Exhibit No. 10.7
EMPLOYMENT AGREEMENT
(This Agreement is made by and between ZiLOG, Inc., a Delaware
corporation (hereinafter "ZiLOG') and Xxxxxxx X. Xxxxxxx (hereinafter
"Xxxxxxx"), whereby ZiLOG and Xxxxxxx agree that Xxxxxxx accepts
employment as Vice President, General Counsel and Secretary of ZiLOG,
under the following terms and conditions:
1. Term. ZiLOG and Xxxxxxx agree that Xxxxxxx will be Vice President,
General Counsel and Secretary of ZiLOG for a period of twenty-four
(24) months, commencing on November 6, 1998 and ending November 5,
1998. This Agreement may be extended upon written agreement of
ZiLOG and Xxxxxxx. If during the term of this Agreement a "Change
of Control" of ZiLOG occurs, the term of this Agreement will be
extended for a period of twenty four (24) months commencing on the
earlier of the effective date of the Change of Control or the date
this Agreement would otherwise expire; provided, however, in the
case of a Change in Control that is subject to an agreement that is
executed before the date this Agreement would otherwise expire but
becomes effective on a closing date that will occur after the date
this Agreement would otherwise expire, there will be no such
automatic twenty four month extension if the closing date does not
occur within six (6) months after the date this Agreement would
otherwise expire. Under these circumstances the term of this
Agreement shall be extended six (6) months from the date it would
otherwise expire. For purposes of this Agreement, "Change in
Control" shall mean the occurrence of any of the following events:
(i) A change in the composition of the board of directors of
ZiLOG, Inc., as a result of which fewer than two-thirds of the
incumbent directors are directors who either:
(A) Had been directors of ZiLOG, Inc. twenty-four (24) months
prior to such change; or
(B) Were elected, or nominated for election, to the board of
directors of ZiLOG, Inc. with the affirmative votes of at
least a majority of the directors who had been directors
of ZiLOG, Inc. twenty-four (24) months prior to such
change and who were still in office at the time of the
election or nomination:
(ii) Any "person" (as such term is used in sections 13 (d) and
14 (d) of the Exchange Act) other than ZiLOG, Inc. (or its
designee), by the acquisition or aggregation of securities is
or becomes the beneficial owner, directly or indirectly, of
securities of ZiLOG, Inc. representing twenty percent (20%) or
more of the combined voting power of ZiLOG, Inc.'s then
outstanding securities ordinarily (and apart from the rights
accruing under special circumstances) having the right to vote
at elections of directors;
(iii) The sale of all or substantially all of the assets of
ZiLOG, Inc. to a third party who is not an affiliate
(including a parent or subsidiary) of ZiLOG, Inc.; or
(iv) Any acquisition of stock, tender offer, merger,
consolidation, sale, reorganization, dissolution or other such
event or series of events, which in the opinion of a majority
of the members of the board of ZiLOG, Inc. (as reflected in a
written resolution of the board of ZiLOG, Inc.) has resulted
in a change of control of ZiLOG, Inc.
2. Extent of Services. Xxxxxxx shall devote his entire time, attention
and energies to his position as Vice President, General Counsel and
Secretary of ZiLOG and shall not, during the term of this Employment
Agreement be engaged in any other business activity whether or not
such business activity is pursued for gain, profit or other
pecuniary advantage; provided, that Xxxxxxx may engage in personal
investment activities consistent with ZiLOG's Conflict of Interest
Policy.
3. Compensation.
A. Salary. For each month of employment, ZiLOG will pay, or cause
to be paid, to Xxxxxxx the sum of at least $14,167.00 as base
salary. Such sum will be paid in monthly installments or such
other normal periodic payment schedule as ZiLOG may establish for
its executives. Xxxxxxx'x salary will be reviewed periodically
in accordance with established salary review procedures and
adjustments to his salary, if any, will be based upon such
reviews.
