Exhibit 10.24

 

MoSys, Inc.

755 N. Mathilda Dr.

Suite 100

Sunnyvale, California  94085

 

November 8, 2007

 

Mr. Leonard Perham

 

Dear Len:

 

MoSys, Inc. (the “Company”) is pleased to offer you the position of Chief Executive Officer and President (“CEO”).  This offer letter generally sets forth the terms and conditions of the Company’s offer of employment.  This offer letter is intended to be a binding agreement, and if the terms contained in this offer letter are acceptable to you, please acknowledge your acceptance by signing in the signature block, below.  The Company’s offer of employment is conditioned upon: (1) your presenting evidence of your authorization to work in the United States and your identity sufficient to allow the Company to complete the I-9 form required by law within three business days of the commencement of your employment with the Company; (2) your consent to, and satisfactory completion of, a background check; (3) your completion of the Company’s standard Directors and Officers Questionnaire and the Company’s satisfactory review of your responses; and (4) ratification of this offer by the Company’s board of directors (the “Board”).

 

As CEO, you will report directly to the Board.  You agree to perform the duties set forth in this letter, as well as any other reasonable duties determined by the Board.  Our mutual expectations regarding the primary duties of this position are as follows: (1) all duties, authorities and responsibilities customary for a chief executive officer of a public company, including executive responsibility for developing strategic direction and all operational activities of the Company, (2) ultimate management responsibility for all employees of the Company, and (3) preparation and submission of an operating plan to the Board on a quarterly basis, which shall serve to provide the scope of operational authority.  You also will be elected to the Board to fill an existing vacancy and will be nominated for election to the Board at the next annual meeting of stockholders as long as you remain the CEO.

 

Your starting salary will be approximately $8,333 semi-monthly ($200,000 on an annualized basis).  Your base salary will be paid in accordance with the Company’s normal payroll procedures and will be subject to applicable withholding required by law.  You also will be eligible to participate in any Company’s executive bonus plan, with an annual bonus upon achievement of stated objectives, as determined by the Board, in its sole discretion.

 



 

You will be granted an option to purchase 800,000 shares of the Company’s common stock, which shares will vest in equal monthly installments at the end of each of the first 24 calendar months of your employment, with November 30, 2007 being the first such vesting date.  Vesting of this option will accelerate in full upon a Change-in-Control. In addition, you will be granted an option to purchase 350,000 shares, which option will vest as to 80% of these shares if the Stock Price (as defined herein) of the Company’s common stock is $10 per share and pro rata as to the remaining shares for each $.01 increase in the Stock Price up to $12 per share.  In addition, you will be granted an option to purchase 100,000 shares, which option will vest as to 50% of these shares if the Stock Price is $13 per share and pro rata as to the remaining shares for each $0.01 increase in the Stock Price up to $15 per share.  All of such options will vest only while you remain continuously employed by the Company.  We intend that these options will be granted today upon approval by the Board, or its Compensation Committee, with an exercise price equal to the closing price of a share of common stock on the NASDAQ Global Market today.  The terms of these options will be set forth in option agreements approved by the Board or its Compensation Committee.  These options will be granted as new employment inducement grants under the NASDAQ Marketplace Rules and not pursuant to the Company’s existing option plan.

 

As used herein, “Stock Price” means the average closing price of a share of the Company’s common stock on the NASDAQ Global Market (or other applicable exchange listing or principal trading market for the common stock) during a consecutive 90-calendar day period within the next two years; provided that in the case of a Change-in-Control such determination shall be made as of the 90-calendar day period ending on the third business day immediately preceding the date on which the Change-in-Control occurs.

