EXECUTIVE EMPLOYMENT AGREEMENT
EXHIBIT 10.8.8
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (the Agreement) is made as of December 18, 2003 (the Effective Date), between Staktek Corporation, a Texas corporation (the Company), and Stephanie Lucie (Executive).
RECITALS
WHEREAS, the Company desires to retain the services of Executive as Vice President, General Counsel and Corporate Secretary;
WHEREAS, the Parties desire to enter into this Agreement to set forth the terms and conditions of Executives employment by the Company and to address certain matters related to Executives employment with the Company;
NOW, THEREFORE, in consideration of the foregoing and the mutual provisions contained herein, and for other good and valuable consideration, the Parties hereto agree as follows:
1. Employment. Effective on the Effective Date and subject to the terms and conditions of this Agreement, the Company agrees to employ Executive as its Vice President, General Counsel and Corporate Secretary, and Executive agrees to perform the duties associated with that position diligently and to the reasonable satisfaction of the Companys Board of Directors. From the Effective Date until termination of this Agreement, Executive will devote Executives full business time, attention and energies to the business of the Company. Executive will report to the Vice President and Chief Financial Officer of the Company, and will comply with the directives, policies, and guidelines established by the Companys Board of Directors from time to time.
2. Term and Termination.
(a) Term. Executive will be employed under this Agreement for an initial term of two (2) years (the Initial Term), beginning on the Effective Date. This Agreement shall renew for successive one (1) year periods after the completion of the Initial Term unless either party gives written notice of termination at least forty-five (45) days prior to the expiration of the Initial Term, or any renewal term.
(b) Termination. Notwithstanding the foregoing, either party may terminate this Agreement at any time, with or without Cause (defined below), by giving written notice of termination to the other party. Upon termination, neither party will have any continuing obligation to the other party, except that the provisions of Sections 3(c), 3(d), 5, 6, 7 and 8 and, to the extent not theretofore paid or provided in respect of services rendered prior to the date of termination, the provisions of Section 4, will survive any termination of this Agreement and will remain in effect in accordance with their terms.
(c) Cause. For purposes of this Agreement, a termination of employment is for Cause if the termination occurs because of Executives: (i) unauthorized use or disclosure of the confidential information or trade secrets of the Company, which use or disclosure causes, or could reasonably be expected to cause, material harm to the Company; (ii) conviction of, or plea of guilty or no contest to, a felony or any crime involving moral turpitude; (iii) willful misfeasance or gross misconduct in the performance of Executives duties; (iv) substance abuse that in any manner materially interferes with the performance of Executives duties; (v) chronic
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absence from work for reasons other than illness; or (vi) failure to perform Executives assigned duties, after receiving written and reasonable notice from the Company and an opportunity of at least thirty (30) days to correct any such failure and/or dispute the original notice.
3. Compensation.
(a) Beginning on the Effective Date, and thereafter during the term of Executives employment, the Company will pay Executive a base salary at the rate of $7,500.00 bi-weekly (the Base Salary), payable in accordance with the standard payroll practices of the Company in effect from time to time. All of Executives compensation under this Agreement will be subject to deduction and withholding authorized by Executive or required by applicable law. Salary adjustments will be determined by the Board of Directors, in its sole and absolute discretion, on at least an annual basis; however, under no circumstances may Executives salary be reduced below the Base Salary without her consent.
(b) Beginning on April 1, 2004, Executive will be eligible to participate in the Companys 401(k) Profit Sharing Plan (as may be amended by the Company from time to time) on substantially the same terms as other Vice Presidents of the Company.
(c) Beginning on the Effective Date, Executive will be eligible to participate in the Companys profit sharing program (attached hereto as Exhibit A, and as may be amended by the Company from time to time) on substantially the same terms as other Vice Presidents of the Company.
