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EXHIBIT 10(y)
[RAYCHEM CORPORATION LETTERHEAD]
July 10, 1998
Xxxxx Xxxxxxxxx
Re: Agreement and Release
Dear Xxxxx:
This Agreement and Release (the "Agreement") is to confirm our
agreement with respect to the termination of your employment with Raychem
Corporation ("Raychem"). Please indicate your agreement by signing, dating, and
returning this Agreement to me no later than August 1, 1998.
We have agreed that your employment with Raychem will end as of the end
of the business day on September 1, 1998 or, if you elect to terminate your
employment voluntarily before such date, such earlier date (the "Termination
Date"). Thereafter, you will no longer be an employee of Raychem. In your final
paycheck on the Termination Date, you will be paid all earned and unpaid salary
together with any accrued and unused vacation pay, less deductions authorized or
required by law. Xxxxxxx will also pay to you, by September 1, 1998, the
guaranteed bonus for the period from July 1, 1997 to June 30, 1998, as outlined
in Xxxxxxx's offer letter to you dated March 11, 1997. In addition, to induce
Xxxxxxx to enter into this Agreement, you agree to enter into the Professional
Services Agreement attached as Exhibit 1. You agree that the consideration named
in this Agreement is sufficient to compensate you for the release given herein,
for any consulting services you may provide to Raychem pursuant to the
Professional Services Agreement, and for agreeing to all other terms set forth
in this Agreement. You also agree that the severance amounts set forth herein
are in lieu of any severance payments to which you would otherwise be entitled
under Raychem's Human Resources policies.
Commencing on September 1, 1998, you will also receive a severance
amount equal to (i) one (1) year of severance payments based on your current
salary of Two Hundred and Fifty Thousand Dollars ($250,000.00) regardless of
whether you obtain other employment during this period (the "Full Salary
Period"), and (ii) if you are not working at a new job or for yourself
(self-employed) during the one (1) year period commencing on September 1,
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July 10, 1998
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1999, upon your written request as set forth below, up to an additional one (1)
year of such severance payments based on your current salary Two Hundred and
Fifty Thousand Dollars ($250,000.00) or, if you are working at a new job or for
yourself (self-employed) during the year commencing on September 1, 1999, and
your annual cash compensation and/or salary (including bonuses) from this
employment or self-employment is less than Two Hundred and Fifty Thousand
Dollars ($250,000.00), the difference between those two (2) figures (the
"Differential Salary Period"). Your written request to receive all or part of
the second year of such severance payments must be received by Xxxxxxx at least
seven (7) days prior to the date you would be eligible for such payments. Your
written request must include confirmation that you are not working or, if you
are, what your salary or compensation and expected bonus are. You also agree to
subsequently notify Xxxxxxx in writing within five (5) days after any changes in
such information (including changes in employment, salary, compensation and
bonus) and to certify to Raychem on a quarterly basis, and otherwise, as
requested by Xxxxxxx, the amount of compensation, salary and bonus from another
employer and/or self-employment you are receiving during the Differential Salary
Period. Payments pursuant to the Full Salary and the Differential Salary Period
are not eligible for deferral under the Raychem Executive Deferred Compensation
Plan. This severance benefit, minus deductions authorized or required by law,
will be paid in bi-weekly installments. All required notification must be sent
to Raychem's Corporate Legal Department, Attention General Counsel.
Information on health coverage and COBRA conversion rights will be
mailed to your home address. Your present Raychem medical benefits (for you and
your eligible covered dependents) will remain in effect, at standard staff
rates, until the earliest to occur of (i) one (1) year after the Termination
Date, or (ii) you secure other employment and you therefore become eligible for
medical insurance, or, you are eligible for medical insurance through any other
means, or (iii) your death, or (iv) you reach age sixty-five (65). Your present
Raychem dental benefits (for you and your eligible covered dependents) will
remain in effect, at standard staff rates, until the earliest to occur of (i)
one (1) year after the Termination Date, or (ii) you secure other employment and
you therefore become eligible for dental insurance, or, you are eligible for
dental insurance through any other means, or (iii) your death, or (iv) you reach
age sixty-five (65). You agree to notify Xxxxxxx in writing within five (5) days
after securing other employment or obtaining other medical or dental benefits.
For purposes of COBRA, the "qualifying event" shall be deemed to be the
Termination Date. COBRA coverage, to the extent required by law, will run
concurrently with the Full Salary Period and with the Differential Salary Period
if applicable, up to the end of the eighteen (18) month COBRA period. Your
spouse and/or dependent children will be entitled to COBRA benefits to the
extent provided by statute should your death occur during the period of your
COBRA coverage. The standard Raychem-paid life insurance benefits will remain in
effect on your behalf for one (1) year from the Termination Date.
