EXHIBIT 10.24
June 10, 1998
Xx. Xxxxxxxxxxx X. Xxxxxx
0000 Xxxxxxx Xxxx
Xxxxx, Xxxxx 00000
Dear Xxxxx:
This letter sets forth the substance of the separation and consulting
agreement (the "Agreement") which RF Monolithics, Inc. (the "Company") is
offering to you to aid in your employment transition.
1. SEPARATION. Your last day of employment with the Company was May
31, 1998 (the "Separation Date"). The Company has accepted your resignation from
the position of Vice President, Sales and Marketing.
2. ACCRUED SALARY AND PAID TIME OFF. You acknowledge that the
Company has paid you all accrued salary, and all accrued and unused vacation
earned through the Separation Date, subject to standard payroll deductions and
withholding. You are entitled to these payments regardless of whether you sign
this Agreement.
3. TERMINATION PAYMENT. You will receive a one time payment of
$100,000.00 ("Termination Payment"). You hereby acknowledge and agree that the
Termination Payment shall be full and complete satisfaction of any and all
payments or other obligations the Company may owe you.
4. CONSULTANCY. The Company agrees to retain you, and you agree to
make yourself available and perform, as a consultant, beginning on the
Separation Date.
a. CONSULTING PERIOD. The Company will continue to retain you as a
consultant until you obtain other regular and ongoing employment, or until March
31, 1999 whichever occurs earlier. "Regular and ongoing employment", as used in
this subparagraph, refers to any arrangement in which you are an employee and
not an independent contractor, without regard to the number of hours worked by
you in any given period. You agree to notify the Company in writing at least
ten (10) days before engaging in any such regular and ongoing employment, and
you agree that your acceptance of such employment shall be subject to the
restrictions set forth in Paragraph 4, below. Acceptance of consulting
engagements as an independent contractor, as defined by the Internal Revenue
Service, shall not constitute "permanent and ongoing employment" for the
purposes of this subparagraph 3(a). The Company may terminate the Consulting
Period at any time for material cause, including, but not limited to, any breach
by you of any provision of this Agreement.
b. CONSULTING DUTIES. You agree that, while you are retained by the
Company as a consultant, you will remain available to provide consulting in any
area of your expertise upon request by a duly authorized officer of the Company.
You agree to exercise the highest degree of professionalism and creative talents
in performing consulting services for the Company. You further agree to openly
support the Company and its management.
c. CONSULTING FEES. During the Consulting Period, the Company agrees
to pay you $1,000.00 per month. Such Fees to be paid monthly on the 15th of each
month beginning June 15, 1998. The Company will no longer deduct or withhold any
amount from your Consulting Fees for taxes, social security, or other payroll
deductions, but will instead issue you a 1099 form with respect to your
Consulting Fees. You acknowledge that you will be entirely responsible for the
payment of all employment taxes and any other taxes due and owing as a result of
your Consulting Fees, and you hereby indemnify the Company and hold it harmless
from any liability for any taxes, penalties, and interest which may be assessed
by any taxing authority.
5. OTHER WORK ACTIVITIES. During the Consulting Period, you retain the
right to engage in other consulting relationships in addition to your work for
the Company. The Company agrees to make reasonable arrangements to enable you to
perform your work for the Company at such times and in such a manner so that it
does not interfere with other activities in which you may engage.
