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Exhibit 10.15
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of January 8, 1996, is entered into
by and between Tandem Computers Incorporated ("Employer") and ▇▇▇▇ ▇▇▇▇▇▇
("Executive"), and supersedes and replaces any prior employment agreement
previously entered into between Employer or any subsidiary thereof and
Executive.
In consideration of the respective undertakings of Employer
and Executive set forth below, Employer and Executive agree as follows:
1. Employment. Employer hereby employs Executive, and
Executive accepts such employment and agrees to perform services
for Employer, for the period and upon the other terms and
conditions set forth in this Agreement.
2. Term of Employment.
2.01 Period of Employment. The initial term of Executive's
employment pursuant to this Agreement will commence on January 8, 1996 (the
"Commencement Date") and, unless terminated at an earlier date in accordance
with Section 5.01 of this Agreement, shall continue in effect until September
30, 1998 or as extended to a later date under Section 5.03(a) or 5.03(e) of this
Agreement. The term of Executive's employment under the terms of this Agreement
commencing on the Commencement Date and ending pursuant to the terms hereof is
hereinafter referred to as the "Period of Employment." The initial Period of
Employment under this Agreement shall be subject to extension in twelve month
increments as follows. Prior to September 1 of each year during the Executive's
Period of Employment, Employer may elect (which election shall be made in
writing), in its sole discretion, to terminate Executive's employment on the
third succeeding September 30. If no such election is made, the term of
Executive's employment pursuant to the terms of this Agreement shall be
automatically extended for an additional twelve month period, under the terms
and conditions in effect at the time of such extension, or with such
modifications as Employer and Executive may then agree.
2.02 Expiration of Period of Employment. Executive may
continue employment with Employer after the expiration of the Period of
Employment, in which case Executive's employment relationship with Employer will
be governed by such other terms as Executive and Employer may agree or as may
apply under applicable law, and Executive's only rights continuing under this
Agreement shall be those rights that have vested during the Period of Employment
or otherwise continue after the Period of Employment under Section 5.03 or other
express terms of this Agreement.
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3. Position and Duties.
(a) During the Period of Employment, Executive agrees to perform
such duties and executive functions as Employer shall assign
to him from time to time and shall have the title of President
and Chief Executive Officer. Executive shall devote his best
efforts and (except as provided in Section 5.03(e) hereof)
full-time attention to the performance of his duties.
(b) Except upon the prior written consent of Employer,
Executive, during the Period of Employment, shall not
(i) accept any other employment; or (ii) engage,
directly or indirectly, in any other business,
commercial or professional activity (whether or not
pursued for pecuniary advantage) that is or may be
competitive with Employer, that might create a conflict
of interest with Employer, or that otherwise might
interfere with the business of Employer, or any
affiliate of Employer.
4. Compensation.
4.01 Base Salary. Employer will pay to Executive during the
Period of Employment an annual base salary to be paid in substantially equal
installments in accordance with Employer's standard payroll procedures and
policies. The initial annual base salary will be at the rate currently being
paid to Executive, and the annual base salary may be increased from time to time
in the sole discretion of Employer (and may not be decreased except pursuant to
a reduction comparable to reductions generally applicable to similarly situated
employees of Employer imposed as part of a company wide cost-savings
initiative).
4.02 Annual Bonus. During the Period of Employment, Executive
will be entitled to participate in Employer's Targeted Income Plan, or any other
bonus plan or program made generally available to Employer's senior executives
(the "Plan"). The award of an annual bonus shall be subject to the terms and
provisions of the Plan, which may be modified from time to time, and the
Executive's annual incentive target bonus may be increased in the sole
discretion of Employer (and may not be decreased except pursuant to a reduction
comparable to reductions generally applicable to similarly situated employees of
Employer imposed as part of a company wide cost-savings initiative).
4.03 Stock Options. During the Period of Employment,
Executive will be eligible to receive grants of Employer's stock
options or other stock incentive awards under programs which are
made generally available to Employer's senior executives from
time to time. Such grants are highly discretionary and will be
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subject to the terms of the applicable plans and agreements adopted by Employer
from time to time.
4.04 Participation in Other Benefit Plans. During the Period
of Employment, Executive will be entitled to participate in Employer's
retirement plans, medical and dental plans, disability plans, life insurance
plans, and other Employer benefits not described elsewhere in this Section 4
which are made generally available to Employer's senior executives from time to
time to the extent that Executive's age, position and other factors qualify him
for such benefits.
