EXHIBIT 10.2
SEPARATION AGREEMENT AND RELEASE OF ALL CLAIMS
This Separation Agreement and Release of All Claims (the "AGREEMENT") is
made by and between Xxxxxx X. Xxxxx ("Executive") and Broadcom Corporation, a
California corporation (the "Company"), effective as of June 1, 2006.
RECITALS
A. Executive is the Company's Senior Vice President, Global Sales.
B. Executive and the Company mutually desire to end Executive's
employment by the Company and to enter into a consulting relationship for a
limited period of time following the termination of Executive's employment.
AGREEMENTS
Based upon the foregoing, and in consideration of the mutual promises
contained in this Agreement, Executive and the Company (for its benefit and the
benefit of the other Company Parties as defined below) agree as follows:
1. Employment Status. Executive hereby resigns as Senior Vice President,
Global Sales effective June 1, 2006 and his status in such position shall end
effective that date. Executive shall continue full time employment with the
Company (but not in the status of an officer) until June 30, 2006 (June 30, 2006
is referred to herein as the "Termination Date"). Following the Termination
Date, Executive will be engaged as a consultant under the provisions of Section
2 hereof and Appendix A attached hereto ("Appendix A").
2. Engagement as a Consultant.
2.1 Executive and Company agree that Company will engage
Executive as a consultant from the Termination Date until October 28, 2007
(unless earlier terminated) (the "Consulting Period") on the terms and
conditions set forth in this Section 2 and in Appendix A. During the Consulting
Period, the Company may share with Executive confidential information about its
business, including without limitation trade secrets, technology and product
roadmaps, legal theories, litigation strategies, and other technical, financial
business and legal information. Executive and the Company agree that Executive's
rendering services, without the Company's consent, to any entity that the
Company reasonably and in good faith determines is competitive with the Company
(a "Competitor"), would conflict with Executive's duties as a consultant.
Therefore, during the Consulting Period, Executive will not, without the
Company's written consent, render services to any Competitor (any such rendering
of services is referred to herein as "Prohibited Employment"). The parties shall
abide by the procedure set forth in Appendix A to determine whether any proposed
employment by Executive would constitute Prohibited Employment. If Executive
engages in Prohibited Employment prior to October 28, 2007, the Consulting
Period shall immediately terminate. Subject to the restrictions set forth
herein, Executive may render services to an entity other than a Competitor
during the Consulting Period, and may, with the written consent of the Company,
render services to a Competitor during the Consulting Period (each, "Permitted
Employment"). Engagement in Permitted Employment
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shall not cause the Consulting Period to cease. Executive may terminate the
Consulting Period at any time prior to October 28, 2007 by providing written
notice of termination to the Company.
2.2 Commencing on the Termination Date and continuing until the
earlier of (i) June 30, 2007, or (ii) the early termination of the Consulting
Period under Section 2.1, and subject to Executive's continued compliance with
all of the terms and conditions of this Agreement: (a) Executive shall be paid
consulting fees at the annual rate of Two Hundred Fifty Thousand Dollars
($250,000), less appropriate withholdings, payable in accordance with the
Company's regular payroll practices, and (b) Executive shall continue to receive
life insurance and long-term disability insurance offered to the Company's
employees generally on the same terms as all other executive employees.
2.3 Executive shall continue to be covered by the Company's
medical, dental and vision benefits until June 30, 2007. Coverage of Executive
pursuant to the continued coverage requirements of section 601 et. seq. of the
Employee Retirement Income Security Act of 1974, as amended (commonly known as
"COBRA coverage") shall commence July 1, 2007. The Company shall pay the cost of
Executive's COBRA coverage until June 30, 2008, and Executive shall be
responsible for the cost of such coverage commencing July 1, 2008 and continuing
until COBRA coverage ceases. Notwithstanding the foregoing, if the Executive
engages in either Prohibited Employment or Permitted Employment before July 1,
2008, (i) any remaining obligation of the Company to provide health benefit
coverage (other than any COBRA coverage then required) shall immediately cease,
and (ii) the Company's obligation to pay the cost of COBRA coverage shall
immediately cease.
2.4 Unless the Executive engages in Prohibited Employment, if
permitted under the terms of the Company's 401(k) plan, Executive will be
eligible to continue participation in such plan until June 30, 2007 and be
eligible for allocation of the 2006 Company matching contribution under such
plan.
