EXHIBIT 10.4
AGREEMENT REGARDING
TERMS OF EMPLOYMENT
National Instruments Corporation (the "Company") and Xxxxx Xxxxx ("you" or
"Ravel" ) agree on the following terms of employment as of this 18th day of
April, 2000:
1. Position. Starting April 18, 2000, Company employs Ravel in the position of
Vice President, Corporate Development at the Company's headquarters in
Austin, Texas, reporting to the Chief Executive Officer and Ravel accepts
such employment. Company shall assign such duties as are consistent with
Ravel's position as a Company officer and are within the scope of duties as
defined in Attachment B hereto. Company shall not reassign Ravel without
his express written permission. Ravel shall devote his full-time and best
efforts to his duties for the Company; provided, however, Company
acknowledges that Ravel is assisting as a board-member or adviser (and not
as an officer or employee) a multimedia technology venture ("Venture") to
which he will devote up to1/2of his time until September 1, 2000. Ravel
shall make the Company his priority in the event of a conflict between his
position with the Company and the Venture. If Ravel, of his own volition,
does not relocate to Austin, Texas, on or before September 1, 2000, unless
the Company grants him a written extension to a later relocation date,
Ravel understands that he will not be entitled to any of the remedies for
termination without cause/for good reason set out in paragraph six of this
Agreement or other compensation contingent upon employment.
2. Compensation. Company shall pay Ravel a base salary of $15,833.34 per month
($190,000, if annualized) ("Base Salary"). During the time Ravel works
part-time for the Company, his salary will be pro-rated for the time
actually worked for the Company. National Instruments reviews salaries
twice a year. You will be eligible for your first merit-based salary
increase April 2001. In the event your salary is increased, your Base
Salary shall be the increased amount.
3. Signing Bonus, Profit Share. In addition, you will receive a $20,000
signing bonus [$10,000 (less taxes and withholding paid at time of hire,
$10,000 (less taxes and withholding paid upon move to Austin)]. You will be
eligible for profit sharing which can be up to 40% of your annual Base
Salary.
4. Stock Options. At the next regularly scheduled meeting of National
Instruments Board of Directors after you begin employment, management will
recommend that you receive an option award to purchase 100,000 shares of
the Company's common stock at its fair market value on the date of grant.
The option grant is subject to the approval of the Board of Directors
Compensation Committee, which approval the Company shall seek in good
faith, and except as otherwise stated herein, the grant is subject to the
terms of the 1994 Incentive Plan, your continued employment with the
Company and the terms and conditions set forth in the award agreement. A
summary of the 1994 Incentive Plan has been included for your review. The
above recommendation for a stock option award and additional monetary
compensation is contingent upon and in consideration for your signing our
Employee Confidentiality Agreement.
5. Other Benefits.
(A) Moving Expenses/ Housing Subsidy. A relocation package will be paid on
your behalf as outlined in Attachment A. You will also be paid a
housing subsidy of $300 per month in years one and two, $200 per month
in year three, and $100 per month in year four. The Company will also
pay the realty fee incurred by you to sell your principle residence in
Oregon, up to a maximum of 7% of the sales price.
(B) Vacation. You will accrue vacation at the rate of 10 hours per month,
and you will be eligible to earn higher levels of vacation consistent
with our vacation schedule.
(C) Benefits. The Company also provides employee medical, dental, life and
disability insurance, and you will be eligible for profit sharing,
participation in the Company's 401(k) retirement plan and Employee
Stock Purchase Plan. A benefit summary has been provided for your
review. You will be entitled to such insurance and other employment
benefits as are available to other executive officers of the Company
under the same terms and conditions applicable to such other executive
officers.
6. Termination. Texas is an "At Will" employment state. Accordingly, your
employment with National Instruments will be "At Will", is for no specific
time period, and can be terminated by you or National Instruments at any
time, with or without cause or advance notice, subject to the severance
obligation, if any, as provided in this Agreement. This "At Will"
employment relationship will remain in effect for the duration of your
employment and can only be modified by an express written contract, signed
by you and an authorized representative of National Instruments.
(A) For Cause/Voluntary Resignation. The Company may terminate this
Agreement and your employment immediately for "Cause" as that term is
defined here. "Cause" means any one of the following: (a) conviction
of a felony; (b) material misappropriation of Company assets, (c)
fraud towards the Company; (d) material breach of the Employee
Confidentiality Agreement; (e) the Employee engages in insubordination
that continues for 30 days after Employee receives written notice from
the Company specifically stating the facts constituting
insubordination, excessive absenteeism not arising from illness,
violation of any state or federal law prohibiting sexual, race, gender
or other harassment of employees or customers; or (f) the Employee
becomes physically or mentally disabled and cannot perform the
essential functions of his position with reasonable accommodation for
a period of 90 days. In the event of termination for Cause or if you
voluntarily resign your position without "Good Reason," as that term
is defined below, the Company will pay you your Base Salary and any
earned bonus and profit share through the date of termination.
