Exhibit 10.3
[LOGO]
INRANGE
October 28, 2002
Xxxxxxx X. Xxxx
President and CEO
Inrange Technologies Corporation
100 Mount Xxxxx By-Pass
P.O. Box 440
Lumberton, NJ 08048-0440
Inrange Technologies Corporation (the "Company") agrees that you shall receive
the severance benefits set forth in this agreement (the "Agreement") in the
event that your employment is terminated due to a Change of Control.
1. Term of Agreement. This Agreement will become effective on the date
hereof (the "Commencement Date") and shall continue in effect through the third
anniversary of the Commencement Date (the "Date of Expiration"). However, on
that initial Date of Expiration, and on each extended Date of Expiration
thereafter, the term of this Agreement will be extended automatically for one
additional year unless, not later than six (6) months prior to such Date of
Expiration, the Company gives written notice to you that it has elected not to
extend this Agreement. However, if a Change of Control occurs during the term of
this Agreement, this Agreement will continue in effect for thirty-six (36)
months beyond the end of the month in which the Change of Control occurred.
2. Change of Control of the Company. No benefits will be payable under the
terms of this Agreement unless a Change of Control of the Company has occurred.
A "Change of Control" shall be deemed to have occurred if any "Person" (as
defined below), excluding for this purpose, the Company or any subsidiary of SPX
Corporation ("SPX") or the Company, any employee benefit plan of SPX, the
Company or of any subsidiary of SPX or the Company, or any entity organized,
appointed or established for or pursuant to the terms of any such plan which
acquires beneficial ownership of common shares of the Company, becomes the
"Beneficial Owner" (as defined below) of a sufficient percentage of the Class A
common stock of the Company such that SPX no longer retains a controlling
interest and voting control in the Company. For purposes of this Section 2, the
following terms shall have the meanings set forth below:
(a) "Person" shall mean any individual, firm, limited liability
company, corporation or other entity, and shall include any successor (by
merger or otherwise) of any such entity.
(b) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
1
(c) A Person shall be deemed the "Beneficial Owner" of and shall be
deemed to "beneficially own" any securities:
(i) which such Person or any of such Person's Affiliates or
Associates beneficially owns, directly or indirectly (determined as
provided in Rule 13d-3 under the Exchange Act);
(ii) which such Person or any of such Person's Affiliates or
Associates has (A) the right to acquire (whether such right is
exercisable immediately or only after the passage of time) pursuant
to any agreement, arrangement or understanding (other than customary
agreements with and between underwriters and selling group members
with respect to a bona fide public offering of securities), or upon
the exercise of conversion rights, exchange rights, rights, warrants
or options, or otherwise; provided, however, that a Person shall not
be deemed the Beneficial Owner of, or to beneficially own,
securities tendered pursuant to a tender or exchange offer made by
or on behalf of such Person or any of such Person's Affiliates or
Associates until such tendered securities are accepted for purchase
or exchange; or (B) the right to vote pursuant to any agreement,
arrangement or understanding; provided, however, that a Person shall
not be deemed the Beneficial Owner of, or to beneficially own, any
security if the agreement, arrangement or understanding to vote such
security (1) arises solely from a revocable proxy or consent given
to such Person in response to a public proxy or consent solicitation
made pursuant to, and in accordance with, the applicable rules and
regulations promulgated under the Exchange Act and (2) is not also
then reportable on Schedule 13D under the Exchange Act (or any
comparable or successor report); or
(iii) which are beneficially owned, directly or indirectly, by
any other Person with which such Person or any of such Person's
Affiliates or Associates has any agreement, arrangement or
understanding (other than customary agreements with and between
underwriters and selling group members with respect to a bona fide
public offering of securities) for the purpose of acquiring,
holding, voting (except to the extent contemplated by the proviso to
subparagraph (c)(ii)(B), above) or disposing of any securities of
the Company.
Any other provision of this Agreement to the contrary notwithstanding, a "Change
of Control" shall not include any transaction, above, where, in connection with
such transaction, you and/or any party acting in concert with you substantially
increase your, his or its, as the case may be, ownership interest in the Company
or a successor to the Company (other than through conversion of prior ownership
interests in the Company and/or through equity awards received entirely as
compensation for past or future personal services).