2.5 Executive shall not accrue any other benefits including
without limitation, vacation, flexible spending, leave entitlement, severance or
other compensation after the Termination Date.
2.6 If the Executive has not engaged in Prohibited Employment on
or before the date the Company pays bonuses to other executives of the Company
with respect to services in 2006 (generally expected to occur in the first
quarter of 2007), on that date the Company shall pay Executive a pro-rated bonus
equal to the product of (i) $100,000 times (ii) a fraction, the numerator of
which is the number of days in 2006 prior to the Termination Date, and the
denominator of which is 365. No bonus shall be payable with respect to any
period accruing after the Termination Date.
2.7 Until the earlier of (i) the last day of the Consulting
Period, or (ii) the "Applicable Equity Vesting Date," as defined below,
Executive will be deemed to be in the continued service of the Company for
purposes of vesting in awards of options to purchase shares of the Company's
common stock or restricted stock units that were in existence as of the
Termination Date (collectively, the "Outstanding Awards") and provided to
Executive pursuant to any plan of the Company or any stock option agreement or
restricted stock unit award
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agreement between Executive and the Company (collectively, the "Equity
Agreements"). Therefore, in accordance with the terms of the applicable Equity
Agreements, the Outstanding Awards will continue to vest (to the extent not
previously vested) until the Applicable Equity Vesting Date (but in no event
beyond the maximum term of the particular option or restricted stock unit, as
applicable). On the earlier of (x) the last day of the Consulting Period, or (y)
October 28, 2007, Executive will be deemed to have incurred a separation from
service for purposes of each Outstanding Award, and Outstanding Awards that are
vested stock options will remain exercisable for the period of time following
such date provided for in the applicable Equity Agreement (generally an
additional ninety (90) days). The "Applicable Equity Vesting Date" shall mean
(A) with respect to the December, 2003 option grant made to Executive, October
28, 2007, and (B) with respect to all other Outstanding Awards, June 30, 2007.
In addition, Executive relinquishes his Section 16 status when he ceases to be
an officer of the Company on June 1, 2006 and will be removed from the Company's
Blackout List ninety (90) days after the Termination Date. Notwithstanding
Executive's removal from the Blackout List, throughout the term of this
Agreement, Executive may continue to be subject to special blackout windows
provided that the Company determines in good faith that Executive possesses
material inside information at that time.
2.8 The Company shall have grounds for termination of the
Company's obligations under this Agreement ("Termination Grounds") if Executive
(a) violates in any material respect the terms and conditions of Section 2.9,
Section 4.1, Section 5, Section 9, Appendix A or the Confidentiality and
Inventions Assignment Agreement attached as Appendix B, and such violation is
not curable or Executive fails to promptly cure such violation after written
notice from the Company, or (b) engages in Prohibited Employment. If the Company
believes in good faith that Termination Grounds exist, then the Company shall
provide a written notice to Executive setting forth a brief description of the
Termination Grounds it believes exist. If such Termination Grounds are curable
by Executive, then Executive shall have 15 days from the date of such notice to
cure such Termination Grounds. Upon the expiration of such 15-day period (if
such Termination Grounds are curable and have not been cured), or upon providing
written notice of Termination Grounds that are not curable, the Company may
immediately suspend (i) the payment of any consulting fees, (ii) vesting of any
then unvested stock options and restricted stock unit awards, and (iii) the
exercisability of stock options (subject to the post-termination exercise
period, if applicable, as set forth the in each applicable Equity Agreement).
Such suspensions shall be subject to the arbitration procedure set forth in
Section 10.1. If the arbitrator determines that Termination Grounds exist, then
the Company's obligation to make the suspended payments and provide the
suspended benefits shall terminate without further payment to Executive, and the
Consulting Period shall be deemed to have ended as of the date of the
suspension. If the arbitrator determines that Termination Grounds do not exist,
then the suspension shall be lifted and the suspended payments and benefits
shall be paid or provided to Executive.
2.9 Following the end of the Consulting Period (regardless of
whether the Consulting Period terminated early), upon the reasonable requests of
the Company made from time-to-time, the Executive will provide the Company with
information in the Executive's possession as well as reasonable assistance
regarding any business or legal issues where Executive's knowledge may be
relevant.
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3. Separate Payment of Vacation. The parties recognize that, apart from
this Agreement and except for the payment of accrued but unused vacation pay,
the Company is not obligated to provide Executive with any of the benefits set
forth hereunder. Executive will be paid for all accrued but unused vacation,
without regard to his execution of this Agreement, on or before the Termination
Date.
