Exhibit 10.23
[ZiLOG Letterhead]
October 21, 2002
Xxxxx Xxxxxxx
00 Xxxxxxxxxx Xxxxx
Xxxx Xxxx Xxx, XX 00000
Re: Resignation and Consulting Agreement
Dear Xxxxx:
This letter agreement (this "Letter Agreement") is intended to memorialize
our recent discussion concerning your resignation for good reason (as
defined in Section 4.1(ii) of the Employment Agreement (the "Employment
Agreement") dated as of April 9, 2002) and the consulting services to be
provided by you to ZiLOG, Inc. ("ZiLOG") and the terms and conditions
thereof, which are set forth below.
Resignation
-----------
Effective November 1, 2002 (the "Resignation Date"), you will
resign your position as Executive Vice President of ZiLOG.
Consulting Services
-------------------
(a) Commencing immediately after the Resignation Date, you will
consult full time until December 31, 2002. During this period, you will
perform consulting services for ZiLOG principally including, transitioning
your current responsibilities to Xxxxx Xxxxxxx, or as otherwise requested
by the CEO or the President (the "FT Consulting Services").
(b) As compensation for the FT Consulting Services, you will be
paid $13,461.54 per two week pay cycle. You will be paid on XxXXX's regular
pay dates. In addition, ZiLOG will provide at its cost the same medical
benefits as you currently have through Cobra. In lieu of any of other
benefits, including vacation accrual and long-term disability, you will get
paid fully though the November and December shutdowns. You will also be
reimbursed for all actual, reasonable out-of-pocket expenses necessary in
connection with the FT Consulting Services in a timely manner. You will be
compensated in accordance with this subsection (b) whether or not ZiLOG
requests you to perform any consulting services.
(c) After December 31, 2002, you will be available to provide
additional consulting services from time to time as reasonably acceptable
to you and ZiLOG at a rate to be agreed upon at the time.
(d) Until December 31, 2002 you will continue to work at ZiLOG's
San Xxxx office or the Nampa office, or such other location, depending on
what you are working. Thereafter, as an independent contractor, you may
work at ZiLOG's offices or such other location, as mutually determined
based on the requirements of the specific deliverables, roles and tasks
agreed to by the parties. If so engaged, ZiLOG shall provide you with an
office and office supplies as reasonably requested by you.
Stock and Options
-----------------
(a) Upon the Resignation Date:
(i) you shall retain ownership of 141,500 shares of the
283,000 shares of restricted stock previously granted to you (the
"Retained Shares") and ZiLOG hereby waives its right to repurchase
such Retained Shares which it would otherwise have the right to
repurchase pursuant to Section 13(d) of the Plan;
(ii) ZiLOG shall repurchase the 141,500 of unvested
restricted stock for a purchase price equal to one-half of the
outstanding balance (including accrued but unpaid interest) of the
loan made pursuant to that loan agreement dated June 14, 2002 (the
"Loan Agreement")
(iii) you will forfeit all 90,000 options that you were
previously granted (whether vested or unvested); and
(iv) you will pre-pay one half of the outstanding balance
under the Loan Agreement (including accrued but unpaid interest.)
(b) The Loan Agreement between you and ZiLOG shall not be altered
by your partial prepayment.
Severance
---------
(a) In full satisfaction of all severance obligations to you,
including the obligations under the Employment Agreement, ZiLOG shall pay
to you, no later than 30 days after December 31, 2002, (a) a lump sum of
$350,000 (less any required withholdings), (b) the incentive bonus (in
accordance with Section 2.2 of the Employment Agreement), (c) any accrued
but untaken vacation and floating holidays and (d) any expense
reimbursements due but not yet paid.
(b) ZiLOG shall continue to provide to you at its cost full
medical benefits through the earlier of (a) 12 months from January 1, 2002
and (b) the date you become eligible for coverage under another employer's
medical benefits.
General Release
---------------
As a condition to payment of the severance, you will sign ZiLOG's
standard General Release no later than the Resignation Date.
Employment Agreement
--------------------
You and XxXXX agree that this Letter Agreement is intended to
supercede all prior correspondence and proposals and all prior promises,
representations, undertakings, arrangements and agreements regarding your
severance and consulting services, including the Employment Agreement.
Non-Solicitation.
----------------
For eighteen (18) months immediately following the Resignation
Date, you shall not, without first obtaining the prior written approval of
ZiLOG, directly or indirectly solicit, induce, persuade or entice, or
attempt to do so, or otherwise cause, or attempt to cause (i) any employee
or independent contractor of ZiLOG to terminate his or her employment or
contracting relationship in order to become an employee, or independent
contractor to or for any person or entity, or (ii) any actual customer at
the time of employment termination to discontinue or otherwise alter its
relationship with XxXXX.
