<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 31, 1995
REGISTRATION STATEMENT NO. 33-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
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RAYCHEM CORPORATION
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 94-1369731
(State or other jurisdiction of (I.R.S. employer identification No.)
incorporation or organization)
</TABLE>
300 CONSTITUTION DRIVE, MENLO PARK, CALIFORNIA 94025
(Address of principal executive offices)
1995 EXECUTIVE DEFERRED COMPENSATION PLAN
(Full title of the plan)
ROBERT J. VIZAS
RAYCHEM CORPORATION
300 CONSTITUTION DRIVE
MENLO PARK, CALIFORNIA 94025
(Name and address of agent for service)
(415) 361-3333
(Telephone number, including area code, of agent for service)
Copy to:
SARAH A. O'DOWD
HELLER, EHRMAN, WHITE & MCAULIFFE
525 UNIVERSITY AVENUE
PALO ALTO, CALIFORNIA 94301-1908
(415) 324-7000
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CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
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PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED(1) REGISTERED(2) PER SHARE OFFERING PRICE(2) FEE
- ----------------------------------------------------------------------------------------------------
Deferred Compensation Obligations....... $181,317 100% $181,317 $62.52
- ----------------------------------------------------------------------------------------------------
</TABLE>
(1) The Deferred Compensation Obligations are unsecured obligations of Raychem
Corporation to pay deferred compensation in the future in accordance with
the terms of the Raychem Corporation 1995 Executive Deferred Compensation
Plan for a select group of eligible employees.
(2) Estimated solely for the purpose of determining the registration fee.
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<PAGE> 2
PART I
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
The document(s) containing the information specified in Part I of Form S-8
will be sent or given to participating employees and directors as specified by
Rule 428(b)(1) of the Securities Act of 1933, as amended. These documents and
the documents incorporated by reference into this Registration Statement
pursuant to Item 3 of Part II of this Registration Statement, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act of 1933, as amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed or to be filed with the Commission by the
registrant are incorporated by reference in this registration statement:
(a) The registrant's latest annual report (Form 10-K) filed pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or the latest prospectus filed pursuant to
Rule 424(b) under the Securities Act of 1933, as amended (the "Securities
Act"), that contains audited financial statements for the registrant's
latest fiscal year for which such statements have been filed;
(b) All other reports filed by the registrant pursuant to Section
13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered
by the annual report or prospectus referred to in (a) above;
All documents subsequently filed by the registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this registration statement and to be
part thereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Capitalized terms used without definition herein have the meanings assigned
in the registrant's 1995 Executive Deferred Compensation Plan (the "Plan"). The
Plan allows Participants to submit elections to defer compensation, including
elections as to the amount to be deferred and the timing and manner of
distribution, before the start of the fiscal year in which the compensation will
be earned (or in the case of the year in which the Plan is adopted, within 30
days after selection as a Participant).
The Deferral Amounts represent unsecured general obligations of the
registrant to pay deferred compensation (plus any net investment earnings
attributable thereto) in the future in accordance with the terms of the Plan and
the Trust Agreement between the registrant and Boston Safe Deposit and Trust
Company of California as trustee (the "Trustee") dated as of April 1, 1995
(the "Trust Agreement") thereunder. In the event of the Insolvency of the
registrant, the trust fund established under the Trust Agreement (the "Trust")
shall be subject to the claims of the general creditors of the registrant. In
such event, all Participants and Beneficiaries shall constitute unsecured
general creditors of the registrant with respect to amounts otherwise payable
thereunder and shall have no special or priority claim with respect to the
assets held in the Trust.
The amount of compensation deferred by each Participant (the "Deferral
Amount") is determined in accordance with the Plan based on the Participant's
elections. Subject to the provisions of the Plan relating to Insolvency and to
the terms of any Subsequent Deferral Elections or Optional Distribution
Elections made by a Participant, the Deferral Amounts (plus any net investment
earnings attributable thereto) will be payable as
2
<PAGE> 3
soon as practicable after a Determination Date that is, in general, the last
business day of a December selected by the Participant. Under the Plan, Deferral
Amounts may be invested in one or more investment funds available under the
Plan. Each Participant under the Plan will have a separate Deferred Compensation
Account (as such term is defined in the Plan), and each Participant's Deferred
Compensation Account will be valued separately. Any earnings and realized and
unrealized gains attributable to a Participant's Deferred Compensation Account
shall be credited to such Account on a segregated basis, and any amounts
distributed from, any realized losses incurred by, and any expenses and fees
properly chargeable to, a Participant's Deferred Compensation Account shall be
charged against such Account on a segregated basis.
Except as set forth in the Plan, or as otherwise provided by applicable
law, the interest of any person in the Plan, in the Trust, or in any
distribution to be made under the Plan may not be assigned, pledged, alienated,
anticipated, or otherwise encumbered (either at law or in equity) and shall not
be subject to attachment, bankruptcy, garnishment, levy, execution, or other
legal or equitable process. Each Participant in the Plan has the right to
designate a Beneficiary to receive the balance, if any, of the Participant's
Deferred Compensation Account at the time of the Participant's death and shall
have the right at any time to revoke such designation or to substitute another
such Beneficiary.