(B) Without Cause /For Good Reason. If the Company terminates you without
Cause or if you resign with Good Reason, as that term is defined
below, the Company shall immediately do the following (i) pay you a
lump sum severance equal to one year's then-current Base Salary, and,
(ii) as soon as practicable after receiving documentation, reimburse
you for the reasonable expenses you incur moving you and your family
from Austin back to Portland, Oregon or to such other destination
within the Continental United States as you may specify. In addition,
in the event the termination without Cause or resignation for Good
Reason occurs prior to the third anniversary date of this Agreement;
(a) all outstanding unvested stock options you hold that, by their
terms, would otherwise vest within the twelve (12) months following
the termination date, up to a maximum of thirty-six (36) months total
vesting from the date of employment, shall vest and be fully
exercisable as of the termination date and (b) Company shall change
your status from employee to consultant to the Company for a
continuous period of three years from and after the termination date.
During the consulting period, you shall provide consulting services
equivalent to one week per year, compensated at an hourly rate equal
to twice your applicable Base Salary divided by 2080 hours. On the
termination date, all remaining options, that have not been
accelerated in accordance with this paragraph, that are not yet
exercisable shall become null and void; provided however, that the
portion, if any, of such options that are exercisable as of the
termination date shall continue to be exercisable following the change
in status for the three year period that you are employed as a
consultant by the Company. After the third anniversary date of this
Agreement, the provisions set out in (a) and (b) of this paragraph
shall no longer apply. "Good Reason" shall mean any of the following
occurring without your prior written consent:
(1) A reduction in your Base Salary or annual bonus opportunity or
profit share below the amounts stated in this Agreement,
(2) Removal or reassignment from the position of Vice President
Corporate Development or the material diminishment of your
responsibility or authority;
(3) A requirement that you be based anywhere other than within 25
miles of Austin,
(4) Any material breach of this Agreement by the Company which, if
capable of remedy, is not remedied for a period of thirty (30)
days following written notice by you to the Company, specifically
identifying the nature of the breach.
7. Employment Contingent. This Agreement, and your employment with the
Company, are contingent upon the following:
(A) Successful passing of a pre-employment drug test. The cost of this
test is paid by National Instruments.
(B) Signing of our employee Confidentiality Agreement prior to beginning
employment with National Instruments. A copy has been provided for
your review.
(C) Providing proof of eligibility to work in the United States. You have
been provided with a copy of the Employment Eligibility Form which
list documents which will meet this requirement. These documents must
be provided on your first day of employment.
8. Miscellaneous.
(A) Attorneys Fees. If any action at law, in equity or by arbitration is
taken to enforce or interpret the terms of this Agreement, the
prevailing party shall be entitled to reasonable attorneys' fees,
costs and necessary disbursements in addition to any other relief to
which such party may be entitled, including fees and expenses on
appeal.
(B) Construction. Wherever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity
without invalidating the remainder of such provision or the remaining
provisions of this Agreement.
(C) Waivers. No failure on the part of either party to exercise, and no
delay in exercising, any right or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right
or remedy hereunder preclude any other or further exercise thereof or
the exercise of any other right or remedy granted hereby or by any
related document or by law.
(D) Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the Company and its successors and assigns, and
shall be binding upon Ravel, his administrators, executors, legatees,
and heirs. In that this Agreement is a personal services contract, it
shall not be assigned by Ravel.
(E) Modification. This Agreement may not be and shall not be modified or
amended except by written instrument signed by the parties hereto.
(F) Entire Agreement. This Agreement constitutes the entire agreement and
understanding between the parties hereto in reference to all the
matters herein agreed upon. This Agreement replaces and supersedes all
prior agreements whether written or oral or understandings of the
parties hereto with respect to the subject matter hereof.
(G) Choice of Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas, and venue for any
lawsuit concerning breach and/or enforcement of this Agreement or
relating in any way or manner to this Agreement will lie in Xxxxxx
County, Texas.
(H) Arbitration. I agree that, to the fullest extent allowed by law, any
controversy or claim arising out of or relating to this Agreement
shall be finally settled by binding arbitration administered by the
American Arbitration Association under its National Rules for the
Resolution of Employment Disputes. The arbitration will be conducted
in the city in which I am or was last employed. I understand that I am
waiving my rights to trial by jury, in exchange for arbitration.
Judgment upon any award rendered in an arbitration proceeding may be
entered in any court having jurisdiction thereof. Any controversy or
claim subject to arbitration shall be deemed waived, and shall be
forever barred, if arbitration is not initiated within one (1) year
after the date the controversy or claim first arose, or if statutory
rights are involved, within the time limit established by the
applicable statute of limitations. In any arbitration commenced
pursuant to this paragraph, depositions may be taken and discovery
obtained as provided in the Federal Rules of Civil Procedure, subject
to limitation by the arbitrator to a reasonable amount. Any award by
the arbitrator(s) shall be accompanied by a statement of the factual
and legal bases for the award.
