Exhibit 10.66
E MPLOYMENT A GREEMENT
T HIS E MPLOYMENT A GREEMENT (the “Agreement”) was originally
entered into by and between Byron W. Milstead (the
“Executive”) and LATTICE SEMICONDUCTOR
CORPORATION , a Delaware corporation (the
“Company”) as of May 14, 2008 (the
“Effective Date”). This Agreement has been amended and
restated in its entirety as of December 30, 2008 (the
“Restatement Date”).
1. Duties and Scope of
Employment.
(a) Position. For the term of
his employment under this Agreement (“Employment”), the
Executive will serve as the Corporate Vice President, General
Counsel and Secretary (“ GC ”). The
Executive shall report to the Company’s Chief Executive
Officer (the “CEO”). Executive will render such
business and professional services in the performance of his
duties, consistent with the Executive’s position within the
Company, as will reasonably be assigned to him by the
CEO.
(b) Obligations. The
Executive shall have such duties, authority and responsibilities
that are commensurate with being an executive officer. During the
term of his Employment, the Executive will devote Executive’s
full business efforts and time to the Company. For the duration of
his Employment, Executive agrees not to actively engage in any
other employment, occupation, or consulting activity for any direct
or indirect remuneration without the prior approval of the Board of
Directors (the “Board”) (which approval will not be
unreasonably withheld); provided, however, that Executive may,
without the approval of the Board, serve in any capacity with any
civic, educational, or charitable organization, provided such
services do not interfere with Executive’s obligations to the
Company. Executive shall perform his duties primarily at the
Company’s corporate facility in Hillsboro, Oregon.
(c) Effective Date. The
Executive commenced full-time Employment as GC under this Agreement
on the Effective Date. Executive shall continue in such position
after the Restatement Date.
2. Cash and Incentive
Compensation.
(a) Salary. As of the
Restatement Date and thereafter, the Company shall pay Executive as
compensation for his services a base salary at a gross annual rate
of not less than $245,004 (such annual salary, as is then in
effect, to be referred to herein as “Base Salary”). The
Base Salary will be paid periodically in accordance with the
Company’s normal payroll practices and be subject to the
usual, required withholdings, provided, however, that Executive
shall receive pro-rata payments of Base Salary no less frequently
than once per month. Executive’s Base Salary will be subject
to review by the Compensation Committee of the Board (the
“Committee”) not less than annually, and adjustments
will be made in the discretion of the Committee.
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(b) Incentive
Bonuses.
(i) Executive shall be a participant
in an Executive Variable Compensation Plan as established by the
Company (the “EVCP”). Under the EVCP, Executive shall
be eligible to be considered for an annual fiscal year incentive
payment based on a percentage of Executive’s Base Salary as
of the beginning of such fiscal year or such higher figure that the
Committee may select (such annual amount is the “Target
Amount”). The Target Amount shall be awarded based upon the
achievement of specific milestones that will be mutually agreed
upon by the Committee and Executive no later than 45 days after the
start of each fiscal year (the “Target Amount
Milestones”). For superior achievement of the Target Amount
Milestones, Executive may earn a maximum annual fiscal year
incentive bonus of up to 250% of Executive’s Target Amount.
Cash payment for each fiscal year’s variable compensation
actually earned shall be made to Executive no later than 45 days
after the end of the applicable fiscal year for which the annual
incentive was earned.
(ii) For the Company’s 2008
fiscal year (which ends on January 3, 2009), Executive shall
be eligible to receive a pro-rated annual fiscal year incentive
payment (the “2008 Incentive Payment”) with the Target
Amount set at 40% of starting Base Salary, or $98,001, subject to
such pro-ration and the performance goals and other terms of the
EVCP. Any earned portion of the 2008 Incentive Payment shall be
paid to Executive in cash no later than 45 days after the end of
the Company’s 2008 fiscal year.
(c) Sign-On Bonus. Within
thirty days of the Start Date, Executive will receive a signing
bonus equal to $50,000, less usual, required withholdings (the
“Sign-on Bonus”). Executive will be required to refund
the Sign-on Bonus to the Company if, within the first six months
following the Start Date, Executive voluntarily resigns from his
position or Executive’s employment is terminated for
Cause.
