Employment Agreement - Hewlett-Packard Co. and Carleton (Carly) S. Fiorina
HEWLETT-PACKARD COMPANY
EMPLOYMENT AGREEMENT
This Agreement is made as of the 17th day of July, 1999 by and between
Hewlett-Packard Company (the "Company"), and Carleton S. Fiorina (the
"Executive").
1. Duties and Scope of Employment.
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(a) Positions; Duties. During the Employment Term (as defined in Section
2), the Company shall employ Executive as the President and Chief Executive
Officer of the Company. Executive shall report solely and directly to the Board
of Directors of the Company (the "Board"). All other employees of the Company
shall report to Executive or her designee and not directly to the Board. During
the Employment Term, Executive shall have such responsibilities, duties and
authorities as commensurate with chief executive officers of public entities of
similar size and, in particular, shall be, in addition to being responsible for
the operations of the Company, the chief external representative of the Company.
The role and responsibilities of the Chairman of the Company shall be limited to
chairing the Board and mentoring and counseling the Chief Executive Officer when
and as requested by her and such other matters as the Chairman and Executive may
agree, and within thirty (30) days after the Employment Commencement Date, the
By-laws of the Company shall be amended accordingly. The Board shall, in good
faith, consider Executive's advice and recommendations, if any, in connection
with any appointments or nominations to the Board. For so long as Executive
remains President and Chief Executive Officer of the Company, the Board will
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nominate Executive to the Board and, if elected, Executive shall serve in such
capacity without additional consideration.
(b) Obligations. During the Employment Term, Executive shall devote
substantially all of her business efforts and time to the Company. Executive
agrees, during the Employment Term, not to actively engage in any other
employment, occupation or consulting activity for any direct or indirect
remuneration without the prior approval of the Board; provided, however, that
Executive may (i) serve in any capacity with any professional, community,
industry, civic, educational or charitable organization, (ii) serve as a member
of corporate boards of directors on which Executive currently serves and, with
the consent of the Board (which consent shall not be unreasonably withheld or
delayed), other corporate boards of directors and (iii) manage her and her
family's personal investments and legal affairs so long as such activities do
not materially interfere with the discharge of Executive's duties.
2. Employment Term. The Company hereby agrees to employ Executive and
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Executive hereby accepts employment, in accordance with the terms and conditions
set forth herein, commencing on July 17, 1999 (the "Employment Commencement
Date"). The period of Executive's employment hereunder is referred to herein as
the "Employment Term." Executive and the Company understand and acknowledge
that Executive's employment with the Company constitutes "at-will" employment.
Subject to the Company's obligation to provide severance benefits as specified
herein, Executive and the Company acknowledge that this employment relationship
may be terminated at any time, upon written notice to the other party, with or
without Cause or Good Reason and for any or no cause or reason, at the option of
either the Company or Executive.
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3. Compensation/Benefits. During the Employment Term, the Company shall pay
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and provide Executive the following:
(a) Cash Compensation. As compensation for her services to the Company,
Executive shall receive a base salary ("Base Salary") and shall be eligible to
receive additional variable compensation. As of the Employment Commencement
Date, Executive's annualized Base Salary shall be $1,000,000, and her annual
variable compensation amount shall be targeted at no less than $1,250,000 (the
"Target Bonus" which, together with the Base Salary, shall be referred to herein
as "Target Pay"), with an opportunity to earn up to at least $3,750,000 in
annual variable compensation. Except as provided herein, during the Employment
Term, Executive's Base Salary and variable compensation for the fiscal year of
the Company shall be determined in accordance with the Company's 1999 Variable
Pay Plan as in effect as of the Employment Commencement Date, as amended, or any
successor plan (the "Variable Pay Plan"). During the Employment Term, the
Compensation Committee of the Board (the "Compensation Committee") shall review
Executive's Base Salary and variable compensation then in effect at least
annually and shall increase such amounts as the Compensation Committee may
approve. Such Base Salary and variable compensation shall be payable in
accordance with the Company's normal payroll practices and, in the case of
variable compensation, in accordance with the terms of the Variable Pay Plan,
except as otherwise provided herein. No increase in Base Salary shall be used
to offset or otherwise reduce any obligations of the Company to Executive
hereunder or otherwise.
(b) Joining Bonus. Within fifteen (15) business days after the Employment
Commencement Date, the Company shall pay Executive a one-time lump sum cash
payment in the
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amount of $3,000,000, reduced by any annual cash bonus Executive receives from
her prior employer for the fiscal year ending September 30, 1999. If such annual
cash bonus is paid after Executive receives the aforesaid payment, Executive
shall refund to the Company an amount equal to the amount of such annual cash
bonus received by her.
(c) Fiscal Years 1999 and 2000 Bonuses.
(i) Pro-Rated Fiscal Year 1999 Bonus. Executive shall receive a cash
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bonus on account of, and subject to, her employment with the Company through the
end of the Company's 1999 fiscal year equal to $1,250,000 multiplied by a
fraction, determined by dividing the number of days from the Employment
Commencement Date through the Company's 1999 fiscal year-end, by 365, payable as
a single lump sum cash payment in accordance with the normal payment practices
under the Variable Pay Plan (the "Guaranteed 1999 Bonus").
(ii) Fiscal Year 2000 Bonus. For the Company's 2000 fiscal year,
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subject, except as otherwise provided herein, to her continued employment with
the Company through the end of the 2000 fiscal year, Executive shall be
guaranteed a minimum bonus of $1,250,000, payable as a single lump sum cash
payment in accordance with the normal payment practices under the Variable Pay
Plan (the "Guaranteed 2000 Bonus")
(d) Equity Compensation.
(i) Stock Options. The Compensation Committee of the Board, which
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administers the Company's 1995 Incentive Stock Plan (the "1995 Plan"), has
awarded Executive, as
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of the Employment Commencement Date, a non-qualified stock option (the "Stock
Option") under the Company's 1995 Plan to purchase a total of 600,000 shares of
Company common stock, $1 par value (the "Common Stock"), with a per share
exercise price equal to 100% of the fair market value of the Company's Common
Stock as of the Employment Commencement Date as determined under the 1995 Plan.
