EXHIBIT (e)(11)
PEOPLESOFT, INC.
XXXXX XXXXXX EMPLOYMENT AGREEMENT
This agreement is made by and between PeopleSoft, Inc. (the "Company", and
Xxxxx Xxxxxx ("Executive") as of May 10, 1999 and restated as of May 27, 2003
with such restated terms effective as of that date.
1. Duties and Scope of Employment.
(a) Positions: Employment Commencement Date: Duties. Executive's
Employment with the Company pursuant to this Agreement shall commence on May 10,
1999 (the "Employment Commencement Date"). Company shall employ the Executive as
the President and Chief Executive Officer of the Company reporting to the Board
of Directors ("Board"). The period of Executive's employment hereunder is
referred to herein as the "Employment Term." During the Employment Term,
Executive shall render such business and professional services in the
performance of his duties, consistent with Executive's position within the
Company, as shall reasonably be assigned to him by the Board, including direct
responsibility for the day to day operations of the Company, having the
management committee directly report to him, Company financial performance and
hiring and employment termination decision-making authority.
(b) Obligations. During the Employment Term, Executive shall devote
his full business efforts and time to the Company. Executive agrees, during the
Employment Term, not to actively engage in any other employment, occupation or
consulting activity for any direct or indirect remuneration without the prior
approval of the Board; provided, however, that Executive may serve in any
capacity with any civic, educational or charitable organization, or as a member
of corporate Boards of Directors or committees thereof upon which Executive
currently serves, without the approval of the Board; provided, further that
Executive may devote a reasonable amount of time to managing his family
investments (notwithstanding Section 3 of the Company's standard Employee
Proprietary Information Agreement).
2. Employment Benefits; Indemnification Agreement. During the Employment
Term, Executive shall be eligible to participate in the employee benefit plans
maintained by the Company that are applicable to other senior management to the
full extent provided for under those plans. Upon his commencement of employment
with the Company, Executive shall be offered an indemnification agreement
comparable in form and substance to indemnification agreements entered into by
and between the Company and its executive officers.
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3. At-Will Employment. Executive and the Company understand and
acknowledge that Executive's employment with the Company constitutes "at-will"
employment. Subject to the Company's obligation to provide severance benefits as
specified herein, Executive and the Company acknowledge that this employment
relationship may be terminated at any time, upon written notice to the other
party, with or without good cause or for any or no cause, at the option either
of the Company or the Executive.
4. Compensation.
(a) Base Salary. While employed by the Company, the Company shall
pay the Executive as compensation for his services, a base salary as set by the
Compensation Committee of the Board of Directors ("Compensation Committee") (the
"Base Salary"). Such salary shall be paid periodically in accordance with normal
Company payroll practices and subject to the usual, required withholding.
Executive's Base Salary shall be reviewed annually by the Compensation Committee
of the Board for possible increases in light of Executive's performance and
competitive data.
(b) Bonuses. Executive shall be eligible to receive a cash bonus on
account of and subject to his employment of up to 100% of Base Salary, based on
a determination of the Compensation Committee of Executive's achievement in
excess of the target milestones, with lesser or no payments if the target
milestones are not achieved ("Target Bonus"). Executive's performance shall be
evaluated by the Compensation Committee based upon performance criteria
specified by the Compensation Committee. The payment of any bonus under this
Section 4(b) shall be subject to Executive's employment with the Company through
the end of the relevant evaluation period (which employment requirement does not
apply with the respect to the Target Bonus component of severance payments made
pursuant to Section 4(d)). Executive's Target Bonus amount shall be reviewed
annually by the Compensation Committee of the Board for possible increases in
light of Executive's performance and competitive data.
(c) Equity Compensation. All grants of Initial Stock Options,
Initial Restricted Stock and Additional Options (collectively "Options") are in
all respects subject to the terms, definitions and provisions of the plan, if
any, under which they were or are granted, the resolution or unanimous written
consent of the Compensation Committee in which such Options were or are granted,
and the terms of the Option agreement evidencing such grant (the "Option
Agreement"), which documents are incorporated herein by reference. To the extent
there is any conflict among the terms of the plan under which the Options were
or are granted, the resolution or unanimous written consent of the Compensation
Committee in which such Options were granted, this Agreement and the terms of
the Option Agreement, the conflict will be resolved by looking to the following
documents in this order of precedence, with the first document listed which
provides a determination of the issue being the controlling document: (1) the
nondiscretionary terms of the plan under which the Options were or are granted,
(2)
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the resolution or unanimous written consent of the Compensation Committee in
which such Options are or were granted, (3) this Agreement, and (4) the terms of
the Option Agreement evidencing such grant.