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July 10, 1998
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If you are terminating your employment with Raychem before age
fifty-five (55) and are vested in the Raychem Pension Plan, you will be offered
the option of receiving your accrued benefit as an annuity or a lump sum in the
first month of the second calendar quarter following your termination. If your
pension benefit amount as a lump sum is less than Five Thousand Dollars ($5,000)
then it will be distributed to you without the option to decline. At any time
after reaching retirement age (age 65 or older, or age 55 with ten (10) or more
years of service), you are eligible to receive your pension benefit as a normal
or early retirement benefit; at your option, the payment can be in the form of
an annuity or a lump sum.
Raychem will furnish to you through one (1) year from the Termination
Date, according to then current Raychem practices and policies:
- Financial planning services.
- The career transition services of either de Recat &
Associates, or Xxxxxx Xxxxxx & Associates, professional
outplacement firms, to support and enhance your job search
efforts.
Your outstanding stock options to purchase Raychem stock and restricted
stock, under the 1990 Incentive Plan (the "1990 Plan"), to the extent they are
unvested, will continue to vest through September 1, 1999. Any incentive stock
options shall convert to non-qualified stock options three (3) months following
the Termination Date. In exchange for the benefits provided to you under this
Agreement, you agree that the termination date for the 1990 Plan relating to all
outstanding stock options and restricted stock shall be September 1, 1999, and
any unvested options or restricted stock under the 1990 Plan will lapse as of
September 1, 1999. The post-termination exercise period of your options under
the 1990 Plan will begin on September 1, 1999, and your vested options under the
1990 Plan will expire three (3) months following September 1, 1999. Any
outstanding unvested options under stock option or incentive plans other than
the 1990 Plan will expire on your Termination Date (as defined in paragraph 2 of
this Agreement). All outstanding vested options under such other plans will
expire per the terms of such other plans. However, the provisions of this
Agreement shall not extend the exercisability of options to purchase Raychem
stock beyond the expiration date(s) stated in the relevant option agreement(s).
You agree to execute amendments to the Relocation Loan Agreement and
Promissory Note and any other documents necessary to amend the Deed of Trust.
Subject to the terms and conditions of the Loan Agreement and Promissory Note ,
as amended, you agree that the scheduled due date for repayment of the loan of
Four
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Xxxxx Xxxxxxxxx
July 10, 1998
Page 4
Hundred Thousand Dollars ($400,000), provided to you in conjunction with
the purchase of your house, will be August 30, 1999, and that prior to August
30, 1999, the loan shall not bear interest. You agree that Xxxxxxx-provided
mortgage interest/property tax differential (MID) will no longer be paid to you
by Xxxxxxx. Raychem will not require reimbursement of any portion of the MID
payment made to you in January, 1998 for the 1998 calendar year, despite your
September 1, 1998 termination date, but no further MID payments will be made to
you as of the Termination Date.
You will continue to be considered a designated insider for purposes of
trading in Raychem stock for the entire Full Salary Period, and, if receiving
severance payments, during the Differential Salary Period.
Any Raychem employee benefits not otherwise provided for in this
Agreement will no longer be available to you as of the Termination Date.
You agree that you will return all Raychem property to Xxxxxxx Xxxxxxx
or designee by the Termination Date. Raychem property includes but is not
limited to equipment, all samples, cases, brochures, papers, notes, and other
documents, and all copies thereof, relating to Raychem, its business, and its
customers that have been obtained by you during your employment, together with
other Raychem or Raychem-customer or supplier property in your possession.
You acknowledge your obligations under the Raychem Employee
Intellectual Property Agreement which still remains in effect. You also
acknowledge that a breach of that agreement and the disclosure of Raychem
proprietary information would cause irreparable harm to Raychem and entitle
Raychem to obtain injunctive relief without further proof of damage. We have
enclosed a copy of that agreement as Exhibit 2 for your reference.
As further consideration for the severance benefits set forth in this
Agreement, you agree that you will not, during the term of the Full Salary
Period and Differential Salary Period, if applicable, directly or indirectly,
anywhere in the United States, including any county of the state of California,
or in any foreign country in which, during such period, business is conducted by
Raychem or substantial customers of Raychem are located, enter into or engage in
any activity, as a sole proprietor, shareholder, employee, director, partner,
consultant, or otherwise, or in any way be concerned with the design,
development, use, manufacture and/or sale of any technology, product, product
line or component which is directly competitive with any technology based on
Raychem proprietary information, or any technology, product, product line or
component, which is in development, manufactured and/or
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July 10, 1998
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sold by Xxxxxxx alone or jointly with third parties as of the Termination Date.