The Stock Option is for a term of 10 years (subject to earlier termination as
provided in the 1995 Plan. In the case of termination by the Company without
Cause, voluntary termination by Executive for Good Reason, death or a Disability
Termination, the Stock Option and any other Company stock option then held by
Executive shall remain exercisable (to the extent vested on the date of
termination) until the earlier of one year from the employment termination date
or the expiration of the option. Subject to accelerated vesting as set forth in
this Agreement, the Stock Option shall vest and become exercisable as to 25% of
the shares originally subject to the Stock Option on each anniversary of the
Employment Commencement Date, so as to be 100% vested on the four year
anniversary thereof, conditioned upon Executive's continued employment with the
Company as of each vesting date. Executive may, but need not, exercise the Stock
Option or any other stock option granted to Executive with a loan from the
Company in accordance with Section IX of the 1995 Plan. The Stock Option shall
in all respects be subject to the terms, definitions and provisions of the 1995
Plan and the standard form of stock option agreement, a copy of which has been
given to Executive, as modified by the terms of this Agreement.
(ii) Restricted Stock. The Compensation Committee of the Board has
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awarded Executive as of the Employment Commencement Date, 290,000 shares of the
Company's Common Stock under the 1995 Plan (the "Restricted Stock"). Subject to
accelerated vesting as set forth in this
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Agreement, the Restricted Stock shall vest (i.e., the forfeiture of the
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Restricted Stock upon Executive's termination of employment shall lapse) as to
one-third (1/3) of the Restricted Stock shares on each anniversary of the
Employment Commencement Date, so as to be 100% vested on the three year
anniversary thereof, conditioned upon Executive's continued employment with the
Company as of each vesting date. Executive shall be entitled to all cash
dividends paid on the Restricted Stock. If there is (i) any stock dividend,
stock split or other change in the Restricted Stock, or (ii) any merger or sale
of all or substantially all of the assets or other acquisition of the Company,
any and all new, substituted or additional securities attributable to the
Restricted Stock shall be included thereafter as "Restricted Stock" for purposes
of this Agreement. The Restricted Stock shall in all respects be subject to the
terms, definitions and provisions of the 1995 Plan and the standard form of
restricted stock agreement, a copy of which has been given to Executive, as
modified by the terms of this Agreement.
(iii) Restricted Share Units.
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(A) As of the Employment Commencement Date, the Company shall
credit Executive's account on the books of the Company with 290,000 "restricted
share units" (the "Restricted Units"). The Restricted Units may not be sold,
assigned, exchanged, pledged or otherwise transferred and are subject to the
Forfeiture Restrictions (as hereinafter defined). In the event of a termination
of employment prior to the lapse of the Forfeiture Restrictions, Executive
shall, for no consideration, forfeit to the Company all Restricted Units to the
extent then subject to the Forfeiture Restrictions. The forfeiture of Restricted
Units upon such a termination of employment is herein referred to as "Forfeiture
Restrictions." Except as otherwise provided herein,
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the Forfeiture Restrictions shall lapse as to one-third (1/3) of the Restricted
Units on each anniversary of the Employment Commencement Date, so as to be 100%
vested on the three year anniversary thereof, conditioned upon Executive's
continued employment with the Company as of each vesting date.
(B) If on any date the Company shall pay any dividend on the
Common Stock (other than a dividend payable in Common Stock), the number of
Restricted Units credited to Executive shall as of such date be increased by an
amount equal to: (x) the product of the number of Restricted Units credited to
Executive as of the record date for such dividend multiplied by the per share
amount of any dividend (or, in the case of any dividend payable in property
other than cash, the per share value of such dividend, as determined in good
faith by the Board), divided by (y) the fair market value of a share of Common
Stock on the payment date of such dividend as determined under the 1995 Plan.
In the case of any dividend declared on Common Stock which is
payable in Common Stock, the number of Restricted Units credited to Executive
shall be increased by a number equal to the product of (x) the aggregate number
of Restricted Units that have been credited to Executive through the related
dividend record date multiplied by (y) the number of shares Common Stock
(including any fraction thereof) payable as a dividend on a share of Common
Stock. In the event of any change in the number or kind of outstanding shares of
Common Stock by reason of any recapitalization, reorganization, merger,
consolidation, stock split or any similar change affecting the Common Stock
(other than a dividend payable in Common Stock) the Company shall make an
appropriate adjustment in the number and terms of the Restricted Units credited
to Executive so that,
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after such adjustment, the Restricted Units shall represent a right to receive
the same consideration (or if such consideration is not available, other
consideration of the same value) that Executive would have received in
connection with such recapitalization, reorganization, merger, consolidation,
stock split or any similar change if she had owned on the applicable record date
a number of shares of Common Stock equal to the number of Restricted Units
credited to Executive's account prior to such adjustment.
(C) On the first to occur of the fifth (5th) anniversary of the
Employment Commencement Date, the date of any termination of employment, or the
first date on which occurs a Change of Control, the Company shall pay to
Executive a number of shares of Common Stock equal to the aggregate number of
vested Restricted Units credited to Executive as of such date.
(iv) When Executive incurs tax liability in connection with the
exercise of the Stock Option or options, Restricted Stock or Restricted Units,
Executive may elect to satisfy her resulting withholding tax obligation by
having the Company retain shares of Common Stock having a fair market value
equal to the Company's minimum withholding tax obligation.
(v) Ongoing Awards. Executive shall fully participate in annual
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restricted stock and stock option grants and any other long-term incentive
program at levels commensurate with her position.
(vi) Registration. At all times, the Company shall maintain
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registrations on Form S-8 or another applicable form so that the Restricted
Stock, Common Stock issued in connection
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with Restricted Units or upon exercise of the Stock Option or other options or
other equity awards are immediately saleable by Executive on the public market
(subject to the non-registration limitations of applicable laws).
(e) Employee Benefits. Executive shall, to the extent eligible, be
entitled to participate at a level commensurate with her position in all
employee benefit welfare and retirement plans and programs, as well as equity
plans, provided by the Company to its senior executives in accordance with the
terms thereof as in effect from time to time. Such plans and programs currently
include, without limitation, the 1995 Plan, the Variable Pay Plan, the Employee
Stock Purchase Plan, the Tax Saving Capital Accumulation Plan, the Retirement
Plan, the Deferred Profit-Sharing Plan, the Excess Benefit Retirement Plan, the
Executive Deferred Compensation Plan, financial counseling program, automobile
program, group term life insurance plan, comprehensive health, major medical,
dental insurance plans and short-term and long-term disability plans.
