Exhibit 4.8
July 31, 2007
Xxxxx Xxxxxx
0000 Xxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Dear Xxxx:
I am pleased to offer you employment with Zarlink Semiconductor LE Inc.
("Zarlink" or "Company") on the following terms and conditions. This offer and
its acceptance are conditional upon Zarlink Semiconductor Inc. completing the
acquisition of Legerity Holdings, Inc.
All amounts are in United States dollars.
Xxxxxxx is an "at will" employer and your employment with Zarlink is an at-will
relationship, subject to any payments or other consideration due to you in the
event of your termination without Cause. This means that either Zarlink or you
may terminate the employment relationship at any time for any reason, with or
without cause or advance notice.
1. Work Responsibilities
You will be employed for a term of one (1) year in the position of Sr. Vice
President and General Manager, Network Communications Product Group, reporting
to Xxxx Xxxxx, Company CEO and will be based in the Company's Austin, Texas
offices. Your start date will be immediately following the closing of the
Legerity acquisition. Your employment will automatically terminate one (1) year
from your start date unless the term is extended by mutual agreement.
In this position, you will devote your best efforts, and your full working time,
skill and attention, to carrying out your duties and to promoting the interests
of the Company. You will be expected to perform all services and duties
customarily associated with your position, together with such additional duties
and responsibilities as assigned from time to time.
2. Salary and Incentives
Your annual base salary will be $350,000.
In addition, you will be eligible to participate in the Zarlink Bonus Plan at
50% of base salary. Details of the plan will be communicated to you.
In order to provide you with an incentive to remain in the employ of the
Company, you will be entitled to receive a retention bonus equal to $350,000.
The retention bonus, less applicable statutory deductions and withholdings, will
be payable after the completion of one (1) year of employment; provided however,
if your employment is earlier terminated by the Company without Cause, you will
be entitled to receive 100% of the retention bonus or any unpaid portion thereof
upon termination. The retention bonus payment will be made within 30 days after
the
anniversary date of employment, or in the case of termination without Cause, on
the Termination Date.
3. Health, Dental and Related Benefits
Xxxxxxx will maintain Legerity's current comprehensive group employee benefits
plan. Your eligibility for coverage and for benefits will be determined in
accordance with the specific terms and conditions of the plan. We reserve the
right to terminate or amend any of these plans from time to time.
4. Pension
You will be entitled to participate in the Zarlink U.S. employee 401K Plan.
Zarlink will provide an annual company match payment in accordance with the
terms of the Plan. We reserve the right to terminate or amend this Plan at any
time.
5. Vacation
Xxxxxxx will provide you four (4) weeks paid vacation leave per year, accrued in
equal bi-weekly installments. In accordance with Xxxxxxx's US Vacation Policy,
vacation accrual will cease at anytime during the year that your accrual reaches
160 hours. The accrual will re-start once that total comes back down below 160
hours. You will be offered a reasonable time to reduce your current vacation
accrual to the 160 hour cap, if applicable. In addition Xxxxxxx will provide
paid U.S. statutory holidays in accordance with company policy from time to time
and any other leave you are legally entitled to receive, all in accordance with
U.S. employment standards legislation and Xxxxxxx's policies.
6. Expenses
The Company will pay or reimburse you for all reasonable and necessary
out-of-pocket expenses actually incurred by you in the performance of your
services under this Agreement, provided you provide proper records and/or
receipts for such expenses and otherwise properly account for such expenses in
accordance with the Company's policy as presently in effect and amended from
time to time.
7. D&O Insurance Coverage
You will be entitled to director and officer insurance coverage for your acts
and omissions while employed as an officer of the Company on a basis no less
favorable to you than the coverage provided to all other similarly situated
officers.
8. Confidentiality of Information and Ownership of Proprietary Property
The Company agrees to and will impart to you and provide you with access to its
Confidential Information. "Confidential Information" means all information and
compilations of information of any kind, type or nature (tangible and
intangible, written or oral, and including information contained, stored, or
transmitted through any electronic medium), whether owned by the Company or
licensed from third parties, which, at any time during your employment, is
devised, developed, designed or discovered or otherwise acquired or learned by
you to the extent it relates to the Company, including without limitation,
products and services, including without limitation, plans, procedures,
formulae, processes, pricing, and costs; customers, including
without limitation, lists, contact information, pricing, preferences, and other
non-public information concerning customers; sources of supply and vendors;
good-will; marketing plans, strategies, and budget; management and employees,
including without limitation, compensation, personal data, contact information,
and other non-public information concerning employees; technology, technical
data, research, manuals, drawings, designs, and documentation; financial
condition, including without limitation, product or service fees, sales
information, volume, pricing, costs, properties, assets, analysis, and reports
and the information contained therein; accounting and business methods and
plans; business development, including without limitation, plans, prospects,
strategies, fees, costs, pricing, and new ideas and developments; inventions
made, developed or conceived by the Company and/or its subsidiaries and
affiliates; trade secrets; and computer software, specifications, source code,
and executable code.
