{"id":40513,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/severance-agreement-mylex-corp.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"severance-agreement-mylex-corp","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/severance-agreement-mylex-corp.html","title":{"rendered":"Severance Agreement &#8211; Mylex Corp."},"content":{"rendered":"<pre>SEVERANCE AGREEMENT\n\n\n     THIS AGREEMENT made as of the ______ day of __________, 19__, by and\nbetween Mylex Corporation, a Delaware corporation, and ____________________ (the\n\"Executive\").\n\n     WHEREAS, the Board of Directors (the \"Board\") of the Company (as\nhereinafter defined) recognizes that the possibility of a termination without\nCause (as hereinafter defined), and the possibility of a Change in Control (as\nhereinafter defined), can create significant distractions for its key management\npersonnel because of the uncertainties inherent in such situations;\n\n     WHEREAS, the Board has determined that it is essential and in the best\ninterest of the Company and its stockholders to retain the services of the\nExecutive, in general, and particularly in the event of a threat or the\noccurrence of a Change in Control and to ensure his or her continued dedication\nand efforts in such event without undue concern for his or her personal\nfinancial and employment security; and\n\n     WHEREAS, in order to induce the Executive to remain in the employ of the\nCompany, in general, and particularly in the event of a threat or the occurrence\nof a Change in Control, the Company desires to enter into this Agreement with\nthe Executive to provide the Executive with certain benefits in the event his or\nher employment is terminated without Cause or as a result of, or in connection\nwith, a Change in Control and to provide the Executive with certain other\nbenefits whether or not the Executive's employment is terminated.\n\n     NOW, THEREFORE, in consideration of the respective agreements of the\nparties contained herein, it is agreed as follows:\n\n     1.   TERM OF AGREEMENT.  This Agreement shall commence as of _______ __,\n19__, and shall continue in effect until _________ ___, 19__; PROVIDED, HOWEVER,\nthat commencing on __________, ___, 19__ and on each _____ ___ thereafter, the\nterm of this Agreement shall automatically be extended for one (1) year, unless\neither the Company or the Executive shall have given written notice to the\nother, at least ninety (90) days prior thereto, that the term of this Agreement\nshall not be so extended; and PROVIDED, FURTHER, HOWEVER, that notwithstanding\nany such notice by the Company not to extend, the term of this Agreement shall\nnot expire prior to the expiration of twenty-four (24) months after the\noccurrence of a Change in Control which occurs during the term of this\nAgreement.\n\n     2.   DEFINITIONS.\n\n\n\n\n     2.1  ACCRUED COMPENSATION.  For purposes of this Agreement, \"Accrued\nCompensation\" shall mean an amount which shall include all amounts earned or\naccrued through the \"Termination Date\" (as hereinafter defined) but not paid as\nof the Termination Date, including (i) base salary, (ii) reimbursement for\nreasonable and necessary business expenses incurred by the Executive on behalf\nof the Company, pursuant to the Company's expense reimbursement policy in effect\nat such time, during the period ending on the Termination Date, (iii) vacation\npay, and (iv) bonuses and incentive compensation (other than the \"Pro Rata\nBonus\" (as hereinafter defined)).\n\n     2.2  BASE AMOUNT.  For purposes of this Agreement, \"Base Amount\" shall mean\nthe greater of the Executive's annual base salary (a) at the rate in effect on\nthe Termination Date or (b) at the highest rate in effect at any time during the\nninety (90) day period prior to the Termination Date or a Change in Control, and\nshall include all amounts of his or her base salary that are deferred under the\nqualified and non-qualified employee benefit plans of the Company or any other\nagreement or arrangement.\n\n     2.3  BONUS AMOUNT.  For purposes of this Agreement, \"Bonus Amount\" shall\nmean the greater of (x) the most recent annual bonus paid or payable to the\nExecutive, or, if greater, the annual bonus paid or payable for the full fiscal\nyear ended prior to the fiscal year during which a Termination Date or a Change\nin Control occurred or (y) the average of the annual bonuses paid or payable\nduring the three full fiscal years ended prior to the Termination Date or, if\ngreater, the three full fiscal years ended prior to the Termination Date or\nChange in Control (or, in each case, such lesser period for which annual bonuses\nwere paid or payable to the Executive).\n\n     2.4  CAUSE.  For purposes of this Agreement, a termination of employment is\nfor \"Cause\" if the Executive has been convicted of a felony or the termination\nis evidenced by a resolution adopted in good faith by two-thirds of the Board\nthat the Executive (a) intentionally and continually failed substantially to\nperform his or her reasonably assigned duties with the Company (other than a\nfailure resulting from the Executive's incapacity due to physical or mental\nillness or from the assignment of duties that would constitute \"Good Reason\" as\nhereinafter defined), which failure continued for a period of at least thirty\n(30) days after a written notice of demand for substantial performance has been\ndelivered to the Executive, specifying the manner in which the Executive has\nfailed substantially to perform, or (b) intentionally and continually failed\nsubstantially to follow or perform the lawful directives of the President or any\nother superior of the Executive (other than a failure resulting from the\nExecutive's incapacity due to physical or mental illness or from the\nestablishment of directives that would constitute \"Good Reason\" as hereinafter\ndefined), which failure continued for a period of at least thirty (30) days\nafter written notice of demand for compliance or substantial performance has\nbeen delivered to the Executive, specifying the manner in which the Executive\nhas failed substantially to perform or comply; PROVIDED, HOWEVER, that no\ntermination of the Executive's employment\n\n                                          2\n\n\n\nshall be for Cause as set forth in clauses (a) or (b) above until (x) there\nshall have been delivered to the Executive a copy of a written notice setting\nforth that the Executive was guilty of the conduct set forth in clauses (a) or\n(b) and specifying the particulars thereof in reasonable detail, and (y) the\nExecutive shall have been provided an opportunity to be heard in person by the\nBoard.  No act, nor failure to act, on the Executive's part, shall be considered\n\"intentional,\" unless the Executive has acted, or failed to act, with a lack of\ngood faith or with a lack of reasonable belief that the Executive's action or\nfailure to act was in the best interest of the Company.\n\n     2.5  CHANGE IN CONTROL.  For purposes of this Agreement, a \"Change in\nControl\" shall mean any of the following events:\n\n     (a)  An acquisition (other than directly from the Company) of any voting\nsecurities of the Company (the \"Voting Securities\") by any \"Person\" (as the term\nperson is used for purposes of Section 13(d) or 14(d) of the Securities Exchange\nAct of 1934, as amended (the \"1934 Act\")) immediately after which such Person\nhas \"Beneficial Ownership\" (within the meaning of Rule 13d-3 promulgated under\nthe 1934 Act) of thirty percent (30%) or more of the combined voting power of\nthe Company's then outstanding Voting Securities; PROVIDED, HOWEVER, that in\ndetermining whether a Change in Control has occurred, Voting Securities which\nare acquired in a \"Non-Control Acquisition\" (as hereinafter defined) shall not\nconstitute an acquisition which would cause a Change in Control.  A \"Non-Control\nAcquisition\" shall mean an acquisition by (1) an employee benefit plan (or a\ntrust forming a part thereof) maintained by (x) the Company or (y) any\ncorporation or other Person of which a majority of its voting power or its\nequity securities or equity interest is owned directly or indirectly by the\nCompany (a \"Subsidiary\"), or (2) the Company or any Subsidiary.\n\n     (b)  The individuals who, as of the date this Agreement is approved by the\nBoard, are members of the Board (the \"Incumbent Board\"), cease for any reason to\nconstitute at least two-thirds of the Board; PROVIDED, HOWEVER, that if the\nelection, or nomination for election by the Company's stockholders, of any new\ndirector was approved by a vote of at least two-thirds of the Incumbent Board,\nsuch new director shall, for purposes of this Agreement, be considered and\ndefined as a member of the Incumbent Board; PROVIDED, FURTHER, HOWEVER, that no\nindividual shall be considered a member of the Incumbent Board if such\nindividual initially assumed office as a result of either an actual or\nthreatened \"Election Contest\" (as described in Rule 14a-11 promulgated under the\n1934 Act) or other actual or threatened solicitation of proxies or consents by\nor on behalf of a Person other than the Board (a \"Proxy Contest\"), including by\nreason of any agreement intended to avoid or settle any Election Contest or\nProxy Contest; or\n\n     (c)  Approval by stockholders of the Company of:\n\n                                          3\n\n\n\n          (1)  A merger, consolidation or reorganization involving the Company,\nunless\n\n               (i)  the stockholders of the Company, immediately before such\n                    merger, consolidation or reorganization, own, directly or\n                    indirectly immediately following such merger, consolidation\n                    or reorganization, at least eighty-five percent (85%) of the\n                    combined voting power of the outstanding voting securities\n                    of the corporation resulting from such merger or\n                    consolidation or reorganization (the \"Surviving\n                    Corporation\") in substantially the same proportion as their\n                    ownership of the Voting Securities immediately before such\n                    merger, consolidation or reorganization,\n\n               (ii) the individuals who were members of the Incumbent Board\n                    immediately prior to the execution of the agreement\n                    providing for such merger, consolidation or reorganization\n                    constitute at least two-thirds of the members of the board\n                    of directors of the Surviving Corporation, and\n\n              (iii) no Person (other than the Company, any Subsidiary, any\n                    employee benefit plan (or any trust forming a part thereof)\n                    maintained by the Company, the Surviving Corporation or any\n                    Subsidiary) has Beneficial Ownership of twenty percent (20%)\n                    or more of the combined voting power of the Surviving\n                    Corporation's then outstanding voting securities,\n\n               a transaction described in clauses (i) through (iii) shall herein\n               be referred to as a \"Non-Control Transaction\"; or\n\n          (2)  An agreement for the sale or other disposition of all or\n               substantially all of the assets of the Company to any Person\n               (other than a transfer to a Subsidiary).