(f) Perquisites. The Company shall provide to Executive, at the Company's
cost, all perquisites to which other senior executives of the Company are
entitled to receive and such other perquisites which are suitable to the
character of Executive's position with the Company and adequate for the
performance of her duties hereunder but not less than the level being provided
on the date hereof to her predecessor as Chief Executive Officer except as
otherwise required because of changes in law. To the extent consistent with the
Company's past practice, the Company shall not treat such amounts as income to
Executive.
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(g) Business and Entertainment Expenses. Upon submission of appropriate
documentation in accordance with its policies in effect from time to time, the
Company shall pay or reimburse Executive for all business expenses which
Executive incurs in performing her duties under this Agreement, including, but
not limited to, travel, entertainment, professional dues and subscriptions, and
all dues, fees, and expenses associated with membership in various professional,
business, and civic associations and societies in which Executive participates
in accordance with the Company's policies in effect from time to time.
(h) Flexible Time Off. Executive shall be entitled to paid time off in
accordance with the standard written policies of the Company with regard to
senior executives, but in no event less than twenty-five (25) days, per calendar
year.
(i) Relocation. Executive shall be entitled to relocation benefits
pursuant to the Company's relocation benefit program, as supplemented by the
provisions of the side letter entered into by the Company and Executive.
4. Termination of Employment.
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(a) Death or Disability. The Company may terminate Executive's employment
for disability in the event Executive has been unable to perform her material
duties hereunder for six (6) consecutive months because of physical or mental
incapacity by giving Executive notice of such termination while such continuing
incapacity continues (a "Disability Termination"). Executive's employment shall
automatically terminate on Executive's death. In the event Executive's
employment with the Company terminates during the Employment Term by reason of
Executive's
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death or a Disability Termination, then upon the date of such termination (i)
any forfeiture provision of any Restricted Stock or Restricted Units shall lapse
and Executive shall be fully vested in such Restricted Stock and Restricted
Units, (ii) the Stock Option and all other stock option or equity grants to
Executive shall vest in full so as to become fully exercisable, (iii) the
Company shall promptly pay and provide Executive (or in the event of Executive's
death, Executive's estate) (A) any unpaid Base Salary through the date of
termination and any accrued vacation, (B) any unpaid bonus accrued with respect
to the fiscal year ending on or preceding the date of termination, (C)
reimbursement for any unreimbursed expenses incurred through the date of
termination and (D) all other payments, benefits or fringe benefits to which
Executive may be entitled subject to and in accordance with, the terms of any
applicable compensation arrangement or benefit, equity or fringe benefit plan or
program or grant and amounts which may become due under Sections 6, 9 and 10
hereof (collectively, items under (iii) are referred to as "Accrued Benefits"),
(iv) the Company shall pay the Guaranteed 1999 Bonus and the Guaranteed 2000
Bonus to the extent not previously paid or paid under (v) below and (v) the
Company shall pay to Executive at the time other senior executives are paid
under any Variable Pay Plan or cash bonus or long term incentive plan, a pro-
rata bonus equal to the amount Executive would have received if employment
continued (without any discretionary cutback) multiplied a fraction where the
numerator is the number of days in each respective bonus period prior to
Executive's termination and the denominator is the number of days in the bonus
period (the "Prorated Bonus").
(b) Termination for Cause. The Company may terminate Executive's
employment for Cause. In the event that Executive's employment with the Company
is terminated during the
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Employment Term by the Company for Cause, Executive shall not be entitled to any
additional payments or benefits hereunder, other than Accrued Benefits
(including, but not limited to, any then vested Stock Option, Restricted Stock,
Restricted Units or other stock options or equity grants). For the purposes of
this Agreement,"Cause" shall mean (i) the willful failure by Executive to
attempt to substantially perform her duties with the Company (other than any
such failure resulting from her incapacity due to physical or mental
impairment), unless any such failure is corrected within thirty (30) days
following written notice by the Board that specifically identifies the manner in
which the Board believes Executive has substantially not attempted to materially
perform her duties or (ii) the willful gross misconduct by Executive with regard
to the Company that is materially injurious to the Company. No act, or failure
to act, by Executive shall be "willful" unless committed without good faith and
without a reasonable belief that the act or omission was in the best interest of
the Company. No event shall be deemed the basis for Cause unless Executive is
terminated therefor within sixty (60) days after such event is known to the
Chairman of the Company, or, if Executive is Chairman, known to the Chairman of
any committee of the Board.
Notwithstanding the foregoing, Executive shall not be deemed to have
been terminated for Cause without (i) advance written notice provided to
Executive not less than fourteen (14) days prior to the date of termination
setting forth the Company's intention to consider terminating Executive and
including a statement of the proposed date of termination and the specific
detailed basis for such consideration of termination for Cause, (ii) an
opportunity of Executive, together with her counsel, to be heard before the
Board at least ten (10) days after the giving of such notice and prior to the
proposed date of termination, (iii) a duly adopted resolution of the Board
stating that in accordance
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with the provisions of the next to the last sentence of this paragraph (b), that
the actions of Executive constituted Cause and the basis thereof, and (iv) a
written determination provided by the Board setting forth the acts and omissions
that form the basis of such termination of employment. Any determination by the
Board hereunder shall be made by the affirmative vote of at least a two-thirds
(2/3) majority of all of the members of the Board (other than Executive). Any
purported termination of employment of Executive by the Company which does not
meet each and every substantive and procedural requirement of this paragraph (b)
shall be treated for all purposes under this Agreement as a termination of
employment without Cause.