Confidentiality.
---------------
You acknowledge that ZiLOG will be required to file this Letter
Agreement with the Securities and Exchange Commission.
General Provisions
------------------
(a) Notices. Any notices provided hereunder must be in writing and
shall be deemed effective upon the earlier of personal delivery (including,
personal delivery by facsimile transmission), delivery by express delivery
service (e.g. Federal Express), or the third day after mailing by first
class mail, to ZiLOG at its primary office location and to you at your
address as listed on the ZiLOG payroll (which address may be changed by
written notice).
(b) Severability. Whenever possible, each provision of this Letter
Agreement will be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Letter Agreement is held
to be invalid, illegal or unenforceable in any respect under any applicable
law or rule in any jurisdiction, such invalidity, illegality or
unenforceability will not affect any other provision or any other
jurisdiction, but such invalid, illegal or unenforceable provision will be
reformed, construed and enforced in such jurisdiction so as to render it
valid, legal, and enforceable consistent with the intent of the parties
insofar as possible.
(c) Waiver. If either party should waive any breach of any
provisions of this Letter Agreement, he or it shall not thereby be deemed
to have waived any preceding or succeeding breach of the same or any other
provision of this Letter Agreement.
(d) Entire Agreement. This Letter Agreement is entered into
without reliance on any agreement, or promise, or representation, other
than those expressly contained or incorporated herein, and it cannot be
modified or amended except in a writing signed by you and a duly authorized
officer of ZiLOG.
(e) Counterparts. This Letter Agreement may be executed in
separate counterparts, any one of which need not contain signatures of more
than one party, but all of which taken together will constitute one and the
same Letter Agreement. Signatures transmitted via facsimile shall be deemed
the equivalent of originals.
(f) Headings and Construction. The headings of the sections hereof
are inserted for convenience only and shall not be deemed to constitute a
part hereof or to affect the meaning thereof. For purposes of construction
of this Letter Agreement, any ambiguities shall not be construed against
either party as the drafter.
(g) Successors and Assigns. This Letter Agreement is intended to
bind and inure to the benefit of and be enforceable by you, XxXXX and their
respective successors, assigns, heirs, executors and administrators, except
that you may not assign any of his duties hereunder and he may not assign
any of his rights hereunder without the written consent of ZiLOG.
(h) Attorneys' Fees. If either party hereto brings any action,
suit or other proceeding to interpret this Letter Agreement or to determine
or enforce his or its rights hereunder, the prevailing party in any such
action shall be entitled to recover his or its reasonable attorneys' fees
(including in-house counsel fees) and costs incurred in connection with
such action to the extent that a party prevails.
(i) Governing Law. All questions concerning the construction,
validity and interpretation of this Agreement shall be governed by the law
of the State of California as applied to contracts made and to be performed
entirely within California.
(j) Mutual Agreement to Arbitrate.Except for an action exclusively
seeking injunctive relief, you and ZiLOG each hereby agree to use final and
binding arbitration to resolve any and all disputes (each, an "Arbitrable
Dispute"), which we may have with one another or with any affiliate of one
another. This arbitration agreement applies to all matters relating to this
Letter Agreement, your employment with and/or resignation from ZiLOG, and
any claims or controversies arising out of or relating to your employment,
including, but not limited to, disputes about the validity, interpretation
or effect of this Letter Agreement, or alleged violations of it, and
further including all claims arising out of any alleged discrimination,
harassment, retaliation or breach of any state or federal equal employment
opportunity laws, including, but not limited to, those claims covered by
the California Fair Employment and Housing Act, Title VII, 42 U.S.C.
Section 2000e et seq., the Federal Age Discrimination in Employment Act,
the Fair Labor Standards Act and the Americans with Disabilities Act.
The arbitration will take place in San Jose, California
(unless the parties mutually agree to an alternative venue), before a
single experienced employment arbitrator licensed to practice law in
California and selected in accordance with the then-current arbitration
rules and procedures for employment disputes governing arbitrations
administered by the Judicial Arbitration and Mediation Service (the
"Rules"). The arbitration shall allow for discovery sufficient to
adequately arbitrate any statutory claims, including access to essential
documents and witnesses, and provided, further, that the Rules shall be
modified by the arbitrator as to the extent necessary to be consistent with
applicable law. The arbitration will be conducted in accordance with such
Rules, and, to the extent required by California law, ZiLOG shall pay the
administrative costs and arbitrator's fees associated with certain claims
that are the subject of arbitration. It is understood, however, that you
shall bear your own attorney's, expert, witness and other fees associated
with the arbitration.