Further, any other provision of this Agreement to the contrary notwithstanding,
a "Change in Control" shall not include: (i) a distribution of the shares of
Class A common
2
stock of the Company to the shareholders of SPX by dividend or otherwise or (ii)
one or more public offerings of the shares of Class A common stock of the
Company regardless of whether such shares are owned by SPX on the Commencement
Date or are authorized but unissued shares or treasury shares of the Company.
3. Definitions. The following definitions shall be used in determining
whether, under the terms of Section 4 hereof, you are entitled to receive
Accrued Benefits and/or Severance Benefits:
(a) Disability. "Disability" shall mean that, as a result of your
incapacity due to physical or mental injury or illness, you shall have
been absent from the full-time performance of your duties with the Company
for at least six (6) consecutive months and, within thirty (30) calendar
days after written notice of suspension is given, you shall not have
returned to the full-time performance of your duties.
(b) Retirement. "Retirement" shall mean your voluntary termination
of your employment (other than for Good Reason, as defined below) at a
time after you have reached age sixty-five (65).
(c) Cause. "Cause" shall mean (i) your willful and continued failure
to substantially perform your duties with the Company (other than any such
failure resulting from Disability or occurring after issuance by you of a
Notice of Termination for Good Reason), after a demand for substantial
performance is delivered to you that specifically identifies the manner in
which the Company believes that you have not substantially performed your
duties, and after you have failed to resume substantial performance of
your duties on a continuous basis within fourteen (14) calendar days after
receiving such demand, (ii) you willfully engaging in conduct which is
demonstrably and materially injurious to the Company, monetarily or
otherwise, or (iii) your having been convicted of a felony which impairs
your ability substantially to perform your duties with the Company. For
purposes of this paragraph (c), no act, or failure to act, on your part
shall be deemed "willful" unless done, or omitted to be done, by you not
in good faith and without reasonable belief that your action or omission
was in the best interest of the Company.
(d) Good Reason. You shall be entitled to terminate your employment
for Good Reason. For purposes of this Agreement, "Good Reason" shall mean,
without your express written consent, the occurrence within three (3)
years following a Change of Control of the Company of any one or more of
the following:
(i) The assignment to you of duties inconsistent with your
duties, responsibilities, and the status of your position as of the
day prior to the Change of Control of the Company, or a reduction or
alteration in the nature or status of your responsibilities from
those in effect on the day prior to the Change of Control;
3
(ii) A reduction by the Company in your base salary or in your
most recent annual target incentive award opportunity as in effect
on the date hereof or as the same shall be increased from time to
time;
(iii) The Company's requiring you to be based at a location in
excess of two hundred and fifty (250) miles from the location where
you are currently based;
(iv) The failure by the Company to continue in effect the
Inrange Technologies Corporation Savings and Stock Ownership Plan,
the Inrange Technologies Corporation Supplemental Savings Plan (the
"Supplemental Savings Plan"), the Inrange Technologies Corporation
Executive EVA Incentive Compensation Plan (the "EVA Plan"), any
plans substituted for the above adopted prior to the Change of
Control, or any other of the Company's employee benefit plans,
policies, practices or arrangements in which you participate, unless
an equitable arrangement (embodied in an ongoing substitute or
alternative plan) to provide similar benefits has been made with
respect to such plan(s); or the failure by the Company to continue
your participation therein (or in such substitute or alternative
plan) on substantially the same basis, both in terms of the amount
of benefits provided and the level of your participation relative to
other participants, as existed as of the time of the Change of
Control;
(v) The failure of the Company to reinstate your employment in
full (in the same capacity that you were employed, or in a mutually
agreeable capacity) in the event that your employment was suspended
due to a Disability and, within three years, you request to be
reinstated and are ready, willing, and able to adequately perform
your employment duties;
(vi) The termination, replacement, or reassignment of
twenty-five percent (25%) or more of the elected officers of the
Company existing as of the day prior to a Change of Control, unless
the officer is terminated due to death, Disability, or Retirement,
or by the Company for Cause, or by the officer other than for Good
Reason (all as herein defined);
(vii) The failure of the Company to obtain a satisfactory
agreement from any successor to the Company to assume and agree to
perform this Agreement, as contemplated in Section 5 hereof; and
(viii) Any purported termination by the Company of your
employment that is not effected pursuant to a Notice of Termination
satisfying the requirements of paragraph (f), below, and for
purposes of this Agreement, no such purported termination shall be
effective.
