SEVERANCE AND CHANGE IN CONTROL AGREEMENT
THIS AGREEMENT, effective as of February 22nd, 2010 (the Effective Date), is made by and between STEC, Inc., a California
corporation, (the Company) and Raymond D. Cook (the Executive), a resident of the State of California.
WHEREAS, the Executive has agreed to serve as the Chief Financial Officer of the Company;
WHEREAS, the Board has determined that it is in the best interests of the Company and its shareholders to assure that the Company will
have the continued dedication of the Executive, notwithstanding the possibility of his termination of employment with the Company or of a change in control of the Company;
WHEREAS, the Board wishes to diminish the distraction to the Executive and to encourage the Executives full attention and
dedication to the Company currently and in the event of any threatened or pending change in control;
WHEREAS, the Board
wishes to provide the Executive with compensation arrangements upon certain terminations of employment with the Company or a change in control which satisfy the expectations of the Executive and which are comparable to and competitive with those of
other companies; and
WHEREAS, the Executive and the Company agree to terminate, nullify, and cancel the STEC, Inc. Severance
And Change In Control Agreement, dated November 11, 2008, and entered into between the Executive and the Company;
THEREFORE, in consideration of the mutual undertakings of the parties hereto, the Company and the Executive agree as follows:
1.1 Accrued Annual Base Salary means that portion of the Executives Annual Base Salary
which is accrued but unpaid as of the Date of Termination.
1.2 Affiliate means any
corporation or other entity which directly or through intervening entities owns more than thirty five percent (35%) of the combined power or value of all shares of stock of a corporation or more than thirty five percent (35%) of the
capital and profits interest of an unincorporated entity, and any corporation or other entity so owned by an Affiliate.
1.3 Annual Base Salary means the annual base salary of the Executive in effect as of the date
of his date of Termination of Employment, without regard to any salary reduction under any plan maintained by the Company under Code Sections 125 or 401(k), or any nonqualified deferred compensation plan maintained by the Company.
1.4 Board means the Board of Directors of the Company.
1.5 Cause means:
(a) the Executives committing any felony or any other crime involving dishonesty;
(b) the Executives failure to perform reasonably assigned lawful duties or to
comply with a lawful instruction of the Board;
(c) the Executives dishonesty,
willful misconduct, or gross negligence in the performance of his duties for the Company;
(d) the Executives substantial or material failure or refusal to perform or comply with
Company policies, procedures, or practices; or
(e) the Executives unauthorized
use or disclosure of confidential information or trade secrets of the Company (or any parent or Subsidiary of the Company).
1.6 Change in Control means any of the following events provided that such event is, or with
respect to an event described in Subsection (c) becomes, a change in the ownership or effective control of the Company or a change in the ownership of a substantial portion of the assets of the Company, in each case as
defined in Treasury Regulation Section 1.409A-3(i)(5) or any successor provision thereto:
(a) any person (as such term is used in Rule 13d-5 of the Securities Exchange Act of 1934, as
amended, (the 1934 Act) or group (as such term is defined in Section 13(d) of the 1934 Act), other than a Subsidiary or any employee benefit plan (or any related trust) of the Company becomes the beneficial owner of at least fifty
percent (50%) or more of the Common Stock of the Company or of securities of the Company that are entitled to vote generally in the election of directors of the Company (Voting Securities) representing fifty percent (50%) or
more of the combined voting power of all Voting Securities of the Company;
a period of twelve (12) months or less, the individuals who, as of any date on or after the Effective Date, constitute the Board (the Incumbent Directors) cease for any reason to constitute a majority of the Board unless at the end
of such period, a majority of the individuals then constituting the Board are persons who are Incumbent Directors or were nominated upon the recommendation of a majority of the Incumbent Directors; or
(c) approval by the shareholders of the Company of either of the following:
(i) a merger, reorganization, or consolidation (Merger) with respect to which the
individuals and entities who were the respective beneficial owners of Common Stock and Voting Securities of the Company immediately before such Merger do not, after such Merger, beneficially own, directly or indirectly, more than fifty percent
(50%) of, respectively, the Common Stock and the combined voting power of the Voting Securities of the corporation resulting from such Merger in substantially the same proportion as their ownership immediately before such Merger, or
(ii) the sale or other disposition of all or substantially all of the assets of the Company.
Notwithstanding the foregoing, there shall not be a Change in Control if, in advance of such
event, the Executive agrees in writing that such event shall not constitute a Change in Control.
1.7 Code means the Internal Revenue Code of 1986, as amended from time to time, and any
regulatory guidance promulgated thereunder. A reference to any specific Code section shall also be deemed to refer to any successor section thereto.
1.8 Common Stock means the common stock, par value $0.001, of the Company.
1.9 Company means STEC, Inc., a California corporation, and any of its successors.
1.10 Contract Term has the meaning specified in Section 3.1 of this Agreement.
1.11 Date of Termination means the date as of which the Executives employment with the
Company or its Affiliate is terminated by the Company or its Affiliate, or by the Executive for any reason including, but not limited to, death or Disability.
1.12 Disability means either of the following events:
(a) The Executive is unable to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months; or
(b) The Executive is, by reason of any medically determinable physical or mental impairment that
can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health
plan covering employees of the Company.
