{"id":39591,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/employment-agreement-storage-technology-corp-and-david-e.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-agreement-storage-technology-corp-and-david-e","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-agreement-storage-technology-corp-and-david-e.html","title":{"rendered":"Employment Agreement &#8211; Storage Technology Corp. and David E. Weiss"},"content":{"rendered":"<pre>\n[Storage Technology Corporation Letterhead Appears Here]\n\n\nDecember 6, 1995\n\n\nDavid E. Weiss\n6900 Pawnee Way\nLongmont, Colorado  80503\n\n\nDear Dave:\n\n   This letter (the 'Agreement') sets forth the terms and conditions of your\ncontinued employment with Storage Technology Corporation (the 'Company')\nfrom and after November 15, 1995, and supersedes and replaces prior\nemployment agreements, including, but not limited to, the agreement dated\nFebruary 17, 1995.  In consideration of your continued employment by the\nCompany and the mutual covenants and agreements contained herein, you and\nthe Company agree as follows:\n\n   1. Position.   You will be employed full time by the Company as Chief\nOperating Officer of the Company.  You will report to the Chief Executive\nOfficer ('CEO') and perform such duties as may be assigned you from time to\ntime by the CEO.  During the employment term, you shall devote your entire\nworking time, attention, and energies to the business of the Company.\nExcept for personal investments, which shall not conflict with the business\nof the Company, you shall not engage in any other business activity or\nactivities that require personal services by you which, in the judgment of\nthe CEO, in his sole discretion, may conflict with the proper performance of\nyour duties hereunder.\n\n   2. Employment.  The term of your employment (the 'Employment Term') shall\ncontinue and end (unless extended as provided herein) on December 31, 1997.\nThe Employment Term may be extended by mutual written agreement between you\nand the Company.\n\n   3. Base Compensation.  For your services during the Employment Term, the\nCompany will pay you an annual base salary, effective December 2, 1995, of\n$425,000 per year.  Such salary shall be payable in installments in\naccordance with the regular payroll policies of the Company in effect from\ntime to time during the Employment Term.  The amount of your base salary\nshall be reviewed, and adjusted as appropriate, from time to time (but at\nleast annually) during the Employment Term.  Any adjustment to your salary\nwill be based on an analysis of competitive salaries developed by a\nprofessional third party as well as upon an assessment of the performance\nand condition of the Company.\n\n   4. Bonuses.\n\n      MBO Bonus Program.  The Company currently maintains a Management by\nObjective Bonus Program (the 'MBO Program').  During the Employment Term,\nyou shall be eligible for such bonuses in accordance with the MBO Program as\nmay be established from time to time by the Company's Board of Directors\n(the 'Board').  During the Employment Term, your On Plan Bonus potential\npercentage shall be 60%.  Any such payments under the MBO Program shall be\nmade in accordance with the provisions, and under the conditions contained\nin, the MBO Program and the terms of any bonus award authorized for you by\nthe Board; provided; however, that your bonus entitlement shall be based on\nreasonable forecasts related to the Company's status at the beginning of\neach year, taking into account industry norms.\n\n   5. Termination of Employment.\n\n      (a) Termination Without Cause.  If, during the Employment Term,\n(i) the Company elects to terminate your employment without 'Cause' (as that\nterm is defined in subparagraph 5(d)); (ii)  you should elect to terminate\nyour employment for any reason, within six months after the appointment of a\nperson other than you as the new chief executive officer of the company; or\n(iii)  you should die, without Cause existing at such time, you shall be\nentitled to receive, as a severance payment a payment equal to two times the\nsum of (a) your then current rate of annual base compensation and (b) 100%\nof your then current bonus percentage under the MBO Program (whether or not\nsuch bonus would have been otherwise payable).  Payment of such amount shall\nbe expressly subject to execution by you of a release and covenant not to\ncompete, effective as of your termination date, in the form attached hereto\nas Exhibit A.  Such amount shall be paid to you in a cash lump sum within\nthirty days after your termination of employment, pursuant to this\nsubparagraph 5(a).\n\n      (b) Termination in the Event of Sale, Merger or Change of Control.  