4.05 Fringe Benefits and Perquisites; Vacation and Sick Leave.
During the Period of Employment, Employer will provide Executive with such
fringe benefits, perquisites, vacation and sick leave as Employer from time to
time makes generally available to its senior executives.
5. Termination and Change in Control.
5.01 Grounds for Termination. The Period of Employment
will terminate prior to the expiration of the term set forth in
Section 2 of this Agreement in the event that:
(a) Executive dies.
(b) Executive becomes permanently disabled and qualifies for
payments under Employer's disability plans for a period
covering 90 consecutive days.
(c) Employer terminates the Period of Employment for Cause.
"Cause" means termination upon (i) willful and
substantial failure by Executive to perform his duties
with Employer (other than due to disability);
(ii) willful engaging by Executive in conduct which is
demonstrably and materially injurious to Employer or
that demonstrates gross unfitness for service;
(iii) Executive's conviction of a felony which impairs
his ability substantially to perform his duties with
Employer or other felony involving dishonesty or breach
of trust; or (iv) any material breach by Executive of
the terms of this Agreement. Executive will not be
subject to termination for "Cause" without
(A) reasonable written notice to Executive setting
forth the reasons for Employer's intention to terminate
Executive and (B) an opportunity for Executive to cure
any of the actions or omissions forming the basis for
such intended termination, if possible, within 15 days
after receipt of such written notice.
(d) Executive terminates the Period of Employment for Good
Reason. "Good Reason" means termination by Executive
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due to (i) a material reduction in Executive's position
(status, offices, titles, or reporting requirements),
authorities, duties or responsibilities; (ii) a reduction in
Executive's annual base salary or target annual bonus, other
than a reduction comparable to reductions generally applicable
to similarly situated employees of Employer imposed as part of
a company wide cost-savings initiative; (iii) a requirement
for Executive to move his principal office in excess of 30
miles from the present location of Executive's principal
office; or (iv) any material breach by Employer of the terms
of this Agreement. Executive may not terminate his employment
for "Good Reason" without (A) reasonable written notice to
Employer setting forth the reasons for Executive's intention
to terminate employment and (B) an opportunity for Employer to
cure any of the actions or omissions forming the basis for
such intended termination, if possible, within 15 days after
receipt of such written notice.
(e) Employer terminates the Period of Employment without
Cause, other than pursuant to Section 5.01(a) or (b)
above.
(f) Executive voluntarily terminates the Period of
Employment without Good Reason, other than pursuant to
Section 5.01(a) or (b) above.
5.02 Effect of Termination.
(a) In the event of termination of the Period of Employment
pursuant to the provisions of Section 5.01(a) above,
Executive's estate will be entitled to be paid the
annual base salary otherwise payable to Executive
pursuant to Section 4.01 of this Agreement only through
the date of termination, and Employer will continue to
provide Executive with the benefits described in
Sections 4.04 and 4.05 above through the date of
termination. In addition, Executive's beneficiaries
will be entitled to any benefits provided under
Employer's life insurance plans.
(b) In the event of termination of the Period of Employment
pursuant to the provisions of Section 5.01(b) above,
Executive will be entitled to be paid the annual base
salary otherwise payable to Executive pursuant to
Section 4.01 of this Agreement only through the date of
termination, and Employer will continue to provide
Executive with the benefits described in Sections 4.04
and 4.05 above through the date of termination.
Executive will also be entitled to benefits in
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accordance with the terms and conditions of Employer's
disability plans.
(c) In the event of termination of the Period of Employment
pursuant to the provisions of Section 5.01(c) or (f)
above, Employer will have no further obligations
hereunder, except that (i) Employer will pay Executive
his annual base salary and continue to provide
Executive with the benefits described in Sections 4.04
and 4.05 above through the date of termination and
shall remain obligated under Sections 5.03(h) and the
first and third sentences of Section 7.06(a), and
(ii) in the event of a termination pursuant to Section
5.01(f) because Executive does not accept Employer's
offer under clause (A) of Section 5.03(e)(ii), Employer
shall remain obligated under Section 5.03(e)(v) and
(viii). Executive will not be paid any annual bonus
pursuant to Section 4.02 of this Agreement for the
fiscal year in which the termination occurs or any
subsequent fiscal year, unless otherwise provided in
Section 5.03(e).