1.13 Good Reason means the occurrence of
any one of the following events:
(a) any material breach of this Agreement by the
Company including, but not limited to, the failure of the Company to comply with the provisions of Article IV;
(b) the failure of the Company to assign this Agreement to a successor to the Company, or the
failure of a successor to the Company to explicitly assume and agree to be bound by this Agreement;
(c) the Companys requiring the Executive to be based at any office or location more than
thirty (30) miles from the Companys offices in Santa Ana, California, except for reasonably required travel which is not materially greater than such travel generally required of such Executive prior to the date of execution of this
(d) a material diminution or other substantive adverse change, not
consented by Employee, in the nature or scope of Employees responsibilities, authorities, powers, functions or duties; including a reduction in Employees position or title;
(e) the Boards directive for the Executive to engage in unlawful conduct; or
(f) a material reduction in the Executives base
Notwithstanding the foregoing, no act or omission by the Company shall constitute Good Reason as defined above unless
the Executive gives the Company no more that ninety (90) days written notice from the initial existence or occurrence of any act or omission which constitutes Good Reason, and the Company fails to cure such act or omission within the succeeding
thirty (30) day period following the receipt of such notice from the Executive.
1.14 Monthly Base Salary means the Executives Annual Base Salary in effect as of the
Executives Date of Termination of employment, divided by twelve (12).
1.15 Person means any individual, sole proprietorship, partnership, joint venture, trust,
unincorporated organization, association, corporation, institution, public benefit corporation, entity or government (whether federal, state, county, city, municipal, or otherwise, including, without limitation, any instrumentality, division,
agency, body, or department thereof).
1.16 Subsidiary means, with respect to any
Person, (a) any corporation or other entity of which an aggregate of more than fifty percent (50%) of the outstanding capital stock having ordinary voting power to elect a majority of the board of directors of such corporation
(irrespective of whether, at the time, stock of any other class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time, directly or indirectly, owned legally or beneficially
by such Person or one or more Subsidiaries of such Person and (b) any partnership in which such Person and/or one or more Subsidiaries of such Person shall have an interest (whether in the form of voting or participation in profits or capital
contribution) of more than fifty percent (50%).
1.17 Termination of Employment
means the first day on which the Executive is for any reason no longer employed by the Company or any of its Affiliates.
1.18 Termination of Employment Without Cause means a termination of the Executives
employment by the Company or any of its Affiliates for any reason other than Cause (other than death or Disability).
CANCELLATION OF 2008 SEVERANCE AND CHANGE IN CONTROL AGREEMENT
2.1 Cancellation of 2008 Severance And Change In Control Agreement.
(a) Effective as of the Effective Date, the Executive and the Company hereby terminate, nullify,
and cancel the STEC, Inc., Severance And Change In Control Agreement, dated November 11, 2008, entered into between the Executive and the Company. All provisions of said Severance And Change In Control Agreement are hereby null, void, and of no
force or effect. The Executive agrees to timely enter into and execute any additional documents necessary or appropriate to effect the intent of this Article II.
(b) The Executives employment with the Company
is at will, meaning that either the Executive or the Company may terminate the employment relationship at any time on notice to the other, with or without Cause, for any reason, no reason or Good Reason, and with no liability of either
party to the other, except as expressly described in this Agreement or any other express agreement executed by both parties. This Agreement is not intended to, and shall not infer or imply any right on the part of the Executive to continue in the
employ of the Company or any of its Affiliates. This Agreement is not intended in any way to limit the right of the Company to terminate the employment of the Executive.
TERM OF AGREEMENT
3.1 Term of Agreement.
(a) This Agreement shall be effective for the period commencing on the Effective Date, and ending
on the fourth (4th) anniversary of such date. The Company may, in its sole discretion and for any reason, provide written notice of termination (effective as of the then applicable expiration date) to the Executive no later than sixty
(60) days prior to the expiration of this Agreement. If written notice is not timely so provided, this Agreement shall be automatically extended for an additional period of twelve (12) months from the expiration date. This Agreement shall
continue to be automatically extended for an additional twelve (12) months at the end of such 12-month period and each succeeding 12-month period unless notice of termination of this Agreement is given in the manner prescribed in this Section
(the initial term, and each such additional 12-month period, if any, constituting the Contract Term). No termination of this Agreement shall affect the Executives rights hereunder with respect to a Change in Control which has
occurred prior to such termination.
(b) In the event of a Change in Control,
Section 4.4 of this Agreement shall become applicable to the Executive. Section 4.4 shall continue to remain applicable to the Executive until the date which is eighteen (18) months following the date upon which the Change in Control
occurs. Following such eighteen (18) month period, so long as the employment of the Executive has not been terminated on account of a termination as described in Section 4.4, this Agreement shall terminate and be of no further force or
effect. If the Executives employment with the Company is terminated on account of a termination described in Section 4.4 on or before such date, this Agreement shall remain in effect until the Executive receives, in the entirety, the
various payments and benefits to which the Executive has become entitled under the terms of this Agreement.
(c) If there is a Termination of Employment Without Cause, or a Termination of Employment by the
Executive for Good Reason during the Contract Term, this Agreement shall remain in effect until the Executive receives, in the entirety, the various payments and benefits to which Executive has become entitled under the terms of this Agreement.