(c) Voluntary Termination for Good Reason; Involuntary Termination Other
Than for Cause. Executive may terminate her employment for Good Reason at any
time within one hundred eighty (180) days after the occurrence of the Good
Reason event by written notice to the Company. If Executive's employment with
the Company is voluntarily terminated by Executive for "Good Reason" or is
involuntarily terminated by the Company other than for "Cause", then, subject to
Executive executing and not revoking the Release Agreement attached hereto as
Exhibit A (other than with respect to subsections 4(c)(i) and (vii) below), the
Company shall pay or provide Executive with the following:
(i) any Accrued Benefits;
(ii) the Prorated Bonus;
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(iii) the Guaranteed 1999 Bonus and the Guaranteed 2000 Bonus to the
extent not previously paid or paid under (i) or (ii) above;
(iv) a severance amount equal to two (2) times Executive's then
Target Pay, payable in substantially equal installments over 24 months in
accordance with the Company's standard payroll practice; provided, however, that
(i) if Executive competes with the Company or materially violates Sections 7(c)
or (d) hereof, any severance payments due thereafter shall cease and be
forfeited as of the commencement of such competition, (ii) in the event of a
Change of Control after such termination, the unpaid portion of such severance
amount, if any, shall be paid to Executive in full in a single lump sum cash
payment within fifteen (15) business days following such Change of Control, and
(iii) if such termination occurs in contemplation of, at the time of, or within
two (2) years after a Change of Control, Executive shall instead be entitled to
a lump sum cash payment within fifteen (15) business days after delivery of the
aforesaid release equal to three (3) times the sum of (A) Executive's then Base
Salary and (B) the higher of (x) Executive's then current Target Pay and (y) the
highest variable pay and annual incentive bonus received by Executive for the
two (2) fiscal years last ending prior to such termination. For purposes of this
Section 4(c)(iv), "competition" shall mean engaging in any business that
materially competes with the Company.
(v) to the extent eligible on the date of termination, continued
participation, at no additional after tax cost to Executive than Executive would
have as an employee, in all welfare plans until two (2) years after the date of
termination; provided, however, that if such termination occurs within two (2)
years after a Change of Control, Executive shall be entitled to continued
participation in all welfare plans for three (3) years rather than two (2)
years. In the event Executive obtains other
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employment that offers substantially similar or improved benefits, as to any
particular welfare plan, such continuation of coverage by the Company for such
benefits under such plan shall immediately cease. To the extent such coverage
cannot be provided under the Company's welfare benefit plans without
jeopardizing the tax status of such plans, for underwriting reasons or because
of the tax impact on Executive, the Company shall pay Executive an amount such
that Executive can purchase such benefits separately at no greater after tax
cost to Executive than Executive would have had if the benefits were provided to
Executive as an employee;
(vi) in the event such termination occurs in contemplation of, at the
time of, or within two (2) years after a Change of Control, three (3) additional
years of service and compensation credit (at Executive's then compensation
level) for benefit purposes under any defined benefit type retirement plan,
including but not limited to any tax-qualified retirement plan and any excess
benefit retirement plan if then in effect, and, if Executive is not eligible to
receive benefits under any such plan on the date of termination, two (2)
additional years of age for determining eligibility to receive such benefits,
provided that benefits under any such plan will not commence until Executive
actually attains the required distribution age under the plan or Executive's
spouse qualifies for death benefits under such plan and further provided that,
with regard to any plan qualified under Section 401(a) of the Internal Revenue
Code of 1986, as amended (the "Code"), the additional amounts may be provided on
a nonqualified plan basis.
(vii) any forfeiture provision of any Restricted Stock or Restricted
Unit shall lapse and Executive shall be fully vested in such Restricted Stock
and Restricted Unit;
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(viii) full vesting of 50% of Executive's unvested Stock Option and
each traunche of each other grant of stock options or other equity awards,
provided that if such termination takes place in contemplation of, at the time
of, or within two (2) years after a Change of Control, Executive shall be
entitled to full vesting of the Stock Option and all other stock options and
equity awards, except that if such Change of Control occurs within one (1) year
after the Employment Commencement Date, (A) the foregoing proviso shall not
apply and (B) the additional vesting beyond that occurring upon the Change of
Control shall not occur if the termination is at the time of or within three (3)
months after the Change of Control; and
(ix) outplacement services at a level commensurate with Executive's
position, including use of an executive office and secretary, for a period of
one (1) year commencing on Executive's date of termination but in no event
extending beyond the date on which Executive commences other full time
employment.
For the purposes of this Agreement "Good Reason" means, without the express
written consent of Executive, the occurrence of any of the following events: (i)
any reduction or diminution (except temporarily during any period of disability)
in Executive's titles or positions, any material diminution in Executive's
authority, duties or responsibilities with the Company (it being acknowledged
that, in the event any entity becomes the owner (directly or indirectly) of more
than 35% of the Common Stock, it shall be Good Reason if Executive is not the
Chief Executive Officer of such entity); (ii) a breach by the Company of any
material provision of this Agreement, including, but not limited to, a breach of
the Company's obligation under Section 1(a), any reduction, (other than a
reduction (not to exceed ten percent (10%)) that applies, in equal percentages,
to all U.S.
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officers (within the meaning of Section 16 of the Securities Exchange Act of
1934, as amended) of the Company), in Executive's Base Salary or any material
failure to timely pay any part of Executive's compensation (including, without
limitation, Base Salary, annualized Target Pay and bonus) or to materially
provide in the aggregate the level of benefits contemplated herein; (iii) the
failure of the Company to obtain and deliver to Executive a satisfactory written
agreement from any successor to the Company to assume and agree to perform this
Agreement in accordance with Section 8 hereof; or (iv) the failure to appoint or
elect Executive to the Board within thirty (30) days of the Employment
Commencement Date or at any time thereafter or the removal of Executive
therefrom.
(d) Without Good Reason. Executive may terminate her employment at any
time without Good Reason by written notice to the Company. In the event that
Executive's employment with the Company is terminated during the Employment Term
by Executive without Good Reason, Executive shall not be entitled to any
additional payments or benefits hereunder, other than Accrued Benefits
(including, but not limited to, any then vested Stock Option, Restricted Stock,
Restricted Units or other stock options or equity grants).
(e) No Mitigation/No Offset. Executive shall not be required to seek other
employment or otherwise mitigate the value of any severance benefits
contemplated by this Agreement, nor shall any such benefits be reduced by any
earnings or benefits that Executive may receive from any other source. The
amounts payable hereunder shall not be subject to setoff, counterclaim,
recoupment, defense or other right which the Company may have against Executive
or others.
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5. Change of Control Vesting Acceleration. In the event of a "Change of
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Control" (as defined below), on the date of such Change of Control (a) any
forfeiture provision of any Restricted Stock or Restricted Unit shall lapse and
Executive shall be fully vested in such Restricted Stock and Restricted Unit and
(b) 50% of any remaining unvested shares subject to the Stock Option and of each
tranche of each other stock option or equity award shall be immediately vested.
