1
Exhibit 10.6
TALITY CORPORATION
EMPLOYMENT AGREEMENT
This Employment Agreement (this "AGREEMENT") is entered into as of July 14,
2000, by and between XXXXXX X. XXXXXXXXXX, an individual residing in the State
of California ("EXECUTIVE"), and TALITY CORPORATION, a Delaware corporation (the
"COMPANY"), with its principal place of business in San Jose, California.
WHEREAS, the Company is engaged in the business of providing design
services for electronic devices, electronic system components and electronic
systems and related businesses;
WHEREAS, Executive is currently employed by Cadence Design Systems, Inc.
("CADENCE") as a senior executive; and
WHEREAS, as part of the separation of the Company and Cadence, the Company
desires to secure the services of Executive as its President and Chief Executive
Officer, and Executive desires to perform such services for the Company, on the
terms and conditions as set forth herein;
NOW, THEREFORE, in consideration of the promises and of the covenants and
agreements set forth below, it is mutually agreed as follows:
1. EMPLOYMENT BY THE COMPANY.
1.1 Effective Date. The Company agrees to employ Executive as its
President and Chief Executive Officer, and Executive hereby accepts such
employment, subject to the terms and conditions set forth herein. Executive's
employment by the Company hereunder shall commence upon the date of this
Agreement and shall continue thereafter on the same terms and conditions unless
earlier terminated pursuant to Section 4 hereof.
1.2 Duties. Executive shall report directly to the Board of Directors
(the "BOARD") and shall have such duties as are consistent with his position as
President and Chief Executive Officer and as otherwise may be reasonably
required by the Company. Executive agrees that he shall devote all of his
business time and best efforts solely and exclusively to the performance of his
duties hereunder and to the business and affairs of the Company, whether such
business is operated directly by the Company or through one or more affiliates
of the Company.
1.3 Place of Performance. Executive shall perform his duties under
this Agreement at the Company's principal place of business in San Jose,
California, or as relocated by the Company after the date hereof.
1.4 Member of the Board of Directors. Executive shall be elected a
member of the Board as of the date hereof and the Company shall use its best
efforts, subject to the fiduciary duties of the members of the Board, to
nominate Executive for re-election to the Board at each Annual Stockholder's
Meeting at which Executive is eligible for re-election during his period of
service as President and Chief Executive Officer of the Company.
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2. COMPENSATION. As full consideration for his services rendered
hereunder, the Company shall pay to Executive the following compensation:
2.1 Salary. Executive shall receive an annual base salary of Three
Hundred Fifty Thousand dollars ($350,000) the ("BASE SALARY"), payable in
installments in accordance with the Company's normal payroll practices, less
such deductions or withholdings as may be required by law.
2.2 Bonus. Executive shall participate in the Company's Executive
Bonus Plan (the "BONUS Plan") and shall be entitled to receive an annual bonus
targeted at $250,000 pursuant to the terms of the Bonus Plan, as adopted and as
may be modified from time to time. Such bonus shall be pro-rated for the
remainder of the year 2000.
2.3 Stock Options. Executive shall be entitled to a grant of stock
options of the Company on the terms and conditions set forth in a separate
Option Agreement entered into by and between Executive and the Company on July
14, 2000 (a copy of the grant sheet for the Option Agreement is attached hereto
as Exhibit A).
2.4 Indemnification. In the event Executive is made, or threatened to
be made, a party to any legal action or proceeding, whether civil or criminal,
by reason of the fact that Executive is or was a director or officer of the
Company or serves or served any other corporation fifty percent (50%) or more
owned or controlled by the Company in any capacity at the Company's request,
Executive shall be indemnified by the Company, and the Company shall pay
Executive's related expenses when and as incurred, all to the fullest extent
permitted by law, as more fully described in the Indemnity Agreement attached
hereto as Exhibit B.
3. BENEFITS. Executive shall receive such pension, profit sharing and
fringe benefits as the Board of Directors of the Company may, from time to time,
determine to provide for the key executives of the Company.
4. TERMINATION OF EMPLOYMENT. Executive's employment by the Company shall
terminate immediately upon Executive's receipt of written notice of termination
by the Company, upon the Company's receipt of written notice of termination by
Executive, or upon Executive's death or permanent disability.
