SEPARATION AGREEMENT AND RELEASE
Exhibit 99.1
SEPARATION AGREEMENT AND RELEASE
This Agreement, dated February 13, 2007, sets forth the mutual agreement of Dell Inc., for
itself and its subsidiaries and affiliates (collectively, “Dell”), and Xxxxx Xxxxxxx (“Xx.
Xxxxxxx”) regarding Xx. Xxxxxxx’ separation from employment with Dell. Xx. Xxxxxxx agrees that,
except as expressly set forth in this Agreement or Dell’s stock or benefit plans, Xx. Xxxxxxx is
not entitled to receive from Dell the payment or distribution of any amounts of pay, benefits,
cash, stock, stock options or other type of property.
Whereas, Xx. Xxxxxxx has resigned as Dell CEO and as a Member of Dell’s Board of Directors,
effective January 31, 2007, and wishes to resign his employment from Dell on May 4, 2007.
1. Consideration from Dell. If Xx. Xxxxxxx signs this Agreement and the separate agreement
between Xx. Xxxxxxx and Dell, entitled Protection of Sensitive Information, Noncompetition and
Nonsolicitation Agreement (attached hereto), does not revoke this Agreement, and complies fully
with this Agreement and the Protection of Sensitive Information, Noncompetition and Nonsolicitation
Agreement, Dell will provide Xx. Xxxxxxx with the following valuable consideration, which is
expressly agreed to be in addition to anything to which Xx. Xxxxxxx is currently entitled:
(a) Severance Payments. Dell will pay Xx. Xxxxxxx xxxxxxxxx (subject to applicable tax and
other withholdings) in the following amounts and on the following dates:
| (i) | $1,000,000 to be paid on May 4, 2007; |
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| (ii) | $1,000,000 to be paid on August 3, 2007;
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| (iii) | $1,000,000 to be paid on November 2, 2007; |
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| (iv) | $1,000,000 to be paid on February 1, 2008; and |
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| (iv) | $1,000,000 to be paid on April 15, 2008. |
2. Treatment of Xx. Xxxxxxx’ Benefits including Stock and Stock Options. Xx. Xxxxxxx
understands and agrees that balances or vested balances Xx. Xxxxxxx has in any Dell benefit plan
will be available to Xx. Xxxxxxx consistent with applicable laws, regulations and the
administrative provisions of the various plan documents. Any restricted or performance based
shares or options to acquire shares of Dell common stock will expire or be exercisable in
accordance with the terms and provisions of the applicable agreements, Plans and Plan document(s).
Xx. Xxxxxxx further understands that he will not receive any grants of stock or options from Dell
in the future.
(a) Dell Stock Trading Restrictions. Xx. Xxxxxxx agrees that he will not conduct any market
transactions in Dell stock (including purchasing or selling shares and moving funds in or out of
the Dell Stock Fund in the 401(k) Plan) until Dell Inc. files its fiscal year 2007 Annual Report on
Form 10-K. Said restrictions shall not impede, delay or restrict Xx. Xxxxxxx’ participation in
non-market transactions, such as net share settlement or similar
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arrangements,
in connection with the exercise of any options relating to Dell stock.
(b) Retiree
Medical Plan. Xx. Xxxxxxx will continue to receive group medical and related
employee benefits until his employment with Dell has ended. Xx. Xxxxxxx is currently eligible to
participate in Dell’s Retiree Medical Plan, if he so chooses, subject to the terms and conditions
of that Plan and Plan document(s). Following the end of his employment with Dell, Xx. Xxxxxxx will
also be eligible for continuation of certain medical benefits under COBRA, and will be given the
choice of either participating in Dell’s Retiree Medical Plan or obtaining coverage pursuant to
COBRA.
