EXHIBIT 10.8
EMPLOYMENT CONTRACT
between
Net+Silicon Inc., USA
411 Waverley Oaks Road
Building 227
Waltham
Mass. 02452
U.S.A.
- hereinafter referred to as "Company" -
and
Mr. Michael Evenson
Lerchenstrasse 14
71144 Steinenbronn
Germany
- hereinafter referred to as " Senior Manager " -
RECITAL
The Company and Senior Manager desire to enter into an Employment
Agreement setting forth the terms and conditions of Senior Manager's employment
with the Company.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth, the Company and Senior Manager agree as
follows:
1. Employment.
(a) Term. The Senior Manager shall be employed by the Company as
Vice President and General manager responsible for the Company's business
activities in Europe and the
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Industrial Automation Market worldwide (EIA). Specific responsibilities and to
serve in such additional or different position or positions as the Company may
determine in its sole discretion. This employment contract shall become
effective on the date hereof, and is entered into for an indefinite period of
time. The contract shall end without notice no later than at the end of the
month in which the Senior Manager fulfills the conditions to receive state old
age pension benefits unless earlier terminated as set forth herein.
(b) Duties and Responsibilities. Senior Manager will be reporting
to Cornelius Peterson, President and shall be responsible for:
Establishing European Operation with Sales, Support and Marketing.
Develop the European Operation in line with Company objectives.
Develop and operate the Company's Worldwide Industrial Automation
Business via local Sales, Support and Marketing functions in
Europe, ASIA and the Americas.
Develop and accomplish a mutually agreeable business plan
including products, marketing, sales budgets and profit and
capital plan. This plan must be accepted by the company before it
can be implemented and will be subject to regular review and
updating to reflect the needs for profitability and growth with
respect to prevailing business conditions.
(c) Controls. In performing these responsibilities Senior Manager
must conform to the Company standard practices and controls for financial and
contractual commitments, expenditures and obligations.
(d) Location. The initial principal location at which Senior
Manager shall perform services for the Company shall be Germany. The Company
reserves the right to transfer the Senior Manager to another place of work if
this is necessary for business reasons and if such transfer can reasonably be
imposed on the Senior Manager.
2. Compensation
(a) Base Salary. Executive shall be paid a base salary ("Base
Salary") at the annual rate of US$4807.69, payable in bi-weekly installments
consistent with Company's payroll practices which is equivalent to an annual
base salary of US$125,000.00. The annual Base Salary shall be reviewed on or
before January 1 of each year, unless Senior Manager's employment hereunder
shall have been terminated earlier pursuant to this Agreement, starting on
January 1st 2000 by the Executive Management group of the Company to determine
if such Base Salary should be changed for the following year.
(b) Commission. In addition to the Base Salary Senior Manager is
entitled to an incentive package targeted at $125,000 per year at 100% of
attainment of mutually accepted business and performance goals and targets. The
yearly goals will be described in a separate
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agreement to be agreed on or before January 1st of each year. Attachment 1
contains the First year's goals. Commissions are paid monthly in the following
month and will be guaranteed for the first three months at the following rate
mo. 1 - 80%, mo. 2 and 3 - 70% mo. A recoverable draw against commissions will
be made available for the second three months, if requested by Senior Manager,
at a rate of 50% of standard monthly commission ($125,000 : 12). The Company
reserves the right to modify the Commission Plan at any time.
(c) Payment. Payment of all compensation to Senior Manager
hereunder shall be made in accordance with the relevant Company policies in
effect from time to time, including normal payroll practices, and shall be
subject to all applicable employment and withholding taxes in Germany. By
payment of the above remuneration all activities which the Senior Manager has to
perform according to this contract shall be deemed compensated. In particular,
the Senior Manager shall not be entitled to any additional compensation for
overtime work.
3. Other Employment Benefits.
(a) Business Expenses. Upon submission of itemized expense
statements in the manner specified by the Company, Senior Manager shall be
entitled to reimbursement for reasonable travel and other reasonable business
expenses duly incurred by Executive in the performance of his duties under this
Agreement.