 

As used herein, “Change-in-Control” means the occurrence of any of the following:

 

(i)  an acquisition after the date of this offer letter by an individual, an entity or a group in one or more related transactions (excluding the Company or an employee benefit plan of the Company or a corporation controlled by the Company’s stockholders) of 45 percent or more of the Company’s common stock or voting securities; or

 

(ii)  consummation of a complete liquidation or dissolution of the Company or a merger, consolidation, reorganization or sale of all or substantially all of the Company’s assets (collectively, a “Business Combination”) other than a Business Combination in which (A) the stockholders of the Company receive 50 percent or more of the stock of the corporation resulting from the Business Combination and (B) at least a majority of the board of directors of such resulting corporation were incumbent directors of the Company immediately prior to the consummation of the Business Combination, and (C) after which no individual, entity or group (excluding any corporation or other entity resulting from the Business Combination or any employee benefit plan of such corporation or of the Company) who did not own 45 percent or more of the stock of the resulting corporation or other entity immediately before the Business Combination owns 45 percent or more of the stock of such resulting corporation or other entity.

 

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You also will be eligible to participate in the Company’s  employee benefit plans, including our standard major medical, dental, life, short and long term disability, vision insurance benefits, our flexible benefit plan, paid holidays, personal time off (PTO) and the Company’s 401(k) plan.  You will be reimbursed on a regular basis for reasonable, necessary and properly documented business and travel expenses incurred for the purpose of conducting the Company’s business.

 

You should be aware that your employment with the Company is for no specified period and constitutes at-will employment.  As a result, you are free to resign at any time, for any reason or for no reason.  Similarly, the Company is free to conclude its employment relationship with you at any time, with or without cause.

 

In the event of any dispute or claim relating to or arising out of our employment relationship, you and the Company agree that all such disputes shall be fully and finally resolved by binding arbitration as provided in the Mutual Agreement to Arbitrate, a copy of which is attached for your reference.  You agree to execute and deliver the Mutual Agreement to Arbitrate and the Company’s standard form of Employment Confidential Information and Invention Assignment Agreement (“Proprietary Rights Agreement”) in connection with your acceptance of this offer letter.

 

To indicate your acceptance of the Company’s offer, please sign and date this letter agreement in the space provided below and return it to me.  This offer will expire on Friday, November 9, 2007 at 5:00 p.m.

 

This letter agreement, along with the applicable stock option agreements, Mutual Agreement to Arbitrate and Proprietary Rights Agreement between you and the Company, together with the Company’s standard employment policies and procedures in effect from time to time constitute the entire terms of your employment with the Company and supersede all prior representations or agreements, whether written or oral.  This letter agreement is to be governed by California law.  To the extent that any of the terms of this offer letter agreement or any of the foregoing agreements conflict with the Company’s standard employment policies and procedures in effect from time to time, the former shall govern.  This letter may not be modified or amended except by a written agreement signed by the Chairman of the Compensation Committee and by you.

 

If you have any questions, please feel free to call me.  We look forward to your favorable reply and to a productive and exciting working relationship.

 

 

 

Sincerely,

 

 

 

 

 

/s/ James Kupec

 

 

James Kupec

 

 

Chairman of the Compensation Committee

ACCEPTED AND AGREED TO

 

 

This 8th day of November, 2007

 

 

 

 

 

/s/ Leonard Perham

 

 

Leonard Perham

 

 

 

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MUTUAL AGREEMENT TO ARBITRATE CLAIMS

 

I recognize that differences may arise between MoSys, Inc., a Delaware corporation (the “Company”), and me during or following my employment with the Company, and that those differences may or may not be related to my employment.  I understand and agree that by entering into this Agreement to Arbitrate Claims (“Agreement”), I anticipate gaining the benefits of a speedy, impartial dispute-resolution procedure.

 

Except as provided in this Agreement, the Federal Arbitration Act shall govern the interpretation, enforcement and all proceedings pursuant to this Agreement.  To the extent that the Federal Arbitration Act either is inapplicable or held not to require arbitration of a particular claim or claims, California law pertaining to agreements to arbitrate shall apply.

 

I understand that any reference in the Agreement to the Company will also be a reference to its subsidiaries or related entities, and all successors and assignees of any of them.