You also agree that during the term of the Full Salary Period and Differential
Salary Period, if applicable, you will not directly or indirectly solicit or
induce any other employee or consultant with Raychem to terminate their
employment or relationship with Raychem. Xxxxxxx and you acknowledge that the
provisions of this paragraph may or may not be enforceable under the laws of
certain states and/or certain countries. Xxxxxxx and you intend that this
paragraph be enforced, to the extent enforceable, in all jurisdictions worldwide
in which Xxxxxxx currently does business, and that lack of enforceability in any
one jurisdiction shall not impair enforcement in any other jurisdiction. Breach
of this provision shall entitle Raychem to terminate severance payments under
this Agreement in addition to any other legal remedies to which it may be
entitled.
Raychem Corporation is prepared to offer you the consideration set
forth herein, which is above and beyond the wages and benefits to which you
would otherwise be entitled, in exchange for your agreement to release all
claims, known or unknown, against Raychem Corporation, its parent, subsidiaries
and affiliates, and its past, present, and future officers, directors,
shareholders, agents, employees, attorneys, insurers, successors, and assigns
(collectively referred to in this Agreement as "Raychem") as of the date you
signed this Agreement. You are not eligible to receive the consideration
outlined herein unless you elect to sign this Agreement.
In consideration for the severance benefits set forth in this
Agreement, you, on behalf of yourself, your heirs, spouse, and assigns, hereby
completely release and forever discharge Raychem from any and all claims, of any
and every kind, nature, and character, known or unknown, foreseen or unforeseen,
based on any act or omission occurring prior to the Termination Date, including
but not limited to any claims arising out of your offer of employment, your
employment, any employment agreement, or termination of your employment with
Raychem or acts leading up to such termination, and any and all claims under
federal and state discrimination laws. The only exceptions are any claims that
you may have for unemployment compensation, any rights that you may have under
any Raychem Pension Plan, any Workers' Compensation benefits to which you may be
found entitled, any claims for amounts deferred pursuant to the Raychem
Executive Deferred Compensation Plan, any claims relating to the Raychem
TaxSaver Plus Plan, and any claims for indemnification, including any related
insurance coverage, to which you may be entitled in connection with your service
as an officer of Raychem (collectively referred to in this Agreement as "Exempt
Claims"). This Release shall not apply to your right to be indemnified to the
fullest extent allowed by Xxxxxxx's Articles and Bylaws, any indemnification
agreement between you and Raychem, or under applicable law with respect to any
claims, actions or proceedings based on or arising out of acts
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July 10, 1998
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performed within the course and scope of your employment with Raychem.
This Agreement fully and finally extinguishes and discharges all claims
(except for Exempt Claims), whether known or not and you hereby agree to release
not only claims known but those unknown to you which arose out of your
employment with Raychem or and/or its termination. You therefore agree to waive
the provisions of California Civil Code Section 1532 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 must have
materially affected his settlement with the debtor."
You fully understand that, if, in fact, any matter covered by this Agreement is
found hereafter to be other than or different from the fact now believed by you
to be true, you expressly accept and assume that this Agreement will be and
remain effective, notwithstanding such difference in the facts.
You agree neither to file nor to encourage or knowingly permit another
to file on your behalf any claim, charge, action, or complaint concerning any
matter referred to in this Agreement. If you have previously filed any such
claims (other than Workers' Compensation claims), you agree to take all
reasonable steps to cause them to be withdrawn without delay.
This Agreement constitutes the entire agreement between yourself and
Raychem with respect to any matters referred to in this Agreement and supersedes
any and all of the other oral or written agreements between yourself and
Raychem, with the exception of the Professional Services Agreement attached
hereto as Exhibit 1, the Raychem Employee Intellectual Property Agreement
attached hereto as Exhibit 2, and the Relocation Loan Agreement, as amended, and
the Promissory Note, as amended, and attached hereto as Exhibit 3, which remain
in full force and effect. No other consideration, agreements, representations,
oral statements, understandings, policies or course of conduct that are not
expressly set forth in this Agreement should be implied or are binding. You are
not relying upon any other agreement, representation, statement, omission,
understanding, policy or course of conduct that is not expressly set forth in
this Agreement. You understand and agree that this Agreement will not be deemed
or construed at any time or for any purposes as an admission of any liability or
wrongdoing by either yourself or Raychem. You also agree that if any provision
of this Agreement is deemed invalid, the remaining provisions will still be
given full force and effect. The terms and conditions of this Agreement will be
governed by the laws of California applicable to contracts made and performed
within California.
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July 10, 1998
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In the event of any conflict between this Agreement and the
Professional Services Agreement attached hereto as Exhibit 1, this Agreement
shall govern and control.