(d) In the event of termination of the Period of Employment
pursuant to the provisions of Section 5.01(d) or (e)
above, Employer will (i) pay Executive his annual base
salary through the date of termination at the rate in
effect at the time notice of termination is given;
(ii) pay Executive a pro-rated annual bonus for the
fiscal year in which termination occurs for the portion
of the fiscal year prior to the date of termination,
based on Employer's performance through the end of the
fiscal quarter in which the termination occurs; (iii)
(except as provided in Section 5.03(f)) pay to
Executive, not later than 30 days following the date of
termination, a lump sum payment equal to three times
the sum of (A) Executive's annual base salary at the
rate in effect at the time notice of termination is
given plus (B) Executive's annual incentive target
bonus under the Plan at the time notice of termination
is given as if such bonus is paid at 100% of the
potential payout under such Plan; (iv) continue to
provide for a period of three years from the date of
termination the benefits described in Section 4.04
(with disability benefits to be calculated as of the
date of termination) to which Executive was entitled on
the date of termination; (v) continue to provide for a
period of three years from the date of termination the
fringe benefits and perquisites described in Section
4.05 to which Executive was entitled on the date of
termination; (vi) (except as provided in Section
5.03(e)) make a 100% vested Employer contribution in
the amount of $750,000 on behalf of Executive to
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Employer's Deferred Compensation Plan; (vii) pay for
individual outplacement counseling services to Executive up to
a maximum of $50,000; and (viii) extend any Employer loan
guarantees and renew any Employer loans to Executive for a
period of three years from the date of termination.
(e) Notwithstanding any other provision of this Agreement,
Employer shall have the right in its sole discretion at
any time, upon notice to Executive, to terminate
Executive's employment without Cause as provided in
Section 5.01(e). In the event of any such termination,
Employer may condition making payment of the amounts
contemplated to be paid under this Agreement upon
Executive's execution and delivery of a release and
settlement agreement in favor of Employer of all claims
by Executive for payments under this Agreement or
otherwise arising out of Executive's employment with
Employer, except for any claims which Executive may
have based on race, sex or age discrimination. Any
decision of Employer to terminate Executive's
employment without Cause shall not be subject to
arbitration under this Agreement, nor may a termination
without Cause be challenged for any reason in any court
of law or before any federal or state administrative
agency or in any other legal proceeding; provided that
nothing in this paragraph (e) shall preclude
arbitration of any claim for failure to pay amounts
owed to Executive as expressly provided herein.
5.03 Special Provisions For Change In Control. The following
special provisions will apply in connection with a Change in Control which is
publicly announced during the Period of Employment. As used in this Agreement,
"Change in Control" shall have the meaning given to it in Section 7.12. Unless
otherwise expressly provided, the benefits under this Section 5.03 will be in
addition to all other benefits to which Executive may be entitled under other
provisions of this Agreement.
(a) When Employer publicly announces during the Period of
Employment execution by Employer of a letter of intent
or definitive agreement to consummate a transaction
that would constitute a Change in Control, Employer
will pay to Executive a special incentive bonus in the
amount of $750,000. The period following such
announcement until the Change in Control occurs or the
transaction is abandoned shall be included within the
Period of Employment for all purposes of this
Agreement, and the Period of Employment shall thereby
be extended to the expiration of such period.
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(b) Upon the Change in Control contemplated by the
announcement described in Section 5.03(a), if Executive
has remained in Employer's employment through the
Change in Control or Executive's employment is
terminated after the announcement described in
Section 5.03(a) either by Employer without Cause or by
Executive for Good Reason, Employer will pay to
Executive a special extraordinary efforts bonus equal
to one times the sum of (A) Executive's annual base
salary at the rate in effect immediately prior to the
Change in Control plus (B) Executive's annual incentive
target bonus under the Plan at the time of the Change
in Control as if such bonus is paid at 100% of the
potential payout under such Plan to compensate
Executive for special efforts to accomplish the
successful consummation of the Change in Control
transaction.