4
Your right to terminate your employment pursuant to this paragraph (d) shall not
be affected by your suspension due to Disability. Your continued employment
shall not constitute a waiver of your rights with respect to any circumstance
constituting Good Reason hereunder.
(e) Notice of Termination. Any termination by the Company for Cause
or by you for Good Reason shall be communicated by Notice of Termination
to the other party hereto. For purposes of this Agreement, a "Notice of
Termination" shall mean a written notice which shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis
for termination of your employment under the provisions so indicated.
(f) Date of Termination. "Date of Termination" shall mean the date
specified in the Notice of Termination where required (but not less than
thirty (30) calendar days following delivery of the Notice of Termination,
except that termination for Cause may be effective immediately) or in any
other case upon ceasing to perform services to the Company; provided that
if within twenty (20) calendar days after any Notice of Termination one
party notifies the other party that a dispute exists concerning the
termination, the Date of Termination shall be the date finally determined
to be the Date of Termination, either by written agreement of the parties
or by a binding and final arbitration decision. In the event that a
dispute exists concerning the Date of Termination, you shall continue to
receive your full compensation (including participation in all benefit and
insurance plans in which you were participating) in effect when the notice
giving rise to the dispute was given, until the Date of Termination is
finally determined. In such event, you will be required to reimburse the
Company for all compensation received beyond the finally determined Date
of Termination either by direct cash reimbursement within thirty (30)
calendar days of resolving the conflict or by appropriately reducing your
remaining benefits to be received under the terms of this Agreement.
(g) Earned Bonus Amount. For any year for which the EVA Plan is in
effect prior to the year during which a Change of Control occurs, your
"Earned Bonus Amount" means your Declared Bonus for that year (as
determined under the EVA Plan) multiplied by a fraction the numerator of
which is your Bonus Award Earned for that year (as determined under the
EVA Plan) and the denominator of which is your Available Bonus for that
year (as determined under the EVA Plan). For the year during which a
Change of Control occurs and any subsequent year, your "Earned Bonus
Amount" means your Declared Bonus for that year (as determined under the
EVA Plan).
4. Compensation Upon Termination Following a Change of Control.
(a) Accrued Benefits. In the event that your employment is
terminated for any reason during the term of this Agreement, following a
Change of Control of the Company (as defined in Section 2 herein), you
shall receive your Accrued Benefits through the Date of Termination. For
purposes of this Agreement, your "Accrued Benefits" shall include the
following:
5
(i) All base salary for the time period ending with your Date
of Termination, at the rate in effect at the time Notice of
Termination is given or on the Date of Termination if no Notice of
Termination is required;
(ii) A bonus payment equal to one hundred percent (100%) of
the greater of (A) your target bonus for the year in which the Date
of Termination occurs, prorated based upon the ratio of the number
of months (full credit for a partial month) you were employed during
that bonus year to the total months in that bonus year, and (B) your
Earned Bonus Amount for the year in which the Date of Termination
occurs, calculated as if the Date of Termination were the end of
that year for purposes of the EVA Plan;
(iii) A cash equivalent of all unused vacation to which you
were entitled through your Date of Termination;
(iv) Reimbursement for any and all monies advanced in
connection with your employment for reasonable and necessary
expenses incurred by you on behalf of the Company for the time
period ending with your Date of Termination;
(v) Any and all other cash earned through the Date of
Termination and deferred at your election or pursuant to any
deferred compensation plan then in effect;
(vi) All other amounts to which you are entitled under any
compensation or benefit plan, program, practice or policy of the
Company in effect as of the Date of Termination; and
(vii) The payments provided for in paragraphs (i), (ii),
(iii), (iv) and (v), above, shall be made not later than the tenth
(10th) business day following the Date of Termination; provided,
however, that if the amounts of such payments cannot be finally
determined on or before such day, the Company shall pay to you on
such day an estimate, as determined in good faith by the Company, of
the minimum amount of such payments and shall pay the remainder of
such payments (together with interest at the rate provided in
Section 1274(b)(2)(B) of the Internal Revenue Code of 1986, as
amended (the "Code")) as soon as the amount thereof can be
determined but in no event later than the thirtieth (30th) calendar
day after the Date of Termination. In the event that the amount of
the estimated payments exceeds the amount subsequently determined to
have been due, such excess shall constitute a loan by the Company to
you payable on the tenth (10th) business day after demand by the
Company (together with interest at the rate provided in Section
1274(b)(2)(B) of the Code).