The registrant's Board of Directors has the right to amend or terminate the
Plan at any time and for any reason, provided, however, that no amendment or
termination of the Plan shall reduce any Participant's or Beneficiary's rights
or benefits accrued under the Plan before the date the amendment is adopted or
the Plan is terminated, as appropriate, including the Participant's or
Beneficiary's right to payment of the balance of his Deferred Compensation
Account as of such date.
The Deferral Amounts are not convertible into another security of the
registrant. Boston Safe Deposit and Trust Company has been appointed as Trustee
pursuant to the Trust Agreement to take action with respect to the Deferral
Amounts. Pursuant to the Trust Agreement, the Trustee shall be directed by the
Plan Administrator with respect to the investment of Trust assets in accordance
with the investment decisions of the Participants (and, if applicable,
Beneficiaries), and the Trustee will follow such directions.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 102 of the Delaware General Corporation Law allows a corporation to
eliminate the personal liability of directors of a corporation to the
corporation or to any of its stockholders for monetary damage for a breach of
his fiduciary duty as a director, except in the case where the director breached
his duty of loyalty, failed to act in good faith, engaged in intentional
misconduct or knowingly violated a law, authorized the payment of a dividend or
approved a stock repurchase in violation of Delaware corporate law or obtained
an improper personal benefit. The Registrant's Amended and Restated Certificate
of Incorporation contains a provision that eliminates directors' personal
liability as set forth above.
Section 145 of the Delaware General Corporation Law, as amended, provides
that a corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation or is or was serving at its request in such capacity in another
corporation or business association against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
3
<PAGE> 4
In addition, Article 8 of the registrant's Amended and Restated Certificate
of Incorporation provides as follows:
Limitation of Liability and Indemnification of Directors.
A. Elimination of Certain Liability of Directors. A director of the
Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for beach of fiduciary duty as a
director, except for liability (i) for any breach of the director's duty of
loyalty to the Corporation or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director
derived an improper personal benefit.
B. Indemnification and Insurance
(1) Right to Indemnification. Each person who was or is made a party
or is threatened to be made a party to or is involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding") by reason of the fact that he or she, or a
person of whom he or she is the legal representative, is or was a director
or officer of the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other enterprise
(including service with respect to employee benefit plans), whether the
basis of the proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity while serving
as a director, officer, employee or agent, shall be indemnified and held
harmless by the Corporation to the fullest extent authorized by the
Delaware General Corporation Law, as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent that
such amendment permits the Corporation to provide broader indemnification
rights than said law permitted the Corporation to provide prior to such
amendment), against all expense, liability and loss (including attorneys'
fees, judgments, fines, Employee Retirement Income Security Act of 1974
excise taxes or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such person in connection therewith and
such indemnification shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of his
or her heirs, executors and administrators; provided, however, that the
Corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such person
only if such proceeding (or part thereof) was authorized by the Board of
Directors of the Corporation. The right to indemnification conferred in
this Section shall be a contract right and shall include the right to be
paid by the Corporation the expenses incurred in defending any such
proceeding in advance of the final disposition; provided, however, that, if
the Delaware General Corporation Law requires, the payment of such expenses
incurred by a director or officer in his or her capacity as a director or
officer (and not in any other capacity in which service was or is rendered
by such person while a director or officer, including, without limitation,
service with respect to an employee benefit plan) in advance of the final
disposition of the proceeding, shall be made only upon delivery to the
Corporation of an undertaking, by or on behalf of such director or officer,
to repay all amounts so advanced if ultimately it shall be determined that
such director or officer is not entitled to be indemnified under this
Section or otherwise. The Corporation may, by action of its Board of
Directors, provide indemnification to employees and agents of the
Corporation with the same scope and effect as the foregoing indemnification
of directors and officers.
(2) Nonexclusivity of Rights. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its
final disposition conferred in this Section shall not be exclusive of any
other right which any person may have or hereafter acquire under any
statute, provisions of this Certificate of Incorporation, Bylaw, agreement,
vote of stockholders or disinterested directors or otherwise.
(3) Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of
the Corporation or another corporation, partnership, joint venture, trust
or other enterprise against any such expense, liability or loss, whether or
not the Corporation would
4
<PAGE> 5
have the power to indemnify such person against such expense, liability or
loss under the Delaware General Corporation Law.
The registrant has purchased directors and officers liability insurance
which would indemnify the directors and officers of the registrant against
damages arising out of certain kinds of claims which might be made against them
based on their negligent acts or omissions while acting in their capacity as
such.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
<TABLE>
<C> <S>
4 1995 Executive Deferred Compensation Plan
5 Opinion of Heller, Ehrman, White & McAuliffe
23.1 Consent of Heller, Ehrman, White & McAuliffe (filed as part of Exhibit 5)
23.2 Consent of Price Waterhouse LLP, Independent Accountants
24 Power of Attorney (see page 7)
</TABLE>
ITEM 9. UNDERTAKINGS
The undersigned hereby undertakes:
(1) To file, during any period in which offers and sales are being
made, a post-effective amendment to this registration statement;
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-8, and the information required to
be included in a post-effective amendment by those paragraphs is contained
in periodic reports filed by the registrant pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934, as amended (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
5
<PAGE> 6
Insofar as indemnification for liabilities under the Securities Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the provisions described in Item 6 above, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in a successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question of whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
6
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Menlo Park, State of California, on this
31st day of March, 1995.