3. Complete Release. Xx. Xxxxxxx hereby fully releases Dell and all of its owners, partners,
shareholders, predecessors, successors, assigns, agents, directors, officers, employees,
representatives, attorneys, subsidiaries, joint ventures and affiliates (and agents, directors,
officers, employees, representatives and attorneys of such subsidiaries and affiliates)
(collectively, “Released Parties”), from any and all known or unknown claims or demands Xx. Xxxxxxx
may have against any of them. Xx. Xxxxxxx expressly waives and opts out of all claims, whether
asserted on an individual or class action bias, against any Released Party arising out of any
contract, express or implied, any covenant of good faith and fair dealing, express or implied, any
tort (whether intentional or negligent, including claims arising out of the negligence or gross
negligence of any Released Party and claims of express or implied past or future defamation by any
Released Party), and any federal, state or other governmental statute, regulation or ordinance,
including, without limitation, those relating to employment discrimination, termination of
employment, payment of wages or provision of benefits, Title VII of the Civil Rights At of 1964 as
amended, the Civil Rights Act of 1991, the Americans with Disabilities Act, the Retirement Income Security Act, the Family and Medical Leave Act, the Fair Labor Standards Act, the
Age Discrimination in Employment Act, and the Occupational Safety and Health Act. Xx. Xxxxxxx
represents that Xx. Xxxxxxx has not assigned to any other person any of such claims and that Xx.
Xxxxxxx has the full right to grant this release. Notwithstanding any other provision herein, Xx.
Xxxxxxx and Dell agree that Xx. Xxxxxxx is not waiving any claims that may arise in the future
under the Age Discrimination in Employment Act, any claim for benefits under Dell’s health and
welfare or retirement benefit plans, or any future claims based on Dell’s obligations and
agreements set forth in this Agreement.
4. Non-Admission of Liability. Xx. Xxxxxxx and Dell understand and agree that they are
entering into this Agreement to, among other things, resolve any claims or differences that may
exist between them. By entering into this Agreement neither Xx. Xxxxxxx nor Dell admits any
liability or wrongdoing.
5. Company Documents, Information or Property. Xx. Xxxxxxx agrees that, on or before his
employment with Dell has ended, Xx. Xxxxxxx will return to Dell any and all documents relating to
Dell or its business operations (and any and all copies thereof, whether in paper form or
electronic form), computer equipment, badges, credit cards and any other Dell property in Xx.
Xxxxxxx’ possession or control. Xx. Xxxxxxx agrees that he will not take any such documents or
property from the control or premises of Dell and that if, at any time after his separation from
Dell, Xx. Xxxxxxx should come into possession of any such documents or property, Xx. Xxxxxxx will
return such documents or property to Dell immediately.
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6. Employment and Other Agreements. Xx. Xxxxxxx agrees that, except as otherwise provided in
this Agreement, the provisions of the employment agreement, stock option agreements and restricted
or performance based stock agreements that Xx. Xxxxxxx previously entered into with Dell remain in
full force and effect.
7. Cooperation. Xx. Xxxxxxx agrees that he will give Dell his full cooperation in connection
with any claims, lawsuits, or proceedings that relate in any manner to Xx. Xxxxxxx’ conduct or
duties at Dell or that are based on facts about which Xx. Xxxxxxx obtained personal knowledge while
employed at Dell. In return, Dell agrees to continue to provide legal counsel on Xx. Xxxxxxx
behalf and to reimburse Xx. Xxxxxxx for his direct and reasonable out of pocket expenses (including
reasonable attorney’s fees) incurred with respect to rendering such cooperation. Xx. Xxxxxxx
further agrees that he will not voluntarily become a party to, or directly or indirectly aid or
encourage any other party in connection with, any lawsuit, claim, demand, or adversarial or
investigatory proceeding of any kind involving Dell or any of the Released Parties that relates in
any material way to his employment with Dell or that is based on facts about which Xx. Xxxxxxx
obtained personal knowledge while employed with Dell. Xx. Xxxxxxx compliance with a subpoena or
other legally compulsive process will not be a violation of this provision.
8. Confidentiality. Xx. Xxxxxxx agrees that, except as may be required by law, court order,
regulation, or to enforce this Agreement, Xx. Xxxxxxx will keep the terms, amount and fact of this
Agreement completely confidential. Notwithstanding the foregoing, Xx. Xxxxxxx may disclose
pertinent information concerning this Agreement to Xx. Xxxxxxx’ attorneys, tax advisors and
financial planners, and Xx. Xxxxxxx’ spouse and other close family members provided they have
previously been informed of and have agreed to be bound by this confidentiality clause. Xx.