(b) Severance Benefits. In the event that your employment is
terminated during the term of this Agreement following a Change of Control
of the Company (as described in Section 2 herein), unless your termination
is (i) because of your death,
6
Disability, or Retirement; (ii) by the Company for Cause; or (iii) by you
other than for Good Reason, you shall receive, in addition to your Accrued
Benefits, the Severance Benefits. For purposes of this Agreement, your
"Severance Benefits" shall include the following:
(i) Your annual base salary at the rate in effect immediately
prior to the Change of Control of the Company or, if greater, at the
rate in effect at the time Notice of Termination is given, or on the
Date of Termination if no Notice of Termination is required,
multiplied by two (2);
(ii) (A) The full amount of your individual Bonus Bank balance
under the EVA Plan (or any successor plan) and (B) an amount equal
to two (2) times the greatest of (I) the highest of your Earned
Bonus Amounts for the three (3) years immediately preceding the year
in which the Date of Termination occurs (the "Year of Termination")
or (II) your target bonus under the EVA Plan (or any successor plan)
for the Year of Termination or (III) your Earned Bonus Amount for
the Year of Termination, calculated as if the Date of Termination
were the end of that year for purposes of the EVA Plan;
(iii) For a two (2)-year period after your Date of
Termination, the Company will arrange to provide to you the same
health care coverage you had prior to your termination, at the
Company's expense, which includes, but is not limited to, hospital,
surgical, medical, dental, and dependent coverages. Health care
benefits otherwise receivable by you pursuant to this subparagraph
(iii) shall be reduced to the extent comparable benefits are
actually received by you from a subsequent employer during the two
(2)-year period following your Date of Termination, and any such
benefits actually received by you shall be reported to the Company.
Any period of continuation coverage provided under this subparagraph
(iii) shall run concurrently with any period of continuation
coverage available under the Consolidated Omnibus Budget
Reconciliation Act of 1985;
(iv) For a two (2)-year period after your Date of Termination,
the Company will arrange to provide to you, at the Company's
expense, life insurance coverage in the amount of two (2) times your
base salary in effect at your Date of Termination and, at the end of
the two (2)-year period, for the remainder of your life the Company
will provide to you life insurance coverage in the amount of your
base salary in effect at your Date of Termination;
(v) Under the Supplemental Savings Plan, you will receive a
cash lump sum payment of the full balance (vested and unvested);
(vi) Each stock option which you have been granted by the
Company and which is not yet vested shall become immediately vested
and exercisable and shall continue to be exercisable for the lesser
of (A) two (2) years following your Date of Termination or (B) the
time remaining until the originally designated
7
expiration date, unless a longer exercise period is provided for in
the applicable plan or award agreement;
(vii) Any contractual restrictions placed on any shares of
restricted stock which you have been awarded pursuant to the Inrange
Technologies Corporation 2000 Stock Compensation Plan shall lapse as
of your Date of Termination;
(viii) If any portion of the Severance Payments (in the
aggregate, "Total Payments") will be subject to the golden parachute
"Excise Tax" imposed by Section 4999 of the Code, the Company shall
pay to you an additional amount (the "Gross-Up Payment") such that
the net amount retained by you after deduction of any Excise Tax
(including any related penalties and interest) on the Total Payments
(but not any federal, state, or local income tax on the Total
Payments), and any federal, state, and local income tax and Excise
Tax (including any related penalties and interest) on the Gross-Up
Payment, shall be equal to the Total Payments. The determination of
whether any Excise Tax will be imposed and of the amount of the
Gross-Up Payment will be made by tax counsel selected by the
Company's independent auditors and acceptable to you. For purposes
of determining whether any of the Total Payments will be subject to
the Excise Tax and the amount of such Excise Tax, (A) any other
payments or benefit received or to be received by you in connection
with a Change of Control of the Company or your termination of
employment (whether pursuant to the terms of this Agreement or any
other plan, arrangement, or agreement with the Company) shall be
treated as "parachute payments" within the meaning of Section
280G(b)(2) of the Code, and all "excess parachute payments" within
the meaning of Section 280G(b)(1) shall be treated as subject to the
Excise Tax, unless in the opinion of such tax counsel such other
payments or benefits (in whole or in part) do not constitute
parachute payments, or such excess parachute payments (in whole or
in part) represent reasonable compensation for services actually
rendered within the meaning of Section 280G(b)(4)(B) of the Code,
and (B) the value of any noncash benefits or any deferred payment or
benefit shall be determined by the Company's independent auditors in
accordance with the principles of Sections 280G(d)(3) and (4) of the
Code. For purposes of determining the amount of the Gross-Up
Payment, you shall be deemed to pay federal income taxes at the
highest marginal rate of federal income taxation for the calendar
year in which the Gross-Up Payment is made and state and local
income taxes at the highest marginal rates of taxation in the state
and locality of your residence (at the time at which the Gross-Up
Payment is made) as effective for the calendar year in which the
Gross-Up Payment is made, net of the maximum reduction in federal
income taxes which could be obtained from deduction of such state
and local taxes.