4.1 Termination Upon Death, Disability. The Company may terminate
Executive's employment in the event of his death or if Executive suffers a
disability that renders him unable, as determined in good faith by the Board, to
perform the essential functions of his position as President and Chief Executive
Officer, even with reasonable accommodation, for any consecutive three (3)
months within any twelve (12) month period. If Executive's employment is
terminated under this Section 4.1, Executive (or Executive's estate or other
designated beneficiary(s) as shown in the records of the Company) shall receive
payment for any earned but unpaid Base Salary, a pro rata share of any target
bonus Executive would be entitled to receive during the calendar year in which
the termination occurs, and benefits under benefit plans of the Company that
Executive may then be entitled to receive, if any, less standard withholdings
for tax and social security purposes, through the termination date. The Company
shall have no further obligation to pay any compensation of any kind nor to make
any payment in lieu of
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notice to Executive. All benefits provided to Executive by the Company under
this Agreement or otherwise, shall cease as of the termination date.
4.2 Voluntary Termination. Executive may voluntarily terminate his
employment with the Company at any time upon one (1) month's prior written
notice. The Company may accelerate the termination of Executive's employment to
a date prior to one (1) month after Executive's notice of resignation upon
written notice thereof being delivered to Executive by the Company. If
Executive's employment is terminated under this Section 4.2, Executive shall
receive payment for any earned but unpaid Base Salary, and benefits under
benefit plans of the Company that Executive may then be entitled to receive, if
any, less standard withholdings for tax and social security purposes, through
the termination date. The Company shall have no further obligation to pay any
compensation of any kind nor to make any payment in lieu of notice to Executive.
All benefits provided to Executive by the Company under this Agreement or
otherwise, shall cease as of the termination date.
4.3 Termination for Cause.
(a) Termination. The Company may terminate Executive's
employment at any time for "cause" (as defined below). If Executive's employment
is terminated under this Section 4.3, Executive shall receive payment for any
earned but unpaid base salary, and benefits under benefit plans of the Company
that Executive may then be entitled to receive, if any, less standard
withholdings for tax and social security purposes, through the termination date.
The Company shall have no further obligation to pay any compensation of any kind
nor to make any payment in lieu of notice to Executive. All benefits provided to
Executive by the Company under this Agreement or otherwise, shall cease as of
the termination date.
(b) Definition of Cause. For purposes of this Agreement, the
Company shall have "cause" to terminate Executive's employment upon any of the
following: (i) a material breach by Executive of this Agreement or the Employee
Proprietary Information and Inventions Agreement referenced in Section 9 hereof;
(ii) any breach of fiduciary duty or act of theft, misappropriation,
embezzlement, intentional fraud or other violation of the law or similar conduct
by Executive involving the Company or any affiliate; (iii) a conviction or a
plea of nolo contendere or the equivalent in respect of a felony involving an
act of dishonesty, moral turpitude, deceit or fraud by Executive; (iv) any
damage of a material nature to the business or property of the Company or any
Affiliate caused by Executive's willful or grossly negligent conduct; (v) the
willful failure by Executive to perform reasonable duties, responsibilities or
instructions from the Board of Directors after fifteen (15) days written notice
thereof; or (vi) any act of dishonesty or misconduct by Executive in connection
with his responsibilities as President and Chief Executive Officer or otherwise.
4.4 Termination Without Cause. The Company may, at any time,
terminate Executive without cause. In the event that Executive's employment with
the Company is terminated without cause, upon execution by Executive of an
effective release of claims substantially in the form attached as Exhibit C, the
final wording of which shall be determined by the Company (the "RELEASE"), (a)
Executive shall receive payment for any earned but unpaid Base Salary, and
benefits under benefit plans of the Company that Executive may then be entitled
to receive, if any, less standard withholdings for tax and social security
purposes,
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through the termination date; (b) the Company shall continue to pay Executive
his Base Salary for the twelve (12) months immediately following the termination
date; (c) Executive shall receive the annual target bonus he would otherwise
have been entitled to receive for the year in which such termination occurs,
prorated through the termination date, plus an additional twelve (12) months'
bonus at the same annual target rate; and (d) all of the unvested options held
by Executive on the date of such termination shall immediately vest and become
exercisable in full. The options shall remain exercisable for the period
specified in the Option Agreement.
4.5 Constructive Termination. Notwithstanding anything in this
Section 4 or Section 5 to the contrary, Executive may voluntarily end his
employment with the Company and receive the benefits detailed in Section 4.4
upon or within ninety (90) days following the occurrence of an event
constituting a "Constructive Termination," which for purposes of this Section
4.5 shall mean:
(a) a material adverse change in Executive's position causing it
to be of materially less stature or responsibility without Executive's written
consent, and such a materially adverse change shall in all events be deemed to
occur if Executive no longer serves as President and Chief Executive Officer
reporting to the Board of Directors, unless Executive consents in writing to
such change;
(b) a reduction, without Executive's written consent, in his
level of base compensation (including Base Salary and fringe benefits) by more
than ten percent (10%) or a reduction by more than ten percent (10%) in his
target bonus under the Bonus Plan; or
(c) the Company's failure to obtain the agreement of a successor
(after merger, consolidation, or sale of all assets) to assume the obligations
set forth in this Agreement; or
(d) a relocation of Executive's principal place of employment by
more than thirty (30) miles, unless Executive consents in writing to such
relocation.