The arbitrator may not modify or change this Letter
Agreement in any way, unless any provision is found to be unenforceable, in
which case the arbitrator may sever it in accordance with the specific
terms of this Letter Agreement. The remedies available in arbitration shall
be identical to those allowed at law. The arbitrator shall be allowed to
award attorneys' fees pursuant to the terms of this Letter Agreement and in
accordance with applicable law.
The parties understand and agree that the arbitrator's
decision shall be in writing with sufficient explanation to allow for such
meaningful judicial review as may be permitted by law, and that such
decision shall be final and binding. The arbitrator shall be required to
follow applicable law. You and ZiLOG understand that, by entering into this
Agreement, we are each waiving our respective rights to have an Arbitrable
Dispute adjudicated by a court or by a jury. You hereby acknowledges by
initialing this provision that you have read and understood, and that you
expressly agree to be bound by, the terms of this subsection (j) __________
(Initials)
(k) Assistance in Litigation. At all times during and after the
term of this Letter Agreement, you will render assistance, advice and
counsel to ZiLOG at its request regarding any matter, dispute or
controversy with which XxXXX may become involved and of which you have or
may have reason to have knowledge, information or expertise. Such services
will be without additional compensation. ZiLOG will reimburse you for your
actual, reasonable travel expenditures and other costs incurred in
connection with such assistance, upon submission of documentation in a form
reasonably acceptable to ZiLOG.
Effective Date. This Letter Agreement is subject to the approval of the
Board of Directors.
Announcement. ZiLOG and you will agree on a mutually acceptable
announcement regarding your resignation.
Very truly yours,
ZiLOG, Inc.
/s/ Xxx Xxxxxxxx
-------------------------------
By: Xxx Xxxxxxxx
Title: Chief Executive Officer
Accepted and Agreed
/s/ Xxxxx Xxxxxxx
-------------------------
Xxxxx Xxxxxxx
ZiLOG, Inc.
INVENTION ASSIGNMENT AND CONFIDENTIALITY AGREEMENT
This INVENTION ASSIGNMENT AND CONFIDENTIALITY AGREEMENT ("Agreement") is
made and entered into as of this __ day of October, 2002 (the "Effective
Date") by and between ZiLOG, Inc., a Delaware corporation (the "Company")
with principal offices located at 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000 and
Xxxxx Xxxxxxx having an address at 00 Xxxxxxxxxx Xxxxx, Xxxx Xxxx Xxx, XX
00000.
In consideration of and as a condition of my employment with the
Company, I hereby acknowledge and agree to the following.
1. Proprietary Information. My consulting agreement with the
Company creates a relationship of confidence and trust
between the Company and me with respect to information:
(a) Applicable to the business of the Company; or
(b) Applicable to the business of any client or
customer of the Company, which may be made known
to me by the Company, or learned by me in such
context during the period of my employment with
the Company.
All of such information has commercial value in the
business in which the Company is engaged and is
hereinafter referred to as "ZiLOG Proprietary
Information." By way of illustration, but not limitation,
ZiLOG Proprietary Information includes any and all
technical and non-technical information including
patents, copyrights, maskworks, trade secrets, and
proprietary information, techniques, sketches, drawings,
models, inventions, know-how, processes, apparatus,
equipment, algorithms, software programs, software source
code documents, and formulae related to the current,
future and proposed products and services of the Company,
and includes, without limitation, its respective
information concerning research, experimental work,
development, design details and specifications,
engineering, financial information, procurement
requirements or data, manufacturing data, customer lists,
business forecasts, as well as sales, merchandising and
marketing plans and information. "Third Party Proprietary
Information" means proprietary or confidential
information of any third party who may disclose such
information to me or the Company in the course of the
Company's business. ZiLOG Proprietary Information and
Third Party Proprietary Information are hereinafter
collectively referred to as "Proprietary Information."
2. Nondisclosure of Proprietary Information. All Proprietary
Information is the sole property of the Company, its
successors and assigns, and its customers, as the case
may be. The Company, its successors and assigns, and its
customers, shall be the sole owners of all respective
patents, copyrights, maskworks, trade secrets, trademarks
or other rights in connection with such Proprietary
Information. I hereby assign to the Company any rights I
may have or acquire in ZiLOG Proprietary Information. At
all times, both during my employment by the Company and
after its termination, I will keep in confidence and
trust all Proprietary Information, and will not use or
disclose any Proprietary Information or anything directly
relating to it without the prior written consent of the
Company, except as may be necessary in the ordinary
course of performing my duties as an employee of the
Company. Notwithstanding the foregoing, it is understood
that, at all such times, I am free to use information
which is generally known in the trade or industry not as
a result of a breach of this Agreement and my own skill,
knowledge, know-how and experience to whatever extent and
in whatever way I wish provided that such use does not
result in the disclosure of ZiLOG Proprietary Information
or the direct or indirect infringement of any
intellectual property right now owned or hereafter
acquired by the Company.