(c) Upon the Change in Control aforementioned in Section
5.03(b), if Executive has remained in Employer's
employment through the Change in Control or Executive's
employment is terminated after the announcement
described in Section 503(a) either by Employer without
Cause or by Executive for Good Reason, Employer shall
use its best efforts to cause all stock options then
held by Executive which have not yet vested to be
assumed by the acquiring company, or to cause stock
options with similar terms and conditions in the
acquiring company to be substituted therefor, and, in
either case, Executive shall continue to vest in such
stock options in the acquiring company in accordance
with their terms during additional employment and
consulting periods described in paragraph (e) below and
during such other periods as may apply pursuant to the
terms of such stock options. The time to exercise any
stock options in the acquiring company shall not
terminate before 90 days following the end of the
additional employment and consulting periods described
in paragraph (e) below.
(d) Upon the Change in Control aforementioned in Section
5.03(b), if Executive has remained in Employer's
employment through the Change in Control or Executive's
employment is terminated after the announcement
described in Section 5.03(a) either by Employer without
Cause or by Executive for Good Reason, Employer will
pay to Executive the full (instead of pro-rated) annual
bonus which would be payable to Executive for the
entire fiscal year in which the Change in Control
occurs, based on the assumption that Employer would
have continued to perform for the full fiscal year at
the same level of performance which it had achieved
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through the date of the Change in Control. All special
payments which are made and expenses which are incurred on
account of the Change in Control will be disregarded in
measuring Employer's performance. Upon receipt of such
payment, Executive shall not thereafter be entitled to receive
any payment pursuant to Section 5.02(d)(ii).
(e) (i) Employer agrees to employ Executive, and Employee
hereby accepts employment, as a full-time employee for
the first six months following the Change in Control
aforementioned in Section 5.03(b) and to pay Executive
(I) a monthly base salary at twice the monthly rate of
base salary in effect immediately prior to the Change
in Control and (II) a bonus equal to Executive's annual
incentive target bonus under the Plan at the time of
the Change in Control (for the entire fiscal year in
which the Change in Control occurs) as if such bonus is
paid at 100% of the potential payout under such Plan.
(ii) Employer further agrees to offer to retain Executive
during the second six months following the Change in Control
either:
(A) as a full-time employee, in which event Employer will
pay Executive seventy-five percent (75%) of the
monthly base salary and bonus which is payable to
Executive under the preceding sentence during the
first six months following the Change in Control, or
(B) as a part-time consultant or employee, in which event
Employer will pay Executive fifty percent (50%) of
the monthly base salary and bonus which is payable to
Executive under the preceding sentence during the
first six months following the Change in Control.
(iii) If Employer does not offer to retain Executive as a
full-time employee pursuant to subparagraph (ii)(A) above,
such action by Employer shall be deemed to be a termination of
Executive's employment by Employer without Cause for purposes
of this Agreement, including Section 5.03(f) below; provided,
however, that nothing in this Section 5.03(e) shall affect or
interfere with Employer's right to terminate Executive for
Cause during Executive's full-time employment in accordance
with the provisions of Section 5.01(c).
(iv) If Employer does offer to retain Executive as a full-time
employee pursuant to subparagraph (ii)(A) above, and Executive
accepts such offer and is employed
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as a full-time employee for such second six-month period, the
Period of Employment will expire on the first anniversary of
the Change in Control. Executive's employment with Employer
shall continue thereafter at the level of monthly base salary
and bonus which were in effect immediately prior to the Change
in Control, or upon such other terms as Employer and Executive
may agree, until terminated for any reason.
(v) If Employer does offer to retain Executive as a full-time
employee pursuant to subparagraph (ii)(A) above, and Executive
does not accept such offer, Executive may elect to be a
part-time employee or consultant during the second six months
following the Change in Control on the terms described in
subparagraph (ii)(B) above. If Executive elects such position
as a part-time employee or consultant, his employment with
Employer shall terminate upon the expiration of such second
six-month period. Such election by Executive shall be deemed
to be a voluntary termination of employment by Executive
without Good Reason at the end of such second six month period
for purposes of this Agreement, including Section 5.03(f)
below; provided, however, that nothing in this Section 5.03(e)
shall affect or interfere with Executive's right to terminate
employment for Good Reason during Executive's full-time
employment in accordance with the provisions of Section
5.01(d).