RAYCHEM CORPORATION
By: /s/ ROBERT J. SALDICH
--------------------------------
Robert J. Saldich,
President and Chief Executive
Officer
POWER OF ATTORNEY TO SIGN AMENDMENTS
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below does hereby constitute and appoint Robert J. Saldich, Raymond J. Sims and
Robert J. Vizas, and each of them, with full power of substitution and full
power to act without the other such person's true and lawful attorney-in-fact
and agent for such person in such person's name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective amendments)
to this Registration Statement on Form S-8 and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the premises
in order to effectuate the same as fully, to all intents and purposes, as they
or such person might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or any of them, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-8 has been signed by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------- ------------------------------------ -------------------
<S> <C> <C>
/s/ ROBERT J. SALDICH President, Chief Executive Officer March 31, 1995
- ------------------------------------- and Director (Principal Executive
Robert J. Saldich Officer)
/s/ RAYMOND J. SIMS Senior Vice President and Chief March 31, 1995
- ------------------------------------- Financial Officer (Principal
Raymond J. Sims Financial Officer)
/s/ DEIDRA D. BARSOTTI Vice President and Controller March 31, 1995
- ------------------------------------- (Principal Accounting Officer)
Deidra D. Barsotti
Chairman of the Board March , 1995
- -------------------------------------
Paul M. Cook
/s/ RICHARD DULUDE Director March 31, 1995
- -------------------------------------
Richard Dulude
</TABLE>
7
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<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------- ------------------------------------ -------------------
<S> <C> <C>
Director March , 1995
- -------------------------------------
James F. Gibbons
/s/ JOHN P. McTAGUE Director March 31, 1995
- -------------------------------------
John P. McTague
/s/ DEAN O. MORTON Director March 31, 1995
- -------------------------------------
Dean O. Morton
/s/ ISAAC STEIN Director March 31, 1995
- -------------------------------------
Isaac Stein
/s/ CYRIL J. YANSOUNI Director March 31, 1995
- -------------------------------------
Cyril J. Yansouni
</TABLE>
8
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
ITEM NO. DESCRIPTION OF ITEM
- -------- -----------------------------------------------------------------------
<S> <C>
4 1995 Executive Deferred Compensation Plan..............................
5 Opinion of Heller, Ehrman, White & McAuliffe...........................
23.1 Consent of Heller, Ehrman, White & McAuliffe (filed as part of Exhibit
5).....................................................................
23.2 Consent of Price Waterhouse LLP, Independent Accountants...............
24 Power of Attorney (see page 7).........................................
</TABLE>
9
<PAGE> 1
EXHIBIT 4
RAYCHEM CORPORATION
1995 EXECUTIVE DEFERRED COMPENSATION PLAN
1. PURPOSE.
The purpose of this Raychem Corporation 1995 Executive Deferred
Compensation Plan (the "Plan") is to enable a select group of highly compensated
management employees of Raychem Corporation and its subsidiaries to defer
receipt of salary and/or bonuses payable under Company compensation programs. By
means of this Plan the Company seeks to attract, retain, and motivate key
management personnel for itself and its subsidiaries.
2. DEFINITIONS.
2.1 ADMINISTRATOR. "Administrator" shall mean the Board or a committee of
the Board as provided in Section 3 below.
2.2 BENEFICIARY. "Beneficiary" shall mean the person or persons designated
by a Participant (in accordance with Section 7.1) to receive the balance of the
Participant's Deferred Compensation Account in the event the Participant dies
before receiving the entire amount credited to such Account.
2.3 BOARD. "Board" shall mean the Board of Directors of the Company.
2.4 BONUS AMOUNT. "Bonus Amount" shall mean the amount of any bonus
payable to a Participant under a bonus plan sponsored by the Company or any
subsidiary of the Company attributable to services performed in a Participation
Year.
2.5 CHANGE IN CONTROL. "Change in Control" shall mean the occurrence of
any of the following:
(a) any "person," as such term is used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934 (the "Exchange Act") (other than the
Company, a subsidiary, an affiliate or a Company-sponsored employee benefit
plan, including any trustee of such plan acting as trustee), becoming the
"beneficial owner" (as that term is defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company
representing 20% or more of the combined voting power of the Company's
then-outstanding securities;
(b) the solicitation of proxies (within the meaning of Rule 14a-1(k)
under the Exchange Act and any successor rule) with respect to the electing
of any director of the Company, where such solicitation is for any
candidate who is not a candidate proposed by a majority of the Board in
office immediately before the time of such election; or
(c) the dissolution or liquidation (partial or total) of the Company
or a sale of assets involving 30% or more of the assets of the Company, any
merger or reorganization of the Company whether or not another entity is
the survivor, a transaction pursuant to which the holders, as a group, of
all of the shares of the Company outstanding immediately before the
transaction hold, as a group, less than 70% of the shares of the Company
outstanding after the transaction, or any other event that the Board
determines, in its discretion, would materially alter the structure or
ownership of the Company.
2.6 COMPANY. "Company" shall mean Raychem Corporation and any successor to
Raychem Corporation.
2.7 DEFERRAL AMOUNT. "Deferral Amount" shall mean all or that portion of a
Bonus Amount, and/or that portion (not in excess of 50%) of a Salary Amount,
that a Participant elects to defer under this Plan.