(d) Terms of Company Compensatory
Equity Awards. Executive shall be eligible for grants of
options to purchase shares of the Company’s common stock,
restricted stock units, or other Company equity (any prior or
future compensatory equity grants to Executive shall be
collectively referred to herein as “Compensatory
Equity”) at times and in such amounts as determined by the
Committee. The Company shall recommend to the Committee an initial
stock option to purchase 266,700 shares of the Company’s
common stock at the Committee’s next regularly scheduled
meeting. The option price will be set at the closing market price
of the Company’s common stock on that day. This grant will
vest at a rate of 25% after the first year and thereafter at a rate
of 6.25% per quarter, beginning on the date of Committee
approval and have an exercise period of seven years. The Company
will also recommend to the Committee a grant of 22,400 restricted
stock units representing an equivalent number of shares of Lattice
common stock. This restricted stock unit grant will be subject to
the foregoing vesting schedule and to the provisions of the
Company’s 1999 stock plan and the notice of grant, together
with the market condition vesting provisions applicable to
executive officers of the Company. All future grants of
Compensatory Equity (and the issuance of any underlying shares) to
Executive shall be: (i) issued pursuant to an applicable
stockholder-approved plan and (ii) issued pursuant to an
effective registration statement filed with the Securities and
Exchange Commission under the Securities Act of 1933 as amended.
Accelerated vesting of Compensatory Equity may
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occur: (x) pursuant to the
terms of this Agreement and in addition (y) pursuant to the
terms of the Plan and any applicable Compensatory Equity agreement.
Executive may elect to establish a trading plan in accordance with
Rule 10b5-1 of the Securities Exchange Act of 1934 for any of his
Compensatory Equity shares, provided, however, that such trading
plan must comply with all of the requirements for the safe harbor
under Rule 10b5-1 and must be either (i) approved by the Board
(such approval not to be unreasonably withheld) or
(ii) approved in accordance with any Rule 10b5-1 Trading Plan
Policy the Company may subsequently implement.
(e) Service Definition. For
purposes of this Agreement and Executive’s Compensatory
Equity, “Service” shall mean service by the Executive
as an employee and/or consultant of the Company (or any subsidiary
or parent or affiliated entity of the Company) and/or service by
the Executive as a member of the Board.
3. Vacation and Employee
Benefits. During the term
of his Employment, the Executive shall be entitled to vacation in
accordance with the Company’s standard vacation policy.
During the term of his Employment, the Executive shall be eligible
to participate in any employee benefit plans or arrangements
maintained by the Company on no less favorable terms than for other
Company executives, subject in each case to the generally
applicable terms and conditions of the plan or arrangement in
question and to the determinations of any person or committee
administering such plan or arrangement.
4. Business Expenses.
During the term of his Employment,
the Executive shall be authorized to incur necessary and reasonable
travel, entertainment and other business expenses in connection
with his duties hereunder. The Company shall promptly reimburse the
Executive for such expenses upon presentation of appropriate
supporting documentation, all in accordance with the
Company’s generally applicable policies. The Company shall
also timely pay for all of Executive’s home
telecommunications phone and facsimile lines and reimburse
Executive for his actual mobile phone costs on a monthly basis (not
to exceed $200 per monthly bill).
5. Term of
Employment.
(a) Basic Rule. The Company
may terminate the Executive’s Employment with or without
Cause, by giving the Executive 30 days advance notice in writing.
The Executive may terminate his Employment by giving the Company 30
days advance notice in writing. The Executive’s Employment
shall terminate automatically in the event of his death.
(b) Employment at Will. The
Executive’s Employment with the Company shall be “at
will,” meaning that either the Executive or the Company shall
be entitled to terminate the Executive’s employment at any
time and for any reason, with or without Cause. This Agreement
shall constitute the full and complete agreement between the
Executive and the Company on the “at will” nature of
the Executive’s Employment, which may only be changed in an
express written agreement signed by the Executive and a member of
the Board.