B. Employee Performance Incentive Plan and Executive Bonus Plan.
Xxxxxxx will be eligible to receive Awards and Payouts in
accordance with the terms of the ZiLOG Employee Performance
Incentive Plan (hereinafter "EPIP"), and the EPIP Executive
Bonus Plan (hereinafter "Executive Bonus") as such plans may be
modified from time to time and as modified by this Agreement.
C. ZiLOG Employee Stock Option Plan. ZiLOG has provided to Xxxxxxx
stock options under the 1990 ZiLOG Employee Stock Option Plan
(hereinafter "ZSOP") and the 1994 Long Term Incentive Plan
(hereinafter "LTIP"), copies of such plans being attached
hereto. Vesting will continue in accordance with the plan
provisions during the term of this Agreement.
4. Benefits. As an employee of ZiLOG, Xxxxxxx will be entitled to such
benefits as ZiLOG normally provides its employees. In addition,
ZiLOG will provide Xxxxxxx with Directors and Officers (D & O)
insurance in an amount deemed appropriate by the Company.
5. Company Policies. Xxxxxxx agrees to be bound by all ZiLOG Company
Policies applicable to its employees including but not limited to
Business Ethics, Conflict of Interest, Proprietary Information and
Antitrust Compliance, and he agrees to sign any such documents as
ZiLOG requests evidencing such agreement.
6. Termination of Employment. ZiLOG reserves the right to terminate
the employment of Xxxxxxx at any time during the term of this
Agreement, for any reason or for no reason, with or without cause,
by giving Xxxxxxx at least thirty (30) days written notice of such
termination or compensation in lieu of notice; and Xxxxxxx may
terminate his employment by giving at least thirty (30) days written
notice to ZiLOG. ZiLOG reserves the right to accelerate any
deferred resignation date given it by Xxxxxxx, and any such
acceleration of such date will not alter the character of such
termination from voluntary to involuntary.
7. Payment Upon Termination. Notwithstanding any other provisions of
this Agreement to the contrary, ZiLOG's obligations to Xxxxxxx, if
his employment with ZiLOG is terminated prior to the end of this
Agreement, shall be as follows:
A. If Xxxxxxx voluntarily resigns his employment for 1) other than
Good Reason ( as defined in Paragraph 7.B. below) or 2) other
than Retirement (as defined in Paragraph 7.C. below) or 3) other
than the sale, merger or change in ownership of ZiLOG (as defined
in Paragraph 7.G. below) prior to the termination date of this
Agreement, he will be entitled to: (1) base salary then due and
owing for services previously performed, (2) Payouts under EPIP
which become payable to Xxxxxxx pursuant to the terms of EPIP
prior to the effective date of resignation, and (3) Payouts under
the Executive Bonus which become payable to Xxxxxxx pursuant to
the terms of the Executive Bonus prior to the effective of
resignation. Upon payment of the foregoing items, ZiLOG will
have no further obligation to Xxxxxxx.
B. If Xxxxxxx voluntarily resigns his employment for Good Reason, as
defined herein, prior to the termination date of this Agreement,
he will be entitled to the benefits provided in Paragraph 7.D.
below. Good Reason, as used herein, shall mean:
(i) a reduction in Xxxxxxx'x authority,
responsibility or status as Vice President, General
Counsel and Secretary of ZiLOG, Inc. such that
Xxxxxxx ceased to be an "officer" as that term is
defined in the regulations under Section 16 of the
Securities Exchange Act of 1934;
(ii) a reduction in Xxxxxxx'x base salary other than
in connection with a general reduction applicable to
the Vice Presidents of ZiLOG who are members of the
Management Committee;
(iii) a reduction in form and effect or cessation of
any benefit or compensation plan, except EPIP, the
Executive Bonus, the Deferred Compensation Plan, or
those that may occur for the ZiLOG employee group in
general in accord with a general policy change;
(iv) a requirement to relocate, except for office
relocations that would not increase Xxxxxxx'x one -
way commute distance by more than 20 miles;
(v) any material breach of this Agreement on the
part of ZiLOG not fully remedied by ZiLOG within
sixty (60) days after written notice by Xxxxxxx of
such breach.