(i) Initial Stock Options. As of the Employment Commencement Date,
Executive shall be granted stock options (the "Initial Stock
Options") to purchase a total of two million (2,000,000) shares of
Company common stock with a per share exercise price equal to twelve
and eleven-sixteenths dollars ($12-11/16ths) (the" Employment
Commencement Date Stock Value"). The Initial Stock Options shall be
for a term of ten years (or shorter upon termination of employment
or consulting relationship with the Company) and, subject to
accelerated vesting as set forth elsewhere herein, shall vest as to
1/48th of the shares on each month following the Commencement Date,
so as to be 100% vested on the four year anniversary thereof,
conditioned upon Executive's continued employment or consulting
relationship with the Company as of each vesting date. The Stock
Options are intended to be "incentive stock options" as defined in
Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code"), to the maximum extent permitted by the $100,000 rule of
Code Section 422(d). Except as specified otherwise herein, these
option grants are in all respects subject to the terms, definitions
and provisions of the Company's 1989 Stock Plan and the standard
form of stock option agreement thereunder (the "Option Agreement"),
which documents are incorporated herein by reference; provided,
however, that to the extent that the Stock Options may not be
granted under the 1989 Stock Plan by virtue of the limitation on the
number of shares subject to option that may be granted thereunder in
any fiscal year of the Company, they shall be granted outside of the
1989 Stock Plan pursuant to a written option agreement containing
the same material terms and conditions as to those governing the
option granted under the 1989 Stock Plan. Any such non-Stock Plan
stock option shall be registered by the Company on Form S-8 prior to
any vesting of such option.
(ii) Initial Restricted Stock. As soon as practicable following the
Employment Commencement Date, Executive shall purchase five hundred
thousand (500,000) shares of Company common stock at a purchase
price of $0.01 per share (the "Initial Restricted Stock"). The
Initial Restricted Stock shall vest (i.e., the Company's right to
repurchase the Initial Restricted Stock at its original purchase
price shall lapse) as to one hundred twenty-five thousand (125,000)
shares subject to the Initial Restricted Stock grant each year
thereafter through May, 10, 2003, conditioned upon Executive's
continued employment or consulting relationship with the Company on
such dates. The Initial Restricted Stock shall be subject to the
terms and conditions of the Initial Restricted Stock purchase
agreement dated May 10, 1999 by and between Executive and the
Company (the "Initial Restricted Stock Purchase Agreement"), which
is
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incorporated herein by reference. The Initial Restricted Stock shall
be registered by the Company on Form S-8 prior to the date of
purchase.
(iii) Additional Options. To the extent Executive receives
additional stock options, stock appreciation rights, restricted
stock awards and stock purchase rights ("Additional Options"), such
grants will be subject to the terms, including vesting, set out in
this Agreement, the resolution or unanimous written consent of the
Compensation Committee in which such Options were granted, or the
plan pursuant to which such Options are granted, and the terms of
the Option Agreement evidencing such grant.
(d) Severance on Voluntary Termination for Good Reason or
Involuntary Termination Other Than for Cause. If Executive's employment with the
Company is voluntarily terminated by Executive for "Good Reason" (as defined
below) or is involuntarily terminated by the Company other than for "Cause" (as
defined below), then, except as provided in Sections 5 and 6 below, subject to
Executive's executing and not revoking a standard form of mutual release of
claims with terms generally used by the Company in the resolution of employment
disputes:
(i) Executive's Initial Stock Options and Initial Restricted Stock
shall immediately have their vesting accelerated to the same extent
as such Initial Stock Options and Initial Restricted Stock would
have vested had Executive remained employed by the Company for an
additional twenty-four (24) months, with such accelerated vesting
based on service-based vesting provisions only and not on achieving
any performance targets or milestones;
(ii) Executive's Additional Options granted prior to the date
Executive's employment is terminated shall immediately have their
vesting accelerated to the same extent as such Additional Options
would have vested had Executive remained employed by the Company for
an additional twenty-four (24) months, with such accelerated vesting
based on service-based vesting provisions only and not on achieving
any performance targets or milestones, unless the plan under which
the Additional Options were granted prohibits, in whole or in part,
such credit or acceleration or waiver of performance targets or
milestones, or provides for alternative vesting which cannot be
changed by the Board or the plan administrator. Notwithstanding the
foregoing, the restricted stock of 500,000 shares awarded to
Executive on February 6, 2002, grant number 034756, will not
accelerate as provided herein, but will vest pro rata based on the
number of months from the date of the grant through the date
Executive's employment is terminated;
(iii) Executive shall receive continued payments of twenty-four (24)
months Base Salary at the rate in effect on the date of termination,
twenty-four (24) months Target Bonus calculated as if there was 100%
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achievement of Executive's and Company's objectives, and excluding
any other bonuses, such as the annual bonus subject to the
discretion of the Board of Directors (unless specified otherwise in
the resolution or unanimous written consent of the Compensation
Committee in which the bonus is granted); less applicable
withholding, in accordance with the Company's standard payroll
practices, and
(iv) the Company shall pay the group health, dental and vision plan
continuation coverage premiums for Executive and his covered
dependents under Title X of the Consolidated Budget Reconciliation
Act of 1985, as amended ("COBRA") or any applicable state law that
provides for such continuation coverage for the lesser of (A)
twenty-four (24) months from the date of Executive's termination of
employment, or (B) the date upon which Executive and his covered
dependents are covered by similar plans of Executive's new employer.