Following such partial acceleration of the Stock Option or each tranche of each
other stock option or equity award, the remaining unvested shares of such Stock
Option or tranche shall continue to vest as otherwise provided in the grant.
For the purposes of this Agreement, "Change of Control" is defined as:
(a) Any "person" (as such term is used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended) becomes the "beneficial owner"
(as defined in Rule 13d-3 under said Act), directly or indirectly, of securities
of the Company representing 35% or more of the total voting power represented by
the Company's then outstanding voting securities; or
(b) A change in the composition of the Board occurring within a two-
year period, as a result of which fewer than a majority of the directors are
Incumbent Directors. "Incumbent Directors" shall mean directors who either (i)
are directors of the Company as of the date hereof or (ii) are elected, or
nominated for election, to the Board with the affirmative votes of at least a
majority of the Incumbent Directors at the time of such election or nomination
(but shall not include an individual whose election or nomination is in
connection with an actual or threatened proxy contest relating to the election
of directors to the Company); or
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(c) The consummation of a merger or consolidation of the Company with
any other corporation, other than a merger or consolidation which would result
in the voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) at least 50% of the total voting
power represented by the voting securities of the Company or such surviving
entity outstanding immediately after such merger or consolidation; or
(d) The consummation of the sale or disposition by the Company of all
or substantially all of the Company's assets; or
(e) The approval by the stockholders of the Company of a plan of
complete liquidation of the Company.
Notwithstanding the foregoing, a Change of Control shall not be deemed
to occur by reason of the divestiture of the Company's test and measurement and
related businesses in connection with the contemplated spin-off of such business
or any events directly attributable thereto.
6. Golden Parachute Excise Tax Gross-Up.
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(a) In the event that Executive shall become entitled to payments and/or
benefits provided by this Agreement or any other amounts in the "nature of
compensation" (whether pursuant to the terms of this Agreement or any other
plan, arrangement or agreement with the Company, any person whose actions result
in a change of ownership or effective control covered by Section
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280G(b)(2) of the Code or any person affiliated with the Company or such person)
as a result of such change in ownership or effective control (collectively the
"Company Payments"), and such Company Payments will be subject to the tax (the
"Excise Tax") imposed by Section 4999 of the Code (and any similar tax that may
hereafter be imposed by any taxing authority) the Company shall pay to Executive
at the time specified in paragraph (d) below an additional amount (the "Gross-up
Payment") such that the net amount retained by Executive, after deduction of any
Excise Tax on the Company Payments and any U.S. federal, state, and for local
income or payroll tax upon the Gross-up Payment provided for by this paragraph
(a), but before deduction for any U.S. federal, state, and local income or
payroll tax on the Company Payments, shall be equal to the Company Payments.
(b) For purposes of determining whether any of the Company Payments and
Gross-up Payments (collectively the "Total Payments") will be subject to the
Excise Tax and the amount of such Excise Tax, (i) the Total Payments shall be
treated as "parachute payments" within the meaning of Section 280G(b)(2) of the
Code, and all "parachute payments" in excess of the "base amount" (as defined
under Section 280G(b)(3) of the Code) shall be treated as subject to the Excise
Tax, unless and except to the extent that, in the opinion of the Company's
independent certified public accountants appointed prior to any change in
ownership (as defined under Section 280G(b)(2) of the Code) or tax counsel
selected by such accountants (the "Accountants") such Total Payments (in whole
or in part) either do not constitute "parachute payments," represent reasonable
compensation for services actually rendered within the meaning of Section
280G(b)(4) of the Code in excess of the "base amount" or are otherwise not
subject to the Excise Tax, and (ii) the value of any non-cash
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<PAGE>
benefits or any deferred payment or benefit shall be determined by the
Accountants in accordance with the principles of Section 280G of the Code.
(c) For purposes of determining the amount of the Gross-up Payment,
Executive shall be deemed to pay U.S. federal income taxes at the highest
marginal rate of U.S. federal income taxation in the calendar year in which the
Gross-up Payment is to be made and state and local income taxes at the highest
marginal rate of taxation in the state and locality of Executive's residence for
the calendar year in which the Company Payment is to be made, net of the maximum
reduction in U.S. federal income taxes which could be obtained from deduction of
such state and local taxes if paid in such year. In the event that the Excise
Tax is subsequently determined by the Accountants to be less than the amount
taken into account hereunder at the time the Gross-up Payment is made, Executive
shall repay to the Company, at the time that the amount of such reduction in
Excise Tax is finally determined, the portion of the prior Gross-up Payment
attributable to such reduction (plus the portion of the Gross-up Payment
attributable to the Excise Tax and U.S. federal, state and local income tax
imposed on the portion of the Gross-up Payment being repaid by Executive if such
repayment results in a reduction in Excise Tax or a U.S. federal, state and
local income tax deduction), plus interest on the amount of such repayment at
the rate provided in Section 1274(b)(2)(B) of the Code. Notwithstanding the
foregoing, in the event any portion of the Gross-up Payment to be refunded to
the Company has been paid to any U.S. federal, state and local tax authority,
repayment thereof (and related amounts) shall not be required until actual
refund or credit of such portion has been made to Executive, and interest
payable to the Company shall not exceed the interest received or credited to
Executive by such tax authority for the period it held such portion.
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<PAGE>
Executive and the Company shall mutually agree upon the course of action to be
pursued (and the method of allocating the expense thereof) if Executive's claim
for refund or credit is denied.
In the event that the Excise Tax is later determined by the Accountant
or the Internal Revenue Service to exceed the amount taken into account
hereunder at the time the Gross-up Payment is made (including by reason of any
payment the existence or amount of which cannot be determined at the time of the
Gross-up Payment), the Company shall make an additional Gross-up Payment in
respect of such excess (plus any interest or penalties payable with respect to
such excess) at the time that the amount of such excess is finally determined.