If\nthe Company is sold, or merged with or into another company (in a\ntransaction in which the Company is not the surviving entity), or in which\nthe stockholders of the Company immediately prior to the merger own 50% or\nless of the Company after the merger, or all or substantially all of the\nassets of the Company are sold, or more than 25% of the outstanding voting\ncapital stock of the Company is acquired by another person or persons (as\nsuch term is used in Sections 13(d) and 14(d)(2) of the Securities Exchange\nAct of 1934) acting as a group (any of which events is referred to\nhereinafter as a 'Change in Control'), and your employment is terminated\neither by you for any reason or by the Company without Cause, and such\ntermination occurs within 24 months after the date of any such Change in\nControl, then, upon such termination, and subject to the provisions of the\nfollowing  paragraph, the Company will pay you an amount equal to two times\nyour annual base salary then in effect, plus two times 100% of your On Plan\nBonus under the MBO Program based on your annual salary and On Plan Bonus\npotential percentage in effect immediately prior to the Change in Control\n(which shall be calculated as if the Company meets its plan for such year\nand which shall be payable whether or not the Company does in fact meet its\nplan); (ii) all outstanding stock options shall fully vest and become\nexercisable in full; and (iii) the Company's right to repurchase shall\nterminate with respect to any stock earlier purchased by you under the\nCompany's 1987 Equity Participation Plan, and all such stock shall become\nfully vested.  In addition, after such termination of employment, you shall\nbe entitled to exercise all stock options in accordance with the terms of\nthe Option Agreements.  To the extent you would be entitled to payments or\nyour rights to restricted stock or stock options would vest not only\npursuant to the terms of this Agreement,  but also pursuant to the\nprovisions of other agreements with the Company, then such payments shall be\ndeemed made and such vesting shall be deemed to occur pursuant to the terms\nof such other  agreements, and not under the terms of this Agreement.\n\n      (c) Limitation on Payments.  In the event that the severance and other\nbenefits provided for in this Agreement or otherwise payable to you (i)\nwould constitute 'parachute payments' within the meaning of Section 280G of\nthe Internal Revenue Code of 1986, as amended (the 'Code') and (ii) but for\nthis paragraph, would be subject to the excise tax imposed by Section 4999\nof the Code, then such severance benefits shall be either (i) delivered in\nfull, or (ii) delivered as to such lesser extent which would result in no\nportion of such severance benefits being subject to excise tax under Section\n4999 of the Code, whichever of the foregoing amounts, taking into account\nthe applicable federal, state and local income taxes and the excise tax\nimposed by Section 4999, results in the receipt by you on an after-tax\nbasis, of the greatest amount of severance benefits, notwithstanding that\nall or some portion of such severance benefits may be taxable under Section\n4999 of the Code.  Unless you and the Company agree otherwise in writing,\nany determination required under this paragraph shall be made in writing by\nthe Company's independent public accountants immediately prior to Change of\nControl (the 'Accountants'), whose determination shall be conclusive and\nbinding upon you and the Company for all purposes.  For purposes of making\nthe calculations required by this paragraph, the Accountants may make\nreasonable assumptions and approximations concerning applicable taxes and\nmay rely on reasonable, good faith interpretations concerning the\napplication of Sections 280G and 4999 of the Code.  You and the Company\nshall furnish to the Accountants such information and documents as the\nAccountants may reasonably request in order to make a determination under\nthis section.  The Company shall bear all costs the Accountants may\nreasonably incur in connection with any calculations contemplated by this\nparagraph.\n\n      (d)  Termination for Cause.  If the Company, during the Employment\nTerm, elects to terminate your employment for cause (as that term is defined\nbelow), your employment will terminate on the date fixed for termination by\nthe Company, and thereafter the Company will not be obligated to pay you any\nadditional compensation, whether in the way of base compensation, bonus, or\notherwise, other than the compensation due and owing through the date of\ntermination.    