SETTLEMENT AGREEMENT AND GENERAL RELEASE
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INSTRUCTIONS TO EMPLOYEE: This is an important legal document. For that
reason, you are advised that:
You have the right to consult with an attorney, and you should consult with
an attorney, before signing.
You have up to twenty-one (21) days to consider this Agreement. After
signing the Agreement, you may revoke the Agreement within seven (7) days.
The Agreement will become effective seven (7) days after you sign it.
Xxxxx X. Xxxxxxx ("Xxxxxxx") and Tandem Computers Incorporated ("Tandem")
entered into an employment agreement dated as of May 19, 1995 (the "Agreement").
As of January 10, 1996 Xxxxxxx and Tandem entered into an amendment to the
Agreement (the "Amendment") which superseded an amendment entered into as of
December 11, 1995, the Agreement as amended being hereinafter referred to as the
Amended Agreement. This Settlement Agreement and General Release (the "Release")
is being entered into pursuant to the requirements of Section 5 of the
Amendment.
Accordingly, for and in consideration of the commitments set forth herein
and in the Amended Agreement, Xxxxxxx and Tandem agree as follows:
1. Tandem and Xxxxxxx agree (i) that Xxxxxxx'x employment with Tandem was
terminated effective as of January 10, 1996, (ii) that such date was the last
day of Xxxxxxx'x Period of Employment with Tandem for purposes of the Amended
Agreement, and (iii) that Xxxxxxx will not be entitled to any of the benefits of
any employee benefit program of Tandem accruing after said date except as set
forth in the Amended Agreement.
2. Concurrently with the execution and delivery of this Release, Tandem
shall pay Xxxxxxx $4,837,643 in full satisfaction of Xxxxxxx'x claim pursuant to
clauses (i), (iii), (vi) and (vii) of Section 2 and pursuant to Section 3 of the
Amendment. The parties acknowledge that the payment required by clause (ii) of
Section 2 of the Amendment will be made on the date referred to in such clause.
3. Except as provided in the Amended Agreement and by any indemnification
agreement or bylaw applicable to Xxxxxxx in his capacity as an employee, officer
or a director of Tandem or pursuant to California Labor Code Section 2802 or
similar provision of law, Xxxxxxx, his representatives, heirs, successors, and
assignees, do hereby completely release and forever discharge Tandem and its
parent, affiliated, and subsidiary corporations, and their shareholders,
officers, directors, agents, employees, attorneys, successors, and assigns
(referred to hereinafter collectively as "Tandem") from all claims, rights,
demands, actions, obligations, labilities, and causes of action of any and every
kind, nature, and
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character whatsoever, known or unknown, which Xxxxxxx may now have or has
ever had against Tandem including, without limitation, those arising from or in
any way connected with the employment of Xxxxxxx by Tandem or termination
thereof, whether based on tort, contract or any federal, state or local law,
statute or regulation, including but not limited to any claims Xxxxxxx may have
under the federal Age Discrimination in Employment Act (29 U.S.C. Section 621,
et seq.) or the California Fair Employment and Housing Act. It is understood and
agreed that Xxxxxxx'x rights to indemnification under Tandem's bylaws shall be
determined under Tandem's bylaws as in effect on the date hereof, or as such
bylaws may be amended from time to time hereafter to the extend any such
amendment provides broader indemnification rights than were provided before such
amendment.
4. Xxxxxxx further agrees that he will not file, nor cause to be filed, in
any court or with any governmental agency, any action, claim, or charge against
Tandem arising from or in any way connected with his employment with Tandem,
including, without limitation, the termination thereof, except to enforce his
rights under the Amended Agreement or under any indemnification agreement or
bylaw applicable to Xxxxxxx in his capacity as an employee, officer or a
director of Tandem or pursuant to California Labor Code Section 2801 or similar
provision of law.
5. It is understood and agreed that this is a full and final release
covering all known, unknown, anticipated, and unanticipated injuries, debts,
claims, or damages to Xxxxxxx which may have arisen or may be connected with the
employment of Xxxxxxx by Tandem or the termination thereof. Xxxxxxx hereby
waives any and all rights or benefits which he may now have, or in the future
may have, under the terms of Section 1542 of the California Civil Code which
provides as follows:
A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his settlement
with the debtor.
