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EXHIBIT 10.2
[DELL LOGO]
June 15, 1995
Mr. Thomas L. Thomas
7100 Valburn Drive
Austin, Texas 78731
Dear Tom:
This letter sets forth the mutual agreement (the "Agreement") between Dell
Computer Corporation for itself and its subsidiaries (collectively, the
"Company") and you regarding your voluntary election to terminate your
employment by the Company.
1. You and Dell agree that this Agreement is entered into in connection
with the amicable termination of your employment by Dell, and that your
employment will be terminated effective 11:59 p.m. local time in Austin, Texas
on July 1, 1995 (the "Termination Effective Date"). The Company agrees to pay
to you in full all of your salary and every other type of benefit due and owing
to you or accrued to you (including any accrued right to present or future
deferred compensation) through and including the Termination Effective Date.
Disability insurance benefits will be discontinued on the Termination Effective
Date.
2. You agree that you are not entitled to receive from Dell, or from any
of its officers, managers, directors, employees, agents or representatives, any
form of consideration or the payment of any amount other than what is
expressly set forth in this Agreement. You agree that you are not entitled to
receive from Dell any payment or distribution of any other type of property,
except as expressly set forth in this Agreement. You further agree that as of
June 15, 1995 (the "Execution Date") you do not own and do not hold any rights
to outstanding vested and unexercised stock options to purchase shares of
Dell's Common Stock from the Company with the exception of the following shares
at the indicated exercise prices: 10,000 shares at $36.31 per share; 3,333
shares at $22.50 per share; and, 2,500 shares at $.01 per share. As provided
in the option agreements, the period for you to exercise all of such options
will expire and terminate automatically without further notice 30 days after
the Termination Effective Date. In addition, as provided in the option
agreements, if you fail to exercise any or all of the options listed in this
paragraph prior to the expiration of this 30 day period, you will lose the
right to acquire the shares subject to any of such options which remain
unexercised at that time, and all of such unexercised options shall become null
and void and of no further force or effect without
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June 15, 1995
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any further action or notice of any kind. In the exercise of such options, as
well as in connection with any other transactions involving Dell's securities,
you understand and agree that you are and will be subject to all the
requirements of applicable laws, rules and regulations.
3. Dell agrees to continue to pay your current salary in the gross amount
of $22,750.00 per month through December 31, 1995. Payment shall be made by
checks, mailed to you at your address above twice per month, on the 15th
business day of each month and on the final business day of each month, for
which salary continuance is applicable. Each payment will be subject to all
deductions required by law to include withholding tax, payroll tax, FICA,
and/or other amounts. Notwithstanding the foregoing, the salary continuation
payment set forth above shall automatically terminate and expire as of the date
that you enter into a full-time employment relationship with any third party,
and you agree to notify Dell in writing promptly upon agreeing with any third
party to enter into a full-time employment relationship, and to return to Dell
the pro rata portion of any salary payments covering any period during which
you are so employed by any third party. Subject to the other provisions of
this agreement, non-payroll based temporary consulting projects shall not cause
the termination of these salary continuation payments. In addition, Dell
agrees to provide you with up to six (6) months of executive outplacement
services with Reedie-York & Associates, Inc., commencing upon July 1, 1995.
4. You agree that the consideration and promises set forth in this
Agreement constitute full and adequate consideration to support this Agreement
and each provision hereof. In addition to the other consideration granted to
you in this Agreement, the Company agrees to allow you to retain, as your sole
property, the Dell 466L Desktop Computer (asset tag number 111804) used in your
home and the Dell Latitude XP 433 notebook computer (asset tag number 112162)
currently in your possession. You shall have access to these items and to your
personal office during regular office hours until 5:00 p.m. local time on
Saturday, July 1, 1995 as necessary to remove these items and your personal
belongings.
5. Your vested balance in Dell's 401(k) Plan Trust (if any) and Dell's
Deferred Compensation Plan will be available for you to withdraw or roll over
in accordance with the provisions of the Plan after the Termination Effective
Date, subject to applicable laws and regulations. Any balance you may have in
Dell's Employee Stock Purchase Plan will also be used to purchase stock prior
to the Termination Effective Date as provided in the Plan or available for you
to withdraw in accordance with the provisions of the Plan.