You acknowledge and agree that the Confidential Information is valuable and is a
unique asset that provides the Company an advantage over competitors; is
developed or acquired by the Company at considerable time and expense, and is
proprietary to the Company and is intended to be used solely for the benefit of
the Company. You acknowledge and agree that, but for your agreement to the terms
and conditions of this Agreement, the Company would not impart or provide access
to such Confidential Information.
As a condition of your acceptance of this offer, you are required to provide
Zarlink with an executed original of the enclosed Intellectual Property Rights &
Non-Solicitation Agreement. Please note the ongoing nature of the obligations
set out in the Agreement. The terms of this Agreement form part of the terms and
conditions of this employment agreement. In addition, you will be required to
sign Xxxxxxx's "Code of Ethics and Business Conduct" as a condition of
employment. This will be provided to you on your start date.
9. Notification of Materials or Documents from Other Employers
You warrant that you will not bring to Zarlink or use in the performance of your
responsibilities at Zarlink any information, materials or documents of a former
employer that are not generally available to the public, unless you obtained
express written authorization from the former employer for their possession and
use, and disclosed such circumstances to Xxxxxxx.
10. Notification of Other Post-Employment Obligations
As part of your employment with Xxxxxxx, you are not to breach any obligation of
confidentiality that you have to former employers (other than Legerity), and you
agree to honor all such obligations to former employers during your employment
with Xxxxxxx. You warrant that you are not subject to an employment agreement or
restrictive covenant preventing full performance of your duties under this
Agreement.
11. Cessation of Employment
a. Definitions
For the purposes of this employment agreement, the following
definitions apply:
"Cause" means (i) your commission of any act of dishonesty, fraud,
misrepresentation, misappropriation, embezzlement or the like, which
was intended to result in substantial gain or personal enrichment
for you at the expense of the Company; (ii) your
unauthorized use or intentional disclosure of any confidential
information or trade secrets of the Company (not including
inadvertent or non-injurious disclosures), including your breach of
that certain Intellectual Property Rights & Non-Solicitation
Agreement entered into in connection herewith; (iii) any willful or
intentional violation by you of a law or regulation applicable to
the Company's business, which violation, in the reasonable
discretion of the Board, is or is reasonably likely to be injurious
to the Company; (iv) your commission of (a) a felony or (b) any
other crime which involves moral turpitude or which would seriously
damage the reputation of the Company; (v) gross negligence or
willful misconduct in the performance of your duties after written
notice from the Company identifying the misconduct, and if
reasonably capable of being cured, a reasonable cure period of not
less than thirty (30) days; or (vi) your willful or intentional
violation of a material Company policy or procedure that is
injurious to the Company.
"Incapacity" means any permanent physical or mental incapacity,
disability or condition which prevents you from performing the
essential duties of your position, even with reasonable
accommodation, for a period of not less than 90 consecutive days and
with no reasonable prospect of recovery, as determined in good faith
by Xxxxxxx on the basis of medical evidence satisfactory to the
Board.
"Termination Date" means:
(i) if Zarlink terminates your employment, the date designated by
the Company as the last day of your employment (without
reference to any applicable notice period to which you may be
entitled, whether under statute, common law, contract, or
otherwise);
(ii) if you resign your employment with Xxxxxxx, the date which is
the end of the one year agreement term or, if more than three
months remain, the three-month notice period or such shorter
notice period as the parties agree;
(iii) if you die, the date of death;
(iv) in the event of Incapacity, the date designated by Xxxxxxx as
the last day of your employment after determination that such
Incapacity exists.
b. Notice of Resignation
You may resign at any time, for any reason, upon giving a minimum of
three month advance written notice or the balance of the one year
employment term if shorter or such shorter notice period as the
parties agree. Zarlink reserves the right to accelerate your
Termination Date.
c. Entitlements upon Resignation, Termination for Cause
If you resign or your employment is terminated for Cause, then you
will be entitled to receive any compensation, benefits and
perquisites which have accrued up to the Termination Date.
d. Entitlements upon Death, Incapacity
If you die, or are determined to suffer an Incapacity, then you (or
your estate, in the event of your death) will be entitled to receive
any compensation, benefits and perquisites which have accrued up to
the Termination Date.
e. Entitlements upon Termination without Cause
If your employment is terminated before the end of the one year term
without Cause you will be provided with the following (which is
inclusive of any statutory entitlements you may have under
applicable employment standards legislation, and will be provided
net of required deductions):
(i) You will be paid for all time worked and your accrued vacation
balance through to the Termination Date. This payment will be
made on the Termination Date.
(ii) You will be paid in a lump sum the amounts remaining (salary
and bonus) for the balance of your one-year employment term.
This payment will be made within 30 days following the
Termination Date.
(iii) You will be paid a gross amount in cash, less statutory
deductions, sufficient to pay for the remaining number of
months of the one year employment term of insurance premiums,
such as COBRA premiums, in order to obtain (if you are
eligible) life, health and dental insurance coverage at the
same or similar premium basis and level that was available to
you at the time of your termination. You will need to contact
our insurance carrier (currently Unum) for conversion or
portability of your life insurance policy.