C. If Xxxxxxx retires as defined in PM60-05 prior to the termination
date of this Agreement, he will be entitled to the following at
the effective date of retirement: (1) base salary then due and
owing for services previously performed, (2) Payouts under EPIP
for Awards made prior to the effective date of the retirement,
and (3) Payouts under the Executive Bonus for Awards made prior
to the effective date of the retirement. EPIP and Executive
Bonus Awards may also be granted at ZiLOG's sole discretion for
the year in which the retirement occurs, prorated to the date of
the retirement. Payouts for all Awards will be made at the same
time and on the same schedule as those for active employees.
Upon the payment of the foregoing items, ZiLOG will have no
further obligation to Xxxxxxx.
D. If ZiLOG terminates Xxxxxxx'x employment during the terms of this
Agreement other than for Cause of Detrimental Activity as defined
in 7.E. below, he will be entitled to receive the following: (1)
the then current base salary for the period remaining in this
Agreement, (2) Payouts under EPIP for Awards made prior to the
effective date of termination of employment which Payouts are
payable to Xxxxxxx pursuant to the terms of EPIP prior to
expiration of the term of this Agreement, and (3) Payouts under
the Executive Bonus for Awards made prior to the effective date
of termination of employment which Payouts are payable to Xxxxxxx
pursuant to the term of this Agreement. Xxxxxxx will not be
eligible for Awards under EPIP or the Executive Bonus made after
the date on which his employment at ZiLOG ceased or for Payouts
made on any Awards after the expiration date of this Agreement.
Vesting of common stock and stock options granted under ZSOP and
LTIP will continue for the period remaining in this Agreement.
Upon payment of the foregoing items, ZiLOG will have no further
obligation to Xxxxxxx.
E. If ZiLOG terminates Xxxxxxx during the term of this Agreement for
Cause, or for Detrimental Activity as defined herein, ZiLOG will
have no further monetary obligation to Xxxxxxx other than: (1)
any base salary then due and owing for services previously
performed, (2) Payouts under EPIP which become payable to Xxxxxxx
pursuant to the terms of EPIP prior to the effective date of
termination, and (3) Payouts under the Executive Bonus which
become payable to Xxxxxxx pursuant to the terms of Executive
bonus prior to the effective date of termination. Cause or
Detrimental Activity shall be a willful violation of a major
company policy, conviction of any criminal or civil law involving
moral turpitude, willful misconduct which results in a material
reduction in Xxxxxxx'x effectiveness in the performance of his
duties, or willful and reckless disregard for the best interests
of the Company.
F. If Xxxxxxx ceases to be an employee of ZiLOG during the term of
this Agreement because of total and permanent disability or
death, ZiLOG's obligations to Xxxxxxx or his beneficiaries will
be limited solely to: (1) any base salary then due and owing for
services previously performed, (2) Payouts in accordance with the
terms of the Executive Bonus, and (4) any benefits including
ZSOP and LTIP benefits normally provided by ZiLOG to its
employees due to or on account of total and permanent disability
or death.
G. If Xxxxxxx leaves his employment, either voluntarily for Good
Reason or involuntarily for reasons other than for Cause or
Detrimental Activity, following the effective date of a Change in
Control prior to the termination date of this Agreement, he will
be entitled to receive the following: (1) the then current base
salary for the period remaining in this Agreement, payable in a
cash lump sum not more than five (5) business days following the
date of leaving employment, (2) Payouts under EPIP for Awards
made prior to the effective date of termination of employment,
and (3) Payouts under the Executive Bonus for Awards made prior
to the effective date of termination of employment. EPIP and
Executive Bonuses shall also be awarded for the year in which the
termination of employment occurs and shall be calculated in
accordance with the terms of such arrangements assuming the date
of Xxxxxxx'x termination is the last day of ZiLOG's fiscal year
and based on ZiLOG's financial performance for the portion of
such fiscal year that includes calculated financials for ZiLOG as
a separate entity. All of the above EPIP and Executive Bonus
Awards shall be paid in a cash lump sum within five (5) business
days of the date of Xxxxxxx'x termination of employment. All
outstanding unvested stock options whether granted under ZSOP and
LTIP or otherwise will continue to vest for the period of time
remaining in the Agreement (the "Continuation Period").
