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Exhibit
10.57
EMPLOYMENT AND
NON-SOLICITATION AGREEMENT
This Employment and
Non-Solicitation Agreement (“Agreement”) is made as of
the Effective Date, as defined below, by and between 3Ware, Inc.
(“Employer” or “Company”) and Barbara
Murphy (“Employee”).
RECITALS
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1. |
This Agreement is entered into in connection with and is
ancillary to an Agreement and Plan of Merger (“Merger
Agreement”) dated on or about February 25, 2004 by and
between Applied Micro Circuits Corporation (“AMCC”) and
Employer. |
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2. |
Pursuant to the Merger Agreement, Employer will become a
wholly-owned subsidiary of AMCC (the “Merger”). The
date upon which the Merger is consummated, and upon which this
Agreement becomes effective, is the Effective Date. |
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3. |
Employee has been employed at Employer as its Vice President of
Marketing. While so employed, Employer granted Employee stock
options pursuant to Employer’s stock option plan and
applicable agreement (the “Stock Options”), including,
without limitation, pursuant to a Stock Option Agreement dated on
or about December 18, 2002 (“Stock Option
Agreement”). |
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4. |
Employer intends to amend the Stock Option Agreement and to
continue to employ Employee, and Employee intends to continue
employment with Employer, as set forth herein after the Merger
occurs. |
AGREEMENT
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1. |
TERM Employer will employ Employee, and Employee accepts
employment with Employer, on an “at will” basis,
meaning that either Employer or Employee may terminate
Employee’s employment with Employer at any time and for any
or no reason as provided below. The period commencing with the
Effective Date and terminating upon the date of termination of
employment is hereby referred to as the Term. |
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2. |
TITLE Employee shall initially have the title of Vice
President of Marketing, Storage Attach Products. |
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3. |
DUTIES . Employee will work exclusively for Employer and
shall initially report to Faye Pairman. Employee shall perform
faithfully and to the best of her ability the duties assigned by
Employer. |
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4. |
FULL TIME EMPLOYMENT. Employee’s employment will
be on a full-time basis, in accordance with AMCC’s standard
employment policies as may be amended from time to time. Employee
will not engage in other business or render any services, directly
or indirectly, to any other person or organization, whether for
compensation or otherwise, provided that Employee may
(i) provide incidental assistance to family members on matters
of family business; and(ii) sit on the boards of charitable and
nonprofit organizations which do not, at the time of
Employee’s appointment or election, to Employee’s
knowledge, compete with Employer or its affiliates; provided in
each case that such activities do not conflict with or interfere
with Employee’s obligations to Employer. |
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5. |
LOYALTY AND NON-COMPETITION For so long as Employee is
employed by Employer, Employee will not engage in any employment,
business, or activity that is in any way competitive with the
business or proposed business of Employer or its affiliates and
will not assist any other person or organization in competing with
Employer or its affiliates or in preparing to engage in competition
with the business or proposed business of Employer or its
affiliates. The provisions of this paragraph shall apply both
during normal working hours and at all other times, including
without limitation nights, weekends and vacation time, while the
Employee is employed by Employer. |
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6. |
COMPENSATION Employee shall receive a base salary of
$175,000 per year (“Base Salary”) payable on
Employer’s regular payroll dates, less applicable
withholdings. |
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7. |
BENEFITS Employee will be entitled to insurance,
vacation and other benefits commensurate with Employee’s
position in accordance with AMCC’s standard employment
policies, as may be amended from time to time. The foregoing
notwithstanding, Employee shall be entitled to vacation accrual of
three weeks per year. Employee will also be eligible for stock
refreshes on the same schedule as similarly situated executives, in
accordance with the Company’s applicable plans, agreements
and policies. |
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a. |
Termination Without Cause or Resignation for Good Reason
If Employer terminates Employee without Cause (as defined below),
or Employee resigns for Good Reason (as defined below), Employee
will receive (1) a severance payment equal to six
(6) months’ Base Salary, payable in a lump sum within 30
days of such termination without Cause or resignation for Good
Reason; (2) reimbursement of health care premiums for the
Employee and her dependants under COBRA, which coverage shall be to
the same extent as for active employees, for a period of six
(6) months; and (3) credit for an additional twelve
(12) months of service for purposes of vesting with respect to
the Stock Options granted pursuant to the Stock Option Agreement.
For the avoidance of doubt, nothing herein modifies the terms of
any stock options granted Employee after the Effective
Date. |
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b. |
Termination for Cause or resignation without Good Reason
If the Employee’s employment shall be terminated by Employer
for Cause or by Employee without Good Reason, the Company shall pay
Employee her earned salary and unused vacation benefits at the rate
in effect at the time of the notice of termination to Employee, and
the Company shall thereafter have no further obligations to the
Employee. |
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c. |
Termination For Disability Employer may terminate
Employee’s employment at any time on account of Disability.