\n\nNotwithstanding the foregoing, a Change in Control shall not be deemed to \noccur solely because a Person (the \"Subject Person\") gained Beneficial \nOwnership of more than the permitted amount of the outstanding Voting \nSecurities as a result of the acquisition of Voting Securities by the Company \nwhich, by reducing the number of Voting Securities outstanding, increases the \nproportional number of shares Beneficially Owned by the Subject Person, \nprovided that if a Change in Control would occur (but for the operation of \nthis sentence) as a result of the acquisition of Voting Securities by the \nCompany, and after such share acquisition by the Company, the Subject Person \nbecomes the Beneficial \n\n                                          4\n\n\n\nOwner of any additional Voting Securities which increases the percentage of \nthe then outstanding Voting Securities Beneficially Owned by the Subject \nPerson, then a Change in Control shall occur.\n\n     (d)  Notwithstanding anything contained in this Agreement to the contrary,\nif the Executive's employment is terminated prior to a Change in Control and the\nExecutive reasonably demonstrates that such termination (i) was at the request\nof a third party who has indicated an intention or taken steps reasonably\ncalculated to effect a Change in Control and who effectuates a Change in Control\n(a \"Third Party\") or (ii) otherwise occurred in connection with, or in\nanticipation of, a Change in Control which actually occurs, then for all\npurposes of this Agreement, the date of a Change in Control with respect to the\nExecutive shall mean the date immediately prior to the date of such termination\nof the Executive's employment.\n\n     2.6  COMPANY.  For purposes of this Agreement, \"Company\" shall mean Mylex\nCorporation and shall include its \"Successors and Assigns\" (as hereinafter\ndefined).\n\n     2.7  DISABILITY.  For purposes of this Agreement, \"Disability\" shall mean a\nphysical or mental infirmity which impairs the Executive's ability to\nsubstantially perform his or her duties with the Company for a period of one\nhundred eighty (180) consecutive days, and the Executive has not returned to his\nor her full time employment prior to the Termination Date as stated in the\n\"Notice of Termination\" (as hereinafter defined).\n\n     2.8  GOOD REASON.  (a) For purposes of this Agreement, \"Good Reason\" shall\nmean the occurrence after a Change in Control of any of the events or conditions\ndescribed in subsections (1) through (8) hereof:\n\n          (1)  a change in the Executive's status, title, position or\n               responsibilities (including reporting responsibilities) which, in\n               the Executive's reasonable judgment, represents an adverse change\n               from his or her status, title, position or responsibilities as in\n               effect at any time within ninety (90) days preceding the date of\n               a Change in Control or at any time thereafter; the assignment to\n               the Executive of any duties or responsibilities which, in the\n               Executive's reasonable judgment, are inconsistent with his or her\n               status, title, position or responsibilities as in effect at any\n               time within ninety (90) days preceding the date of a Change in\n               Control or at any time thereafter; or any removal of the\n               Executive from or failure to reappoint or reelect him or her to\n               any of such offices or positions, except in connection with the\n               termination of his or her employment for Disability, Cause, as a\n               result of his or her death or by the Executive other than for\n               Good Reason;\n\n                                          5\n\n\n\n          (2)  a reduction in the Executives base salary or any failure to pay\n               the Executive any compensation or benefits to which he or she is\n               entitled within five (5) days of the date due;\n\n          (3)  the Company's requiring the Executive to be based at any place\n               outside a 30-mile radius from Fremont, California, except for\n               reasonably required travel on the Company's business which is not\n               materially greater than such travel generally required for such\n               Executive prior to the Change in Control;\n\n          (4)  the failure by the Company to (A) continue in effect (without\n               reduction in benefit level, and\/or reward opportunities) any\n               material compensation or employee benefit plan in which the\n               Executive was participating at any time within ninety (90) days\n               preceding the date of a Change in Control or at any time\n               thereafter, including, but not limited to, the plans listed on\n               Appendix A, unless such plan is replaced with a plan that\n               provides substantially equivalent compensation or benefits to the\n               Executive or (B) provide the Executive with compensation and\n               benefits, in the aggregate, at least equal (in terms of benefit\n               levels and\/or reward opportunities) to those provided for under\n               each other employee benefit plan, program and practice in which\n               the Executive was participating at any time within ninety (90)\n               days preceding the date of a Change in Control or at any time\n               thereafter;\n\n          (5)  the insolvency or the filing (by any party, including the\n               Company) of a petition for bankruptcy of the Company, which\n               petition is not dismissed within sixty (60) days;\n\n          (6)  any material breach by the Company of any provision of this\n               Agreement;\n\n          (7)  any purported termination of the Executive's employment for Cause\n               by the Company which does not comply with the terms of Section\n               2.4; or\n\n          (8)  the failure of the Company to obtain an agreement, satisfactory\n               to the Executive, from any Successors and Assigns to assume and\n               agree to perform this Agreement, as contemplated in Section 6(c)\n               hereof.