EXHIBIT (d)(4)
NONCOMPETITION AGREEMENT
THIS NONCOMPETITION AGREEMENT (this "AGREEMENT") is entered into as of
October 8, 2003, by and between Emulex Corporation, a California corporation
(the "COMPANY") and Xxxxx X. XxXxxxxx ("EXECUTIVE"), a shareholder and executive
officer of Vixel Corporation, a Delaware Corporation ("VIXEL").
RECITALS
A. Vixel and the Company are engaged in the business of providing
technologies and products for the storage networking infrastructure business,
including HBAs, fabric switches and storage networking semiconductor components
that are embedded in HBAs, fabric switches and storage appliances (including,
but not limited to, storage arrays, network attached storage, tape libraries and
virtualization appliances) that are contained in existing products of or
products under development by either the Company or Vixel (the "BUSINESS");
B. Executive is a stockholder and an executive officer of Vixel
and accordingly has acquired confidential and proprietary information relating
to the Business and the operation of Vixel;
C. Executive's covenant not to compete, as reflected in this
Agreement, is an essential part of the transactions described in the Agreement
and Plan of Merger, dated as of October 8, 2003 (the "MERGER AGREEMENT"), by and
among Emulex Corporation, a Delaware corporation and the Company's parent
corporation ("PARENT"), Vixel and Aviary Acquisition Corp., a Delaware
corporation and a wholly-owned subsidiary of Parent (the "SUB"), pursuant to
which, among other things, the Sub will be merged with and into Vixel (the
"MERGER");
D. Executive holds a substantial number of stock options of Vixel
that will continue to vest and shall be exercisable for shares of common stock
of the Company following the Merger and therefore has a material economic
interest in the consummation of the Merger.
E. In order to protect the goodwill related to the Business and
as a condition of, and an inducement to, the Company entering into the Merger
Agreement, Executive has agreed to the noncompetition and nonsolicitation
covenants and the confidentiality agreements provided in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and to induce the
Company to consummate the transactions contemplated by the Merger Agreement, the
receipt and sufficiency of which are hereby acknowledged, and with the knowledge
that no other good or valuable consideration has been offered to or received by
Executive in connection with the execution of this Agreement, Executive hereby
covenants and agrees as follows:
1. Effectiveness of Agreement. This Agreement is conditioned upon the
occurrence of the (i) Closing (as that term is defined in the Merger Agreement)
and (ii) the offer of employment to Executive by the Company or any of its
affiliates following the Closing ("EMPLOYMENT COMMENCEMENT"). This Agreement
shall be null and void ab initio should the Merger not be consummated for any
reason or should the Employment Commencement not occur. This Agreement will
terminate in the event of and concurrent with a termination of the Merger
Agreement in accordance with its terms.
2. Noncompetition.
(a) Executive and the Company agree that due to the
nature of Executive's association with Vixel, Executive has confidential and
proprietary information relating to the business and operations of Vixel and the
Company (all references to the "Company" hereinafter shall include Vixel, which
shall be the surviving corporation in the Merger). Executive acknowledges that
such information is of extreme importance to the business of the Company and
will continue to be so after the Merger and that disclosure of such confidential
information to others or the unauthorized use of such information by others
would cause substantial loss and harm to the Company. Executive and the Company
also agree that Executive will continue to acquire, and will assist in
developing, confidential and proprietary information relating to the Business
following the Merger by reason of his employment with the Company.
(b) Executive and the Company further agree that the
market for the Business is intensely competitive and that the Company engages in
the Business throughout the United States, Europe, Scandinavia, Japan, China,
Taiwan, Thailand, South Korea and Singapore.
(c) (i) Subject to subparagraph (ii) below, during the
period commencing at the Effective Time of the Merger and ending one
(1) year following the termination of Executive's employment with the
Company (including, without limitation, voluntary resignation by such
Executive or termination at the request of the Company) (the
"RESTRICTED PERIOD"), Executive agrees that he shall not, anywhere in
the Business Area (as defined below), engage, directly or indirectly,
in any in any capacity whatsoever (whether as an officer, director,
stockholder, owner, proprietor, partner, member, co-owner, investor,
employee, trustee, manager, consultant, independent contractor,
co-venturer, financier, agent, representative or otherwise), in a
Competing Business (as defined below), or otherwise hold any interest
in a Competing Business; provided, however, that Executive may own,
directly or indirectly, solely as a passive investment, securities of
any entity traded on any national securities exchange if Executive is
not a controlling person of, or a member of a group which controls,
such entity and does not, directly or indirectly, "beneficially own"
(as defined in Rule 13d-3 of the Securities Exchange Act of 1934, as
amended) 1.0% or more of any class of securities of such Competing
Business.