(vi) The Period of Employment shall be extended to the
expiration of both such six month periods described in
subparagraphs (e)(i) and (ii) above, unless and until
Executive declines Employer's offer of full or part-time
employment or consultancy as described in subparagraphs (e)(i)
and (ii) above, provided, that the compensation and bonus
payments described in subparagraphs (e)(i) and (ii) above
shall be in lieu of all amounts otherwise owing pursuant to
Sections 4.01 or 4.02 hereof with respect to such periods.
(vii) If Executive is employed as a full-time employee for the
first six months and retained as a full or part-time employee
or consultant for the second six months after the Change in
Control under the terms described above in this paragraph (e),
and Employer performs its obligations under this paragraph
(e), Executive shall not be entitled to receive any
contribution or payment pursuant to Section 5.02(d)(vi).
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(viii) Upon any breach of Employer's obligations under this
paragraph (e) (which breach continues following written notice
by Executive and the expiration of a reasonable opportunity
for cure), Executive shall be entitled to receive the payment
or contribution specified in Section 5.02(d)(vi), in addition
to the amounts provided in Section 5.03(f) below to the extent
applicable.
(f) In the event of termination of Executive's employment
by Employer without Cause (other than due to
Executive's death or permanent disability) or by
Executive for Good Reason at any time within 36 months
after the Change in Control aforementioned in Section
5.03(b), Employer will pay to Executive, not later than
30 days following the date of termination, a lump sum
payment equal to two and one-half times the sum of
(A) Executive's annual base salary at the rate in
effect immediately prior to the Change in Control plus
(B) Executive's annual incentive target bonus under the
Plan at the time of the Change in Control as if such
bonus is paid at 100% of the potential payout under
such Plan. Upon receipt of such payment, Executive
shall not be entitled to receive any payment pursuant
to Section 5.02(d)(iii).
(g) In the event of termination of Executive's employment
by Employer without Cause (other than due to
Executive's death or permanent disability) or by
Executive for Good Reason any time within 36 months
after the Change in Control aforementioned in
Section 5.03(b), Employer will continue to provide the
benefits described in Sections 5.02(d)(iv) and (v) for
a period of three years from the date of termination
and will pay for individual outplacement counseling
services described in Section 5.02(d)(vii). If
Employer is unable for any reason to continue
Executive's coverage under its medical benefits plan,
Employer shall provide equivalent benefits coverage
through insurance.
(h) In the event a Change in Control occurs and Executive
becomes entitled to payments under this Agreement,
Employer shall cause its independent auditors promptly
to review, at Employer's sole expense, the
applicability to such payments of Section 4999 of the
Internal Revenue Code of 1986, as amended (the "Code").
If such auditors shall determine that any payment or
distribution of any type by Employer to Executive or
for his benefit, whether paid or payable or distributed
or distributable pursuant to the terms of this
Agreement or otherwise (the "Total Payments"), would be
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subject to the excise tax imposed by Section 4999 of the Code,
or any interest or penalties with respect to such excise tax
(such excise tax, together with any such interest and
penalties, are collectively referred to as the "Excise Tax"),
then Executive shall be entitled to receive an additional cash
payment from Employer (a "Gross-Up Payment") within 30 days of
such determination equal to an amount such that after payment
by Executive of all taxes (including any interest or penalties
imposed with respect to such taxes), including any Excise Tax
and employment taxes imposed upon the Gross-Up Payment,
Executive would retain an amount of the Gross-Up Payment equal
to the Excise Tax imposed upon the Total Payments; provided,
however, that Executive will be entitled to receive a Gross-Up
Payment only if the amount of the payment defined in Section
280G(b)(2) of the Code exceeds the sum of (A) $100,000 plus
(B) 2.99 times the Executive's "base amount" as defined in
Section 280G(b)(3) of the Code, and provided further, that if
Executive is not entitled to receive a Gross-Up Payment,
Executive will receive only an amount of Total Payments that
would not include any payment defined in Section 280G(b)(1) of
the Code. For purposes of the foregoing determination,
Executive's income tax rate shall be deemed to be the highest
statutory marginal Federal and California income tax rates (on
a combined basis) applicable to individuals which are then in
effect. Employer's independent auditors shall make their
determination based upon a substantial authority standard
under Section 6662 of the Code. The intent of the parties is
that Employer shall be solely responsible for, and shall pay,
any Excise Tax on the Total Payments and Gross-up Payment and
any income and employment taxes (including, without
limitation, penalties and interest) imposed on any Gross-Up
Payment, as well as any loss of tax deduction caused by the
Gross-Up Payment. An example of the calculation of the
Gross-Up Payment is set forth in Appendix A. If no
determination by Employer's auditors is made prior to the time
a tax return reflecting any portion of the Total Payments is
required to be filed by Executive, Executive will be entitled
to receive a Gross-Up Payment calculated on the basis of the
Total Payments reported by Executive in such tax return,
within 30 days of the filing of such tax return. In all
events, if any tax authority determines that a greater Excise
Tax should be imposed upon the Total Payments than is
determined by Employer's independent auditors or reflected in
Executive's tax returns, Executive shall be entitled to
receive the full Gross-Up Payment calculated on the basis of
the amount of Excise Tax
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determined to be payable by such tax authority from Employer
within 30 days of such determination.
