Effective
______________ 20 (“Effective Date”), ___________, an individual
(“Advisor”), and ___________ Corporation, a ___________ (“Company”), agree as
follows:
Whereas,
until the Effective Date of this Agreement, Advisor was an employee of Company
and served as its Chief Executive Officer and member of its Board of Directors;
and
Whereas,
Company and Advisor have agreed that Advisor will resign as an employee and
officer, and as a member of the Board of Directors, on the Effective Date
pursuant to the terms and conditions of a separation agreement (the
“Separation Agreement”) and
will transition immediately into the role of “Senior Advisor” in accordance
with the terms of this Agreement;
Wherefore, Advisor and
Company agree as follows:
1. Services and Payment.
Advisor agrees to undertake and complete the Services, and abide by the terms,
set forth in Exhibit A in accordance with
and on the schedule specified in Exhibit A.
As the only consideration due Advisor regarding the subject matter of this
agreement (“Agreement”), Company will pay Advisor in accordance with Exhibit A.
2. Ownership Rights;
Proprietary Information; Publicity.
a.
Company shall own all right,
title and interest (including patent rights, copyrights, trade secret rights,
mask work rights, trademark rights and all other intellectual and industrial
property rights of any sort throughout the world) relating to any and all
inventions (whether or not patentable), works of authorship, mask works,
designations, designs, know-how, ideas and information made or conceived or
reduced to practice, in whole or in part, by Advisor during the term of this
Agreement that relate to the subject matter of, or arise out of, the Services
or any Proprietary Information (as defined below) (collectively,
“Inventions”) and Advisor
will promptly disclose and provide all Inventions to Company. Advisor hereby
makes all assignments necessary to accomplish the foregoing ownership. Advisor
shall further assist Company, at Company’s expense, to further evidence, record
and perfect such assignments, and to perfect, obtain, maintain, enforce, and
defend any rights assigned. Advisor hereby irrevocably designates and appoints
Company as its agent and attorney-in-fact, coupled with an interest, to act for
and on Advisor’s behalf to execute and file any document and to do all other
lawfully permitted acts to further the foregoing with the same legal force and
effect as if executed by Advisor.
b.
Advisor agrees that all
Inventions and all other business, technical and
financial information (including,
without limitation, the identity of and information relating to customers or
employees) Advisor develops, learns or obtains in connection with Services or
that are received by or for Company in confidence, constitute “Proprietary
Information.” Advisor will hold in confidence and not disclose or, except in
performing the Services, use any Proprietary Information. However, Advisor
shall not be obligated under this paragraph with
respect to information Advisor can document is
or becomes readily publicly available without restriction through no fault of
Advisor. Upon termination and as otherwise requested by Company, Advisor will
promptly return to Company all items and copies containing or embodying
Proprietary Information, except that Advisor may keep its personal copies of
its compensation records and this Agreement. Advisor also recognizes and agrees
that Advisor has no expectation of privacy with respect to Company’s telecommunications,
networking or information processing systems (including, without limitation,
stored computer files, email messages and voice messages) and that Advisor’s
activity, and any files or messages, on or using any of those systems may be
monitored at any time without notice.
c.
To the extent allowed by
law, Section 2.a and any license to Company hereunder includes all rights of
paternity, integrity, disclosure and withdrawal and any other rights that may
be known as or referred to as “moral rights,” “artist’s rights,” “droit moral,”
or the like. To the extent any of the foregoing is ineffective under applicable
law, Advisor hereby provides any and all ratifications and consents necessary
to accomplish the purposes of the foregoing to the extent possible. Advisor
will confirm any such ratifications and consents from time to time as requested
by Company. If any other person provides any Services, Advisor will obtain the
foregoing ratifications, consents and authorizations from such person for
Company’s exclusive benefit.
d.
If any part of the Services
or Inventions is based on, incorporates, or is an improvement or derivative of,
or cannot be reasonably and fully made, used, reproduced, distributed and
otherwise exploited without using or violating technology or intellectual
property rights owned or licensed by Advisor and not assigned hereunder,
Advisor hereby grants Company and its successors a perpetual, irrevocable,
worldwide royalty-free, non-exclusive, sublicensable right and license to
exploit and exercise all such technology and intellectual property rights in
support of Company’s exercise or exploitation of the Services, Inventions,
other work performed hereunder, or any assigned rights (including any
modifications, improvements and derivatives of any of them).