2.8 DEFERRED COMPENSATION ACCOUNT. "Deferred Compensation Account" shall
mean the account established for a Participant pursuant to Section 6.
<PAGE> 2
2.9 ELECTED DISTRIBUTION DATE. "Elected Distribution Date" shall mean the
date selected by a Participant to receive distribution of the first installment,
or all of the amount, distributable from his Deferred Compensation Account.
2.10 EMPLOYEE. "Employee" shall mean an employee of the Company or any
subsidiary of the Company.
2.11 ERISA. "ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended.
2.12 INITIAL DEFERRAL ELECTION. "Initial Deferral Election" shall mean an
election made pursuant to Section 5.1.
2.13 INSOLVENCY. "Insolvency" shall mean the condition of being unable to
pay debts as they mature or being subject to proceedings as a debtor under the
federal Bankruptcy Code.
2.14 OPTIONAL DISTRIBUTION ELECTION. "Optional Distribution Election"
shall mean an election made pursuant to Section 5.3.2 or 5.3.4.
2.15 PARTICIPANT. "Participant" shall mean (a) an Employee whose rate of
compensation is among the highest three percent of all Employees and who is
selected by the Company to participate in this Plan and (b) a director of the
Company unless participation in this plan would cause the director not to be
"disinterested" within the meaning of Rule 16b-3 under the Securities Exchange
Act of 1934.
2.16 PARTICIPATION YEAR. "Participation Year" shall mean the fiscal year
ending June 30.
2.17 SALARY AMOUNT. "Salary Amount" shall mean the amount payable to a
Participant by the Company or any subsidiary of the Company as base salary
attributable to services performed in a Participation Year. In the case of a
director, "Salary Amount" shall mean the director's compensation as a director
of or consultant to the Company during a Participation Year.
2.18 SUBSEQUENT DEFERRAL ELECTION. "Subsequent Deferral Election" shall
mean an election made pursuant to Section 5.3.1.
2.19 TOTALLY DISABLED. "Totally Disabled" shall mean a physical or mental
incapacity (a) that prevents a Participant from performing his normal job with
the Company or a subsidiary of the Company and (b) that a physician satisfactory
to the Administrator certifies is likely to be permanent.
2.20 TRUST. "Trust" shall mean the trust established by the Trust
Agreement.
2.21 TRUST AGREEMENT. "Trust Agreement" shall mean the trust agreement
between the Company and the Trustee with respect to the assets held in trust
under this Plan.
2.22 TRUSTEE. "Trustee" shall mean the trustee(s) of the Trust appointed
pursuant to Section 10.1, and any successor trustee(s) appointed pursuant to the
Trust Agreement.
3. ADMINISTRATION.
3.1 ADMINISTRATOR. This Plan shall be administered by the Board or, upon
delegation by the Board, by a committee consisting of not less than two
directors (in either case, the "Administrator"). In connection with the
administration of this Plan, the Administrator shall have the powers possessed
by the Board. The Administrator may act only by a majority of its members. The
Administrator may delegate administrative duties to such Employees as it deems
proper. The Board at any time may terminate the authority delegated to any
committee of the Board pursuant to this Section 3.1 and revest in the Board the
administration of this Plan.
3.2 ADMINISTRATOR DETERMINATIONS BINDING. The Administrator may adopt,
alter, and repeal administrative rules, guidelines, and practices governing this
Plan as it from time to time shall deem advisable, may interpret the terms and
provisions of this Plan, may correct any defect, omission, or inconsistency in
this Plan, and may otherwise supervise the administration of this Plan. All
decisions made by the Administrator shall be
2
<PAGE> 3
binding on all persons, including the Company and all Participants and
Beneficiaries. No member of the Administrator shall be liable for any action
that he has in good faith taken or failed to take with respect to this Plan.
3.3 INDEMNITY. The Company shall indemnify and hold harmless each member
of the Administrator, and each officer and Employee, to the fullest extent
permissible by law, against any and all liabilities arising by reason of any
action taken or action taken or omitted in connection with this Plan, including
expenses reasonably incurred in the defense of any claim of such liability.
4. SELECTION OF EMPLOYEE PARTICIPANTS.
The Company shall select Employee Participants for each Participation Year
before the first day of each such year; provided that, for the Participation
Year in which this Plan is adopted, the Company shall select Employee
Participants for such fiscal year within 30 days after adoption of this Plan.
Once selected, an Employee Participant shall automatically be a Participant for
succeeding Participation Years until otherwise notified by the Company.
5. ELECTIONS; PAYMENT OF PLAN BENEFITS.
5.1 INITIAL DEFERRAL ELECTIONS. A Participant may specify his Deferral
Amount for a Participation Year at any time before the first business day of
that Participation Year by filing an Initial Deferral Election with the
Administrator; provided, however, that with respect to the Participation Year
during which this Plan is adopted by the Board, a Participant may file an
Initial Deferral Election for the remainder of that Participation Year within 30
days after being notified of selection as a Participant.
5.2 GENERAL RULE FOR PLAN DISTRIBUTIONS. Subject to Section 13.2 (dealing
with the Insolvency of the Company) and to the terms of Subsequent Deferral
Elections and Optional Distribution Elections filed under Section 5.3, 100% of a
Participant's Deferral Amount for a given Participation Year (plus any net
investment earnings attributable to the Deferral Amount) shall be determined as
of the last business day of the December after the end of such Participation
Year or, if later and if elected by the Participant, the last business day of
December 2000 (in either case, the "Determination Date"), and shall be
distributed to the Participant as soon as practicable after the Determination
Date.