\n\n                                          6\n\n\n\n     (b)  Any event or condition described in this Section 2.8(a)(1) through (8)\nwhich occurs prior to a Change in Control but which the Executive reasonably\ndemonstrates (1) was at the request of a Third Party, or (2) otherwise arose in\nconnection with, or in anticipation of, a Change in Control which actually\noccurs, shall constitute Good Reason for purposes of this Agreement\nnotwithstanding that it occurred prior to the Change in Control.\n\n     (c)  The Executive's right to terminate his or her employment pursuant to\nthis Section 2.8 shall not be affected by his or her incapacity due to physical\nor mental illness.\n\n     2.9  NOTICE OF TERMINATION.  For purposes of this Agreement, \"Notice of\nTermination\" shall mean a written notice from the Company of termination of the\nExecutive's employment which indicates the specific termination provision in\nthis Agreement relied upon, if any, and which sets forth in reasonable detail\nthe facts and circumstances claimed to provide a basis for termination of the\nExecutive's employment under the provision so indicated.\n\n     2.10 PRO RATA BONUS.  For purposes of this Agreement, \"Pro Rata Bonus\"\nshall mean an amount equal to the greater of (i) the Bonus Amount or (ii) an\namount equal to the bonus objective or target established by the Board for the\nExecutive for the fiscal year in which the termination occurs multiplied by a\nfraction the numerator of which is the number of days in the fiscal year through\nthe Termination Date and the denominator of which is 365.\n\n     2.11 SUCCESSORS AND ASSIGNS.  For purposes of this Agreement, \"Successors\nand Assigns\" shall mean a corporation or other entity acquiring all or\nsubstantially all the assets and business of the Company (including this\nAgreement) whether by operation of law or otherwise.\n\n     2.12 TERMINATION DATE.  For purposes of this Agreement, \"Termination Date\"\nshall mean in the case of the Executive's death, his or her date of death, in\nthe case of Good Reason, the last day of his or her employment, and in all other\ncases, the date specified in the Notice of Termination; PROVIDED, HOWEVER, that\nif the Executive's employment is terminated by the Company for Cause or due to\nDisability, the date specified in the Notice of Termination shall be at least 30\ndays from the date the Notice of Termination is given to the Executive, provided\nthat in the case of Disability the Executive shall not have returned to the\nfull-time performance of his or her duties during such period of at least 30\ndays.\n\n     3.   TERMINATION OF EMPLOYMENT.\n\n                                          7\n\n\n\n     3.1  CHANGE OF CONTROL.  If, during the term of this Agreement, the\nExecutive's employment with the Company shall be terminated within twenty-four\n(24) months following a Change in Control or prior to a Change in Control but\nfor \"Good Reason\" as defined in Section 2.8(b), the Executive shall be entitled\nto the following compensation and benefits:\n\n     (a)  If the Executive's employment with the Company shall be terminated (1)\nby the Company for Cause or Disability, (2) by reason of the Executive's death,\nor (3) by the Executive other than for Good Reason, the Company shall pay to the\nExecutive the Accrued Compensation and, unless such termination is by the\nCompany for Cause, a Pro Rata Bonus.\n\n     (b)  If the Executive's employment with the Company shall be terminated for\nany reason other than as specified in Section 3.1(a), the Executive shall be\nentitled to each and all of the following:\n\n          (i)  The Company shall pay the Executive all Accrued Compensation and\n               a Pro-Rata Bonus.\n\n          (ii) The Company shall pay the Executive as severance pay and in lieu\n               of any further compensation for periods subsequent to the\n               Termination Date, in a single payment, an amount in cash equal to\n               one (1) plus one-quarter (1\/4) for each year of service beyond\n               four years of service to the Company as an officer, up to a\n               maximum multiple of two (2), times the sum of (A) the Base Amount\n               and (B) the Bonus Amount.\n\n         (iii) For twenty-four (24) months after the Termination Date (the\n               \"Section 3.1 Continuation Period\"), the Company shall at its\n               expense continue on behalf of the Executive and his or her\n               dependents and beneficiaries the life insurance, disability,\n               medical, dental and hospitalization benefits provided (x) to the\n               Executive at any time during the ninety (90) day period prior to\n               the Change in Control or at any time thereafter or (y) to other\n               similarly situated executives who continue in the employ of the\n               Company during the Section 3.1 Continuation Period.  