EXECUTIVE EMPLOYMENT
AGREEMENT
This Agreement is
entered into as of [DATE] (the “Effective Date”)
by and between the Company and [NAME]
(“Executive”).
1.
Duties and Scope of Employment .
(a)
Position and Duties . As of the Effective Date, Executive
will [continue to] serve as [TITLE] of the Company,
reporting to the Chief Executive Officer [or his delegate].
Executive will render such business and professional services in
the performance of his or her duties, consistent with
Executive’s position within the Company, as shall reasonably
be assigned to him by the Chief Executive Officer [and/or the
Company’s Board of Directors (the “Board”)].
Executive’s [title,] duties and responsibilities may be
altered, modified and changed as the [Chief Executive Officer
and/or Board] deems appropriate.
(b)
Obligations . During the Term, Executive will perform his or
her duties faithfully and to the best of his or her ability and
will devote his or her full business efforts and time to the
Company. For the duration of the Term, Executive agrees not to
engage in any other employment, occupation or consulting activity
for any direct or indirect remuneration without the prior written
approval of [the Board and/or the Chief Executive
Officer].
(c)
Conflicting Employment . Executive agrees that, while
employed by the Company, he or she will not engage in any other
employment, occupation, consulting or other business activity
directly related to the business in which the Company is now
involved or becomes involved during the term of Executive’s
employment, nor will Executive engage in any other activities that
conflict with Executive’s obligations to the
Company.
2.
Term . Executive’s employment with the Company
pursuant to this Agreement (the “Term”) will commence
on the Effective Date and will continue, unless otherwise
terminated earlier as provided herein, until the date that is
twenty-four (24) months 1 from the Effective Date. Notwithstanding the
foregoing, the parties agree that Executive’s employment with
the Company will be “at-will” employment and may be
terminated at any time with or without cause by giving the
Executive a written notice. Executive understands and agrees that
neither his or her job performance nor promotions, commendations,
bonuses or the like from the Company give rise to or in any way
serve as the basis for continuation, modification, amendment, or
extension, by implication or otherwise, of his or her employment
with the Company. However, as described in this Agreement,
Executive may be entitled to severance benefits depending on the
circumstances of Executive’s termination of employment with
the Company as expressly provided in Sections 6 and 7 of this
Agreement.
(a)
Base Salary . During the Term, the Company will pay
Executive as compensation for his or her services, a base salary at
the annualized rate of $[EXECUTIVE’S
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1 The
term of Paul Judy’s agreement is twenty-one
(21) months.
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SALARY
AMOUNT] 2
(the “Base Salary”). The
Base Salary will be paid periodically in accordance with the
Company’s normal payroll practices and is subject to lawfully
required withholdings. Annual adjustments to the Base Salary may be
made in the Company’s sole discretion.
(b) Target
Incentive Plan. Executive will be eligible
to participate in the Company’s Target Incentive Plan, and
for such annual bonuses as are payable under the plan
(“Incentive Bonus”).
4.
Employee Benefits . During the Term, Executive will continue
to be entitled to participate in the employee benefit plans
currently and hereafter maintained by the Company of general
applicability [to other senior executives of the Company,
including, without limitation, the Company’s group medical,
dental, vision, disability, life insurance, vacation and
flexible-spending account plans and programs] [as identified in his
letter of appointment]. The Company reserves the right to cancel or
change the benefit plans and programs it offers to its employees at
any time.
5.
Equity . Executive may from time to time be eligible to
receive a grant of stock options and/or restricted stock, as the
Board of Directors deems appropriate.
(a)
Involuntary Termination Without Cause Prior to a Change of
Control or More than 6 Months Following a Change of Control .
If Executive’s employment with the Company terminates other
than voluntarily or for “Cause” prior to a
“Change of Control” (both as defined herein) or more
than six months following a Change of Control, and Executive signs
and does not revoke a release of claims with the Company in the
form provided by the Company, the Company shall provide severance
pay and benefits, subject to certain conditions, as
follows:
(i) The
Company shall provide monetary severance to Executive equal to
[twelve (12) months’ of Base Salary for the Executive Vice
President and Chief Technical Officer, the Chief Operating Officer,
Executive Vice Presidents, Senior Vice Presidents and the covered
Vice President] [twenty-four (24) months of Base Salary for
the Chief Executive Officer]. Such severance shall be paid over a
period of [twelve (12) months or twenty-four (24) months, as
applicable] following the date of termination (the “Severance
Period”) through Severance Payments made in the same
installments and subject to the same deductions as
Executive’s Base Salary at the time of termination. The
Severance Payments shall be subject to offset for any amounts then
owed to the Company by Executive. [In lieu of the foregoing
paragraph the following text is included in the agreement with an
officer based in Malaysia: The Company shall provide monetary
severance to Executive equal to one month of Base Salary for each
year of service plus
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The specific
salaries for the Executives who are party to this Agreement are as
follows: TH Tan, Chief Executive Officer - $550,000; Tim Harris,
Executive VP & Chief Operating Officer — $365,000;
Michael Russak, Executive VP, Chief Technical Officer —
$390,000; Ray Martin, Executive VP, Customer Sales & Service
— $345,000; Peter Norris, Executive VP, Strategic Business
Development — $190,000; Kathleen Bayless, Senior VP, Chief
Financial Officer — $296,800; Tsutomu Yamashita, Senior VP,
Process Development - $290,000; William Hammack, Senior VP, Human
Resources — $203,496; Kheng Huat Oung, VP, Managing Director,
Media Operations, Komag USA (Malaysia) Sdn. - $136,084; Paul Judy,
Vice President, Corporate Controller & Chief Accounting Officer
— $200,000.
