EXHIBIT 10.26
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
OF STEPHEN P. PEZZOLA
WITH
DSP COMMUNICATIONS, INC. AND DSP TELECOM, INC.
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Agreement"), made and
entered into effective as of the 1st day of January, 1998, by and between DSP
COMMUNICATIONS, INC., a Delaware corporation (hereinafter "DSPC"), DSP TELECOM,
INC., a California corporation (hereinafter the "Corporation"), and STEPHEN P.
PEZZOLA (hereinafter "Pezzola").
RECITALS
A. Effective September 16, 1996, Pezzola, DSPC and the Corporation
entered into an Employment Agreement (the "Employment Agreement") pursuant to
which Pezzola was employed as DSPC's General Counsel, and as an employee of the
Corporation. DSPC is the parent corporation of the Corporation.
B. DSPC, the Corporation, and Pezzola desire to amend certain terms of
the Employment Agreement entered into on September 16, 1996, as 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 Pezzola, and
Pezzola hereby agrees to accept employment with the Corporation, on the terms
and conditions hereinafter set forth.
b. CORPORATION'S DUTIES. The Corporation shall allow Pezzola to,
and Pezzola shall, perform responsibilities normally incident to his position as
General Counsel of DSPC, commensurate with his background, education, experience
and professional standing. The Corporation shall provide Pezzola with a private
office, stenographic help, office equipment, supplies, customary services and
cooperation suitable for the performance of his duties.
c. PEZZOLA'S DUTIES. Unless otherwise agreed to by the parties,
Pezzola shall serve as General Counsel of DSPC, and to the extent requested by
the Chairman of the Board of Directors of DSPC, as General Counsel for any and
all subsidiaries of DSPC. For purposes of acting as an attorney for DSPC (or
any of its subsidiaries), Pezzola shall owe his duties of loyalty and
confidentiality directly to DSPC (or any of its subsidiaries). Pezzola shall
devote such time in executing his duties as General Counsel as is deemed needed
by the Chairman
of the Board of Directors of DSPC. Pezzola shall not be required to devote his
full time efforts to the Corporation or DSPC. It is intended that Pezzola will
work part time, approximately thirteen (13) hours per week, and that he will
serve as General Counsel of other entities and as an owner in an investment
entity. Pezzola shall report directly to the Chairman of the DSPC Board of
Directors. Mr. Pezzola shall inform the Chairman of the DSPC Board of Directors
of any other positions that he takes with any other entity, beyond the positions
that he currently holds. Pezzola's duties shall be performed primarily in the
San Francisco Bay Area, and more particularly, in either Cupertino or Oakland,
California, at the option of Pezzola.
2. TERM. This Agreement shall terminate December 31, 1998, unless
(a) extended as set forth herein, or (b) terminated sooner under the terms of
this Agreement. Thereafter, this Agreement may be renewed by Pezzola and the
Chairman of Board of Directors of DSPC 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 Pezzola hereunder, including any extensions.
3. COMPENSATION. Pezzola shall be compensated as follows:
a. FIXED SALARY. Pezzola shall receive a fixed annual salary of One
Hundred Fifteen Thousand Dollars ($115,000). The Corporation agrees to review
the fixed salary following the end of each calendar year during the employment
term based upon Pezzola's services and the financial results of DSPC during the
calendar year, and to make such increases as may be determined appropriate in
the discretion of DSPC's Compensation Committee of the Board of Directors
("Compensation Committee").
b. PAYMENT. Pezzola's fixed salary shall be payable on a
semi-monthly basis.
c. BONUS COMPENSATION. During the employment term, Pezzola shall
participate in each bonus plan adopted by DSPC, and shall receive such other
bonus pay as may be determined reasonable in the discretion of the Compensation
Committee.
d. VACATION. Pezzola shall accrue paid vacation at the rate of
twenty (20) days for each twelve (12) months of employment. Pezzola shall be
compensated at his usual rate of compensation during any such vacation. Pezzola
shall be entitled to ten (10) paid holidays during each twelve (12) months of
employment. Pezzola shall receive sick leave or disability leave in accordance
with the terms of the Corporation's standard sick leave or disability leave
policy.
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e. BENEFITS. Pezzola waives any entitlement he may have as a
Corporation employee to any benefits relating to group health, disability, life
insurance, retirement and other related benefits as in effect from time to time.
Such waiver shall be ineffective, however, for a Corporation employee benefit
plan in the event that such waiver would adversely impact the beneficial federal
income tax status of such plan. The Corporation shall provide Pezzola with
Director and Officer Insurance.
4. EXPENSES. The Corporation shall reimburse Pezzola for his normal and
reasonable expenses incurred for travel, entertainment and similar items in
promoting and carrying out the business of the Corporation in accordance with
the Corporation's general policy as adopted by the Corporation's management from
time to time. The Corporation shall pay Pezzola's cellular telephone expenses
up to an amount equal to Three Hundred Dollars ($300) per month, unless Pezzola
provides documentation to DSPC that Pezzola's cellular telephone use during a
particular month was directly related to the business of DSPC, in which case
DSPC shall pay all of the cellular telephone expenses attributable to the
business of DSPC during such month. As a condition of payment or reimbursement,
Pezzola 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 reimburse Pezzola for fifty percent
(50%) of all professional membership dues incurred, if any; fifty percent (50%)
of all technical books purchased by Pezzola; and one hundred (100%) of all legal
education and seminar expenses. The Corporation shall also reimburse Pezzola
for fifty percent (50%) of any California Bar Association dues or fees necessary
to maintain his certification as an attorney in California. It is noted that
Zen Research, Inc. is currently providing an office adjacent to the
Corporation's principal place of business to Pezzola at no expense to DSPC or
the Corporation.