6. Taxes. All payments to be made to Executive under this
Agreement will be net of required withholding of federal, state
and local income and employment taxes.
7. Miscellaneous.
7.01 Governing Law. This Agreement is made under and
shall be governed by and construed in accordance with the laws of
the State of California.
7.02 Successors. This Agreement shall be binding upon and
inure to the benefit of Executive and Executive's heirs and estate and of
Employer and its successors. Employer will require any successor (whether by
purchase, merger, consolidation, or otherwise) to all or substantially all of
the business and/or assets of Employer to expressly assume this Agreement.
Failure of Employer to obtain such assumption of this Agreement prior to the
consummation of any such succession shall be a breach of this Agreement. In any
case where a successor assumes Employer's obligations under this Agreement by
operation of law, the requirements imposed in this Section 7.02 will be
satisfied if the successor acknowledges to Executive in writing that it shall
assume or has assumed Employer's obligations under this Agreement by operation
of law within 30 days of receipt of a written notice from Executive requesting
such acknowledgment.
7.03 Amendments. No amendment or modification of this
Agreement will be deemed effective unless made in writing and
signed by each party hereto.
7.04 No Waiver. No term or condition of this Agreement will be
deemed to have been waived, nor will there be any estoppel to enforce any
provisions of this Agreement, except by a statement in writing signed by the
party against whom enforcement of the waiver or estoppel is sought. Any written
waiver will not be deemed a continuing waiver unless specifically stated, will
operate only as to the specific term or condition waived and will not constitute
a waiver of such term or condition for the future or as to any act other than
that specifically waived.
7.05 Assignment. This Agreement is not assignable, in
whole or in part, by any party without the written consent of the
other party.
7.06 Legal and Accounting Fees.
(a) Employer will pay legal and accounting fees charged by
▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ and Price Waterhouse in
connection with entering into this Agreement. In
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addition, upon Executive's request, Employer will also pay or
reimburse Executive for the cost, not to exceed $15,000, of
professional accounting and tax services in connection with
the receipt of payments under Section 5.03 of this Agreement
unless the Period of Employment terminated under Section 5.01
(c) or (f). Employer will make a tax gross-up payment to
Executive, if necessary, to offset any taxable income which is
reported for or realized by Executive with respect to these
legal and accounting fees.
(b) Each party will bear its own legal and accounting fees in
connection with any claim or dispute arising out of or
relating to this Agreement.
7.07 Severability. To the extent that any provision of this
Agreement shall be determined to be invalid or unenforceable, the invalid or
unenforceable portion of such provision will be deleted from this Agreement, and
the validity and enforceability of the remainder of such provision and of this
Agreement will not be affected.
7.08 Notices. All notices under this Agreement will be in
writing and will be deemed effective when delivered in person (in Employer's
case, to its Secretary) or twenty-four (24) hours after deposit thereof in the
U.S. mails, postage prepaid, for delivery as registered or certified mail --
addressed, in the case of Executive, to him at his last residential address
known by Employer and, in the case of Employer, to its corporate headquarters,
attention of its Secretary, or to such other address as Executive or Employer
may designate in writing at any time or from time to time to the other party. In
lieu of notice by deposit in the U.S. mails, a party may give notice by
telegram, telex or telecopy, in which case such notice will be deemed effective
upon receipt.
7.09 Counterparts. This Agreement may be executed by the
parties hereto in counterparts, each of which will be deemed to be an original,
but all such counterparts will together constitute one and the same instrument.