4.1 Termination of Employment by the Company for Cause or by the Executive Other Than for Good Reason. If,
before the end of the Contract Term, the Company terminates the Executives employment for Cause or the Executive terminates employment other than for Good Reason (other than for death or Disability), the Company shall pay to the Executive as
soon as reasonably practicable after the Date of Termination an amount equal to the Executives Accrued Annual Base Salary. The Company may not terminate the Executives employment for Cause unless:
(a) no fewer than sixty (60) days prior to the Date of Termination, the Company provides the
Executive with written notice of its intent to consider termination of the Executives employment for Cause, including a detailed description of the specific reasons which form the basis for such consideration (the Notice of
(b) provided that Cause shall not constitute
Cause unless the Executive is provided with said Notice of Consideration by the Board of such termination for Cause and fails to cure it within a reasonable period of time (not less than fifteen (15) nor more than thirty
(30) days) after receipt of the Notice of Consideration, except that the Executive shall not be entitled to a Notice of Consideration and opportunity to cure if the Executive knew, or should have known, that the wrongful conduct would result in
material harm to the Company;
(c) if, after providing Notice of Consideration, a
majority of the Board (disallowing the vote of the Executive (if the Executive is a member of the Board) and any other members of the Board alleged to be involved in the events leading the Board to desire to terminate the Executive for Cause) so
determines, the Board may immediately suspend the Executive, with or without pay, at the discretion of the majority of the Board, until a final determination pursuant to this Section 4.1 has been made (which suspension shall not constitute
Good Reason for purposes of this Agreement);
(d) for a period ending
thirty (30) days after the date Notice of Consideration is provided, the Executive shall have an opportunity to appear before the Board, with or without legal representation, at the Executives election, to present arguments on his own
(e) following the presentation to the Board as provided in Subsection
(d) above, the Executive shall be terminated for Cause only if (i) a majority of the Board (disallowing the vote of the Executive (if the Executive is a member of the Board) and any other members of the Board alleged to be involved in the
events leading the Board to terminate the Executive for Cause) determines that the actions of the Executive constituted Cause and that the Executives employment should accordingly be terminated for Cause and (ii) the Board provides the
Executive with a written determination setting forth in full specificity the basis for such termination of employment which shall be consistent with the reasons set forth in the Notice of Consideration; and
(f) the Company shall provide the Executive with not less than thirty (30) days advance
written notice of termination, including a statement of the Date of Termination and the
specific detailed basis for such termination which shall be consistent with the reasons set forth in the Notice of Consideration; provided however
(g) notwithstanding the foregoing, nothing in this Section 4.1 shall prevent the Company from
terminating the Executive immediately upon the Executives committing any of the acts set forth in Sections 1.5 (a), (c) or (e) herein, upon a determination by a majority of the Board (disallowing the vote of the Executive (if the
Executive is a member of the Board) and any other members of the Board alleged to be involved in the events leading the Board to terminate the Executive for Cause) that the Executive should be immediately terminated for Cause pursuant to Sections
1.5 (a), (c) or (e).
4.2 Termination of Employment for Death or Disability. If, before the
end of the Contract Term, the Executives employment terminates due to death or Disability, the Company shall pay as soon as reasonably practicable to the Executive, the beneficiaries designated in writing by the Executive, or the
Executives estate, as the case may be, the Executives Accrued Annual Base Salary.
4.3 Termination of Employment by the Company without Cause or by the Executive for Good Reason. If there is
a Termination of Employment by the Company without Cause or a Termination of Employment by the Executive for Good Reason, the Executive shall receive as soon as reasonably practicable after the Date of Termination in a lump-sum the Executives
Accrued Annual Base Salary. Additionally, as soon as reasonably practicable after six (6) months and one (1) day following the Date of Termination, the Company shall pay the Executive, in a lump sum, an amount equal to twelve
(12) months of the Executives Monthly Base Salary.
In addition to the foregoing benefits, Executive shall be
entitled to participate, for twelve (12) months following Termination of Employment, in the following employee benefit plans maintained by the Company to the extent the Executive is a participant in such employee benefit plans immediately
preceding the Date of Termination: group medical insurance, and group dental insurance. The level of benefits in such plans shall be the level in effect for the Executive and his dependents at the Date of Termination. The COBRA continuation period
for the Executive shall begin at the end of such twelve (12) month period. These programs shall be continued at no cost to the Executive, except to the extent that federal, state or local tax law requires the inclusion of the value of such
benefits in Executives income.
The Executives entitlement to any termination benefits pursuant to this
Section 4.3 are expressly conditioned upon the Executives execution of a General Release and Waiver as set forth in Section 6.7 (and as attached in form as Exhibit A hereto) prior to the Companys obligation to
provide payment of any amounts due or any benefits hereunder.
4.4 Termination upon a Change in
Control. If within the Contract Term (a) there occurs a Change of Control and (b) within an eighteen (18) month period subsequent to the Change of Control the Company terminates the employment of the Executive without Cause (other
than for death or Disability) or the Executive terminates his employment for Good Reason (other than for death or Disability), the Executive shall receive as soon as reasonably practicable after the Date of Termination in a lump sum the
Executives Accrued Annual Base Salary. Additionally, as soon as reasonably practicable after six (6) months and one (1) day following the Termination of Employment, the
Company shall pay the Executive, in a lump sum, an amount equal to twelve (12) months of the Executives Monthly Base Salary.
In addition to the foregoing benefits, Executive shall be entitled to participate, for twelve (12) months following Termination of
Employment, in the following employee benefit plans maintained by the Company to the extent the Executive is a participant in such employee benefit plans immediately preceding the Date of Termination: group medical insurance, and group dental
insurance. The level of benefits in such plans shall be the level in effect for the Executive and his dependents at the Date of Termination. The COBRA continuation period for the Executive shall begin at the end of such twelve (12) month
period. These programs shall be continued at no cost to the Executive, except to the extent that federal, state or local tax law requires the inclusion of the value of such benefits in Executives income.
The Executives entitlement to any termination benefits pursuant to this Section 4.4 are expressly conditioned upon the
Executives execution of a General Release and Waiver as set forth in Section 6.7 (and as attached in form as Exhibit A hereto) prior to the Companys obligation to provide payment of any amounts due or any benefits
4.5 Other Plans and Policies. The termination benefits described in Sections 4.1
through 4.4 are in lieu of any termination benefits that the Executive might otherwise be entitled to receive from the Company under any of the Companys applicable severance pay policies; provided, however, to the extent the Executive
participates in any annual bonus, long-term incentive, equity award, or similar plan or program, the Executives rights upon a Termination of Employment under such plans or programs shall be determined under the documents or agreements
governing said plans or programs.