(ii) In the event that the employment of Executive is
terminated by the Company without Cause (as defined herein) within one
(1) year of the Effective Time, then the Restricted Period shall
terminate on the expiration of severance payments to Executive.
(d) "COMPETING BUSINESS" as used herein, means any
individual, corporation, partnership, limited partnership, limited liability
company, trust (business or otherwise), institution, foundation, pool, plan or
other entity or organization (other than the Company) which engages or proposes
to engage in the Business.
(e) "BUSINESS AREA" as used herein, means each state
within the United States of America as well as each country, state, province and
territory in Europe, Scandinavia, Japan, China, Taiwan, Thailand, South Korea
and Singapore.
(f) "CAUSE" as used herein shall mean: (i) any
misappropriation or embezzlement by Executive of the property of the Company or
any of its affiliates or other act of fraud or material misconduct by Executive
against the Company or any of its affiliates; (ii) Executive's conviction of or
plea of guilty or nolo contendere to a crime constituting a felony or any
criminal act involving moral turpitude; (iii) a breach by Executive of any
provision of this Agreement; (iv) the failure, refusal or neglect by Executive
to perform faithfully the duties and obligations customary to his office; (v)
the habitual non-performance or incompetent performance by Executive of the
duties or responsibilities customary to his office; (vi) misconduct by
Executive, including insubordination, in respect of the duties or obligations
customary to his office; and (vii) any intentional or grossly negligent act by
Executive having the effect of materially injuring the business or reputation of
the Company or any of its affiliates. No activities covered by item (iv), (v)
and (vi) will be deemed to be "Cause" unless the Company has notified Executive
of the prohibited activity in writing and Executive has failed to cease such
activity within thirty (30) days.
3. Nonsolicitation of the Purchaser and Company Employees. During
the Restricted Period, Executive shall not, without the prior written consent of
the Company, directly or indirectly solicit, request, cause or induce any person
who is at the time an employee of or a consultant of the Company to leave the
employ of or otherwise terminate such person's relationship with the Company.
4. Nonsolicitation of Customers or Suppliers. During the
Restricted Period, Executive shall not, directly or indirectly: (i) solicit,
induce or attempt to induce any customer, client or supplier of the Company to
cease doing business in whole or in part with the Company; or (ii) attempt to
limit or interfere with any business engagement or relationship existing between
the Company and any third party.
5. Confidentiality. Executive agrees that, upon the Closing, he
will execute the Company's standard proprietary information and invention
assignment agreement (the "Employee Invention and Non-Disclosure Agreement"),
the form of which is attached as Annex A, and will abide by all of its terms.
6. Injunctive Relief. The parties agree that the remedy at law
for any breach of this Agreement is and will be inadequate, and in the event of
a breach or threatened breach by Executive of any of the provisions of this
Agreement, the Company shall be entitled to seek an injunction restraining
Executive from the conduct which would constitute a breach of this Agreement.
Nothing herein contained shall be construed as prohibiting the Company from
pursuing any other remedies available to it or them for such breach or
threatened breach, including, without limitation, the recovery of damages from
Executive.
7. Reasonableness and Enforceability of Covenants. The parties
expressly agree that the character, duration and geographical scope of this
Agreement are reasonable in light of the circumstances as they exist on the date
upon which this Agreement has been executed, including, but not limited to,
Executive's position of confidence and trust as an executive officer of Vixel as
well as his employment with the Company after the Closing. Moreover, if any
court determines that any of the covenants and agreements contained herein, or
any part thereof, is unenforceable because of the character, duration or
geographic scope of such provision, such court shall have the power to reduce
the duration or scope of such provision, as the case may be, and, in its reduced
form, such provision shall then be enforceable to the maximum extent permitted
by applicable law.