3. Return of Materials. Upon termination of my consulting
arrangement with the Company or at the request of the
Company prior to termination, I will deliver to the
Company all written and tangible material in my
possession or control incorporating Proprietary
Information or otherwise relating to the Company's
business.
4. Inventions. As used in this Agreement, the term
"Inventions" means any and all new or useful art,
discovery, improvement, technical development, or
invention whether or not patentable, and all related
know-how, designs, maskworks, trademarks, formulae,
processes, manufacturing techniques, trade secrets,
ideas, artwork, software or other copyrightable or
patentable works.
5. Disclosure of Prior Inventions. I have identified on
Exhibit A attached hereto all Inventions relating in any
way to the Company's business or demonstrably anticipated
research and development which were made by me prior to
my employment with the Company ("Prior Inventions"), and
I represent that such list is complete. I represent that
I have no rights in any Inventions other than those Prior
Inventions identified on Exhibit A. If there are no
Inventions identified on Exhibit A, I represent that I
have made no such Prior Inventions as of the Effective
Date of this Agreement.
6. Ownership of Company Inventions; License of Prior
Inventions. I hereby assign and agree to assign to the
Company or its designee, my entire right, title and
interest in and to all Inventions ("Company Inventions")
and any associated intellectual property rights which I
may solely or jointly conceive, develop or reduce to
practice during the period of my employment with the
Company (a) which relate at the time of conception or
reduction to practice of the Invention to the company's
business or actual or demonstrably anticipated research
or development, or (b) which were developed on any amount
of the Company's time or with the use of any of the
Company's equipment, supplies, facilities or trade secret
information, or (c) which resulted from any work I
performed for the Company. I hereby agree promptly to
disclose and describe to the Company any and all
potentially patentable Company Inventions. I agree to
grant the Company or its designees a royalty-free,
irrevocable, worldwide license (with rights to sublicense
through multiple tiers of distribution) to practice all
applicable patent, copyright and other intellectual
property rights relating to any Prior Inventions which I
incorporate, or permit to be incorporated, in any Company
Inventions without the prior written consent of the
Company. Notwithstanding the foregoing, I agree that I
will not incorporate, or permit to be incorporated, such
Prior Inventions in any Company Inventions without the
Company's prior written consent.
7. Assignment of Other Rights. In addition to the foregoing
assignment of Inventions to the company, I hereby
irrevocably transfer and assign to the Company: (a) all
worldwide patents, patent applications, copyrights,
maskworks, trade secrets and other intellectual property
rights in any Company invention; and (b) any and all
"Moral Rights" (as defined below) that I may have in or
with respect to any Company Invention. I also hereby
forever waive and agree never to assert any and all Moral
Rights I may have in or with respect to any Company
Invention, even after termination of my employment
relationship with the Company. "Moral Rights" mean any
rights to claim authorship of an Invention to object to
or prevent the modification of any Invention, or to
withdraw from circulation or control the publication or
distribution of any Invention, and any similar right,
existing under judicial or statutory authority of any
country in the world, or under any treaty, regardless of
whether or not such right is denominated or generally
referred to as a "moral right."
8. Cooperation in Perfecting Rights to Inventions.
(a) I agree to perform, during and after my
employment with the Company, all acts deemed
necessary or desirable by the Company to permit
and assist it, at its expense, in obtaining and
enforcing the full benefits, enjoyment, rights
and title throughout the world in the Inventions
hereby assigned to the Company. Such acts may
include, but are not limited to, execution and
delivery of documents and assistance or
cooperation in the registration and enforcement
of applicable patents, copyrights, maskworks or
other legal proceedings.
(b) In the event that the company is unable after
reasonable efforts to secure my signature to any
document required to apply for or execute any
patent, copyright, maskwork or other
applications with respect to any Company
Inventions (including improvements, renewals,
extensions, continuations, divisions or
continuations in part thereof), I hereby
irrevocably designate and appoint the Company
and its duly authorized officers and agents as
my agents and attorneys-in-fact to act for and
on my behalf to execute and file any such
application and to do all other lawfully
permitted acts to further the prosecution and
issuance of patents, copyrights, maskworks or
other rights thereon with the same legal force
and effect as if executed by me.