3. Warranty.
Advisor warrants that: (i) the Services will be performed in a
professional
and workmanlike manner and that none of such Services nor any part of this
Agreement is or will be inconsistent with any obligation Advisor may have to
others; (ii) all work under this Agreement shall be Advisor’s original work and
none of the Services or Inventions or any development, use, production,
distribution or exploitation thereof will infringe, misappropriate or violate
any intellectual property or other right of any person or entity (including,
without limitation, Advisor); and, (iii) Advisor has the full right to allow
him to provide the Company with the assignments and rights provided for herein.
4. Former or Conflicting
Obligations. Advisor represents and warrants to the
Company that Advisor will not disclose to the Company, or use, or induce the
Company to use, any proprietary information or trade secrets of others. Advisor
represents that Advisor’s performance of services under this Agreement will not
breach any agreement not to compete with others or any agreement to keep in
confidence proprietary information acquired by Advisor in confidence or in
trust prior to the Effective Date. Advisor certifies that Advisor has no
outstanding agreement or obligation that is in conflict with any of the
provisions of this Agreement, or that would preclude Advisor from complying
with the provisions hereof.
5. Termination.
a.
This Agreement will
automatically terminate on the last day of the term specified on Exhibit A.
Prior to such date, either party may terminate this Agreement with or without
cause upon notice to the other party. Upon termination, the Company shall pay
Advisor all unpaid, undisputed amounts due for the Services completed prior to
such termination within ten (10) business days of the date of termination. In
addition, if this Agreement is terminated by the Company other than by reason
of a material breach by Advisor of the terms of this Agreement or the
Separation Agreement, then Advisor shall be entitled to the remedies specifically
identified on Exhibit A.
b.
Sections 2 through 9 of this
Agreement and any remedies for breach of this Agreement shall survive any
termination or expiration.
6. Independent Contractor; No
Employee Benefits. Advisor is an independent
contractor (not an employee or other agent) solely responsible for the manner
and hours in which Services are performed, is solely responsible for all taxes,
withholdings, and other statutory, regulatory or contractual obligations of any
sort (including, but not limited to, those relating to workers’ compensation,
disability insurance, Social Security, unemployment compensation coverage, the
Fair Labor Standards Act, income taxes, etc.), and is not entitled to
participate in any employee benefit plans, fringe benefit programs, group
insurance arrangements or similar programs, subject to the exceptions
explicitly set forth in Exhibit A.
7. Assignment.
This Agreement and the services contemplated hereunder are personal to Advisor
and Advisor shall not have the right or ability to assign, transfer, or
subcontract any obligations under this Agreement without the written consent of
Company. Any attempt to do so shall be void. The Company may assign its rights
and obligations under this agreement in whole or part to any successor to all
or substantially all of the business and/or assets of the Company.
8. Notice.
Notices and all other communications contemplated by this Agreement shall be in
writing and shall be deemed to have been duly given when personally delivered
or when mailed & registered or certified mail, return receipt requested and
postage prepaid. In the case of Advisor, mailed notices shall be addressed to
him at the home address which he most recently communicated to the Company in
writing. In the case of the Company, mailed notices shall be addressed to its
corporate headquarters, and all notices shall be directed to the attention of
its Secretary.
9. Miscellaneous.
Any breach of Section 2 or 3 will cause irreparable harm to the Company for
which damages would not be an adequate remedy, and therefore the Company will
be entitled to injunctive relief with respect thereto in addition to any other
remedies. The failure of either party to enforce its rights under this
Agreement at any time for any period shall not be construed as a waiver of such
rights. This Agreement, together with the Separation Agreement, constitutes the
entire agreement between Advisor and the Company regarding the subject matter
of this Agreement and renders null and void all prior and contemporaneous
written or oral agreements between Advisor and the Company regarding the
subject matter of this Agreement. No changes or modifications or waivers to
this Agreement will be effective unless in writing and signed by both parties.
In the event that any provision of this Agreement shall be determined to be
illegal or unenforceable, that provision will be limited or eliminated to the
minimum extent necessary so that this Agreement shall otherwise remain in full
force and effect and enforceable. This Agreement shall be governed by and
construed in accordance with the laws of the State of California without regard
to the conflicts of laws provisions thereof. Headings herein are for
convenience of reference only and shall in no way affect interpretation of the
Agreement.
