Exhibit 10.1
EMPLOYMENT
AGREEMENT
In consideration for being employed by Adaptec, Inc.
(hereinafter, " Adaptec "), John Noellert,
(hereinafter, " Employee ") and Adaptec acknowledge
and agree to be bound by the following Executive Employment
Agreement (this " Agreement ") effective as of August
14, 2007 (the " Effective Date "). This Agreement
supersedes the terms of Employee's offer letter.
1.
DUTIES AND RESPONSIBILITIES : Employee will be employed by
Adaptec in the position of Vice President, Worldwide Sales,
reporting to Adaptec's Chief Executive Officer (hereinafter, "
CEO "). Employee's duties and responsibilities will
be assigned by Adaptec's CEO or his designee. Employee's duties and
responsibilities may be altered, modified and changed as Adaptec's
CEO deems appropriate.
2.
COMPENSATION : Employee's Target Annual Earnings (TAE) will
be $310,000 per year, consisting of base pay and target incentive
pay. Adaptec's CEO and Compensation Committee of the Board of
Directors may increase Employee's base salary and target incentive
from time to time as they deem appropriate. In addition, Employee
may be eligible to participate in special incentive programs, above
the TAE. The performance targets for Adaptec and Employee which
shall serve as the basis for awarding Employee the target incentive
shall be established by Adaptec's CEO and Board of Directors, in
their sole discretion, at the beginning of each Fiscal Year. It is
within the sole discretion of Adaptec's CEO or his designee to
determine whether Employee achieved all or part of the targets
established as well as the resulting incentive amount to be
awarded. All bonus plans, including all performance targets and all
other aspects and conditions of those plans, shall be established
by and subject to change and modification by Adaptec's CEO and
Board of Directors in their sole discretion.
3.
STOCK OPTIONS : As deemed appropriate by Adaptec's CEO
and Board of Directors, Employee may receive option grants and
restricted stock awards under the 2004 Equity Incentive Plan and
successor equity plans. The future grants will vary in number
given and in vesting schedules.
4.
BENEFITS : Employee shall be eligible for all benefits
normally and regularly provided to Adaptec's executive staff as may
be in effect from time to time, if any, in accordance with the
rules established from time to time for individual participation in
any such plans. In addition, Employee will be entitled to receive
the following benefits: a $650 per month automobile allowance and a
company-paid annual physical examination.
5.
EMPLOYEE'S AT-WILL EMPLOYMENT : Employee understands and
agrees that his employment relationship with Adaptec is for an
INDEFINITE PERIOD and is on an AT-WILL basis. This
means that Employee is free to terminate his employment with
Adaptec at any time with or without cause or notice and that
Adaptec is similarly entitled to terminate Employee's employment at
any time with or without cause or notice. Employee understands and
agrees that the AT-WILL nature of his employment with
Adaptec will be maintained throughout the time he is employed by
Adaptec and can only be changed by an express written employment
contract specifically prepared for Employee and signed by Adaptec's
CEO. If Employee's employment is terminated for any reason,
Employee shall not be entitled to any payments, benefits, damages,
awards or compensation other than as expressly and specifically
required by Section 10 of this Agreement.
6.
OUTSIDE ACTIVITIES : During Employee's employment with
Adaptec, he agrees to devote his full productive time, energies and
abilities to the proper and efficient management of Adaptec's
business. Without express, prior written authorization from
Adaptec's CEO, Employee shall not, directly or indirectly, during
the term of his employment: (1) render services of a business,
professional or commercial nature, to any other person, firm,
entity, or business, whether for compensation or otherwise; or (2)
engage in any activity competitive with or adverse to Adaptec's
business or welfare, whether alone, or as an owner, shareholder or
partner, or as an officer, director, employee, advisor, contractor
or consultant; or (3) serve as a Director of a for-profit public
company or as a Director of a for profit private company.
7.
PROTECTION OF ADAPTEC'S CONFIDENTIAL AND PROPRIETARY INFORMATION
AND TRADE SECRETS : During Employee's employment with Adaptec
as well as at all times following his termination thereof, Employee
agrees to abide by and comply with the Employee Proprietary
Information Agreement which he entered into, a copy of which is
attached hereto and incorporated herein as "Exhibit A."
8.
