{"id":40738,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/transition-agreement-hewlett-packard-co-and-lewis-e-platt.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"transition-agreement-hewlett-packard-co-and-lewis-e-platt","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/transition-agreement-hewlett-packard-co-and-lewis-e-platt.html","title":{"rendered":"Transition Agreement &#8211; Hewlett-Packard Co. and Lewis E. Platt"},"content":{"rendered":"<pre>\n                             TRANSITION AGREEMENT\n                             --------------------\n\n     This Transition Agreement (the 'Agreement') is made and entered into\neffective as of May 20, 1999 (the 'Effective Date') between Lewis E. Platt (the\n'Employee') and Hewlett-Packard Company, a Delaware corporation (the 'Company').\n\n                                R E C I T A L S\n\n\n     A.  The Employee is currently employed by the Company as its President and\nChief Executive Officer. In addition, the Employee serves as Chairman of the\nCompany's Board of Directors.\n\n     B.   The Company and the Employee desire to enter into this Agreement to\nprovide certain compensation to the Employee under the circumstances described\nherein and to encourage the Employee to continue his service to the Company.\n\n     C.   Capitalized terms used in the Agreement, to the extent not otherwise\ndefined, are  defined in Section 5 below.\n\n                               A G R E E M E N T\n\n     In consideration of the mutual covenants herein contained, and in\nconsideration of the continuing employment of the Employee by the Company, the\nparties agree as follows:\n\n\n     1.   Transition Payment. Except as otherwise provided below, subject to the\n          ------------------\nEmployee's continued status as Chairman, upon the occurrence of a 'Payment Date'\n(as defined below), the Employee shall be entitled to receive a transition\npayment in an amount equal to one and one half times the Employee's Target Pay,\nless applicable withholding (the 'Transition Payment'). The Transition Payment\nshall be paid to the Employee in a single lump sum cash payment within fifteen\n(15) days after the Payment Date. The term 'Payment Date' means the earlier of\n(i) the second anniversary of the Effective Date, provided the Employee is\nChairman on such date, or (ii) such earlier date as the Board removes the\nEmployee as Chairman other than for Cause (as defined in Section 5 below),\nprovided, that for this purpose, the Employee's resignation as Chairman at the\nrequest of the Board shall be treated as removal by the Board. If, on or before\nthe second anniversary of the Effective Date, the Employee ceases to serve as\nChairman for any other reason, then the Employee shall not be entitled to the\nTransition Payment.\n\n     2.   Termination of Agreement.  The terms of this Agreement shall terminate\n          ------------------------  \nupon the earlier of (i) the date that all obligations of the parties hereunder\nhave been satisfied, or (ii) the second anniversary of the Effective Date.  A\ntermination of the terms of this Agreement pursuant to the preceding sentence\nshall be effective for all purposes, except that such termination shall not\naffect the payment or provision of compensation or benefits on account of a\ntermination of employment occurring prior to the termination of the term of this\nAgreement. Notwithstanding the foregoing, the provisions of Sections 7, 8, 9,\n10, 11 and 12 shall survive termination of this Agreement.\n\n \n     3.   Obligations.  During the term of the Employee's employment with the\n          -----------  \nCompany, the Employee shall devote substantially all of his business efforts\nand time to the Company.  The foregoing, however, shall not preclude the\nEmployee from engaging in such activities and services as do not materially\ninterfere or conflict with the Employee's duties and responsibilities to the\nCompany.  The Employee shall comply with and be bound by the Company's operating\npolicies, procedures and practices from time to time in effect during\nemployment.  If, during the term of this Agreement, the Employee remains\nChairman after his employment with the Company terminates, the Employee and the\nBoard agree to negotiate in good faith the Employee's compensation for his Board\nservice.\n\n     4.   Retirement Benefits.  The Employee is currently covered under the\n          -------------------                                              \nCompany's Excess Benefit Retirement Plan and its Officers Early Retirement Plan\n(such programs referred to collectively herein as the 'Non-Qualified Retirement\nPlans'), in addition to the Company's Retirement Plan and its Deferred Profit-\nSharing Plan.  