The coverage\n               and benefits (including deductibles and costs) provided in this\n               Section 3.1(b)(iii) during the Section 3.1 Continuation Period\n               shall be no less favorable to the Executive, and his or her\n               dependents and beneficiaries, than the most favorable of such\n               coverages and benefits during any of the periods referred to in\n               clauses (x) and (y) above.  The Company's obligation hereunder\n               with respect to the foregoing benefits shall be\n\n                                          8\n\n\n\n               limited to the extent that the Executive obtains any such\n               benefits pursuant to a subsequent employer's benefit plans, in\n               which case the Company may reduce the coverage of any benefits it\n               is required to provide the Executive hereunder as long as the\n               aggregate coverages and benefits of the combined benefit plans is\n               no less favorable to the Executive than the coverages and\n               benefits required to be provided hereunder.  This subsection\n               (iii) shall not be interpreted so as to limit any benefits to\n               which the Executive, his or her dependents or beneficiaries may\n               be entitled under any of the Company's employee benefit plans,\n               programs or practices following the Executive's termination of\n               employment, including, without limitation, retiree medical and\n               life insurance benefits.\n\n          (iv) The restrictions on any outstanding incentive awards (including\n               restricted stock and granted performance shares or units) granted\n               to the Executive under any Mylex Stock Option Plan or under any\n               other incentive plan or arrangement shall lapse and such\n               incentive award shall become 100% vested, all stock options and\n               stock appreciation rights granted to the Executive shall become\n               immediately exercisable and shall become 100% vested, and all\n               performance units granted to the Executive shall become 100%\n               vested.\n\n     (c)  The amounts provided for in Sections 3.1(a) and 3.1(b)(i) and (ii)\nshall be paid in a single lump sum cash payment within five (5) days after the\nExecutive's Termination Date (or earlier, if required by applicable law).\n\n     3.2  TERMINATION WITHOUT CAUSE.  If, during the term of this Agreement, the\nExecutive's employment with the Company is terminated, other than (i) within\n24 months following a Change of Control or (ii) prior to a Change of Control but\nfor \"Good Reason\" as defined in Section 2.8(b), the Executive shall be entitled\nto the following compensation and benefits:\n\n     (a)  If the Executive's employment with the Company shall be terminated (1)\nby the Company for Cause or Disability, (2) by reason of the Executive's death,\nor (3) by the Executive other than for Good Reason, the Company shall pay to the\nExecutive the Accrued Compensation and, unless such termination is by the\nCompany for Cause, a Pro Rata Bonus.\n\n     (b)  If the Executive's employment with the Company shall be terminated for\nany reason other than as specified in Sections 3.1 or 3.2 (a), the Executive\nshall be entitled to each and all of the following:\n\n                                          9\n\n\n\n          (i)  The Company shall pay the Executive all Accrued Compensation and\n               a Pro Rata Bonus.\n\n          (ii) The Company shall pay the Executive as severance pay and in lieu\n               of any further compensation for periods subsequent to the\n               Termination Date, normal monthly payments of the Executive's Base\n               Amount in effect immediately prior to the Termination Date for\n               that number of months, not to exceed six (6) months, determined\n               by the following formula:  two (2) months plus one (1) month if\n               the Executive served as an officer of the Company for at least\n               six (6) months prior to the Termination Date plus an additional\n               one (1) month for each full year prior to the Termination Date\n               that the Executive served as an officer of the Company.\n\n         (iii) For that number of months established by the formula set forth in\n               Section 3.2 (b)(ii) above, but not greater than six (6) months\n               (the \"Section 3.2 Continuation Period\"), the Company shall at its\n               expense continue on behalf of the Executive and his or her\n               beneficiaries the life insurance, disability, medical, dental and\n               hospitalization benefits provided (x) to the Executive at any\n               time during the ninety (90) day period prior to the Termination\n               Date or at any time thereafter or (y) to other similarly situated\n               Executives who continue in the employ of the Company during the\n               Section 3.2 Continuation Period.  The coverage and benefits\n               (including deductibles and costs) provided in this\n               Section 3.2(b)(iii) during the Section 3.2 Continuation Period\n               shall be no less favorable to the Executive, and his or her\n               dependents and beneficiaries, than the most favorable of such\n               coverages and benefits during any of the periods referred to in\n               clauses (x) and (y) above.  