Exhibit 10.68
E MPLOYMENT A GREEMENT
T HIS E MPLOYMENT A GREEMENT (the “Agreement”) was originally
entered into by and between Christopher M. Fanning
(the “Executive”) and LATTICE SEMICONDUCTOR
CORPORATION , a Delaware corporation (the
“Company”) as of November 1, 2005 (the
“Effective Date”). This Agreement has been amended and
restated in its entirety as of December 15, 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 and
General Manager, Low Density Solutions . 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 one of the Company’s most
senior executives. 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 Company’s CEO (which approval will
not be unreasonably withheld); provided, however, that Executive
may, without the approval of the CEO, 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 under this Agreement on
the Effective Date. Executive shall continue as the Corporate Vice
President and General Manager, Low Density Solutions 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 $285,000 (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 CEO not less than annually, and adjustments will
be made in the discretion of the CEO.
(b) Incentive Bonuses . For
Company’s fiscal years 2008 and beyond, Executive shall be a
participant in an Executive Variable Compensation Plan as
established by
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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 CEO 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 CEO 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.
(c) 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
Compensation Committee of the Board of Directors. 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 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.
(d) 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
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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.
(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 0.75 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
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(i) nine 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 the Executive shall receive 1.0
(instead of 0.75) times Base Salary, plus 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
be for 12 months rather than 9 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.
(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).
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(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 Company that
describes the basis for the Company’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 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
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 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
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preceding clauses is not cured or
otherwise remedied to the Executive’s satisfaction within 30
days after Executive gives written notice to the CEO.
(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.
8. Conditions to Receipt of
Severance; No Duty to Mitigate .
(a) Separation
Agreement and Release of Claims . The receipt of any severance
benefits pursuant to Section 6 will be subject to Executive
signing and not revoking a separation agreement and release of
claims in substantially the form attached hereto as
Exhibit A , but with any appropriate modifications,
reflecting changes in applicable law, as is necessary or
appropriate to provide the Company with the protection it would
have if the release were executed as of the Effective Date. No
severance benefits will be paid or provided until the separation
agreement and release agreement becomes effective. The separation
agreement and release of claims must in all cases be effective by
March 15 th of the year following the year
of Executive’s termination of Employment.
(b) Non-solicitation and Non
- competition . The receipt of any severance benefits will
be subject to the Executive agreeing that during Employment and for
the 12 month period after the Termination Date (the
“Continuance Period”), the Executive will not
(i) solicit any employee of the Company for employment other
than at the Company,