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EXHIBIT 10.41
EXECUTIVE
SALARY CONTINUATION AGREEMENT
THIS EXECUTIVE SALARY CONTINUATION AGREEMENT (the "AGREEMENT")
effective December 20, 1996 between Xxxxxx X. Xxxxx ("EXECUTIVE") and VLSI
TECHNOLOGY, INC., a Delaware corporation (the "COMPANY").
The Company and Executive hereby agree as follows:
ARTICLE I
EMPLOYMENT BY THE COMPANY
1.1 Executive is currently employed by the Company.
1.2 This Agreement shall remain in full force and effect so long as
Executive is employed by Company.
1.3 The Company and Executive wish to set forth the compensation and
benefits which Executive shall be entitled to receive in the event that
Executive's employment with the Company terminates.
1.4 The duties and obligations of the Company to Executive under this
Agreement shall be in consideration for Executive's past services to the
Company, Executive's continued employment with the Company and Executives'
execution of the general waiver and release described herein.
1.5 This Agreement shall not supersede or affect any other agreements
relating to Executive's employment or severance, or a change in control of the
Company. On a Change in Control, as defined in Executive's Change in Control
Severance Benefits Agreement, the Change in Control Severance Benefits Agreement
shall control.
ARTICLE II
SALARY CONTINUATION BENEFITS
2.1 ENTITLEMENT TO SALARY CONTINUATION PAYMENTS. If Executive's
employment terminates due to a Covered Termination, Executive shall receive
salary continuation benefits to be paid in one lump sum within 60 days of the
termination. The amount of the salary continuation payment shall equal three (3)
years of Executive's Compensation.
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2.2 WELFARE BENEFITS. Following a Covered Termination, Executive and
his spouse will be eligible to continue their Welfare Benefits coverage under
any Welfare Benefit plan or program maintained by the Company on the same terms
and conditions (including cost to Executive) as in effect immediately prior to
the Covered Termination for the life of the Executive and his spouse, or the
survior of them, cost to the Company not to exceed, by premium or otherwise,
$10,000.00 per year.
With respect to any Welfare Benefits provided through an insurance
policy, the Company's obligation to provide such Welfare Benefits following a
Covered Termination shall be limited by the terms of such a policy; provided
that (i) the Company shall make reasonable efforts to amend such policy to
provide the continued coverage, and (ii) if a policy providing health benefits
is not amended to provide the continued benefits, the Company shall pay for the
cost of comparable replacement coverage. The cost of any such insurance shall be
included and subject to the $10,000.00 per year limit set forth above.
This Section 2.2 is not intended to affect, nor does it affect, the
rights of Executive, or Executive's covered dependents, under any applicable law
with respect to health insurance continuation coverage.
2.3 STOCK OPTIONS. All outstanding stock options granted to Executive
shall fully vest upon the death or disability, mental or physical, of executive
and to permit the exercise of the vested options for at least twelve (12) months
following such death or disability. In addition, the Company may, at its option,
amend all stock option agreements evidencing outstanding stock options granted
to Executive: (i) to provide for full vesting of stock options upon a Covered
Termination, and (ii) to permit Executive to exercise the vested options for at
least the twelve (12) months following a Covered Termination. Notwithstanding
the foregoing, the Company shall not amend a stock option agreement to the
extent that an amendment would result in a charge to earnings for the Company
(except upon death or disability of Executive), would adversely affect
Executive's financial position, or cause Executive to be subject to liability
under Section 16(b) of the Securities Exchange Act of 1934, as amended.
2.4 BONUS. If a Covered Termination occurs, Executive shall receive a
bonus for the fiscal year in which the Covered Termination occurs. The amount of
the bonus shall be equal to the amount Executive would have been paid if the
Covered Termination Event had not occurred prior to the end of such fiscal year
multiplied by a fraction in which (i) the numerator is the number of days from
and including the first day of the fiscal year until and including the date of
the Covered Termination, and (ii) the denominator is three hundred sixty-five
(365). Such bonus shall be paid on the date Executive would have received the
bonus if the Covered Termination had not occurred during such fiscal year.
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2.5 MITIGATION. Except as otherwise specifically provided herein,
Executive shall not be required to mitigate damages or the amount of any payment
provided for under this Agreement by seeking other employment or otherwise, nor
shall the amount of any payment provided for under this Agreement be reduced by
any compensation earned by Executive as a result of employment by another
employer or by retirement benefits after the date of the Covered Termination, or
otherwise.