 

Claims Covered by the Agreement

 

The Company and I mutually consent to the resolution by arbitration of all claims or controversies (“claims”), past, present or future, whether or not arising out of my employment (or its termination), that the Company may have against me or that I may have against the Company or against its officers, directors, employees or agents in their capacity as such or otherwise.  The only claims that are arbitrable are those that in the absence of this agreement, would be justiciable under applicable state or federal law.  The claims covered by this Agreement include, but are not limited to, claims for wages or other compensation; claims for breach of any contract or covenant (express or implied); tort claims; claims for discrimination (including, but not limited to, race, sex, sexual orientation, religion, national origin, age, marital status, medical condition, or disability); claims for benefits (except claims under an employee benefit or pension plan that either (1) specifies that its claims procedure shall culminate in an arbitration procedure different from this one, or (2) is underwritten by a commercial insurer which decides claims); and claims for violation of any federal, state, or other governmental law, statute, regulation, or ordinance, except claims excluded elsewhere in this Agreement.

 

Claims Not Covered by the Agreement

 

Claims by me for workers’ compensation or unemployment compensation benefits are not covered by this Agreement.

 

Either party can apply to a court of competent jurisdiction for provisional remedies in connection with arbitrable controversies as contemplated by California Code of Civil Procedure Section 1281.8.

 

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Administrative Exhaustion

 

As a condition of arbitration, a statutory claim of discrimination, harassment, or retaliation must be filed first with the Department of Fair Employment and Housing and/or the Equal Employment Opportunity Commission within the time limits set forth by state and federal law and must be exhausted through the applicable agency, prior to being submitted to arbitration, or such claims are waived.

 

Required Notice of All Claims and Statute of Limitations

 

The Company and I agree that the aggrieved party must give written notice of any claim to the other party and to the American Arbitration Association (“AAA”) within the limitations period for whatever claims are being asserted.

 

Written notice to the Company, or its officers, directors, employees or agents, shall be sent to its Chief Executive Officer at the Company’s main office.  I will be given written notice at the last address recorded in my personnel file.

 

The written notice shall identify and describe the nature of all claims asserted and the facts upon which such claims are based.  The notice shall be sent to the other party by certified or registered mail, return receipt requested.

 

Failure to make a written demand within the applicable statutory period constitutes a waiver to raise that claim in any forum.

 

Applicable Law And Discovery

 

The arbitrator shall apply applicable California and/or Federal substantive law and the California evidence code to the proceeding.  The parties shall be entitled to conduct reasonable discovery, including conducting deposition, requesting documents and requesting responses to interrogatories.  The arbitrator shall have the authority to determine what constitutes reasonable discovery.  The arbitrator shall hear motions for summary disposition as provided in the California Code of Civil Procedure.

 

Arbitration Procedures

 

The arbitration will be held under the auspices of the AAA.  The Company and I agree that, except as provided in this Agreement, the arbitration shall be in accordance with the AAA’s then-current employment rules for employment disputes.  The arbitrator shall be either a retired judge, or an attorney licensed to practice law in the state in which the arbitration is convened (the “Arbitrator”).  The arbitration shall take place in San Jose, California.

 

Either party may obtain a court reporter to provide a stenographic record of proceedings.  Either party, upon request at the close of hearing, shall be given leave to file a post-hearing brief.  The time for filing such a brief shall be set by the Arbitrator.

 

Arbitration Fees and Costs

 

The Company will be responsible for paying any filing fee and the fees and costs of the Arbitrator and the arbitration; provided, however, that if I am the party initiating the claim, I am responsible for contributing an amount equal to the filing fee to initiate a claim in the court of general jurisdiction in the state in which I am (or was last) employed by the Company.  Each party shall pay for its own costs and attorneys’ fees, if any.  However, if any party prevails on a statutory claim which affords the prevailing party attorneys’ fees, or if there is a written agreement providing for fees, the Arbitrator may

 

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award reasonable fees to the prevailing party, under the standards for fee shifting provided by law.

 

Written Award

 

The arbitrator shall prepare in writing and provide to the parties a decision and award that includes factual findings and the reasons upon which the decision is based.  The arbitrator shall be permitted to award only those remedies in law and equity that are requested by the parties and allowed by law.  Judgment upon the award rendered by the arbitrator may be entered in any court having proper jurisdiction.