(b) Benefit Plans. Senior Manager shall be entitled to participate
in the Company's medical and dental plans, life and disability insurance plans
pursuant to their terms and conditions. Senior Manager shall be entitled to
participate in any other benefit plan offered by the Company to its employees
during the term of this Agreement (other than stock option or stock incentive
plans, which are governed by Section 3(d) below). Nothing in this Agreement
shall preclude the Company or any affiliate of the Company from terminating or
amending any employee benefit plan or program from time to time.
(c) Vacation. Senior Manager shall be entitled to 2 weeks of
vacation for the first year and 3 weeks of paid vacation each subsequent year of
full employment, exclusive of legal holidays, as long as the scheduling of
Senior Manager's vacation does not interfere with the Company's normal business
operations.
(d) Stock Options. Senior Manager shall be awarded 40,000 stock
options in NETsilicon. These options will be awarded on the date of the new
Company is established and vesting starts on the first day of employment. The
strike price of the options will be the same as that for the other senior
employees and that of the Initial Public Offering. The vesting will be over a 2-
year period on a basis or 50% vested at the end of the first year and 100% at
the end of the second year. Senior manager is eligible to participate in the
Companies additional options programs such as annual performance options,
Employee stock purchase and 401k stock contributions by the Company. For all
design wins over the quota during the first 6 months of employment Senior
Manager will be given 500 additional stock options at the prevailing price as
set by the Board of Directors.
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(e) No Other Benefits. Senior Manager understands and acknowledges
that the compensation specified in Sections 2 and 3 of this Agreement shall be
in lieu of any and all other compensation, benefits and plans.
4. Senior Manager's Business Activities. The Senior Manager shall
devote his full working time and ability to the Company's business. All other
activity for remuneration or activity which normally entitles to remuneration,
including any part time work, is prohibited unless the Company has given its
prior written consent. The Company shall grant such consent if the additional
activity does not adversely affect the Company's interests.
5. Termination of Employment. Any notice of termination must be
given in writing to be effective
(a) For Cause. Notwithstanding anything herein to the contrary,
the Company may terminate Senior Manager's employment hereunder for cause for
any one of the following reasons: (1) conviction of a felony, any act involving
moral turpitude, or a misdemeanor where imprisonment is imposed, (2) commission
of any act of theft, fraud, dishonesty, or falsification of any employment or
Company records, (3) improper disclosure of the Company's confidential or
proprietary information, (4) any action by the Senior Manager which has a
detrimental effect on the Company's reputation or business, (5) Senior Manager's
failure or inability to perform any reasonable assigned duties after written
notice from the Company of, and a reasonable opportunity to cure, such failure
or inability, (6) any breach of this Agreement, which breach is not cured within
ten (10) days following written notice of such breach, (7) a course of conduct
amounting to gross incompetence, (8) chronic and unexcused absenteeism, (9)
unlawful appropriation of a corporate opportunity, or (10) misconduct in
connection with the performance of any of Senior Manager's duties, including,
without limitation, misappropriation of funds or property of the Company,
securing or attempting to secure personally any profit in connection with any
transaction entered into on behalf of the Company, misrepresentation to the
Company, or any violation of law or regulations on Company premises or to which
the Company is subject. Upon termination of Senior Manager's employment with the
Company for cause, the Company shall be under no further obligation to Senior
Manager, except to pay all accrued but unpaid base salary and accrued vacation
to the date of termination thereof.
(b) Without Cause. The Company may terminate Senior Manager's
employment hereunder at any time without cause, provided, however, that Senior
Manager shall be entitled to 6 months notice period. During this period Senior
Manager will continue to discharge his responsibilities and be able to seek new
employment. In case of such termination of this employment contract, the Company
can, at any time, release the Senior Manager from his working duties until the
end of the notice period. In such case the Company shall continue to pay to the
Senior Manager his contractual remuneration in the amount of 6 Months of Base
Salary in addition to accrued but unpaid Base Salary and accrued vacation, less
deductions required by law,until the end of the notice period. Any outstanding
vacation claim shall be credited by the such [sic] period of release. Such
Payments to Senior Manager are due if, and only if, Senior Manager executes a
valid and comprehensive release of any and all claims that the Senior Manager
may have against the Company in a form provided by the Company and Senior
Manager executes such form within seven (7) days
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of tender. If the Senior Manager terminates his employment hereunder he must
give a minimum of a three- (3) month notice period.