Except as provided below with respect to the Officers Early\nRetirement Plan, during the term of this Agreement the Company shall continue to\nmaintain such Non-Qualified Retirement Plans (or such comparable alternative\nnon-qualified retirement arrangements as the Company may, in its discretion,\ndetermine to be sufficient to satisfy its obligations to the Employee under this\nSection 4), so as to provide benefits to the Employee that are no less favorable\nthan those available to the Employee under such Plans as of the Effective Date,\nit being the Company's intention to deliver benefits to the Employee at a level\nthat is not less than that currently provided under the Non-Qualified Retirement\nPlans.  Notwithstanding the preceding sentence, on March 18, 1999 the\nCompensation Committee of the Board (the 'Compensation Committee') terminated\nthe Officers Early Retirement Plan effective November 1, 1999.  In connection\nwith such termination, the Company will calculate a lump sum equivalent benefit\nfor the Employee, and will credit such amount to the Employee's account under\nthe Company's Executive Deferred Compensation Plan, subject to the terms and\nconditions of that Plan.  In the event the Employee's employment with the\nCompany terminates for any reason other than by the Company for Cause, any\nemployment or other similar requirement applicable to the amount so credited to\nthe Executive Deferred Compensation Plan (together with any earnings credited\nthereto) shall be waived.\n\n     5.   Definition of Terms. The following terms referred to in this Agreement\n          -------------------  \nshall have the following meanings:\n\n          (a)  Board. 'Board' means the Board of Directors of the Company. Where\n               ----- \napplicable, the term 'Board' shall include a committee of the Board.\n\n          (b)  Cause. 'Cause' means (i) the Employee's willful failure to\n               -----\nsubstantially perform his material duties (other than as a failure resulting\nfrom the Employee's complete or partial incapacity due to physical or mental\nillness or impairment) for a period of thirty (30) days after a written demand\nfor substantial performance is delivered to the Employee by the Board that\nspecifically identifies the manner in which the Board believes that the Employee\nhas not substantially performed his duties, (ii) a material and willful\nviolation of a federal or state law or regulation applicable to the business of\nthe Company, and (iii) a willful act by the Employee that constitutes gross\nmisconduct and that is injurious to the Company. No act, or failure to act, by\nthe\n\n                                      -2-\n\n \nEmployee shall be considered 'willful' unless committed without good faith and\nwithout a reasonable belief that the act or omission was in the Company's best\ninterests.\n\n          (c)  Chairman.  'Chairman' means Chairman of the Company's Board. \n               --------  \n\n          (d)  Target Pay. 'Target Pay' means the Employee's combined base\n               ----------\nsalary and variable compensation amount as of the Effective Date as determined\nin accordance with the Company's 1999 Variable Pay Plan as in effect as of the\nEffective Date. \n\n     6.   Golden Parachute Payments. In the event it shall be determined that\n          ------------------------- \nany payment by the Company to or for the benefit of the Employee, whether paid\nor payable under this Agreement or otherwise but determined without regard to\nany additional payments required under this Section 6 (a 'Payment'), would be\nsubject to the excise tax imposed by Section 4999 of the Internal Revenue Code\nof 1986, as amended (the 'Code'), or any comparable federal, state or local\nexcise tax (such excise tax, together with any interest and penalties, is\nhereinafter collectively referred to as the 'Excise Tax'), then the Employee\nshall be entitled to receive an additional payment from the Company (a 'Gross-Up\nPayment') in such an amount that after the payment of all taxes (including,\nwithout limitation, any interest and penalties on such taxes and the Excise Tax)\non the payment and on the Gross-Up Payment, the Employee shall retain an amount\nequal to the Payment minus all applicable taxes on the Payment. The intent of\nthe parties is that the Company shall be solely responsible for, and shall pay,\nany Excise Tax on the Payment and Gross-Up Payment and any income and employment\ntaxes (including without limitation, penalties and interest) imposed on any\nGross-Up Payment (as well as any loss of tax deduction caused by the Gross-Up\nPayment). Unless the Company and the Employee otherwise agree in writing, all\ndeterminations required to be made under this Section and the assumptions to be\nutilized in arriving at such determinations shall be made in writing in good\nfaith by the accounting firm serving as the Company's independent public\naccountants immediately prior to the event giving rise to such Payment (the\n'Accountants'). For purposes of making the calculations required by this Section\n6, the accountants may make reasonable assumptions and approximations concerning\nthe application of Sections 280G and 4999 of the Code. The Company and the\nEmployee shall furnish to the Accountants such information and documents as the\nAccountants may reasonably request to make a determination under this Section.