The payments provided for in this subparagraph (viii) shall be made
not later than thirty (30) calendar days following your Date of
Termination; provided, however, that if the amounts of such payments
cannot be finally determined on or before such day, the Company
shall pay to you on such day an estimate, as determined in
8
good faith by such tax counsel, of the minimum amount of such
payments and shall pay the remainder of such payments (together with
interest at the rate provided in Section 1274(b)(2)(B) of the Code)
as soon as the amount thereof can be determined but in no event
later than sixty (60) calendar days after your Date of Termination.
In the event that the amount of the estimated payment exceeds the
amount subsequently determined to have been due, such excess shall
constitute a loan by the Company to you payable on the twentieth
(20th) calendar day after demand by the Company (together with
interest at the rate provided in Section 1274(b)(2)(B) of the Code).
Notwithstanding the foregoing, the sixty (60) day period for
deferment of the Gross-Up Payment shall not preempt or otherwise
eliminate your right to receive any other payments to which you are
entitled under this subparagraph or otherwise under the terms of
this Agreement and to receive additional Gross-Up Payments based on
such additional payments pursuant to this subparagraph;
(ix) To the full extent permitted by law, the Company shall
indemnify you (including the advancement of expenses) for any
judgments, fines, amounts paid in settlement and reasonable
expenses, including attorneys' fees, incurred by you in connection
with the defense of any lawsuit or other claim to which you are made
a party by reason of being or having been an officer, director or
employee of the Company or any of its subsidiaries. In addition, you
will be covered by director and officer liability insurance to the
maximum extent that such insurance maintained by the Company from
time to time covers any officer or director (or former officer or
director) of the Company;
(x) You will be entitled to receive outplacement services, at
the expense of the Company, from a provider reasonably selected by
you;
(xi) The Company also shall pay to you all legal fees and
expenses incurred by you as a result of such termination of
employment (including all such fees and expenses, if any, incurred
in contesting or disputing any such termination or in seeking to
obtain or enforce any right or benefit provided by this Agreement or
in connection with any tax audit or proceeding to the extent
attributable to the application of Section 4999 of the Code to any
payment or benefit provided hereunder); and
(xii) The payments provided in paragraphs (i) and (ii), if a
lump sum is elected, and (v) above, shall be made not later than the
tenth (10th) business day following the Date of Termination,
provided, however, that if the amounts of such payments cannot be
finally determined on or before such day, the Company shall pay to
you on such day an estimate, as determined in good faith by the
Company, of the minimum amount of such payments and shall pay the
remainder of such payments (together with interest at the rate
provided in Section 1274(b)(2)(B) of the Code) as soon as the amount
thereof can be determined but in no event later than the thirtieth
(30th) day after the Date of Termination. In the event that the
amount of the estimated payments exceeds the amount subsequently
determined
9
to have been due, such excess shall constitute a loan by the Company
to you payable on the tenth (10th) business day after demand by the
Company (together with interest at the rate provided in Section
1274(b)(2)(B) of the Code). As all of the payments referenced in the
first sentence of this subparagraph (xiii) are included for purposes
of determining the Gross-Up Payment, the thirty (30)-day period
identified above shall not preempt or otherwise eliminate your right
to receive any other payments to which you are entitled under the
terms of this Agreement and to receive additional Gross-Up Payments
based on such additional payments.
(c) Any provision in this Agreement to the contrary notwithstanding,
if a Change of Control occurs and if your employment with the Company is
terminated within six (6) months prior to the date on which the Change of
Control occurs, and if you reasonably demonstrate that such termination of
employment (i) was at the request of a third party who has taken steps
reasonably calculated to effect the Change of Control, (ii) otherwise
arose in connection with or anticipation of the Change of Control, or
(iii) would not have occurred or would be less likely to have occurred if
the Change of Control were not anticipated, then for all purposes of this
Agreement the termination of your employment shall be deemed to have
occurred following the Change of Control.