6. As of the Execution Date, you resigned from all positions as a
corporate officer or director of Dell Computer Corporation and its subsidiaries
and affiliates, without prejudice to your rights to compensation through the
Termination Effective Date. You agree that upon reasonable request from Dell's
General Counsel, you will separately confirm such resignations in writing.
From and after the Termination Effective Date, you will have no duties,
obligations or responsibilities to perform any work or services for or on
behalf of the Company except as expressly provided in this Agreement. You will
be free to undertake other employment after the Termination Effective Date so
long as your employment and services do not contravene any other provision of
this Agreement.
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Mr. Thomas L. Thomas
June 15, 1995
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7. The Company is immediately entitled to receive and recover from you
any of the profits received by you from the stock options with accelerated
vesting, as further described in Paragraph 17, in the event, and only in the
event, and to the extent, and only to the extent, of any loss or expense
incurred by the Company due to your breach of any provision of this Agreement,
including any provision requiring future compliance with the Federal Securities
Laws, to the extent that such loss or expense would otherwise be recoverable in
an action for breach of the Agreement.
8. You agree that by execution of this Agreement you fully, finally,
completely and generally release the Company and each of its officers,
managers, directors, control persons, employees, agents and representatives,
individually and separately, from any and all claims, actions, liabilities,
obligations, demands, and/or causes of action, of whatever kind or character,
whether known or unknown, arising from, relating to, or in any way connected
with (i) any of the foregoing persons, (ii) your employment, resignation or
termination of employment with the Company, (iii) your decision to move to or
from or accept employment in Austin, Texas, (iv) your severance of employment
with your former employer prior to accepting employment with the Company, and
(v) any act or omission that has occurred on or before the Execution Date in
connection with any activity related to any of the foregoing persons or to any
activity, statements, controversy or dispute related to your employment,
resignation or termination of employment with the Company. The foregoing
release does not cover any claim, demand, or cause of action to the extent that
it arises out of any breach of or default under this Agreement or any other act
or omission after the Execution Date.
9. The release set forth in Paragraph 8 above shall be construed as
broadly as possible and shall include without limitation: (1) any tort,
contractual or other claim you may have; (2) any claim arising out of or in
connection with the initiation, termination or existence of your employment
relationship with the Company, or any act, service or omission performed or not
performed by or on behalf of the Company; (3) any claim arising under the
Federal Age Discrimination in Employment Act, the Civil Rights Act of 1964, or
any applicable Texas statute or regulation; and (4) except as to rights under
the plans described in Paragraph 5 above and the stock options described in
Paragraph 2 above and Paragraph 17 below, any claim regarding accrued vacation,
bonuses, deferred compensation or any other form of tangible or intangible
benefit from or attributable to the Company or any of the persons described in
Paragraph 8. You represent that you have not assigned to any other person any
of the claims and causes of action described in this Paragraph and in Paragraph
8 and that you have the full right to grant the release set forth in this
Agreement.
10. The Company hereby fully, finally, completely and generally releases
you from any and all claims, actions, demands and/or causes of action, of
whatever kind or character, whether known or unknown, arising from, relating
to, or in any way connected with any act or omission by you that has occurred
on or before the Execution Date in connection with your employment by the
Company; provided, however, that such release shall not be applicable to any
acts or omissions by you which constitute willful or intentional misconduct, or
willful or intentional wrongdoing. The foregoing release does not cover any
claim, demand, or cause of action to the
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June 15, 1995
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extent that it arises out of any breach of or default under this Agreement or
any other act or omission after the Execution Date.
11. The release set forth in Paragraph 10 above shall be construed as
broadly as possible and shall include without limitation: (1) any tort,
contractual or other claim the Company may have; (2) any claim arising out of
or in connection with the initiation, termination or existence of your
employment relationship with the Company; and (3) any claim arising out of any
act, service or omission performed or not performed by you; but shall not
include any act or omission by you which constitutes willful or intentional
misconduct, or willful or intentional wrongdoing. The Company represents that
it has not assigned to any other person any of the claims and causes of action
described in this Paragraph and in Paragraph 10 and that it has the full right
to grant the release set forth in this Agreement.
