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EXHIBIT 10.41
[COVER PAGE]
Letter Agreement between the Registrant and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., dated
May 5, 1997, and associated addendum dated May 13, 1997.
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EXHIBIT 10.41
COMPENSATION TERM SHEET
▇▇▇▇ ▇▇▇▇▇▇▇
This offer sets forth the terms of our complete agreement and supersedes
all prior communications and agreements, oral or written, concerning your
employment. This agreement, upon mutual execution, will be binding upon you and
▇▇▇▇ Technology, Inc. ("▇▇▇▇") until it is superseded by a more complete
Employment Agreement (the "EA").
EMPLOYMENT AGREEMENT: Within six weeks of your date of hire the EA will be
prepared for signing by ▇▇▇▇ and you. The term of the EA will be approximately
four years, ending in the year 2001. The terms and conditions from this
Compensation Term Sheet will be the basis of the EA. There will also be a few
other items common to such agreements.
POSITION: President, Chief Executive Officer, and Member of the ▇▇▇▇ Board of
Directors, and continuing Board membership subject to shareholder election.
Excluding unforeseen events such as mental or physical health problems, the
intent will be to retain you as the President and CEO. The Board will retain the
right to delegate certain responsibilities to other executive officers.
DIRECT COMPENSATION: $13,460 payable biweekly (approximately
$350,000 per year) with an annual review for merit purposes.
BONUS: A target bonus equal to 50% of direct compensation above based on meeting
preassigned goals and objectives as set by the Board (i.e., meet-the-plan types
of goals). This bonus has a cap of 100% of your direct compensation based on
exceeding goals (the quantitative plan) by 50% and/or tied directly to stock
value price. However, no bonus is payable unless a threshold value equal to 75%
of plan is achieved. (Obviously, the Board could in its discretion award an
extraordinary bonus if the minimums aren't met but we believe that an excellent
effort was made).
EQUITY: We will recommend that the following stock options will be offered to
you under the Company's Employee Stock Option and Restricted Stock Purchase Plan
2.0. The ▇▇▇▇▇ ▇▇▇▇▇ for the options will be based on the ▇▇▇▇ stock price of
the first day of your employment. These grants are subject to the approval of
the ▇▇▇▇ Board of Directors and its shareholders. You may want private tax
advice on accepting restricted stock or opting for specific wording on how
vesting occurs.
a. RESTRICTED STOCK: ▇▇▇▇ will grant 100,000 shares of restricted ▇▇▇▇
stock (at a purchase price of $0.05 per share) - or, if you prefer,
non-qualified stock options - which will vest 50% on 4/1/98 and 50% on 4/1/99
assuming your hire date is in this quarter.
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b. NON-QUALIFIED STOCK OPTIONS: ▇▇▇▇ will grant options for 400,000
shares of ▇▇▇▇ common stock, 100,000 of these options will vest immediately and
the remaining 300,000 options will vest monthly (6,250 per month) over the next
four (4) years with a ten (10) year limit to exercise.
c. PERFORMANCE SHARES: ▇▇▇▇ will grant 100,000 shares of restricted ▇▇▇▇
stock (at a purchase price of $0.05 per share) - or, if you prefer,
non-qualified stock options - which will vest 50% when, for a period of ten (10)
consecutive trading days, the average closing price ("FMV") of ▇▇▇▇ shares
exceeds the referenced stock price on your hire date by $5 and another 50% when
the FMV exceeds the referenced stock price at hire date plus $10 per share.
RETIREMENT: ▇▇▇▇ will fund a deferred annuity designed to replace your current
SFA SERP plan which is targeted to yield approximately $150,000 per year at age
60. The above is a pre-tax number. We will work with ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Co. to put
such a plan in place and then we will begin funding. Premiums will be paid each
quarter, as long as you are an employee, until the annuity is fully funded.
TRAVEL, MOVING AND LIVING EXPENSE: ▇▇▇▇ will reimburse you for direct expenses,
up to a maximum outlay of $100,000 in connection with your relocation to Austin.
This also includes expenses related to the sale and purchase of your primary
residence.
AUTO ALLOWANCE: The allowance will be $1,000 per month with no tax gross up.
TERMINATION FOR CAUSE: There will be a definition of "cause" in the EA. It will
be restricted to actions or events where you have responsibility and
accountability. It will allow time for you to be properly alerted and given fair
opportunity to explain or correct the stated cause.
TERMINATION WITHOUT CAUSE: If your employment is terminated without cause during
the term of the EA, ▇▇▇▇ will continue to pay your biweekly direct compensation
and to fund insurance and medical benefits for a period of 24 months provided
you execute and observe hold-harmless and reasonable non-compete agreements.
There will be no offsets for other earnings. Stock options, excluding the
options or shares in EQUITY: c) PERFORMANCE SHARES above, will continue to vest
for the twenty-four (24) month period.
INSURANCE: ▇▇▇▇ will replace your current life insurance policy based on 3X
annual salary and bonus. ▇▇▇▇ may choose to structure this program as a SPLIT
insurance package.
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BENEFITS: You will be eligible for the standard ▇▇▇▇ vacation accrual, holiday
schedule and benefits program. You will be eligible for five (5) weeks of
vacation each year, prorated for 1997 from date of hire.
CHANGE OF CONTROL: In the event of a Change of Control of the Company, as
defined in Attachment A, it is the intention and expectation that your remaining
unvested stock options, excluding the options or shares in EQUITY; c)
PERFORMANCE SHARES above, shall vest in full. The wording of Attachment A will
appear in the agreement you will receive after final approval of the grants.