8. Severability. If any of the provisions of this Agreement shall
otherwise contravene or be invalid under the laws of any state, country or other
jurisdiction where this Agreement is applicable but for such contravention or
invalidity, such contravention or invalidity shall not invalidate all of the
provisions of this Agreement but rather it shall be construed, insofar as the
laws of that state, country or jurisdiction are concerned, as not containing the
provision or provisions contravening or invalid under the laws of that state or
jurisdiction, and the rights and obligations created hereby shall be construed
and enforced accordingly.
9. Construction. This Agreement shall be construed and enforced
in accordance with and governed by the laws of the State of Washington, without
regard to principles of conflicts or choice of laws.
10. Amendments and Waivers. This Agreement may be modified only by
a written instrument duly executed by each party hereto. No breach of any
covenant, agreement, warranty or representation shall be deemed waived unless
expressly waived in writing by the party who might assert such breach. No waiver
of any right hereunder shall operate as a waiver of any other right or of the
same or a similar right on another occasion.
11. Entire Agreement. This Agreement, together with the Merger
Agreement and the documents, instruments and other agreements contemplated by or
referred to therein and the Employee Invention and Non-Disclosure Agreement,
contains the entire understanding of the parties relating to the subject matter
hereof, supersedes all prior and contemporaneous agreements and understandings
relating to the subject matter hereof and shall not be amended except by a
written instrument signed by each of the parties hereto.
12. Counterparts. This Agreement may be executed by the parties in
separate counterparts, each of which, when so executed and delivered, shall be
an original, but all of which, when taken as a whole, shall constitute one and
the same instrument.
13. Section Headings. The headings of each section, subsection or
other subdivision of this Agreement are for reference only and shall not limit
or control the meaning thereof.
14. Assignment. Neither this Agreement nor any right, remedy,
obligation or liability arising hereunder or by reason hereof nor any of the
documents executed in connection herewith may be assigned by any party without
the consent of the other parties; provided, however, that the Company may assign
its rights hereunder, without the consent of Executive, to any entity that
acquires or succeeds to the Business.
15. Further Assurances. From time to time, at the Company's
request and without further consideration, Executive shall execute and deliver
such additional documents and take all such further action as reasonably
requested by the Company to be necessary or desirable to make effective, in the
most expeditious manner possible, the terms of this Agreement.
16. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed given if delivered personally or two business
days after being mailed by registered or certified mail (return receipt
requested) to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice):
(a) if to the Company:
Emulex Corporation
0000 Xxxxxx Xxxxxxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxx
Vice President, General Counsel
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
(b) if to Executive:
c/o Vixel Corporation
00000 Xxxxx Xxxxx Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
17. Defined Terms. Capitalized terms not otherwise defined herein
shall have the meanings given to them in the Merger Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Noncompetition Agreement as of the date first above written.
EMULEX CORPORATION
By: /s/ XXXX XXXXXX
-------------------------------------------
Name: Xxxx Xxxxxx
Title: Chairman of the Board and
Chief Executive Officer
/s/ XXXXX X. XxXXXXXX
-------------------------------------------
Xxxxx X. XxXxxxxx
[SIGNATURE PAGE TO NONCOMPETITION AGREEMENT]
ANNEX A
[EMULEX LOGO]
EMPLOYEE CREATION AND NON-DISCLOSURE AGREEMENT
This Employee Creation and Non-Disclosure Agreement (this "Agreement")
is entered into between Emulex Corporation ("Emulex") and the undersigned
Employee. In consideration of employment or continued employment by Emulex and
the mutual promises contained in this Agreement, Employee and Emulex agree as
follows:
Definition of Terms.
1.1 Creation. "Creation" means every idea, concept,
invention, device, design, apparatus, machine, practice, process, method,
product, composition of matter, improvement, formula, algorithm, literary or
graphical or audiovisual work or sound recording, mask work, or computer program
of any kind, whether or not subject to patent, copyright, mask work right, or
similar protection.
1.2 Create. "Create" means invent, develop, devise,
conceive, discover, create, first reduce to practice, write, or fix in a
tangible medium of expression.
1.3 Confidential Information. "Confidential Information"
means all Creations, data, information, know-how, process parameters,
fabrication techniques, technical plans, documentation, customer lists, price
lists, supplier lists, business plans, marketing plans, financial information,
and the like, in whatever form or medium, and whether or not designated or
marked "Confidential" or the like, which: (1) relate to the business of Emulex,
and (a) have not been disclosed by Emulex to, or (b) are not generally known to,
the general public or to Emulex's trade or industry; or (2) are received by
Emulex from a third party under an obligation of confidentiality to the third
party.