Except as specified in the preceding paragraph, nothing in this Agreement shall prevent or
limit the Executives continuing or future participation in any plan, program, policy or practice provided by the Company or any of its Affiliates and for which the Executive is eligible, nor shall anything herein limit or otherwise affect such
rights as the Executive may have under any agreement entered into after the date hereof with the Company or any of its Affiliates. Subject to the foregoing, amounts which are vested benefits, or which the Executive is otherwise entitled to receive
under any plan, policy, practice or program of, or agreement entered into after the date hereof with the Company or any of its Affiliates at or subsequent to the Date of Termination shall be payable in accordance with such plan, policy, practice,
program or agreement, except as may be explicitly governed otherwise by this Agreement.
(a) Notwithstanding anything to the contrary in this
Article IV, to the extent required by Code Section 409A, payment to the Executive if he is a specified employee (as defined in Treasury Regulation Section 1.409A-1(i)) shall not be made before the date which is six
(6) months and one (1) day after the date of the Executives separation from service (within the meaning of Code Section 409A(a)(2)(B)(i)) or, if earlier, the date of death of the Executive, except to the extent the payments are
(i) made by reason of involuntary termination of employment by the Company without Cause or a termination of the Executives employment with the Company for Good Reason and (ii) do not exceed the Basic Severance Limitation.
(b) For purposes of this Section the Basic Severance Limitation means two
(2) times the lesser of (i) the sum of the Executives annualized compensation based on the annual
rate of pay for services provided to the Company for the taxable year of the Executive preceding the taxable year in which the Executives employment terminated (adjusted for any increase
during that taxable year that was expected to continue indefinitely if the Executive had not incurred a termination of employment) or (ii) the maximum amount that may be taken into account under a qualified plan pursuant to Code
Section 401(a)(17) for the year of the Executives termination of employment.
(c) If this Section 4.6 applies, then (i) any lump sum payment otherwise required (a
Required Lump Sum) shall first be made when due up to the Basic Severance Limitation; (ii) any Required Lump Sum that exceeds the Basic Severance Limitation shall be paid in a single lump sum on the date that is six (6) months
and one (1) day after the Date of Termination; (iii) any installment payments otherwise required (Required Installments) shall be paid in equal monthly installments during the six (6) month period up to an aggregate amount
that (together with any Required Lump Sum paid during the six (6) month period) is not in excess of the Basic Severance Limitation, and (iv) the remaining amount of any Required Installments that would have been paid during the six
(6) month period but for the application of the Basic Severance Limitation shall be paid (without interest) in a lump sum on the date that is six (6) months and one (1) day after the Date of Termination, and the remaining Required
Installments shall be paid over the remainder of the applicable installment period.
If within the Contract Term (a) there occurs a Change of Control and (b) within a twelve (12) month period subsequent to the Change of Control the Company terminates the employment of the Executive without Cause (other than for death
or Disability) or the Executive terminates his employment for Good Reason (other than for death or Disability), the Executive shall be entitled to receive a pro rata portion of the Executives annual bonus (Pro Rata Bonus) for such
fiscal year based on the number of days the Executive has been employed with the Company in such fiscal year prior to the Date of Termination. This Pro Rata Bonus shall only be paid if the Executive has satisfied any and all requirements for such
annual bonus as such requirements may be proportionally decreased for the stub year period. For example only, if the Executives annual bonus is $100,000, the Date of Termination is July 1, and the annual bonus requirement is that the
revenues of the Company exceed $50 million, then the Executive shall receive a Pro Rata Bonus of $50,000 if the Companys revenues exceed $25 million for the 6-month period ended June 30. Such annual bonus shall be paid on the Date of
CONTINGENT LIMITATION ON BENEFITS PAYABLE
5.1 General Rules.
(a) Notwithstanding any other provisions of this Agreement or any other agreement, plan, or
arrangement (except as provided in the following paragraph of this Subsection (a)), if any payment or benefit received or to be received by the Executive (under the terms of this Agreement, or any other plan, arrangement, or agreement with the
Company, or any other plan, arrangement, or agreement with any person whose actions result in a Change in Control or any person affiliated with the Company or any such person) (all such payments and benefits being hereinafter called Total
Payments) would be subject (in whole or in part) to taxes imposed by
Code Section 4999, the portion of the Total Payments payable under this Agreement shall be reduced as herein provided.
The Total Payments payable under this Agreement shall be reduced to the extent necessary so that no portion of the Total Payments shall
be subject to the parachute excise tax (the Excise Tax) imposed by Code Section 4999 (after taking into account any reduction in the Total Payments provided by reason of Code Section 280G in any other plan, arrangement, or
agreement) but only if the amount determined under Paragraph (1) below is greater than the amount determined under Paragraph (2) below.
(1) The amount determined hereunder shall be the net amount of such Total Payments, as so reduced
(and after deduction of the net amount of Federal, state, and local income taxes on such reduced Total Payments computed at Executives highest marginal tax rates).
(2) The amount determined hereunder shall be:
(A) the net amount of such Total Payments, without reduction (but after deduction of the net
amount of Federal, state, and local income taxes on such Total Payments computed at Executives highest marginal tax rates), further reduced by:
(B) the amount of Excise Tax to which the Executive would be subject in respect of such Total
Any reduction of the Total Payments, if required, shall be made under one of the two alternative methods described
in Subjection (b) below. If a reduction in Total Payment is required for purposes of this Section 5.1 pursuant to the calculations hereunder, Total Payments shall not include any amounts considered a parachute payment under
Code Section 280G as such determination is made by a national accounting firm or a national law firm, either of which accounting firm or law firm shall be selected by, retained by and perform said services at the expense of the Company.