 

Sole and Entire Agreement

 

This is the complete agreement of the parties on the subject of arbitration of disputes, except for any arbitration agreement in connection with any pension or benefit plan.  This Agreement supersedes any prior or contemporaneous oral or written understandings on the subject.  No party is relying on any representations, oral or written, on the subject of the effect, enforceability or meaning of this Agreement, except as specifically set forth in this Agreement.

 

Severability

 

If any provision of this Agreement is adjudged to be void or otherwise unenforceable, in whole or in part, such adjudication shall not affect the validity of the remainder of the Agreement.

 

Not an Employment Agreement

 

This Agreement is not, and shall not be construed to create, any contract of employment, express or implied.  Nor does this Agreement in any way alter the “at-will” status of my employment.

 

Voluntary Agreement

 

I ACKNOWLEDGE THAT I HAVE CAREFULLY READ THIS AGREEMENT, THAT I UNDERSTAND ITS TERMS, THAT ALL UNDERSTANDINGS AND AGREEMENTS BETWEEN THE COMPANY AND ME RELATING TO THE SUBJECTS COVERED IN THE AGREEMENT ARE CONTAINED IN IT, AND THAT I HAVE ENTERED INTO THE AGREEMENT VOLUNTARILY AND NOT IN RELIANCE ON ANY PROMISES OR REPRESENTATIONS BY THE COMPANY OTHER THAN THOSE CONTAINED IN THIS AGREEMENT ITSELF.

I UNDERSTAND THAT BY SIGNING THIS AGREEMENT I AM GIVING UP MY RIGHT TO A JURY TRIAL.

 

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I FURTHER ACKNOWLEDGE THAT I HAVE BEEN GIVEN THE OPPORTUNITY TO DISCUSS THIS AGREEMENT WITH MY PRIVATE LEGAL COUNSEL AND HAVE AVAILED MYSELF OF THAT OPPORTUNITY TO THE EXTENT I WISH TO DO SO.

 

Dated:

Nov. 8, 2007

 

/s/ Leonard Perham

 

 

 

Signature of Employee

 

 

 

 

 

 

 

Leonard Perham

 

 

 

Print Name of Employee

 

 

 

 

 

 

 

 

Dated:

Nov. 8, 2007

 

MOSYS, INC.

 

 

 

a Delaware corporation

 

 

 

 

 

 

 

By:

/s/ James Kupec

 

 

 

 

 

 

 

 

Its:

Chairman of the Compensation Committee

 

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 TOP OF DOCUMENT

 

EX-10.13 2 a2183589zex-10_13.htm EXHIBIT 10.13

 

Exhibit 10.13

 

EMPLOYMENT AGREEMENT AND RELEASE

 

This Employment Agreement and Release (“Agreement”) is voluntarily entered into between MoSys, Inc., a Delaware corporation, (“Employer”) and Chet Silvestri for himself and for each of his representatives, heirs, successors and assigns (collectively referred to as “Employee”).  Employer and Employee, agrees as follows:

 

1.             Employee hereby resigns as Employer’s Chief Executive Officer and President and a member of Employer’s board of directors effective as of the close of business on the date of this Agreement.

 

2.             Employer and Employee agree that, subject to the terms of this Agreement, Employee will remain employed by Employer until May 31, 2008, and will be paid a semi-monthly amount of $7,638.89, which is two-thirds of Employee’s current base pay (referred to as the “Continuation Salary”), net of all applicable withholdings required by law.  Employee shall continue to receive Employer’s standard employee fringe benefits and will remain subject to all employment policies and procedures of Employer.  Employer and Employee acknowledge that on July 27, 2005, Employer granted to Employee an option to purchase 750,000 shares of common stock pursuant to Employer’s Amended and Restated 2000 Stock Option and Equity Incentive Plan (the “Amended 2000 Plan”).  Employer and Employee agree that notwithstanding any provisions of the Amended 2000 Plan or the stock option agreement(s) between Employer and Employee to the contrary, such option to purchase 750,000 shares will cease vesting as of the date of this Agreement.  Employer and Employee agree further that Employee will have 90 days from the date of termination of his employment or other services with Employer in which to exercise the vested portion of such option, in accordance with the terms of the stock option agreement(s).  In the event Employee accepts employment with another employer prior to May 31, 2008, his employment with the Company will terminate immediately, and he will become a consultant to be available to the Company upon request from time to time at the same rate of pay until May 31, 2008.