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one month of
contractual bonus plus 8 (eight) weeks of pay in lieu of
notice. Such severance shall be paid in a lump sum within 30
(thirty) days of the last day of employment. The Severance
Payments shall be subject to offset for any amounts then owed to
the Company by Executive.]
(ii) If
Executive elects to continue his/her benefits under the
Company’s Employee Benefits Plans, including life, disability
and health insurance, through COBRA, the Company shall pay the cost
of COBRA continuation coverage for Executive (and, where
applicable, Executive’s dependents) during the Severance
Period as if Executive were still employed by the Company (the
“COBRA Continuation Payments”). Executive will continue
to pay the same portion of the cost of such benefits as he or she
currently pays as of the last day of his/her employment with the
Company. The COBRA Continuation Payments will cease, and the
Company will have no further obligations with respect to the
payment of any premiums for continuation coverage to Executive, as
of the earlier of (a) Executive becoming eligible for
comparable coverage (for example, through obtaining alternative
employment); (b) the conclusion of the Severance Period; or
(c) the cessation of Executive’s COBRA eligibility. [In
lieu of the foregoing paragraph the following text is included in
the agreement with an officer based in Malaysia: All insurance
benefits will cease upon the termination of employment.]
(iii) Any
outstanding and unvested non-qualified stock options and any
restricted stock previously granted Executive shall immediately
vest and become exercisable as to the number of shares that would
have otherwise vested had Executive remained employed by the
Company through the end of the Severance Period. Thereafter, any
such awards will remain subject to the terms of the applicable
stock plan, grant and/or agreement.
(iv) If
Executive is entitled to compensation and benefits arising from
termination of employment due to change of control pursuant to
Section 7 below, compensation and benefits under that change
of control provision shall be in lieu of and not in addition to
compensation under this Section 6.
(v) Notwithstanding
the foregoing, the Company’s obligation to make severance
payments, pay bonus payments, provide benefits and vest stock
and/or options hereunder is expressly conditioned upon
Executive’s ongoing compliance with the provisions of the
Employee Invention, Authorship, Proprietary and Confidential
Information Agreement. In the event Executive breaches the terms of
such agreement, the Company’s obligations hereunder shall
automatically terminate, without any notice to Executive, and, in
addition to any other damages to which the Company may be entitled,
the Company shall be entitled to recover from Executive any
payments already made to Executive hereunder.
(vi) Executive
agrees that severance as provided herein shall be the sole
consideration to which he or she is entitled in the event of the
termination of his or her employment without Cause, and that
severance will not be paid in the event of termination with Cause,
and Executive expressly waives and relinquishes any claim to other
or further consideration. [The following sentence is included only
in the Executive Vice President, Chief Technical Officer’s
form: Executive agrees that a change in title alone shall not mean
that a position is not comparable.]
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(vii) Severance
pay, bonus pay, benefits and/or stock/option vesting are expressly
conditioned upon Executive’s execution and delivery of a
release of all claims Executive may have against the Company in a
form provided by the Company.
(b)
Voluntary Termination; Termination for Cause . If
Executive’s employment with the Company terminates
voluntarily by Executive or for Cause by the Company, then
(i) all vesting of any restricted stock or options to purchase
shares of the Company’s common stock held by Executive will
terminate immediately and all payments of compensation by the
Company to Executive hereunder will terminate immediately (except
as to amounts already earned, including unused and accrued
vacation); and (ii) Executive shall not be eligible for
severance or other benefits, except in accordance with any
generally applicable Company plans or policies as are then in
effect. [The provision for voluntary termination in the foregoing
paragraph is not included in the agreement with the Chief Operating
Officer. In lieu thereof, the following separate paragraph is
included in that agreement: “Should Executive voluntarily
terminate employment within six (6) months of the first day of
employment in of a new Chief Executive Officer, other than
Executive, the Executive will be eligible to receive six
(6) months of severance pay from the date of resignation.
Severance pay is expressly conditioned upon Executive’s
execution and delivery of a release of all claims Executive may
have again the Company in a form provided by the Company. Beyond
the sixth (6 th )
month, should Executive resign, then (i) all vesting of any
restricted stock or options to purchase shares of the
Company’s common stock held by Executive will terminate
immediately and all payments of compensation by the Company to
Executive hereunder will terminate immediately (except as to
amounts already earned, including unused and accrued vacation); and
(ii) Executive shall not be eligible for severance or other
benefits, except in accordance with any generally applicable
Company plans or policies as
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