5.3 ELECTIONS REGARDING SUBSEQUENT DEFERRALS AND DISTRIBUTIONS FROM
DEFERRED COMPENSATION ACCOUNTS. Notwithstanding Section 5.2, distributions from
Deferred Compensation Accounts shall be made in accordance with instructions
provided in any Subsequent Deferral Elections and/or Optional Distribution
Elections filed pursuant to this Section 5.3.
5.3.1 SUBSEQUENT DEFERRAL ELECTIONS. On or before the first business day
of the June before the date that a distribution from a Deferred Compensation
Account otherwise is to be made pursuant to Section 5.2 or pursuant to the most
recent Subsequent Deferral Election filed pursuant to this Section 5.3.1, a
Participant may, by filing a Subsequent Deferral Election with the
Administrator, defer payment of all or any portion of the amount otherwise
distributable from his Deferred Compensation Account for an additional one-year
period (or such longer period as is approved by the Administrator); provided
that any such Subsequent Deferral Election shall be effective only with the
consent of the Administrator. As it is in the Company's interest to defer
payments of compensation, the Administrator shall be deemed to consent to a
Subsequent Deferral Election unless the Administrator notifies the Participant
in writing, within ten business days after receipt of the Subsequent Deferral
Election, that consent is not given.
5.3.2 OPTIONAL DISTRIBUTION ELECTION -- IN-KIND DISTRIBUTIONS. On or
before the first business day of the June before the date that a distribution
from his or her Deferred Compensation Account is to be made, a Participant may
file an Optional Distribution Election with the Administrator electing to
receive an in-kind distribution of all of the assets, or of specified assets
credited to his Deferred Compensation Account, in lieu of cash.
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5.4 MANNER AND PLACE OF FILING ELECTIONS. All Initial and Subsequent
Deferral Elections and Optional Distribution Elections shall be in writing on a
form prescribed by the Administrator and shall be filed with the Administrator
at the principal executive offices of the Company.
5.5 TERMINATION OF EMPLOYMENT. If a Participant ceases to be an Employee
or a director of the Company for any reason other than retirement, the amount of
the Participant's Deferred Compensation Account shall be determined as of the
last business day of the December following the end of the Participation Year in
which termination of employment and shall be distributed to the Participant as
soon as practicable thereafter; provided, however, (a) unless the Participant so
elects, no payment from the Participant's Deferred Compensation Account that
would, but for the termination of employment, have occurred before the time
described above, shall be delayed pursuant to this Section 5.5, and (b) if the
Participant so elects within ten days following the date of termination (an
"Optional Distribution Election"), the Participant shall receive all, or a
specified percentage or dollar amount, of his or her Deferred Compensation
Account in annual installments (commencing on the date that the distribution
otherwise would be made) over a period of five, ten, or 15 years, as the
Participant elects. (If a percentage is elected in an Optional Distribution
election, the Administrator in its sole judgment shall calculate the appropriate
amount to be distributed on each installment date.) Unless a different amount
(or method of calculation) is specified in the Optional Distribution Election,
the amount on any distribution date shall be the amount then in the
Participant's Deferred Compensation Account divided by the number of
installments yet to be paid (including the then-current installment). For
purposes of this Plan, a Participant who becomes Totally Disabled shall be
deemed to have ceased to be an Employee on the date he is determined to be so
disabled, without regard to whether he continues to be treated as an Employee
for any other purpose.
5.5.1 RETIREMENT. If a Participant ceases to be an Employee or a
director of the Company due to retirement, the retirement shall generally be
treated as a termination of employment subject to Section 5.5 hereof; provided,
however, that the Participant may, within 30 days following the date of
termination of employment, in addition to the elections permitted by Section
5.5, make a Subsequent Deferral Election pursuant to Section 5.3.1 with respect
to any distributions from the Participant's Deferred Compensation Account that
would otherwise occur more than 15 days after the date of the Subsequent
Deferral Election.
5.6 HARDSHIP. Upon the request of a Participant and based upon a showing
of severe financial hardship caused by accident, illness, or any other similar
event beyond the Participant's control, the Administrator may, in its sole
discretion, accelerate (to such time as the Administrator may elect) the time of
payment of that portion (up to all) of the amount credited to the Participant's
Deferred Compensation Account in order to alleviate such hardship.
6. DEFERRED COMPENSATION ACCOUNTS.
6.1 SEPARATE ACCOUNTS. The Administrator shall establish and maintain a
separate Deferred Compensation Account for each Participant. Each Participant's
Deferred Compensation Account shall be credited with the amount of the
Participant's Deferral Amounts and with earnings and realized and unrealized
gains with respect to such amounts, and shall be charged with any amount
distributed to or with respect to, the Participant in accordance with this Plan,
with realized and unrealized losses incurred by the Deferred Compensation
Account and with any expenses, fees, and withholding taxes properly chargeable
to the Deferred Compensation Account or imposed in respect of compensation
deferred under this Plan. In addition, a Participant's Deferred Compensation
Account shall be credited with the amount of any balance that the Participant
elects to transfer to such Account from a Reserve Account established for such
Employee under the Raychem Corporation Amended and Restated Bonus Deferral Plan.