Prior to execution of this Agreement, you should apprise yourself of
sufficient relevant information to intelligently exercise your own judgment. You
are advised to consult an attorney.
In order to obtain the consideration described in this Agreement, this
Agreement must be signed by you and returned to me by August 1, 1998.
Finally, you agree that you will not disclose to anyone (except for
your spouse, accountant, financial planner and/or lawyer) or allow anyone else
to disclose the existence of, reason for, or contents of this Agreement without
Xxxxxxx's prior written consent, unless required to do so by law.
Sincerely,
/s/ XXXXXXX X. XXXXXXX
Xxxxxxx X. Xxxxxxx
Chairman of the Board, President and
Chief Executive Officer
================================================================================
EMPLOYEE'S ACCEPTANCE OF AGREEMENT, RELEASE AND BENEFITS
I HAVE CAREFULLY READ, FULLY UNDERSTAND, AND VOLUNTARILY AGREE TO ALL THE TERMS
OF THIS AGREEMENT AND RELEASE IN EXCHANGE FOR THE ADDITIONAL BENEFITS TO WHICH I
WOULD NOT OTHERWISE BE ENTITLED. THIS RELEASE IS EXECUTED VOLUNTARILY AND WITH
FULL KNOWLEDGE OF ITS SIGNIFICANCE.
JULY 30, 1998 /S/ XXXXX XXXXXXXXX
---------------------------------- ------------------------------------
Date
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[RAYCHEM LOGO]
EXHIBIT 1 TO THE AGREEMENT AND RELEASE BETWEEN THE COMPANY
AND XXXXX XXXXXXXXX
PROFESSIONAL SERVICES AGREEMENT - XXXXX XXXXXXXXX
THIS PROFESSIONAL SERVICES AGREEMENT (hereinafter "Professional
Services Agreement") is effective as of September 2, 1998, (hereinafter
"Effective Date"), by and between RAYCHEM CORPORATION, a corporation organized
and existing under and by virtue of the laws of the State of Delaware, having a
place of business at 000 Xxxxxxxxxxxx Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000-0000
(hereinafter "RAYCHEM"), and Xxxxx Xxxxxxxxx (hereinafter "CONSULTANT").
NOW, THEREFORE, for and in consideration of the mutual covenants and
obligations assumed by the parties hereto, it is agreed as follows:
1. CONSULTANT, pursuant to the provisions of this Professional Services
Agreement, is retained to perform services as reasonably requested from
time to time by RAYCHEM, at such place or places and at such times as
shall be mutually agreeable. The services shall be carried out at the
direction of the Chief Executive Officer or designee.
2. Full and complete compensation for CONSULTANT's services and also for
the discharge of CONSULTANT's obligations hereunder shall be
CONSULTANT's consideration named in the Agreement and Release between
the parties dated July 10, 1998 (hereinafter "Agreement and Release"),
to which this Professional Services Agreement is attached as Exhibit 1.
X. XXXXXXX shall reimburse CONSULTANT for the expense of round
trip tourist class transportation, hotels and meals,
reasonably incurred by CONSULTANT in connection with any trip
made by CONSULTANT at the request of XXXXXXX, that have been
preapproved by the Chief Executive Officer or designee.
XXXXXXX shall reimburse CONSULTANT for any other reasonable
expenses actually incurred which are incidental to the
services performed hereunder. Expenses exceeding One Hundred
Dollars ($100.00) must be approved in advance by the Chief
Executive Officer or designee.
B. Invoices for expenses shall be submitted to the Chief
Executive Officer or designee within thirty (30) days. Payment
of CONSULTANT's invoice shall be made by RAYCHEM within thirty
(30) days of receipt thereof.
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Professional Services agreement - Xxxxx Xxxxxxxxx
July 10, 1998
Page 2
3. CONSULTANT's relationship to XXXXXXX shall be that of an independent
contractor and nothing in this Professional Services Agreement shall be
construed to create an employer-employee relationship. Since CONSULTANT
will not be an employee of RAYCHEM, it is understood that CONSULTANT
will not be entitled to any benefits under XXXXXXX's retirement, group
insurance or medical plans or any other employee benefits except as
expressly provided in the Agreement and Release. In the performance of
all services hereunder, CONSULTANT shall comply with all applicable
laws and regulations.