(b) If the Total Payments all become payable at approximately the same time.
(1) Executives Monthly Base Salary shall first be reduced (if necessary, to
(2) Executives participation in Company employee benefit plans shall
next be reduced (if necessary, to zero);
(3) any other portions of the Total Payments
shall next be reduced (if necessary, to zero); and
(4) the acceleration of vesting of
awards under any equity award plans, annual incentive plans, deferred compensation or similar nonqualified executive compensation arrangements shall be reduced as necessary.
If the Total Payments do not become due and payable at approximately the same time, the
respective Total Payments shall be paid in full in the order in which they become payable, until any portion thereof would be subject to reduction as set forth herein, and such portion (and any subsequent portions) of the Total Payments shall be
reduced to zero. In such event, the Company shall make every reasonable effort to make such payments in the order (if possible) that results in the most favorable tax treatment and economic result for Executive.
(c) For purposes of determining whether and the extent to which the Total Payments would be
subject to the Excise Tax.
(1) no portion of the Total Payments the receipt or
enjoyment of which the Executive shall have effectively waived in writing prior to the Date of Termination shall be taken into account;
(2) no portion of the Total Payments shall be taken into account which in the determination of
the aforementioned national accounting firm or national law firm selected by the Company to make such determination does not constitute a parachute payment within the meaning of Code Section 280G(b) (2), including by reason of Code
Section 280G(b) (4) (A);
(3) in calculating the Excise Tax, the payments
shall be reduced only the extent necessary so that the Total Payments in their entirety constitute reasonable compensation for services actually rendered within the meaning of Code Section 280G(b) (4) or otherwise not subject to
disallowance as deductions because of Code Section 280G, in the determination of such national accounting firm or national law firm; and
(4) the value of any non-cash benefit or any deferred payment or benefit included in the Total
Payments shall be determined by a national accounting firm or national law firm as selected by the Company, in accordance with the principles of Code Section 280G(d) (3) and (4).
The Company shall provide the Executive with the calculation of the foregoing amounts and any supporting materials as are reasonably
necessary for the Executive to evaluate the calculations, however the findings of such national accounting firm or national law firm shall be binding upon the Executive and the Company.
SPECIAL ACCELERATION OF EMPLOYEE STOCK OPTIONS
6.1 Acceleration of Stock Options. If within the Contract Term (a) there occurs a Change of Control
and (b) within a twelve (12) month period subsequent to the Change of Control the Company terminates the employment of the Executive without Cause (other than for death or Disability), or the Executive terminates his employment for Good
Reason (other than for death or Disability), any stock option (Option) of the Company awarded to the Executive by the Company prior to, and during, the term of this Agreement, to the extent outstanding at the time but not otherwise fully
exercisable, shall automatically accelerate so that the Option shall become immediately
exercisable for all the Option shares at the time subject to the Option and may be exercised for any or all of those Option shares as fully vested shares. However, the Option shall not become
exercisable on such an accelerated basis, if and to the extent: (i) the Option is, in connection with the Change in Control, to be assumed by the successor corporation (or parent thereof) or (ii) the Option is to be replaced with a cash
incentive program of the successor corporation which preserves the spread existing at the time of the Change of Control on any Option shares for which the Option is not otherwise at that time exercisable (the excess of the fair market value of the
Option shares over the aggregate exercise price payable for such shares) and provides for subsequent payout in accordance with the same option exercise/vesting schedule for those Option shares set forth in the relevant grant notice.
6.2 Acceleration of Restricted Stock Units. If within the Contract Term (a) there occurs a Change of
Control and (b) within a twelve (12) month period subsequent to the Change of Control the Company terminates the employment of the Executive without Cause (other than for death or Disability), or the Executive terminates his employment for
Good Reason (other than for death or Disability), any restricted stock units (Units) awarded to the Executive by the Company prior to, and during, the term of this Agreement, to the extent outstanding at the time but not otherwise
vested, shall automatically vest immediately and the shares subject to such vested Units will be issued immediately. However, the Units shall not become exercisable on such an accelerated basis, if and to the extent: (i) the Units are, in
connection with the Change in Control, to be assumed by the successor corporation (or parent thereof) or (ii) the Units are to be replaced with a cash incentive program of the successor corporation which preserves the spread existing at the
time of the Change of Control on any Units for which the Units are not otherwise at that time exercisable (the excess of the fair market value of the Units over the aggregate exercise price payable for such shares) and provides for subsequent payout
in accordance with the same exercise/vesting schedule for those Units set forth in the relevant grant notice.
7.1 No Mitigation. In no event shall the Executive be obligated to seek other employment or take any other action by way of
mitigation of the amounts payable to the Executive under any of the provisions of this Agreement, nor shall the amount of any payment hereunder be reduced, except as otherwise specifically provided herein, by any compensation earned by the Executive
as result of employment by another employer.
(a) If the Executive incurs legal or other fees and expenses in an effort to establish entitlement
to payments and benefits rightfully owing under this Agreement, the Company shall reimburse the Executive for such fees and expenses in the event the Executive is the prevailing party in any civil action or arbitration, or in the event the Company
and the Board otherwise determine the Executive is entitled to such payments or benefits, and actually provides said payments or benefits to the Executive.
(b) If Executive does not prevail (after exhaustion
of all available judicial remedies), and a court of competent jurisdiction determines that the Executive had no reasonable basis for bringing an action hereunder or there was an absence of good faith for bringing an action hereunder, no
reimbursement for legal fees or other expenses shall be due to the Executive and Executive shall refund to the Company any amounts previously paid hereunder (if any) with respect to such action.