6.2 INVESTMENT OF ACCOUNTS. By written investment directions to the
Administrator, each Participant shall direct the investment of his Deferred
Compensation Account among the investment funds available under this Plan. In
the absence of timely instructions, a Participant's Deferred Compensation
Account shall be invested in a money market fund (or, if there is no money
market fund among the investment funds available under this Plan, in the
investment fund that most closely resembles a money market fund). In accordance
with rules established by the Administrator, each Participant shall be allowed
to modify his investment directions
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(or the initial investment made in the absence of directions from the
Participant) with respect to all or any portion of his Deferred Compensation
Account, effective as of the first day of the next calendar quarter following
the date of the modification. A Participant's change of investment directions
shall apply to the existing balance in his Deferred Compensation Account and to
the amount of future Deferral Amounts, as the Participant may elect.
6.3 DESIGNATION OF AVAILABLE INVESTMENT OPTIONS. The Chief Financial
Officer of the Company shall select the investment funds that will initially be
available for the investment of Deferred Compensation Accounts hereunder. The
Chief Financial Officer shall have the power and authority, in his sole and
absolute discretion, to add any new investment fund deemed to be desirable and
to eliminate any investment fund previously available hereunder in which no
portion of any Participant's Deferred Compensation Account is invested.
6.4 VALUATION OF ACCOUNTS. Within ten business days after the end of each
calendar quarter, and within 20 business days after the removal or resignation
of the Trustee, the Trustee shall value each Deferred Compensation Account then
maintained hereunder, based on fair market values as of the close of the
relevant quarter or the close of the shorter period ending with such removal or
resignation, as applicable. Each Participant's Deferred Compensation Account
shall be valued separately. Any earnings and realized and unrealized gains
attributable to a Participant's Deferred Compensation Account shall be credited
to such Account on a segregated basis, and any amounts distributed from, any
realized and unrealized losses incurred by, and any expenses and fees properly
chargeable to, a Participant's Deferred Compensation Account shall be charged
against such Account on a segregated basis.
6.5 STATEMENTS TO PARTICIPANTS. Within ten business days after each
valuation described in Section 6.4, the Trustee (or the Company) shall provide
each Participant (or, if applicable, Beneficiary) with a statement that
discloses the results of such valuation with respect to the Participant's
Deferred Compensation Account.
6.6 VESTING. Subject to the provisions of Section 13.2 (dealing with the
Insolvency of the Company), a Participant shall at all times have a fully vested
(i.e., nonforfeitable) interest in his Deferred Compensation Account.
7. DEATH BENEFITS.
7.1 DESIGNATION OF BENEFICIARY. Each Participant shall have the right to
designate a Beneficiary to receive the balance, if any, of the Participant's
Deferred Compensation Account at the time of the Participant's death and shall
have the right at any time to revoke such designation or to substitute another
such Beneficiary (without the consent of any Beneficiary who had been designated
before the time of such revocation or substitution). No Beneficiary designation
made pursuant to this Section 7.1 shall be effective unless it is in writing and
received by the Administrator before the death of the Participant. If there is
no valid designation of Beneficiary on file with the Administrator at the time
of a Participant's death, or if a validly designated Beneficiary is not living
at the time a payment is to be made to such Beneficiary under this Plan, the
balance of the deceased Participant's Deferred Compensation Account shall be
payable to the Participant's spouse if then living, or if not, to the
Participant's estate.
7.2 GENERAL RULE FOR PLAN DISTRIBUTIONS; ELECTIONS INCIDENT TO
DEATH. Subject to the provisions of Section 13.2 (dealing with the Insolvency
of the Company), if a Participant dies before he has received the entire amount
credited to his Deferred Compensation Account, all of the Participant's Deferred
Compensation Account shall be distributed to his Beneficiary in a single
lump-sum distribution of cash as soon as practicable after the Participant dies.
7.3 INVESTMENT RIGHTS DURING DISTRIBUTION PERIOD. For so long as a
deceased Participant's Deferred Compensation Account has not been fully
distributed to his Beneficiary, the Account shall remain in the Trust, and the
Beneficiary shall have the rights provided to Participants in Section 6.2 (with
respect to directing the investment of such Account).
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8. VALUATION OF ACCOUNTS FOR DISTRIBUTION.
When a Participant or Beneficiary is to receive a distribution from a
Deferred Compensation Account, the Account shall be valued (or, in the case of
an in-kind distribution, the number of shares or other units in the Account
shall be determined) as of the quarterly valuation date coinciding with or
immediately preceding the date the distribution is to be made.
9. CHANGE IN CONTROL.
Within 30 days following a Change in Control, a Participant or a
Beneficiary may elect to accelerate, to a date no earlier than 60 days following
the date of the election, the time of payment of all or a portion of the amount
credited to the Participant's Deferred Compensation Account on the date of such
Change in Control. This election shall be available whether or not the
Participant ceases to be an Employee in connection with such Change in Control.
The provisions of this Section 9 shall be deemed applicable upon the occurrence
of any Change in Control, notwithstanding that this Plan may be amended or
terminated thereafter.
10. TRUSTEES AND TRUST AGREEMENT; DEFERRAL AMOUNT PAID TO TRUST; PAYMENT OF
EXPENSES.