\nThe Company shall bear all costs the Accountants may reasonably incur in\nconnection with any calculations contemplated by this Section.\n\n     7.   Non-Compete; Non-Solicit.\n          ------------------------\n\n          (a)  The parties hereto recognize that the Employee's services are\nspecial and unique and that the level of compensation and the provisions herein\nfor compensation under Section 1 are partly in consideration of and conditioned\nupon the Employee's not competing with the Company, and that the Employee's\ncovenant not to compete or solicit as set forth in this Section 7 during and\nafter employment and Board service is essential to protect the business and good\nwill of the Company.\n\n          (b)  The Employee agrees that during the term of employment with the\nCompany and service on the Board and for a period of eighteen (18) months\nthereafter (the 'Covenant Period'), the Employee shall not render services for\nany organization or engage directly or indirectly in any business that, in the\nopinion of the Company, competes with or is in conflict with the interests of\nthe Company.\n\n                                      -3-\n\n \n          (c)  During the Covenant Period, the Employee shall not, directly or\nindirectly, induce or attempt to influence any employee of the Company to leave\nits employ.\n\n          (d)  During the Covenant Period, the Employee shall not, without prior\nwritten authorization from the Company, disclose to anyone outside the Company,\nor use in other than the Company's business, any confidential information and\nmaterial relating to the business of the Company. \n\n          (e)  The Employee agrees that the Company would suffer an irreparable\ninjury if the Employee were to breach the covenants contained in Sections 7(b),\n(c) or (d) and that the Company would by reason of such breach or threatened\nbreach be entitled to injunctive relief in a court of appropriate jurisdiction\nand the Employee hereby stipulates to the entering of such injunctive relief\nprohibiting the Employee from engaging in such breach.\n\n          (f)  If any of the restrictions contained in this Section 7 shall be\ndeemed to be unenforceable by reason of the extent, duration or geographical\nscope or other provisions thereof, then the parties hereto contemplate that the\ncourt shall reduce such extent, duration, geographical scope or other provision\nhereof and enforce this Section 7 in its reduced form for all purposes in the\nmanner contemplated hereby.\n\n     8.   Successors.\n          ----------\n\n          (a)  Company's Successors. Any successor to the Company (whether\n               -------------------- \ndirect or indirect and whether by purchase, lease, merger, consolidation,\nliquidation or otherwise) to all or substantially all of the Company's business\nand assets shall assume the obligations under this Agreement and agree expressly\nto perform the obligations under this Agreement in the same manner and to the\nsame extent as the Company would be required to perform such obligations in the\nabsence of a succession. For all purposes under this Agreement, the term\n'Company' shall include any successor to the Company's business and assets that\nexecutes and delivers the assumption agreement described in this Section 8(a) or\nthat becomes bound by the terms of this Agreement by operation of law.\n\n          (b)  Employee's Successors. The terms of this Agreement and all rights\n               ---------------------\nof the Employee hereunder shall inure to the benefit of, and be enforceable by,\nthe Employee's personal or legal representatives, executors, administrators,\nsuccessors, heirs, devisees and legatees.\n\n     9.   Notices.  Notices and all other communications contemplated by this\n          ------- \nAgreement shall be in writing and shall be deemed to have been duly given when\npersonally delivered or when mailed by U.S. registered or certified mail, return\nreceipt requested and postage prepaid.  In the case of the Employee, mailed\nnotices shall be addressed to him at the home address that he most recently\ncommunicated to the Company in writing.  In the case of the Company, mailed\nnotices shall be addressed to its corporate headquarters, and all notices shall\nbe directed to the attention of its General Counsel.\n\n     10.  