Exhibit 10.12
[LOGO]
INRANGE
October 28, 2002
Xxxx X. Xxxxxx
Vice President and CFO
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").
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(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 stock of the Company to the
shareholders of SPX by dividend or otherwise or (ii) one or
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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;
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(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.
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
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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:
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(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, Disability, or Retirement; (ii) by the
Company for Cause; or (iii) by you other than for
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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 one and one-half (1.5);
(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
one and one-half (1.5) 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 one and one-half (1.5)-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 one and one-half
(1.5)-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 one and one-half (1.5)-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 one and one-half (1.5)-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
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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
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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
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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
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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.
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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.
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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
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Agreed to this 31st day of October 2002.
By /S/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
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