10.1 TRUSTEES AND TRUST AGREEMENT. The Company shall appoint one or more
trustees to hold the amount of each Participant's Deferral Amounts in trust and
shall enter into a trust agreement with each such trustee(s) with respect to the
management and disposition of such funds. All contributions to the Trust shall
be held and invested by the Trustee in accordance with the terms of this Plan
and the Trust Agreement.
10.2 CONTRIBUTION OF DEFERRAL AMOUNTS TO TRUST. The amount of each
Participant's Deferral Amounts shall be contributed to the Trust established
hereunder as soon as reasonably practicable, and no more than 30 days, after the
amount otherwise would have been paid to the Participant. Such contributions
shall be made by the Participant's employer.
10.3 PAYMENT OF EXPENSES. All expenses of operating and administering this
Plan, including the fees of, and general expenses incurred by, the Trustee,
shall be paid by the Company. Notwithstanding the preceding sentence, however,
expenses incurred in connection with the investment of any Participant's
Deferred Compensation Account, including brokerage fees or commissions, and any
fees payable to an investment manager in connection with its management of the
investment of all or any portion of a Participant's Deferred Compensation
Account, shall be charged to or paid from such Participant's Deferred
Compensation Account, as appropriate.
11. AMENDMENT, TERMINATION, OR SUSPENSION.
The Board shall have the right to amend or terminate this Plan at any time
and for any reason. Notwithstanding the preceding sentence, however, subject to
the provisions of Section 13.2 (dealing with the Insolvency of the Company), no
amendment or termination of this Plan shall reduce any Participant's or
Beneficiary's rights or benefits accrued under this Plan before the date the
amendment is adopted or this Plan is terminated, as appropriate, including the
Participant's or Beneficiary's right to payment of the balance of his Deferred
Compensation Account as of such date. Upon the termination of this Plan, the
Trust shall continue until all Deferred Compensation Accounts have been
distributed to the appropriate Participants and Beneficiaries in accordance with
the provisions of this Plan in effect at the time of such termination.
12. CLAIMS AND REVIEW PROCEDURE.
12.1 CLAIMS FOR BENEFITS. The Administrator shall determine each
Participant's and Beneficiary's right to benefits under this Plan. If a
Participant or Beneficiary disagrees with the Administrator's determination, he
may file a written request for review of the determination, and such request
will be treated as a claim for benefits hereunder. Any such claim shall be filed
with the Administrator at the principal executive offices of the Company.
12.2 DENIAL OF CLAIMS. In the event that any claim for benefits is denied,
in whole or in part, the Administrator shall notify the claimant in writing of
such denial and of the claimant's right to a review thereof.
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Such written notice shall set forth, in a manner calculated to be understood by
the claimant, specific reasons for the denial, specific references to this Plan
provisions on which the denial is based, a description of any information or
material necessary to perfect the claim and an explanation of why such material
is necessary, and an explanation of this Plan's procedure for review of denied
claims. Such written notice shall be given to the claimant within 90 days after
the Administrator receives the claim, unless special circumstances require an
extension of time, up to an additional 90 days, for processing the claim. If
such an extension is required, a written notice indicating the reason an
extension is required and the date by which the Compensation Committee expects
to render its decision shall be furnished to the claimant before the end of the
initial 90-day period. If written notice of the denial of a claim for benefits,
or of the fact that an extension of time is necessary for processing a claim, is
not furnished within the time specified in this Section 12.2, the claim shall be
deemed to be denied, and the claimant shall be permitted to appeal such denial
in accordance with the procedure for review of denied claims set forth in
Section 12.3.
12.3 REVIEW OF DENIED CLAIMS. Any person whose claim for benefits is
denied (or deemed denied), in whole or in part, or such person's duly authorized
representative, may appeal from such denial by submitting a request for a review
of the claim to the Administrator within 60 days after receiving written notice
of the denial (or, in the case of a deemed denial, within 60 days after the
claim is deemed denied). The Administrator shall give the claimant or such
representative an opportunity to review pertinent documents that are not
privileged in preparing a request for review. A request for review shall be in
writing and shall be addressed to the Administrator at the principal executive
offices of the Company. A request for review shall set forth all of the grounds
on which it is based, all facts in support of the request and any other matters
the claimant deems pertinent. The Administrator may require the claimant to
submit such additional facts, documents, or other material as it may deem
necessary or appropriate in making its review.
12.4 DECISION ON REVIEW. The Administrator shall act on each request for
review within 60 days after receipt thereof, unless special circumstances
require an extension of time, up to an additional 60 days, for processing the
request. If such an extension is required, written notice of the extension shall
be furnished to the claimant within the initial 60-day period. The Administrator
shall give prompt, written notice of its decision to the claimant. In the event
that the Administrator affirms the denial of the claim for benefits, in whole or
in part, such notice shall set forth, in a manner calculated to be understood by
the claimant, specific reasons for the denial and specific references to the
Plan provisions upon which the decision is based. If written notice of the
Administrator's decision on a request for review, or of the fact that an
extension of time is necessary for processing a request, is not given to the
claimant within the time prescribed in this Section 12.4, the claim shall be
deemed to have been denied on review.
13. GENERAL PROVISIONS.
13.1 NO EMPLOYMENT RIGHTS. Nothing contained in this Plan shall in any way
be construed as conferring upon a Participant the right to continue as an
Employee.
