EXHIBIT (10)
AGREEMENT
THIS AGREEMENT is between ROHM AND XXXX COMPANY, a Delaware Corporation
with offices at 000 Xxxxxxxxxxxx Xxxx Xxxx, Xxxxxxxxxxxx, XX 00000, and its
subsidiaries, divisions or affiliates ("Rohm and Xxxx") and J. Xxxxxxxx
Xxxxxx ("Xx. Xxxxxx"), an individual residing at 000 Xxxxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxxxxxx 00000.
A. Background
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WHEREAS, Rohm and Xxxx may wish to use Xx. Xxxxxx to provide certain
advice and services, and
WHEREAS, Xx. Xxxxxx has certain expertise and experience in providing
such services and is willing to provide services for Rohm and Xxxx.
NOW, THEREFORE, intending to be legally bound hereby, Rohm and Xxxx and
Xx. Xxxxxx agree as follows:
B. Services to be Provided
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1. Xx. Xxxxxx agrees to be available to provide Rohm and Xxxx advice on
any issue pertaining to the business or activities of Rohm and Xxxx.
C. Term of the Agreement
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2. The term of this Agreement shall be from October 1, 1999 to
September 30, 2004 ("the Agreement Period"). Xx. Xxxxxx shall provide
advice from time to time during the Agreement Period whenever expressly
requested by a member of the Rohm and Xxxx Chairman's Committee.
3. Either party may terminate this Agreement at anytime with ninety
(90) days advanced written notice to the other party. Upon termination,
the provisions of this Agreement will become null and void with the
exception of the Intellectual Property, Confidentiality and Conflict of
Interest Provisions covered in sections F, G and K hereof, which will
remain in full force and effect.
D. Compensation
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4. Rohm and Xxxx shall pay Xx. Xxxxxx a fee of $100 an hour for any
services actually performed. All services provided under this Agreement
shall be at the express request of a member of the Rohm and Xxxx Executive
Council.
5. Xx. Xxxxxx shall provide Rohm and Xxxx with a detailed invoice of
all services rendered on an annual basis. Rohm and Xxxx will pay that
invoice within thirty (30) days of receipt thereof.
AGREEMENT WITH MR. J. XXXXXXXX XXXXXX PAGE 2
6. Rohm and Xxxx shall also reimburse Xx. Xxxxxx for all reasonable and
necessary expenses incurred by Xx. Xxxxxx in connection with providing
services under this Agreement. To obtain reimbursement, Xx. Xxxxxx must
first submit to Rohm and Xxxx invoices, receipts or other appropriate
documentation of the expenses. Payment of such expenses shall be made by
Rohm and Xxxx within thirty (30) days of receipt of such documentation.
E. Restricted Stock
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7. In connection with this Agreement, and as part of the consideration
therefore, Xx. Xxxxxx agrees that, notwithstanding any contrary provision
of any Rohm and Xxxx benefit plan or policy, Xx. Xxxxxx'x retirement on
September 30, 1999 will not have the effect of eliminating any otherwise
applicable restriction on stock granted to him under any such plan or
policy. Rather, such restrictions shall continue to apply until they would
have lapsed had he remained employed by Rohm and Xxxx throughout the
original term of this Agreement, unless this Agreement is terminated by
Rohm and Xxxx prior to the end of the original term, in which case all such
restrictions shall lapse. If Xx. Xxxxxx breaches any term of this
Agreement, he shall forfeit any such restricted stock which has not
otherwise vested.
F. Intellectual Property
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8. Xx. Xxxxxx shall disclose promptly to Rohm and Xxxx all inventions,
discoveries and improvements, whether patentable or not, which relate to
the business or activities of Rohm and Xxxx and which are conceived or made
by Xx. Xxxxxx in connection with the services provided under this Agreement
or which result from access to business or technology information of Rohm
and Xxxx. Xx. Xxxxxx hereby assigns and shall assign Xx. Xxxxxx'x entire
interest in such inventions, discoveries and improvements to Rohm and Xxxx
or its nominee and shall execute all documents necessary to enable Rohm and
Xxxx or its nominee to secure patents in the United States or any foreign
country or otherwise to protect the interest of Rohm and Xxxx. These
obligations shall continue beyond the termination of this Agreement.
9. Any copyrightable work which Xx. Xxxxxx authors or co-authors during
the course of, or in any way resulting from, this Agreement shall be
considered a work made for hire and shall be the exclusive property of Rohm
and Xxxx. The copyright in such work shall be assigned to Rohm and Xxxx.
Xx. Xxxxxx shall not make any copies of such work or use such work other
than for the purposes of this Agreement without the prior written
permission of Rohm and Xxxx.