(d) The Gross-up Payment or portion thereof provided for in paragraph (c)
above shall be paid not later than the thirtieth (30th) day following an event
occurring which subjects Executive to the Excise Tax; provided, however, that if
the amount of such Gross-up Payment or portion thereof cannot be finally
determined on or before such day, the Company shall pay to Executive on such day
an estimate, as determined in good faith by the Accountant, of the minimum
amount of such payments and shall pay the remainder of such payments (together
with interest at the rate provided in Section 1274(b)(2)(B) of the Code),
subject to further payments pursuant to paragraph (c) hereof, as soon as the
amount thereof can reasonably be determined, but in no event later than the
ninetieth (90th) day after the occurrence of the event subjecting Executive to
the Excise Tax. In the event that the amount of the estimated payments exceeds
the amount subsequently determined to have been due, such excess shall
constitute a loan by the Company to Executive, payable on the fifth (5th) day
after demand by the Company (together with interest at the rate provided in
Section 1274(b)(2)(B) of the Code).
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<PAGE>
(e) In the event of any controversy with the Internal Revenue Service (or
other taxing authority) with regard to the Excise Tax, Executive shall permit
the Company to control issues related to the Excise Tax (at its expense),
provided that such issues do not potentially materially adversely affect
Executive, but Executive shall control any other issues. In the event the
issues are interrelated, Executive and the Company shall in good faith cooperate
so as not to jeopardize resolution of either issue, but if the parties cannot
agree Executive shall make the final determination with regard to the issues.
In the event of any conference with any taxing authority as to the Excise Tax or
associated income taxes, Executive shall permit the representative of the
Company to accompany Executive, and Executive and Executive's representative
shall cooperate with the Company and its representative.
(f) The Company shall be responsible for all charges of the Accountant.
(g) The Company and Executive shall promptly deliver to each other copies
of any written communications, and summaries of any verbal communications, with
any taxing authority regarding the Excise Tax covered by this Section 6.
7. Non-Compete; Non-Solicit.
------------------------
(a) The parties hereto recognize that Executive's services are special and
unique and that the level of compensation and the provisions herein for
compensation under Section 3 are partly in consideration of and conditioned upon
Executive's not competing with the Company, and that
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<PAGE>
Executive's covenant not to compete or solicit as set forth in this Section 7
during and after employment is essential to protect the business and good will
of the Company.
(b) Executive agrees that during the term of employment with the Company
and for a period of twenty-four (24) months thereafter (the "Covenant Period"),
Executive shall not render services for any of the three (3) organizations
designated by the Board in a writing delivered to Executive within thirty (30)
days after the Employment Commencement Date (the "Prohibited List"). The
Prohibited List may be changed by the Board from time to time (but there may
never be more than three (3) entities listed) by written notice to Executive,
such notice to be effective only if Executive's commencement of rendering
services for such entity is ninety (90) or more days after the giving of such
notice. The scope of the non-competition clause under any equity plan, benefit
plan or other plan, agreement or arrangement of the Company shall not be deemed
to prohibit Executive's actions or, except as provided in Section 4(c) of this
Agreement or pursuant to a provision in a Company plan or grant agreement that
precludes future vesting or exercisability at the time competition is entered
into, serve as a basis for any reduction or forfeiture of benefits or payments
thereunder unless such actions violate this Section 7(b) of this Agreement.
(c) During the Covenant Period, Executive shall not, directly or
indirectly, disrupt, damage or interfere with the operation or business of the
Company by soliciting or recruiting its employees for Executive or others, but
the foregoing shall not prevent Executive from giving references.
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<PAGE>
(d) During the Covenant Period, Executive shall not, without prior written
authorization from the Company, violate the agreement entered into pursuant to
Section 13 hereof.
(e) Executive agrees that the Company would suffer an irreparable injury
if Executive was to breach the covenants contained in Sections 7(b), (c) or (d)
and that the Company would by reason of such breach or threatened breach be
entitled to injunctive relief in a court of appropriate jurisdiction and
Executive hereby stipulates to the entering of such injunctive relief
prohibiting Executive from engaging in such breach.
(f) If any of the restrictions contained in this Section 7 shall be deemed
to be unenforceable by reason of the extent, duration or geographical scope or
other provisions thereof, then the parties hereto contemplate that the court
shall reduce such extent, duration, geographical scope or other provision hereof
and enforce this Section 7 in its reduced form for all purposes in the manner
contemplated hereby.
8. Assignment. This Agreement shall be binding upon and inure to the benefit
----------
of (a) the heirs, beneficiaries, executors and legal representatives of
Executive upon Executive's death and (b) any successor of the Company, provided
that any successor shall within ten (10) days of such assumption deliver to
Executive a written assumption in a form reasonably acceptable to Executive.
Any such successor of the Company shall be deemed substituted for the Company
under the terms of this Agreement for all purposes. As used herein, "successor"
shall mean any person, firm, corporation or other business entity which at any
time, whether by purchase, merger or otherwise, directly or indirectly acquires
all or substantially all of the assets or business of the Company.
Notwithstanding
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<PAGE>
such assignment, the Company shall remain, with such successor, jointly and
severally liable for all of its obligations hereunder. This Agreement may not
otherwise be assigned by the Company.
None of the rights of Executive to receive any form of compensation payable
pursuant to this Agreement shall be assignable or transferable except through a
testamentary disposition or by the laws of descent and distribution upon the
death of Executive or as provided in Section 18 hereof. Any attempted
assignment, transfer, conveyance or other disposition (other than as aforesaid)
of any interest in the rights of Executive to receive any form of compensation
hereunder shall be null and void; provided, however, that notwithstanding the
foregoing, Executive shall be allowed to transfer vested shares subject to the
Stock Option or other stock options or equity awards and vested Restricted Stock
consistent with the rules for transfers to "family members" as defined in
Securities Act Form S-8.
9. Liability Insurance.
-------------------
(a) The Company shall cover Executive under directors and officers
liability insurance both during and, while potential liability exists, after the
Employment Term in the same amount and to the same extent, if any, as the
Company covers its other officers and directors.
(b) The Company shall during and after the Employment Term indemnify and
hold harmless Executive to the fullest extent permitted by applicable law with
regard to actions or inactions taken by Executive in the performance of her
duties as an officer, director and employee of the Company and its affiliates or
as a fiduciary of any benefit plan of the Company and its affiliates.
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<PAGE>
10. Payment of Legal Fees. The Company shall pay Executive's reasonable legal
---------------------
and financial consulting fees and costs associated with entering into this
Agreement.