The Company's obligation hereunder\n               with respect to the foregoing benefits shall be limited to the\n               extent that the Executive obtains any such benefits pursuant to a\n               subsequent employer's benefit plans, in which case the Company\n               may reduce the coverage of any benefits it is required to provide\n               the Executive hereunder as long as the aggregate coverages and\n               benefits of the combined benefit plans is no less favorable to\n               the Executive than the coverages and benefits required to be\n               provided hereunder.  This subsection (iii) shall not be\n               interpreted so as to limit any benefits to which the Executive,\n               his or her dependents or beneficiaries may be entitled under any\n               of the Company's employee benefit plans, programs or practices\n               following the Executive's termination of employment, including,\n               without limitation, retiree medical and life insurance benefits.\n\n                                          10\n\n\n\n     3.3  The Executive shall not be required to mitigate the amount of any\npayment provided for in this Agreement by seeking other employment or otherwise\nand no such payment shall be offset or reduced by the amount of any compensation\nor benefits provided to the Executive in any subsequent employment except as\nprovided in Sections 3.1(b)(iii) and 3.2(b)(iii).\n\n     3.4  The severance pay and benefits provided for in this Section 3 shall be\nin lieu of any other severance or termination pay to which the Executive may be\nentitled under any Company severance or termination plan, program, practice or\narrangement.  The Executive's entitlement to any other compensation or benefits\nshall be determined in accordance with the Company's employee benefit plans\n(including, the plans listed on Appendix A) and other applicable programs,\npolicies and practices then in effect.\n\n     3.5  Notwithstanding any other provision of this Agreement to the contrary,\nthe termination of the Executive's employment with the Company in connection\nwith the sale, divestiture or other disposition of a Subsidiary or \"Division\"\n(as hereinafter defined) (or part thereof) shall not be deemed to be a\ntermination of employment of the Executive for purposes of this Agreement\nprovided the Executive accepts employment offered by the purchaser or acquiror\nof such Subsidiary or Division (or part thereof) and provided, in the event such\nsale, divestiture or other disposition of a Subsidiary or Division occurs\nsubsequent to or in connection with a Change in Control, the Company obtains an\nagreement from such purchaser or acquiror as contemplated in Section 6(c).  The\nExecutive shall not be entitled to benefits from the Company under this\nAgreement as a result of such sale, divestiture, or other disposition, or as a\nresult of any subsequent termination of employment.  \"Division\" shall mean a\nbusiness unit or other substantial business operation within the Company that is\noperated as a separate profit center, but that is not maintained by the Company\nas a separate legal entity.\n\n     4.   NOTICE OF TERMINATION.  Any purported termination of the Executive's\nemployment by the Company and\/or the Employer shall be communicated by Notice of\nTermination to the Executive.  For purposes of this Agreement, no-such purported\ntermination shall be effective without such Notice of Termination.\n\n     5.   EXCISE TAX PAYMENTS\n\n     (a)  Notwithstanding anything contained in this Agreement to the contrary,\nto the extent that the payments and benefits provided under this Agreement and\nbenefits provided to, or for the benefit of, the Executive under any other\nCompany plan or agreement (such payments or benefits are collectively referred\nto as the \"Payments\") would be subject to the excise tax (the \"Excise Tax\")\nimposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the\n\"Code\"), the Payments shall be\n\n                                          11\n\n\n\nreduced (but not below zero) if and to the extent necessary so that no Payment\nto be made or benefit to be provided to the Executive shall be subject to the\nExcise Tax (such reduced amount is hereinafter referred to as the \"Limited\nPayment Amount\").  Unless the Executive shall have given prior written notice\nspecifying a different order to the Company to effectuate the Limited Payment\nAmount, the Company shall reduce or eliminate the Payments, by first reducing or\neliminating those payments or benefits which are not payable in cash and then by\nreducing or eliminating cash payments, in each case in reverse order beginning\nwith payments or benefits which are to be paid the farthest in time from the\n\"Determination\" (as hereinafter defined).  Any notice given by the Executive\npursuant to the preceding sentence shall take precedence over the provisions of\nany other plan, arrangement or agreement governing the Executive's rights and\nentitlements to any benefits or compensation.\n\n     (b)  An initial determination as to whether the Payments shall be reduced\nto the Limited Payment Amount pursuant to the Plan and the amount of such\nLimited Payment Amount shall be made by an accounting firm at the Company's\nexpense selected by the Company which is designated as one of the six largest\naccounting firms in the United States (the \"Accounting Firm\").  The Accounting\nFirm shall provide its determination (the \"Determination\"), together with\ndetailed supporting calculations and documentation, to the Company and the\nExecutive within five (5) days of the Termination Date, if applicable, or such\nother time as requested by the Company or by the Executive (provided the\nExecutive reasonably believes that any of the Payments may be subject to the\nExcise Tax), and if the Accounting Firm determines that no Excise Tax is payable\nby the Executive with respect to a Payment or Payments, it shall furnish the\nExecutive with an opinion, at the Company's expense, reasonably acceptable to\nthe Executive that no Excise Tax will be imposed with respect to any such\nPayment or Payments.  