If COBRA coverage and any equivalent, applicable state law coverage
terminate before the end of the applicable time period set out
above, Company will reimburse Executive an amount equal to the
monthly cost of the COBRA premium each month through the end of the
applicable time period.
(v) Any amounts owed hereunder will be reduced by any other salary,
severance, bonus or benefits to which Executive is entitled under
any applicable laws or regulations, including, but not limited to,
WARN, but only to the extent that such items are actually received
by Executive.
For the purposes of this Agreement, "Cause" means (i) a material act of
dishonesty made by Executive in connection with Executive's responsibilities as
an employee, (ii) Executive's conviction of, or plea of nolo contendere to a
felony, (iii) Executive's gross misconduct in connection with the performance of
his duties hereunder, (iv) Executive's death or permanent disability, or (v)
Executive's material breach of his obligations under this Agreement; provided,
however, that with respect to clauses (iii) and (v), such actions shall not
constitute Cause if they are cured by Executive within thirty (30) days
following delivery to Executive of a written explanation specifying the basis
for the Company's beliefs with respect to such clauses.
For the purposes of this Agreement, "Good Reason" means (i) the failure of
the Company to appoint Executive as Chief Executive Officer and director within
twelve (12) months of the Employment Commencement Date, (ii) a reduction in
Executive's Base Salary or Target Bonus, (iii) a reduction in Executive's title
(whether or not material) or a material reduction in Executive's authority or
duties, (iv) the requirement that Executive relocate more than twenty (20) miles
from the current Company headquarters, or (v) the Company's material breach of
its obligations under this Agreement; provided, however that with respect to
clause (v), such material breach shall not constitute Cause if it is cured by
the Company within thirty (30) days following delivery to the Company of a
written explanation specifying the basis for the Executive's beliefs with
respect to such clause.
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The Executive shall not be required to mitigate the value of any severance
benefits contemplated by Section 4 of this Agreement, nor shall any such
benefits be reduced by any earnings or benefits that the Executive may receive
from any other source.
(e) Termination for Cause or Voluntary Resignation Without Good
Reason. If Executive's employment with the Company is involuntarily terminated
for Cause or voluntarily terminated without Good Reason, all payments of
compensation by the Company to Executive hereunder shall immediately terminate
(except as to amounts already earned, which shall be paid) and all vesting of
the Executive's Initial Stock Options, Additional Options and Initial Restricted
Stock shall immediately cease.
5. Change of Control Vesting Acceleration. Unless the plan under which the
Additional Options were granted prohibits such credit or acceleration or waiver
of performance targets or milestones or provides for alternative vesting which
cannot be changed by the Board or the plan administrator, in the event of a
Change of Control, any remaining unvested Initial Stock Options, Additional
Options and Initial Restricted Stock held by Executive shall become 100% vested
and exercisable.
