Exhibit 10.19
SETTLEMENT AGREEMENT AND GENERAL RELEASE
This Settlement Agreement and General Release (hereinafter "Agreement") is
entered into this 22nd day of December, 1999 ("Effective Date"), by and between
Michael Bereziuk (hereinafter "Employee") and National Semiconductor Corporation
(hereinafter "NSC").
WHEREAS, Employee and NSC have agreed that Employee's employment in the
position of Senior Vice President, Worldwide Marketing and Sales at NSC will
terminate effective as of January 14, 2000; and
WHEREAS, Employee and NSC desire to locate an alternative position within
NSC for Employee; and
WHEREAS, NSC desires to provide termination benefits to Employee on the
terms specified herein should such an alternative position not be available; and
WHEREAS, NSC and Employee acknowledge that the termination benefits
specified herein are greater than Employee would otherwise be entitled to upon
termination of his employment; and
WHEREAS, NSC and Employee desire to settle fully and finally all
differences between them;
NOW, THEREFORE, in consideration of the mutual covenants and promises set
forth herein, Employee and NSC agree as follows:
1. Employee acknowledges and agrees that he received this Agreement on
December 16, 1999, and shall have until close of business on January 6, 2000 to
consider the terms of this Agreement. If Employee signs this Agreement prior to
the expiration of this twenty-one (21) day review period, he does so in express
waiver of his right to exercise such review period. Once signed by Employee,
Employee shall have an additional seven (7) days to withdraw Employee's approval
of this Agreement. This Agreement shall not become effective or enforceable
until this revocation period has expired. If Employee withdraws his approval,
this Agreement will be void and Employee will not be entitled to receive any
benefits hereunder.
2. Employee shall continue as an active employee of NSC until January 14,
2000. Effective January 15, 2000, Employee shall be on an unpaid personal eleven
(11) week leave of absence ("LOA"), during which time Employee's benefits will
continue (as listed on Exhibit A hereto). During said LOA, Employee and NSC will
attempt to locate a mutually acceptable position for Employee within NSC, to
commence at the end of said LOA. If Employee accepts a position within NSC at
the end of said LOA, the terms and conditions of Employee's employment in this
position will be defined at that time, and the remainder of this Agreement will
be void and not become effective. In the event a mutually acceptable position is
not available, effective April 1, 2000 ("Resignation Date") Employee shall
resign as an active employee and agrees to resign from all officer and director
positions held by Employee in NSC or any of its subsidiaries, and shall be
relieved of any further obligations to perform services as an employee on behalf
of NSC.
3. Subject to the limitation set forth below, from and after the
Resignation Date, as consideration for this Agreement and in lieu of any other
severance payment, NSC will continue to pay Employee's salary (at current levels
and less any withholdings required by law) and all associated benefits (for
those individuals covered at the Resignation Date), as listed on Exhibit A but
specifically excluding vacation accrual, as if Employee were an active employee
for an additional period ending on May 1, 2001 (which date shall be referred to
as the "Termination Date"). Employee's stock options will continue to vest
through the Termination Date, in accordance with the terms of the relevant stock
option agreement(s) and as stated on Exhibit B hereto, after which date Employee
will have a ninety (90) day period in which to exercise any stock options that
have vested through the Termination Date. If Employee accepts full-time
employment (not including consulting) outside of NSC prior to the Termination
Date, Employee shall so notify NSC's Vice President, Human Resources, and NSC
shall pay to Employee in a lump sum the amount of additional salary (but not
benefits) that would otherwise have been paid to Employee through the
Termination Date. In this event, Employee's stock options will cease to vest at
the time Employee accepts such employment, and Employee will have a ninety (90)
day period thereafter to exercise any vested stock options. NSC's internal
records shall reflect that Employee's employment terminated as a result of
voluntary resignation on the date that salary and benefits end. In the event of
the death of Employee prior to the Termination Date, NSC shall pay to "The
Bereziuk Family Revocable Trust of December 6, 1999" in a lump sum the amount of
additional salary (but not benefits) that would otherwise have been paid to
Employee through the Termination Date, provided said sum has not already been
paid to Employee. Employee's stock options will vest and may be exercised in
accordance with the terms of the relevant stock option agreement(s).