4. CONSULTANT recognizes the vital importance to XXXXXXX of the
confidential nature of all proprietary information of Raychem
Corporation, its parent, subsidiaries and/or affiliates (hereinafter
"RAYCHEM GROUP"). In order to prevent what CONSULTANT agrees would
otherwise result in the inevitable disclosure of Proprietary
Information which would thereby cause irreparable harm to the RAYCHEM
GROUP, CONSULTANT agrees that CONSULTANT will not, without the prior
written consent of RAYCHEM, during the term of this Professional
Services Agreement including any renewal thereof, directly or
indirectly, anywhere in the State of California, or in any other State
of the United States or in any other country in which during such
period business is conducted by the RAYCHEM GROUP or substantial
customers of the RAYCHEM GROUP, enter into or engage in any activity as
a sole proprietor, shareholder, employee, director, partner, consultant
or otherwise which is in any way concerned with the design,
development, use, manufacture and/or sale of any technology, product,
product line or component in development, manufactured or sold by the
RAYCHEM GROUP. Further, CONSULTANT shall not directly or indirectly
solicit or induce any employee of the RAYCHEM GROUP to leave their
employment with the RAYCHEM GROUP. CONSULTANT further agrees that
CONSULTANT shall not, either during the term of this Professional
Services Agreement and any extension thereof, serve as an expert
witness for, or advisor to any third party in connection with any
litigation involving XXXXXXX without the express prior written consent
of XXXXXXX. This provision is in addition to any requirement of the
Raychem Employee Intellectual Property Agreement between RAYCHEM and
CONSULTANT and of any applicable policies and laws regarding trade
secrets.
5. XXXXXXX and CONSULTANT acknowledge that the provisions of Paragraph 4
may or may not be enforceable under the laws of certain states
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Professional Services agreement - Xxxxx Xxxxxxxxx
July 10, 1998
Page 3
and/or certain countries. XXXXXXX and CONSULTANT intend that Paragraph
4 be enforced, to the extent enforceable, in all jurisdictions
worldwide in which the RAYCHEM GROUP currently does business, and that
lack of enforceability in any one jurisdiction shall not impair
enforcement in any other jurisdiction.
6. CONSULTANT understands that XXXXXXX does not desire to acquire from
CONSULTANT any secret or confidential know-how or information of
CONSULTANT or which CONSULTANT has acquired or shall hereafter acquire
from any third party. Accordingly, CONSULTANT represents and warrants
that CONSULTANT is free to divulge to RAYCHEM, without any obligation
to, or violation of any right of CONSULTANT or others, any and all
information, practices or techniques which CONSULTANT will describe,
demonstrate, divulge, or any other manner make known to XXXXXXX during
CONSULTANT's performance of services hereunder. CONSULTANT hereby
undertakes to exonerate, indemnify and hold harmless RAYCHEM from and
against any and all liability, loss, cost, expense, damage, claim or
demand for actual or alleged violation of the rights of CONSULTANT or
of the rights divulged to RAYCHEM in any trade secret, know-how or
information CONSULTANT has divulged to RAYCHEM in any trade secret,
know-how or other confidential information by reason of XXXXXXX's
receipt or use of the services or information described above, or
otherwise in connection therewith.
7. As used in this Professional Services Agreement, the term "Invention"
shall mean any and all discoveries, improvements, trade secrets,
processes, techniques, copyrightable material, computer programs,
formula, design and know-how, of any kind or nature, whether or not
patentable, and whether or not related to XXXXXXX's business, and which
are invented, conceived, discovered, developed or reduced to practice
by CONSULTANT and which in any way result from or arise out of
CONSULTANT's services hereunder and/or CONSULTANT's exposure to
XXXXXXX's proprietary information pursuant to Paragraph 7 of this
Professional Services Agreement.
CONSULTANT agrees that CONSULTANT will promptly and fully disclose to
RAYCHEM all Inventions. CONSULTANT also agrees to and xxxxxx does
assign to RAYCHEM all right, title and interest in and to all
Inventions and CONSULTANT represents and warrants that CONSULTANT has
no contractual or other obligations to any third party which preclude
or in any way encumber CONSULTANT's right to assign to RAYCHEM the full
and
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Professional Services agreement - Xxxxx Xxxxxxxxx
July 10, 1998
Page 4
exclusive right, title and interest in and to any and all Inventions.
It is further understood and agreed that all Inventions will be and
remain the property of XXXXXXX whether or not disclosed, assigned or
patented.
CONSULTANT shall, if XXXXXXX shall so request, assist XXXXXXX in every
proper way to obtain for the sole benefit of RAYCHEM, patents on
Inventions in any and all countries. The decision to file (or not to
file) and/or continue to prosecute a patent application or applications
on any Inventions shall be in RAYCHEM's sole discretion.