(d) Executive will be granted an option (the Option) to purchase up to One Hundred Twenty-Five Thousand (125,000) shares of the Companys common stock (the Option Shares), at an exercise price equal to $17.99. Consistent with the terms of the Companys 2003 Stock Option Plan, Thirty-One Thousand Two Hundred Fifty (31,250) Option Shares will vest on the first anniversary of the Effective Date of this Agreement, with the remaining Shares vesting in equal monthly installments over the following thirty-six (36) months of Executives employment with the Company. Except as otherwise provided in this Agreement, vesting of Option Shares shall cease upon the termination of Executives employment with the Company. The Option will be structured as an incentive stock option and will be immediately exercisable (subject to an unvested share repurchase right of the Company that would lapse in a schedule substantially similar to the vesting schedule of the Option described herein). Following a Change in Control (as defined in the 2003 Option Plan), the Option will vest in full if: (A) the Option is not assumed or substituted by the successor or; (B) if the Executives employment is terminated without Cause during the first twelve (12) months following the closing of the Change in Control transaction.
(e) In the event of a termination without Cause, the Company agrees: (A) to continue to pay Executive her then-current Base Salary for an additional twelve (12) months following the termination date, with the payments to be made in accordance with the Companys standard payroll practices, and on the Companys normal paydays; and (B) to accelerate vesting of the Option Shares that would have vested over the twelve (12) months following the termination date. The payments and the accelerated vesting of Option Shares set forth in this section shall be referred to collectively as the Severance Benefits. Executives right to the Severance Benefits is expressly conditioned on Executives execution of a customary general release of claims in favor of the Company, its affiliates and their respective directors, officers, employees, shareholders and partners, and her compliance with the surviving provisions of this Agreement and the Companys Employee Innovations and Proprietary Rights Assignment Agreement.
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4. Executive Benefits. Beginning on the Effective Date and thereafter during the term of this Agreement, the Company will provide to Executive such fringe benefits and perquisites that the Company provides to other executives of the Company, including participation in all Company health, dental and other employee benefit plans. On the date hereof, Executive will begin accruing paid vacation at a rate of 6.15 hours per pay period. Beginning on the sixth month of Executives employment, Executive will be entitled to take accrued paid vacation of up to four (4) weeks per year. In addition, the Company will reimburse Executive for reasonable out-of-pocket business expenses incurred and documented in accordance with the policies of the Company in effect from time to time.
5. Restrictive Covenants.
(a) Consideration For Promise To Refrain From Competing. Executive agrees that her services to the Company are special and unique; that the Companys disclosure of confidential and proprietary information, trade secrets, and specialized training and knowledge to Executive and Executives level of compensation and benefits are in consideration of and conditioned upon Executives covenant not to compete with Company following her termination as provided for in this Section 5. Executive further acknowledges and agrees that the benefits received by Executive pursuant to this Agreement constitute adequate consideration for Executives agreement to this Section 5. Executive acknowledges that this consideration is adequate for Executives promises contained within this Section 5 and gives rise to the Companys interest in ensuring that she refrains from post-termination competition as provided for herein.
(b) Covenant Not to Compete. The Noncompetition Period will begin on the Effective Date and end twelve (12) months after the date on which Executives employment with the Company terminates for any reason (the Termination Date). During the Noncompetition Period, Executive will not, directly or indirectly, on Executives own behalf or as an officer, director, employee, consultant or other agent of, or as a stockholder, partner or other investor in, any person or entity (other than the Company or its affiliates):
(i) Engage in any Business (as hereinafter defined) conducted by the Company (a Competing Business) within any geographic area in which the Company, its subsidiaries or affiliates conducts any business (including the United States) (the Territory); provided, however, that Executive shall not be precluded from working for any company whose primary business is memory modules, so long as Executive does not work on the development, design, manufacture or sale of memory module stacking technology or any other Competing Business, or;
(ii) Directly or indirectly influence or attempt to influence any customer, potential customer, supplier or accounts of the Company, its subsidiaries or affiliates located within the Territory to purchase, sell or lease goods or services related to a Competing Business other than from or to the Company; or
(iii) Solicit, encourage, or take any other action which is intended, directly or indirectly, to induce any other employee of the Company to terminate such employees employment with the Company, or interfere in any manner with the contractual or employment relationship between the Company and any other employee of the Company, or hire or attempt to hire any former employee of the Company whose termination from employment has been effective for ninety (90) days or less.