4. Employee will be eligible for an Executive Officer Incentive Plan
("EOIP") award for fiscal year 2000. Employee's accomplishment score for fiscal
2000 shall be the average of all Executive Staff scores and Employee's Target
Incentive level will be 65%. The EOIP Award for fiscal 2000, if any, will be
paid in accordance with the provisions of the EOIP at the same time all other
EOIP participants receive their payments. Employee shall be eligible for an EOIP
award for fiscal 2001, based on an individual score of 50% or 50% of the average
of all Executive Staff, whichever is greater. This will be paid at the same time
all other EOIP participants receive their payments. The formula for calculation
of Incentive is as per Exhibit C hereto. Employee shall not be eligible for any
EOIP award after fiscal 2001. If Employee accepts employment outside of NSC
during fiscal 2000, this will not affect his EOIP eligibility or payment for
that fiscal year, but Employee will not be eligible for any EOIP award for
fiscal 2001 or thereafter. If Employee accepts full-time employment (not
including consulting) outside of NSC prior to the end of fiscal 2001, any EOIP
award for fiscal 2001 will be prorated accordingly.
5. Until April 1, 2000, Employee will receive any and all benefits that may
become due under the Change of Control Employment Agreement dated April 24,
1998, entered into by Employee with NSC. Effective April 1, 2000, said Change of
Control Employment Agreement shall be terminated, Employee shall receive no
benefits thereunder and NSC shall have no liability thereunder.
6. On January 14, 2000, NSC shall pay Employee any accrued vacation pay to
which Employee is entitled under NSC's vacation program as of that date;
vacation accrual will cease for Employee on January 14, 2000.
7. Employee acknowledges and agrees that the total amount received under
this Agreement constitutes adequate consideration for his covenants and
obligations set forth herein, it being an amount over and above any
entitlements, severance or otherwise that he has, or may have had, by reason or
his employment or separation of employment with NSC.
8. Employee, on behalf of himself, his representatives, heirs, successors
and assigns does hereby completely release and forever discharge NSC and all
other affiliated, related or subsidiary corporations or divisions, its and their
present and former shareholders, officers, directors, agents, employees,
attorneys, successors and assigns, (hereinafter collectively "NSC"), from all
claims, rights, demands, actions, obligations, liabilities and causes of action
of any and every kind, nature and character whatsoever, known or unknown, which
Employee may now have, or has ever had, against NSC based upon any act or
omission by NSC prior to the date of execution of this Agreement by Employee,
including, but not limited to: (1) any and all claims for damages, declaratory
or injunctive relief or attorneys' fees, arising from or in any way related to
Employee's employment by NSC or the termination thereof, whether based on tort,
contract (express or implied), or any federal, state or local law, statute or
regulation, including without limitation rights or claims of age or other
discrimination Employee may have under the Age Discrimination in Employment Act,
as amended, the California Fair Employment and Housing Act, as amended, Title
VII of the Civil Rights Act of 1964, as amended, or the California Labor Code,
as amended; (2) all claims filed or caused to be filed in any court of law or
before any state or federal administrative agency before execution of this
Agreement; and (3) all claims to attorneys fees, however incurred, including,
without limitation, fees incurred in connection with any released claims and
review of this Agreement. Released claims shall not include any claims arising
from acts or omissions occurring after the date of execution of this Agreement.
This paragraph does not waive any indemnification rights Employee may have
whether as an employee or an officer, pursuant to Labor Code Section 2802, NSC
By-Laws or NSC policy, including any indemnification rights in the event of a
shareholder lawsuit. This paragraph does not waive any rights either party may
have against the other for failure to perform obligations under this Agreement.
9. It is understood and agreed that this is a full and final Agreement and
release applying not only to all claims which are presently known, anticipated
or disclosed to Employee, but also all claims which are presently unknown to
Employee. Employee expressly waives any and all rights or benefits which he may
have under the terms of Section 1542 of the California Civil Code, which
provides 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."
10. Employee hereby agrees that he will not initiate or cause to be
initiated against NSC any claim, charge, suit, action, investigation, audit,
compliance review or proceeding of any kind, or participate in same,
individually or as a representative or member of a class, under any contract
(express or implied), law, statute or regulation, federal, state or local,
pertaining in any manner whatsoever to the claims, rights, demands, actions,
obligations, liabilities, and causes of action herein released, including,
without limitation, those relating to his employment by NSC or the termination
thereof. This paragraph does not prevent Employee from testifying under
compulsion of legal process.
11. It is understood and agreed that the furnishing of the consideration
for this Agreement shall not be construed or deemed as an admission of liability
or responsibility of NSC for any purpose. Employee and NSC agree that this
Agreement is being entered into solely for the purpose of avoiding further
expense and inconvenience from defending against any claims, rights, demands,
actions, obligations, liabilities and causes of action. Liability for any and
all claims is expressly denied by NSC.
12. Employee agrees to return all NSC property, credit cards, documents or
other materials or equipment that have been furnished to him by NSC by April 1,
2000. Employee acknowledges that he has complied with and will continue to
comply with the terms of the National Semiconductor Employment Agreement signed
by him with NSC.
