EXHIBIT 10.33
PERSONAL & CONFIDENTIAL
Dear ____________:
I want to take this opportunity to reiterate how important you are as a senior
member of Compaq's management team and to thank you for your commitment to our
success. As you know, we face many opportunities and challenges as our industry
continues to evolve, and this agreement, which addresses your entitlement to
severance benefits should you separate from the company while serving as an
executive officer, is intended to give you the security to focus on your
contributions as we move forward.
TERM OF AGREEMENT: This agreement shall be effective for an initial one-year
term, beginning on January 1, 2001 and ending on December 31, 2001, and will be
automatically renewed thereafter on an annual basis for successive one-year
terms unless Compaq provides you with written notice that the Agreement will not
be renewed ("Notice of Non-Renewal") no later than 60 days prior to the
expiration of the then-current term. Notwithstanding the foregoing, this
agreement shall automatically terminate 90 days after notice from Compaq that
you are no longer an executive officer of the company unless you have resigned
prior to the end of such 90-day period.
SEPARATION FROM EMPLOYMENT: Your employment with Compaq is at-will. Under
certain circumstances, however, you will be entitled to severance benefits
should you separate from employment during the term of this Agreement. The
following provisions govern your compensation and benefits should you separate
from employment during the term of this Agreement:
QUALIFYING TERMINATION:
Should you incur a Qualifying Termination (as defined below) you will be
eligible for the following payments and benefits, provided that you remain in
compliance with your obligations under the terms of this Agreement, including,
but not limited to the provisions regarding non-competition, non-solicitation,
and non-disparagement, and the Release (as defined below). Should you fail to
comply with your obligations under this Agreement or the Release, Compaq may, in
addition to any other available remedies, cease making any payment or benefit
provided for herein.
SEPARATION PAYMENT: A separation payment equivalent, before applicable
deductions, to two times the sum of your base salary and your target annual
bonus (the "Separation Payment"); provided, however, that if you incur a
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Qualifying Termination (as defined below) within 180 days following a Change in
Control (as defined in Compaq's 1989 Equity Incentive Plan), the Separation
Payment will be equivalent, before applicable deductions, to three times the sum
of your base salary and your target annual bonus. For purposes of calculating
the Severance Payment, your base salary and target annual bonus shall be the
greater of your (i) base salary and target annual bonus as of the date you
separate from employment or (ii) your base salary and target annual bonus as in
effect immediately prior to any reduction that entitles you to resign for Good
Reason (as defined below) under this Agreement.
The Separation Payment shall be paid as follows: 50% of the Separation Payment
shall be paid to you within ten business days of your execution of the Release,
with the remaining 50% to be paid in equal installments, without interest,
commencing on Compaq's second regularly scheduled payroll following your
execution of the Release and ending with Compaq's regularly scheduled payroll
twenty-four months later (the "Separation Pay Period"). In the event of a change
in payroll practice during the Separation Pay Period, Compaq may adjust the
amounts of such installments as necessary to ensure that the total amount paid
is equal to the Separation Payment, as defined above.
HEALTH BENEFIT CONTINUATION: Compaq will pay the COBRA premiums for continuation
of healthcare benefits for you and your eligible dependents during the
Separation Pay Period. You will be responsible for all other costs, such as
co-payments and deductibles.
DEFINITION OF A QUALIFYING TERMINATION: For purposes of this Agreement, a
Qualifying Termination shall mean any of the following:
(1) Involuntary termination of your employment without Cause. For
purposes of this Agreement, Cause shall mean a determination by the
Chief Executive Officer, after consultation with the Human Resources
Committee of the Board of Directors and outside legal counsel, that
you have engaged in actions or omissions contrary to the best
interests of Compaq or that you have materially breached any of the
terms and conditions of this Agreement.