“Disability” means a physical or mental illness,
injury, or condition that prevents Employee from performing
substantially all duties under this Agreement for at least 90
consecutive calendar days or for at least 120 calendar days,
whether or not consecutive, in any 365 calendar day period, or is
likely to do so, as certified by a physician selected by the
Company or its Board of Directors. In the event of such
termination, Employer’s sole obligation shall be as provided
by applicable law and its then-current applicable disability
benefits, except that the vested percentage of the Stock Options
shall be determined by adding 12 months to Employee’s actual
service. |
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d. |
Conditions of Receiving Severance Benefits The severance
package provided in Section (a) above will be paid provided
Employee meets the following conditions: (1) Employee complies
with all surviving provisions of confidentiality agreements signed
by Employee and (2) Employee executes a full general release,
in form acceptable to Employer, releasing all claims, known or
unknown, that Employee may have against Employer and its
affiliates, provided that Employee shall not be required to release
any claims for indemnification under state law, Employer’s
charter documents or any indemnification agreement between Employer
and Employee. |
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e. |
Death If Employee dies during or after the Term, the
Company shall pay Employee’s estate Employee’s earned
salary and unused vacation benefits at the rate in effect at the
time of death, and the vested percentage of the Stock Options shall
be determined by adding 12 months to Employee’s actual
service. Company shall thereafter have no further obligations to
the Employee or her estate. |
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f. |
“Cause” as defined herein means termination
for the following reasons: (i) theft, dishonesty or
falsification of records of Employer or its affiliates;
(ii) improper disclosure of Employer or its affiliates’
confidential information; (iii) Employee’s failure or
inability to perform any reasonable assigned duties after written
notice from Employer of, and a reasonable opportunity to cure, such
failure or inability; or (iv) Employee’s conviction of
any criminal act which impairs her ability to perform her duties as
an Employee of Employer (v) Employee’s violation of
AMCC’s rules and policies of employment after written notice
from Employer of, and a reasonable opportunity to cure, such
violation, or (vi) Employee’s repeated failure to follow
Employer’s directions. |
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g. |
“Good Reason” as defined herein means
(i) a material reduction in Employee’s Base Salary, or
(ii) relocation of Employee’s principal place of work to
a location more than 25 miles from Employer’s current
location, without Employee’s prior approval, or
(iii) Employee’s Vice President title is taken away by
the Employer, or (iv) Employer materially and drastically
changes the Employees’ duties and responsibilities so that
such duties and responsibilities, as changed, are both 1)
materially different in nature from duties and responsibilities of
other similarly situated Employees of Employer, and 2) materially
different from Employee’s duties and responsibilities
promptly after the Effective Date. Employee shall provide Employer
with written notice detailing the occurrence and nature of an event
providing Employee with Good Reason to resign and a 15 day
opportunity to cure such event prior to resigning for Good
Reason. |
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h. |
Exclusive Severance Benefits Employee acknowledges that
the benefits provided hereunder are in lieu of any other benefits
to which Employee may be eligible under any other agreements ,
severance plans or practices of Employer and its affiliates and
that the vesting acceleration provisions herein supercede any and
all acceleration provisions in the Stock Option
Agreement. |
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9. |
CONFIDENTIALITY AND INVENTION ASSIGNMENT Concurrently
herewith, Employee is executing the attached Employee Proprietary
Information and Inventions Agreement. Employee acknowledges that
the obligations thereunder are in addition to, and not in lieu of,
any confidentiality and invention assignment obligations previously
agreed to by Employee. |
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11. |
NON SOLICITATION Employee acknowledges that solicitation
of the Employer or its affiliates’ customers, suppliers or
employees under certain circumstances would necessarily involve the
use or disclosure of Employer’s or its affiliates
confidential or proprietary information. Accordingly, while
employed by Employer and thereafter for the greater of a) eighteen
(18) months after the Effective Date or, b) twelve
(12) months after termination of Employee’s employment
by the Company (whether by Employee or Employer, whether with
Cause, Good Reason or otherwise), Employee shall not, directly or
indirectly, for the benefit of the Employee or any third party,
(i) call on or solicit any past, present or prospective
customer or supplier of the Employer or its affiliates,
(ii) interfere with Employer or its affiliates’
relationship with any past, present or prospective customer or
supplier or (iii) solicit the employment or engagement of any
person employed by or otherwise providing services to the Employer
or its affiliates. |
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12. |
ARBITRATION Unless otherwise required by applicable law,
any dispute arising out of or relating to the employment
relationship, termination thereof, or this Agreement shall be
resolved by binding arbitration before an arbitrator experienced in
employment law. Said arbitration will be conducted in accordance
with the rules applicable to employment disputes of Judicial
Arbitration and Mediation Services, and the law of California.
Employer shall pay any filing fee and the fees and costs of the
arbitrator, unless Employee initiates the claim, in which case
Employee will contribute an amount equal to the filing fee for a
claim initiated in a court of general jurisdiction in California.
Arbitration as provided in this Section shall be the exclusive and
binding remedy for any such dispute and will be used instead of any
court action, which is hereby expressly waived, except for any
request by either of us for temporary or preliminary injunctive
relief pending arbitration in accordance with applicable
law. |
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13. |
INTERPRETATION AND EXCLUSIVE FORUM The validity,
interpretation, construction, and performance of this Agreement
shall be governed by the laws of the State of California (excluding
any that mandate the use of another jurisdiction’s
laws). |
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14. |
ASSIGNMENT This Agreement may not be assigned by
Employee. This Agreement may be assigned by Employer to its
affiliates or as part of the sale of all or substantially all of
its assets or business, after which any reference to
“Employer” in this Agreement shall be deemed to be a
reference to the affiliate or successor, and the company thereafter
shall have no further primary, secondary or other responsibilities
or liabilities under this Agreement of any kind. Employer may
change its legal name, and a name change shall have no impact on
this Agreement. |
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15. |
VALIDITY . The invalidity or unenforceability of
any provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which
shall remain in full force and effect. |
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16. |
COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original
but all of which together shall constitute the same
instrument. |
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17.
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ENTIRE AGREEMENT . All
oral or written agreements or representations, express or implied,
with respect to the subject matter of this Agreement are set forth
in this Agreement (including its Exhibit “A”, whose
obligations are cumulative to the obligations hereunder). This
Agreement supercedes all prior or contemporaneous agreements and
understandings regarding the subject matter hereof, oral or
written, between Employer and Employee, including, without
limitation, the Stock Option Agreement’s vesting acceleration
provisions, which agreements and understand
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