(c) Cooperation. After notice of termination, Senior Manager shall
cooperate with the Company, as reasonably requested by the Company, to effect a
transition of Senior Manager's responsibilities and to ensure that the Company
is aware of all matters being handled by Senior Manager.
6. Disability of Senior Manager. The Company may terminate this
Agreement without liability if Senior Manager shall be permanently prevented
from properly performing his essential duties hereunder with reasonable
accommodation by reason of illness or other physical or mental incapacity for a
period of more than [120] consecutive days.
7. Death of Senior Manager. In the event of the death of Senior
Manager during the Employment Period, the Company's obligations hereunder shall
automatically cease and terminate; provided, however, that within 15 days the
Company shall pay to Senior Manager's heirs or personal representatives Senior
Manager's Base Salary and accrued vacation accrued to the date of death.
8. Confidential Information and Invention Assignments. Senior
Manager has executed the Company Confidential Information and Invention
Assignment Agreement (See attachment 2-the "Confidential Information and
Invention Assignment Agreement"). The obligations under the Confidential
Information and Invention Assignment Agreement shall survive termination of this
Agreement for any reason.
9. Exclusive Employment. During employment with the Company,
Senior Manager will not do anything to compete with the Company's present or
contemplated business, nor will he or she plan or organize any competitive
business activity. Senior Manager will not enter into any agreement which
conflicts with his duties or obligations to the Company. Senior Manager will not
during his employment, without the Company's express written consent, directly
or indirectly, solicit or encourage any employee, agent, independent contractor,
supplier, customer, consultant or any other person or company to terminate or
alter a relationship with the Company.
10. Assignment and Transfer. Senior Manager's rights and
obligations under this Agreement shall not be transferable by assignment or
otherwise, and any purported assignment, transfer or delegation thereof shall be
void. This Agreement shall inure to the benefit of, and be binding upon and
enforceable by, any purchaser of substantially all of Company's assets, any
corporate successor to Company or any assignee thereof.
11. Existing Obligations. Your start date is targeted at Oct 15,
1998 and we understand that you have requirements to support your current
employer in the transition to their replacement staffing on a mutually agreeable
basis. You are authorized to fulfill whatever obligations are necessary to
former employer until December 31, 1998. Any such time spent on the behalf of
former employer will be taken without compensation to you by Company.
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12. Miscellaneous.
(a) Attorneys' Fees. Should either party hereto, or any heir,
personal representative, successor or assign of either party hereto, resort to
legal proceedings in connection with this Agreement or Senior Manager's
employment with the Company, the party or parties prevailing in such legal
proceedings shall be entitled, in addition to such other relief as may be
granted, to recover its or their reasonable attorneys' fees and costs in such
legal proceedings from the non-prevailing party or parties; provided, however,
that nothing herein is intended to affect the provisions of Section 12(l).
(b) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of Germany.
(c) Entire Agreement. This Agreement contains the entire agreement
and understanding between the parties hereto and supersedes any prior or
contemporaneous written or oral agreements, representations and warranties
between them respecting the subject matter hereof.
(d) Amendment. This Agreement may be amended only by writing
signed by Senior Manager and by a duly authorized representative of the Company.
(e) Severability. If any term, provision, covenant or condition of
this Agreement, or the application thereof to any person, place or circumstance,
shall be held to be invalid, unenforceable or void, the remainder of this
Agreement and such term, provision, covenant or condition as applied to other
persons, places and circumstances shall remain in full force and effect.