4. Confidentiality Agreement and Disclosure by Company.
4.1 Executive agrees to continue to abide by the terms and
provisions of the Confidentiality and Invention Assignment Agreement dated July
10, 2003 signed by Executive (the "Confidentiality Agreement"), a copy of which
is attached as Appendix B to this Agreement. Nothing in this Agreement shall
affect the scope, enforceability, term or any other provision of the
Confidentiality Agreement.
4.2 The Company and Executive agree that the Company may
disclose the existence, terms or provisions of, or any other information
concerning, this Agreement to the extent the Company determines in its sole
judgment that disclosure is required by law or is or otherwise appropriate.
5. Mutual Non-Disparagement. During the Consulting Period and for one
year after the end of the Consulting Period: (a) Executive agrees that he will
not disparage the Company or any past or present (as of the time any statement
is made) officer, director or employee of the Company or otherwise make
statements -- whether or not such statements are thought to be (or are) true,
and whether or not such statements are made publicly, privately, subject to
confidentiality obligations or otherwise -- which could tend to harm or injure
the personal or business reputation or business, of the Company or of any past
or present officer, director or employee of the Company, and whether or not such
statements are made to any present or former employee or director of the Company
or to someone outside of the Company. The Company agrees that it will instruct
its "named executive officers," as defined in 17 CFR 229.402(a)(3) to not,
during the Consulting Period and for one year after the end of the Consulting
Period, disparage Executive or otherwise make statements -- whether or not such
statements are thought to be (or are) true, and whether or not such statements
are made publicly, privately, subject to confidentiality obligations, or
otherwise -- which could tend to harm or injure the personal or business
reputation, or business, of Executive, and whether or not such statements are
made to any present or former employee or director of the Company or to someone
outside of the Company.
Without limiting the generality of this Section 5, in response to any
inquiries or in connection with any explanation of the reasons for the end of
Executive's employment with the Company, the parties agree that the Company may
provide a response substantially as follows: "The Company's policy is to just
confirm the date of hire, date of termination, positions held and salary, bonus
and options (without disclosing the number of options)" and the Company may then
provide the foregoing information if requested. If asked, the Company will also
confirm Executive's engagement as a consultant with the Company and his current
salary and benefits. After the end of his employment, the Company may also state
that Executive resigned and voluntarily ended his employment with the Company.
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6. Release and Waiver.
6.1 Release of Company Parties. Except for the obligations of
the Company as provided in this Agreement, Executive, on behalf of himself and
his successors, heirs, assigns, related individuals and entities (if any),
hereby fully and forever releases and discharges Company and any of its parent
corporations, subsidiaries (whether or not wholly-owned), brother-sister
corporations, and all other affiliated, related, predecessor or successor
corporations and entities, and each of their respective present and former
officers, representatives, administrators, accountants, attorneys,
investigators, insurers, partners, associates, successors and assigns, in any
and all capacities (including but not limited to the fiduciary, representative
or individual capacity of any released person or entity), and any entity owned
by or affiliated with any of the foregoing (each a "Company Party" and together,
the "Company Parties") from, and covenants not to xxx or otherwise institute or
cause to be instituted any legal or administrative proceedings against the
Company or Company Parties with respect to, any matter arising out of or
relating to Executive's employment, or the termination thereof, or any acts of
the Company or any Company Party, including, without limitation, any claims and
causes of action against the Company or any Company Party that relate to conduct
occurring before and up to the date of this Agreement. Moreover, Executive
releases, acquits and discharges the Company and the Company Parties from any
and all rights, actions, claims, demands, costs and expenses (including but not
limited to attorneys fees), contracts, allegations, liabilities, obligations,
debts, damages and causes of action, whether known, suspected or unknown, fixed
or contingent, apparent or concealed, which Executive had or now has or may
claim to have had by reason of any matter or thing at any time up to and
including the date Executive executes this Agreement. The foregoing
notwithstanding, this release shall not extend to claims for indemnification
permitted under common law, the Company's Bylaws or Articles of Incorporation or
the Indemnification Agreement dated June 28, 2003 between Executive and the
Company (the "Indemnification Agreement"), provided, however, that Executive
shall notify the Company in writing within fifteen (15) days of receipt of
notice of any claim subject to such indemnification.