G. Confidentiality
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11. Xx. Xxxxxx recognizes that all Rohm and Xxxx business or trade
secrets, including secret processes of manufacture, and all other business
and technical information, including research records and procedures to
which Xx. Xxxxxx has access under this Agreement, are the property of Rohm
and Xxxx. During the term of this Agreement and thereafter, Xx. Xxxxxx
shall keep such information secret and confidential and not use such
information in any manner unless specifically authorized by this Agreement
or by Rohm and Xxxx in writing or until such information enters the public
domain by other means.
12. All written information, drawings, documents and materials
prepared by Xx. Xxxxxx under this Agreement shall be the exclusive property
of Rohm and Xxxx and shall be delivered by Xx. Xxxxxx to Rohm and Xxxx on
or before the termination of this Agreement. During the term of this
Agreement
AGREEMENT WITH MR. J. XXXXXXXX XXXXXX PAGE 3
and thereafter, Xx. Xxxxxx shall keep such information secret and
confidential and not use such information in any manner unless specifically
authorized by this Agreement or by Rohm and Xxxx in writing or until such
information enters the public domain by other means.
13. Xx. Xxxxxx shall, upon termination of this Agreement, return to
Rohm and Xxxx all papers, notes, books or other documents which contain or
refer to any business or technical information of Rohm and Xxxx, and all
copies of such documents, and all other property belonging to Rohm and Xxxx
or relating to its business.
H. Prior Agreements
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14. The Employment Agreement (Exhibit A) and Departing Employee Notice
and Acknowledgment of Continuing Obligations and Acknowledgment and Records
Security Statement (Exhibit B) executed by Xx. Xxxxxx prior to the
execution of this Agreement shall remain in full force and effect and shall
survive the execution of this Agreement.
I. Independent Contractor
----------------------
15. In providing service under this Agreement, Xx. Xxxxxx shall act
as, and be deemed, an Independent Contractor and not an employee or agent
of Rohm and Xxxx. Xx. Xxxxxx shall not make any representations to being
an employee or agent of Rohm and Xxxx and shall pay all federal, state and
local taxes which shall be become due on any money paid to Xx. Xxxxxx by
Rohm and Xxxx under the terms of this Agreement.
J. Personal Performance of Work and Nonassignability
------------------------------------------------
16. The services provided under this Agreement shall all be provided
personally by Xx. Xxxxxx. Xx. Xxxxxx may not assign any rights or
performance obligations under this Agreement to any other party. Any
attempt to make such an assignment will be void.
K. Conflict of Interest
--------------------
17. During the original term of this Agreement and for a period of two
years thereafter, Xx. Xxxxxx will not, directly or indirectly, for himself
or others, render competing services. Not withstanding the above, Xx.
Xxxxxx may accept employment with a competitor whose business is
diversified, provided that he will not be employed in a competing capacity,
and provided that prior to his accepting such employment, Rohm and Xxxx
shall receive separate written assurances satisfactory to Rohm and Xxxx
from such competitor and Xx. Xxxxxx, that Xx. Xxxxxx will not render
services which are directly or indirectly in competition with Rohm and
Xxxx.
L. Compliance with Applicable Law
------------------------------
18. In providing services under this Agreement, Xx. Xxxxxx shall
comply with all applicable federal, state and local laws, regulations,
obligations or governmental requests.
M. Notice
------
19. All notices given pursuant to this Agreement shall be directed to:
AGREEMENT WITH MR. J. XXXXXXXX XXXXXX PAGE 4
FOR XX. XXXXXX: FOR ROHM AND XXXX:
Mr. J. Xxxxxxxx Xxxxxx Chief Executive Officer
000 Xxxxxxxxx Xxxx Rohm and Xxxx Company
Xxxxxxxx, XX 00000 000 Xxxxxxxxxxxx Xxxx Xxxx
Xxxxxxxxxxxx, XX 00000
N. Miscellaneous Provisions
-------------------------
20. This Agreement contains the entire agreement of the parties
relating to the subject matter herein. It may be changed only by a written
agreement, signed by both parties.
21. The fact that any portion of this Agreement shall be found invalid
or unenforceable shall not effect the validity or enforceability of the
remainder of this Agreement.
22. This Agreement shall be governed by the laws of the Commonwealth
of Pennsylvania.
23. This Agreement may be executed in counterparts and will be valid
even though the signatures of all parties do not appear on the same page.
Dated: _________ _____________________________
J. XXXXXXXX XXXXXX
Dated: __________ _____________________________
XXXXXX XXXXXX
FOR ROHM AND XXXX
EXHIBIT B
DEPARTING EMPLOYEE NOTICE AND
ACKNOWLEDGMENT OF CONTINUING OBLIGATIONS
As you terminate your employment with Rohm and Xxxx, it is important
that you are reminded of obligations about confidential information learned
during your employment, and as expressed in your employment agreement with
Rohm and Xxxx, and in agreements with former employers to the extent they
relate to confidential information acquired by Rohm and Xxxx or its
subsidiaries. It is in your best interest, and that of Rohm and Xxxx, to
have this reminder.