5. INDEMNIFICATION. The parties agree to enter into an Indemnification
Agreement, effective September 16, 1996, under which DSPC will indemnify Pezzola
for actions he may take on behalf of the Corporation or DSPC.
6. CONFIDENTIALITY AND COMPETITIVE ACTIVITIES. Pezzola 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. Pezzola 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
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manner whatsoever, with the Corporation. Notwithstanding anything in the
foregoing to the contrary, Pezzola shall be allowed to invest as a shareholder
in publicly traded companies, or through a venture capital firm or an investment
pool.
7. 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
Pezzola 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 Pezzola's employment is terminated, for whatever reason, Pezzola
agrees not to copy, make known, disclose or use, any of the Corporation's
Property without the Corporation's prior written consent. In such event,
Pezzola 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 after any termination of this
Agreement. Pezzola agrees upon termination of employment to deliver to the
Corporation all confidential papers, documents, records, lists and notes
(whether prepared by Pezzola or others) comprising or containing the
Corporation's Property. Pezzola recognizes that violation of covenants and
agreements contained in this Section 7 may result in irreparable injury to the
Corporation which would not be fully compensable by way of money damages.
8. TERMINATION.
a. GENERAL. The Corporation may terminate this Agreement without
cause, by written notice. Pezzola may voluntarily terminate his employment
hereunder upon sixty (60) days' advance written notice to the Corporation.
b. TERMINATION FOR CAUSE. The Corporation may immediately terminate
Pezzola's employment at any time for cause. Termination for cause shall be
effective from the receipt of written notice thereof to Pezzola specifying the
grounds for termination and all relevant facts. Cause shall be deemed to
include: (i) material neglect of his duties or a
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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 Pezzola's death. In addition, if any disability or
incapacity of Pezzola 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
Pezzola's employment upon written notice. Payment of salary to Pezzola during
any sick leave shall only be to the extent that Pezzola has accrued sick leave
or vacation days. Pezzola shall accrue sick leave at the same rate generally
available to the Corporation's employees.
d. SEVERANCE PAY. If this Agreement is terminated by the
Corporation without cause pursuant to Section 8.a. (above), the Corporation
shall pay Pezzola a severance 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 Pezzola shall remain as an employee of the Corporation
in a non-policy making role. The Corporation shall pay Pezzola a severance fee
equal to his monthly salary at his then-current rate of fixed salary
compensation, multiplied by the number three (3) if this Agreement is terminated
with cause pursuant to Section 8.b (i) (above) or if Pezzola or the Corporation
elects not to renew this Agreement. The Corporation shall pay Pezzola a
severance fee equal to his monthly salary at his then-current rate of fixed
salary compensation, multiplied by the number three (3), if Pezzola voluntarily
elects to terminate his employment, unless the Corporation successfully claims
that a termination in accordance with Sections 8.b(ii) or (iii) is in order.
There shall be no severance in the event that this Agreement is terminated in
accordance with Section 8.b (ii) or (iii).
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9. CORPORATE OPPORTUNITIES.
a. DUTY TO NOTIFY. In the event that Pezzola, during the employment
term, shall become aware of any material and significant business opportunity
directly related to any of the Corporation's significant businesses, Pezzola
shall promptly notify DSPC's Chairman of the Board of such opportunity. Pezzola
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. Pezzola's duty to
notify DSPC and 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 Pezzola fails to notify the
Corporation of, or so appropriates, any such opportunity without the express
written consent of the Chairman of the Board of Directors of DSPC, Pezzola shall
be deemed to have violated the provisions of this Section notwithstanding the
following:
i. The capacity in which Pezzola shall have acquired such
opportunity; or
ii. The probable success in the Corporation's hands of such
opportunity.
c. CORPORATION DEFINED. For purposes of Sections 6, 7 and 9 hereof,
the term "Corporation" shall also include DSPC and all of DSPC's subsidiaries.
10. 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.
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c. PERSONAL SERVICES. It is understood that the services to be
performed by Pezzola hereunder are personal in nature and the obligations to
perform such services and the conditions and covenants of this Agreement cannot
be assigned by Pezzola. 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 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.
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h. CONFLICT POTENTIAL AND DUTY TO NOTIFY. Pezzola agrees to notify
the Chairman of the Board of Directors of DSPC of: (1) any investments in any
company or other entity of his own personal funds which is in excess of
$200,000; (2) any investment which results in Pezzola owning over five percent
(5%) of an entity; or (3) any other employment or consulting arrangement to
which Pezzola is a party. If the Chairman of the Board of Directors of DSPC
deems such investment or arrangement to be a conflict, he and Pezzola shall
attempt to resolve the conflict. If such conflict cannot be so resolved, then
the Chairman of the Board of Directors of DSPC shall discuss the matter with the
entire Board, and bring the matter to the Corporation's outside counsel.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
DSP TELECOM, INC. DSP COMMUNICATIONS, INC.
a California corporation a Delaware corporation
20300 Stevens Creek Blvd., Ste. 465 20300 Stevens Creek Blvd., Ste. 465
Cupertino, CA 95014 Cupertino, CA 95014
By: /S/ CINDY BYRNE By: /S/ CINDY BYRNE
------------------------------- -----------------------------
Cindy Byrne, Finance Manager Cindy Byrne, Finance Manager
/S/ STEPHEN P. PEZZOLA
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STEPHEN P. PEZZOLA
40 Yorkshire Drive
Oakland, CA 94618
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