ARTICLE III
LIMITATIONS AND CONDITIONS ON BENEFITS
3.1 WITHHOLDING OF TAXES. Except as otherwise provided herein, the
Company shall withhold appropriate federal, state or local income and employment
taxes from any payments hereunder.
3.2 EMPLOYMENT AGREEMENT AND RELEASE PRIOR TO RECEIPT OF BENEFITS. Upon
the occurrence of a Covered Termination, and prior to the receipt of any
benefits under this Agreement on account of the occurrence of a Covered
Termination, Executive shall, as of the date of a Covered Termination, execute
an employee agreement and release in the form attached hereto as Exhibit A. Such
employee agreement and release shall specifically relate to all of Executive's
rights and claims in existence at the time of such execution and shall confirm
Executive's obligations under the Company's standard form of proprietary
information agreement. It is understood that Executive has twenty-one (21) days
to consider whether to execute such employee agreement and release and Executive
may revoke such employee agreement and release within seven (7) business days
after execution of such employee agreement and release. In the event Executive
does not execute such employee agreement and release within the twenty-one (21)
day period, or if Executive revokes such employee agreement and release within
the seven (7) business day period, no benefits shall be payable under this
Agreement and this Agreement shall be null and void.
ARTICLE IV
OTHER RIGHTS AND BENEFITS
NONEXCLUSIVITY. Nothing in the Agreement shall prevent or limit
Executive's continuing or future participation in any benefit, bonus, incentive
or other plans, programs, policies or practices provided by the Company and for
which Executive may otherwise qualify, nor shall anything herein limit or
otherwise affect such rights as Executive may have under any stock option or
other agreements with the Company. Except as otherwise expressly provided
herein, amounts which are vested benefits or which Executive is otherwise
entitled to receive under any plan, policy, practice or program of the Company
at or subsequent to the date of a Covered Termination shall be payable in
accordance with such plan, policy, practice or program.
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ARTICLE V
NON-ALIENATION OF BENEFITS
No benefit hereunder shall be subject to anticipation, alienation,
sale, transfer, assignment, pledge, encumbrance or charge, and any attempt to so
subject a benefit hereunder shall be void.
ARTICLE VI
DEFINITIONS
For purposes of the Agreement, the following terms shall have the
meanings set forth below.
6.1 "CAUSE" means the following (and only the following): (i)
conviction of any felony involving fraud or act of dishonesty against the
Company, (ii) conduct by Executive which, based upon good faith and reasonable
factual investigation and determination by the Board of Directors of the
Company, demonstrates gross unfitness to serve, or (iii) intentional, material
violation by Executive of any statutory or fiduciary duty of Executive to the
Company that is not corrected within thirty (30) days after written notice to
Executive thereof. Death or disability, mental or physical, do not constitute
"Cause".
6.2 "COMPENSATION" means Executive annual base pay at the rate in
effect during the last regularly scheduled payroll period immediately preceding
the Covered Termination, plus an amount equal to the average of Executive's
highest two annual bonuses payable with respect to the three fiscal years
preceding the Covered Termination.
6.3 "COVERED TERMINATION" means any voluntary termination after
Executive reaches 65 years of age and any involuntary termination (including
death or disability, mental or physical) other than for Cause.
ARTICLE VII
GENERAL PROVISIONS
7.1 EMPLOYMENT STATUS. This Agreement does not constitute a contract of
employment or impose on Executive any obligation to remain as an employee, or
impose on the Company any obligation (i) to retain Executive as an employee,
(ii) to change the status of Executive as an at-will employee, or (iii) to
change the Company's policies regarding termination of employment.
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7.2 NOTICES. Any notices provided hereunder must be in writing and such
notices or other written communication shall be deemed effective upon the
earlier of personal delivery (including personal delivery by telex or facsimile)
or the third day after mailing by first class mail, to the Company at its
primary office location and to Executive at his address as listed in the
Company's payroll records. Any payments made by the Company to Executive under
the terms of this Agreement shall be delivered to Executive or Executive's
designee either in person or at his address as listed in the Company's payroll
records.
7.3 SEVERABILITY. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provisions had never been contained herein.
7.4 WAIVER. If either party should waive any breach of any provisions
of this Agreement, he or it shall not thereby be deemed to have waived any
preceding or succeeding breach of the same or any other provision of this
Agreement.
7.5 AMENDMENT OR TERMINATION OF AGREEMENT. This Agreement may be
changed or terminated only upon the mutual written consent of the Company and
Executive.
7.6 COUNTERPARTS. This Agreement may be executed in separate
counterparts, any one of which need not contain signatures of more than one
party, but all of which taken together will constitute one and the same
Agreement.