(d) You shall not be required to mitigate the amount of any payment
provided for in this Section 4 by seeking other employment or otherwise,
nor shall the amount of any payment provided for in this Section 4 be
reduced by any compensation earned by you as the result of employment by
another employer after your Date of Termination, or otherwise, with the
exception of a reduction in your insurance benefits as provided in Section
4(b)(iii).
5. Successors; Binding Agreements.
(a) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company or of any
division or subsidiary thereof employing you to expressly assume and agree
to perform this Agreement in the same manner and to the same extent that
the Company would be required to perform it if no such succession had
taken place. Failure of the Company to obtain such assumption and
agreement prior to the effectiveness of any such succession shall be a
breach of this Agreement and shall entitle you to compensation from the
Company in the same amount and on the same terms to which you would be
entitled hereunder if you terminated your employment for Good Reason
following a Change of Control, except that for purposes of implementing
the foregoing, the date on which any such succession becomes effective
shall be deemed your Date of Termination.
(b) This Agreement shall inure to the benefit of and be enforceable
by your personal and legal representatives, executors, administrators,
successors, heirs, distributees, devisees, and legatees. If you should die
while any amount would still be payable to you hereunder if you had
continued to live, all such amounts, unless otherwise
10
provided herein, shall be paid in accordance with the terms of this
Agreement, to your devisee, legatee or other designee or, if there is no
such designee, to your estate.
6. No Funding of Benefits. Nothing herein contained shall require or be
deemed to require the Company to segregate, earmark, or otherwise set aside any
funds or other assets to provide for any payments to be made hereunder. Your
rights under this Agreement shall be solely those of a general creditor of the
Company. However, in the event of a Change of Control, the Company may deposit
cash or property, or both, equal in value to all or a portion of the benefits
anticipated to be payable hereunder into a trust, the assets of which are to be
distributed at such times as are otherwise provided for in this Agreement and
are subject to the rights of the general creditors of the Company.
7. Withholding of Taxes. The Company may withhold from any amounts payable
under this Agreement all federal, state, city, or other taxes as legally shall
be required.
8. Notice. For the purpose of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth on the first page of this Agreement.
9. Miscellaneous. No provision of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is agreed to in
writing and signed by you and such officer as may be specifically designated by
the Company. The validity, interpretation, construction, and performance of this
Agreement shall be governed by the laws of the State of New Jersey.
10. Employment Rights. This Agreement shall not confer upon you any right
to continue in the employ of the Company or its subsidiaries and, except to the
extent that benefits may become payable under Section 4, above, shall not in any
way affect the right of the Company or its subsidiaries to dismiss or otherwise
terminate your employment at any time and for any reason with or without cause.
11. No Vested Interest. Neither you nor your beneficiaries shall have any
right, title or interest in any benefit under this Agreement prior to the
occurrence of all of the events specified herein as necessary conditions to such
right, title or interest.
12. Prior Agreements. This Agreement contains the understanding between
the parties hereto with respect to severance benefits in connection with a
Change of Control of the Company and supersedes any prior such agreement between
the Company (or any predecessor of the Company) and you. If there is any
discrepancy or conflict between this Agreement and any plan, policy and program
of the Company regarding any term or condition of severance benefits in
connection with a Change of Control of the Company, the language of this
Agreement shall govern.
11
13. Validity. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
14. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
15. Arbitration. Any dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by arbitration in accordance
with the rules of the American Arbitration Association then in effect. Judgment
may be entered on the arbitrator's award in any court having jurisdiction.
However, you shall be entitled to seek in court specific performance of your
right, pursuant to Section 3(f), above, to be paid until the Date of Termination
during the pendency of any dispute or controversy arising under or in connection
with this Agreement.
12
If this letter properly sets forth our agreement on the subject matter hereof,
date, sign and return to the Company the enclosed copy of this letter, will then
constitute our agreement on this subject.
Sincerely,
INRANGE TECHNOLOGIES CORPORATION
By /s/ Xxxx X. Xxxxxxxx
-----------------------------------
Agreed to this 31st day of October 2002.
By /s/ Xxxxxxx X. Xxxx
-----------------------
Xxxxxxx X. Xxxx
13