6.2 Acknowledgement and Waiver. Executive understands and agrees
that he is waiving any rights he may have had, now has, or in the future may
have, to pursue any and all remedies available to him individually or on behalf
of others to any claims based on, arising out of, or related to Executive's
employment with, or the termination of Executive's employment with, the Company,
including but not limited to any claims arising from rights under federal,
state, and local laws relating to the regulation of federal or state tax
payments or accounting; federal, state or local laws that prohibit harassment or
discrimination on the basis of race, national origin, religion, sex, gender,
age, marital status, bankruptcy status, disability, perceived disability,
ancestry, sexual orientation, family and medical leave, or any other form of
harassment or discrimination or related cause of action (including but not
limited to failure to maintain environment free from harassment and
retaliation); laws such as workers' compensation laws, which provide rights and
remedies for injuries sustained in the workplace; statutory or common law claims
of any kind, including but not limited to, contract, tort, and property rights,
unfair business practices, breach of contract, breach of implied-in-fact
contract, breach of the implied covenant of good faith and fair dealing,
tortious interference with contract or current or prospective economic
advantage, fraud, deceit, invasion of privacy, unfair competition,
misrepresentation, defamation, wrongful termination, tortious infliction of
emotional distress (whether intentional or negligent), breach of fiduciary duty,
violation of public
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policy, or any other common law claim of any kind whatsoever; any claims for
severance pay, sick leave, family leave, liability pay, overtime pay, vacation,
life insurance, health insurance, continuation of health benefits, disability or
medical insurance or any other fringe benefit or compensation, including stock
options; any and all rights or claims arising under Title VII of the 1964 Civil
Rights Act, as amended, the California Fair Employment and Housing Act, and any
other state or federal statutes relating to securities, discrimination or
wrongful termination of employment or employment related claims, the Equal Pay
Act of 1963, the Americans with Disabilities Act, California Labor Code Section
1197.5, the Age Discrimination in Employment Act of 1967, as amended, the Civil
Rights Act of 1866, the California Business and Professions Code Section 17200
et seq., the Employee Retirement Income Security Act of 1976 ("ERISA") and any
other laws and regulations relating to employment or the Executive's receipt of
wages, stock, stock options or other compensation or benefits. Executive
represents and warrants that as of the date this Agreement is executed by him,
he has not suffered any work related injuries or illnesses.
6.3 ADEA Waiver. Executive expressly acknowledges and agrees
that by entering into this Agreement, he is waiving any and all rights or claims
that he may have arising under the Age Discrimination Employment Act of 1967, as
amended ("ADEA"), which have arisen on or before the date of execution of this
Agreement. Executive further expressly acknowledges and agrees that: (a) in
return for this Agreement, he will receive consideration beyond that which he
was already entitled to receive before entering into this Agreement; (b) he is
hereby advised in writing by this Agreement to consult with an attorney before
signing this Agreement; (c) he was given a copy of the Agreement on June 1, 2006
and informed that he had twenty-one (21) days within which to consider the
Agreement and that if he wished to execute this Agreement prior to expiration of
such 21-day period, he should execute the Acknowledgement and Waiver attached
hereto as Appendix C; (d) nothing in this Agreement prevents or precludes
Executive from challenging or seeking a determination in good faith of the
validity of this waiver under the ADEA, nor does it impose any condition
precedent, penalties or costs from doing so, unless specifically authorized by
federal law; and (e) he was informed that he has seven (7) days following the
date of execution of this Agreement in which to revoke this Agreement, and this
Agreement will become null and void if Executive elects revocation during that
time. Any revocation must be in writing and must be received by the Company
during the 7-day revocation period. In the event Executive exercises his right
of revocation, neither the Company nor Executive will have any obligations under
this Agreement.
6.4 Tax Treatment. Executive expressly acknowledges and agrees
that the release provided by Executive to the Company herein fully releases any
claim the Executive may have had, now has, or in the future may have with
respect to the Federal, state and local tax treatment of the consideration
provided under this Agreement, including but not limited to claims related to
any taxes or penalties arising under Section 409A of the Internal Revenue Code
or comparable provisions of any state law with respect to the continued
exercisability of stock options following the Termination Date, and without
regard to whether the Executive actually performs or is deemed to have performed
consulting services during the Consulting Period.