4.6 At-Will Employment. Executive understands and agrees that
employment with the Company is at-will, which means that either Executive or the
Company may terminate this Agreement at any time, with or without cause, as set
forth in this Agreement. Any modification of the at-will nature of this
Agreement must be in writing and executed by Executive and the Company.
5. CHANGE IN CONTROL BENEFITS.
5.1 Should Executive's employment with the Company terminate upon a
Change in Control (as defined below) then the following provisions shall become
applicable in lieu of severance benefits otherwise payable under Section 4:
(a) Upon execution of the Release, (i) Executive shall receive
payment for any earned but unpaid Base Salary, and benefits under benefit plans
of the Company that Executive may then be entitled to receive, if any, less
standard withholdings for tax and social security purposes, through the
termination date; (ii) the Company shall continue to pay Executive his Base
Salary for the twelve (12) months immediately following the termination date;
and (iii)
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Executive shall receive the annual target bonus he would otherwise have been
entitled to receive for the year in which such termination occurs, prorated
through the termination date, plus an additional twelve (12) months' bonus at
the same annual target rate.
(b) All of the unvested options and other stock awards held by
Executive on the date of such Change in Control shall immediately vest and
become exercisable in full on the date of Executive's termination of employment,
but not prior to the eighth (8th) day following Executive's execution of the
Release, and shall remain exercisable for the period specified in the applicable
option grant.
(c) For purposes of this Section 5.1, a Change in Control shall
be deemed to occur upon the consummation of any one of the following events:
(i) a sale of all or substantially all of the assets of the
Company; (ii) a merger or consolidation in which the Company is not the
surviving corporation (other than a transaction the principal purpose of which
is to change the state of the Company's incorporation or a transaction in which
the voting securities of the Company are exchanged for beneficial ownership of
at least a majority of the voting securities of the acquiring corporation);
(iii) a merger or consolidation in which the Company is the surviving
corporation and less than fifty percent (50%) of the voting securities of the
Company that are outstanding immediately after the consummation of such
transaction are beneficially owned, directly or indirectly, by the persons who
owned such voting securities immediately prior to such transaction; (iv) any
transaction or series of related transactions after which any person (as such
term is used in Section 13(d)(3) of the Exchange Act), other than any employee
benefit plan (or related trust) sponsored or maintained by the Company or any
Affiliate, becomes the beneficial owner of voting securities of the Company
representing a majority of the combined voting power of all of the voting
securities of the Company; (v) the acquisition, by an entity which is the
beneficial owner of at least fifty-one percent (51%) of the voting securities of
the Company, of all or substantially all of the voting securities of the
Company; (vi) during any period of two consecutive years, individuals who at the
beginning of such period constitute the membership of the Company's Board of
Directors ("Incumbent Directors") cease for any reason to have authority to cast
at least a majority of the votes which all Directors are entitled to cast,
unless the election, or the nomination for election by the Company's
stockholders, of a new Director was approved by a vote of at least two-thirds of
the votes entitled to be cast by the Incumbent Directors, in which case such
director shall also be treated as an Incumbent Director in the future; or (vii)
the liquidation or dissolution of the Company.
For purposes of Section 5.1(c)(iii) above, any person who acquired
securities of the Company prior to the occurrence of the specified transaction
in contemplation of such transaction and who immediately after such transaction
possesses direct or indirect beneficial ownership of at least ten percent (10%)
of the securities of the Company or the surviving corporation, as appropriate,
(or if the Company or the surviving corporation is a controlled affiliate, then
of the appropriate entity as determined above) shall not be included in the
calculation of the group of persons who owned such voting securities immediately
prior to such transaction.