Within ten (10) days of the delivery of the Determination\nto the Executive, the Executive shall have the right to dispute the\nDetermination (the \"Dispute\").  If there is no Dispute, the Determination shall\nbe binding, final and conclusive upon the Company and the Executive subject to\nthe application of Section 5(c) below.\n\n     (c)  As a result of the uncertainty in the application of Sections 4999 and\n28OG of the Code, it is possible that the Payments to be made to, or provided\nfor the benefit of, the Executive either have been made or will not be made by\nthe Company which, in either case, will be inconsistent with the limitations\nprovided in Section 5(a) (hereinafter referred to as an \"Excess Payment\" or\n\"Underpayment\", respectively).  If it is established pursuant to a final\ndetermination of a court, or an Internal Revenue Service (the \"IRS\") proceeding\nwhich has been finally and conclusively resolved, that an Excess Payment has\nbeen made, such Excess Payment shall be deemed for all purposes to be a loan to\nthe Executive made on the date the Executive received the Excess Payment and the\nExecutive shall repay the Excess Payment to the Company, on demand (but not less\nthan thirty (30) days after written notice is received by the Executive),\ntogether with\n\n                                          12\n\n\n\ninterest on the Excess Payment at the \"Applicable Federal Rate\" (as defined in\nSection 1274(d) of the Code) from the date of the Executive's receipt of such\nExcess Payment until the date of such repayment.  In the event that it is\ndetermined by (i) the Accounting Firm, the Company (which shall include the\nposition taken by the Company, or together with its consolidated group, on its\nfederal income tax return) or the IRS, (ii) pursuant to a determination by a\ncourt, or (iii) upon the resolution to the Executive's satisfaction of the\nDispute, that an Underpayment has occurred, the Company shall pay an amount\nequal to the Underpayment to the Executive within thirty (30) days of such\ndetermination or resolution, together with interest on such amount at the\nApplicable Federal Rate from the date such amount would have been paid to the\nExecutive until the date of payment.\n\n     (d)  Notwithstanding anything contained in this Agreement to the contrary,\nin the event that, according to the Determination, an Excise Tax will be imposed\non any Payment or Payments, the Company shall pay to the applicable government\ntaxing authorities, as Excise Tax withholding, the amount of the Excise Tax that\nthe Company has actually withheld from the Payment or Payments.\n\n     6.   SUCCESSORS: BINDING AGREEMENT.\n\n     (a)  This Agreement shall be binding upon and shall inure to the benefit of\nthe Company, and its Successors and Assigns, and the Company shall require any\nSuccessors and Assigns to expressly assume and agree to perform this Agreement\nin the same manner and to the same extent that the Company would be required to\nperform it if no such succession or assignment had taken place.\n\n     (b)  Neither this Agreement nor any right or interest hereunder shall be\nassignable or transferable by the Executive, his or her beneficiaries or legal\nrepresentatives, except by will or by the laws of descent and distribution.\nThis Agreement shall inure to the benefit of and be enforceable by the\nExecutive's personal representative.\n\n     (c)  In the event that a Division (or part thereof) is sold, divested, or\notherwise disposed of by the Company subsequent to or in connection with a\nChange in Control and the Executive is offered employment by the purchaser or\nacquiror thereof, the Company shall require such purchaser or acquiror to\nassume, and agree to perform, the Company's obligations under this Agreement, in\nthe same manner, and to the same extent, that the Company would be required to\nperform if no such acquisition or purchase had taken place.\n\n     7.   FEES AND EXPENSES.  The Company shall pay all reasonable legal fees\nand related expenses (including the costs of arbitrators, experts, evidence and\ncounsel) incurred by,the Executive as they become due as a result of (a) the\nExecutive's\n\n                                          13\n\n\n\ntermination of employment (including all such fees and expenses, if any,\nincurred in contesting or disputing any such termination of employment), (b) the\nExecutive seeking to obtain or enforce any right or benefit provided by this\nAgreement (including, but not limited to, any such fees and expenses incurred in\nconnection with the Dispute, and (c) the Executive's hearing before the Board as\ncontemplated in Section 2.4 of this Agreement; PROVIDED, HOWEVER, that the\ncircumstances set forth in clauses (a), (b) and (c) (other than as a result of\nthe Executive's termination of employment under circumstances described in\nSection 2.5(d)) occurred on or after a Change in Control.\n\n     8.   ARBITRATION.  Any dispute, controversy or claim arising out of or\nrelating to this Agreement, or the breach, termination or invalidity hereof,\n(collectively, a \"Claim\") shall be settled by arbitration pursuant to the rules\nof the American Arbitration Association.  Any such arbitration shall be\nconducted by one arbitrator, with experience in the matters covered by this\nAgreement, mutually acceptable to the parties.  