'Cause,' for purposes of this Agreement, shall mean any of\nthe following:  (1) willful breach by you of any provision of this\nAgreement; (ii)  gross negligence or dishonesty in the performance of your\nduties hereunder; (iii) engaging in conduct or activities or holding any\nposition that materially conflicts with the interest of, or materially\ninterferes with your duties owed to, the Company; or (iv) engaging in\nconduct which is materially detrimental to the business of the Company; or\n(v) any intentional violation of Company policies applicable to employees of\nyour position with the Company.\n\n   6. Benefit Programs.  During the Employment Term, you shall be entitled\nto such benefits and benefits programs that apply to you and your position\nas the Company and the Board may adopt from time to time, in accordance with\nthe provisions of such programs, including by way of example, but not\nlimitation, medical benefits, vacation, Company-provided car, and tax\npreparation advice.\n\n   7. Travel and Entertainment.  During the Employment Term, you shall be\nentitled to the payment of, or reimbursement for, your reasonable travel and\nentertainment expenses incurred in furthering the business of the Company,\nin accordance with the provisions of Company policies governing the payment\nor reimbursement of such amounts in existence from time to time.\n\n   8 .    Miscellaneous Provisions.\n\n      (a) Withholding.  All payments to you, pursuant to this Agreement,\nshall be subject to withholding of all amounts required to be withheld by\napplicable Internal Revenue Service and State tax agency authorities by the\nCompany and shall be conditioned upon your submission of all information or\nexecution of all instruments necessary to enable the Company to comply with\nsuch withholding requirements.\n\n      (b) Confidentiality Agreement.  You and the Company previously entered\ninto the Company's standard form of confidential inventions and trade\nsecrets agreement.  You agree that, during the Employment Term, you will\ncomply with all provisions of said agreement and will enter into such\nmodifications or amendments thereof as the Company may reasonably request\nfrom time to time.\n\n      (c) Notice.  Any notice required to be given in accordance with the\nprovisions of this Agreement shall be given in writing, either by personal\ndelivery or by causing such written notice to be mailed, first-class,\npostage-prepaid, in the United States mail, to you at the address set forth\nabove or to the Company at its principal business address, or at such other\naddress for a party as shall be specified by like notice, provided that\nnotice of change of address shall be effective only upon receipt thereof.\n\n      (d) Governing Law.  This Agreement is entered into in accordance with,\nand shall be interpreted pursuant to the provisions of, the laws of the\nState of Colorado.\n\n      (e) Severability.  If any provision of this Agreement shall be held to\nbe invalid or unenforceable, such invalidity or unenforceability shall not\naffect or impair the validity or enforceability of the remaining provisions\nof this Agreement, which shall  remain in full force and effect in\naccordance with their terms.\n\n      (f) Entire Agreement.  This Agreement embodies the entire agreement\nbetween the parties relating to the subject matter hereof, except as\nexpressly stated to the contrary herein, and supersedes all previous\nagreements or understandings, whether oral or written, except as may be\nexpressly stated herein.\n\n      (g) Amendment of Agreement.  This Agreement may not be modified or\namended, and no provisions of this Agreement may be waived, except by a\nwriting signed by the parties hereto.\n\nIf this letter accurately sets forth the terms of our agreement relating to\nyour employment from and after November 14, 1995, please sign the enclosed\ncopy of this letter in the space provided below and return it to the\nCompany.\n\n                              Very truly yours,\n\n                              STORAGE TECHNOLOGY CORPORATION\n\n                              \/s\/ Ryal R. Poppa\n                              --------------------\n                              Ryal R. Poppa\n\nAccepted and Agreed:\n\n \/s\/ David E. Weiss\n- --------------------------\nDavid E. Weiss\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8959],"corporate_contracts_industries":[9508],"corporate_contracts_types":[9539,9544],"class_list":["post-39591","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-storage-technology-corp","corporate_contracts_industries-technology__hardware","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/39591","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=39591"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39591"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39591"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39591"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}