Regardless of the provisions of the ZSOP, LTIP or any other plans
or agreements, the Continuation Period shall be counted as
employment with ZiLOG for purposes of vesting under all options
and for purposes of determining the expiration date of any stock
options held by Xxxxxxx when his employment terminates. During
the remaining tern of this Agreement Xxxxxxx (and, where
applicable, his dependents) shall be entitled to continue
participation in the group insurance plans maintained by ZiLOG,
including life, disability, and health insurance programs, as if
he were still an employee of ZiLOG. To the extent that ZiLOG
finds it impossible to cover Xxxxxxx under its group insurance
policies during such period, ZiLOG shall provide Xxxxxxx with
individual policies which offer at least the same level of
coverage and which impose not more than the same costs on him as
if he were still an employee of ZiLOG. The foregoing
notwithstanding, in the event that Xxxxxxx becomes eligible for
comparable group insurance coverage in connection with the new
employment, the coverage provided by ZiLOG under this paragraph
shall terminate immediately. Any group health continuation
coverage that ZiLOG is otherwise required to offer under the
Consolidated Omnibus Budget Reconciliation Act of 1986 ("COBRA")
shall be offered when coverage under this paragraph terminates.
Except as provided in the paragraph immediately following, upon
payment of the foregoing items, ZiLOG will have no further
obligation to Xxxxxxx.
In the event that it is determined that any payment or
distribution of any type to or for the benefit of Xxxxxxx made by
ZiLOG, by any of its affiliates, by any person who acquires
ownership of a substantial portion of ZiLOG's assets (within the
meaning of Section 280G of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder (the "Code")) or by any
affiliate of such person, whether paid or payable or distributed
or distributable pursuant to the terms of this Agreement or
otherwise ( the "Total Payments"), would be subject to the
excise tax imposed by Section 4999 of the Code or any interest or
penalties with respect to such excise tax (such excise tax,
together with any such interest or penalties, are collectively
referred to as the "Excise Tax"), then Xxxxxxx shall be entitled
to receive an additional payment (a "Gross-Up Payment") in an
amount that shall fund the payment by Xxxxxxx of any Excise Tax
on the Total Payments as well as all income taxes imposed on the
Gross-Up Payment, any Excise Tax imposed on the Gross-Up Payment
and any interest or penalties imposed with respect to taxes on
the Gross-Up Payment or any Excise Tax.
All mathematical determinations and all determinations of whether
any of the Total Payments are "Parachute Payments" (within
meaning of Section 280G of the code) that are required to be made
hereunder, including all determinations of whether a Gross-Up
Payment is required and of the amount of such Gross-Up Payment,
shall be made by the independent auditors retained by ZiLOG most
recently prior to the Change in Control (the "Auditors"), who
shall provide their determination (the "Determination"),
together with detailed supporting calculations regarding the
amount of any Gross-Up Payment and any other relevant matters,
both to ZiLOG and to Xxxxxxx within seven (7) business days of
Xxxxxxx'x termination date, if applicable, or such earlier time
as is requested by ZiLOG or by Xxxxxxx (if Xxxxxxx reasonably
believes that any of the Total Payments may be subject to the
Excise Tax). If the Auditors determine that no Excise Tax is
payable by Xxxxxxx, it shall furnish Xxxxxxx with a written
statement that such Auditors have concluded that no Excise Tax is
payable (including the reasons therefor) and that Xxxxxxx has
substantial authority not to report any Excise Tax on his federal
income tax return. If a Gross-Up Payment is determined to be
payable, it shall be paid to Xxxxxxx within five (5) business
days after the Determination is delivered to ZiLOG or Xxxxxxx.
Any determination by the Auditors shall be binding upon ZiLOG and
Xxxxxxx, absent manifest error.