ADVISOR
___________
CORPORATION
/s/
___________ By
___________
Name:
Title:
Address:
EXHIBIT
A
1.
Term: From the Effective
Date through April 7, 2013.
2.
Reporting to the Chief
Executive Officer (the “CEO”).
3.
The only consideration due
Advisor for the Services (as defined below) during the Term shall be:
a. The
payment of a $12,500 per month fee, payable at the end of each month
during the Term.
b.
The continued vesting of (a)
one-third (1/3) of the restricted stock units and one-third (1/3) of the stock
options granted to Advisor on April 7, 2011, and (b) 34,804 of the stock
options (non-qualified) and 3,122 of the stock options (incentive stock options)
granted to Advisor on April 30, 2010
(collectively, the
“Continuing Equity”), subject to Advisor’s continued Services pursuant to this
Agreement during the Term; provided, however, that notwithstanding any
agreement to the contrary, the Continuing Equity
shall not be subject to
accelerated vesting upon or in connection with a change in control of the
Company or otherwise, except that (i) if Company terminates this Agreement
other than by reason of a material breach by Advisor of the terms of this
Agreement or the Separation Agreement, the Continuing Equity shall immediately
vest, subject to Advisor’s execution and non-revocation of a general release of
claims in a form provided by the Company, and (ii) as provided in subsection c
immediately below.
Advisor expressly
acknowledges that the balance of the restricted stock units and stock options
granted to Advisor on April 7, 2011 and April 30, 2010, and the unvested
portion of any other equity compensation awards, other than the Continuing
Equity, terminate on the Effective Date, and shall never become vested,
notwithstanding Advisor’s continued Service pursuant to this Agreement or
otherwise. The parties also acknowledge that
Advisor’s stock options
which have vested on or prior to the Effective Date, or which vest pursuant to
this Agreement, shall remain exercisable during Advisor’s continued Service
pursuant to this Agreement, and thereafter, in accordance with the terms of the
applicable stock option agreements.
c.
If the Company is subject to
a Change of Control (as defined in Advisor’s prior Change of Control Severance
Agreement with the Company dated
June 8, 2010, which, for the avoidance of
doubt, terminated on the Effective Date) during the Term, and the Company or
its successor terminates this Agreement without Cause
(as defined below), the
Continuing Equity shall immediately vest. For this purpose, “Cause” means: (i)
Advisor’s commission of a felony, an act involving moral turpitude, or an act
constituting common law fraud, which has a material adverse effect on the
business or affairs of the Company or its affiliates or stockholders; or (ii)
Advisor’s intentional breach of
Company
confidential information obligations which has an adverse effect on the Company or its affiliates or
stockholders; provided that for these purposes, no act or failure to act shall
be considered “intentional” unless it is done, or omitted to be done, in bad
faith without a reasonable belief that the action or omission is in the best
interests of the Company. For the avoidance of doubt, a material breach of this
Agreement shall not be considered “Cause” unless specifically covered by the foregoing
definition.
d.
Continued coverage under the
Company’s health plan or, if not permitted under the terms of the plan, and if
Advisor elects to continue group health insurance coverage the payment by the
Company of the monthly premium
for him and, if applicable, his dependents
until the earliest of (a) the expiration of the Term, (b) the expiration of his
continuation coverage or
(c) the first day of
Advisor’s eligibility to participate in a comparable group health plan
maintained by a subsequent employer.
4.
Expenses, including for
pre-approved travel, will be reimbursed by the
Company in accordance with
the Company’s then-current expense reimbursement policy.
5.
“Services” means work
conducted by Advisor at the direct request of the
Company’s CEO and
consultation with the lead director/chairman of the Board of Directors as
requested. Initial Services during the first few weeks of the Term shall
include transition of business details and travel to Korea to meet with
customers. Ongoing Services shall include advice with regard to customer
relationships with Samsung, Hynix and Japanese customers. After the first month
of the Term, Advisor is expected to be available for phone calls on average of
up to two hours per week in the aggregate. Consultation with the lead
director/chairman, if requested, is not expected to exceed two hours per week
on average. The Company shall provide reasonable advance notice of the Services
to be requested to accommodate Advisor’s schedule.
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