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(c) Rights Upon
Termination. Upon the
termination of the Executive’s Employment, the Executive
shall be entitled to the compensation, benefits and reimbursements
described in this Agreement for the period ending as of the
effective date of the termination (the “Termination
Date”). Upon termination of Executive’s Employment for
any reason, the Executive shall receive the following payments on
the Termination Date: (i) all unpaid salary, and unpaid
vacation accrued (if applicable), through the Termination Date,
(ii) any unpaid, but earned and accrued incentive payments for
any completed applicable determination period under the EVCP
(whether paid quarterly, annually or as might otherwise be
established under the EVCP) which has not yet been paid on the
Termination Date and (iii) any unreimbursed business expenses.
Executive may also be eligible for other post-Employment payments
and benefits as provided in this Agreement.
6. Termination
Benefits.
(a) Severance Pay. If there
is an Involuntary Termination (as defined below) of
Executive’s Employment, then the Company shall pay the
Executive an amount equal to 1.0 times Executive’s then Base
Salary, plus up to 1.0 times Executive’s then Target Amount
(adjusted pro rata on a monthly basis depending upon the month in
which the Involuntary Termination may occur) (collectively in the
aggregate, the “Cash Severance”). Such Cash Severance
shall be made in a single lump sum cash payment to Executive on the
effective date of the separation agreement referenced in
Section 8(a). Executive shall also be entitled to receive the
benefits provided in Sections 6(b) and 6(c) and, if applicable,
6(d).
(b) Health Insurance. If
Subsection (a) above applies, and if Executive elects to
continue health insurance coverage under the Consolidated Omnibus
Budget Reconciliation Act of 1985 (“COBRA”) following
the termination of his Employment, then the Company shall reimburse
Executive’s monthly premium under COBRA until the earliest of
(i) twelve months after the Termination Date or (ii) the
date when Executive commences receiving substantially equivalent
health insurance coverage in connection with new
employment.
(c) Equity Vesting . If
Subsection (a) above applies, then Executive will be vested
only in that number of shares of Company common stock under all of
Executive’s outstanding Compensatory Equity as are actually
vested as of the Termination Date according to the terms of such
Compensatory Equity arrangements.
(d) Effect of Change in
Control. If the Company is subject to a Change in Control (as
defined below) and if there is an Involuntary Termination of
Executive’s Employment in connection with such Change in
Control (it will automatically be deemed to be in connection with
the Change in Control if there is an Involuntary Termination during
the period commencing immediately prior to the Change in Control
and extending through the date that is 24 months after the Change
in Control): (x) Executive shall immediately vest in (and the
Company’s right to repurchase, if applicable, shall lapse
immediately as to) all of Executive’s Compensatory Equity,
(y) the amount of the Cash Severance in Section 6(a)
shall be increased such that while the Executive shall still
receive 1.0 times Base Salary, he shall receive in addition 1.0
times Target Amount (with no pro ration), and (z) the duration
of COBRA coverage in Section 6(b) shall continue to be for 12
months. The Company’s obligation to continue to provide
Section 6(b) benefits shall not be relieved merely because the
legally required minimum period for providing COBRA continuation
coverage is for a shorter period than 12 months.
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(e) Excise Tax Gross-Up. In
the event that the benefits provided for in this Agreement
(i) constitute “parachute payments” within the
meaning of Section 280G of the Internal Revenue Code of 1986,
as amended (the “Code”) and (ii) but for this
Subsection (e), would be subject to the excise tax imposed by
Section 4999 of the Code, then the Executive’s benefits
under this Agreement shall be payable either (1) in full, or
(2) as to such lesser amount which would result in no portion
of the such benefits being subject to excise tax under
Section 4999 of the Code, whichever of the foregoing amounts,
taking into account the applicable federal, state and local income
taxes and the excise tax imposed by Section 4999, results in
the receipt by the Executive on an after-tax basis, of the greatest
amount of benefits under this Agreement, notwithstanding that all
or some portion of such benefits may be taxable under
Section 4999 of the Code. Unless Executive and the Company
agree otherwise in writing, the determination of Executive’s
excise tax liability, if any, and the amount, if any, required to
be paid under this Subsection (e) will be made in writing by
the independent auditors who are primarily used by the Company
immediately prior to the Change of Control (the
“Accountants”). For purposes of making the calculations
required by this Subsection (e), the Accountants may make
reasonable assumptions and approximations concerning applicable
taxes and may rely on reasonable, good faith interpretations
concerning the application of Sections 280G and 4999 of the Code.
