Exhibit 10.1
Protection of Sensitive Information, Noncompetition and Nonsolicitation
Agreement
Executive is employed by Dell Inc., a Delaware corporation, and/or its
affiliates ("Dell"), in a position of trust and confidence. Dell expects
Executive to play a critical role in Dell's future business operations and
desires to provide Executive with the strategic tools and commitments necessary
to enable Executive to help Dell achieve its long-term goals. Likewise, Dell
seeks to protect its confidential and proprietary information, trade secrets and
good will. Therefore, the Parties have agreed as follows:
1. Dell agrees to provide Executive Sensitive Information (as that term is
defined below). Although Executive's employment remains at-will, if Executive's
employment is terminated by Dell without Cause Dell will pay Executive an amount
equal to six months base salary as severance, which Executive will receive upon
Executive's execution of a Severance Agreement and Release in a form acceptable
to Dell. Dell will have no obligation to offer or pay a severance to any
Executive who resigns from Dell for any reason or is terminated by Dell for
Cause, as defined below, and all provisions of this Agreement, including
paragraph 4a, will remain in full force and effect with respect to any such
Executive.
For purposes of this agreement, "Cause" means: (a) a violation of Executive's
obligations regarding confidentiality, proprietary information and trade
secrets; (b) an act or omission by Executive resulting in Executive being
charged with a criminal offense involving moral turpitude, dishonesty or breach
of trust; (c) conduct by Executive which constitutes a felony or a plea of
guilty or nolo contendere with respect to a felony under applicable law; (d)
conduct by Executive that constitutes gross neglect; (e) Executive's
insubordination or refusal to implement directives of Executive's manager; (f)
Executive's breach of a fiduciary duty to Dell, its affiliates or their
shareholders; (g) Executive's failure to satisfactorily perform Executive's job,
(h) Executive's chronic absenteeism; (i) Dell's Senior Management's
determination that Executive violated Dell's Code of Conduct or committed other
acts of misconduct; or (j) Dell's Senior Management's determination that
Executive has engaged in a violation or potential violation of state or federal
law relating to the workplace environment (including, without limitation, laws
relating to sexual harassment or age, sex, or other prohibited discrimination).
2. "Sensitive Information" means that subset of Confidential Information (as
that term is defined in Executive's Employment Agreement with Dell) that is not
generally disclosed to non-management employees of Dell. Sensitive Information
may include:
a. Technical information of Dell, its affiliates, its customers or
other third parties that is in use, planned, or under development, such as but
not limited to: manufacturing and/or research processes or strategies (including
design rules, device characteristics, process flow, manufacturing capabilities
and yields); computer product, process and/or devices (including device
specification, system architectures, logic designs, circuit implementations);
software product (including operating system adaptations or enhancements,
language compilers, interpreters, translators, design and evaluation tools and
application programs); and any other databases, methods, know-how, formulae,
compositions, technological data, technological prototypes, processes,
discoveries, machines, inventions and similar items;
b. Business information of Dell, its affiliates, its customers or
other third parties, such as but not limited to: actual and anticipated
relationships between Dell and other companies; financial information (including
sales levels, pricing, profit levels and other unpublished financial data);
global procurement processes, strategies or information; information relating to
customer or vendor relationships (including performance requirements,
development and delivery schedules, device and/or product pricing and/or
quantities, customer lists, customer preferences, financial information, credit
information; and similar items;
c. Personnel information of Dell and its affiliates, such as but not
limited to: information relating to employees of Dell (including information
related to staffing, performance, skills, qualifications, abilities and
compensation); key talent information; scaling calls; organizational human
resource planning information; and similar items; and
d. Information relating to future plans of Dell, its affiliates, its
customers or other third parties, such as but not limited to: marketing
strategies; new product research; pending projects and proposals; proprietary
production processes; research and development strategies; and similar items.
3. Executive agrees not to use, publish, misappropriate, or disclose any
Sensitive Information, during or after Executive's employment, except as
required in the performance of Executive's duties for Dell or as expressly
authorized in writing by Dell.
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4. To protect Sensitive Information, Executive agrees to the following
restrictive covenants:
a. While Executive is employed by Dell and for the twelve-month period
immediately following the end of Executive's employment with Dell, Executive
will not, in any geographic region for which Executive had direct or indirect
responsibility on behalf of Dell or in any geographic region for which Executive
had Sensitive Information, perform services for a Direct Competitor, whether as
an employee, consultant, principle, advisor, board member or any other capacity,
that are substantially similar to the duties Executive performed for Dell at any
time during the last 24 months of Executive's employment with Dell.
b. While Executive is employed by Dell and for the twelve-month period
immediately following the end of Executive's employment with Dell, Executive
will not, directly or indirectly, solicit (or assist another in soliciting) (i)
any of Dell's customers or prospective customers with whom Executive had contact
on behalf of Dell during the last twelve months of Executive's employment with
Dell; or (ii) any of Dell's customers or prospective customers about whom
Executive had any Sensitive Information during the last twelve months of
Executive's employment with Dell.
