costs the Accountants may reasonably incur in connection with any calculations contemplated by
this Section.
(f) Notwithstanding the foregoing, if Executive receives the Severance Payment pursuant to
this Section, he shall not be entitled to receive an additional Severance Payment pursuant to
Section 6 hereof.
(g) Change of control benefits under this Section 7 are expressly conditioned upon Executive’s
execution and delivery of a release of all claims Executive may have against the Company in a form
provided by the Company.
8. Non-Solicitation. For a period of twelve (12) months following Executive’s
termination of employment, Executive shall not, directly or indirectly, without the prior written
consent of the Company, solicit any employee or customer of the Company, its parent or its
subsidiaries to terminate his or her employment with or customer relationship to the Company, its
parent or its subsidiaries.
9. Definitions.
(a) Cause. For purposes of this Agreement, “Cause” is defined as (i) an act of
dishonesty made by Executive in connection with Executive’s responsibilities as an employee, (ii)
Executive’s conviction of or plea of nolo contendere to, a felony or any crime
involving fraud, embezzlement or any other act of moral turpitude, (iii) Executive’s gross
misconduct, (iv) Executive’s unauthorized use or disclosure of any proprietary information or trade
secrets of the Company or any other party to whom Executive owes an obligation of nondisclosure as
a result of Executive’s relationship with the Company; (v) Executive’s willful breach of any
obligations under any written agreement or covenant with the Company; or (vi) Executive’s continued
failure to perform his employment duties after Executive has received a written demand of
performance from the Company with specifically sets forth the factual basis for the Company’s
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belief that Executive has not substantially performed his duties and has failed to cure such
non-performance to the Company’s satisfaction within 30 days after receiving such notice.
(b) Change of Control. For purposes of this Agreement, “Change of Control” of the
Company is defined as: (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the
Securities Act of 1933, as amended) is or becomes the “beneficial owner” (as defined in Rule 13d-3
under said Act), directly or indirectly, of securities of the Company representing 50% or more of
the total voting power represented by the Company’s then outstanding voting securities; or (ii) the
date of the consummation of a merger or consolidation of the Company with any other corporation
that has been approved by the stockholders of the Company, other than a merger or consolidation
which would result in the voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity) more than fifty percent (50%) of the total voting power
represented by the voting securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or the stockholders of the Company approve a plan
of complete liquidation of the company; or (iii) the date of the consummation of the sale or
disposition by the Company of all or substantially all the Company’s assets.
10. Assignment. This Agreement will be binding upon and inure to the benefit of (a)
the heirs, executors and legal representatives of Executive upon Executive’s death and (b) any
successor of the Company. Any such successor of the Company will be deemed substituted for the
Company under the terms of this Agreement for all purposes. For this purpose, “successor” means any
person, firm, corporation or other business entity which at any time, whether by purchase, merger
or other, directly or indirectly acquires all or substantially all of the assets or business of the
Company. None of the rights of Executive to receive any form of compensation payable pursuant to
this Agreement may be assigned or transferred except by will of the laws of descent and
distribution. Any other attempted assignment, transfer, conveyance or other disposition of
Executive’s right to compensation or other benefits will be null and void.
11. Notices. All notices, requests, demands and other communications called for
hereunder shall be in writing and shall be deemed given (i) on the date of delivery if delivered
personally, (ii) one (1) day after being sent by a well established commercial overnight service,
or (iii) four (4) days after being mailed by registered or certified mail, return receipt
requested, prepaid and addressed to the parties or their successor at the following addresses, or
at such other addresses as the parties may later designate in writing:
If to the Company:
Komag, Inc.
0000 Xxxxxxxxxx Xxxxxxx
Xxx Xxxx, XX 00000
Komag, Inc.
0000 Xxxxxxxxxx Xxxxxxx
Xxx Xxxx, XX 00000
If to Executive:
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12. Severability. In the event that any provision hereof becomes or is declared by a
court of competent jurisdiction to be illegal, unenforceable or void, this Agreement will continue
in full force and effect without said provision.
13. Arbitration.
(a) General. In consideration of Executive’s services to the Company and Executive’s
receipt of the compensation, pay raises and other benefits paid to Executive by the Company, at
present and in the future, the Company and Executive agree that any and all controversies, claims,
or disputes between them (including any dispute Executive may have with any employee, officer,
director, shareholder or benefit plan of the Company in their capacity as such or otherwise)
arising out of, relating to, or resulting from Executive’s service with the Company, including any
breach of this Agreement, shall be subject to binding arbitration as set forth below. Disputes
which the Company and Executive agree to arbitrate, and thereby agree to waive any right to a trial
by jury, include any statutory claims under state or federal law, including but not limited to,
claims under Title VII of the Civil Rights Act of 1964, the American with Disabilities Act of 1990,
the Age Discrimination in Employment Act of 1967, the Older Workers Benefits Protection Act, the
California Fair Employment and Housing Act, the California Labor Code, claims of harassment,
discrimination or wrongful termination and any other statutory or common law claims. Executive
further understands that this Agreement to arbitrate also applies to any disputes that the Company
may have with Executive, including but not limited to claims of misappropriation, fraud,
conversion, interference with economic advantage or contract, breach of fiduciary duty, defamation,
misrepresentation, or fraud.