(f) Construction. The headings and captions of this Agreement are
provided for convenience only and are intended to have no effect in construing
or interpreting this Agreement. The language in all parts of this Agreement
shall be in all cases construed according to its fair meaning and not strictly
for or against the Company or Senior Manager.
(g) Rights Cumulative. The rights and remedies provided by this
Agreement are cumulative, and the exercise of any right or remedy by either
party hereto (or by its successor), whether pursuant to this Agreement, to any
other agreement, or to law, shall not preclude or waive its right to exercise
any or all other rights and remedies.
(h) Nonwaiver. No failure or neglect of either party hereto in any
instance to exercise any right, power or privilege hereunder or under law shall
constitute a waiver of any other right, power or privilege or of the same right,
power or privilege in any other instance. All waivers by either party hereto
must be contained in a written instrument signed by the party to be charged and,
in the case of the Company, by an officer of the Company (other than Senior
Manager) or other person duly authorized by the Company.
(i) Remedy for Breach; Attorneys' Fees. The parties hereto agree
that, in the event of breach or threatened breach of any covenants of Senior
Manager, the damage or imminent damage to the value and the goodwill of the
Company's business shall be inestimable, and
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that therefore any remedy at law or in damages shall be inadequate. Accordingly,
the parties hereto agree that the Company shall be entitled to injunctive relief
against Senior Manager in the event of any breach or threatened breach of any of
such provisions by Senior Manager, in addition to any other relief (including
damages) available to the Company under this Agreement or under law. The
prevailing party in any action instituted pursuant to this Agreement shall be
entitled to recover from the other party its reasonable attorneys' fees and
other expenses incurred in such action.
(j) Notices. Any notice, request, consent or approval required or
permitted to be given under this Agreement or pursuant to law shall be
sufficient if in writing, and if and when sent by certified or registered mail,
with postage prepaid, to Senior Manager's residence (as noted in the Company's
records), or to the Company's principal office, as the case may be.
(k) Assistance in Litigation. Senior Manager shall, during and
after termination of employment, upon reasonable notice, furnish such
information and proper assistance to the Company as may reasonably be required
by the Company in connection with any litigation in which it or any of its
subsidiaries or affiliates is, or may become a party; provided, however, that
such assistance following termination shall be furnished at mutually agreeable
times and for mutually agreeable compensation.
(l) Disputes. Any controversy, claim or dispute arising out of or
relating to this Agreement or the employment relationship, either during the
existence of the employment relationship or afterwards, between the parties
hereto, their assignees, their affiliates, their attorneys, or agents, shall be
litigated solely in Germany. Each party (1) submits to the jurisdiction of such
court, (2) waives the defense of an inconvenient forum, (3) agrees that valid
consent to service may be made by mailing or delivery of such service to the
party's last known address, if personal service delivery can not be easily
effected, and (4) authorizes and directs the Agent to accept such service in the
event that personal service delivery can not easily be effected.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date set forth below.
[COMPANY] Senior Manager,:
By: By:
---------------------------------- -------------------------------
Name: Cornelius Peterson Name: Michael Evensen
--------------------------------- -----------------------------
Title: President NET+SILICON Division
-------------------------------
Date: October 1st 1998
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Attachment 1
Commission Incentive Goals for 1999
Q1 and Q1 1999 based on design wins as stated below and paid in accordance with
the same practices as all other employees. If at the end of the first 3 months
these goals are deemed by either party to be significantly unfair either party
can request a change in the goals and the request will be negotiated. The
incentive for the Design Wins will be paid at a rate of determined by the # of
wins at quota divided into the standard incentive for the quota period. A design
win is a PO for a development kit and a cancelable PO for the first shipping
year of chips.
Business area Q1 Q2
Europe New markets 3 7
IA Europe 3 5
IA Japan 1 3
IA USA 7 9
Total Design Win Goals 14 24
- - - -------------------------------------------------------------------------
Q3 and on Based on attainment of EIA Revenue and operating profit mutually
agreeable goals.
Approved by
C Peterson
M Evensen
Date
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Attachment 2
NETsilicon Confidential Information and Invention assignment agreement