 

3.             In exchange for the Continuation Salary and continued employment through May 31, 2008, Employee releases and forever discharges Employer, and each of its past, present and future directors, officers, employees, agents, insurers, attorneys, predecessors, successors, assigns, transferees and related entities (collectively hereinafter the “Company”) from any and all claims, rights, demands, actions, obligations, liabilities and causes of action, whether asserted or whatsoever, known or unknown, which he has or has had against any of the Company from the beginning of time until the date of execution of this Agreement (collectively referred to as “Claims”).

 

4.             Without limiting the generality of Paragraph 3, Employee hereby releases, acquits and forever discharges  the Company from and against any Claims arising from or in any way connected with or relating to his employment with Employer or the termination of his employment with Employer, or his relationships as an officer, option holder or holder of shares

 

 



 

of common stock  of Employer, including, but not limited to, (i) Claims arising under any state or federal statute regarding employment discrimination or termination, including but not limited to Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the California Fair Employment and Housing Act, the California Labor Code, the Worker Adjustment and Retraining Notification Act (WARN), and the Americans with Disabilities Act, (ii) Claims for wrongful discharge, unjust dismissal, or constructive discharge,  (iii) claims for breach of any alleged oral, written or implied contract of employment, (iv) Claims for salary or severance payments other than those set forth in this Agreement, (v) claims for employment benefits, except as set forth in this Agreement; (vi) Claims for attorneys’ fees, costs, and damages of all types, (vii) any and all Claims sounding in tort, including without limitation, defamation or infliction of emotional distress or his relationships as an officer or stockholder of the Company (viii) Claims for shares of stock or other equity interests  in Employer  or rights to acquire any such shares or other equity interests; (ix) Claims related to ownership of or other rights regarding intellectual property in any form, including, without limitation, any patents, trademarks or copyrights: and (x) any other claims under federal, state or local statute, law, rule or regulation.

 

Nothing in this Agreement, however, will affect or limit: (i) rights created by this Agreement, (ii) any vested rights that Employee may have in any Employer-sponsored pension or 401(k) savings plan as of the time of the termination of his employment with Employer, (iii) Employee’ s rights to continue group health care coverage under COBRA, (iv) any right Employee may have to receive workers’ compensation benefits for any work-related injuries; (v) any right Employee may have to receive unemployment insurance benefits; (vi) any right to indemnity under the Indemnification Agreement dated as of [July 26, 2007] with respect to any occurrence prior to the date of this Agreement; and (vi) any rights or claims that may arise after the date this Agreement is executed.

 

5.             EMPLOYEE ACKNOWLEDGES THAT THIS RELEASE INCLUDES A RELEASE OF ANY AND ALL CLAIMS HE HAS OR MAY HAVE UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967 (“A.D.E.A.”), THAT HE HAS THE RIGHT TO CONSULT WITH AN ATTORNEY BEFORE SIGNING THIS RELEASE, AND THAT HE HAS BEEN ADVISED BY EMPLOYER TO DO SO.  EMPLOYEE ALSO UNDERSTANDS THAT HE HAS A PERIOD OF UP TO TWENTY-ONE (21) DAYS TO CONSIDER THE TERMS OF THIS RELEASE BEFORE SIGNING IT, IF HE DESIRES, THAT HE MAY REVOKE THIS RELEASE TO THE EXTENT THAT HE RELEASES CLAIMS BY IT UNDER THE A.D.E.A. AT ANY TIME WITHIN SEVEN (7) DAYS FOLLOWING HIS SIGNING OF THIS RELEASE, AND THAT TO THE EXTENT THAT HE RELEASES ANY RIGHTS OR CLAIMS HE MAY HAVE UNDER A.D.E.A., THIS RELEASE DOES NOT BECOME ENFORCEABLE OR EFFECTIVE AGAINST THOSE CLAIMS UNTIL THE EXPIRATION OF THE SEVEN-DAY PERIOD FOLLOWING HIS SIGNING OF THE RELEASE.  THE RELEASE MAY NOT BE REVOKED FOLLOWING EXPIRATION OF THAT SEVEN-DAY PERIOD.