7.3 Assignment, Successors. The Company may freely assign its respective rights and obligations under this
Agreement to a successor of the Companys business, without the prior written consent of the Executive. This Agreement shall be binding upon and inure to the benefit of the Executive and the Executives estate and the Company and any
assignee of or successor to the Company.
7.4 Nonalienation of Benefits. Benefits payable under
this Agreement shall not be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, charge, garnishment, execution or levy of any kind, either voluntary or involuntary, prior to actually being received by
the Executive, and any such attempt to dispose of any right to benefits payable hereunder shall be void.
7.5 Severability. If all or any part of this Agreement is declared by any court or governmental authority
to be unlawful or invalid, such unlawfulness or invalidity shall not serve to invalidate any portion of this Agreement not declared to be unlawful or invalid. Any paragraph or part of a paragraph so declared to be unlawful or invalid shall, if
possible, be construed in a manner which will give effect to the terms of such paragraph or part of a paragraph to the fullest extent possible while remaining lawful and valid.
7.6 Amendment and Waiver. This Agreement shall not be altered, amended, extended or modified except by
written instrument executed by the Company and the Executive. A waiver of any term, covenant, agreement, or condition contained in this Agreement shall not be deemed a waiver of any other term, covenant, agreement, or condition, and any waiver of
any default in any such term, covenant, agreement, or condition shall not be deemed a waiver of any later default thereof or of any other term, covenant, agreement or condition.
7.7 General Waiver and Release. In exchange for the promises and covenants set forth herein, and in
consideration thereof, if the Executives employment with the Company is terminated pursuant to Section 4.3 or 4.4 of this Agreement, then upon the Executive furnishing the Company with an executed general release and waiver of claims
(which shall be substantially in the form attached hereto as Exhibit A) (General Release and Waiver), the Executive shall be entitled to the termination benefits as specified in the applicable Section.
7.8 Notices. All notices and other communications hereunder shall be in writing and shall be only effective
when actually delivered on a business day during business hours only by one of the following methods: (a) by hand, or (b) by first class registered or certified mail, return receipt requested, postage prepaid, or by a national overnight
commercial messenger service such as, but not limited to FedEx, UPS or DHL, addressed as follows:
|If to the Company:
||3001 Daimler Street|
||Santa Ana, California 92705-5812|
||Attn: Legal Department|
If to the Executive,
such notices and communications shall be sent to the last known home address for the Executive on file with the Company.
Either party may from time to time designate a new address by notice given in accordance with this Section. Notwithstanding the manner of
delivery, whether or not in compliance with the foregoing provisions, notices and communications shall be effective when actually received by the addressee.
7.9 Withholding. The Company may withhold from any amounts payable under this Agreement such federal, state
or local taxes as the Company determines are required to be withheld pursuant to any applicable law or regulation.
7.10 Counterpart Originals. This Agreement may be executed in several counterparts, each of which shall be
deemed to be an original but all of which together will constitute one and the same instrument.
7.11 Entire Agreement. This Agreement forms the entire agreement between the parties hereto with respect to
any severance payment and with respect to the subject matter contained in the Agreement.
7.12 Effect on Other Agreements. This Agreement shall supersede all prior agreements, promises and
representations regarding severance or other payments contingent upon termination of employment, whether in writing or otherwise.
7.13 Applicable Law. The provisions of this Agreement shall be interpreted and construed in accordance with
the laws of the State of California, without regard to its choice of law principles.
of Executives Rights. All of the Executives rights hereunder, including but not limited to his rights to compensation and benefits, and his obligations under this Agreement, shall survive the termination of the Executives
employment and/or the termination of this Agreement.
7.15 Voluntary Agreement. The Executive
acknowledges and represents that he (i) has read this Agreement; (ii) is hereby advised in writing to consult with legal counsel prior to executing this Agreement and has had the opportunity to do so; (iii) understands the legal and
binding nature of this Agreement; and (iv) is acting voluntarily and with full knowledge of his actions in executing this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the date first
Name: Manouch Moshayedi
Title: Chief Executive Officer
|RAYMOND D. COOK|
GENERAL RELEASE AND WAIVER
This General Release and Waiver (Release), dated as of
, 20 (Effective Date), is made
and entered into by and between [Releasing Party] and his heirs, representatives, successors, assigns, executors, and administrators (hereinafter Executive), on the one hand, and STEC, Inc., and its current or former owners,
partners, officials, directors, officers, shareholders, affiliates, agents, employee benefit plans, representatives, servants, employees, attorneys, subsidiaries, parents, divisions, branches, units, affiliated organizations, successors,
predecessors, contractors, assigns, and all persons acting by, through, under, or in concert with them, past or present (hereinafter collectively referred to as Company). The term Parties or Party as used herein
shall refer to Executive on the one hand, and those entities and individuals collectively referred to as Company on the other hand. The term third Party refers to any other entity or individual, who is not referred to as a Party.
Executive was employed as the [Position] of the Company. Executive terminated employment as the [Position] of the
Company effective on or about [Date].
Executive and Company desire to resolve any and all claims, actual or potential,
which may exist between them and thereby avoid the expense and uncertainty of litigation.
