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EXHIBIT 18
TERMINATION OF EMPLOYMENT AGREEMENT
AGREEMENT OF TERMINATION (this "Agreement") dated as of December [ ],
1999 by and between SOFTWORKS, Inc., a Delaware corporation (the "Company"), and
________________ (the "Employee").
WHEREAS, the Company and the Employee are parties to an Employment
Agreement dated as of ______________________ (the "Employment Agreement");
and
WHEREAS, on the date hereof, the Company is entering into an Agreement
and Plan of Merger (the "Merger Agreement") with XXX Xxxxxxxxxxx ("EMC") whereby
EMC (or a subsidiary of EMC) will make a cash tender offer to acquire the
outstanding capital stock of the Company (such offer and any related
transaction, the "Acquisition"); and
WHEREAS, in connection with such Acquisition, the parties desire to
terminate the Employment Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises contained herein, the parties hereto, intending to be legally bound, do
hereby agree as follows:
1. Termination of Employment Agreement. At the Effective Time (the
"Termination Effective Date"), the Employment Agreement shall terminate and be
of no further force or effect.
2. Payment. Subject to the provisions of Sections 3 and 4 hereof, on
the Termination Effective Date, the Company shall pay to the Employee $_____,
less the amount outstanding under any debt obligation of the Employee to the
Company at such time (the "Payment").
3. Waiver of Claims; Key Employee Agreement. The Employee hereby waives
and relinquishes any claims, actions, recourse or other rights of any nature
which such Employee may have against the Company in connection with the
Employment Agreement or otherwise with respect to the Company. Prior to delivery
of the Payment, the Employee shall execute the EMC Key Employee Agreement.
4. Excess Parachute Payment Adjustment. Notwithstanding any other
provision of this Agreement, in the event that any payment or benefit received
or to be received by the Employee (whether pursuant to the terms of this
Agreement or
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any other plan, arrangement or agreement with the Company, EMC or any person
affiliated with the Company or EMC) in connection with the Acquisition or any
termination of the Employee's employment (all such payments and benefits,
including the Payment, being hereinafter called "Total Payments") would not be
deductible (in whole or part), by the Company (or a successor, affiliate or
other person making such payment or providing such benefit) as a result of the
application of Section 280G of the Internal Revenue Code, as amended, then the
Payment shall be reduced to the minimum extent necessary to make such portion of
the Total Payments deductible.
5. Modifications. This Agreement constitutes the entire Agreement
between the parties hereto with regard to the subject matter hereof, superseding
all prior understandings or agreements, whether written or oral. This Agreement
may not be amended or revised except by a writing signed by the parties.
6. Governing Law. This Agreement shall be construed and governed by the
laws of The State of Delaware, without reference to its conflicts of laws
principles.
7. Counterparts. This Agreement may be executed in two counterparts,
each of which shall be deemed an original but which together shall constitute
one and the same instrument.
Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed thereto in the Merger Agreement.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first written above.
SOFTWORKS, Inc.
By:
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Name:
Title
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[name of employee]
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