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EXHIBIT 10.23
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into as
of April 11, 2001, by and between Dallas Semiconductor Corporation, a Delaware
corporation (the "Company"), and Xxxx X. Xxxx ("Executive").
1. Employment.
1.1 Engagement of Executive. The Company agrees to employ
Executive as a member of the senior management of the Company and
Executive will be charged with the supervision of such activities of the
Company as delegated by the Board of Directors of the Company (the
"Board," which such terms shall be deemed to also include the board of
directors of Parent (as defined below)), and Executive agrees to accept
such employment, all in accordance with the terms and conditions of this
Agreement.
1.2 Duties and Powers. At all times during the Employment Period
(as defined herein), Executive will serve as a member of the Company's
senior management and will be charged with the supervision and
management of such activities of the Company as delegated by the Board
and will have such responsibilities, titles, duties and authorities, and
will render such services for the Company and its affiliates as the
Board shall from time to time reasonably direct.
1.3 Employment Period. Executive's employment under this
Agreement shall be for a period of one (1) year beginning on the date
hereof (the "Employment Period"). Notwithstanding anything to the
contrary contained herein, the Employment Period is subject to
termination by the mutual written consent of Executive and the Company.
In addition, subject to the provisions of Section 1.4, either party may
terminate this Agreement on thirty (30) days written notice.
1.4 Cash Payment. Subject to Executive's continuous employment
with the Company or its ultimate parent corporation (the "Parent"), or
an affiliate thereof, Executive shall be entitled to receive a cash
payment in the amount of $247,978 on the first anniversary of the date
of this Agreement; provided, however, that, notwithstanding the
foregoing, the Executive shall be immediately entitled to such payment
in the event that the Executive is terminated by the Company, Parent or
any affiliate thereof (i) for any reason (other than Executive's
voluntary termination), (ii) as the result of a Constructive Termination
(as defined below) or (iii) as a result of the Executive's death or
Disability (as defined below). For purposes hereof, "Constructive
Termination" means (A) an adverse change in Executive's responsibilities
or the person to whom Executive directly reports subsequent to the date
of this Agreement; or (B) a decrease in Executive's salary, benefits or
perquisites (other than equity-based awards or grants), other than as a
result of any amendment or termination of any employee and/or executive
benefit plan or arrangement, which amendment or termination is
applicable to all qualifying executives of the Company or the Parent.
For purposes hereof, "Disability" means Executive's inability to
perform, by reason of physical or mental incapacity, Executive's
material duties or obligations to the Company,
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the Parent or an affiliate thereof, as applicable, with or without
reasonable accommodation, for a total period of 21 consecutive days in
any 90-day period, as determined by the board of directors of the Parent
(such determination not to be arbitrary or unreasonable).
2. Compensation and Benefits.
2.1 Salary. In consideration of Executive performing his duties
under this Agreement during the Employment Period, the Company will pay
Executive a base salary at a rate of $208,650 per annum (the "Base
Salary"), payable in accordance with the Company's regular payroll
policy for salaried executives. The Base Salary may be increased (but
not decreased), from time to time during the Employment Period, as
determined by the Board in its sole discretion. If the Employment Period
is terminated pursuant to Section 1.4 above, then the Base Salary for
any partial year will be prorated based on the number of days elapsed in
such year during which services were actually performed by Executive.
2.2 Bonus. At the end of the Employment Period, Executive shall
be eligible to participate in the bonus plan applicable to the Company's
senior executives. The criteria and/or goals for such bonus plan shall
be established by the Board. All bonuses awarded to Executive hereunder
shall be payable in accordance with Company policy.
2.3 Stock Options. Executive shall be eligible to participate in
the stock option plans applicable to the Company's senior executives and
shall receive grants thereunder as may be determined by the Board from
time to time.
2.4 Benefits, Expenses and Pension Plan. During the Employment
Period, the Company agrees to provide to Executive such fringe and other
employee benefits as are generally provided, from time to time, to
senior executives of the Company, including, without limitation,
vacation, health and insurance benefits. The Company shall retain the
right to discontinue or modify any employee benefit program at any time.
The Company will reimburse Executive in accordance with Company policy
for his normal out-of-pocket expenses incurred in the course of
performing his duties hereunder.
3. Noncompetition; Nonsolicitation; Confidentiality.
3.1 Noncompetition; Nonsolicitation. Executive acknowledges and
recognizes the highly competitive nature of the businesses of the
Company and its affiliates and accordingly agrees as follows:
(a) During the Employment Period and, for a period of one
year following the date Executive ceases to be employed by the
Company (the "Restricted Period"), Executive will not, whether on
Executive's own behalf or on behalf of or in conjunction with any
person, company, business entity or other organization
whatsoever, directly or indirectly solicit or assist in
soliciting in competition with the Company, the business of any
client or prospective client:
(i) with whom Executive had personal contact or dealings
on
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behalf of the Company during the one year period preceding
Executive's termination of employment;
(ii) with whom employees reporting to Executive have had
personal contact or dealings on behalf of the Company during
the one year immediately preceding the Executive's
termination of employment; or
(iii) for whom Executive had direct or indirect
responsibility during the one year immediately preceding
Executive's termination of employment.