8. The parties hereto acknowledge that during the course of CONSULTANT's
service to RAYCHEM pursuant to this Professional Services Agreement it
may be necessary or desirable for RAYCHEM to disclose to CONSULTANT
significant RAYCHEM proprietary information. Any information imparted
to RAYCHEM in confidence by a third party shall be deemed for purposes
of this Professional Services Agreement to constitute RAYCHEM
proprietary information. CONSULTANT fully understands that the
maintenance of XXXXXXX's proprietary information in strict confidence
and the confinement of its use to RAYCHEM is of vital importance to
RAYCHEM. CONSULTANT therefore agrees that all information and knowledge
divulged to CONSULTANT by XXXXXXX or which CONSULTANT acquires in
connection with or as a result of CONSULTANT's services hereunder shall
be regarded and treated by CONSULTANT as confidential. Without limiting
the generality of the foregoing, CONSULTANT recognizes that, unless and
until published, all features of the materials, apparatus, process and
application methods heretofore or hereafter used or developed by
XXXXXXX shall be regarded and treated by CONSULTANT as a trade secret
of XXXXXXX. CONSULTANT shall not use, nor shall CONSULTANT disclose,
any such information or knowledge to any person either during or after
the term of this Professional Services Agreement, except only to those
employees of RAYCHEM as may be necessary in the regular course of
CONSULTANT's duties hereunder, or except as otherwise authorized in
writing by XXXXXXX, unless such information or knowledge are, or
become, publicly known through no act or omission of CONSULTANT.
9. CONSULTANT recognizes that all records and copies of records, drawings,
models, apparatus, samples and the like which in any way relate to
RAYCHEM's technology, operations, investigations and business, and
which are made or received by CONSULTANT during the term of, or
otherwise
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Professional Services agreement - Xxxxx Xxxxxxxxx
July 10, 1998
Page 5
pursuant to, this Professional Services Agreement are and shall remain
the exclusive property of RAYCHEM. CONSULTANT shall keep such records
and/or copies thereof at all times in CONSULTANT's custody and subject
to CONSULTANT's control, and shall surrender the same to XXXXXXX
immediately upon the request of XXXXXXX.
10. CONSULTANT hereby undertakes to exonerate XXXXXXX, its officers,
directors, shareholders, agents, employees, attorneys, insurers,
successors and/or assigns from and against any and all liability, loss,
cost, damage, claims, demands for expenses of every kind on account of
any injuries (including death) to CONSULTANT or loss of or damage to
CONSULTANT's property arising out of or resulting in any manner from or
occurring in connection with CONSULTANT's performances of services
hereunder, except only if caused solely by the negligence of RAYCHEM or
its servants or employees.
11. CONSULTANT shall not assign this Professional Services Agreement or any
part thereof without XXXXXXX's prior written consent, and any such
purported assignment shall be void. This Professional Services
Agreement shall inure to the benefit of XXXXXXX's parent, subsidiaries,
successors and/or assigns.
12. This Professional Services Agreement shall be effective as of the date
first written above and shall terminate on September 1, 1999. This
Professional Services Agreement will be subject to a one (1) year
renewal at RAYCHEM's option, which renewal shall be automatic if, and
extend for the period that, CONSULTANT continues to receive
compensation from RAYCHEM pursuant to the Agreement and Release dated
July 10, 1998. Any act or omission by CONSULTANT constituting a
material breach of this Professional Services Agreement shall subject
this Professional Services Agreement to termination immediately by
RAYCHEM for good cause and shall automatically suspend all RAYCHEM
obligations to perform hereunder so long as CONSULTANT is in breach
hereof. This Professional Services Agreement shall terminate
automatically in the event of CONSULTANT's death or inability for any
reason to perform the services contemplated herein. On termination of
this Professional Services Agreement, for any reason, XXXXXXX's
obligation to pay any compensation, except for services or expenses
already properly accrued or incurred, shall forthwith cease and
terminate. Termination of this Professional Services Agreement for any
reason shall not affect
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July 10, 1998
Page 6
CONSULTANT's obligations under Paragraphs 4 through 10, inclusive,
hereof.
13. CONSULTANT represents and warrants that CONSULTANT has or will promptly
obtain an agreement containing provisions equivalent in all material
respects to the provisions contained in Paragraphs 4 through 10,
inclusive, hereof with all agents, employees or associates of
CONSULTANT who will be in any way involved either with RAYCHEM
proprietary information or otherwise in connection with the services
being performed hereunder. The obligations undertaken by CONSULTANT
pursuant to Paragraphs 4 through 10, inclusive, hereof shall extend to
the RAYCHEM GROUP and to its predecessors and successors in interest.