NOW, THEREFORE, for good and
valuable consideration, receipt of which is hereby acknowledged, and in order to resolve and settle finally, fully, and completely all matters or disputes that now or may exist between them, and in consideration of the mutual covenants and
conditions set forth below, IT IS AGREED AS FOLLOWS:
1. Executive Release. Executive, in
exchange for the promises contained in this Release, on behalf of himself, his heirs, representatives, successors, and assigns, hereby irrevocably and unconditionally waives, releases, and forever discharges Company or any of its current or former
owners, partners, officials, directors, officers, shareholders, affiliates, employee benefit plans, representatives, servants, employees, agents, attorneys, subsidiaries, parents, divisions, branches, units, affiliated organizations, successors,
predecessors, assigns, and all persons acting by, through, under or in concert with them, either past or present (collectively Released Party or Parties), and each and all of them, from any and all charges, complaints, lawsuits, claims,
liabilities, obligations, promises, agreements, controversies, injuries, damages, actions, causes of action, suits, rights, demands, judgments, claims for relief, indebtedness, costs, losses, debts and expenses (including attorneys fees and
costs actually incurred), of any nature whatsoever, whether in law or in equity, KNOWN OR UNKNOWN, suspected or unsuspected, actual or potential, which he now has, owns, or holds, or claims to have, own, or hold against each or any of the Released
Parties, including without limitation, any claims which arose prior to the date of execution of this Release, whether or not relating to the employment relationship between Executive and Company or to the cessation of that employment relationship.
Without limiting the above, Executive agrees to waive, release, and forever discharge, and
agrees that he will not in any manner institute, prosecute, or pursue, any and all complaints, claims, charges, claims for relief, demands, suits, actions, or causes of action, whether in law or equity, KNOWN OR UNKNOWN, actual or potential, which
he either asserts or could assert, at common law or under any statute, rule, regulation, order, or law, whether federal, state, or local, or on any grounds whatsoever, including without limitation, any state or federal age, sex, race, color,
national origin, marital status, religion, physical disability, mental condition, or mental disability discrimination laws, including, but not limited to, the United States Constitution, the California Constitution, the California Fair Employment
and Housing Act (California Government Code § 12940 et seq.), the California Family Rights Act (California Government Code § 12945.2, 19702.3 et seq.), California Government Code §11135, the Unruh and George
Civil Rights Acts (California Civil Code §51 et seq.), the California Labor Code, including, but not limited to California Labor Code §201, et seq., and all provisions of California Labor Code §132a, Title VII of the
Civil Rights Act of 1964, the Equal Pay Act, the Rehabilitation Act of 1973, the Family and Medical Leave Act , the Employee Retirement Income Security Act of 1974, also known as ERISA, and/or Sections 1981, 1983, 1985, 1986 or 1988 of
Title 42 of the United States Code (42 U.S.C. §1981 et seq.), the Americans with Disabilities Act , the Age Discrimination in Employment Act, as amended, the Older Workers Benefit Protection Act, claims of retaliation, claims of
Whistle-blowing, claims under the Uniformed Services Employment and Re-Employment Rights Act (USERRA, 38 U.S.C. § 4301 et seq.), claims under California Military and Veterans Code (Cal. Mil. & Vet. Code
§ 389 et seq.), claims for the payment of severance pay, sick leave, pension rights, stock options, benefits, vacation pay, holiday pay, life insurance, fringe benefits, disability, commissions, bonuses, profit sharing, expenses,
penalties, claims for breach of any type of contract, including written, oral or implied contracts, breach of any covenant, promise, or representation pertaining to Executives employment, whether express or implied, claims for constructive
termination, wrongful termination, negligent hiring, retention, supervision, investigation, negligent or intentional infliction of emotional distress, common counts, statutory violation (failure to pay wages and compensationLabor Code
§201, et seq.), sexual harassment, discrimination, assault, battery, interference with prospective economic advantage, fraud, deceit and/or misrepresentation of any kind, libel, slander, defamation (whether based upon common law or
statute), claims of unfair/unlawful employment or business practices arising under any of the statutes referenced above, under Business and Professions Code §17200 et seq., under the Consumer Legal Remedies Act under Civil Code
§1750 et seq., and/or any other claims arising under any other state or federal provision, act, ordinance, Constitution, law, common law, or arising, under any contract or agreement, against any Released Party with respect to any event,
matter, claim, damage, or injury arising out of or relating to the employment of Executive and/or the cessation of such employment and ANY OTHER CLAIM OF ANY TYPE WHATSOEVER, WHETHER SUCH CLAIM IS KNOWN OR UNKNOWN TO EXECUTIVE AND/OR HIS
REPRESENTATIVES AND ATTORNEYS (collectively Executive Released Claims). Executive Released Claims shall include only those claims (whether known or unknown) which have arisen prior to the execution of this Release.
By executing this Agreement Executive is acknowledging that as of the time of the execution of this Agreement, he has been
paid for all hours worked, that he has not suffered any on-the-job injury for which he has not already filed a claim and that Executive has received all benefits to which he is entitled at the time of the execution of this Agreement, but for any
payments or benefits to which the Executive will become entitled pursuant to the execution of
this Agreement so long as this Agreement is not revoked by the Executive pursuant to Section 8 (c) herein.
Executive agrees to indemnify and hold harmless the Released Parties against any loss or liability, whatsoever, including reasonable
attorneys fees and costs, caused by any action or proceeding, in any state or federal courts or administrative processes, which is brought by Executive and his successors in interest if such action arises out of, is based upon, or is related
in any way to any claim, demand, or cause of action released herein.
2. Section 1542
Waiver. Executive understands and agrees that the Executive Released Claims include not only claims presently known to Executive, but also include all unknown or unanticipated claims, rights, demands, actions, obligations, liabilities, and
causes of action of every kind and character that would otherwise come within the scope of the Executive Released Claims as described in the preceding Section 1. Executive understands that he may hereafter discover facts different from what he
now believes to be true, which if known, could have materially affected this Release, but nevertheless waives any claims or rights based on different or additional facts. Executive knowingly and voluntarily waives any and all rights or benefits that
he may now have, or in the future may have, under the terms of Section 1542 of the California Civil Code, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HER OR HER FAVOR
AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HER SETTLEMENT WITH THE DEBTOR.