(2) Resignation within 90 days of the occurrence of a Good Reason,
which, for purposes of this Agreement, shall mean: (a) a material
reduction in your job responsibilities, duties, and/or status within
the Company, (b) a reduction of 10% or greater in your annual base
salary as of the date of this Agreement unless such reduction is
part of an across-the-board reduction in base annual salaries of all
executive officers of Compaq, or (c) receipt of a Notice of
Non-Renewal. Notwithstanding the foregoing, you will not be eligible
for a Separation
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Payment unless you provide the Board of Directors with 60 days
written notice of your intent to resign for Good Reason, containing
details regarding the grounds for your resignation, and allow the
Board of Directors to take action to remove or correct the Good
Reason within 30 days. If the Board of Directors fails to take
action to remove or correct the Good Reason within 30 days of
receiving notice of same, your resignation for Good Reason shall
become effective.
(3) Involuntary termination of your employment by the Company for any
reason within 180 days following a Change in Control.
You will not be deemed to have incurred a Qualifying Termination unless you
execute, within 30 days of your separation, a release of claims in a form
substantially similar to the form attached as Exhibit A hereto (the "Release").
Under no circumstances shall your resignation or termination from employment as
a result of Disability (as defined below) or death constitute a Qualifying
Termination.
SEPARATION DUE TO DEATH OR DISABILITY: In the event of separation from
employment as a result of Disability or death and contingent upon your, or, in
the event of your death, your estate's, execution of a Release, you, or in the
event of your death, your estate, will receive a one-time lump sum Special
Separation Payment equivalent, before applicable deductions, to 1.5 times the
sum of your base salary and your target annual bonus, both as determined as of
the date of your separation from employment. Both the Special Separation Payment
and the Prorated Annual Incentive shall be subject to applicable deductions. All
other compensation and benefits shall be determined by the terms of the
governing plan or program. For purposes of the Agreement, Disability shall mean
your inability to perform the essential functions of your position as a result
of illness or injury for a period of six consecutive months.
INVOLUNTARY TERMINATION FOR CAUSE/RESIGNATION WITHOUT GOOD REASON: If you are
involuntarily terminated for Cause or resign your employment for any reason
other than a Good Reason, you will not be entitled to any severance payment
under this Agreement. Compaq will have no other obligations under this
Agreement, and all compensation and benefits will be determined by the terms of
the governing plan or program.
EXCISE TAX GROSS-UP: In the event of a Change in Control, Compaq, at its sole
expense, shall cause its independent auditors promptly to review all payments,
distributions and benefits that have been made to or provided to, and are to be
made to or provided to, you under this Agreement, and any other agreement and
plan benefiting you, to determine the applicability of Section 4999 of the
United States Internal Revenue Code of 1986, as amended (the "Code"). If
Compaq's
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independent auditors determine that any such payments, distributions or benefits
are subject to excise taxes as provided under Section 4999 of the Code (the
"Excise Tax"), then such payment, distributions, or benefits (the "Original
Payment(s)") shall be increased by an amount (the "Gross-up Amount") such that,
after the Company withholds all taxes due, including any excise and employment
taxes imposed on the Gross-up Amount, you will retain a net amount equal to the
Original Payment(s) less income and employment taxes, if any, imposed on the
Original Payment(s). To facilitate the calculation of the applicable excise tax,
you agree to provide Compaq's auditors with copies of your Forms W-2 for the tax
years they deem necessary for their use in determining the application of
Section 4999 and calculating any amounts payable under this provision. Compaq's
auditors will perform the calculations in conformance with the foregoing
provisions and provide you with a copy of their calculation. The intent of the
parties is that Compaq shall be solely responsible for, and shall pay, any
Excise Tax on the Original Payment(s) and Gross-up Amount and any income and
employment taxes (including, without limitation, penalties and interest) imposed
on any Gross-up Amount. If no determination by Compaq's auditors is made prior
to the time you are required to file a tax return reflecting any portion of the
Original Payment(s), you will be entitled to receive a Gross-up Amount
calculated on the basis of the Original Payment(s) you report in such tax
return, within 30 days of the filing of such tax return. You agree that, for the
purposes of the foregoing sentence, you are not required to file a tax return
until you have obtained the maximum number and length of filing extensions
available. If any tax authority finally determines that a greater Excise Tax
should be imposed upon the Original Payment(s) than is determined by Compaq's
independent auditors or reflected in your tax returns, you shall be entitled to
receive the full Gross-up Amount calculated on the basis of the additional
amount of Excise Tax determined to be payable by such tax authority (including
related penalties and interest) from Compaq within 30 days of such determination
as long as you have taken all reasonable actions to minimize any such amounts.
