EXHIBIT 10.39
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
OF DAVIDI GILO
WITH
DSP TELECOM, INC.
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Agreement"), made and
entered into effective as of this 19th day of December, 1995, by and between DSP
TELECOM, INC., a California corporation (hereinafter the "Corporation"), and
DAVIDI GILO (hereinafter "Gilo").
RECITALS
A. On August 1, 1994, Gilo and the Corporation entered into an Employment
Agreement (the "Employment Agreement"), for the provision by Gilo of certain
services to the Corporation.
B. The Corporation and Gilo desire to amend and restate the Employment
Agreement according to the terms and conditions set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. EMPLOYMENT DUTIES.
a. GENERAL. The Corporation hereby agrees to employ Gilo, and Gilo
hereby agrees to accept employment with the Corporation, on the terms and
conditions hereinafter set forth.
b. CORPORATION'S DUTIES. The Corporation shall allow Gilo to, and
Gilo shall, perform responsibilities normally incident to his position as
Chairman, subject to his election by the shareholders as a Director, but
otherwise as the immediate superior to the Chief Executive Officer of the
Corporation, commensurate with his background, education, experience and
professional standing. The Corporation shall provide Gilo with a private
office, stenographic help, office equipment, supplies, customary services and
cooperation suitable for the performance of his duties. These duties shall be
performed primarily in Santa Clara, California.
c. GILO'S DUTIES. Unless otherwise agreed to by the parties, Gilo
shall serve as the Chairman of the Board of the Corporation's parent, DSP
Communications, Inc. ("DSPC"), a Delaware corporation. Gilo shall devote at
least twenty (20) hours per week on
average to the work of the Corporation. Gilo shall report directly to DSPC's
Board of Directors. Gilo's service for DSPC's subsidiaries, including,
without limitation, the Corporation, DSP Telecommunications, Ltd , CTP
Systems, Ltd, DSPC Israel, Ltd, DSPC Japan, Inc., and CTP Systems, Inc. shall
be credited to the twenty (20) hour requirement. Mr. Gilo shall inform the
Board of any other positions that he takes with any other corporation.
2. TERM. This Agreement shall terminate December 31, 2001, unless (a)
extended as set forth herein, or (b) terminated sooner under the terms of
this Agreement. Thereafter, this Agreement may be renewed by Gilo and the
Board of Directors of this Corporation on such terms as the parties may agree
to in writing. Absent written notice to the contrary, thirty (30) days prior
to the end of the employment term, this Agreement will be renewed for
consecutive one (1) year extensions. As used herein, the term "employment
term" refers to the entire period of employment of Gilo hereunder, including
any extensions.
3. COMPENSATION. Gilo shall be compensated as follows:
a. FIXED SALARY. Gilo shall receive a fixed annual salary of Three
Hundred Thousand Dollars ($300,000). The Corporation agrees to review the fixed
salary following the end of each twelve (12) month period during the employment
term based upon Gilo's services and the Corporation's financial results during
the calendar year, and to make such increases as may be determined appropriate
in the discretion of the Corporation's Board of Directors.
b. PAYMENT. Gilo's fixed salary shall be payable on a semi-monthly
basis.
c. BONUS COMPENSATION. During the employment term, Gilo shall
participate in each bonus plan adopted by the Corporation's Board of Directors.
Commencing in 1996, Gilo shall be entitled to receive an annual bonus equal to
(i) twenty-five percent (25%) of his base salary should this Corporation meet
eighty percent (80%) of its plan as presented to the Board in January of each
year, during the term of Gilo's employment ("Yearly Plan"); (ii) fifty percent
(50%) of his base salary should this Corporation meet its Yearly Plan; and (iii)
one hundred percent (100%) of his base salary should this Corporation meet one
hundred twenty percent (120%) of its Yearly Plan, with the bonus prorated if the
Yearly Plan is met between eighty percent (80%) and one hundred percent (100%);
or between one hundred percent (100%) and one hundred twenty percent (120%).