6.5 Termination of Special Retention Program. Executive
expressly acknowledges and agrees that the special retention program set forth
in a letter agreement dated November 11, 2004 shall terminate with respect to
Executive as of the date of this Agreement.
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Executive expressly acknowledges and agrees that he is not now and will not in
the future be entitled to any payments or benefits under the special retention
program, and he expressly waives any rights or claims had, now has, or in the
future may have.
6.6 Mistakes in Fact/Voluntary Consent. Executive expressly and
knowingly acknowledges that, after the execution of this Agreement, he may
discover facts different from or in addition to those that he now knows or
believes to be true with respect to the claims released in this Agreement.
Nonetheless, Executive agrees that this Agreement shall be and remain in full
force and effect in all respects, notwithstanding such different or additional
facts. It is the intention of Executive to fully, finally, and forever settle
and release any and all claims he may have against the Company and the Company
Parties. In furtherance of such intention, the release given in this Agreement
shall be and remain in effect as a full and complete release of such claims,
notwithstanding the discovery and existence of any additional or different
claims or facts. This Agreement is intended, pursuant to the advice of
independently selected legal counsel, to be final and binding between and among
the parties to this Agreement, regardless of any allegations of
misrepresentations, or promises made without the intention of performance, or
concealments of facts, or mistake of fact or law, or of any other circumstances
whatsoever.
In furtherance of Executive's intention, Executive waives any and all
rights or benefits which he or it may have under the provisions of California
Civil Code Section 1542, which provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
[EXECUTIVE] DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR [COMPANY]."
6.7 Follow-up Release. At the end of the Consulting Period, the
Executive shall execute and deliver to the Company the follow-up release
attached hereto as Appendix D.
7. Non-assignment and Absence of Claims. Executive represents and
warrants that he has not assigned or transferred any portion of any claim that
he has or may have to any other person, firm, corporation or any other entity,
and that no other person, firm, corporation, or other entity has any lien or
interest in any such claim. Executive represents that he has not filed any
claims, charges, complaints or actions against the Company or any Company
Parties, or assigned to anyone any charges, complaints, claims or actions
against the Company or any Company Parties. Executive also agrees that if any
claim is prosecuted in his name before any court or administrative agency that
he waives and agrees not to take any award or other damages from such suit. This
provision, however, shall apply only to the extent permissible under applicable
law.
8. No Admission of Liability. The parties acknowledge and covenant that
this Agreement represents a settlement and compromise of any claims Executive
may have against the Company or the Company Parties, and that by entering into
this Agreement, no party admits or acknowledges the existence of any liability
or wrongdoing, all such liability or wrongdoing being expressly denied.
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9. Return of Company Property. Executive represents and warrants that on
or before June 30, 2006 he will deliver, to the Company and/or the Company's
counsel, all tangible property of the Company in his possession, custody or
control, including all originals and copies of documents, all documents and
materials, of whatever nature, relating to the Company, its products and/or its
services, and/or Executive's employment with the Company, including without
limitation all datasheets, files, memoranda, emails, records, software, disks,
instructional manuals and other physical or personal property that Executive
received, prepared or helped prepare in connection with his employment with the
Company. Executive further agrees that he will not keep any paper or electronic
copies or excerpts of any of the above items and that he has no property or
other interest in such documents and materials. Such documents as are necessary
for Executive to perform his duties as a consultant during the Consultant Period
shall be provided to Executive by the Company and those documents will be
returned to the Company on or before the termination of the Consulting Period.