HANDLING OF CONFIDENTIAL INFORMATION
------------------------------------
Naturally, we will keep all originals and copies of tangible Rohm and
Xxxx property which was assigned to you or prepared by you. This includes
drawings, memos, reports, forecasts, estimates, plans, letters,
organization charts, pictures, invention records, notebooks, etc. However,
some of the information you necessarily carry away in your memory is also
considered Rohm and Xxxx property.
The purpose of this acknowledgment is to confirm your recognition of
your obligation not to use or disclose without prior consent any
confidential information as that term is defined in your employment
agreement, and especially "trade secrets." This kind of information is of
great value to a company, including Rohm and Xxxx, and its competitors. A
good general rule is to keep all information about Rohm and Xxxx' business
confidential until you know it has become publicly known. A company's
right to have such confidential information protected from dissemination
and/or use without its permission is well-recognized and enforced by the
courts since, in addition to your express obligations under your employment
agreements, the law includes as a part of every employment relationship an
implied agreement not to use or disclose this information. Thus, when you
accepted employment with Rohm and Xxxx, just as you would with any other
company, you accepted a legal and moral obligation not to use or disclose
confidential or "trade secret" or other proprietary information. This
obligation continues even after you terminate your employment.
While it is impossible to mention all items of confidential
information, a partial list includes marketing and advertising plans,
specific areas of research and development, project work, product
formulation, processing methods, assignments of individual employees,
testing and evaluation procedures, cost figures, construction plans and
special techniques or methods of any kind peculiar to Rohm and Xxxx, which
offer the opportunity for a competitive advantage. More specifically, Rohm
and Xxxx considers to be confidential information any non-public
information which could be used for a competitive advantage that you have
acquired during any tenure at Rohm and Xxxx. This would include without
limitation any and all unpublished information and knowledge relating to
the development, testing, formulation, manufacture and marketing of Rohm
and Xxxx products, as well as any and all methods, procedures and
operations relating to the business of Rohm and Xxxx.
Particular care may be needed to avoid accidental disclosure of
confidential information you have in these areas. Probably the safest
course is simply not to discuss Rohm and Xxxx information with anyone.
On the other hand, you certainly have the right to use much of the
general knowledge acquired as a Rohm and Xxxx employee. You can use any
general knowledge and skills you have acquired, so long as you do not use
or disclose confidential information (including trade secrets). You may
use your general creative talents on projects which differ from those with
which you became familiar at Rohm and
Xxxx or your former employers, provided that you do not draw upon
confidential information in doing so. You may solve problems in new
projects by drawing upon your general knowledge and skills.
ASSIGNMENT OF EMPLOYEE INVENTIONS
---------------------------------
Under your employment agreement, Rohm and Xxxx is legally entitled to
all rights in inventions relating to its business which are made or
conceived by you during your employment. Such inventions include all types
of technical, artistic, or commercial creative work, whether or not they
are patentable. They include composition, process and apparatus
inventions, as well as computer programs, sales and promotion plans, copy,
art work, construction plans, etc. Rohm and Xxxx is entitled to receive a
prompt and full disclosure of such inventions and a worldwide assignment of
rights. Rohm and Xxxx is also entitled to your complete cooperation in
executing papers required for filing and prosecuting any patent
applications and for establishing Rohm and Xxxx ownership. If it is
necessary for you to do any of these things after termination, we will pay
out-of-pocket expenses and reasonable compensation for time spent in review
of papers or other aspects of such cooperation.
If at any time you have any questions dealing with your rights and
obligations in connection with any of the foregoing, please let us know.
Specifically, if you have a question about the confidentiality of any
information, please consult with us before using or disclosing that
information. To help avoid the possibility of any future misunderstanding,
please read and sign the following acknowledgment.
ROHM AND XXXX COMPANY
ACKNOWLEDGMENT AND RECORDS SECURITY STATEMENT
No later than my last day worked at Rohm and Xxxx, I will return all
documents containing confidential or trade secret information, including
research notebooks, which I have had in my possession to Rohm and Xxxx.
A list of the types of documents currently in my possession, including
location of such documents, is provided below. I will retain no copies of
such documents in my possession. I have reread my Employment Agreement and
the Departing Employee Notice and Acknowledgment of Continuing Obligations,
and understand that my obligations, to which I had agreed earlier, except
as clarified by any clause in this Agreement and Release, continue beyond
the separation of my employment.
During my employment with Rohm and Xxxx, I have worked in the following
areas:
________________________________________________________________________
________________________________________________________________________
Documents and Location (please use reverse side if additional room is needed):
_____________________________
J. XXXXXXXX XXXXXX