7.10 Headings. The headings of sections herein are included
solely for convenience of reference and shall not control the meaning or
interpretation of any of the provisions of this Agreement.
7.11 Arbitration.
(a) All disputes between Executive (and his attorneys, successors,
and assigns) and Employer (and its affiliates, shareholders,
directors, officers, employees, agents, successors, attorneys,
and assigns)
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of any kind whatsoever, including, without limitation, all
disputes relating in any manner to the employment or
termination of Executive and all disputes arising under this
Agreement, but excluding any claims by Executive based on
race, sex or age discrimination ("Arbitrable Claims") shall be
resolved by arbitration. All persons and entities specified in
the preceding sentence (other than Employer and Executive)
shall be considered third-party beneficiaries of the rights
and obligations created by this Section on Arbitration.
Arbitration shall be final and binding upon the parties and
shall be the exclusive remedy for all Arbitrable Claims. THE
PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY
IN REGARD TO ARBITRABLE CLAIMS.
(b) Arbitration of Arbitrable Claims shall be in accordance
with the Employment Dispute Resolution Rules of the
American Arbitration Association ("AAA Employment
Rules"), except as provided otherwise in this
Agreement. The arbitrator shall be selected from a
source provided by the Judicial Arbitration and
Mediation Service (J.A.M.S.). In any arbitration, the
burden of proof shall be allocated as provided by
applicable law. Either party may bring an action in
court to compel arbitration under this Agreement and to
enforce an arbitration award. Otherwise, neither party
shall initiate or prosecute any lawsuit or
administrative action in any way related to any
Arbitrable Claim. All arbitration hearings under this
Agreement shall be conducted in San Francisco,
California. The Federal Arbitration Act shall govern
the interpretation and enforcement of this Section
7.11. The fees of the arbitrator shall be split
between both parties equally.
(c) All proceedings and all documents prepared in connection with
any Arbitrable Claim shall be confidential and, unless
otherwise required by law, the subject matter thereof shall
not be disclosed to any person other than the parties to the
proceedings, their counsel, witnesses and experts, the
arbitrator, and, if involved, the court and court staff.
(d) The rights and obligations of Executive and Employer set forth
in this Section 7.11 with respect to arbitration shall survive
the termination of Executive's employment and the expiration
of this Agreement.
7.12 Change in Control. A "Change in Control" shall be deemed
to have occurred upon: (i) the acquisition by any Person, other than Employer or
one or more Persons controlling,
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controlled by or under common control with Employer, of beneficial ownership (as
determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as
amended) of eighty-five percent (85%) or more of Employer's outstanding voting
securities, or (ii) a change in the composition of the Board of Directors of
Employer (the "Board") over any period of thirty-six (36) consecutive months or
less such that a majority of the Board members (determined by rounding up to the
next whole number) cease to be comprised of individuals who either (A) were
Continuing Directors at the start of such period or (B) were elected or
nominated for election as Board members during such period by at least a
majority of the Continuing Directors in office at the time such election or
nomination was approved by the Board.
The 85% test in subparagraph (i) of the Change in Control
definition shall be measured at the time the transaction resulting in the Change
in Control first commences, and there shall be excluded from such calculation,
to the extent provided pursuant to Section 203 (or any successor provision) of
the Delaware General Corporation Law, shares owned by (i) persons who are both
officers and directors of Employer and (ii) employee stock plans in which
employee-participants do not have the right to determine confidentially whether
shares held subject to the plan are to be tendered in a tender or exchange
offer.
"Continuing Director" shall mean any member of the Board who
has served continuously as such Board member from and before the commencement of
the transaction resulting in the Change in Control.
"Person" shall mean any individual, firm, partnership,
corporation or other entity and shall include any successor of such entity and
all Affiliates, Associates and Subsidiaries (as such terms are defined in Rule
12b-2 of the Securities Exchange Act of 1934, as amended) of such entity.
IN WITNESS WHEREOF, Employer and Executive have executed this
Agreement as of the date set forth in the first paragraph hereof.
EMPLOYER: TANDEM COMPUTERS INCORPORATED
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
Its Chairman of the Board
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EXECUTIVE: /s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------
▇▇▇▇ ▇▇▇▇▇▇
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