13.2 EFFECT OF INSOLVENCY/PARTICIPANTS ARE GENERAL
CREDITORS. Notwithstanding any other provision of this Plan, in the event of
the Insolvency of the Company, but not in any other circumstance, the Trust fund
shall be subject to the claims of the general creditors of the Company. In such
event, all Participants and Beneficiaries under this Plan shall constitute
unsecured general creditors of the Company with respect to amounts otherwise
payable hereunder and shall have no special or priority claim with respect to
the assets held in the Trust.
13.3 NO ASSIGNMENT OF RIGHTS. Except as set forth in Section 13.2 (dealing
with the Insolvency of the Company) and as otherwise provided by applicable law,
the interest of any person in this Plan, in the Trust, or in any distribution to
be made under this Plan may not be assigned, pledged, alienated, anticipated, or
otherwise encumbered (either at law or in equity) and shall not be subject to
attachment, bankruptcy, garnishment, levy, execution, or other legal or
equitable process. Any act in violation of this Section 13.3 shall be void.
13.4 INCAPACITY. If the Administrator determines that any person is unable
to handle properly any amounts payable under this Plan, the Administrator may
make any arrangement for payment on such person's
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behalf that it determines will be beneficial to such person, including (without
limitation) the payment of such amounts to the guardian, conservator, spouse, or
dependent(s) of such person.
13.5 MASCULINE/FEMININE; SINGULAR/PLURAL. Wherever used herein, the
masculine gender shall include the feminine, and the singular number or tense
shall include the plural.
13.6 CHOICE OF LAW. This Plan and all rights hereunder shall be
interpreted and construed in accordance with ERISA, and, to the extent state law
is not preempted by ERISA, the laws of the State of California.
14. ADOPTION.
This Raychem Corporation 1995 Executive Deferred Compensation Plan was
adopted by the Board on February 17, 1995.
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EXHIBIT 5
(LETTERHEAD)
March 31, 1995
11850-0200
RAYCHEM CORPORATION
300 Constitution Drive
Menlo Park, California 94025-1164
REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have acted as counsel to Raychem Corporation, a Delaware corporation
(the "Company"), in connection with the Registration Statement on Form S-8 (the
"Registration Statement") which the Company proposes to file with the Securities
and Exchange Commission on March 31, 1995 for the purpose of registering under
the Securities Act of 1933, as amended, $181,317.00 of Deferred Compensation
Obligations which represent unsecured obligations of the Company to pay deferred
compensation in the future in accordance with the terms of the Raychem
Corporation 1995 Executive Deferred Compensation Plan (the "Plan").
We have assumed the authenticity of all records, documents and instruments
submitted to us as originals, the genuineness of all signatures, the legal
capacity of natural persons and the conformity to the originals of all records,
documents and instruments submitted to us as copies.
In rendering our opinion, we have examined the following records, documents
and instruments:
(a) The Amended and Restated Certificate of Incorporation of the Company
certified by the Secretary of State of the State of Delaware as of March
29, 1995 and certified to us by an officer of the Company as being
complete and in full force and effect as of the date of this opinion;
(b) The Bylaws of the Company certified to us by an officer of the Company
as being complete and in full force and effect as of the date of this
opinion;
(c) A Certificate of the Senior Vice President and Chief Financial Officer
of the Company (i) attaching records certified to us as constituting all
records of proceedings and actions of the Board of Directors of the
Company relating to the Plan and the Registration Statement, and (ii)
certifying as to certain factual matters;
(d) The Registration Statement; and
(e) The Plan.
This opinion is limited to the laws of the State of California and the
Delaware General Corporation Law, and we disclaim any opinion as to the laws of
any other jurisdiction. We further disclaim any opinion as to any other statute,
rule, regulation, ordinance, order or other promulgation of any other
jurisdiction or any regional or local governmental body or as to any related
judicial or administrative opinion.
Based upon the foregoing and our examination of such questions of law as we
have deemed necessary or appropriate for the purpose of this opinion, it is our
opinion that, when issued by the Company in the manner provided in the Plan, the
Deferred Compensation Obligations will be valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms,
subject, as to enforcement, (i) to bankruptcy, insolvency, reorganization,
arrangement, moratorium and other laws of general applicability
<PAGE> 2
RAYCHEM CORPORATION
March 31, 1995 Page 2
relating to or affecting creditor's rights, and (ii) to general principles of
equity, whether such enforcement is considered in a proceeding in equity or at
law.
This opinion is rendered to you in connection with the issuance of the
Deferred Compensation Obligations and is solely for your benefit. This opinion
may not be relied upon by you for any other purpose, or relied upon by any other
person, firm, corporation or other entity for any purpose, without our prior
written consent. We disclaim any obligation to advise you of any change of law
that occurs, or any facts of which we become aware, after the date of this
opinion.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
HELLER, EHRMAN, WHITE & MCAULIFFE
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated July 20, 1994, which appears on page
34 of the 1994 Annual Report to Stockholders of Raychem Corporation, which is
incorporated by reference in Raychem Corporation's Annual Report on Form 10-K
for the year ended June 30, 1994. We also consent to the incorporation by
reference of our report on the Financial Statement Schedules, which appears on
page 13 of such Annual Report on Form 10-K.
Price Waterhouse LLP
San Jose, California
March 31, 1995