(b) Procedure. Executive agrees that any arbitration will be administered by JAMS and
that a neutral arbitrator will be selected in a manner consistent with its Employment Arbitration
Rules and Procedures. Executive agrees that any arbitration hearing pursuant to this Agreement
shall be conducted in San Jose, California. Executive agrees that the arbitrator shall issue a
written decision on the merits. Executive also agrees that the arbitrator shall have the power to
award any remedies, including attorneys’ fees and costs, available under applicable law. Executive
understands the Company will pay for any administrative or hearing fees charged by the arbitrator
or JAMS except that Executive shall pay the first $200.00 of any filing fees associated with any
arbitration Executive initiates. Executive agrees that the arbitration shall be conducted in
accordance with the JAMS Employment Arbitration Rules and Procedures provided, however, that the
Arbitrator shall allow the discovery authorized by California Code of Civil Procedure section
1283.05 or any other discovery required by law in arbitration proceedings. Also, to the extent
that any of the JAMS Employment Arbitration Rules and Procedures conflict with any arbitration
procedures required by applicable law, the arbitration procedures required by applicable law shall
govern. Executive agrees that nothing in this Section 13 relieves him or her from any obligation
he or she may have to exhaust certain administrative remedies before arbitrating any claims or
disputes under this Section 13.
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(c) Remedy. Except as provided elsewhere in this Agreement, arbitration shall be the
sole, exclusive and final remedy for any dispute between Executive and the Company. Accordingly,
except as provided elsewhere in this Agreement, neither Executive nor the Company will be permitted
to pursue court action regarding claims that are subject to arbitration. Notwithstanding, the
arbitrator will not have the authority to disregard or refuse to enforce any lawful Company policy,
and that the arbitrator shall not order or require the Company to adopt a policy not otherwise
required by law which the Company has not adopted.
(d) Availability of Injunctive Relief. The parties agree that they shall have the
right to seek judicial relief in the form of injunctive and/or other equitable relief under the
California Arbitration Act, Code of Civil Procedure section 1281.8(b), including but not limited to
relief for threatened or actual misappropriation of trade secrets, violation of this Agreement or
the Confidentiality Agreement or any other agreement regarding trade secrets, confidential
information, nonsolicitation or Labor Code §2870. In the event either party seeks injunctive
relief, the prevailing party shall be entitled to recover reasonable costs and attorneys’ fees.
(e) Administrative Relief. Executive understands that this Agreement does not
prohibit Executive from pursuing an administrative claim with a local, state or federal
administrative body such as the Department of Fair Employment and Housing, the Equal Employment
Opportunity Commission or the workers’ compensation board. This Agreement, does, however, preclude
Executive from pursuing court action regarding any such claim.
(f) Voluntary Nature of Agreement. Executive acknowledges and agrees that Executive
is executing this Agreement voluntarily and without any duress or undue influence by the Company or
anyone else. Executive further acknowledges and agrees that Executive has carefully read this
Agreement and that Executive has asked any questions needed for Executive to understand the terms,
consequences and binding effect of this Agreement and fully understand it, including that Executive
is waiving Executive’s right to a jury trial. Finally, Executive agrees that Executive has been
provided an opportunity to seek the advice of an attorney of Executive’s choice before singing this
Agreement.
14. Existing Agreements. This Agreement supersedes and replaces any prior severance
or retention plans, employment agreements and offer letters that Executive may have entered into
with the Company prior to the Effective Date.
15. Integration. This Agreement, Executive’s stock option and restricted stock
agreements with the Company, and the Employee Invention, Authorship, Proprietary and Confidential
Information Agreement by and between Executive and the Company represent the entire agreement and
understanding between the parties as to the subject matter herein and supersede all prior or
contemporaneous agreements whether written or oral. No waiver, alteration, or modification of any
of the provisions of this Agreement will be binding unless in writing and signed by duly authorized
representatives of the parties hereto.
16. Tax Withholding. All payments made pursuant to this Agreement will be subject to
withholding of applicable taxes.
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17. 409A Compliance. The Executive and the Company agree to comply with any revisions
to the final regulations of Section 409A of the Code or other official guidance interpreting
Section 409A of the Code that the Treasury provides after the execution of this Agreement that
would require such benefits be provided in a different form or manner to comply with Section 409A.
The Executive and the Company shall agree in writing to amend this Agreement to include any
different form or manner of payment in order to comply with such Treasury guidance. The Executive
and the Company agree to cooperate with each other and to take reasonably necessary steps in this
regard.
18. Governing Law. This Agreement will be governed by the laws of the State of
California (with the exception of its conflict of laws provisions.)
19. Acknowledgment. Executive acknowledges that he has had the opportunity to discuss
this matter with and obtain advice from his private attorney, has had sufficient time to, and has
carefully read and fully understands all the provisions of this Agreement, and is knowingly and
voluntarily entering into this Agreement.
| EXECUTIVE | KOMAG, INCORPORATED | |||||||
| By | ||||||||
| Xxxxxxx X. Xxxxxx | ||||||||
Dated
|
Dated: | |||||||
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