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Provided, however, that the foregoing restrictions will not apply to any investment in publicly traded securities constituting not more than 5% of the outstanding securities in any class of such securities. For purposes of this Agreement, the term affiliate means with respect to any person or entity any other person or entity controlling, controlled by or under common control with such person or entity. For purposes of this Section 5, the definition of Business will be the business of the Company as of the date of Executives termination and the business of the Company actually proposed to be entered into as evidenced by written and adopted business plans of the Company.
6. Enforcement
(a) Executive represents to the Company that Executive is willing and able to engage in businesses other than a Competing Business within the Territory and that enforcement of the restrictions set forth in Section 5 would not be unduly burdensome to Executive. The Company and Executive acknowledge and agree that the restrictions set forth in Section 5 are reasonable as to time, geographic area and scope of activity and do not impose a greater restraint than is necessary to protect the goodwill and other business interests of the Company, and Executive agrees that that the Company is justified in believing the foregoing.
(b) If the provisions of Section 5 are found by a court of competent jurisdiction to contain unreasonable or unnecessary limitations as to time, geographical area or scope of activity, then such court is hereby directed to reform such provisions to the minimum extent necessary to cause the limitations contained therein as to time, geographical area and scope of activity to be reasonable and enforceable.
(c) Executive acknowledges and agrees that the Company would be irreparably harmed by any violation of Executives obligations under Section 5 hereof and that, in addition to all other rights or remedies available at law or in equity, the Company will be entitled to injunctive and other equitable relief to prevent or enjoin any such violation. If Executive violates Section 5, the period of time during which the provisions thereof are applicable will automatically be extended for a period of time equal to the time that Executive began such violation until such violation permanently ceases.
7. Confidentiality and Proprietary Rights. Executive agrees to read, sign and abide by Companys Employee Innovations and Proprietary Rights Assignment Agreement, which is attached hereto as Exhibit B and incorporated herein by reference.
8. Mediation. In the event that any disputes arise between the Parties with respect to this Agreement, the Parties acknowledge and agree that prior to initiating any litigation regarding such dispute, they shall submit their dispute to a mutually agreeable mediator for purposes of conducting non-binding mediation in an effort to resolve the dispute without the necessity of litigation.
9. No Obligation to Third Party. Executive represents and warrants that Executive is not under any obligation to any person or other third party and does not have any other interest which is inconsistent or in conflict with this Agreement, or which would prevent, limit, or impair Executives performance of any of the covenants hereunder or Executives duties as an employee of the Company.
10. Entire Agreement. This Agreement, along with the agreements and documents that make up the 2003 Stock Option Plan and the Companys Employee Innovations and Proprietary Rights Assignment Agreement (which are incorporated herein by reference), embodies the complete agreement of the parties with respect to the subject matter hereof and supersedes any prior written, or prior or contemporaneous oral, understandings or agreements between the parties that relate in any way to the
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subject matter hereof. This Agreement may be amended only in writing executed by the Company and Executive.
11. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the respective heirs, executors, administrators, legal representatives and successors of the Company and Executive.
12. Notice. Any notice required or permitted under this Agreement must be in writing and will be deemed to have been given when delivered personally, by telecopy or by overnight courier service or three days after being sent by mail, postage prepaid, to (a) if to the Company, to the Companys principal place of business, or (b) if to Executive, to Executives residence or to Executives latest address then contained in the Companys records (or to such changed address as such person may subsequently give notice of in accordance herewith).
13. GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH SUBSTANTIVE LAWS OF TEXAS, WITHOUT GIVING EFFECT TO ANY CONFLICTS OF LAW, RULE OR PRINCIPLE THAT MIGHT REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
14. Counterparts. This Agreement may be executed in counterparts and by different parties hereto on separate counterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same Agreement.
Signature Page Follows.
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IN WITNESS WHEREOF, the Company and Executive have executed and delivered this Agreement as of the date first above written.