3. Confidentiality. The Parties understand and agree that this Release and each of its terms, and the
negotiations surrounding it, are confidential and shall not be disclosed by Executive to any entity or person, for any reason, at any time, without the prior written consent of Company or as required by law. Notwithstanding the foregoing, Executive
may disclose the terms of this Release to his immediate family members, spouse, and to legal, financial, and tax advisors.
4. Liens and Claims for Reimbursement. Executive represents that there are no outstanding liens,
obligations, or claims for reimbursement in this matter, including, but not limited to, medical or legal liens, or claims for reimbursement by any person or entity that has provided Executive with any services or benefits arising out of the
employment relationship between Executive and Company. Executive further represents that there are no outstanding liens, obligations, or claims for reimbursement pertaining to any benefits that were received by Executive from any public or
governmental agency, whether said benefits were provided by a federal, state, or local entity or authority, pertaining to the employment relationship between Executive and Company. To the extent that there are any liens, obligations, or claims for
reimbursement of any kind, Executive hereby covenants to settle, satisfy or otherwise extinguish all such liens, obligations, or claims for reimbursement, and further agrees to defend, indemnify, and hold harmless Company, its attorneys, and
representatives, in any proceeding arising out of any clam by any person or entity claiming to have any such lien, obligation, or claim for reimbursement.
5. Notices. Any notice or other communication under this
Release must be in writing and shall be effective upon delivery by hand, or three (3) business days after deposit in the United States mail, postage prepaid, certified or registered, and addressed to Company at its usual business address, or to
Executive at his most recent home address as shown in the records of the Company.
6. Amendments; Waivers. This Release may not be amended except by an instrument in writing, signed by each
of the Parties. No failure to exercise and no delay in exercising any right, remedy, or power under this Release shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, or power under this Release preclude
any other or further exercise thereof, or the exercise of any other right, remedy, or power provided herein or by law or in equity.
7. Assignment; Successors and Assigns. Executive agrees not to assign, sell, transfer, delegate, or
otherwise dispose of, whether voluntarily or involuntarily, or by operation of law, any rights or obligations under this Release. Any such purported assignment, transfer, or delegation shall be null and void. Executive represents that he has not
previously assigned or transferred any claims or rights released pursuant to this Release. Subject to the foregoing, this Release shall be binding upon and shall inure to the benefit of the Parties and their respective heirs, successors, attorneys,
and permitted assigns. This Release shall also inure to the benefit of any Released Party. This Release shall not benefit any other person or entity except as specifically enumerated in this Release.
8. Older Workers Benefit Protection Act of 1990. Executive understands and agrees that, by entering into
this Release, (i) he is waiving any rights or claims he might have under the Age Discrimination in Employment Act, as amended by the Older Workers Benefit Protection Act of 1990 (Act); and (ii) he has received consideration
beyond that to which he was previously entitled. In accordance with the Act, Executive should be aware of the following:
||Executive has the right to consult with an attorney before signing this Release; |
||Executive has twenty-one (21) days to consider this Release; and |
||Executive has seven (7) days after signing this Release to revoke this Release, and this Release will not be effective until said seven (7) day revocation
period has expired. |
9. Severability. If any provision of this Release, or its
application to any person, place, or circumstance, is held by an arbitrator or a court of competent jurisdiction to be invalid, unenforceable, or void, such provision shall be enforced to the greatest extent permitted by law, and the remainder of
this Release and such provision as applied to other persons, places, and circumstances shall remain in full force and effect.
10. Attorneys Fees. In any legal action, arbitration, or other proceeding brought to enforce or
interpret the terms of this Release, the prevailing Party shall be entitled to recover reasonable attorneys fees and costs.
11. Governing Law. This Release shall be governed by and
construed in accordance with the laws of the State of California, without regards to its principles of conflicts of law.
12. Interpretation. This Release shall be construed as a whole, according to its fair meaning, and not in
favor of or against any Party. By way of example and not in limitation, this Release shall not be construed in favor of any Party receiving a benefit nor against any Party responsible for any particular language in this Release. Captions are used
for reference purposes only and should be ignored in the interpretation of this Release.
13. Integration. Executive understands and agrees that the preceding Sections and the Executives
Severance Agreement and General Release (Severance Agreement) to which this Release is attached recite the sole consideration for this Release; that no representation or promise has been made by Company, or any other Released Party
concerning the subject matter of this Release, except as expressly set forth in this Release and the Severance Agreement; and that all agreements and understandings between the Parties concerning the subject matter of this Release are embodied and
expressed in this Release. This Release and the Severance Agreement shall supersede all prior or contemporaneous agreements and understandings among Executive, Company and any other Released Party, whether written or oral, express or implied, with
respect to the employment, termination and benefits of Executive, including without limitation, any employment-related agreement or benefit plan, except to the extent that the provisions of any such agreement or plan have been expressly referred to
in this Release or the Severance Agreement as having continued effect.
PLEASE READ CAREFULLY. THIS GENERAL RELEASE AND WAIVER INCLUDES A
RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
[The remainder of this page intentionally left blank.]
I expressly acknowledge that I enter into this Release knowingly and voluntarily, without
any coercion or duress, and that I have had an adequate opportunity to review this Release and to consult my attorney regarding it to the extent I wish to do so. I understand the contents of this Release, and I agree to all of its terms and
Acknowledgment of receipt by Executive on this day of
, 20 .
, California, this
day of ,
, California, this
day of ,