Xxxxxxx understands and agrees that a breach of this confidentiality clause by any of the above
named individuals will be deemed a breach of this Agreement by Xx. Xxxxxxx.
9. Non-Disparagement. Xx. Xxxxxxx agrees that, except as may be required by law or court
order, Xx. Xxxxxxx will not, directly or indirectly, make any statement, oral or written, or
perform any act or omission which is or could be detrimental in any material respect to the
reputation or goodwill of Dell or any other person or entity released herein. Further, Dell agrees
that except as may be required by law or court order, Dell will not, directly or indirectly, make
any statement, oral or written, or perform any act or omission which is or could be detrimental in
any material respect to the reputation or goodwill of Xx. Xxxxxxx. The parties agree and
understand that Dell’s obligations under this paragraph extend only to current members of Dell’s
Global Executive Management Committee and employees of Dell’s corporate communications
organization. The parties further agree that truthful statements made in connection with legal
proceedings will not violate this provision.
10. Applicable Law and Venue. THIS AGREEMENT SHALL BE INTERPRETED IN ALL RESPECTS BY THE
INTERNAL LAWS OF THE STATE OF TEXAS, AND THE VENUE FOR THE RESOLUTION OF ANY DISPUTES (LOCATION OF
ANY LAWSUIT) SHALL BE SOLELY IN THE STATE AND FEDERAL COURTS OF XXXXXXXXXX COUNTY, TEXAS.
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11. Severability. The fact that one or more paragraphs (or portion thereof) of this
Agreement may be deemed invalid or unenforceable by any court shall not invalidate the
remaining paragraphs or portions of such paragraphs of this Agreement.
12. Certain Acknowledgments. Xx. Xxxxxxx acknowledges that he is signing this Agreement
voluntarily with full knowledge of its contents. This Agreement constitutes the entire agreement
between Xx. Xxxxxxx and Dell and supersedes all prior oral or written negotiations and agreements
with Dell concerning the subject matter hereof. This Agreement may not be amended or modified
except by a written agreement signed by Xx. Xxxxxxx and Xxxxxxx Xxxx.
13. Consideration and Revocation Periods. Xx. Xxxxxxx may take up to 21 days to consider this
Agreement. Xx. Xxxxxxx may use as much or as little of this period as he chooses before signing
the Agreement. Xx. Xxxxxxx is advised to consult with an attorney before signing this Agreement.
If Xx. Xxxxxxx accepts this Agreement, he must sign it and return it to Dell’s General Counsel,
Xxxxxxxx X. Tu, on or before the expiration of the 21 day period and/or Dell’s withdrawal of the
offer contained in the Agreement. By signing this Agreement, Xx. Xxxxxxx acknowledges that he was
afforded a period of at least 21 days from the date Dell’s proposal was presented to him in which
to consider it. Xx. Xxxxxxx understands that any changes that the parties agree to make to this
Agreement after it has been presented to him, whether such changes are material or non-material,
will not extend the amount of time Xx. Xxxxxxx has to consider the agreement. In addition, Xx.
Xxxxxxx has a period of seven days within which to revoke this Agreement after signing it. To
revoke this Agreement, Xx. Xxxxxxx must notify Dell’s General Counsel, Xxxxxxxx X. Tu, of
revocation in writing within seven days from the date Xx. Xxxxxxx signed this Agreement.
If the foregoing accurately sets forth your agreement with Dell, please signify by signing below
and returning this Agreement to Dell’s General Counsel, Xxxxxxxx X. Tu, on or before the close of
business on March 6, 2007. If Dell has not received a signed copy of this Agreement by that time,
the offer reflected in this Agreement will automatically terminate and expire without further
notice from Dell.
/s/ Xxxxx Xxxxxxx
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“Xx. Xxxxxxx” |
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/s/ Xxxxxxx X. Dell
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By: Xxxxxxx X. Dell |
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