For the purposes of this Agreement, "Change of Control" is defined as:
(a) Any "person" (as such term is used in Sections 13(d) and 14(d)
of the Securities Exchange Act of 1934, as amended) becomes the "beneficial
owner" (as defined in Rule 13d-3 under said Act), directly or indirectly, of
securities of the Company representing forty-five percent (45%) or more of the
total voting power represented by the Company's then outstanding voting
securities; or
(b) A change in the composition of the Board occurring within a two
year period, as a result of which fewer than a majority of the directors are
Incumbent Directors. "Incumbent Directors" shall mean directors who either (A)
are directors of the Company as of the date hereof, or (B) are elected, or
nominated for election, to the Board with the affirmative votes of at least a
majority of the Incumbent Directors at the time of such election or nomination
(but shall not include an individual whose election or nomination is in
connection with an actual or threatened proxy contest relating to the election
of directors to the Company); or
(c) The consummation of a merger or consolidation of the Company
with any other corporation, other than a merger or consolidation which would
result in the voting securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) at least fifty-five
percent (55%) of the total voting power represented by the voting securities of
the Company or such surviving entity outstanding immediately after such merger
or consolidation; or
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(d) The consummation of the sale or disposition by the Company of
all substantially all of the Company's assets.
6. Certain Payments in Respect of Restricted Stock Awards.
(a) Based on Executive's relinquishment and waiver of any claim to
acceleration of vesting of any restricted stock awards, upon termination of his
employment for Good Reason or without Cause, or upon a Change of Control,
Company will pay Executive an amount equal to the value of the restricted stock
that was granted to Executive prior to a) the date Executive's employment is
terminated, and that remains unvested as of the date of termination; or b) the
date of the Change of Control, and that remains unvested as of the date of the
Change of Control, as applicable. (the "Applicable Date"). The cash payment will
be equal to the fair market value of the Company's stock that is subject to the
unvested portion of a restricted stock award calculated as of the Applicable
Date (reduced by the purchase price, if any, that had not been paid for such
restricted stock). Payment will occur no later than three (3) days following the
Applicable Date. As a condition of receiving such payment, and effective on its
receipt, Executive will have no further rights in such restricted stock awards
or in any other payments in relation to such restricted stock awards.
(b) The Company agrees to pay all costs and reasonable expenses,
including reasonable attorneys' fees, incurred by Executive with respect to an
action (i) brought by Executive or on Executive's behalf to obtain any payment
owed to Executive under this Section, or (ii) instituted by or in the name of
the Company to interpret any of the terms of this Agreement or the equity
incentive plan under which stock awards or options were granted, as they relate
to the Company's obligation to make a payment under this Section.
Notwithstanding the foregoing, the Company will not have an obligation to
pay costs, expenses or attorneys' fees incurred by Executive if (i) in an action
initiated by or on behalf of Executive, the court determines that each of the
material assertions made by Executive as a basis for such action was not made in
good faith or was frivolous, (ii) in an action brought by or in the name of the
Company, the court determines that each of Executive's material defenses to such
action was not made in good faith or was frivolous, or (iii) the court
determines that Executive is not otherwise entitled to be paid such costs, fees
and expenses.
It is the Company's intention that if the Company contests Executive's
right to payment under this Section, the question of Executive's right to such
payment shall be for the court to decide, and no action of the Company
(including its Board of Directors, any committee or subgroup of the Board of
Directors, or independent legal counsel) shall create a presumption that
Executive is not entitled to such payment. If the payment under this Section is
not made within three (3) days of the Applicable Date, interest will accrue on
the overdue payment at the highest rate permitted by law.
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7. Total Disability of Executive. Upon Executive's becoming permanently
and totally disabled (as defined in accordance with Internal Revenue Code
Section 22(e)(3) or its successor provision) during the term of this Agreement,
employment hereunder shall automatically terminate, all payments of compensation
by the Company to Executive hereunder shall immediately terminate (except as to
amounts already earned) and all vesting of the Executive's Initial Stock
Options, Additional Options and Initial Restricted Stock shall immediately cease
unless the plan under which the foregoing equity award was made, if any,
requires alternative vesting and exercisability treatment.
8. Death of Executive. If Executive dies while employed by the Company
pursuant to this Agreement, all payments of compensation by the Company to
Executive hereunder shall immediately terminate (except as to amounts already
earned, which shall be paid to his estate) and all vesting of the Executive's
Initial Stock Options, Additional Options and Initial Restricted Stock shall
immediately cease unless the plan under which the foregoing equity award was
made, if any, requires alternative vesting and exercisability treatment.