14. Any notices or communications hereunder shall be effective only if in
writing, addressed as follows:
If to RAYCHEM: RAYCHEM CORPORATION
Attn: Xxxxxxx X. Xxxxxxx
000 Xxxxxxxxxxxx Xxxxx
Mail Stop 120/0000
Xxxxx Xxxx, Xxxxxxxxxx 00000-0000
with a copy to: RAYCHEM CORPORATION
Attn: Legal Department
Mail Stop 120/0000
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000-0000
If to CONSULTANT: Xxxxx Xxxxxxxxx
15. This Professional Services Agreement has been negotiated, executed and
delivered in the State of California. The parties hereto agree that all
questions pertaining to the validity and interpretation of this
Professional Services Agreement shall be determined in accordance with
the laws of the State of California applicable to contracts made within
the State of California.
16. This Professional Services Agreement, together with the Agreement and
Release dated July 10, 1998, and the Raychem Employee Intellectual
Property Agreement dated May 12, 1997, constitutes the entire agreement
between the parties and supersedes any and all of the other oral or
written agreements
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Professional Services agreement - Xxxxx Xxxxxxxxx
July 10, 1998
Page 7
between CONSULTANT and RAYCHEM. In the event of any conflict between
this Professional Services Agreement and the Agreement and Release, the
Agreement and Release will govern. Any changes in or modifications to
this Professional Services Agreement shall be effective only if in
writing and signed by the parties hereto. CONSULTANT represents that in
entering into this Professional Services Agreement, CONSULTANT has not
relied on any previous oral or implied representations, inducements or
understandings of any kind or nature whatsoever.
IN WITNESS WHEREOF, the parties hereto have executed this Professional
Services Agreement to be effective as of the Effective Date.
RAYCHEM CORPORATION
by: /s/ XXXXXXX X. XXXXXXX
------------------------------------
Xxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
Date: JULY 10, 1998
------------------------------------
CONSULTANT
by: /s/ XXXXX XXXXXXXXX
------------------------------------
(Xxxxx Xxxxxxxxx)
Social Security No.:
------------------------------------
Date: JULY 30, 1998
------------------------------------
Department/Account To Charge:
------------------------------------
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EXHIBIT 3 TO THE AGREEMENT AND RELEASE BETWEEN THE COMPANY
AND XXXXX XXXXXXXXX
AMENDMENT TO
RELOCATION LOAN AGREEMENT
(SECURED BY DEED OF TRUST)
AND TO PROMISSORY NOTE
(SECURED BY DEED OF TRUST)
AMENDMENT TO RELOCATION LOAN AGREEMENT (SECURED BY DEED OF TRUST) AND
TO PROMISSORY NOTE (SECURED BY DEED OF TRUST) ("Amendment"), dated as of August
1, 1998, between Raychem Corporation, a Delaware corporation ("Raychem"), and
Xxxxx Xxxxxxxxx ("Employee") and Xxxxxxx X. Xxxxxxx (together with Employee, the
"Borrower").
R E C I T A L S
WHEREAS, Xxxxxxx and Borrower have previously entered into a Relocation
Loan Agreement (secured by Deed of Trust) dated as April 14, 1997 ("Loan
Agreement") pursuant to which Xxxxxxx provided Borrower a relocation loan
subject to the terms and conditions set forth in the Loan Agreement; and
WHEREAS, Xxxxxxxx has previously entered into a Promissory Note
(secured by Deed of Trust) dated as April 14, 1997 ("Promissory Note") pursuant
to which Borrower promised to pay to Raychem the principal sum of Four Hundred
Thousand Dollars (US $400,000) (the "Loan") together with interest subject to
the terms and conditions set forth in the Promissory Note; and
WHEREAS, based on Employee's resignation effective September 1, 1998,
Xxxxxxx and Borrower now desire to modify the Loan Agreement and Promissory Note
to provide for, among other things, the repayment of the Loan and payment of
interest at a date later than that specified in the Loan Agreement and
Promissory Note.
NOW THEREFORE, in consideration of the foregoing and the mutual
agreements herein contained, the parties agree as follows:
SECTION 1. Amendments to Loan Agreement. The Loan Agreement is,
effective as of the date hereof, hereby amended as follows:
(a) The Loan Agreement is hereby amended by
adding a new
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Professional Services agreement - Xxxxx Xxxxxxxxx
July 10, 1998
Page 2
Section 1(c) to read in full as follows:
"1(c) The Second Loan will mature and
become entirely due and payable, and the Borrower agrees to pay the same, on
August 30, 1999 (the "Scheduled Due Date") or on such earlier date upon which
the Second Loan may become due under the terms and conditions of this Agreement
or the other documents evidencing or securing the Second Loan."
(b) The Loan Agreement is further hereby amended by
adding a new Section 1 (g) to read in full as follows:
"1(g) Notwithstanding the Scheduled Due
Date set forth in Section 1(c) above, if Employee's employment with Raychem is
terminated for any reason (including voluntary or involuntary termination, with
or without cause, disability, retirement, or death), the Second Loan shall
become entirely due and payable, and Borrower agrees to pay the same, on the
Scheduled Due Date."