(iv) All other perquisites, if any, will cease 30 days following
the Termination Date.
f. Resignation of Office
If your employment ends for any reason, you agree to resign in
writing effective upon the Termination Date from any office or
directorship held with Zarlink or with any subsidiary or affiliated
company.
12. Non-Competition and Non-Solicitation Obligations
You acknowledge and agree that your training, work and experience with the
Company will enhance your value to competitors, and that the nature of the
Confidential Information will make it difficult, if not impossible for you to
work in any business that competes directly with the principal business of the
Company without disclosing or utilizing the Confidential Information to which
you have access during the course of your employment. You further acknowledge
and agree that the Company's agreement to impart to and to provide you with
access to its Confidential Information is ancillary to and contingent upon your
agreement that you will not, for a period of twelve (12) months immediately
following the Termination Date:
a. participate (as an employee or consultant, executive, director or
significant investor (greater than 20%) in any business operating
anywhere in the world that competes directly with the principal
businesses of Zarlink (or its successors);
b. directly or indirectly solicit any of Zarlink's customers for
business in competition with Xxxxxxx (or its successors); and,
c. solicit, entice, approach or induce any of Xxxxxxx's employees or
consultants to leave their employment or to end their consultancy
arrangements with Xxxxxxx (or its successors) or to join another
business or organization.
13. Notices
All notices, requests, and other communications hereunder must be in writing and
will be deemed to have been duly given only if (i) delivered personally to a
person authorized to accept, (ii) delivered by facsimile transmission with
transmission confirmation, (iii) mailed (by U.S. certified or registered mail,
return receipt requested), or (iv) delivered by overnight courier at the
following addresses and facsimile numbers:
To the Company:
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Zarlink Semiconductor Inc
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400 March Road
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Ottawa, Ontario, Canada K2K 3H4
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Facsimile: 000 000-0000
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Attn: Xxx XxXxxxxx
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To the Employee:
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Xxxxx (Xxxx Xxxxxx)
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9905 Xxxxxx Drive
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Austin Texas 78736
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Facsimile: 000 000-0000
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All such notices, requests, and other written communications will (i) if
delivered personally or by overnight carrier to the address as provided herein,
be deemed given upon delivery and (ii) if delivered by facsimile transmission or
by U.S. mail in the manner and to the address as provided herein, be deemed
given three (3) days after the date of the facsimile transmission verification
or after deposit in the U.S. mail. Any party from time to time may change its
address, facsimile number, or other information for the purpose of notices to
that party by giving written notice specifying such change to the other parties
hereto.
14. Choice of Law and Jurisdiction
This employment agreement will be governed by and construed in accordance with
the laws of the State of Texas, U.S.A., without regard to the principles of
conflicts of law, and will in all respects be treated as a Texas contract. In
the event of a dispute, you agree that any legal proceedings must be brought in
the state or federal courts in the County of Xxxxxx in the State of Texas, and
you hereby submit to personal jurisdiction in such courts in connection with any
such dispute.
15. Whole Agreement
By accepting this offer of employment, you are agreeing that the terms and
conditions set out in this offer (including the terms and conditions of any
documents enclosed) represent the entire agreement relating to your employment
with the Company; that any and all previous agreements
or representations, written or oral, are hereby terminated and cancelled; and
that you hereby release Zarlink from any and all claims whatsoever under or in
respect of any such previous agreements or representations. If any provision of
this Agreement is held to be unenforceable in whole or in part, the remaining
provisions shall remain in full force and effect, and such unenforceable
provision shall be deemed to be automatically amended and replaced by a legal,
valid and enforceable provision which accomplishes as far as possible the
purposes and intent of such original provision.
We trust that you will find this offer of employment responsive to your needs.
To signify your acceptance, please sign below, and return one complete signed
original of this offer and of the enclosed Agreement to the attention of Xxx
XxXxxxxx no later than 10 days before the closing of the Legerity acquisition.
All of us at Zarlink look forward to working with you.
Zarlink Semiconductor Inc.
Per: \S\ Xxx XxXxxxxx
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Xxx XxXxxxxx
Sr. VP General Counsel and Secretary
Acknowledgement and Acceptance
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I, Xxxxx (Xxxx) Xxxxxx, have read and reviewed, in their entirety, this offer of
employment dated July 31st, 2007 and the documents enclosed. I have had an
opportunity to ensure that I clearly understand the terms and conditions of my
employment with Xxxxxxx, and I have had the opportunity to confer with an
independent legal advisor if I so wished, in advance of accepting this offer of
employment. I hereby represent and confirm to Zarlink that, assuming the closing
of the acquisition of Legerity and Zarlink, I am not under any contractual or
other legal obligation (other than my obligations to Legerity), which prevents
me from accepting this conditional offer of employment or from abiding by the
terms and conditions of my employment with Zarlink. I accept this conditional
offer of employment, to be effective as of and conditioned on the closing of the
acquisition of Legerity by Xxxxxxx, and agree to the terms and conditions as set
out.
DATED at Ottawa this 31st day of July, 2007
\S\ Xxxx Xxxxxx
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Xxxxx (Xxxx) Xxxxxx