9. Assignment. This Agreement shall be binding upon and inure to the
benefit of (a) the heirs, beneficiaries, executors and legal representatives of
Executive upon Executive's death and (b) any successor of the Company. Any such
successor of the Company shall be deemed substituted for the Company under the
terms of this Agreement for all purposes. As used herein, "successor" shall
include any person, firm, corporation or other business entity which at any
time, whether by purchase, merger or otherwise, directly or indirectly acquires
all or substantially all of the assets or business of the Company. None of the
rights of Executive to receive any form of compensation payable pursuant to this
Agreement shall be assignable or transferable except through a testamentary
disposition or by the laws of descent and distribution upon the death of
Executive. Any attempted assignment, transfer, conveyance or other disposition
(other than as aforesaid) of any interest in the rights of Executive to receive
any form of compensation hereunder shall be null and void; provided, however,
that Executive shall be allowed to transfer vested Initial Stock and Additional
Options and Initial Restricted Stock consistently with the rules under Form S-8
for estate planning and wealth management purposes.
10. Notices. All notices, requests, demands and other communications
called for hereunder shall be in writing and shall be deemed given if (i)
delivered personally or by facsimile, (ii) one (1) day after being sent by
Federal Express or a similar commercial, overnight service, or (iii) three (3)
days after being mailed by registered or certified mail, return receipt
requested, prepaid and addressed to the parties or their successors in interest
at the following addresses, or at such other addresses as the parties may
designate by written notice in the manner aforesaid:
If to the Company: PeopleSoft, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
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Attn: General Counsel
If to Executive: Xxxxx Xxxxxx
at the last residential address known by the Company
11. Severability. In the event that any provision hereof becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement shall continue in full force and effect without said
provision.
12. Proprietary Information Agreement. Executive agrees to enter into the
Company's standard Employee Proprietary Information Agreement (the "Proprietary
Information Agreement") upon commencing employment hereunder.
13. Entire Agreement. This Agreement, the plans under which Options were
or are granted, as amended from time to time, the resolution or unanimous
written consent of the Compensation Committee in which such Options were or are
granted, and the Option Agreements, which documents are incorporated herein by
and the Initial Restricted Stock Purchase Agreement, the indemnification
agreement and employee benefit plans referred to in Section 2 and the
Proprietary Information Agreement represent the entire agreement and
understanding between the Company and Executive concerning Executive's
employment relationship with the Company, and supersede and replace any and all
prior agreements and understandings concerning Executive's employment
relationship with the Company.
14. Non-Binding Mediation, Arbitration and Equitable Relief.
(a) The parties agree to make a good faith attempt to resolve any
dispute or claim arising out of or related to this Agreement through
negotiation. In the event that any dispute or claim arising out of or related to
this Agreement is not settled by the parties hereto, the parties will attempt in
good faith to resolve such dispute or claim by non-binding mediation in Contra
Costa County, California to be conducted by one mediator belonging to the
American Arbitration Association. The mediation shall be held within thirty (30)
days of the request therefor. The costs of the mediation shall be borne equally
by the parties to the mediation.
(b) Except as provided in Section 13(e) below, Executive and the
Company agree that, to the extent permitted by law, any dispute or controversy
arising out of, relating to, or in connection with this Agreement, or the
interpretation, validity, construction, performance, breach, or termination
thereof which has not been resolved by negotiation or mediation as set forth in
Section 13(a) shall be finally settled by binding arbitration to be held in
Contra Costa County, California, in accordance wit the National Rules for the
Resolution of Employment Disputes then in effect of the American Arbitration
Association (the "Rules"). The arbitrator may grant injunctions or other relief
in such dispute or controversy. The decision of the arbitrator shall be
confidential, final, conclusive and binding on the parties to the arbitration.
Judgment
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may be entered under a protective order on the arbitrator's decision in any
court having jurisdiction.
(c) The arbitrator shall apply California law to the merits or any
dispute or claim, without reference to rules of conflict of law. The arbitration
proceedings shall be governed by federal arbitration law and by the Rules,
without reference to state arbitration law. Executive hereby expressly consents
to the personal jurisdiction of the state and federal courts located in
California for any action or proceeding arising from or relating to this
Agreement and/or relating to any arbitration in which the parties are
participants.
(d) Executive understands that nothing in Section 13 modifies
Executive's at-will status. Either the Company or Executive can terminate the
employment relationship at any time, with or without cause.