(c) The Loan Agreement is further hereby amended by
adding a new Section 3(b) to read in full as follows:
"3(b) Effective as of the date of (i) any
failure of Borrower continuously to occupy the New Residence as Borrower's
principal residence, whether or not subsequently cured, (ii) any breach by
Borrower of any negative covenants set forth in Section 6 below, whether or not
subsequently cured, (iii) any breach by Borrower of the terms of the "due on
sale" clause referred to and set forth in Section 4(b) of the Note, which shall
include, without limitation, any conveyance by Employee of Employee's fee
interest in the New Residence to Employee's spouse or former spouse (whether or
not such spouse be a Borrower hereunder), or (iv) any breach by or default of
Borrower of or under any of the other terms, covenants, conditions,
representations or warranties set forth in any of the Loan Documents (as to
which interest shall cease to accrue upon the cure of such breach or default),
then the Second Loan shall bear interest
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Professional Services agreement - Xxxxx Xxxxxxxxx
July 10, 1998
Page 3
at Nine Percent (9%) per annum, and thereafter all accrued interest shall be
payable in full on or before the first calendar day of each month."
(d) The Loan Agreement is further hereby amended by
deleting Section 7(e). SECTION 2. Amendments to Promissory Note. The Promissory
Note is, effective as of the date hereof, hereby amended as follows:
(a) The Promissory Note is hereby amended by
adding a new Section 2(a) to read in full as follows:
"2(a) The term of this Loan shall commence
upon the date hereof and shall expire on August 30, 1999 (the "Scheduled Due
Date"), at which time all amounts then owing and unpaid (including principal,
interest, and any other accrued and unpaid charges under any of the Loan
Documents) shall be immediately due and payable by Borrower to Payee in full."
(b) The Promissory Note is hereby further amended by
adding a new Section 2(c) to read in full as follows:
"2(c) Notwithstanding the Scheduled Due Date
stated above, if the employment of Employee (Employee being defined in the
Agreement) with Payee is terminated for any reason (including voluntary or
involuntary termination, with or without cause, disability, retirement, or
death), the term of this Note shall expire and all amounts then owing and unpaid
(including principal, interest, and any other accrued and unpaid charges under
any of the Loan Documents) shall become immediately due and payable by Borrower
to Payee in full on the Scheduled Due Date."
(c) The Promissory Note is further hereby amended by
adding a new Section 4(c) to read in full as follows:
"4(c) If any Event of Default set forth in
Section 7 of the Agreement should occur prior to the Scheduled Due Date, Payee
at its election, without
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Professional Services agreement - Xxxxx Xxxxxxxxx
July 10, 1998
Page 4
demand or notice and irrespective of the otherwise dated maturity hereof, may
accelerate the unpaid balance of principal plus accrued interest, if any, and in
the event of such acceleration the entire unpaid balance of principal plus any
accrued interest shall be immediately due and payable."
SECTION 3. Continued Effect of Deed of Trust. The parties to this
Amendment agree that the Deed of Trust referenced in the Loan Agreement, dated
as April 14, 1997, and Promissory Note, dated as April 14, 1997 and recorded at
the request of North American Title Insurance on April 18, 1997 in the official
records of San Mateo County (Document No. 97-044874), will continue in full
force and effect as stated in the Loan Agreement and Promissory Note as amended,
and the parties intend that the Loan Agreement and Promissory Note as amended
will continue to be secured by the Deed of Trust as set forth in such documents.
SECTION 4. Definition of Referenced Terms in Amendments. Any terms
defined in the Loan Agreement and Promissory Note that are referenced in the
foregoing amended Sections of the Loan Agreement and Promissory Note shall be
defined as set forth in the Loan Agreement and Promissory Note unless otherwise
specified.
SECTION 5. Governing Law. This Amendment, its validity, interpretation,
execution, and settlement of any disputes arising hereunder shall be governed by
and in accordance with the laws of the State of California.
SECTION 6. Execution in Counterparts. This Amendment may be executed in
any number of counterparts and by each of the parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first written above.
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Professional Services agreement - Xxxxx Xxxxxxxxx
July 10, 1998
Page 5
Raychem: RAYCHEM CORPORATION
a Delaware Corporation
By: /s/ XXXXXXX X. XXXXXXX
-----------------------
Xxxxxxx X. Xxxxxxx
Chief Executive Officer
Borrower: /s/ XXXXX XXXXXXXXX
-----------------------
Xxxxx Xxxxxxxxx
/s/ XXXXXXX X. XXXXXXX
-----------------------
Xxxxxxx X. Xxxxxxx
CONFIDENTIAL