12. You represent that you do not have in your possession or under your
control any correspondence, any memoranda, or any other documents or tangible
media of any kind (whether duplicated, copies or originals) which contain any
information belonging to the Company or related in any manner whatsoever to its
business. You agree that you will not take any such documents or media as
described above from the control or premises of the Company, and that if you
should find yourself in the possession of any of the same, you will return all
of the same (and any duplications and copies thereof) to the Company
immediately. You will have the right to review the Company's records at any
reasonable time upon reasonable notice, and to make copies or extracts thereof,
as necessary to respond to any third party claim, demand, or inquiry into the
propriety of your conduct while employed by the Company, provided that the
Company may take any measures deemed by it to be necessary (including denial of
access by you) to protect its trade secrets or Confidential and Proprietary
Information as herein defined.
13. For the duration of the "Restriction Period" (which for purposes of
this Agreement shall be defined to mean the period from the Execution Date,
through and including December 31, 1995), except as permitted under Paragraph 4
above, as incidental to the negotiation and documentation of this agreement, or
as otherwise requested or permitted by the Company, you will not return to the
place of business where you were employed by the Company, you will not travel
to or visit any of the Company's business locations, and you will not call or
visit any of the Company's employees during working hours or in any way or at
any time disrupt or undertake any activity that would have a tendency to
disrupt the business endeavors of the Company or its employees. Upon the
Company's prior request or permission, you may visit the Company for the
purpose of establishing and maintaining a business relationship between your
new employer, or any person for whom you may be consulting, and the Company.
14. You acknowledge that the Company conducts business in all fifty states
of the United States and in numerous foreign nations including but not limited
to the countries of the U.K., Ireland, France, Germany, Spain, Italy,
Switzerland, Finland, Norway, Sweden, Canada, Mexico, Australia, Japan,
Malaysia, Hong Kong, the Czech Republic and Poland. You further acknowledge
and agree that in your position with the Company you have since March 1993
represented the Company throughout the world; that you have received from the
Company unique and special knowledge and training which was not previously
available to you before
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June 15, 1995
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your employment with the Company; that the Company possesses and utilizes at
the Execution Date trade secrets not known or used by the Company's
competitors, which trade secrets give the Company an advantage over its
competitors; that during your employment with the Company you have received
knowledge of and confidential information about the Company's trade secrets
including but not limited to those relating to its production, research,
marketing, service, support, pricing and sales practices and policies; that at
the Execution Date the Company's manufacturing, administrative and other
premises are restricted by security procedures put in place by the Company
and that Company-hired security guards are on duty at all times to monitor and
protect the Company's premises and information; that it would take any person
or entity a significant amount of time to enter any of the Company's markets
and to achieve substantial commercial success in such markets because the
necessary understanding of any technical data and information relating to such
markets (and to their customers, pricing, product offerings and service
delivery methods) would be difficult and costly to develop; that you were
involved in organizing the Company's information systems and had access to the
Company's sales data; and that unauthorized use by you of the knowledge,
information, data and trade secrets of the Company described above would
seriously damage the Company and hinder its ability to do business worldwide.
The character of any knowledge or information as a trade secret will be
determined from time to time according to the facts then prevailing and
applicable law. Nothing in this Paragraph 14 will cause any knowledge or
information which is not in fact a trade secret to be treated as such.
15. Non-Competition. For the duration of the Restriction Period, you agree
that, without the prior written approval of the Company's Vice President of
Human Resources, you will not manage, operate, join, control or participate in,
directly or indirectly, consult on behalf of or for the benefit of, or derive
any benefit whatsoever from or be an officer, director, employee, partner,
agent, or consultant of, any business or activity of any of the following
companies, or of any parent, subsidiary or affiliate of any of the following
companies: Compaq Computer Corporation, Gateway 2000, Inc., International
Business Machines, Inc., Apple Computer, Inc. (the "Competitors"). You will
not be in violation of this Paragraph 15 merely because you own publicly traded
securities issued by a Competitor as long as you own less than 5% of any class
of such securities then outstanding. The prohibition of this Paragraph 15
will cease to apply if and when there is a final judicial determination by a
court of competent jurisdiction that the Company has committed a substantial
breach or default in the performance of any of its material obligations under
this Agreement.
16. You agree that the non-competition provision set forth in Paragraph 15
is ancillary to this Agreement, that this Agreement is an otherwise enforceable
agreement, and that the non-competition provision is therefore ancillary to an
otherwise enforceable agreement. You further agree that the non-competition
provision contains reasonable limitations as to the time, geographical area and
scope of activity for which you are to be restrained; that the limitations of
this Agreement and your covenant not to compete with the Company do not impose
a greater restraint than is necessary to protect the goodwill or other business
interests of the Company; and that the primary purpose of this Agreement does
not obligate you to render personal services to the Company.