If the parties are unable to\nagree on the arbitrator within thirty (30) days of one party giving the other\nparty written notice of intent to arbitrate a Claim, the American Arbitration\nAssociation shall appoint an arbitrator with such qualifications to conduct such\narbitration.  The decision of the arbitrator in any such arbitration shall be\nconclusive and binding on the parties.  Any such arbitration shall be conducted\nin San Jose, California.\n\n     9.   NOTICE.  For the purposes of this Agreement, notices and all other\ncommunications provided for in the Agreement (including the Notice of\nTermination) shall be in writing and shall be deemed to have been duly given\nwhen personally delivered or sent by certified mail, return receipt requested,\npostage prepaid, addressed to the respective addresses last given by each party\nto the other, provided that all notices to the Company shall be directed to the\nattention of the Board with a copy to the President and the Secretary of the\nCompany.  All notices and communications shall be deemed to have been received\non the date of delivery thereof or on the third business day after the mailing\nthereof, except that notice of change of address shall be effective only upon\nreceipt.\n\n     10.  NON-EXCLUSIVITY OF RIGHTS.  Nothing in this Agreement shall prevent or\nlimit the Executive's continuing or future participation in any benefit, bonus,\nincentive or other plan or program provided by the Company (except for any\nseverance or termination policies, plans, programs or practices) and for which\nthe Executive may qualify, nor shall anything herein limit or reduce such rights\nas the Executive may have under any other agreements with the Company (except\nfor any severance or termination agreement).  Amounts which are vested benefits\nor which the Executive is otherwise entitled to receive under any plan or\nprogram of the Company shall be payable in accordance with such plan or program,\nexcept as explicitly modified by this Agreement.\n\n                                          14\n\n\n\n     11.  SETTLEMENT OF CLAIMS.  The Company's obligation to make the payments\nprovided for in this Agreement and otherwise to perform its obligations\nhereunder shall not be affected by any circumstances, including, without\nlimitation, any set-off, counterclaim, recoupment, defense or other right which\nthe Company may have against the Executive or others.\n\n     12.  NO EMPLOYMENT RIGHT.  This Agreement does not constitute, and shall\nnot be construed to provide, any assurance of continuing employment.\nExecutive's employment with the Company and of its Successors or Assigns is \"at\nwill,\" and, subject to the terms and conditions of this Agreement, may be\nterminated by Executive or the Company at any time.\n\n     13.  MISCELLANEOUS.  No provision of this Agreement may be modified, waived\nor discharged unless such waiver, modification or discharge is agreed to in\nwriting, specifying such modification, waiver or discharge, and signed by the\nExecutive and the Company.  No waiver by either party hereto at any time of any\nbreach by the other party hereto of, or compliance with, any condition or\nprovision of this Agreement to be performed by such other party shall be deemed\na waiver of similar or dissimilar provisions or conditions at the same or at any\nprior or subsequent time.\n\n     14.  GOVERNING LAW.  This Agreement shall be governed by and construed and\nenforced in accordance with the laws of the State of Delaware without giving\neffect to the conflict of laws principles thereof.  Any action brought by any\nparty to this Agreement to enforce any decision of an arbitrator made as\ncontemplated in Section 8 above shall be brought and maintained in a court of\ncompetent jurisdiction in State of Delaware or the State of California.\n\n     15.  SEVERABILITY.  The provisions of this Agreement shall be deemed\nseverable, and the invalidity or unenforceability of any provision shall not\naffect the validity or enforceability of the other provisions hereof.\n\n     16.  ENTIRE AGREEMENT.  This Agreement constitutes the entire agreement\nbetween the parties hereto and supersedes all prior agreements, if any,\nunderstandings and arrangements, oral or written, between the parties hereto\nwith respect to the subject matter hereof.\n\n     IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by\nits duly authorized officer and the Executive has executed this Agreement as of\nthe day and year first above written.\n\n                                   Mylex Corporation\n\n                                          15\n\n\n\n\n\n                                   By:_______________________________________\n\n                                   Name:_____________________________________\n\n\n\n                                   Title:____________________________________\n\n\n                                   Executive:________________________________\n\n                                          16\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8278],"corporate_contracts_industries":[9509],"corporate_contracts_types":[9539,9551],"class_list":["post-40513","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-mylex-corp","corporate_contracts_industries-technology__networking","corporate_contracts_types-compensation","corporate_contracts_types-compensation__severance"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40513","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=40513"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40513"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40513"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40513"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}