If any tax authority finally determines the Excise Tax to be less than the
amount taken into account hereunder in calculating the Gross-up Amount, you
shall repay to Compaq, within 30 days of your receipt of a refund resulting from
that determination, the portion of the Gross-up Amount attributable to such
reduction (plus the refunded portion of Gross-up Amount attributable to the
Excise Tax and federal, state and local income and employment taxes imposed on
the Gross-up Amount being repaid, less any additional income tax resulting from
such refund).
COVENANTS: In your role with Compaq (which, for purposes of these Covenants
includes Compaq Computer Corporation, its subsidiaries, affiliates, related
entities, and successors), you will have access to confidential and proprietary
information, and your access to such information is intrinsic to, and essential
to the success of, your employment by the Company. In consideration of your
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access to such information, your continuing employment with the Company, and the
payments and benefits provided for under this Agreement, you agree to the
following Covenants, which you agree are reasonable and necessary for the
protection of Compaq's legitimate business interests, including, but not limited
to, good will and information which is confidential and proprietary to Compaq.
CONFIDENTIAL INFORMATION/INTELLECTUAL PROPERTY: You agree that you will not, at
any time during or after your employment by Compaq, make any unauthorized use or
disclosure of Confidential Information (as defined below) or Intellectual
Property (as defined below), including confidential information or intellectual
property of third parties to which you had access as a result of your
employment. Nothing in this Agreement shall prohibit you from complying with a
court order to produce information, but you agree to provide Compaq notice,
immediately upon becoming aware of such requirement, of any subpoena, order, or
other mandate to produce information which may be Confidential Information and
to cooperate fully with Compaq in obtaining such protection as Compaq deems
appropriate.
During your employment by Compaq, you agree to promptly disclose in writing to
Compaq any Intellectual Property, whether originated, conceived, created, made,
developed or invented in whole or in part by you, and maintain adequate and
current records thereof. You assign, transfer, and convey to Compaq, or its
designees or successors, your entire right, title and interest in any
Intellectual Property that you originate, conceive, create, make, develop or
invent, whether as sole inventor, creator, developer or originator or as a joint
inventor, creator, developer or originator with others, whether made within or
without the usual working hours or upon the premises of Compaq or elsewhere,
during your employment.
If, subsequent to separation from Compaq, you perform an act at Compaq's request
or direction, or provide assistance to Compaq, as described in this paragraph,
then Compaq shall compensate you for your time at a rate of one thousand dollars
per day. Either during or subsequent to your employment, upon the request and at
the expense of Compaq, but for no consideration in addition to that due to you
pursuant to your employment with Compaq and this Agreement, you shall execute,
acknowledge, and deliver to Compaq or its designee any instruments that in the
judgment of Compaq may be necessary or desirable to secure or maintain for the
benefit of Compaq or its designee adequate patent, copyright, and other property
rights with respect to Intellectual Property within the scope of this Agreement,
including, but not limited to: (a) domestic and foreign patent and copyright
applications, (b) any other applications for securing, protecting, or
registering property rights, and (c) powers of attorney, assignments, oaths,
affirmations, supplemental oaths and sworn statements. You shall also assist
Compaq or its designee, as required, to draft such
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instruments, to obtain such rights, and to enforce such rights, provided that
such assistance will not unreasonably interfere with your other endeavors.