7.7 SUCCESSORS AND ASSIGNS. This Agreement is intended to bind and
inure to the benefit of and be enforceable by Executive and the Company, and
their respective successors, heirs, executors and administrators.
7.8 TAX AND ATTORNEY FEES. Company agrees to pay the cost of any
attorney's fees or tax assistance fees incurred by executive in connection with
advice, negotiation or execution of this Agreement. If Executive brings any
action to enforce his rights hereunder, Executive shall be entitled to recover
his attorneys' fees and costs incurred in connection with such action,
regardless of the outcome of such action, provided the court finds the claim was
brought in good faith.
7.9 CHOICE OF LAW. All questions concerning the construction, validity
and interpretation of this Agreement will be governed by the law of the State of
California.
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7.10 NON-PUBLICATION. The parties mutually agree not to disclose
publicly the terms of this Agreement except to the extent that disclosure is
mandated by applicable law.
7.11 APPROVAL. This Agreement is subject to approval by the
Compensation Committee of the Board of Directors of the Company.
IN WITNESS HEREOF, the parties have executed this Agreement as of the
day and year written above.
VLSI TECHNOLOGY, INC., XXXXXX X. XXXXX
A DELAWARE CORPORATION
By: /s/ Xxxxx X. Xxxxx /s/ Xxxxxx X. Xxxxx
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Name: (Xxxxx X. Xxxxx)
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Title: Vice President, General
Counsel and Secretary
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Exhibit A: Employee Agreement and Release
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EXHIBIT A
EMPLOYEE AGREEMENT AND RELEASE
I UNDERSTAND AND COMPLETELY AGREE TO THE TERMS SET FORTH IN THE
FOREGOING AGREEMENT.
I hereby confirm my obligations under the Company's standard form of
proprietary information agreement.
I acknowledge that I have read and understand Section 1542 of the California
Civil Code which reads as follows: "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 MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR." I hereby expressly waive and relinquish all rights
and benefits under that section and any law of any jurisdiction of similar
effect with respect to my release of any claims I may have against the Company.
Except as otherwise set forth in this Agreement, I hereby release,
acquit and forever discharge the Company, its parents and subsidiaries, and
their officers, directors, agents, servants, employees, shareholders,
successors, assigns and affiliates, of and from any and all claims, liabilities,
demands, causes of action, costs, expenses, attorney fees, damages, indemnities
and obligations of every kind and nature, in law, equity, or otherwise, known
and unknown, suspected and unsuspected, disclosed and undisclosed (other than
any claim for indemnification I may have as a result of any third party action
against me based on my employment the Company), arising out of or in any way
related to agreements, events, acts or conduct at any time prior to and
including the Effective Date of this Agreement, including but not limited to:
all such claims and demands directly or indirectly arising out of or in any way
connected with my employment with the Company or the termination of that
employment, including but not limited to, claims of intentional and negligent
infliction of emotional distress, any and all tort claims for personal injury,
claims or demands related to salary, bonuses, commissions, stock, stock options,
or any other ownership interests in the Company, vacation pay, fringe benefits,
expense reimbursements, severance pay, or any other form of compensation; claims
pursuant to any federal, state or local law or cause of action including, but
not limited to, the federal Civil Rights Act of 1964, as amended; the federal
Age Discrimination in Employment Act of 1967, as amended ("ADEA"); the federal
Americans with Disabilities Act of 1990; the California Fair Employment and
Housing Act, as amended; tort law; contract law; wrongful discharge;
discrimination; fraud; defamation; emotional distress; and breach of the implied
covenant of good faith and fair dealing; provided, however, that nothing in this
paragraph shall be construed in any way to release the Company from its
obligation to indemnify you pursuant to the Company's Indemnification Agreement.
I acknowledge that I am knowingly and voluntarily waiving and releasing
any rights I may have under ADEA. I also acknowledge that the consideration
given for the waiver and release in the preceding paragraph hereof is in
addition to anything of value to which I was already entitled. I further
acknowledge that I have been advised by this writing, as required by the ADEA,
that; (A) my waiver and release do not apply to any rights or claims that may
arise after the Effective Date of this Agreement; (B) I have the right to
consult with an attorney prior to executing this Agreement; (C) I have
twenty-one (21) days to consider this Agreement (although I may choose to
voluntarily execute this Agreement earlier); (D) I have seven (7) days following
the execution until the date upon which the revocation period has expired, which
shall be the eighth day after this Agreement is executed by me, provided that
the Company has also executed this Agreement by that date ("Effective Date").
By:
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Xxxxxx X. Xxxxx
Date:
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