REPLACEMENT BONUS: Within thirty days of your hire date, ▇▇▇▇ will pay you
$130,000 designed to offset the amount you forgo when leaving SFA.
OTHER PROVISIONS: The more complete EA anticipated by this
agreement will include provisions for arbitration of any
disputes between the parties.
▇▇▇▇ Technology, Inc. ACCEPTED BY:
By: /s/ ▇▇▇▇ ▇. MAY /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇ ▇. May ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President, Chairman & CEO
5/14/97
Subject to the
Addendum
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ATTACHMENT A
3.1.4. In the event of a Change of Control of the Company (as defined
below) or the sale of all or substantially all of the Company's assets, this
Option shall vest in full immediately, notwithstanding the foregoing provisions
of this Section 3. A "Change of Control of the Company" will be deemed to have
occurred if (a) there has been a change in the identity of more than one half of
members the Board of Directors over any six-month period (excluding any changes
in Board members which are the result of one or more redesignations by Fujitsu
Limited, a Japanese corporation or Sun Microsystems, Inc., a Delaware
corporation, with respect to the individuals which represent them on the Board),
or (b) the Company within any twelve-month period ceases to own more than one
half of its gross assets (measured at the commencement of such period) by virtue
of one or more bulk transfers of its assets (it being understood that sales or
licensing of inventory in the normal course of the Company's business shall not
constitute a "bulk transfer" for this purpose).
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▇▇▇▇ TECHNOLOGY, INC.
May 13, 1997
▇▇▇▇ ▇▇▇▇▇▇▇
Dear ▇▇▇▇:
The following information was prepared by ▇▇ ▇▇▇▇▇▇▇▇ and is to be used as an
addendum to the signed offer letter from ▇▇▇▇ Technology Inc. that I sent to you
on May 5, 1997. Ed has included in this addendum his response to you on the
issues the two of you have discussed since May 5th.
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Addendum to the offer letter to ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
From ▇▇▇▇ Technology, Inc.
Dated May 5, 1997
Here is my addendum to your addendum. I do need to clarify a few points and I
then think that we are there!
I have had some research done but, as you know, tax-based compensation elements
get very complex and will take some time (i.e., weeks) to iron out to our joint
satisfaction. I will refer you to ▇▇▇ ▇▇▇▇▇▇▇▇▇ of Irell and ▇▇▇▇▇▇▇ (310)
203-7505 who is doing the stock option work.
I will refer back to your original letter and subsequent e-mail:
1. Position - We have agreed that there is no Fujitsu guarantee.
2. Bonus - We have agreed to percentages for FY98 to be mutually
reset thereafter.
3. Equity -
(a) You now understand that the number of shares must be
authorized by the shareholders and cannot be
pre-guaranteed. (Shareholder meeting is scheduled for
August 12, 1997).
(b) I will confirm and clarify that the two 100,000 share
grants referenced in (a) and (c) of the offer letter can
be designated by you up front as either restricted or
non-qualified options and are both at $0.05 per share
with the same vesting schedule. NOTE: Our counsel
believes you are better off with restricted shares as
you can defer tax payments until vesting with a section
83b election or pay the taxes up front at presumably the
lowest spread and start the capital gains period. Again
it is your decision. In either election, ▇▇▇▇ takes an
expense P&L hit up front, we believe.
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(c) I committed to provide the flexibility of trading stock
for the payment of withholding taxes given it was
already in the plan and, if not, to consider the
inclusion in a modification to the plan in the future,
given the company's cash availability. I may have missed
a subtlety here in that my reference to this provision
was "not uncommon" as it relates to owned or vested
stock. I did not intend that this feature be to, in
effect, accelerate vesting of your option position. If
that was your request, I apologize for my
misunderstanding. Again, any provision is open to the
Human Resources Committee for future inclusion, but
accelerating vesting was not my intent.
(d) S-8 Registration - I reiterate my comment to provide
this feature given no excessive cost to the company. My
preliminary research ranged from "small incremental"
expense to "excessive" expense.
4. Termination Without Cause - We have agreed that the performance
shares will not be accelerated. You proposed a new consideration
that, following termination without cause, if the stock price
was $7.50 above the price on your hire date, that we continue to
fund your deferred annuity for twenty four months minimum from
your hire date. If that is the last negotiation/concession point
I will agree.
5. Insurance - We have agreed to replace the current SFA "split
dollar plan". We will provide "other flexibility" given no
substantial excess cost. We will work with the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Company to select the most practical plan for you and ▇▇▇▇.
6. Benefits - We have agreed on four weeks vacation in 1997.
According to our benefits manager, if there is a pre-existing
medical condition, there is an option that will provide
coverage.
7. Change of Control - We agreed to study your request and
recommend approval of changes to the plan if deemed reasonable.
The above would include terms as well as provisions and must be
approved by the shareholders. I might add that I have
subsequently been made aware of "golden parachute" issues that
adversely affect you and the company during a change of control
and fully protecting you (e.g., tax gross up) would not be
deemed reasonable, in my view.
8. Other -
(a) Agreed that you won't be transferred without your
consent.
(b) D&O and indemnity will be provided.
(c) Annuity Funding - Agreed to double fund the first
quarterly payment.
(d) No Fujitsu guarantee.
(e) Death Benefit Vesting - If it is already in the plan,
fine. If not the provision will be considered later.
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Please sign the offer letter and this letter and we will have a binding
agreement. I look forward to seeing you on May 27th.
Please note that the offer is extended to be valid through May 16, 1997, and the
start date is May 27, 1997.
▇▇▇▇ Technology, Inc. Accepted By:
By: /s/ ▇▇▇▇ ▇. May /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇ ▇. MAY ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President, Chairman & CEO
5/14/97
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