TERMINATION OF EMPLOYMENT : Employee's employment with
Adaptec is at-will and may be terminated by Employee or by Adaptec
at any time for any reason as follows:
(a)
Employee may terminate employment upon written notice to Adaptec
for "Good Reason," as defined below (an " Involuntary
Termination " );
(b)
Employee may terminate employment upon written notice to Adaptec at
any time in Employee's discretion without Good Reason ( "
Voluntary Termination " );
(c)
Adaptec may terminate Employee's employment upon written notice to
Employee at any time following a determination that there is
"Cause," as defined below, for such termination ( "
Termination for Cause " );
(d)
Adaptec may terminate Employee's employment upon written notice to
Employee at any time without Cause for such termination ( "
Termination without Cause " );
(e)
Employee's employment will automatically terminate upon Employee's
death or upon Employee's disability as determined by Adaptec ( "
Termination for Death or Disability " ); provided that
"disability" shall mean Employee's complete inability to perform
Employee's job responsibilities for a period of ninety (90)
consecutive days or ninety (90) days in the aggregate in any twelve
(12) month period.
9.
DEFINITIONS . As used in this Agreement, the following terms
have the following meanings:
(a)
" Cause " means Employee's (i) neglect or poor
performance of duties, if not remedied to the satisfaction of the
CEO after written notice has been given to the Employee by the CEO
or his or her designee; (ii) willful and deliberate malfeasance or
gross negligence in the performance of duties and responsibilities;
(iii) commission of any act of fraud, gross misconduct or
dishonesty with respect to Adaptec; (iv) conviction of, or plea of
guilty or "no contest" to, a felony, a serious violation of the law
or a crime involving moral turpitude, fraud, or misappropriation of
funds; (v) breach or violation of this Agreement or any proprietary
information and inventions or confidentiality agreement with
Adaptec, including the Employee Proprietary Information Agreement;
or (vi) refusal or unwillingness to follow the lawful directions of
the CEO or the Board.
(b)
" Change of Control " means (i) any "person" (as such
term is used in Sections 13(d) and 14(d) of the Exchange Act)
(other than Adaptec, a subsidiary or an Adaptec employee benefit
plan, including any trustee of such plan acting as trustee) is or
becomes the beneficial owner (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of Adaptec
representing fifty percent (50%) or more of either the then
outstanding shares of the common stock of Adaptec or the combined
voting power of Adaptec's then outstanding securities; (ii) a
change in the composition of the Board occurring within a two-year
period, as a result of which fewer than a majority of the directors
are Incumbent Directors. " Incumbent Directors " shall mean
directors who either (I) are directors as of the date hereof, or
(II) are elected, or nominated for election, to the Board with the
affirmative votes of at least a majority of the Incumbent Directors
at the time of such election or nomination (but shall not include
an individual whose election or nomination is in connection with an
actual or threatened proxy contest relating to the election of
directors to Adaptec); (iii) the consummation of a merger or
consolidation of Adaptec with any other corporation, other than a
merger or consolidation which would result in the voting securities
of Adaptec outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) at least fifty
percent (50%) of the then outstanding shares of the common stock of
Adaptec and the combined voting power of Adaptec's then outstanding
securities; or (iv) the consummation of the sale or disposition by
Adaptec of all or substantially all Adaptec's assets.
(c) "
Good Reason " means Employee terminates employment
within sixty (60) days following the occurrence of any of the
following taken without Employee's written consent (i) a material
reduction in Employee's duties or responsibilities from those in
effect prior to a Change of Control; (ii) a requirement by Adaptec
that Employee relocate Employee's principal office to a facility
more than twenty-five (25) additional commuting miles from
Adaptec's current headquarters; or (iii) a material reduction in
Employee's annual base salary and target incentive compensation by
5% (other than in connection with a general decrease in the salary
of all similarly situated employees of Adaptec); provided that
Employee has given notice to any successor entity following such
action and a thirty (30) day opportunity to cure.
10.