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June 15, 1995
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17. As separate consideration for the non-competition provision set forth
in Paragraph 15, the Company and you hereby amend the stock option grant
agreements relating to stock options previously granted to you, but currently
unvested, so as to accelerate the vesting dates for the following currently
unvested options which you hold to purchase shares of Dell's Common Stock at
the indicated exercise prices per share: 5,000 shares at $.01 per share; and,
3,333 shares at $22.50 per share. The vesting dates for each of such options
are hereby accelerated so as to cause 100% of each such option to vest on the
Termination Effective Date. Further, you may exercise, after June 29, 1995,
any rights to outstanding vested and unexercised stock options to purchase
2,600 shares of Dell's Common Stock at $26.00 per share presently scheduled to
vest on June 29, 1995. The period for you to exercise all of the above options
will expire and terminate automatically without further notice thirty (30) days
after the Termination Effective Date. You understand and agree that you will
have no right to exercise options or purchase Dell's Common Stock from the
Company except as set forth in this letter Agreement, and you and the Company
further agree that the stock option agreements between you and the Company
which relate to the options described in this Paragraph 17 are amended to the
extent necessary (and only to the extent necessary) to accelerate the vesting
dates for the options described in this Paragraph 17. You also understand and
agree that your right to exercise options and purchase Dell's Common Stock in
accordance with this Agreement is further conditioned upon your compliance with
the provisions of the stock option agreements (as amended hereby) in effect
between you and the Company, and upon your full and complete compliance with
the remaining provisions of this Paragraph 17.
In addition to your other holdings of the Company's stock, on the Termination
Effective Date you will own 1,500 shares of the Company's Common Stock which
were issued to you as of March 10, 1994 upon your exercise of an option under
the Special and Nonstatutory Stock Option Agreement under Dell Computer
Corporation 1989 Stock Option Plan dated November 16, 1992 (the "1992 Option
Agreement") and which are subject to restrictions on transfer (the "Two Year
Restriction") for a period of two years. These 1,500 shares are currently held
by the Company, in accordance with the paragraph of the 1992 Option Agreement
entitled "Limitations on Ownership of Common Stock received on Exercise." In
addition, 60% of the 2,500 shares (which amount is 1,500 shares) at $.01 per
share referred to in Paragraph 2 will also be subject to the Two Year
Restriction upon your exercise of those options, in accordance with the 1992
Option Agreement.
Finally, 60% of the 5,000 shares at $.01 per share referred to in the first
full sentence of this Paragraph 17 will also be subject to the Two Year
Restriction. The Company hereby waives the Two Year Restriction as to the 60%
of these 5,000 shares, as to the 1,500 shares that are described above that are
currently held by Dell, and as to the 60% of the 2,500 shares described in
Paragraph 2, it being the intent of this waiver that those shares not be
subject after the Termination Effective Date to any restriction on transfer
imposed by the 1992 Option Agreement. At your request any time after July 1,
1995, the Company will take appropriate steps to remove from any certificate
representing the 1,500 shares, the 5,000 shares, or the other 1,500 shares, any
legend reflecting the Two Year Restriction.
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June 15, 1995
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You acknowledge and agree that the rights granted to you by the provisions of
this Paragraph 17 were not otherwise available to you and constitute
substantial independent consideration for your agreement not to compete set
forth in Paragraph 15.
18. You agree that it shall be your sole responsibility to comply with all
applicable laws related to the exercise of the options described in Paragraphs
2 and 17 of this Agreement, and sale of such shares, and the use and
disposition of all proceeds therefrom, and to pay all applicable taxes, fees
and other charges related thereto.
19. As further separate consideration for the non-competition provision
set forth in Paragraph 16, the Company agrees (i) to be responsible for the
payments to continue health insurance provided under Dell's group policy
pursuant to the conditions of COBRA for so long as the salary continuation
payments set forth in Paragraph 3 above continue; (ii) to pay reasonable
attorney's fees incurred by you with respect to the negotiation and preparation
of this Agreement; and (iii) to pay for all services provided to you by Price,
Waterhouse & Company through the preparation of your tax return for 1995 in
accordance with your present entitlements to Price, Waterhouse Tax Preparation
Services. The Company further agrees to pay you in calendar year 1996 a pro
rata bonus amount under Dell's FY 1996 Executive Bonus Plan (the "Bonus Plan")
in the amount of $56,875.00, but if and only if any other member of Dell's
Executive Staff receives a bonus under the Bonus Plan for FY 1996. Any amounts
payable to you under the Bonus Plan will be paid at the time of the regular
payment of bonuses for other Dell executives.