c. While Executive is employed by Dell and for the twelve-month period
immediately following the end of Executive's employment with Dell, Executive
will not, encourage (or assist another in encouraging) any supplier, business
partner, or vendor of Dell with whom Executive had any contact on behalf of Dell
within the last 24 months of Executive's employment or about whom Executive had
any Sensitive Information to terminate or diminish its relationship with Dell.
d. While Executive is employed by Dell and for the twelve-month period
immediately following the end of Executive's employment with Dell, Executive
will not, except as required to perform Executive's duties for Dell, directly or
indirectly solicit (or assist another in soliciting) for employment, consulting,
or other service engagement any employee, contractor, or consultant of Dell or
any person who was an employee, contractor, or consultant of Dell at any time
during the last twelve months of Executive's employment with Dell.
e. While Executive is employed by Dell and for the twelve-month period
immediately following the end of Executive's employment with Dell, Executive
will not, except as required to perform Executive's duties for Dell, directly or
indirectly advise, assist, attempt to influence or otherwise induce or persuade
(or assist another in advising, attempting to influence or otherwise inducing or
persuading) any person employed by Dell to end his or her employment
relationship with Dell.
"Direct Competitor" means any entity, or other business concern that offers or
plans to offer products or services that are materially competitive with any of
the products or services being manufactured, offered, marketed, or are actively
developed by Dell as of the date of Executive's execution of this Agreement or
the date Executive's employment with Dell ends, whichever is later. By way of
illustration, and not by limitation, at the time of execution of this Agreement,
the following companies are currently Direct Competitors: Hewlett-Packard,
Lenovo, IBM, Gateway, Apple, Acer, and CDW. Executive understands and agrees
that the foregoing list of Direct Competitors represents an example of companies
which compete with Dell in a material way, and are thus considered Dell Direct
Competitors, and that other entities may be considered or become Dell Direct
Competitors.
5. Executive represents and agrees that, following the end of Executive's
employment with Dell, Executive will be willing and able to engage in employment
not prohibited by this Agreement. If Executive subsequently desires to pursue an
opportunity prohibited by the terms of this Agreement, Executive agrees to make
written request to Dell's Human Resources Senior Vice President for a
modification of the restrictions contained in this Agreement prior to pursuing
the opportunity, such request to include the name and address of the entity or
business concern involved (if any) and the title, nature, and duties of the
activity Executive wishes to pursue.
6. Dell and Executive agree and believe that the terms of this Agreement are
reasonable and do not impose a greater restraint than necessary to protect
Dell's Sensitive Information and Dell's other legitimate business interests. If
a court of competent jurisdiction holds this not to be the case, Dell and
Executive agree that the terms of this Agreement are hereby automatically
reformed and rewritten to the extent necessary to make the Agreement valid and
enforceable. Dell and Executive also agree to request that the Court not
invalidate or ignore the terms of this Agreement but instead to honor this
provision by reforming or modifying any overbroad or otherwise invalid terms to
the extent needed to render the terms valid and enforceable and then enforcing
the Agreement as reformed or modified. It is the express intent of Dell and
Executive that the terms of this Agreement be enforced to the full extent
permitted by law.
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7. Executive acknowledges and agrees that a violation of this Agreement would
cause irreparable harm to Dell, and Executive agrees that Dell will be entitled
to an injunction restraining any violation or further violation of such
provisions. In this connection, Executive covenants that Executive will not
assert in any proceeding that any given violation or further violation of the
covenants contained in this Agreement: (i) will not result in irreparable harm
to Dell; or (ii) could be remedied adequately at law. Dell's right to injunctive
relief shall be cumulative and in addition to any other remedies provided by law
or equity.
8. This agreement supplements Executive's other agreements regarding the
protection of Dell's Confidential Information. No waiver of this Agreement will
be effective unless it is in writing and signed by Dell's Chief Executive
Officer. This Agreement may not be superseded by any other agreement between
Executive and Dell unless such agreement specifically and expressly states that
it is intended to supersede the Protection of Sensitive Information,
Noncompetition and Nonsolicitation Agreement between Executive and Dell.
9. This Agreement will not be effective until you have acknowledged and agreed
to the terms and conditions set forth herein by executing this Agreement in the
space provided below and returning it by faxing a signed copy of the Agreement
to 000-000-0000.
I have carefully read this Agreement. I understand and accept its terms. I agree
that I will continue to be bound by the provisions of this Agreement after my
employment with Dell has ended.
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Signature Dell Executive Printed Name
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Date
Dell Inc.
By:
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Xxxxxxxx XxXxxxxx, VP, Global HR Operations
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