SEPERATION PAYMENTS AND BENEFITS . Upon termination of
Employee's employment with Adaptec for any reason, Employee will
receive payment for all unpaid salary and vacation accrued as of
the date of termination of employment, and benefits will be
continued under Adaptec's then existing benefit plans and policies
for so long as provided under the terms of such plans and policies
and as required by applicable law. Under certain circumstances and
conditioned upon Employee's execution of a release and waiver of
claims (acceptable to, and in such form and substance as provided
by, Adaptec) against Adaptec, its officers and directors, Employee
will also be entitled to receive the payments and benefits as set
forth below; provided, however, that Employee shall not be entitled
to the payments and benefits set forth below in the event
Employee's termination occurs following the three-year anniversary
of the Effective Date.
(a)
In the event of Employee's Voluntary Termination ,
Termination for Cause, or Termination for Death or Disability,
Employee will not be entitled to any cash or other severance
benefits or any accelerated vesting of Adaptec equity awards
Employee may then hold.
(b)
In the event of Adaptec's termination of Employee which
constitutes a Termination without Cause , Employee will be
entitled to (i) a lump sum payment in an amount equal to nine
(9) months of Employee's then current target annual earnings
plus, for each year of Employee's service with Adaptec in excess of
three years, an additional week of target annual earnings not to
exceed eight additional weeks, (ii) provided Employee becomes
eligible and timely elects to continue Employee's health coverage
under COBRA, reimbursement for any COBRA payments made by Employee
with respect to Employee and Employee's legal dependents in the
nine (9) months following the date of termination, and (iii)
outplacement services through the use of a company or consultant to
be chosen by Employer in an amount not to exceed $5,000 (to be paid
by Adaptec directly to the outplacement service provider). Any
severance payment made pursuant to this section shall be paid
within thirty (30) days following the date of Employee's
termination, or at a later date if so required pursuant to Section
409A(2)(B) of the Internal Revenue Code of 1986 (the " Code
"), as amended. Service with Adaptec prior to being rehired will
not be considered in the service noted above in (b)(i).
(c)
In the event of Employee's Involuntary Termination or Adaptec's
termination of Employee which constitutes a Termination without
Cause, in each case occurring within one (1) year following a
Change of Control, in lieu of the payments and benefits pursuant to
Section 10(b) (unless payable pursuant to the last sentence of this
Section 10(c)), Employee will be entitled to (i) a lump sum payment
in an amount equal to twelve (12) months of Employee's then
current target annual earnings, (ii) provided Employee becomes
eligible and timely elects to continue Employee's health coverage
under COBRA, reimbursement for any COBRA payments made by Employee
with respect to Employee and Employee's legal dependents in the
twelve (12) months following the date of termination, (iii)
outplacement services through the use of a company or consultant to
be chosen by Employer in an amount not to exceed $5,000 (to be paid
by Adaptec directly to the outplacement service provider) and (iv)
accelerated vesting with respect to one hundred percent (100%) of
any then-unvested shares subject to all Adaptec equity awards then
held by Employee. Any severance payment made pursuant to this
section shall be paid within thirty (30) days following the date of
Employee's termination, or at a later date if so required pursuant
to Section 409A(2)(B) of the Code. In the event Employee has
completed less than one (1) year of service with Adaptec at the
time of Employee's Involuntary Termination or Termination without
Cause occurring within one (1) year following a Change of Control,
then Employee will receive the greater of (determined without
taking into account the value of accelerated vesting under Section
10(c)(v) hereof) (A) a prorated amount of the payments and benefits
provided under this Section 10(c) or (B) the payments and benefits
provided under Section 10(b) above.
11.
NON-SOLICITATION . Employee agrees that for a period of
twelve (12) months immediately following a termination of
employment for any reason, Employee shall not either directly or
indirectly solicit, induce, recruit or encourage any of Adaptec's
employees to leave their employment, or take away such employees,
or attempt to solicit, induce, recruit, encourage, or take away
employees of Adaptec, either for Employee or any other person or
entity. Employee further agrees not to otherwise interfere with the
relationship of Adaptec or any of its subsidiaries or affiliates
with any person who, to Employee's knowledge, is employed by or
otherwise engaged to perform services for Adaptec or its
subsidiaries or affiliates (including, but not limited to, any
independent sales representatives or organizations) or who is, or
was within the then most recent prior twelve-month period, a
customer or client of Adaptec, or any of its subsidiaries.
12.
COOPERATION . Both during employment with Adaptec and
following termination, Employee shall cooperate fully with Adaptec
in the defense of any action or proceeding brought by any third
party against Adaptec that relates in any way t