20. Non-Solicitation. You agree that you will not, during the Restriction
Period, alone or with others, directly or indirectly, solicit or recruit for
your benefit, or for the benefit of any person or entity, the employment or
other services of any person who is an employee of the Company or who within
the six month period preceding such solicitation or recruitment has been an
employee of the Company. You agree that you will not, during the Restriction
Period, cause or facilitate (by providing information or otherwise) the
solicitation or the recruitment of such employment or other services by or for
the benefit of any person or organization with which you may be associated.
21. In addition to the other agreements contained herein, you agree that
you will not use, publish, misappropriate or disclose in any manner, directly
or indirectly, for yourself or for the benefit of any other person or entity,
any Confidential and Proprietary Information. "Confidential and Proprietary
Information" means, without limitation, any information that you have learned
or originated during your employment with the Company, to the extent that such
information is related to the products, marketing plans, sales plans, operating
procedures, properties, or financial condition, prospects, or results of
operations of the Company, which information is commercially valuable and is
not publicly available to or readily ascertainable by third parties through
proper means, and any information disclosed by third parties in confidence to
the Company. Confidential and Proprietary Information specifically includes,
without limitation, all such information of the kinds described in
subparagraphs A through G below:
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Mr. Thomas L. Thomas
June 15, 1995
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A. Manufacturing and research processes currently in use, planned
or under development, including design rules, device characteristics,
process flow, manufacturing capabilities and yields.
B. Computer product, process and device strategies planned or
under development, including device specifications, system
architectures, logic designs, circuit implementations and long-range
plans.
C. Software products in use, planned or under development,
including operating system adaptations or enhancements, language
compilers, interpreters and translators, system design and evaluation
tools, and application and diagnostic programs.
D. Information relating to Company employees; actual and
anticipated relationships between the Company and other companies or
persons; sales levels, profit levels, pricing and other unpublished
financial data; and budget, staffing compensation, equipment and
related plans.
E. Information relating to the Company's customer, supplier and
vendor relationships. This includes performance requirements,
development and delivery schedules, device and product pricing and
quantities, and other information communicated to the Company by its
customers, suppliers or vendors.
F. Information relating to the compensation, skills, and work
histories of the Company's employees.
G. Any Intellectual Property defined below and any copyrightable
works described below, except as publicly disclosed in patents and
other publicly available documents.
22. You agree that all discoveries, ideas, improvements or inventions you
have created, conceived, developed or discovered, alone or with others, during
your employment with the Company which relate to the Company's business or
which result from the use of the Company's equipment, supplies, facilities or
information, and which are protectable under applicable patent or copyright
laws (collectively, the "Intellectual Property"), in whatever form, is the
Company's sole and exclusive property. You hereby assign to the Company all
of your rights in any Intellectual Property. You agree that you will assist
the Company at the Company's expense in all ways in the future, including
giving evidence and executing any documents deemed helpful or necessary by the
Company, to establish, perfect and register worldwide, at the Company's
expense, the Company's title and exclusive ownership in the Intellectual
Property. You agree that you will not do anything in conflict with the
Company's rights in the Intellectual Property and that you will cooperate fully
to protect the Intellectual Property against misappropriation or infringement.
23. You agree that the Company is the copyright owner in all copyrightable
works of every kind and description created or developed by you, solely or
jointly with others, during the time of your employment with the Company. If
so requested at any time, and for no additional
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June 15, 1995
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consideration, you will execute in writing any acknowledgments or assignments
of copyright ownership of such works as may be appropriate in the opinion of
the Company for preservation of the worldwide ownership in the Company of such
copyrights.