11. Notices. All notices, requests, demands and other communications called
-------
for hereunder shall be in writing and shall be deemed given if (a) delivered
personally or by facsimile, (b) one (1) day after being sent by Federal Express
or a similar commercial overnight service, or (c) three (3) days after being
mailed by registered or certified mail, return receipt requested, prepaid and
addressed to the parties or their successors in interest at the following
addresses, or at such other addresses as the parties may designate by written
notice in the manner aforesaid:
If to the Company: Hewlett-Packard Company
3000 Hanover Street
Palo Alto, CA 94304
Attn: General Counsel
If to Executive: at the last residential address known by the
Company.
12. Severability. In the event that any provision hereof becomes or is
------------
declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement shall continue in full force and effect without said
provision.
13. Proprietary Information. Concurrently with the execution of this
-----------------------
Agreement, Executive shall enter into a confidentiality and proprietary
information agreement with the Company in the form mutually agreed on by the
parties (the "Confidentiality Agreement"), provided, however, that the foregoing
shall not preclude Executive from complying with due legal process or from
removing Company property from the Company's premises in furtherance of her
duties and obligations as provided herein.
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<PAGE>
14. Entire Agreement. This Agreement represents the entire agreement and
----------------
understanding between the Company and Executive concerning Executive's
employment relationship with the Company, and supersedes and replaces any and
all prior agreements and understandings concerning Executive's employment
relationship with the Company entered into prior to the date hereof but not any
written agreements entered into simultaneous with this Agreement or thereafter.
15. Arbitration.
-----------
(a) Agreement. The Company and Executive agree that any dispute or
controversy arising out of, relating to, or in connection with this Agreement,
or the interpretation, validity, construction, performance, breach, or
termination thereof shall be settled by binding arbitration to be held in Santa
Clara, California or such other location agreed by the parties hereto, in
accordance with the National Rules for the Resolution of Employment Disputes
then in effect of the American Arbitration Association. The arbitrator may
grant injunctions or other relief in such dispute or controversy. The decision
of the arbitrator shall be final, conclusive and binding on the parties to the
arbitration. Judgment may be entered on the arbitrator's decision in any court
having jurisdiction.
(b) Governing Law. The arbitrators shall apply California law to the
merits of dispute or claim, without reference to rules of conflicts of law.
Executive and the Company hereby expressly consent to the personal jurisdiction
of the state and federal courts located in California for any action or
proceeding arising from or relating to this Agreement or relating to any
arbitration in which the parties are participants.
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<PAGE>
(c) Costs and Fees of Arbitration. Executive shall pay the initial
arbitration filing (not to exceed $200), and the Company shall pay the remaining
costs and expenses of such arbitration (unless Executive requests that each
party pay one-half of the costs and expenses of such arbitration or unless
otherwise required by law). Unless otherwise required by law or pursuant to an
award by the arbitrator, the Company and Executive shall each pay separately its
counsel fees and expenses. Notwithstanding the foregoing, the arbitrator may,
but need not, award the prevailing party in any dispute its or her legal fees
and expenses.
16. No Oral Modification, Cancellation or Discharge. This Agreement may only
-----------------------------------------------
be amended, canceled or discharged in writing signed by Executive and the
Company's General Counsel, the Chairman of the Company (provided Executive is
not Chairman) or a member of the Compensation Committee.
17. Survivorship. The respective rights and obligations of Company and
------------
Executive hereunder shall survive any termination of Executive upon her
employment to the extent necessary to the intended preservation of such rights
and obligations.
18. Beneficiaries. Executive shall be entitled, to the extent permitted under
-------------
any applicable law, to select and change the beneficiary or beneficiaries to
receive any compensation or benefit payable hereunder upon her death by giving
the Company written notice thereof. If Executive dies, severance then due or
other amounts due hereunder shall be paid to her designated beneficiary or
beneficiaries or, if none are designated or none survive Executive, her estate.
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<PAGE>
19. Withholding. The Company shall be entitled to withhold, or cause to be
-----------
withheld, any amount of federal, state, city or other withholding taxes required
by law with respect to payments made to Executive in connection with her
employment hereunder.
20. Governing Law. This Agreement shall be governed by the laws of the State
-------------
of California, without reference to rules of conflicts of law.
IN WITNESS WHEREOF, the undersigned have executed this Agreement:
HEWLETT-PACKARD COMPANY
/s/Lewis E. Platt
-------------------------
Lewis E. Platt
EXECUTIVE
/s/Carleton S. Fiorina
-------------------------
Carleton S. Fiorina
Address:
_________________________
_________________________
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<PAGE>
EXHIBIT A
---------
RELEASE OF CLAIMS AGREEMENT
This Release of Claims Agreement ("Agreement") is made by and between
Hewlett-Packard Company (the "Company") and ________________________
("Executive").
WHEREAS, ________________________ was employed by the Company;
WHEREAS, the Company and Executive have entered into an Employment
Agreement effective as of __________, 1999 (the "Employment Agreement").
NOW THEREFORE, in consideration of the mutual promises made herein, the
Company and Executive (collectively referred to as "the Parties") hereby agree
as follows:
1. Termination. Executive's employment from the Company terminated on
-----------
________________.
2. Consideration. Subject to and in consideration of Executive's release
-------------
of claims as provided herein, the Company has agreed to pay Executive certain
benefits as set forth in the Employment Agreement.
3. Payment of Salary. Executive acknowledges and represents that the
-----------------
Company has paid all salary, wages, bonuses, accrued vacation, commissions and
any and all other benefits due to Executive, except ___________________________.