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5.2 In the event that the benefits payable hereunder to Executive (i)
constitute "parachute payments" within the meaning of Section 280G of the
Internal Revenue Code of 1986, as amended (the "CODE"), or any comparable
successor provisions, and (ii) but for this Section 5.2 would be subject to the
excise tax imposed by Section 4999 of the Code, or any comparable successor
provisions (the "EXCISE TAX"), then Executive's benefits hereunder shall be
either:
(i) provided to Executive in full, or
(ii) provided to Executive as to such lesser extent which would
result in no portion of such benefits being subject to the Excise Tax,
whichever of the foregoing amounts, when taking into account
applicable federal, state, local and foreign income and employment taxes, the
Excise Tax, and any other applicable taxes, results in the receipt by Executive,
on an after-tax basis, of the greatest amount of benefits, notwithstanding that
all or some portion of such benefits may be taxable under the Excise Tax. Unless
the Company and Executive otherwise agree in writing, any determination required
under this Section 5.2 shall be made in writing in good faith by a nationally
recognized accounting firm which is then serving as the Company's independent
auditors (the "ACCOUNTANTS"). In the event of a reduction of benefits hereunder,
Executive shall be given the choice of which benefits to reduce. If Executive
does not provide written identification to the Company of which benefits he
chooses to reduce within ten (10) days of his receipt of the Accountants'
determination, and Executive has not disputed the Accountants' determination,
then the Company shall select the benefits to be reduced. For purposes of making
the calculations required by this Section 5.2, the Accountants may make
reasonable assumptions and approximations concerning applicable taxes and may
rely on reasonable, good faith interpretations concerning the application of the
Code, and other applicable legal authority. The Company and 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 5.2. The
Company shall bear all costs the Accountants may reasonably incur in connection
with any calculations contemplated by this Section 5.2.
If notwithstanding any reduction described in this Section 5.2, the
Internal Revenue Service (the "IRS") determines that Executive is liable for the
Excise Tax as a result of the receipt of the payment of benefits as described
above, the Executive shall be obligated to pay back to the Company, within
thirty (30) days after a final IRS determination or in the event that Executive
challenges the final IRS determination, a final judicial determination, a
portion of the payment equal to the "REPAYMENT AMOUNT." The Repayment Amount
with respect to the payment of benefits shall be the smallest such amount, if
any, as shall be required to be paid to the Company so that Executive's net
after-tax proceeds with respect to any payment of benefits (after taking into
account the payment of the Excise Tax an all other applicable taxes imposed on
such payment) shall be maximized. The Repayment Amount with respect to the
payment of benefits shall be zero if a Repayment Amount of more than zero would
not result in Executive's net after-tax proceeds with respect to the payment of
such benefits being maximized. If the Excise Tax is not eliminated pursuant to
this paragraph, Executive shall pay the Excise Tax.
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Notwithstanding any other provision of this Section 5.2, if (i) there
is a reduction in the payment of benefits as described in this Section 5.2, (ii)
the IRS later determines that Executive is liable for the Excise Tax, the
payment of which would result in the maximization of Executive's net after-tax
proceeds (calculated as if Executive's benefits had not previously been
reduced), and (iii) Executive pays the Excise Tax, then the Company shall pay to
Executive those benefits which were reduced pursuant to this subsection
contemporaneously or as soon as administratively possible after Executive pays
the Excise Tax so that Executive's net after-tax proceeds with respect to the
payment of benefits are maximized.
6. INJUNCTIVE RELIEF. The parties hereto agree that damages would be an
inadequate remedy for the Company in the event of a breach or threatened breach
of Section 9, 10 or 11 of this Agreement by Executive, and in the event of any
such breach or threatened breach, the Company may, either with or without
pursuing any potential damage remedies, obtain and enforce an injunction
prohibiting Executive from violating this Agreement and requiring Executive to
comply with the terms of this Agreement.
7. DISPUTE RESOLUTION. The Company and Executive agree that any dispute
regarding the interpretation or enforcement of this Agreement or any dispute
arising out of Executive's employment or the termination of that employment with
the Company, except for disputes regarding the interpretation of those sections
referred to in Section 6 and disputes involving the protection of the Company's
intellectual property, shall be decided by confidential, final and binding
arbitration conducted by Judicial Arbitration and Mediation Services ("JAMS")
under the then-existing JAMS rules, rather than by litigation in court, trial by
jury, administrative proceeding, or in any other forum.
8. COOPERATION WITH THE COMPANY AFTER TERMINATION. Following termination
by Executive, Executive shall fully cooperate with the Company in all matters
relating to his employment, the winding up of his pending work on behalf of the
Company and the orderly transfer of any such pending work to other employees of
the Company as may be designated by the Company.
9. PROPRIETARY INFORMATION OBLIGATIONS. Executive acknowledges and
incorporates herein by reference his obligations under the Employee Proprietary
Information and Inventions Agreement executed by Executive on July 14, 2000 and
attached hereto as Exhibit D.