1.4 Emulex. "Emulex" includes Emulex Corporation, a
Delaware corporation, all of its subsidiaries, and all joint ventures and
partnerships of which such corporation and/or any of such subsidiaries is a
member, partner, or participant.
Confidential Information.
2.1 Acknowledgement by Employee. Employee acknowledges
that during Employee's employment with Emulex, Employee may be given access to,
become acquainted with, or develop Confidential Information.
2.2 No Use or Disclosure. Employee shall not use or
disclose (directly or indirectly) any Confidential Information (whether or not
created or developed by Employee) at any time or in any manner, except as
required in the course of employment with Emulex. Employee acknowledges that,
except as set forth on an exhibit attached by Employee to this Agreement,
Employee is not a party to any agreement with any other entity which either (1)
restricts Employee's use or disclosure of any information gained or learned by
Employee from the entity or while employed by the entity, or (2) otherwise
relates to Employee's use or disclosure of any confidential information or trade
secrets of the entity. Employee represents that no entity has asserted or is
asserting that Employee has breached any of the terms or provisions of any of
the agreements listed on the attached exhibit. The obligations of this Paragraph
are continuing and survive the termination of Employee's employment with Emulex.
2.3 Restriction on Documents and Equipment. All
Confidential Information, documents, and equipment relating to the business of
Emulex, whether prepared by Employee or otherwise coming into Employee's
possession, are the exclusive property of Emulex, and must not be removed from
any of its premises except as required in the course of employment with Emulex.
All such Confidential Information, documents, and equipment
shall be promptly returned by Employee to Emulex upon the request of Emulex, and
on any termination of Employee's employment with Emulex.
2.4 No Disclosure or Use from Others. Employee shall not
disclose to Emulex or use on behalf of Emulex any confidential information or
trade secrets obtained from other entities, and shall not bring confidential
information or trade secrets of other entities onto Emulex's premises.
Creations.
3.1 Disclosure and Assignment of Creations. Employee
shall promptly inform and disclose to Emulex all Creations which Employee
Creates (either alone or with others) while in the employment of Emulex, if the
Creations:
(1) relate, at the time Created, to the business of
Emulex or to any actual or demonstrably anticipated research
or development work of Emulex; or
(2) result from any work performed by Employee for
Emulex; or
(3) were Created utilizing any of Emulex's equipment,
supplies, facilities, time, or Confidential Information.
ALL OF THE ABOVE-DESCRIBED CREATIONS THAT ARE SUBJECT TO COPYRIGHT OR MASK WORK
PROTECTION ARE EXPLICITLY CONSIDERED BY EMPLOYEE AND EMULEX TO BE WORKS MADE FOR
HIRE TO THE EXTENT PERMITTED BY LAW. ALL OF THE ABOVE-DESCRIBED CREATIONS
OTHERWISE ARE HEREBY ASSIGNED BY EMPLOYEE TO EMULEX, AND ARE THE EXCLUSIVE
PROPERTY OF EMULEX.
3.2 Governmental Rights. Employee acknowledges that
Emulex has entered or may enter into agreements with agencies of the United
States government, and that Emulex may be subject to laws and regulations which
impose obligations, restrictions, and limitations on Emulex with respect to
Creations which may be acquired by Emulex or which may be conceived or developed
by employees, consultants, and other agents rendering services to Emulex.
Employee shall be bound by all such obligations, restrictions, and limitations
applicable to any Creation of Employee. Employee also shall take any and all
further action which may be required to discharge such obligations and to comply
with such restrictions and limitations. Employee further shall assign to Emulex
all of Employee's rights in any Creation of Employee if Emulex is required to
grant those rights to the United States government or any agencies of the United
States government.
3.3 Employee's Assistance. Employee agrees to assist
Emulex in obtaining and/or maintaining patents, copyrights, mask work rights,
and similar rights to any Creations assigned by Employee to Emulex if Emulex, in
its sole discretion, requests such assistance. Employee shall sign all documents
and do all other things deemed necessary by Emulex, at Emulex's expense, to
obtain and/or maintain such rights, to assign them to Emulex, to defend them
from invalidation, and to protect them against infringement by other parties.