9. No Violation of Rights of Third Parties. My performance
of all of the terms of this Agreement and as an employee
of the Company does not and will not breach any agreement
to keep in confidence proprietary information, knowledge
or data acquired by me prior to my employment with the
Company, and I will not disclose to the Company, or
induce the Company to use, any confidential or
proprietary information or material belonging to any
previous employer or others. I am not a party to any
other agreement which will interfere with my full
compliance with this Agreement. I agree not to enter into
any agreement, whether written or oral, in conflict with
the provisions of this Agreement.
10. Survival. This Agreement (a) shall survive the
termination of my employment with the Company, (b) inures
to the benefit of successors and assigns of the Company,
and (c) is binding upon my heirs and legal
representatives.
11. Nonassignable Inventions. This Agreement does not apply
to an Invention which qualifies fully as a nonassignable
invention under the provisions of Section 2872 of the
California Labor Code. I have reviewed the notification
contained in Exhibit B and agree that my signature
thereon acknowledges receipt of that notification.
12. Notification. I hereby authorize the Company to notify my
actual or future employers of the terms of this
Agreement.
13. Injunctive Relief. A breach of any of the promises or
agreements contained herein will result in irreparable
and continuing damage to the Company for which there will
be no adequate remedy at law, and the Company shall be
entitled to seek and obtain injunctive relief and/or a
decree for specific performance, and such other relief as
may be proper.
14. Notices. Any notice required or permitted pursuant to
this Agreement shall be in writing and shall be delivered
as follows with notice deemed given as indicated: (a) by
personal delivery when delivered personally; (b) by
overnight courier upon written verification of receipt;
(c) by telecopy or facsimile transmission upon
acknowledgement of receipt of electronic transmission; or
(d) by certified or registered mail, return receipt
requested, upon verification of receipt. All notices to
be delivered to the Company shall be made to the
attention of the General Counsel.
15. Governing Law. This Agreement shall be governed in all
respects by and construed in accordance with the laws of
the State of California excluding any principles of
conflicts of laws .
16. Severability. Should any of the provisions of this
Agreement be held by a court of competent jurisdiction to
be illegal, invalid or unenforceable, the legality,
validity and enforceability of the remaining provisions
shall not be affected or impaired thereby.
17. Waiver. The waiver by the Company of a breach of any
provision of this Agreement by me shall not operate or be
construed as a waiver of any other or subsequent breach
by me.
18. Assignment by the Company. The Company shall have the
right to assign this Agreement to its successors and
assigns, and all covenants and agreements hereunder shall
inure to the benefit of and be enforceable by said
successors and assigns.
19. Consulting. As used in this Agreement, the term
"employment" shall be construed to include any period of
consultancy or other contractually governed work
relationship between the Company and me if I am employed
by the Company as a consultant or contractor or am the
employee of one of the Company's contractors.
20. Entire Agreement. This Agreement, together with its
exhibits, constitutes the entire understanding of the
parties with respect to the subject matter hereof and
supersedes all previous and contemporaneous
understandings, whether written or oral. This Agreement
may be amended or modified only with the written consent
of both me and the Company.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
signed as of the Effective Date.
ZiLOG, Inc. Xxxxx Xxxxxxx
By: By:
------------------------------ ------------------------------
Name: Name:
---------------------------- ----------------------------
Title: Address:
--------------------------- -------------------------
EXHIBIT A
PRIOR INVENTIONS
EXHIBIT B
Limited Exclusion Notification
THIS IS TO NOTIFY YOU in accordance with Section 2872 of the
California Labor Code that the foregoing Agreement between you and the
Company does not require you to assign or offer to assign to the Company
any invention that you developed entirely on your own time without using
the Company's equipment, supplies, facilities or trade secret information
except those inventions that either:
(1) Relate at the time of conception or reduction to practice
of the invention to the Company's business, or actual or
demonstrably anticipated research or development of the
Company; or
(2) Result from any work performed by you for the Company.
To the extent a provision in the foregoing Agreement purports to
require you to assign an invention otherwise excluded from the preceding
paragraph, the provision is against the public policy of the State of
California and is unenforceable.
This limited exclusion does not apply to any patent or invention
covered by a contract between the Company and the United States or any of
its agencies requiring full title to such patent or invention to be in the
United States.
I ACKNOWLEDGE RECEIPT of this notification and that I have read
and understood it.
By:
-----------------------------------------
Name:
---------------------------------------
Date:
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Witnessed By:
Name:
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ZiLOG, Inc.
