Separation Agreement - Storage Technology Corp. and Gary Anderson
March 31, 2001
Mr. Gary Anderson
1604 Foothills Drive, South
Golden, CO 80401
RE: SEPARATION AGREEMENT
It is acknowledged that your employment with Storage Technology Corporation ("StorageTek" or the "Company") as Corporate Vice President, Worldwide Operations Technology terminates effective March 31, 2001 ("Termination Date"). This letter confirms the terms of your severance under this Separation Agreement (the "Separation Agreement") as set forth and agreed upon in your Retention Agreement dated January 18, 2000 (the "Retention Agreement"). This Separation Agreement and your Retention Agreement supersede all previous oral and written agreements regarding your employment with StorageTek, provided, however, that the terms and conditions of your Executive Employment Agreement dated September 30, 1999 (the "Employment Agreement"), to the degree that they do not conflict with the terms and conditions of this Separation Agreement and your Retention Agreement, shall remain in full force and effect. In the event of a conflict of terms and/or conditions between your Retention Agreement and this Separation Agreement, the latter shall control.
- SEPARATION BENEFITS: The Company will pay, within 30 days of the Termination Date, a separation payment equal to the amounts set forth in your Retention Agreement, which amount is equal to $697,500.00 or (i) one and one-half year's base salary ($450,000.00), and (ii) one and one-half year's target MBO bonus for 2001 ($247,500.00).
- NON-SOLICITATION: Per the terms of your Retention Agreement, you confirm that during the two-year period
commencing with the Termination Date, you will not, directly, or indirectly, hire, solicit, or encourage any then-current Company employees to apply for employment with any person or
entity (a) with which you are (or intend to be) employed, (b) by whom you or an entity in which you are employed or have a financial interest is engaged as a consultant, recruiter,
independent contractor or otherwise, or (c) in which you further covenant and agree that you will not provide to any other person or entity the names of any person who is then employed by the
- NON-COMPETE: Per the terms of your Retention Agreement, you confirm that for a period of eighteen months from the
Termination Date that you will not, either directly or indirectly, engage in any activity in competition with any product or service of the Company (said competitive activities to be determined and
identified at the reasonable discretion of the Company), or harmful or contrary to the best interest of the Company, including accepting employment with or serving as a consultant to any entity that
is in competition with the Company. You further acknowledge and agree by way of this Separation Agreement that competitor companies include, Advanced Digital Information Corporation, ATL/Quantum, EMC,
Exabyte, Hewlett-Packard, IBM, Managed Storage International, Storage Networks Inc, and Sun Microsystems.
- PRESERVATION OF TRADE SECRETS AND CONFIDENTIAL INFORMATION: You reaffirm and agree to observe and abide by the terms of the StorageTek Proprietary Rights
Additionally as stated in your Retention Agreement, you understand and agree that all of your outstanding unvested stock options will vest on the Termination Date (according to the terms of your Stock Option Agreements and the Company's 1995 Stock Option Plan). Pursuant to the terms of StorageTek's Stock Option Plan, you will have ninety (90) days from the Termination Date to exercise these options. On the Termination Date, the Company's right of repurchase of any of your previously granted restricted stock will be void
- COMPANY RELEASE: The Company hereby irrevocably and unconditionally releases and discharges you and your heirs, successors, and assigns
(separately and collectively, "releasees"), jointly and individually, from any and all claims, known or unknown, which it, its past and present subsidiaries, divisions, officers, directors, agents,
employees, successors, and assigns have or may have against releasees and any and all liability which releasees may have to it, whether denominated claims, demands, causes of action, obligations,
damages or liabilities arising from any and all bases, however denominated, provided, however, that this release does not affect any claims which are based on releasees' willful acts, gross negligence
or dishonesty in the performance of duties as an employee of the Company, nor any claims which may arise after the execution of this Agreement. The Company further agrees that it will not file or
permit to be filed on its behalf any claim against you which is released hereby.
- NO FUTURE LAWSUITS: You represent that you do not currently intend to bring any claims on behalf of yourself or on behalf of any other
person or entity against the Company or any other person or entity referred to herein.
- NON-DISCLOSURE: Unless otherwise required to do so by law, subpoena or court order, you will not in any way communicate or
discuss the terms of this Separation Agreement or the circumstances of its execution with any person, other than the your attorneys or authorized Company personnel, said personnel to be explicitly
designated by the Company's President and CEO. You understand that this nondisclosure provision applies particularly to current and former employees of the Company and the Company's customers, clients
- NO ADVERSE COMMENT: You agree that during your employment with the Company through the Termination Date and for at least one year
following the Termination Date, you will not, except as specifically required by law or court process or consented to in writing by the Company, (a) communicate to any person or entity any
adverse information, written or oral, concerning the Company, its officers, directors, employees, attorneys, agents or advisers (including any communication concerning information that relates to the
business, operations, prospects or affairs of the Company or any of its subsidiaries or affiliates) under the circumstances in which there is a reasonable possibility that such information might be
publicly reported or disclosed or otherwise made available to third parties (regardless of whether the communication of such information is intended to have or cause that result is within your
control), or (b) provide to any person (other than your attorney or accountant) or entity any information that concerns or relates to the negotiations or circumstances leading to the execution
of this Separation Agreement.