The meeting of the Yearly Plan for purposes of this Section shall be based upon
the actual revenues and earnings per share for each applicable year (each
weighted fifty percent (50%)) compared to the revenues and
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earnings per share projected in the Yearly Plan (with each item weighted
fifty percent (50%)) and no item shall be counted if it is not at least
eighty percent (80%) met.
d. VACATION. Gilo shall accrue paid vacation at the rate of
twenty-five (25) days for each twelve (12) months of employment. Gilo shall
be compensated at his usual rate of compensation during any such vacation.
Gilo shall be entitled to ten (10) paid holidays during each twelve (12)
months of employment.
e. BENEFITS. During the employment term, Gilo and his dependents
shall be entitled to participate in any group plans or programs maintained by
the Corporation for any employees relating to group health, disability, life
insurance and other related benefits as in effect from time to time. The level
of benefits shall be based on the salary payable to Gilo. The Corporation shall
provide Gilo with Director and Officer Insurance, if reasonably available to the
Corporation, and all of its officers and directors. Gilo shall in no event
receive less insurance coverage than that available to any other employee. The
Corporation shall, at a minimum, keep in full force and effect its
indemnification agreement previously entered into with Gilo.
4. EXPENSES. The Corporation shall reimburse Gilo for his normal and
reasonable expenses incurred for travel, entertainment and similar items in
promoting and carrying out the business of DSPC in accordance with the
Corporation's general policy as adopted by the Corporation's management from
time to time. As a condition of reimbursement, Gilo agrees to provide the
Corporation with copies of all available invoices and receipts, and otherwise
account to the Corporation in sufficient detail to allow the Corporation to
claim an income tax deduction for such paid item, if such item is deductible.
Reimbursements shall be made on a monthly, or more frequent, basis. The
Corporation shall also reimburse Gilo for all professional membership dues
incurred, if any; all technical books purchased by Gilo; and all moving and
relocation expenses, incurred by Gilo at the Corporation's request.
5. CONFIDENTIALITY AND COMPETITIVE ACTIVITIES. Gilo agrees that during
the employment term he is in a position of special trust and confidence and has
access to confidential and proprietary information about the Corporation's
business and plans. Gilo agrees that he will not directly or indirectly, either
as an employee, employer, consultant, agent, principal, partner, stockholder,
corporate officer, director, or in any similar individual or representative
capacity, engage or participate in any business that is in competition, in any
manner whatsoever, with the Corporation. Notwithstanding anything in the
foregoing to the
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contrary, Gilo shall be allowed to invest as a shareholder in publicly traded
companies, or through a venture capital firm or an investment pool.
For purposes of this Section 5, the term "Corporation" shall also mean DSPC
or any of its subsidiaries.
6. TRADE SECRETS.
a. SPECIAL TECHNIQUES. It is hereby agreed that the Corporation has
developed or acquired certain products, technology, unique or special methods,
manufacturing and assembly processes and techniques, trade secrets, special
written marketing plans and special customer arrangements, and other proprietary
rights and confidential information and shall during the employment term
continue to develop, compile and acquire said items (all hereinafter
collectively referred to as the "Corporation's Property"). It is expected that
Gilo will gain knowledge of and utilize the Corporation's Property during the
course and scope of his employment with the Corporation, and will be in a
position of trust with respect to the Corporation's Property.
b. CORPORATION'S PROPERTY. It is hereby stipulated and agreed that
the Corporation's Property shall remain the Corporation's sole property. In the
event that Gilo's employment is terminated, for whatever reason, Gilo agrees not
to copy, make known, disclose or use, any of the Corporation's Property without
the Corporation's prior written consent which shall not be unreasonably
withheld. In such event, Gilo further agrees not to endeavor or attempt in any
way to interfere with or induce a breach of any prior proprietary contractual
relationship that the Corporation may have with any employee, customer,
contractor, supplier, representative, or distributor for nine (9) months. Gilo
agrees upon termination of employment to deliver to the Corporation all
confidential papers, documents, records, lists and notes (whether prepared by
Gilo or others) comprising or containing the Corporation's Property. Gilo
recognizes that violation of covenants and agreements contained in this
Section 6 may result in irreparable injury to the Corporation which would not be
fully compensable by way of money damages.