For purposes of this Agreement, "Confidential Information" means any
confidential or private information, not generally known to the public, related
to the business or operations (past, present or future) of Compaq. You agree
that Confidential Information encompasses a broad scope of information that
includes, without limitation: business plans and strategies; information
regarding the identities, skills, qualities, competencies, characteristics,
expertise, or experience of the directors, officers, or employees of Compaq;
information regarding the compensation practices of, or payments made to or by,
Compaq; the contents of communications, oral or written, with, by or between
directors, officers, employees, or agents of Compaq; statements of fact or
opinion or mixed statements of fact and opinion if such statements are based on
information or events to which you had access as a result of your employment by
Compaq; and similar information related to third parties to whom Compaq owes a
duty of confidentiality or privacy.
Intellectual Property includes, without limitation, any and all information,
ideas, concepts, improvements, discoveries, designs, inventions, trade secrets,
know-how, manufacturing processes, product formulae, design specifications,
writings and other works of authorship, computer programs, and business methods,
whether patentable or not, which are originated by, conceived by, created by,
made by, developed by, invented by, learned by, or disclosed to you,
individually or in conjunction with others, during your employment by Compaq
(whether during business hours or otherwise and whether on Compaq's premises or
otherwise) which relate to Compaq's business, products, or services (including,
without limitation, all such information relating to corporate opportunities,
research, financial and sales data, pricing and trading terms, evaluations,
opinions, interpretations, acquisition prospects, the identity of customers or
their requirements, the identity of key contacts with in the customer's
organizations or within the organization of acquisition prospects, or marketing
and merchandising techniques, prospective names, and marks). The term
"Intellectual Property" also includes all rights provided by the law of any
jurisdiction throughout the world with respect to such information, ideas,
concepts, improvements, discoveries, designs, inventions, trade secrets,
know-how, manufacturing processes, product formulae, design specifications,
writings and other works of authorship, computer programs, and business methods,
including, without limitation, the right to maintain the same as confidential
information, the right to first publication, the right to obtain patents and
industrial rights thereon, all rights of copyright, all trademark rights, and
the right to protect the same against acts of unfair competition.
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NON-COMPETITION AND NO SOLICITATION: During your employment with Compaq and,
should your employment terminate for any reason (whether voluntary or
involuntary), for the greater of (a) a period of 24 months following your
separation or (b) any Separation Pay Period, you agree that you will not,
directly or indirectly, on your own behalf or on the behalf of others, in any
geographic area or market where Compaq is conducting any business:
(1) Engage in any business competitive with the business conducted by
Compaq at the time of your separation or set forth in any
then-existing business plan;
(2) Render advice or services to, or otherwise assist, any other person,
association, or entity who is engaged, directly or indirectly, in
any business competitive with the business conducted by Compaq at
the time of your separation or set forth in any then-existing
business; or
(3) Solicit, influence, or induce, or attempt to solicit, influence, or
induce, any employee of Compaq to terminate his or her employment
with Compaq, or recruit, hire or assist in the recruitment or hiring
of any such employee by any person, association, or entity not
affiliated with Compaq.
You understand that these restrictions may limit your ability to engage in
certain businesses anywhere in the world during the period provided for above,
but you also acknowledge and agree that you will receive sufficiently high
remuneration and other benefits under this Agreement to justify such
restriction.
NON-DISPARAGEMENT: During your employment with Compaq and, should your
employment terminate for any reason (whether voluntary or involuntary), for the
greater of (a) a period of 24 months following your separation or (b) any
Separation Pay Period, you agree that you will not make any comment or take any
action which disparages, defames, or places in a negative light Compaq or its
past and present officers, directors, and employees.
REMEDIES: You acknowledge that money damages would not be sufficient remedy for
any breach of the foregoing Covenants and that Compaq shall be entitled to
specific performance and injunctive relief to enforce these Covenants or to
remedy a breach or threatened breach of these Covenants. Such remedies shall not
be deemed the exclusive remedies for a breach of these Covenants, but shall be
in addition to all remedies available at law or in equity to Compaq, including,
without limitation, the recovery of damages from you and any agent acting on
your behalf in connection with such breach.