To indicate your acceptance of these terms, please sign and return this
Agreement and retain the attached copy for your records. If you choose to fax
your signed National Instruments Job Offer to us (512-683-8775), please bring
the signed original with you on your first day of work so it may be placed in
your employee file.
NATIONAL INSTRUMENTS CORPORATION: EMPLOYEE:
By: /s/ Xxxxx X. Xxxxxxxx Name (Printed): Xxxxx Xxxxx
Title: President Signature: /s/ Xxxxx Xxxxx
Date: April 18, 2000 Date: April 18, 2000
Attachment A
Reloctation Summary
It is agreed that National Instruments will cover the following relocation
expenses related to the movement of Xxxxx Xxxxx, (Relocatee) and his family from
Portland Oregon to Austin Texas. Listed below is a summary of expenses:
Movement of Household Goods. The Human Resource office will arrange for and NI
will pay directly for, the movement of household goods from the former residence
or temporary storage to the new place of residence. Movement included the
Relocatee's and household members' household effects, furnishings and personal
effects, subject to a maximum of 15,000 pounds. Movement does not include such
things as pick up from two locations, split or partial shipment or delivery, and
access into storage before delivery. Household goods does not normally include
such items as boats (any size), campers, airplanes, frozen foods, livestock,
live plants, or hazardous materials including firewood, lumber and other
building materials. One vehicle may be shipped when driving one or more vehicles
to the new location. Cost incurred for shipment of not included items will be
charged to the Relocatee.
House/Apartment Hunting trip. The Relocate and spouse may be reimbursed for
reasonable expenses incurred during one house/apartment hunting trip including
travel, meals, lodging and car rental. Travel if by air is coach/economy. Auto
travel is reimbursed on a per mile basis at the prevailing IRS stated allowance.
Lodging and meals are reimbursed on an actual basis and original receipts are
required for expenses.
Temporary Living. If the Relocatee and family cannot move immediately into new
quarters, reimbursement may be made for lodging cost incurred at their
destination for maximum of 60 days. Original receipts are required.
Real Estate Sale of Current Home. Eligible Relocatees who are homeowners may be
reimbursed for NORMAL, CUSTOMARY AND REASONABLE home selling and non-recurring
cost including the following:
-normal and customary real estate brokerage commission to a maximum of 7%
(Should you sell your home without a real estate broker, NI will provide a
bonus of 3% of the sales price).
-attorney's fees if required or recommended by law.
-title fees
-mortgage prepayment penalties if they cannot be waived, not to exceed six
(6) months mortgage interest.
-transfer and/or documentary taxes the seller is required to pay.
-inspection and recording fees normally charged to seller.
-other customary fees directly related to the sale, but which have not been
incurred by the choice of the seller, such as escrow fees, title fees,
termite inspection, and tax service fee.
Real Estate Purchase of a New Home. Eligible Relocatees who own a home at the
time of the transfer may receive reimbursement for certain actual and customary
purchaser's settlement expenses when a home is purchased at the new locations
with in six (6) months of the effective transfer date. NI will reimburse
reasonable and customary closing expenses including:
-appraisal fees.
-recording fees.
-notary fees.
-documentary stamps (state, city, county).
-lender's and homeowner's title insurance.
-document preparation fee.
-escrow closing fee.
During Move Travel Reimbursement may be made for mileage (at the per-mile IRS
stated allowance) for up to two (2) vehicles, lodging, and meals. Original
receipts are required for lodging and meals. Mileage is figured as the shortest
highway distance between point of departure and new location,.
Tax Gross-up. It is agreed that National Instruments will cover the additional
taxes which are occurred as the result of the relocation.
Termination - Should an employee voluntarily terminate employment within
eighteen (18) months from the time he/she has relocated, he/she must remit on a
prorated basis all cost relating to the move paid by NI.
Attachment B: Job Description for Xxxxx Xxxxx
Title: Vice President of Corporate Development, National Instruments
Supervisor: CEO & President, National Instruments
Major Roles:
Technical Vision
|X| Match broad technology expertise to NI business strategy.
|X| Define product strategies that match NI's broad-based market strategy
Strategic Goals
|X| Define new market and business opportunities
|X| Work across the organization as a coach to capitalize on these
opportunities
Organization Development
|X| Provide experience, technical expertise and vision to help build and
position NI to achieve long term growth goals.
|X| Help build and expand our current organization and processes to enhance the
development of NI technical and marketing staff
|X| Stimulate organization with creative ideas and out-of-the-box thinking
External Development
|X| Identify and lead external partnership and investment opportunities
Supervision
|X| Hall X. Xxxxxx, (Director of Market Development)
|X| Xxxxx Xxxxxx, (Product and Technology Strategist)
|X| Potential new staff: technology and strategic market experts