The obligations of this Paragraph are continuing and survive the termination of
Employee's employment with Emulex. If Emulex requires Employee's assistance
under this Paragraph after termination of employment with Emulex, Employee will
be compensated for time actually spent in providing assistance at Employee's
hourly pay rate at the date of Employee's termination.
3.4 Appointment of Agent. Employee irrevocably appoints
the President of Emulex to act as Employee's agent and attorney-in-fact to
perform all acts necessary to obtain and/or maintain patents, copyrights, mask
work rights, and similar rights, to any Creations assigned by Employee to Emulex
under this Agreement if (1) Employee refuses to perform those acts, or (2) is
unavailable, within the meaning of any applicable laws. Employee acknowledges
that the grant of the foregoing power of attorney is coupled with an interest
and shall survive the death or disability of Employee.
3.5 Further Disclosure. Employee shall promptly disclose
to Emulex, in confidence, (1) all Creations of any kind which Employee Creates
while employed by Emulex, and (2) all patent applications filed by
Employee within one (1) year after termination of employment with Emulex.
Employee agrees that any application for a patent, copyright registration, mask
work registration, or similar right filed within one (1) year after termination
of employment with Emulex shall be presumed to relate to a Creation of Employee
Created during employment at Emulex, unless Employee can prove otherwise.
3.6 Records. Employee shall keep complete, accurate, and
authentic information and records on all Creations in the manner and form
requested by Emulex. The information and records, and all copies of them, shall
be the exclusive property of Emulex. Employee shall promptly surrender the
information and records upon the request of Emulex, and on any termination of
Employee's employment with Emulex.
3.7 Compliance with Labor Code. THIS AGREEMENT DOES NOT
APPLY TO ANY CREATIONS WHICH QUALIFY FULLY UNDER THE PROVISIONS OF SECTION 2870
OF THE CALIFORNIA LABOR CODE OR ANY SIMILAR APPLICABLE LAW. FOR EMPLOYEE'S
INFORMATION, THE CURRENT TEXT OF SECTION 2870 IS REPRODUCED BELOW:
"(a) Any provision in an employment agreement which provides that an
employee shall assign, or offer to assign, any of his or her rights in an
invention to his or her employer shall not apply to an invention that the
employee developed entirely on his or her own time without using the employer's
equipment, supplies, facilities, or trade secret information except for those
inventions that either:
(1) Relate at the time of conception or reduction to practice
of the invention to the employer's business, or actual or demonstrably
anticipated research or development of the employer; or
(2) Result from any work performed by the employee for the
employer.
(b) To the extent a provision in an employment agreement purports to
require an employee to assign an invention otherwise excluded from being
required to be assigned under subdivision (a), the provision is against the
public policy of this state and is unenforceable."
Restrictions on Employee.
4.1 No Conflicting Competition. While employed by Emulex,
Employee shall not in any manner (whether as an employee, consultant, or
otherwise) perform services for, or have an ownership interest in (other than
less than one percent (1%) of a publicly-held company), any entity that competes
with Emulex or any employment or business which is otherwise in conflict with
Employee's employment relationship with Emulex.
4.2 No Competitive Planning. While employed by Emulex,
Employee shall not undertake any planning for any outside business activity (1)
competitive with the work which Employee performs for Emulex, or (2) competitive
with the profit unit of Emulex for which Employee works.
4.3 No Hiring of Other Employees. While employed by
Emulex, and for 1 year afterward, Employee shall not employ, attempt to employ,
or assist or encourage others in employing or attempting to employ (whether as
an employee, consultant, or otherwise), any of Emulex's other employees who work
in any area in which Employee has been significantly engaged on behalf of
Emulex.
4.4 No Use of Confidential Information. While employed by
Emulex, and for 1 year afterward, Employee shall not enter into any other
employment (whether as an employee, consultant, or otherwise) in which the
duties of such other employment would require Employee to disclose or use any
Confidential Information.
4.5 No Conflicting Agreements. Employee represents that
Employee has no agreements with or obligations to any other party that would
interfere with Employee's compliance with this Agreement.
4.6 Subsequent Employment. Employee agrees that Emulex
may notify anyone as to the existence and provisions of this Agreement.
Pre-existing Creations.
5.1 Representation of Coverage and Grant of License.
Except for those Creations (if any) specifically reserved by Employee in an
attachment to this Agreement, Employee represents that there are no Creations
owned wholly or in part by Employee, or controlled directly or indirectly by
Employee, which Employee considers to be reserved and excluded from the scope of
this Agreement. Employee grants to Emulex a royalty-free, non-exclusive,
worldwide, irrevocable license on any and all non-reserved Creations of
Employee.