13. It is understood and agreed that this Agreement and each and every
provision hereof shall be confidential and shall not be disclosed directly or
indirectly by Employee to any other person, firm, organization or other entity,
of any and every type, public or private, for any reason, at any time without
the prior written request or consent of NSC, unless required by law. Employee
shall not disclose directly or indirectly to any person or organization, except
as expressly permitted herein, that Employee received any sum of money from NSC
as a result of the termination of his employment with NSC. It is further
understood and agreed that it shall not constitute a breach of this Agreement
for Employee to disclose the terms hereof to his immediate family and to his
attorney and his financial advisor and/or accountant; provided, however, that
Employee shall be obliged to use his best efforts to assure that such persons do
not disclose this Agreement or any provision hereof or the fact that Employee
received any sum of money from NSC as a result of the termination of Employee's
employment with NSC. It is understood and agreed that it shall not constitute a
breach of this Agreement for Employee or NSC to respond to any unsolicited
inquiry by stating only that Employee and NSC resolved their differences in a
mutually-satisfactory manner. NSC shall make reasonable efforts to maintain the
confidentiality of this Agreement and its contents and shall not disclose this
Agreement or its contents, directly or indirectly, to any of NSC's employees or
agents, unless such persons have a work-related need to know or unless required
by law. Notwithstanding anything in this paragraph, it is understood that this
Agreement and its terms may be required to be disclosed in NSC's filings with
the Securities and Exchange Commission, and may become public as a result
thereof. In this event, Employee may respond to any inquiries resulting from the
disclosure.
14. Employee represents that he has had an opportunity, and been advised by
NSC, to consult with an attorney of Employee's choosing, that he has read this
Agreement, and has had an adequate opportunity to consider the Agreement, that
he is fully aware of its contents and its legal effect, that the consideration
set forth herein provides the sole consideration for the Agreement, that all
agreements and understandings between the parties are embodied and expressed
herein and that there are no understandings between the parties other than those
specifically and expressly set forth herein, and that he is entering into this
Agreement freely, without coercion, based on his own judgment and not in
reliance upon any representations or promises other than those expressly
contained in this Agreement.
15. This Agreement may not be amended or modified in any manner except upon
written agreement by the parties.
16. Should any provision of this Agreement be held invalid or illegal, such
illegality shall not invalidate the entire Agreement. Rather, this Agreement
shall be construed as if it did not contain the illegal part, and the rights and
obligations of the parties shall be construed and enforced accordingly.
17. With respect to any matters under this Agreement that are governed by
state law, the parties agree that this Agreement shall be construed and governed
by the laws of the State of California. The language of all parts of this
Agreement shall in all cases be construed as a whole, according to its fair
meaning, and not strictly for or against any party.
18. This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
EMPLOYEE NATIONAL SEMICONDUCTOR CORPORATION
By: //s// Michael Bereziuk By: //s// Richard A. Wilson
MICHAEL BEREZIUK RICHARD A. WILSON
Vice President, Human Resources
EXHIBIT A
Medical and Dental Insurance
Retirement and Savings Program
Benefit Restoration Plan (Deferred Compensation, Excess
401(k) Match, Excess Benefit)
Employee Stock Purchase Plan
Stock Option Plan
Executive Financial Counseling Expense Reimbursement
Executive Medical Examination Expense Reimbursement
Long Term Disability Insurance
Short Term Disability Insurance
Accidental Death & Dismemberment Insurance
Dependent (Spouse and Child) Life Insurance
Life Insurance
ADDENDUM
This addendum is entered into as of the 31st day of May, 2000, and
is intended to serve a clarification of certain matters discussed or referred to
in the Settlement Agreement and General Release ("the Agreement") entered into
between Michael Bereziuk ("Employee") and National Semiconductor Corporation
("NSC") dated December 22, 1999. Notwithstanding the language contained in
paragraphs 1 and 2 of the Agreement, both Employee and NSC confirm that Employee
is still considered to be an employee of NSC under common law and that Employee
is not currently an employee of any company outside of NSC. Although Employee
has been relieved currently of any obligation to perform ongoing services, this
arrangement has been made at the discretion of NSC. During all periods which
Employee is still a common law employee of NSC, NSC retains the discretion to
direct Employee to perform mutually agreeable services. In the event that such
services are requested, NSC must notify Employee in writing the nature of the
services requested and the time period for which such services are to be
performed. NATIONAL SEMICONDUCTOR CORPORATION By: //s// Richard A. Wilson //s//
Michael Bereziuk Richard A. Wilson Michael Bereziuk Vice President, WW Human
Resources 31st May 2000