Executive and the Company agree to furnish such information and
documents as the Accountants may reasonably request in order to
make a determination under this Subsection (e). The Company will
bear all costs the Accountants may reasonably incur in connection
with any calculations contemplated by this Subsection
(e).
(f) Change in Control
Definition . For purposes of this Agreement, “Change in
Control” shall mean the occurrence of any of the following
events: (i) the consummation of a merger or consolidation of
the Company with or into another entity or any other corporate
reorganization, if persons who were not stockholders of the Company
immediately prior to such merger, consolidation or other
reorganization own immediately after such merger, consolidation or
other reorganization more than 50% of the voting power of the
outstanding securities of each of (A) the continuing or
surviving entity and (B) any direct or indirect parent
corporation of such continuing or surviving entity, (ii) the
sale, transfer or other disposition of all or substantially all of
the Company’s assets, or (iii) solely with respect to
determining the treatment of Compensatory Equity under the terms of
this Agreement, the terms of any applicable definition provided by
the Plan or other Company equity incentive plan or arrangement. A
transaction shall not constitute a Change in Control if its sole
purpose is to change the state of the Company’s incorporation
or to create a holding company that will be owned in substantially
the same proportions by the persons who held the Company’s
securities immediately before such transaction.
(g) Cause Definition . For
purposes of this Agreement, “Cause” shall mean
(i) Executive’s material breach of this Agreement that
is not corrected within a 30 day correction period that begins upon
delivery to Executive of a written demand from the Board that
describes the basis for the Board’s belief that Executive has
materially breached this Agreement; (ii) any willful act of
fraud or dishonesty that causes material damage to the Company;
(iii) any
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willful violation of the
Company’s insider trading policy; (iv) any willful
violation of the Company’s conflict of interest policies;
(v) any willful unauthorized use or disclosure of trade
secrets or other confidential information; or
(vi) Executive’s conviction of a felony.
The foregoing shall not be deemed an
exclusive list of all acts or omissions that the Company may
consider as grounds for the termination of Executive’s
Employment, but it is an exclusive list of the acts or omissions
that shall be considered “Cause” for the termination of
Executive’s Employment by the Company.
(h) Good Reason Definition .
For all purposes under this Agreement, “Good Reason”
shall mean the occurrence of any of the following, without
Executive’s express written consent: (i) a substantial
reduction of Executive’s duties or responsibilities;
(ii) a substantial reduction in Executive’s Base Salary
or Target Amount other than a one-time reduction (not exceeding 10%
in the aggregate) that also is applied to substantially all other
executive officers of the Company on the CEO’s written
recommendation or written approval if Executive’s reduction
is substantially proportionate to, or no greater than, the
reduction applied to substantially all other executive officers;
(iii) the Company’s material breach of this Agreement
including without limitation the failure to timely provide
Executive the cash compensation, equity compensation and/or
employee benefits specified under this Agreement; or (iv) the
Company requiring Executive to relocate his principal place of
business or the Company relocating its headquarters, in either case
to a facility or location outside of a 30 mile radius from
Executive’s current principal place of employment; provided,
however, that Executive will only have Good Reason if the event or
circumstances constituting Good Reason specified in any of the
preceding clauses is not cured or otherwise remedied to the
Executive’s satisfaction within 30 days after Executive gives
written notice to the Board.
(i) Involuntary Termination
Definition . For all purposes under this Agreement,
“Involuntary Termination” shall mean any of the
following that occur without Executive’s prior written
consent: (i) termination of Executive’s Employment by
the Company without Cause, or (ii) Executive’s
resignation of Employment for Good Reason.
7. Successors.
(a) Company’s
Successors . This Agreement shall be binding upon any successor
(whether direct or indirect and whether by purchase, lease, merger,
consolidation, liquidation or otherwise) to all or substantially
all of the Company’s business and/or assets. For all purposes
under this Agreement, the term “Company” shall include
any successor to the Company’s business and/or assets which
becomes bound by this Agreement.
(b) Executive’s
Successors . This Agreement and all rights of the Executive
hereunder shall inure to the benefit of, and be enforceable by, the
Executive’s personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and
legatees.
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