5.2 Preservation of Confidence. In order to preserve
Employee's proprietary rights in any unpatented or unpublished reserved
Creations, Emulex shall keep in confidence all information provided by Employee
pertaining to any reserved Creation, unless the information: (1) is already
known to or in the possession of Emulex; (2) is or becomes publicly known
through no wrongful act of Emulex; (3) is rightfully received by Emulex from a
third party without breach of any obligation to Employee; (4) is approved for
release by written authorization of Employee; (5) is distributed or made
available to others by Employee without restriction as to use or disclosure; or
(6) is developed independently by Emulex through persons not involved with
information received by Emulex from Employee.
5.3 License from Use. Notwithstanding the reservation of
a Creation under Paragraph 5.1, if Employee (1) uses a reserved Creation while
employed by Emulex, or (2) permits the use of a reserved Creation by another
employee of Emulex, and does not have a prior written agreement with Emulex
pertaining to such use, then Employee thereby grants to Emulex a royalty-free,
non-exclusive, worldwide, irrevocable license to that Creation (provided that
the reserved Creation is owned wholly or in part by Employee, or is within the
direct or indirect control of Employee at the time of employment).
5.4 Right of First Refusal. With respect to any reserved
Creations specified under Paragraph 5.1 above, Employee grants to Emulex a right
of first refusal to purchase or license such Creations (unless otherwise
licensed to Emulex by any other terms of this Agreement) on terms at least as
favorable as offered to any other purchaser or licensee while Employee is
employed by Emulex.
General Provisions.
6.1 Attorneys' Fees. If any arbitration, litigation, or
other legal proceeding occurs between the parties relating to this Agreement,
the prevailing party shall be entitled to recover (in addition to any other
relief awarded or granted) his, her, or its reasonable costs and expenses
(including attorneys' fees) incurred in the proceeding and any appeal therefrom.
6.2 Entire Agreement. This Agreement, including all
referenced attachments, constitutes the complete and final agreement between the
parties, and supersedes all prior negotiations, agreements, and understandings
between the parties concerning its subject matter.
6.3 Successors and Assigns. This Agreement is intended to
benefit and is binding on (1) the successors and assigns of Emulex, and (2) the
heirs and legal successors of Employee.
6.4 Separate Enforcement of Provisions. If any provision
of this Agreement is held by a court or arbitrator of competent jurisdiction to
be unlawful or unenforceable, the remaining provisions of this Agreement shall
be enforced to the extent possible.
6.5 Governing Law. The validity, construction, and
performance of this Agreement is governed by the laws of the State of
California.
6.6 Right to Relief. If Employee breaches or threatens to
breach any provision of this Agreement, in addition to any other rights and
remedies Emulex may have, Emulex shall be entitled to temporary and permanent
injunctive relief to prevent the breach or threatened breach without the
necessity of proving actual damages or posting any bond or undertaking.
6.7 Waiver and Amendment. No waiver, amendment, or
modification of this Agreement shall be effective unless in writing and signed
by the party against whom the waiver, amendment, or modification is sought to be
enforced. No failure or delay by either party in exercising any right, power, or
remedy under this Agreement shall operate as a waiver of the right, power, or
remedy. No waiver of any term, condition, or breach of this Agreement shall be
construed as a waiver of any other term, condition, or breach.
Effective Date. This Agreement, no matter when signed by
Employee, is effective from the first date of Employee's employment with Emulex,
and shall survive the termination of Employee's employment with Emulex.
At Will Employment. Unless specifically provided differently in
a separate written agreement signed by an authorized agent of Emulex, Employee
acknowledges and agrees that Employee's employment by Emulex is now and will
continue to be throughout his or her employment with Emulex "AT WILL," and can
be terminated at any time by Emulex for any reason, with or without good cause,
and with or without prior warning or notice.
Acknowledgment of Reading. Employee acknowledges that Employee
has read and understands this Agreement, and has received a copy of it.
AGREED: EMULEX CORPORATION
______________________________ By:___________________________
Employee's signature
______________________________ ______________________________
Employee's Name Name
Dated:________________________ ______________________________
Title
Dated:________________________