Information. The Employee agrees not to disclose to others, or to take\n          ----------- \nor use for the Employee's own purposes or for the purposes of others, during or\nafter the Employee's employment, any Information owned or controlled by the\nCompany or any of its subsidiary or affiliated companies. The Employee agrees\nthat these restrictions shall also apply to all (i) Information in the Company's\npossession belonging to third parties, and (ii) Information conceived,\noriginated,\n\n                                      -4-\n\n \ndiscovered or developed, in whole or in part, by the Employee while an employee\nof the Company. As used herein, 'Information' includes trade secrets and other\nconfidential or proprietary business, technical, personnel or financial\ninformation, whether or not the Employee's work product, in written, graphic,\noral or other tangible or intangible forms, including but not limited to\nspecifications, samples, records, data, computer programs, drawings, diagrams,\nmodels, customer names, business or marketing plans, studies, analyses,\nprojections and reports, communications by or to attorneys (including attorney-\nclient privileged communications), memos and other materials prepared by\nattorneys or under their direction (including attorney work product), and\nsoftware systems and processes. Any Information which is not readily available\nto the public shall be considered to be a trade secret and confidential\nproperty, even if it is not specifically marked as such, unless the Company\nadvises the Employee otherwise in writing. The Employee agrees that upon the\nconclusion of his service to the Company, he will return to the Company all\nproperty (including any copies thereof) belonging to the Company, including all\ndocuments or other media in the Employee's possession or control which in any\nway incorporate or reflect any Information.\n\n     11.  Arbitration.\n          -----------\n\n          (a)  Agreement. The Company and The Employee agree that any dispute or\n               ---------\ncontroversy arising out of, relating to, or in connection with this Agreement,\nor the interpretation, validity, construction, performance, breach, or\ntermination thereof shall be settled by binding arbitration, unless otherwise\nrequired by law, to be held in Santa Clara County, California, in accordance\nwith the National Rules for the Resolution of Employment Disputes then in effect\nof the American Arbitration Association (the 'Rules'). The arbitrator may grant\ninjunctions or other relief in such dispute or controversy. The decision of the\narbitrator shall be final, conclusive and binding on the parties to the\narbitration. Judgment may be entered on the arbitrator's decision in any court\nhaving jurisdiction. \n\n          (b)  Governing Law. The arbitrators shall apply California law to the\n               -------------\nmerits of dispute or claim, without reference to rules of conflicts of law. The\nEmployee hereby expressly consents to the personal jurisdiction of the state and\nfederal courts located in California for any action or proceeding arising form\nor relating to this Agreement or relating to any arbitration in which the\nparties are participants.\n\n          (c)  Costs and Fees of Arbitration. The Employee shall pay the initial\n               -----------------------------\narbitration filing (not to exceed $200.00), and the Company shall pay the\nremaining costs and expenses of such arbitration (unless the Employee requests\nthat each party pay one-half of the costs and expenses of such arbitration or\nunless otherwise required by law). The Company and the Employee shall each pay\nseparately its counsel fees and expenses unless otherwise required by law.\n\n          (d)  Equitable Relief. The parties may apply to any court of competent\n               ----------------\njurisdiction for a temporary restraining order, preliminary injunction, or other\ninterim or conservatory relief, as necessary, without breach of this arbitration\nagreement and without abridgment of the powers of the arbitrator.\n\n          (e)  Employee's Representation. THE EMPLOYEE HAS READ AND UNDERSTANDS\n               -------------------------\nTHIS SECTION, WHICH DISCUSSES ARBITRATION. THE EMPLOYEE UNDERSTANDS THAT BY\nSIGNING THIS AGREEMENT, HE AGREES TO SUBMIT ANY FUTURE CLAIMS ARISING OUT OF,\nRELATING TO, OR IN CONNECTION WITH THE INTERPRETATION, VALIDITY, CONSTRUCTION,\nPERFORMANCE OR BREACH OF THIS AGREEMENT, TO BINDING ARBITRATION, UNLESS\nOTHERWISE REQUIRED BY LAW,\n\n                                      -5-\n\n \nAND THAT THIS ARBITRATION CLAUSE CONSTITUTES A WAIVER OF HIS RIGHT TO A JURY\nTRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO THIS AGREEMENT.\n\n     12.  Miscellaneous Provisions.