- NON-DISPARAGEMENT: You and the Company mutually agree that the terms of your termination of employment are amicable and mutually acceptable and each party agrees with the other that neither shall malign, defame, blame, or otherwise disparage the other, either publicly or privately regarding the past or future business or personal affairs of the Company or you, or any other officer, director or employee of the Company.
Agreement you signed and that said Proprietary Rights Agreement survives this Agreement, specifically including the provisions therein regarding nondisclosure of the Company's trade secrets and confidential and proprietary information related to inventions, and strategic planning, customers, financial projections, revenue projections, financing, staffing, operation and accounting information related to the Company's business.
This Separation Agreement shall be deemed for purposes of the Older Workers Benefits Protection Act to have been delivered to you for your consideration on March 31, 2001. You have twenty-one (21) days from that date to decide whether or not to accept this agreement. If you accept this agreement, you will then have seven days from the date you sign this agreement and deliver an executed copy to the Company during seven day period you may revoke your acceptance by notifying the Company in writing of your desire to do so. No amounts otherwise due to you under this Separation Agreement will be paid to you until the expiration of that seven day revocation period.
Please sign both copies of this letter below, and the attached Settlement and Release, indicating your acceptance, and return one copy for our files.
|Accepted and Agreed:||Very truly yours,|
|STORAGE TECHNOLOGY CORP.|
Patrick J. Martin
Chairman, President and Chief Executive Officer
SETTLEMENT AND RELEASE
exchange for payment of salary (in the amount of $450,000.00) and bonus (in the amount of $247,500.00) to Gary Anderson ("Employee"), by Storage Technology Corporation ("Company"),
Employee hereby irrevocably and unconditionally releases and discharges the Company, its past and present subsidiaries, divisions, officers, directors, agents, employees, successors, and assigns
(separately and collectively, "releasees") jointly and individually, from any and all claims, known or unknown, which he, his heirs, successors or assigns have or may have against releasees and any
and all liability which releasees may have to his whether denominated claims, demands, causes of action, obligations, damages, or liabilities arising from any and all bases, however denominated,
including but not limited to, any claims of discrimination under the Age Discrimination in Employment Act ("ADEA"), the
Older Workers Benefit Protection Act, the Rehabilitation Act, the Family Medical Leave Act, the Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991
or any federal or state civil rights act, claims for wrongful discharge, breach of contract, or for damages under any other federal, state or local law, rule or regulation, or common law under any
theory, as well as any claim for attorney's fees, costs or expenses under any of these or any other applicable statute, ordinance, regulation or law; provided, however, that this release does not
affect (1) any claims for benefits which have vested or shall vest on or before the effective date of this Settlement and Release ("Release") under any of the Company's benefit plans;
(2) any claims for indemnification for acts of Employee which have occurred or may occur as an officer or employee of the Company; or (3) any claims which may arise after the execution
of this Release. This release specifically excepts any claim Employee may wish to make for unemployment compensation, and the Company agrees not to contest any claim made by Employee for unemployment
compensation. This release is for any relief, no matter how denominated, including, but not limited to, back pay, front pay, compensatory damages, punitive damages, or damages for pain and suffering.
Employee further agrees that he will not file or permit to be filed on his behalf any such claim, will not permit himself to be a member of any class seeking relief against the releasees and will not
counsel or assist in the prosecution of claims against the releasees, whether those claims are on behalf of himself or others, unless he is under a court order to do so.
agrees that by signing this Release, he is giving up the right to sue for age discrimination, and that under this Release Employee shall receive consideration to which he is
not otherwise entitled, and would not receive but for his release of rights under the ADEA. Employee has up to twenty-one (21) days after delivery of this Release to consider
whether to sign this Release. Employee agrees that, after he has signed and delivered this Release to the Company, this Release will not be effective or enforceable until the end of a seven
(7) day revocation period beginning the day after the Employee signs this Release, and that Employee will not receive the severance payment due under the Employment Agreement until this
seven-day period has expired. During this seven-day period, Employee may revoke this Release, without reason and in his sole judgment, but he may do so only by delivering a
written statement of revocation to the Company to the attention of General Counsel. If the Company does not receive a written statement of revocation from Employee by the end of the revocation period,
then this Release will become legally enforceable and Employee may not thereafter revoke this Release.
- Employee agrees that this Release shall be governed by federal law and the internal laws of the State of Colorado, irrespective of the choice of law rules of any state.
Employee's signature below acknowledges that he has read this document fully, that he understands and agrees to its contents, that he understands that it is a legally binding document, and
that he has been advised to consult a lawyer of his choosing before signing this Release, and has had the opportunity to do so.
GARY R. ANDERSON
This Release presented to Employee on March 31, 2001.