24. You agree that your obligations pursuant to Paragraphs 21 and 22 with
respect to the Intellectual Property will survive the satisfaction or
completion of any other term of this Agreement and will continue for the
duration of the Restriction Period as to Paragraph 21 and in perpetuity as to
Paragraph 22 except as otherwise specified herein. You and the Company
acknowledge that you have entered into previous agreements with the Company
from time to time, including the "Special Nonstatutory Stock Option Agreement
under Dell Computer Corporation 1989 Stock Option Plan" dated November 1992, in
respect of Confidential and Proprietary Information and Intellectual Property,
covenants not to compete, non-solicitation and non-hire provisions, and
provisions concerning non contravention of your employment agreement; and you
and the Company agree that all such agreements are merged into and superseded
by the provisions of this Agreement, the intent being that your only
obligations with respect to Confidential and Proprietary Information and
Intellectual Property, covenants not to compete, non-solicitation and non-hire
provisions, and provisions concerning non-contravention of your employment
agreement, shall be as provided herein.
25. You acknowledge that your breach of any of the non-competition,
non-solicitation, non-disclosure or non-use provisions set forth above will
cause irreparable harm to the Company, for which there may be no adequate
remedy at law and for which the ascertainment of damages would be difficult.
You therefore agree that in the event of your breach of any such provision, in
addition to and without having to prove the inadequacy of other remedies at
law, the Company shall be entitled to receive specific performance by you of
any such provision that you have breached, and the Company will furthermore be
entitled to the issuance of a court order directing full and immediate
injunctive relief against you without the Company being required to post any
bond or other security therefore. However, the provisions of this paragraph
should not be interpreted in any way as a limitation on the Company's right to
obtain money damages against you in the event of a breach of any of the
provisions set forth above.
26. You and the Company agree to maintain in confidence the terms of this
Agreement and not to disclose the same publicly or to any third parties except
as may be required in compliance with the requirements of applicable law or
this Agreement. Except as provided in the next sentences, neither you nor any
representative of the Company will make further comment, on or off the record,
for attribution or otherwise with regard to the circumstances of your departure
except as authorized in writing in advance by the party about whom the comment
is made. In addition, you will make no comment, on or off the record, for
attribution or otherwise, during the Restriction Period, about your employment
with the Company, or about the Company or any aspect of its business or
operations, without the express prior written agreement of the Company, except
as you may be required to do so under oath in response to a subpoena. You also
agree that in the event you breach this covenant of confidentiality and the
Company is damaged as a result of such breach, you shall be personally liable
for all damages arising from such breach, including reasonable attorneys' fees
and costs incurred by the Company in pursuing such claim against you. Neither
the Company nor any person acting on behalf of the Company
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June 15, 1995
Page 10
shall make any disparaging remark to any person concerning your employment,
your performance or conduct as an employee of the Company, or the termination
of your employment with the Company.
27. You agree that all time periods which commence with the termination of
your employment with the Company begin to run as of the Termination Effective
Date.
28. This Agreement shall be governed in all respects by the internal laws
of the State of Texas, excluding its rules regarding conflicts of laws, and all
venue hereunder shall be solely in Travis County, Texas.
29. In the event of litigation or other proceeding (through and including,
without limitation, any appeals process) to enforce the provisions of this
Agreement, the prevailing party shall be entitled to recover reasonable
attorney's fees and costs of such litigation or other proceeding from the
non-prevailing party.
30. You agree that you have had sufficient opportunity to thoroughly
discuss the implications of this Agreement with independent legal counsel of
your choice and that you have retained legal counsel of your choice to review
this Agreement and to advise you regarding same prior to your signing and
delivering this agreement to the Company. In signing the Agreement, you agree
that you have not relied on or been induced to execute this Agreement by any
statement, representations or agreements made by any person other than what is
expressly set forth in this Agreement.
31. This Agreement constitutes the entire agreement of the parties and,
except as otherwise provided herein, supersedes any and all prior and/or
contemporaneous oral or written agreements with the Company concerning the
subject matter hereof. This Agreement may not be modified except by a written
instrument executed by you and by an authorized officer of the Company.
32. Any waiver of any term or condition of this Agreement shall be
effective only if set forth in a written document signed by an authorized
officer of the Company. A waiver of any breach or any failure to enforce any
of the terms or conditions of this Agreement shall not in any way affect, limit
or waive a party's rights under this Agreement at any time to enforce strict
compliance thereafter with each and every term or condition of this Agreement.
Any decision by the Company to enforce its rights or withhold the performance
of its obligations under this Agreement will be made by a majority of the Board
of Directors of Dell Computer Corporation.