\n          ------------------------ \n\n          (a)  No Duty to Mitigate. The Employee shall not be required to\n               -------------------   \nmitigate the amount of any payment contemplated by this Agreement (whether by\nseeking new employment or in any other manner), nor shall any such payment be\nreduced by any earnings that the Employee may receive from any other source.\n\n          (b)  Waiver. No provision of this Agreement shall be modified, waived\n               ------\nor discharged unless the modification, waiver or discharge is agreed to in\nwriting and signed by the Employee and by an authorized officer of the Company\n(other than the Employee). No waiver by either party of any breach of, or of\ncompliance with, any condition or provision of this Agreement by the other party\nshall be considered a waiver of any other condition or provision or of the same\ncondition or provision at another time.\n\n          (c)  Whole Agreement. No agreements, representations or understandings\n               ---------------\n(whether oral or written and whether express or implied) that are not expressly\nset forth in this Agreement have been made or entered into by either party with\nrespect to the subject matter hereof.\n\n          (d)  Choice of Law. The validity, interpretation, construction and\n               -------------\nperformance of this Agreement shall be governed by the laws of the State of\nCalifornia.\n\n          (e)  Severability. The invalidity or unenforceability of any provision\n               ------------\nor provisions of this Agreement shall not affect the validity or enforceability\nof any other provision hereof, which shall remain in full force and effect.\n\n          (f)  Employment At Will; Limitation of Remedies. The Company and the\n               ------------------------------------------\nEmployee acknowledge that the Employee's employment is at will, as defined in\nthe applicable law. If the Employee's employment terminates for any reason, the\nEmployee shall not be entitled to any payments, benefits, damages, awards or\ncompensation other than as provided by this Agreement.\n\n          (g)  No Assignment of Benefits. The rights of any person to payments\n               -------------------------\nor benefits under this Agreement shall not be made subject to option or\nassignment, either by voluntary or involuntary assignment or by operation of\nlaw, including (without limitation) bankruptcy, garnishment, attachment or other\ncreditor's process, and any action in violation of this Section 12(g) shall be\nvoid.\n\n          (h)  Taxes. All payments made pursuant to this Agreement will be\n               -----\nsubject to all applicable reporting obligations and any tax or other\ncontributions required to be withheld under Federal, state or local law, as\ninterpreted by the Company.\n\n          (i)  Assignment by Company. The Company may assign its rights under\n               ---------------------\nthis Agreement to an affiliate, and an affiliate may assign its rights under\nthis Agreement to another affiliate of the Company or to the Company. In the\ncase of any such assignment, the term 'Company' when used in a section of this\nAgreement shall mean the corporation that actually employs the Employee.\n\n                                      -6-\n\n \n          (j)  Counterparts. This Agreement may be executed in counterparts,\n               ------------\neach of which shall be deemed an original, but all of which together will\nconstitute one and the same instrument.\n\n     IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the\ncase of the Company by its duly authorized officer, as of the day and year first\nabove written.\n\n\nCOMPANY:                      By:    \/s\/ S.T. Jack Brigham III\n                                     -------------------------------------------\n                                     June 15, 1999\n\n                              Title: Senior Vice President Corporate Affairs,\n                                     -------------------------------------------\n                                     General Counsel\n\nEMPLOYEE:                            \/s\/ Lewis E. Platt  \n                                     -------------------------------------------\n                                     Lewis E. Platt\n\n                                      -7-\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7770],"corporate_contracts_industries":[9508],"corporate_contracts_types":[9539,9551],"class_list":["post-40738","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-hewlett-packard-co","corporate_contracts_industries-technology__hardware","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\/40738","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=40738"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40738"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40738"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40738"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}