4. Release of Claims. Executive agrees that the foregoing consideration
------------------
represents settlement in full of all outstanding obligations owed to Executive
by the Company. Executive, on behalf of herself, and her respective heirs,
family members, executors and assigns, hereby fully and forever releases the
Company and its past, present and future officers, agents, directors,
Executives, investors, shareholders, administrators, affiliates, divisions,
subsidiaries, parents, predecessor and successor corporations, and assigns,
from, and agrees not to sue or otherwise institute or cause to be instituted and
legal or administrative proceedings concerning any claim, duty, obligation or
cause of action relating to any matters of any kind, whether presently known or
unknown suspected or unsuspected, that she may possess arising from any
omissions, acts or facts that have occurred up until and including the Effective
Date of this Agreement including, without limitation,
(a) any and all claims relating to or arising from Executive's
employment relationship with the Company and the termination of that
relationship;
(b) any and all claims relating to, or arising from, Executive's
right to purchase, or actual purchase of shares of stock of the Company,
including, without limitation, any claims for fraud, misrepresentation, breach
of fiduciary duty, breach of duty under applicable state corporate law, and
securities fraud under any state of federal law:
<PAGE>
(c) any and all claims for wrongful discharge of employment;
termination in violation of public policy; discrimation; breach of contract,
both express and implied; breach of a covenant of good faith and fair dealing,
both express and implied; promissory estoppel; negligent or intentional
infliction of emotional distress; negligent or intentional misrepresentation;
negligent or intentional interference with contract or prospective economic
advantage; unfair business practices; defamation; libel; slander; negligence;
personal injury; assault; battery; invasion of privacy; false imprisonment; and
conversion;
(d) any and all claims for violation of any federal, state or
municipal statute, including, but not limited to, Title VII of the Civil Rights
Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in Employment
Act of 1967, the Americans with Disabilities Act of 1990, the Fair Labor
Standards Act, the Executive Retirement Income Security Act of 1974, The Worker
Adjustment and Retraining Notification Act, the California Fair Employment and
Housing Act, and Labor Code section 201, et seq. and section 970, et seq. and
all amendments to each such Act as well as the regulations issued thereunder;
(e) any and all claims for violation of the federal, or any state,
constitution;
(f) any and all claims arising out of any other laws and regulations
relating to employment or employment discrimination; and
(g) any and all claims for attorneys' fees and costs.
Executive agrees that the release set forth in this section shall be remain in
effect in all respects as a complete general release as to the matters released.
This release does not extend to any obligations under the Employment Agreement
that survive termination of Executive's employment with the Company or any
obligations incurred under this Agreement.
Notwithstanding the foregoing, this Release shall not cover Executive's rights
to payments and benefits under Section 4(c) of the Employment Agreement,
Executive's rights under Section 4(e), 6.9 or 15 of the Employment Agreement,
Executive's rights to indemnification under the By-laws or Certificate of
Incorporation of the Company or any other rights to indemnification or
Executive's rights with regard to any equity granted or under any benefit plan.
5. Acknowledgement of Waiver of Claims under ADEA. Executive acknowledges
----------------------------------------------
that she is waiving and releasing any rights she may have under the Age
Discrimination in Employment Act of 1967 ("ADEA") and that this waiver and
release is knowing and voluntary. Executive and the Company agree that this
waiver and release does not apply to any rights or claims that may arise under
the ADEA after the Effective Date of this Agreement. Executive acknowledges that
the consideration given for this waiver and release Agreement is in addition to
anything of value to which Executive was already entitled. Executive further
acknowledges that she has been advised by this writing that (a) she should
consult with an attorney prior to executing this Agreement; (b) she has at least
-----
twenty-one (21) days within which to consider this Agreement; (c) she has seven
(7) days following the executing of this Agreement by the parties to revoke the
Agreement; and (d) this Agreement shall not be effective until the revocation
period has expired. Any revocation should be in writing and delivered to the
General Counsel at Hewlett-Packard Company, 3000 Hanover Street,
<PAGE>
Palo Alto, California 94304, by close of business on the seventh day from the
date that Executive signs this Agreement.
6. Civil Code Section 1542. Executive represents that she is not aware
-----------------------
of any claims against the Company other than the claims that are released by
this Agreement. Executive acknowledges that she has been advised by legal
counsel and is familiar with the provisions of California Civil Code Section
1542, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HER FAVOR AT
THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HER
MUST HAVE MATERIALLY AFFECTED HER SETTLEMENT WITH THE DEBTOR.
Executive, being aware of said code section, agrees to expressly waive any
rights she may have thereunder, as well as under any other statute or common law
principles of similar effect.
7. No Pending or Future Lawsuits. Executive represents that she has no
-----------------------------
lawsuits, claims, or actions pending in her name, or on behalf of any other
person or entity, against the Company or any other person or entity referred to
herein. Executive also represents that she does not intend to bring any claims
on her own behalf or on behalf of any other person or entity against the Company
or any other person or entity referred to herein with regard to matters
released hereunder.
8. Costs. The Parties shall each bear their own costs, expert fees,
-----
attorneys' fees and other fees incurred in connection with this Agreement.
9. Authority. Executive represents and warrants that she has the
---------
capacity to act on her own behalf and on behalf of all who might claim through
her to bind them to the terms and conditions of this Agreement.
10. No Representations. Executive represents that she has had the
------------------
opportunity to consult with an attorney, and has carefully read and understands
the scope and effect of the provisions of this Agreement. Neither party has
relied upon any representations or statements made by the other party hereto
which are not specifically set forth in this Agreement.
11. Severability. In the event that any provision hereof becomes or is
------------
declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement shall continue in full force and effect without said
provision.
12. Entire Agreement. This Agreement and the Employment Agreement and
----------------
the agreements and plans referenced therein represent the entire agreement and
understanding between the Company and Executive concerning Executive's
separation from the Company, and supersede and replace and all prior agreements
and understandings concerning Executive's relationship with the Company and her
compensation by the Company. This Agreement may only be amended in writing
signed by Executive and an executive officer of the Company.
<PAGE>
13. Governing Law. This Agreement shall be governed by the internal
-------------
substantive laws, but not the choice of law rules, of the State of California.
14. Effective Date. This Agreement is effective eight (8) days after it
--------------
has been signed by both Parties.
15. Counterparts. This Agreement may be executed in counterparts, and
------------
each counterpart shall have the same force and effect as an original and shall
constitute an effective, binding agreement on the part of each of the
undersigned.
16. Voluntary Execution of Agreement. This Agreement is executed
--------------------------------
voluntarily and without any duress or undue influence on the part or behalf of
the Parties hereto, with the full intent of releasing all claims. The Parties
acknowledge that:
(a) They have read this Agreement;
(b) They have been represented in the preparation, negotiation, and
execution of this Agreement by legal counsel of their own choice or that they
have voluntarily declined to seek such counsel;
(c) They understand the terms and consequences of this Agreement and
of the releases it contains;
(d) They are fully aware of the legal and binding effect of the
Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the
respective dates set forth below.
HEWLETT-PACKARD COMPANY
Dated: _________, _____ By ______________________________
____________________, an individual
Dated: _________, _____ _________________________________