33. If any provision of this Agreement is held to be illegal, invalid or
unenforceable under any present or future law effective during the term
hereof, such provision shall be fully severable. In such event, this Agreement
shall be construed and enforced as if such illegal, invalid or unenforceable
provision had never comprised a part hereof and the remaining portions hereof
shall remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance from this Agreement.
Furthermore, in lieu of such illegal, invalid or unenforceable provision, there
shall be added automatically as part of this
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June 15, 1995
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Agreement a new provision or a reformed provision as similar in terms and
effect to such illegal, invalid or unenforceable provision as may be legal and
enforceable.
34. Any notice required or permitted under this Agreement shall be given
by certified mail, receipted overnight courier service, or completed telecopy
transmission to the party entitled thereto, addressed as follows:
If to you: Thomas L. Thomas
7100 Valburn Drive
Austin, Texas 78731
With copy to: Clark, Thomas & Winters,
a Professional Corporation
700 Lavaca Street, 12th Floor
Austin, Texas 78701
Attn: C. Joseph Cain
Telecopy: (512) 474-1129
If to the Company: Dell Computer Corporation
2214 W. Braker Lane, Suite D
Austin, Texas 78758
Attn: General Counsel
Telecopy: (512) 728-3773
Either party may change its notice address by written notice to the other
party. Notice shall be deemed to have been received on the earlier of actual
receipt or the fourth day after dispatch.
35. For purposes of this Agreement, the term "Company" shall be deemed to
include any organization, partnership, corporation, trust or entity controlled
by or under common control with the Company. For this purpose, the concept of
"control" means the possession, directly or indirectly, of the power to direct
or cause the direction of the management or policies of another, whether
through the ownership of voting securities, by contract, or otherwise.
36. This Agreement is binding upon and shall inure to the benefit of the
parties and their respective heirs, representatives, successors and assigns.
If this letter accurately sets forth your agreement with respect to
the matters set forth herein, please so signify by signing this letter where
indicated below and then delivering to the
12
Mr. Thomas L. Thomas
June 15, 1995
Page 12
Company your executed original of this Agreement. "Execution" of this
Agreement means that you will sign it in the presence of a notary public. You
have twenty-one (21) days to consider this Agreement. You have a period of
seven (7) days following your execution of the Agreement within which to revoke
it. This Agreement shall not become effective or enforceable until the
revocation period has expired. If you choose to revoke this Agreement, all
payments and benefits to you will immediately cease. If you do not revoke the
Agreement within seven (7) days from the date you sign it, its provisions
become final. If Dell has not received an executed copy of this Agreement,
signed by you and notarized, within the twenty-one (21) days after your receipt
hereof, this offer will automatically terminate and expire without further
notice from Dell.
DELL COMPUTER CORPORATION
By: /s/ JULIE A. SACKETT
Dated: 27 June 1995
Sworn to and subscribed before me this 27th day of June, 1995.
/s/ JUDY M. PITHA
Notary Public in and for
The State of Texas
Printed Name: Judy M. Pitha
My Commission Expires: 04-04-98
13
Mr. Thomas L. Thomas
June 15, 1995
Page 13
I have carefully read the foregoing Agreement. On behalf of myself, my
executor, heirs, successors and assigns, I agree to, and agree to be bound by,
each and all of the terms of the Agreement. I acknowledge receipt of a copy of
the Agreement, and I agree to the sufficiency of the consideration and payments
recited in the Agreement.
/s/ THOMAS L. THOMAS
Thomas L. Thomas
Dated: 6/22/95
Sworn to and subscribed before me this 22nd day of June, 1995.
/s/ RUTH BARR
Notary Public in and for
The State of Texas
Printed Name: Ruth Barr
My Commission Expires: 6/30/96
14
Mr. Thomas L. Thomas
June 15, 1995
Page 14
As the spouse of Thomas L. Thomas, I have carefully read the foregoing letter
agreement. On behalf of myself, my executor, heirs, successors and assigns, I
agree to all of its terms, and to be bound by all of its terms, and I
understand that the term "you" as used in the letter shall also be deemed to
include me. I acknowledge receipt of a copy of it and the sufficiency of the
consideration and payments recited in it.
By: /s/ SANDRA THOMAS
Sandra Thomas
Dated: 6-22-95
Sworn to and subscribed before me
this 22nd day of June, 1995.
/s/ RUTH BARR
Notary Public, State of Texas
Ruth Barr
Typed or Printed Name of Notary