c. COVENANT NOT TO COMPETE. For a period of one (1) year from the
date of any termination of Gilo's employment with the Corporation, provided that
he has sold substantially all of his stock in the Corporation, Gilo shall not,
directly or indirectly, either as an employee, employer, consultant, agent,
principal, partner, stockholder, corporate officer, Director, or in any other
individual or representative capacity, engage or participate in any
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activities within the State of California, which are the same as, or
competitive with, the activities in which the Corporation is presently
engaged.
d. CORPORATION DEFINED. For purposes of this Section 6, the term
"Corporation" shall also mean DSPC and any of its subsidiaries.
7. TERMINATION.
a. GENERAL. The Corporation may terminate this Agreement without
cause, by written notice. Gilo may voluntarily terminate his employment
hereunder upon ninety (90) days' advance written notice to the Corporation.
b. TERMINATION FOR CAUSE. The Corporation may immediately terminate
Gilo's employment at any time for cause. Termination for cause shall be
effective from the receipt of written notice thereof to Gilo specifying the
grounds for termination and all relevant facts. Cause shall be deemed to
include: (i) material neglect of his duties or a significant violation of any
of the provisions of this Agreement, which continues after written notice and a
reasonable opportunity (not to exceed thirty (30) days) in which to cure;
(ii) fraud, embezzlement, defalcation or conviction of any felonious offense; or
(iii) intentionally imparting confidential information relating to the
Corporation or DSPC or their business to competitors or to other third parties
other than in the course of carrying out his duties hereunder. The
Corporation's exercise of its rights to terminate with cause shall be without
prejudice to any other remedy it may be entitled at law, in equity, or under
this Agreement.
c. TERMINATION UPON DEATH OR DISABILITY. This Agreement shall
automatically terminate upon Gilo's death. In addition, if any disability or
incapacity of Gilo to perform his duties as the result of any injury, sickness,
or physical, mental or emotional condition continues for a period of thirty (30)
business days (excluding any accrued vacation) out of any one hundred twenty
(120) calendar day period, the Corporation may terminate Gilo's employment upon
written notice. Payment of salary to Gilo during any sick leave shall only be
to the extent that Gilo has accrued sick leave or vacation days. Gilo shall
accrue sick leave at the same rate generally available to the Corporation's
employees.
d. SEVERANCE PAY. If this Agreement is terminated without cause
pursuant to Section 7.a. (above), the Corporation shall pay Gilo a
severance/consulting fee equal to the full amount of the compensation that he
could have expected under this Agreement, as and when payable under this
Agreement, without deduction except for tax withholding amounts, through the end
of the term, during which Gilo shall remain as a consultant to the Corporation.
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The Corporation shall pay Gilo a severance fee equal to his monthly salary at
his then-current rate of fixed salary compensation, multiplied by the number six
(6) if this Agreement is terminated pursuant to Section 7.b (i) (above). The
Corporation shall pay Gilo a severance fee equal to his monthly salary at his
then-current rate of fixed salary compensation, multiplied by the number
eighteen (18), if Gilo voluntarily elects to terminate his employment, unless
the Corporation successfully claims that a termination in accordance with
Section 7. b(ii) and (iii) is in order, or if Gilo or the Corporation elects not
to renew this Agreement. There shall be no severance in the event that this
Agreement is terminated in accordance with Section 7.b (ii) and (iii).