ARBITRATION: Except for claims by Compaq arising out of your alleged breach of
obligations under the Covenants section of this Agreement, all disputes arising
out of or relating to this Agreement or to your employment or the termination
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thereof, will be resolved by final and binding arbitration in Houston, Texas,
under the Federal Arbitration Act in accordance with the Employment Dispute
Resolution Rules then in effect with the American Arbitration Association. This
paragraph shall apply both during and after termination of the employment
relationship. Either party shall have the right to enforce this agreement to
arbitrate in either federal or state court.
All proceedings and documents prepared in connection with any arbitration under
this Agreement shall be Confidential Information and, unless otherwise required
by law, the contents or 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 court enforcement of an arbitration award is
sought, the court and court staff hearing such matter.
Should a dispute under this Agreement be submitted to arbitration and you
prevail in that arbitration, you will be entitled to recover your reasonable
expenses you incurred in connection with that arbitration, including but not
limited to attorneys' fees and arbitrators' fees, from Compaq. Should Compaq
prevail, each party shall pay its own costs.
IMPACT ON OTHER COMPENSATION AND BENEFIT PROGRAMS: There shall be no duplication
between payments made under this Agreement and any payment or benefit under any
other plan, program, agreement, or arrangement. Payments under this Agreement
shall not be considered compensation for purposes of any compensation, deferred
compensation, insurance, pension, savings, or other benefit plan.
CONTROLLING LAW: Except where otherwise provided for herein, this Agreement
shall be governed in all respects by the laws of the State of Texas, excluding
any conflict-of-law rule or principle that might refer the construction of the
Agreement to the laws of another State or country.
NOTICES: Any notices under this agreement that are required to be given to the
Company shall be addressed to Corporate Secretary, Compaq Computer Corporation,
00000 XX 000, Xxxxxxx, Xxxxx 00000-0000, and any notices required to be given to
you shall be sent to your address as shown in the Company's records.
SEPARABILITY AND CONSTRUCTION: If any provision of this Agreement is determined
to be invalid, unenforceable, or unlawful by an arbitrator or a court of
competent jurisdiction, the other provisions of this Agreement shall remain in
full force and effect, and the provisions that are determined to be invalid,
unenforceable, or unlawful will either be limited so that they will remain in
effect to the extent permissible by law or such arbitrator or court will
substitute, to the
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extent enforceable, provisions similar thereto or other provision so as to
provide, to the fullest extent allowed by law, the benefits intended by this
Agreement.
WAIVER OF BREACH: No failure by any party to give notice of any breach of, or to
require compliance with, any condition or provision of this Agreement shall be
deemed a waiver or relinquishment or that party's rights, and no waiver or
relinquishment of rights by any party at any one or more times will be deemed to
be a waiver or relinquishment of such right or power at any other time or times.
ENTIRE AGREEMENT: This Agreement, together with the plan documents referred to
herein, as amended from time to time, shall constitute the entire understanding
relating to the severance benefits for which you are eligible upon your
separation from employment with Compaq, and any previous severance agreements
(or other agreements providing for severance benefits, to the extent that they
provide for severance benefits), whether written or oral, between you and Compaq
shall be deemed to be revoked and canceled for all purposes as of the date of
this Agreement. There shall be no duplication between payments made pursuant to
this Agreement and payments made under any other plan, program, arrangement, or
agreement.
MODIFICATION IN WRITING: No addition to, or modification of, this Agreement
shall be effective, unless it is in writing and signed by both you and an
authorized representative of Compaq.
I hope that this Agreement provides you with the level of security and incentive
that will allow you to continue as a leader at Compaq to the best of your
abilities. Please sign below and return an executed original to indicate your
acceptance of these terms.