In that regard, Xxxxxxx hereby acknowledges that he may have sustained
losses which are presently unknown or unsuspected, that such damages and other
losses as were sustained may give rise to additional complaints, actions, causes
of action, claims, demands and debts in the future. Nevertheless, he
acknowledges that this Release has been negotiated and agreed upon in light of
this realization and, being fully aware of this situation, he does nevertheless
intend hereby to release, acquit and forever discharge Tandem from any and all
such unknown claims including damages which are unknown or unanticipated, except
as provided in Paragraphs 3 and 4 above.
6. Xxxxxxx hereby agrees that he accepts the termination of his employment
with Tandem and that he shall not seek reinstatement or reemployment with Tandem
at any time. Xxxxxxx expressly waives any and all rights he may have to
reemployment with Tandem; provided, however, that this Release shall not affect
any written consulting agreement entered into between Tandem and Xxxxxxx either
prior or subsequent to the date hereof.
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7. It is understood and agreed that except to the extend disclosed by
Tandem, the Amended Agreement and this Release, and each and every provision
thereof and hereof, shall be confidential and shall not be disclosed by Xxxxxxx
to any person, firm, organization or entity, of any and every type, public or
private, for any reason without the prior written consent of Tandem, unless
required by law.
8. Xxxxxxx agrees to hold all Proprietary Information in confidence and not
to, directly or indirectly, disclose, use, copy, publish, summarize, or remove
from Tandem any Proprietary Information except as specifically authorized in
writing by Tandem. As used in this paragraph, "Proprietary Information" means
any information in whatever form, tangible or intangible, directly related to
the business of Tandem or any affiliated company of Tandem, unless: (i) the
information is or becomes publicly available through lawful means; (ii) the
information was rightfully in Xxxxxxx'x possession, or part of his general
knowledge, prior to his employment by Tandem; or (iii) the information is
disclosed to Xxxxxxx without confidential or proprietary restriction by a third
party who rightfully possesses the information (without confidential or
proprietary restriction) and did not learn of its, directly or indirectly, from
Tandem.
9. It is understood and agreed that this is a compromise settlement of a
disputed claim, or disputed claims, and that the furnishing of the consideration
of this Release shall not be deemed or construed at any time or for any purpose
as an admission of liability by Tandem. The liability for any and all claims is
expressly denied by Tandem.
10. Xxxxxxx and Tandem agree that they have been represented in the
negotiation of this Release by individuals of their own choosing, that they have
read this Release and fully understand its legal effect, that this Release
contains all of the promises which they have made, and that they are entering
into this Release freely and not on the basis of promises which are not stated
in this Release. Xxxxxxx specifically acknowledges that he has been advised to
consult an attorney regarding the terms of this Release. Xxxxxxx further
acknowledges that he has had at least twenty-one (21) days to consider and
evaluate the terms of this agreement, and that he understands that this Release
is revocable for seven (7) days after its execution.
11. Any dispute between Xxxxxxx and Tandem arising from Xxxxxxx'x
employment with Tandem, including termination thereof, and any dispute as to the
violation of any provision of this Release shall be resolved by arbitration,
which arbitration shall be conducted in accordance with the provisions of
Section 7.11 of the Amended Agreement.
12. This Release shall not be construed as an admission by Tandem or
Xxxxxxx or any violation of law, or breach of any legal or contractual duties,
or of any other improper conduct by Tandem, Xxxxxxx or anyone else.
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13. The terms of this Release shall be governed by the laws of the State of
California. In the event that any term of this Release shall be found to be null
and void, the remaining terms shall continue to have full force and effect.
/s/ Xxxxx X. Xxxxxxx
Dated January 18, 1996 ----------------------------------------
Xxxxx X. Xxxxxxx
Dated January 18, 1996 TANDEM COMPUTERS INCORPORATED
By /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Dated January 18, 1996 XXXXXXXX & FORESTER
By /s/ Xxxxx Xxxx Xxxx
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Xxxxx Xxxx Xxxx
Attorneys for
Tandem Computers Incorporated
Dated January 18, 1996 XXXXXX XXXXXX & XXXXX
By /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Attorneys for Xxxxx X. Xxxxxxx
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