8. CORPORATE OPPORTUNITIES.
a. DUTY TO NOTIFY. In the event that Gilo, during the employment
term, shall become aware of any material and significant business opportunity
directly related to the Corporation's digital signal processing business or the
Corporation's wireless PBX business, or such other businesses that become
significant for the Corporation, Gilo shall promptly notify the Corporation's
Directors of such opportunity. Gilo shall not appropriate for himself or for
any other person other than the Corporation, or any affiliate of the
Corporation, any such opportunity unless, as to any particular opportunity, the
Board of Directors of the Corporation fails to take appropriate action within
thirty (30) days. Gilo's duty to notify the Corporation and to refrain from
appropriating all such opportunities for thirty (30) days shall neither be
limited by, nor shall such duty limit, the application of the general law of
California relating to the fiduciary duties of an agent or employee.
b. FAILURE TO NOTIFY. In the event that Gilo fails to notify the
Corporation of, or so appropriates, any such opportunity without the express
written consent of the Board of Directors, Gilo shall be deemed to have violated
the provisions of this Section notwithstanding the following:
i. The capacity in which Gilo shall have acquired such
opportunity; or
ii. The probable success in the Corporation's hands of such
opportunity.
c. CORPORATION DEFINED. For purposes of this Section 8, the term
"Corporation" shall also mean DSPC or any of its subsidiaries.
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9. MISCELLANEOUS.
a. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement and understanding between the parties with respect to the subject
matters herein, and supersedes and replaces any prior agreements and
understandings, whether oral or written between them with respect to such
matters. The provisions of this Agreement may be waived, altered, amended or
repealed in whole or in part only upon the written consent of both parties to
this Agreement.
b. NO IMPLIED WAIVERS. The failure of either party at any time to
require performance by the other party of any provision hereof shall not affect
in any way the right to require such performance at any time thereafter, nor
shall the waiver by either party of a breach of any provision hereof be taken or
held to be a waiver of any subsequent breach of the same provision or any other
provision.
c. PERSONAL SERVICES. It is understood that the services to be
performed by Gilo hereunder are personal in nature and the obligations to
perform such services and the conditions and covenants of this Agreement cannot
be assigned by Gilo. Subject to the foregoing, and except as otherwise provided
herein, this Agreement shall inure to the benefit of and bind the successors and
assigns of the Corporation.
d. SEVERABILITY. If for any reason any provision of this Agreement
shall be determined to be invalid or inoperative, the validity and effect of the
other provisions hereof shall not be affected thereby, provided that no such
severability shall be effective if it causes a material detriment to any party.
e. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of California, applicable to
contracts between California residents entered into and to be performed entirely
within the State of California.
f. NOTICES. All notices, requests, demands, instructions or other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given upon delivery, if
delivered personally, or if given by prepaid telegram, or mailed first-class,
postage prepaid, registered or certified mail, return receipt requested, shall
be deemed to have been given seventy-two (72) hours after such delivery, if
addressed to the other party at the addresses as set forth on the signature page
below. Either party hereto may change the address to which such communications
are to be
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directed by giving written notice to the other party hereto of such change in
the manner above provided.
g. MERGER, TRANSFER OF ASSETS, OR DISSOLUTION OF THE CORPORATION.
This Agreement shall not be terminated by any dissolution of the Corporation
resulting from either merger or consolidation in which the Corporation is not
the consolidated or surviving corporation or a transfer of all or substantially
all of the assets of the Corporation. In such event, the rights, benefits and
obligations herein shall automatically be assigned to the surviving or resulting
corporation or to the transferee of the assets.
h. CONFLICT. The parties acknowledge that Pezzola & Reinke, A
Professional Corporation ("P&R") is counsel to each of them. The parties have
been made aware of the conflict and advised to seek independent counsel. Gilo
acknowledges that P&R advised the Corporation and not Gilo. Gilo hereby
acknowledges the conflict and waives it as to P&R's participation in this
Agreement. The Corporation acknowledges the conflict and waives it as to P&R's
participation in this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
DSP TELECOM, INC.
a California corporation
20300 Stevens Creek Blvd., Ste. 465
Cupertino, CA 95014
By: /S/ NATHAN HOD /S/ DAVIDI GILO
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NATHAN HOD, DAVIDI GILO
Chairman of the Board 100 Why Worry Lane
Woodside, CA 94062
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