(b) During the Restricted Period, Executive will not directly
or indirectly:
(i) engage in any business that competes with the
business of the Company or its affiliates (including, without
limitation, businesses which the Company or its affiliates
have specific plans to conduct in the future and as to which
Executive is aware of such planning) in any geographical area
that is within 100 miles of any geographical area where the
Company or its affiliates manufactures, produces, sells,
leases, rents, licenses or otherwise provides its products or
services (a "Competitive Business");
(ii) enter the employ of, or render any services to, any
person or entity (or any division of any person or entity)
who or which engages in a Competitive Business;
(iii) acquire a financial interest in, or otherwise
become actively involved with, any Competitive Business,
directly or indirectly, as an individual, partner,
shareholder, officer, director, principal, agent, trustee or
consultant; or
(iv) interfere with, or attempt to interfere with,
business relationships (whether formed before, on or after
the date of this Agreement) between the Company or any of its
affiliates and customers, clients, suppliers of the Company
or its affiliates.
Notwithstanding anything to the contrary in this
Agreement, Executive may, directly or indirectly own, solely
as an investment, securities of any person engaged in the
business of the Company or its affiliates which are publicly
traded on a national or regional stock exchange or on the
over-the-counter market if Executive (x) is not a controlling
person of, or a member of a group which controls, such person
and (y) does not, directly or indirectly, own 5% or more of
any class of securities of such person.
(c) During the Restricted Period, Executive will not, whether
on Executive's own behalf or on behalf of, or in conjunction
with, any person, company, business entity or other organization
whatsoever, directly or indirectly:
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(i) solicit or encourage any employee of the Company or
its affiliates to leave the employment of the Company or its
affiliates; or
(ii) hire any such employee who was employed by the
Company or its affiliates as of the date of Executive's
termination of employment with the Company or who left the
employment of the Company or its affiliates coincident with,
or within six months prior to or one year after, the
termination of Executive's employment with the Company.
(d) During the Restricted Period, Executive will not,
directly or indirectly, solicit or encourage to cease to work
with the Company or its affiliates any consultant then under
contract with the Company or its affiliates.
It is expressly understood and agreed that although Executive
and the Company consider the restrictions contained in this
Section 3.1 to be reasonable, if a final judicial determination
is made by a court of competent jurisdiction that the time or
territory or any other restriction contained in this Agreement is
an unenforceable restriction against Executive, the provisions of
this Agreement shall not be rendered void but shall be deemed
amended to apply as to such maximum time and territory and to
such maximum extent as such court may judicially determine or
indicate to be enforceable. Alternatively, if any court of
competent jurisdiction finds that any restriction contained in
this Agreement is unenforceable, and such restriction cannot be
amended so as to make it enforceable, such finding shall not
affect the enforceability of any of the other restrictions
contained herein.
3.2 Confidentiality. Executive will not at any time (whether
during or after Executive's employment with the Company) disclose,
retain, or use for Executive's own benefit, purposes or account or the
benefit, purposes or account of any other person, firm, partnership,
joint venture, association, corporation or other business organization,
entity or enterprise other than the Company and any of its subsidiaries
or affiliates, any trade secrets, know-how, software developments,
inventions, formulae, technology, designs and drawings or any Company
property or confidential information relating to research, operations,
finances, current and proposed products and services, vendors,
customers, advertising, costs, marketing, trading, investment, sales
activities, promotion, manufacturing processes, or the business and
affairs of the Company generally, or of any subsidiary or affiliate of
the Company ("Confidential Information") without the written
authorization of the Board; provided, however, that the foregoing shall
not apply to information that is not unique to the Company or that is
generally known to the industry or the public, other than as a result of
Executive's breach of this covenant or the wrongful acts of others who
were under confidentiality obligations as to the item or items involved.
Except as required by law, Executive will not disclose to anyone, other
than his immediate family and legal or financial advisors, the existence
or contents of this Agreement. Executive agrees that, upon termination
of Executive's employment with the Company for any reason, he will
return to the Company immediately all memoranda, books, papers, plans,
information, letters and other data, and all copies thereof or
therefrom, in any way relating to the business of the
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Company, its affiliates and subsidiaries, except that he may retain only
those portions of personal notes, notebooks and diaries that do not
contain Confidential Information of the type described in the preceding
sentence. Executive further agrees that he will not retain or use for
Executive's own benefit, purposes or account or the benefit, purposes or
account of any other person, firm, partnership, joint venture,
association, corporation or other business designation, entity or
enterprise, other than the Company and any of its subsidiaries or
affiliates, at any time any trade names, trademark, service xxxx, other
proprietary business designation, patent, or other intellectual property
used or owned in connection with the business of the Company or its
affiliates.