 

6.             Employee will not be entitled to receive the first regular payroll payment following the date of this Agreement until the expiration of seven calendar days following Employee’s execution of this Agreement, provided that Employee does not revoke this

 

 



 

Agreement.  Employee’s revocation of this Agreement will revoke all provisions of the Agreement except Paragraph 1.

 

7.             Employee acknowledges that there is a risk that after signing this Agreement he may discover losses or claims that he believes were in some way caused by his employment with Employer or in any other respect by the Company, or that are otherwise released under this Agreement, but that are presently unknown to him.  Employee assumes this risk and understands that this release shall apply to any such losses and claims.  Therefore, Employee expressly waives the provisions of California Civil Code Section 1542, which states:

 

A general release does not extend to claims, which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him/her must have materially affected his settlement with the debtor.

 

8.             By entering into this Agreement and paying the Continuation Salary and providing other benefits as set forth in this Agreement, Employer does not admit, and shall not be deemed to have admitted, any violation of any statute, law or regulation, any breach of contract, actual or implied, or any other wrongdoing with respect to Employee

 

9.             Employee understands this is an important legal document and that he has the right to consult an attorney of his choice before signing this Agreement.  By signing this Agreement, he acknowledges that he has entered into it voluntarily and knowingly.  Employee represents that he is voluntarily entering into this Agreement of his own free will.  Employee understands that he is not required to sign this Agreement but that if he elects not to do so, he will not receive the Continuation Salary and other benefits being offered to him.

 

10.          Employee understands that the terms and existence of this Agreement are personal to him and that maintaining the confidential nature of this Agreement is a material term of the Agreement.  He covenants that he has not disclosed and will not disclose the existence or terms of this Agreement, unless compelled by legal process to do so, except to the extent necessary to obtain legal advice from his attorney, or financial or tax advice from his professional financial adviser or accountant, if any; provided, however, that Employee and Employer agree that Employer will disclose the terms of this Agreement to the extent deemed necessary by Employer to comply with applicable securities and other laws.

 

11.          Employee acknowledges that this Agreement constitutes the entire agreement between Employer and him regarding the ending of his employment, provided that Employee and Employer agree that the Mutual Agreement to Arbitrate dated as of July 26, 2005 remains in effect and will apply to any dispute arising under or related to the Agreement.  No oral or written representations or promises have been made to Employee, or anyone acting on his behalf, that are not embodied in this Agreement.  No modification of this Agreement shall be valid or binding, unless executed in writing by all parties to this Agreement.

 

12.          Employee understands that all existing confidentiality agreements between him and Employer, including, but not limited to the Employment Confidential Information and

 

 



 

Invention Assignment Agreement dated as of July 26, 2005, will continue to be in effect after the signing of this Agreement.  Employee covenants and represents and warrants to Employer that he has not engaged in any conduct of the type prohibited under such agreement.

 

13.          Employee agrees not to make, or ask any other person to make, any statement of any kind that disparages Employer or any past or present directors, officers or employees of Employer, and further agrees not to make any statement of any kind that is calculated to, or foreseeably will, damage the business or reputation of the Employer, or any of the past or present directors, officers or employees of the Employer.  Employer agrees that neither it nor any of its officers will make, or ask any other person to make, any statement of any kind that disparages Employee, or that is calculated to, or which foreseeably will, damage Employee’s reputation with individuals or entities outside Employer.

 

14.          Should any provision of this Agreement be found to be invalid or unenforceable, that provision shall be considered severable and the remaining provisions shall remain in effect.

 

15.          This Agreement is to be governed by the laws of California without regard to the conflicts of laws provisions thereof.

 

Agreed and Executed By:

 

 

 

 

Employee

 

 

Dated: November 8, 2007

/s/ Chet Silvestri

 

Chet Silvestri

 

 

 

MoSys, Inc.

 

 

Dated: November 8, 2007

/s/ James Kupec

 

By:

James Kupec

 

Title:

Chairman of the Compensation

 

 

Committee