a. AGREEMENT NOT TO COMPETE. In order to protect the trade secrets
and confidential and proprietary information of the Company, you agree that,
during the Consulting Period and for an additional one year after the last day
of the Consulting Period, that you will not perform work for any business
entity, or engage in any work activity which is in competition, or is preparing
to compete, with the Company ("Competitive Activity"). "Competitive Activity"
shall include any consulting engagement or employment with Thomson Microsonics
SA, Sawtek, Inc., Xxxxxxxx Laboratories, Inc., Vectron Technologies
Incorporated, Siemens, and their parent or subsidiary companies, Remec, AVX
Corporation, RF Micro Devices or Anadigics, or any company competing or
preparing to compete with the Company in developing, manufacturing, or marketing
components and modules based on Surface Acoustic Wave (SAW) technology. You
agree that, if you are in doubt as to whether a particular work activity may
comprise Competitive Activity, you will obtain the written consent of the
Company's Board of Directors, which will not be unreasonably withheld, before
undertaking such work activity. For purposes of this paragraph, the holding of
less than five percent (5%) of the outstanding voting securities of any firm or
business organization in competition with the Company shall not constitute
activities or services precluded by this paragraph.
b. AGREEMENT NOT TO SOLICIT. You agree that, during the Consulting
Period and for two years after the last day of the Consulting Period, you will
not, directly or indirectly, induce or attempt to induce any employee of the
Company to accept employment or affiliation involving competitive work with
another firm or corporation of which you are an employee, owner, partner, or
consultant.
c. PAYMENT FOR AGREEMENT NOT TO COMPETE OR SOLICIT. During the
Consulting Period, the Company agrees to pay you $3,000.00 per month. Such Fees
to be paid monthly on the 15th of each month beginning June 15, 1998. The
Company will not deduct or withhold any amount from your Consulting Fees for
taxes, social security, or other payroll deductions, but will instead issue you
a 1099 form with respect to your Payment Not to Compete or Solicit. You
acknowledge that you will be entirely responsible for the payment of all
employment taxes and any other taxes due and owing as a result of this Payment,
and you hereby indemnify the Company and hold it harmless from any liability for
any taxes, penalties, and interest which may be assessed by any taxing
authority.
6. HEALTH INSURANCE. During the Consulting Period defined above at
Paragraph 3(a), you will continue in the Company's health care plan at your
present level of enrollment. However, the Company will not deduct from your
Consulting Fees any amount representing your contribution payment for health
care benefits; instead, you agree to make your contribution payment directly to
the Company each month. After your consulting relationship with the Company
terminates, and to the extent permitted by the federal COBRA law and by the
Company's current group health insurance policies, you will be eligible to
continue your health insurance benefits at your own expense. You will be
provided with a separate notice of your COBRA rights.
7. VESTING OF OPTIONS. You acknowledge as of May 31, 1998 your
options granted March 27, 1996, October 23, 1996 and January 14, 1998 shall
cease to vest as of May 31, 1998 and the Company has no obligation to grant
further options to you.
8. OTHER COMPENSATION OR BENEFITS. You acknowledge that, except as
expressly provided in this Agreement, you will not receive any additional
compensation, severance or benefits after the Separation Date. Specifically, you
acknowledge that, because you will no longer be an employee of the Company after
the Separation Date, you will not be eligible to participate in the Company's
401(k) Plan. You acknowledge that, as of the Separation Date, your participation
in the Company's Employee Stock Purchase Plan terminated, and any accumulated
payroll deductions which have not been applied to the purchase of stock will be
refunded to you as soon as reasonably practical.
9. EXPENSE REIMBURSEMENTS. You acknowledge that you have submitted
your final documented expense reimbursement statement reflecting all business
expenses you incurred through the Separation Date, if any, for which you seek
reimbursement. The Company will reimburse you for these expenses pursuant to its
regular business practice. In addition, during the Consulting Period defined
above at Paragraph 3(a), the Company will reimburse you, upon your provision of
proper documentation, for reasonable expenses actually incurred by you in the
course of consulting services performed by you at the Company's request.
10. RETURN OF COMPANY PROPERTY. By June 10, 1998, you agree to
return to the Company documents (and all copies thereof) and other Company
property which you have had in your possession at any time, including, but not
limited to, Company files, notes, drawings, records, business plans and
forecasts, financial information, specifications, computer-entry cards,
identification badges and keys; and, any materials of any kind which contain or
embody any proprietary or confidential information of the Company (and all
reproductions thereof). You will be allowed to retain your Dell laptop computer
for use during the Consulting Period. Such computer will be returned to the
Company at the end of the Consulting Period.