10. Confidential Arbitration of Disputes.
10.1 Any controversy, dispute, or claim between the parties to
this Agreement, including without limitation any claim arising out of, in
connection with, or in relation to the formation, interpretation, performance or
breach of this Agreement shall be settled exclusively by expedited arbitration,
before a single arbitrator, in accordance with this Section and the then most
applicable rules of the Judicial Arbitration and Mediation Services (JAMS) in
Orange County, California, or its successor. The hearing and arbitration
proceedings (as well as any resulting judicial proceedings seeking to enforce or
vacate any arbitration award) shall be conducted in as confidential a manner as
is legally permissible and any award and decision of the arbitrator shall be
written in such a way as to protect the confidentiality of information made
confidential by this Agreement or recognized as confidential by the
Confidentiality Agreement. Any demand for arbitration by either party must be
filed within the statute or statutes of limitation that is or are applicable to
the claim(s) relating to the dispute upon which arbitration is sought or
required. The arbitration shall be administered by JAMS pursuant to its
Comprehensive Arbitration Rules and Procedures if the amount in controversy
exceeds $250,000, or pursuant to its Streamlined Arbitration Rules and
Procedures if the amount in controversy is $250,000 or less. Both parties will
be entitled to conduct discovery in accordance with the rules and procedures as
set forth in the California Code of Civil Procedure. The arbitrator shall have
the same, but no greater, remedial authority as would a court hearing the same
dispute. At the conclusion of the arbitration, the arbitrator shall issue a
written decision that sets forth the essential findings and conclusions upon
which the arbitrator's award or decision is based. Judgment on the award may be
entered in any court having jurisdiction; provided, however, that the
arbitrator's award shall be subject to correction, confirmation or vacation in
accordance with the provisions and standards of applicable law governing the
judicial review of arbitration awards. Notwithstanding the foregoing, either
party may in an appropriate matter apply to a court pursuant to California Code
of Civil Procedure Section 1281.8, or any comparable statutory provision or
common law principle, for provisional relief, including a temporary restraining
order or a preliminary injunction. To the extent permitted by law, the
proceedings and results, including the arbitrator's decision, shall be kept
confidential.
10.2 Right to Take or Forbear From Action. Although all disputes
between the parties are to be resolved pursuant to the dispute resolution
procedure set forth in this Section 10,
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commencement or exhaustion of the dispute resolution procedure is not
prerequisite to any party taking or forbearing from any action that the party in
good faith believes is consistent with this Agreement. Thus, by way of example
and not limitation, in the event the Company in good faith believes Termination
Grounds exist, the Company may suspend payments and benefits under this
Agreement as set forth in Section 2.8 prior to the commencement or initiation of
the dispute resolution procedure, and if Executive subsequently prevails in the
dispute resolution procedure, Executive will be entitled only to those payments
and benefits that were due to Executive under this Agreement.
11. Miscellaneous Provisions.
11.1 Cooperation and Indemnification. Executive agrees to
cooperate with the Company in connection with any future, potential or currently
pending litigation, including, without limitation, by providing information
within Executive's knowledge to Company and by making himself reasonably
available to testify in any action as reasonably requested by the Company.
11.2 Additional Documents. The parties will execute all such
further and additional documents and undertake all such other actions as shall
be reasonable, convenient, necessary or desirable to carry out the provisions of
this Agreement.
11.3 Notices. Written notices required or permitted to be given
pursuant to this Agreement shall be given as follows:
If to Executive: At the address and facsimile no. set forth on
the signature page of this Agreement.
If to the Company:
Broadcom Corporation
00000 Xxxxx Xxxxxxx
P. O. Xxx 00000
Xxxxxx, XX 00000-0000
Attn: General Counsel
Facsimile No.: (000) 000-0000
Such notice shall be deemed to have been duly given: (i) when delivered
by hand, if personally delivered; (ii) five business days after being deposited
in the U.S. Mail, postage prepaid, if mailed certified mail, return receipt
requested; (iii) one business day after being timely delivered to a
nationally-recognized next-day air courier guaranteeing overnight delivery; (iv)
the date of transmission if sent via confirmed facsimile transmission to the
facsimile number as set forth in this Section or the signature page hereof prior
to 6:00 p.m. in the recipient's time zone on a business day, or (v) the business
day next following the date of transmission if sent via confirmed facsimile
transmission to a facsimile number set forth in this Section or on the signature
page hereof after 6:00 p.m. in the recipient's time zone or on a date that is
not a business day. Change of a party's address or facsimile number may be
designated hereunder by giving notice to all of the other parties hereto in
accordance with this Section 11.3.
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11.4 Integration. This Agreement constitutes a single,
integrated written contract expressing the entire Agreement of the parties
concerning the subject matter referred to in this Agreement. No covenants,
agreements, representations, or warranties of any kind whatsoever, whether
express or implied in law or fact, have been made by any party to this
Agreement, except as specifically set forth in this Agreement. All prior and
contemporaneous discussions, negotiations, and agreements have been and are
merged and integrated into, and are superseded by, this Agreement; provided,
however, that the Confidentiality Agreement and the Indemnification Agreement
shall remain in full force and effect in accordance with their respective terms
and as provided in Sections 4.1 and 6.1 hereof, respectively.