As a result of uncertainty in the application of section 4999 of
the Code at the time of the initial determination by the Auditors
hereunder, it is possible that Gross-Up Payments not made by
ZiLOG should have been made ("Underpayments") or that Gross-Up
will have been made by ZiLOG which should have been made
("Overpayments"). In either event, the Auditors shall determine
the amount of the Underpayment, the amount of such Underpayment
shall promptly be paid by ZiLOG to or for the benefit of Xxxxxxx.
In the case of an Overpayment, the Employee shall, at the
direction and expense of ZiLOG, take such steps as are reasonably
necessary (including the filing of returns and claims for
refund), follow reasonable instructions from, and procedures
established by, ZiLOG and otherwise reasonably cooperate with
ZiLOG to correct such Overpayment; provided, however, that (a.)
Xxxxxxx shall in no event be obligated to return to ZiLOG an
amount greater than the net after-tax portion of the Overpayment
that Xxxxxxx has retained or has recovered as a refund from the
applicable taxing authorities and (b.) this provision shall be
interpreted in a manner consistent with the intent of this excise
tax restoration provision which is to make Xxxxxxx whole, on an
after-tax basis, for the application of the Excise Tax, it being
understood that the correction of an Overpayment may result in
Xxxxxxx'x repaying to ZiLOG an amount which is less than the
Overpayment.
8. Xxxxxxx Representations. Xxxxxxx represents to ZiLOG that to the
best of his knowledge he is under no obligation to any employer or
third party which would preclude his full, complete and unfettered
discharge of his duties under this Agreement.
9. Notices. Any notices required to be given hereunder shall be in
writing, and if by ZiLOG shall be addressed to Xxxxxxx as indicated
in ZiLOG's personnel records or such other address s Xxxxxxx shall
specify in writing and if by Xxxxxxx to ZiLOG at:
ZiLOG, Inc.
000 X Xxxxxxxx Xxx
Xxxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Vice President, Human Resources and Administration
Such addresses may be changed by written notice from either ZiLOG
or Xxxxxxx , to the other.
10. Amendment. This Agreement may be amended only in writing, signed
by both partied hereto.
11. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon ZiLOG, its successors and assigns.
Xxxxxxx may not assign, transfer, pledge or hypothecate any of his
rights or obligations hereunder, Awards or Payouts under EPIP or the
Executive Bonus or other compensation to which he may be entitled
hereunder. ZiLOG will require any successor (whether direct or
indirect, by purchase, merger, consolidation, liquidation or
otherwise) to all or substantially all of the business and/ or
assets of ZiLOG to assume expressly and agree, in substance and form
satisfactory to Xxxxxxx, to perform this Agreement in the same
manner and to the same extent ZiLOG would be required to perform it
if no succession had taken place.
12. Waiver or Breach. The waiver by ZiLOG of a breach of any
provision of this Agreement by Xxxxxxx shall not operate or be
construed as a waiver of any subsequent breach by Xxxxxxx.
13. Severability. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or
enforceability of any other provision hereof.
14. Entire Agreement. This entire Agreement consists of this
document, together with the following documents:
A. EPIP, attached as Exhibit I;
B. Executive Bonus, attached as Exhibit II;
C. ZiLOG Employee Stock Option Plan, attached as Exhibit III;
D. ZiLOG 1994 Long Term Incentive Plan, attached as Exhibit IV;
E. Employee Proprietary Rights and Non-Disclosure Agreement,
attached as Exhibit V
F. Conflict of Interest Statement, attached as Exhibit VI
G. Statement addressed to "Human Resources," attached as Exhibit VII
H. Policy on Business Ethics, attached as Exhibit VIII; and
I. PM-05, attached as Exhibit IX.
15. Governing Law. This Employment Agreement shall be governed by
the laws of the State of California, without regard to conflict of
laws principles.
Executed effective: May 22, 1997
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ X.X. Xxxx
-------------------------- -------------------------------
Xxxxxxx R, Xxxxxxx X. X. Sack, President and CEO
Dated: May 22, 1997 Dated: May 22, 1997