10. NON-COMPETITION. Executive agrees that, during the Term and for a
period of one (1) year after the last day of Executive's employment with the
Company, he will not, directly or indirectly, provide services on behalf of any
competing corporation, limited liability company, partnership, or other
competing entity or person, whether as an employee, consultant, independent
contractor, agent, sole proprietor, partner, joint venturer, corporate officer
or director; nor shall Executive acquire by reason of purchase during the term
of his employment with the Company the ownership of more than one percent (1%)
of the outstanding equity interest in any such competing entity. For purposes of
this Section 10 a "competing" entity is one engaged in the business of
independent electronic design services and/or intellectual property licensing.
Subject to the foregoing, Executive may serve on boards of directors of
non-competing unaffiliated corporations, subject to advance approval by the
Board, and may serve on the boards of charitable organizations.
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11. NONINTERFERENCE. During the Term and for a period of one (1) year
after the last day of Executive's employment with the Company, Executive agrees
that he will not, except with the advance approval of the Company, voluntarily
or involuntarily, for any reason whatsoever, directly or indirectly,
individually or on behalf of Persons not now parties to this Agreement, or as a
partner, stockholder, director, officer, principal, agent, employee or in any
other capacity or relationship, for his own account or for the benefit of any
other Person: (a) encourage, induce, attempt to induce, solicit or attempt to
solicit anyone who is employed at that time, or was employed during the previous
one (1) year, by the Company or any affiliate to leave his or her employment
with the Company or any affiliate; or (b) interfere or attempt to interfere with
the relationship or prospective relationship of the Company or any affiliate
with any former, present or future client, customer, joint venture partner, or
financial backer of the Company or any affiliate; or (c) solicit, divert or
accept business, in any line or area of business engaged in by the Company or
any affiliate, from any former, present or future client, customer or joint
venture partner of the Company or any affiliate (other than on behalf of the
Company).
12. GENERAL.
12.1 Waiver. Neither party shall, by mere lapse of time, without
giving notice or taking other action hereunder be deemed to have waived any
breach by the other party of any of the provisions of this Agreement. Further,
the waiver by either party of a particular breach of this Agreement by the other
shall neither be construed as, nor constitute, a continuing waiver of such
breach or of other breaches by the same or any other provision of this
Agreement.
12.2 Severability. If for any reason a court of competent jurisdiction
or arbitrator finds any provision of this Agreement to be unenforceable, the
provision shall be deemed amended as necessary to conform to applicable laws or
regulations, or if it cannot be so amended without materially altering the
intention of the parties, the remainder of the Agreement shall continue in full
force and effect as if the offending provision were not contained herein.
12.3 Notices. All notices and other communications required or
permitted to be given under this Agreement shall be in writing and shall be
considered effective either (a) upon personal service or (b) upon delivery by
facsimile and depositing such notice in the U.S. Mail, postage prepaid, return
receipt requested and addressed to the Chairman of the Board of the Company at
its principal corporate address, and to Executive at his most recent address
shown on the Company's corporate records, or at any other address which he may
specify in any appropriate notice to the Company, or (c) upon only depositing
such notice in the U.S. Mail as described in (b) above.
12.4 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which taken
together constitutes one and the same instrument and in making proof hereof it
shall not be necessary to produce or account for more than one such counterpart.
12.5 Entire Agreement. The parties hereto acknowledge that each has
read this Agreement, understands it, and agrees to be bound by its terms. The
parties further agree that this Agreement, including the agreements referenced
herein and attached as Exhibits hereto, constitute the complete and exclusive
statement of the agreement between the parties and
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supersede any and all prior or contemporaneous understandings, agreements,
representations, conditions, covenants, proposals, and all other communications
between the parties, whether written or oral, relating to the subject matter
hereof.
12.6 Governing Law. This Agreement shall be governed by the laws of
the State of California, excluding its conflict of laws rules.
12.7 Assignment And Successors. The Company shall have the right to
assign its rights and obligations under this Agreement to an entity which
acquires substantially all of the assets of the Company. The rights and
obligation of the Company under this Agreement shall inure to the benefit and
shall be binding upon the successors and assigns of the Company. Executive shall
not have any right to assign his obligations under this Agreement and shall only
be entitled to assign his rights under this Agreement by will or the Laws of
descent and distribution.
12.8 Survival. Sections 6 through 12 shall survive any termination of
this Agreement.
12.9 Amendments. This Agreement and the terms and conditions of the
matters addressed in this Agreement may only be amended in writing executed both
by the Executive and a duly authorized representative of the Company.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first above written.
EXECUTIVE:
/s/ Xxxxxx X. Xxxxxxxxxx
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Xxxxxx X. Xxxxxxxxxx
TALITY CORPORATION:
By: /s/ Xxxxx X. Xxxx
---------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President, Chief Financial Officer
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