11.5 Modifications. No modification, amendment, or waiver of any
of the provisions contained in this Agreement, or any future representation,
promise, or condition in connection with the subject matter of this Agreement,
shall be binding upon any party to this Agreement unless made in writing and
signed by each of Executive and the Company.
11.6 Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law but if any provision of this Agreement is held to be void,
voidable, invalid, illegal or for any other reason unenforceable, the validity,
legality and enforceability of the other provisions of this Agreement will not
be affected or impaired thereby.
11.7 Non-Reliance on Other Parties. Except for statements
expressly set forth in this Agreement, no party has made any statement or
representation to any other party regarding a fact relied on by the other party
in entering into this Agreement, and no party has relied on any statement,
representation, or promise of any other party, or of any representative or
attorney for any other party, in executing this Agreement or in making the
settlement provided for in this Agreement.
11.8 Negotiated Agreement. The terms of this Agreement are
contractual, not a mere recital, and are the result of negotiations between the
parties. Accordingly, no party shall be deemed to be the drafter of this
Agreement.
11.9 Construction. Whenever the context so requires, the
singular number shall include the plural number and vice versa, and the
masculine gender shall include the feminine (or neuter) gender and vice versa.
11.10 Headings. The descriptive headings and sub-headings of the
several section(s) contained in this Agreement are inserted for convenience only
and shall not control or affect the meaning or construction of any of the
provisions hereof.
11.11 Successors and Assigns. This Agreement shall inure to the
benefit of and shall be binding upon the heirs, successors, and assigns of the
parties hereto and each of them. In the case of the Company, this Agreement is
intended to release and inure to the benefit of any affiliated corporations,
parent corporations, brother-sister corporations, subsidiaries (whether or not
wholly owned), divisions, shareholders, officers, directors, agents,
representatives, principals, employees, and any and all other related
individuals and entities.
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11.12 Applicable Law. This Agreement shall be construed in
accordance with, and governed by, the laws of the State of California without
taking into account conflict of law principles.
11.13 Counterparts. This Agreement may be executed and delivered
in any number of counterparts or copies ("Counterparts") by the parties to this
Agreement. When each party has signed and delivered at least one Counterpart to
the other party to this Agreement, each counterpart shall be deemed an original
and, taken together, shall constitute one and the same Agreement, which shall be
binding and effective as to the parties to this Agreement. Such delivery may be
made by confirmed facsimile transmission.
11.14 Independent Advice from Counsel. Each of the parties has
received prior independent legal advice from legal counsel of such party's
choice with respect to the advisability of making the settlement provided for in
this Agreement and with respect to the advisability of executing this Agreement.
Each party's attorney has reviewed the Agreement at length, made any desired
changes, and signed the Agreement to indicate that the attorney approved the
Agreement as to form and substance.
11.15 Knowing and Voluntary Agreement. Each party acknowledges
that he or it is entering into this Agreement knowingly and voluntarily after
having had an opportunity to negotiate with regard to the terms of this
Agreement, to receive advice with regard to it, to carefully read and consider
its terms, and to make such investigation of the facts pertaining to the
settlement and this Agreement and of all matters pertaining to this Agreement as
such party deems necessary or desirable.
11
IN WITNESS WHEREOF, the parties hereto and their respective attorneys of
record have approved and executed this Agreement on the dates specified below.
June 2, 2006 THE COMPANY:
BROADCOM CORPORATION, a California corporation
By: /s/ Xxxxx X. XxXxxxxx
------------------------------------
Xxxxx X. XxXxxxxx
President and Chief Executive Officer
June 2, 2006 EXECUTIVE:
/s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Address:
----------------------------
----------------------------
Facsimile No.:
----------------------
12
June 2, 2006 AGREED AS TO FORM AND SUBSTANCE:
LAW OFFICE OF XXXXXXXX AND XXXXXXXXX
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Print Name: Xxxxx X. Xxxxxxxxx
Title: Attorney
Address:
----------------------------
----------------------------
Facsimile No.:
----------------------
June 2, 2006 AGREED AS TO FORM AND SUBSTANCE:
O'MELVENY & XXXXX LLP
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Print Name: Xxxxx Xxxxxxxx
Title: Attorney
Address: 000 Xxxxxxx Xxxxxx Xxxxx, #0000
Xxxxxxx Xxxxx, XX 00000
Facsimile No.: (000) 000-0000
13
APPENDIX A
TERMS OF CONSULTANCY
1. This Appendix A sets forth the terms of Executive's engagement as a
consultant to the Company following the Date of Termination, as referred to in
Section 2 of the Separation Agreement and Release of All Claims (the
"Agreement"). Capitalized terms used in this Appendix A have the meanings set
forth in the Agreement.