4. Miscellaneous.
4.1 Assignment. No party hereto may assign or delegate any of its
rights or obligations hereunder without the prior written consent of the
other party hereto; provided, however, that the Company shall have the
right to assign all or any part of its rights and obligations under this
Agreement (a) to any affiliate of the Company to which the business of
the Company is assigned at any time, any subsidiary or affiliate of the
Company or any surviving entity following any merger or consolidation of
any of those entities with any entity other than the Company, or (b) in
connection with the sale of the Company. Except as otherwise expressly
provided herein, all covenants and agreements contained in this
Agreement by or on behalf of any of the parties hereto shall bind and
inure to the benefit of the respective legal representatives, heirs,
successors and assigns of the parties hereto whether so expressed or
not.
4.2 Entire Agreement. Except as otherwise expressly set forth
herein, this Agreement and all other agreements entered into by the
parties hereto on the date hereof set forth the entire understanding of
the parties, and supersede and preempt all prior oral or written
understandings and agreements with respect to the subject matter hereof.
4.3 Severability. Whenever 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 is
held to 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 this Agreement.
4.4 Amendment; Modification. No amendment or modification of this
Agreement and no waiver by any party of the breach of any covenant
contained herein shall be binding unless executed in writing by the
party against whom enforcement of such amendment, modification or waiver
is sought. No waiver shall be deemed a continuing waiver or a waiver of
any subsequent breach or default, either of a similar or different
nature, unless expressly so stated in writing.
4.5 Governing Law. This Agreement shall be construed and enforced
in accordance with, and all questions concerning the construction,
validity, interpretation and performance of this Agreement shall be
governed by, the laws of the State of Texas, without giving effect to
provisions thereof regarding conflict of laws.
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4.6 Notices. All notices, demands or other communications to be
given or delivered hereunder or by reason of the provisions of this
Agreement shall be in writing and shall be deemed to have been properly
served if (a) delivered personally, (b) delivered by a recognized
overnight courier service, (c) sent by certified or registered mail,
return receipt requested and first class postage prepaid, or (d) sent by
facsimile transmission. Such notices, demands and other communications
shall be sent to the addresses indicated below:
If to Executive:
Xxxx X. Xxxx
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
with a copy to:
Jenkens & Xxxxxxxxx, P.C.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
If to the Company:
Dallas Semiconductor Corporation
0000 Xxxxx Xxxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Attn: General Counsel
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with a copy to:
Jenkens & Xxxxxxxxx, P.C.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: M. D. Sampels, Esq.
or to such other address or to the attention of such other
person as the recipient party has specified by prior written
notice to the sending party. Date of service of such notice shall
be (i) the date such notice is personally delivered or sent by
facsimile transmission (with issuance by the transmitting machine
of a confirmation of successful transmission), (ii) three
business days after the date of mailing if sent by certified or
registered mail or, (iii) one business day after date of delivery
to the overnight courier if sent by overnight courier.
4.7 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same Agreement.
4.8 Descriptive Headings; Interpretation. The descriptive
headings in this Agreement are inserted for convenience of reference
only and are not intended to be part of or to affect the meaning or
interpretation of this Agreement. The use of the word "including" in
this Agreement shall be by way of example rather than by limitation.
4.9 No Strict Construction. The language used in this Agreement
will be deemed to be the language chosen by the parties hereto to
express their mutual interest, and no rule of strict construction will
be applied against any party hereto.
4.10 Specific Performance. Executive acknowledges and agrees that
the Company's remedies at law for a breach or threatened breach of any
of the provisions of Section 3.1 or Section 3.2 would be inadequate and
the Company would suffer irreparable damages as a result of such breach
or threatened breach. In recognition of this fact, Executive agrees
that, in the event of such a breach or threatened breach, in addition to
any remedies at law, the Company, without posting any bond, shall be
entitled to cease making any payments or providing any benefit otherwise
required by this Agreement and obtain equitable relief in the form of
specific performance, temporary restraining order, temporary or
permanent injunction or any other equitable remedy which may then be
available.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
COMPANY:
DALLAS SEMICONDUCTOR CORPORATION
By: /s/ Xxxx X. Xxx
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Name: Xxxx X. Xxx
Title: President
EXECUTIVE:
/s/ Xxxx X. Xxxx
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Xxxx X. Xxxx
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