Sincerely,
Xxxxxxx X. Xxxxxxxx
Chairman and Chief Executive Officer
c: Xxxxxx X. Xxxxxxx
__________________________
__________________________
Date
Exhibit A
RELEASE OF CLAIMS
I acknowledge that I have had twenty-one days to decide whether to execute this
Release of Claims (" Release") and that I have been advised in writing to
consult an attorney before executing this Release. I acknowledge that I have
seven days from the date I execute this Release to revoke my signature. I
understand that if I choose to revoke this Release I must deliver my written
revocation to Compaq before the end of the seven-day period.
I, FOR MYSELF, MY HEIRS, SUCCESSORS, AND ASSIGNS DO HEREBY SETTLE, WAIVE,
AND RELEASE COMPAQ COMPUTER CORPORATION ("COMPAQ") AND ANY OF ITS PAST AND
PRESENT OFFICERS, OWNERS, STOCKHOLDERS, PARTNERS, DIRECTORS, AGENTS, EMPLOYEES,
SUCCESSORS, PREDECESSORS, ASSIGNS, REPRESENTATIVES, ATTORNEYS, DIVISIONS,
SUBSIDIARIES, OR AFFILIATES FROM ANY AND ALL CLAIMS, CHARGES, COMPLAINTS,
RIGHTS, DEMANDS, ACTIONS, AND CAUSES OF ACTION OF ANY KIND OR CHARACTER, IN
CONTRACT, TORT, OR OTHERWISE, BASED ON ACTIONS OR OMISSIONS OCCURRING IN THE
PAST AND/OR PRESENT, AND REGARDLESS OF WHETHER KNOWN OR UNKNOWN TO ME AT THIS
TIME, INCLUDING THOSE NOT SPECIFICALLY MENTIONED IN THIS RELEASE. AMONG THE
RIGHTS, CLAIMS, AND CAUSES OF ACTION WHICH I GIVE UP UNDER THIS RELEASE ARE
THOSE ARISING IN CONNECTION WITH MY EMPLOYMENT AND THE TERMINATION OF MY
EMPLOYMENT, INCLUDING RIGHTS OR CLAIMS UNDER FEDERAL, STATE AND LOCAL FAIR
EMPLOYMENT PRACTICE OR DISCRIMINATION LAWS (INCLUDING THE VARIOUS CIVIL RIGHTS
ACTS, THE AGE DISCRIMINATION IN EMPLOYMENT ACT, THE EQUAL PAY ACT, AND THE TEXAS
COMMISSION ON HUMAN RIGHTS ACT), LAWS PERTAINING TO BREACH OF EMPLOYMENT
CONTRACT, WRONGFUL TERMINATION OR OTHER WRONGFUL TREATMENT, AND ANY OTHER LAWS
OR RIGHTS RELATING TO MY EMPLOYMENT WITH COMPAQ AND THE TERMINATION OF THAT
EMPLOYMENT. I ACKNOWLEDGE THAT I AM AWARE OF MY RIGHTS UNDER THE AGE
DISCRIMINATION IN EMPLOYMENT ACT, AND THAT I AM KNOWINGLY AND VOLUNTARILY
WAIVING AND RELEASING ANY CLAIM OF AGE DISCRIMINATION WHICH I MAY HAVE UNDER
THAT STATUTE AS PART OF THIS RELEASE. THIS AGREEMENT DOES NOT WAIVE OR RELEASE
ANY RIGHTS, CLAIMS, OR CAUSES OF ACTION THAT MAY ARISE FROM ACTS OR OMISSIONS
OCCURRING AFTER THE DATE I EXECUTE THIS RELEASE. I AGREE NOT TO BRING OR JOIN
ANY LAWSUIT OR FILE ANY CLAIM AGAINST COMPAQ IN ANY COURT RELATING TO MY
EMPLOYMENT OR THE TERMINATION OF MY EMPLOYMENT.
____________________________ Date: ________________________