11. PROPRIETARY INFORMATION OBLIGATIONS. You acknowledge your
continuing obligations under your Proprietary Information and Invention
Agreement, both during and after your employment, not to use or disclose any
confidential or proprietary information of the Company without prior written
authorization from a duly authorized representative of the Company. A copy of
your Proprietary Information and Inventions Agreement is attached hereto as
Exhibit A.
12. CONFIDENTIALITY. The provisions of this Agreement shall be held
in strictest confidence by you and the Company and shall not be publicized or
disclosed in any manner whatsoever; provided, however, that: (a) you may
disclose this Agreement to your immediate family; (b) the parties may disclose
this Agreement in confidence to their respective attorneys, accountants,
auditors, tax preparers, and financial advisors; (c) the Company may disclose
this Agreement as necessary to fulfill standard or legally required corporate
reporting or disclosure requirements; and (d) the parties may disclose this
Agreement insofar as such disclosure may be necessary to enforce its terms or as
otherwise required by law.
13. NONDISPARAGEMENT. Both you and the Company agree not to
disparage the other party, and the other party's officers, directors, employees,
shareholders and agents, in any manner likely to be harmful to them or their
business, business reputation or personal reputation; provided that both you and
the Company shall respond accurately and fully to any questions, inquiry or
request for information when required by legal process.
14. RELEASE. In exchange for the payments and other consideration
under this Agreement to which you would not otherwise be entitled, you agree to
execute the Employee Agreement and Release attached hereto as Exhibit B.
15. CONFIDENTIAL ARBITRATION. To ensure rapid and economical
resolution of any and all disputes which may arise in connection with the
Agreement, you and the Company agree that any and all disputes, claims, causes
of action, in law or equity, arising from or relating to the Agreement or its
enforcement, performance, breach, or interpretation, with the sole exception of
those disputes which may arise from your Proprietary Information and Inventions
Agreement, shall be resolved by final and binding confidential arbitration held
in Dallas, Texas through the American Arbitration Association, under its then-
existing Rules and Procedures. Any such arbitration shall be conducted in the
utmost secrecy. Nothing in this paragraph is intended to prevent either you or
the Company from obtaining injunctive relief in court to prevent irreparable
harm pending the conclusion of any such arbitration.
16. MISCELLANEOUS. This Agreement, including Exhibits A and B
constitutes the complete, final and exclusive embodiment of the entire agreement
between you and the Company with regard to this subject matter. It is entered
into without reliance on any promise or representation, written or oral, other
than those expressly contained herein, and it supersedes any other such
promises, warranties or representations. This Agreement may not be modified or
amended except in writing signed by both you and a duly authorized officer of
the Company. This Agreement shall bind the heirs, personal representatives,
successors and assigns of both you and the Company, and inure to the benefit of
both you and the Company, their heirs, successors and assigns. If any provision
of this Agreement is determined to be invalid or unenforceable, in whole or in
part, this determination will not affect any other provision of this Agreement
and the provision in question shall be modified by the court so as to be
rendered enforceable. This accordance with the laws of the State of Texas as
applied to contracts made and to be performed entirely within Texas.
If this Agreement is acceptable to you, please sign below and the
attached Employee Agreement and Release, which is part of this Agreement, and
return the originals of both to me.
I wish you luck in your future endeavors.
Sincerely,
RF Monolithics, Inc.
By: /s/ Xxx X. Xxxxxxxx
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Xxx X. Xxxxxxxx
President and Chief Executive Officer
Exhibit A - Proprietary Information and Inventions Agreement
Exhibit B - Employee Agreement and Release
AGREED:
By: /s/ Xxxxxxxxxxx X. Xxxxxx
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Xx. Xxxxxxxxxxx X. Xxxxxx