(e) EXECUTIVE HAS READ AND UNDERSTANDS SECTION 13, WHICH DISCUSSES
ARBITRATION. EXECUTIVE UNDERSTANDS THAT BY SIGNING THIS AGREEMENT, EXECUTIVE
AGREES, TO THE EXTENT PERMITTED BY LAW. TO SUBMIT ANY FUTURE CLAIMS ARISING OUT
OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, OR THE INTERPRETATION,
VALIDITY, CONSTRUCTION, PERFORMANCE, BREACH, OR TERMINATION THEREOF TO BINDING
ARBITRATION, AND THAT THIS ARBITRATION CLAUSE CONSTITUTES A WAIVER OF
EXECUTIVE'S RIGHT TO A JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES
RELATING TO ALL ASPECTS OF THE EMPLOYER/EXECUTIVE RELATIONSHIP, INCLUDING BUT
NOT LIMITED TO, THE FOLLOWING CLAIMS:
(i) ANY AND ALL CLAIMS FOR WRONGFUL DISCHARGE OF EMPLOYMENT;
BREACH OF CONTRACT, BOTH EXPRESS AND IMPLIED; BREACH OF THE COVENANT OF GOOD
FAITH AND FAIR DEALING, BOTH EXPRESS AND IMPLIED; NEGLIGENT OR INTENTIONAL
INFLICTION OF EMOTIONAL DISTRESS; NEGLIGENT OR INTENTIONAL MISREPRESENTATION;
NEGLIGENT OR INTENTIONAL INTERFERENCE WITH CONTRACT OR PROSPECTIVE ECONOMIC
ADVANTAGE; AND DEFAMATION.
(ii) ANY AND ALL CLAIMS FOR VIOLATION OF ANY FEDERAL STATE OR
MUNICIPAL STATUTE, INCLUDING, BUT NOT LIMITED TO, TITLE VII OF THE CIVIL RIGHTS
ACT OF 1964, THE CIVIL RIGHTS ACT OF 1991, THE AGE DISCRIMINATION IN EMPLOYMENT
ACT OF 1967, THE AMERICANS WITH DISABILITIES ACT OF 1990, THE FAIR LABOR
STANDARDS ACT, THE CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT, AND LABOR CODE
SECTION 201, et seq;
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(iii) ANY AND ALL CLAIMS ARISING OUT OF ANY OTHER LAWS AND
REGULATIONS RELATING TO EMPLOYMENT OR EMPLOYMENT DISCRIMINATION.
15. Consultant & Legal Fee Reimbursement. The Company agrees to directly
pay Executive's reasonable consultant and legal fees associated with entering
into this Agreement up to $10,000 upon receiving invoices for such services.
16. Golden Parachute Excise Taxes. In the event that the benefits provided
for in this Agreement or otherwise payable to the Executive constitute
"parachute payments" within the meaning of Section 280G of the Code and will be
subject to the excise tax imposed by Section 4999 of the Code, then the
Executive shall receive a payment from the Company sufficient to pay the excise
tax and federal and state income and employment taxes arising from the payments
made by the Company to executive pursuant to this sentence; provided, however,
that in no event shall the Company be obligated to pay Executive more than one
million dollars ($1,000,000) pursuant to this Section 16. Unless the Company and
the Executive otherwise agree in writing, the determination of Executive's
excise tax liability and the amount required to be paid under this Section 16
shall be made in writing by the independent auditors who are primarily used by
the Company immediately prior to the Change of Control (the "Accountants"). For
purposes of making the calculations required by this Section 16, the Accountants
may make reasonable assumptions and approximations concerning applicable taxes
and may rely on reasonable, good faith interpretations concerning the
application of Sections 280G and 4999 of the Code. The Company and the Executive
shall furnish to the Accountants such information and documents as the
Accountants may reasonably request in order to make a determination under this
Section. The Company shall bear all costs the Accountants may reasonably incur
in connection with any calculations contemplated by this Section 16.
17. No Oral Modification, Cancellation or Discharge. This Agreement may
only be amended, canceled or discharged in writing signed by Executive and the
Company's General Counsel and a member of the Compensation Committee of the
Board of Directors.
18. Withholding. The Company shall be entitled to withhold, or cause to be
withheld, from payment any amount of withholding taxes required by law with
respect to payments made to Executive in connection with his employment
hereunder.
19. Governing Law. This Agreement shall be governed by the laws of the
State of California.
20. Effective Date. This Agreement is effective upon the Employment
Commencement Date.
21. Acknowledgement. Executive acknowledges that he has had the
opportunity to discuss this matter with and obtain advice from his private
attorney, has
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had sufficient time to, and has carefully read and fully understands all the
provisions of this Agreement, and is knowingly and voluntarily entering into
this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement.
PEOPLESOFT, INC.
/s/ Xxxxx Xxxxxxxx
--------------------------------------
Xxxxx Xxxxxxxx
Chairman of the Board of Directors
EXECUTIVE
/s/ Xxxxx Xxxxxx
--------------------------------------
Xxxxx Xxxxxx
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