STAKTEK CORPORATION | ||
By: | /s/ James Cady | |
Name: | James Cady | |
Title: | President and CEO | |
EXECUTIVE | ||
STEPHANIE LUCIE | ||
/s/ Stephanie Lucie | ||
Stephanie Lucie |
Signature Page to Executive Employment Agreement
APPENDIX A
STAKTEK BONUS INCENTIVE PLAN
(i) Scope
Provide performance incentive payments to employees who achieve individual and organizational goal objectives.
(ii) Funding
Consistent with current practices, a bonus pool is created only when the adjusted operating income (EBIT minus bonus accrual and amortization of goodwill) is equal to or greater than six percent (6%) of net revenue. The amount going into the bonus pool will be limited to fifteen (15%) of adjusted operating income.
(iii) Payout
Bonuses are paid within 30 days from the end of the fiscal quarter in which they are earned. Bonus payments are calculated as a percentage of an employees base salary according to formulas based upon the employees category and performance in achieving objective performance goals. See Table 1 for details.
TABLE 1Incentive Bonus Calculation Table version 1.4
CATEGORY | BASE BONUS MULTIPLIER | GOAL | GOALS | WEIGHTING FACTOR | ||||
President & CEO | 1.00 | Notes 1, 2, 3 | EBITDA | 100% | ||||
Executive VP | 0.65 | Notes 1, 2, 3 | ORG. Specific & EBITDA | 50% / 50% | ||||
CFO | 0.55 | Notes 1, 2, 3 | ORG. Specific & EBITDA | 20% / 80% | ||||
VP | 0.55 | Notes 1, 2, 3 | ORG. Specific & EBITDA | 50% / 50% | ||||
GM | 0.50 | Notes 1, 2, 3 | ORG. Specific & EBITDA | 70% / 30% | ||||
Director | 0.35 | Notes 1, 2, 3 | ORG. Specific & EBITDA | 80% / 20% | ||||
Other Employees | 0.18 | Notes 1, 2, 3 | ORG. Specific & Personal | 100% |
PERFORMANCE TO EBITDA GOAL | GOAL MULTIPLIER | |
Below 75 % of Forecast | 0.00 | |
75 % of Forecast | 0.75 | |
100 % of Forecast | 1.00 | |
125 % of Forecast | 1.25 | |
Above 125 % of Forecast | 1.25 |
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ORGANIZATIONAL/PERSONAL GOALS | ||
First Pass Yield | ||
Yield w/o touchup | ||
Cycle Time | ||
Productivity | ||
Material Costs | ||
Performance to Customer Commitment | ||
Build Plan Achievement | ||
Line Item Attainment | ||
Minutes Per Stack | ||
QC AOQ (critical) | ||
CQ AOQ (non-critical) | ||
Outgoing AOQ | ||
Material Availability | ||
Work Center productivity & Audit Scores | ||
Performance to project objectives and schedule |
Notes:
1. | The weighting for each employee category varies between all financial and all organizational/personal goals. |
2. | In most cases, individuals will have multiple organizational/personal goals. In this case the goal multiplier will be the sum of the weighted scores for each goal in this category. |
3. | All goals are set at the beginning of each fiscal quarter. Each goal must be accompanied by an approved method for scoring in order to be accepted. |
(iv) Goal Setting
Goals are set at the beginning of each fiscal quarter. The goal scoring methodology is a required part of the goal setting process and must be documented and approved in order for a goal to be valid. Once established, the goal scoring method cannot be changed without written authorization from the President.
(v) Goal Approval
All goals must be submitted for approval to the departmental Vice President prior to the start of the fiscal quarter. Goals are not valid until reviewed and approved by the departmental Vice President and the President.
(vi) Other
If the bonus pool is insufficiently funded to pay all of the eligible bonuses, payments will be made on a pro-rata basis. There is no carryforward from quarter to quarter and any funds not earned and paid in a fiscal quarter will be returned to the Company. EBITDA goals will be determined in accordance with the customary budgeting process undertaken by the Board of Directors and management at the beginning of each fiscal quarter.
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