2. The timing and scope of Executive's services to the Company during
the Consulting Period will be as reasonably determined by the Company. Executive
may provide such services, to the extent feasible, on a basis that avoids
conflict with his obligations to others to whom he is then providing services.
The Company agrees that it will make commercially reasonable efforts to (i)
schedule the dates and times Executive will perform his consulting services
during regular business days and hours, (ii) provide Executive reasonable
advance notice of such schedule, and (iii) accommodate Executive's reasonable
requests regarding such schedule. Executive and the Company acknowledge and
agree that limitations and deadlines concerning the scheduling of Executive's
services may be imposed by the Company as a result of the Company's need to
comply with schedules and deadlines established by persons other than the
Company (such as, by way of example and not limitation, schedules established
pursuant to the order of a judge or magistrate or otherwise pursuant to court
rules). Executive and the Company also acknowledge and agree that extenuating
circumstances, such as the need to comply with schedules and deadlines as
described in the preceding sentence, may limit the Company's ability to provide
advance notice of the dates and times Executive will perform Executive's
consulting services, although the Company will make commercially reasonable
efforts to do so. Without limitation, Executive's consulting services to the
Company may include meetings with the Company's internal and external legal
counsel, review of documents and other evidence and forensic materials,
providing evidence and testimony, and preparing to provide evidence and
testimony, with respect to one or more legal matters involving the Company. The
time Executive will be required to devote to services to the Company during the
Consulting Period will not exceed the limits set forth in paragraph 3 of this
Appendix A.
3. During any twelve-month period within the Consulting Period, without
Executive's consent, Executive will not be required to perform more than 200
hours of consulting services in the aggregate, and during any single calendar
month Executive will not be required to perform more than 17 hours of consulting
services. The monthly limits on the number of hours Executive can be required to
perform consulting services will not apply in any month in which Executive is
providing testimony in any deposition, trial, arbitration or similar proceeding,
or at the Company's request is preparing for such testimony, but the twelve
month limits will still apply. In the event that Executive provides more than
the 200 hours of consulting services required during any twelve-month period
within the Consulting Period, Executive and the Company will agree on the amount
of additional compensation to be paid to Executive for the additional hours
served.
4. It is intended and expected that Executive will provide substantial
consulting services under this Agreement. However, because the precise extent to
which the Company will request Executive's services is not known, it is agreed
that the consideration for Executive's
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consulting services, as set forth in the Agreement, will be payable to Executive
regardless of the actual extent to which the Company requests that Executive
provide consulting services. However, if Executive unreasonably refuses or fails
to provide consulting services requested by the Company consistent with this
Appendix A, or the Consulting Period is terminated early as provided in Section
2 of the Agreement, payment of such consideration will cease.
5. Consistent with Executive's status as a consultant during the
Consulting Period, and to allow the parties to determine if any employment by
Executive would constitute Prohibited Employment, Executive may not render
services to another company without notifying the Company as set forth below.
Executive is free to seek opportunities to render services (as an employee or
otherwise) to another company during the Consulting Period. If Executive accepts
an opportunity to render services to another company during the Consulting
Period, he shall promptly notify the Company in writing. If Executive is
considering an opportunity to render services during the Consulting Period
("Possible Employment"), the Executive may if he so chooses notify the Company
of such Possible Employment; any such notice to be in a writing delivered to the
Company's President and Chief Executive Officer. The Company shall review any
such notice and notify Executive within five (5) business days of the Company's
receipt of such notice whether the Company would regard such Possible Employment
as Prohibited Employment. If the Company's initial advice to Executive is that
the Company would regard the Possible Employment as Prohibited Employment, the
Executive may request that the Company reconsider its initial determination. Any
such request shall be by written notice delivered to the Chairman of the Board
of the Company. The Company shall notify Executive of the results of any such
reconsideration within five (5) business days of the Company's receipt of the
request for reconsideration. Any remaining dispute following such
reconsideration shall be subject to Section 10 of the Agreement. In determining
whether to consent to Executive's employment with a Competitor, the Company will
take into account the extent to which Executive's knowledge related to the
Company could reasonably be expected to adversely affect the Company if
Executive was so employed.
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