-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, QOwtDe9mUGZGa51CrVtvnK6r5D7WtMNyRdPbWpiFhI8N20FFTj8AeIkB+0nbhAYO Uxt8DcTZY9gD1mrERqKtFw== 0001157523-07-006873.txt : 20070716 0001157523-07-006873.hdr.sgml : 20070716 20070716170350 ACCESSION NUMBER: 0001157523-07-006873 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20070710 ITEM INFORMATION: Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing ITEM INFORMATION: Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20070716 DATE AS OF CHANGE: 20070716 FILER: COMPANY DATA: COMPANY CONFORMED NAME: DELL INC CENTRAL INDEX KEY: 0000826083 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRONIC COMPUTERS [3571] IRS NUMBER: 742487834 STATE OF INCORPORATION: DE FISCAL YEAR END: 0129 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-17017 FILM NUMBER: 07982081 BUSINESS ADDRESS: STREET 1: ONE DELL WAY STREET 2: STED CITY: ROUND ROCK STATE: TX ZIP: 78682-2244 BUSINESS PHONE: 5127284737 MAIL ADDRESS: STREET 1: ONE DELL WAY CITY: ROUND ROCK STATE: TX ZIP: 78682 FORMER COMPANY: FORMER CONFORMED NAME: DELL COMPUTER CORP DATE OF NAME CHANGE: 19920703 8-K 1 a5448172.txt DELL INC. 8-K - -------------------------------------------------------------------------------- UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 -------- FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 -------- Date of Report (Date of earliest event reported): July 10, 2007 -------- Dell Inc. (Exact name of registrant as specified in its charter) Delaware 0-17017 74-2487834 (State or other jurisdiction of (Commission File (IRS Employer incorporation) Number) Identification No.) One Dell Way, Round Rock, Texas 78682 (Address of principal executive offices) (zip code) Registrant's telephone number, including area code: (512) 338-4400 Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions: |_| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |_| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |_| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |_| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) - -------------------------------------------------------------------------------- Item 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing. A copy of the press release issued on July 16, 2007, announcing the NASDAQ Board's call for review, is attached as Exhibit 99.1 and incorporated herein by reference. Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. (e) The company and certain of its executive officers, including Paul D. Bell, Senior Vice President and President, Americas, a named executive officer, have entered into Protection of Sensitive Information, Noncompetition and Nonsolicitation Agreements ("Noncompetition Agreements"). The Noncompetition Agreements provide that if the executive officer's employment with the company is terminated without cause he will receive a severance payment equal to six months' base salary. In addition, the Noncompetition Agreements obligate the executive officer to comply with certain noncompetition and nonsolicitation obligations for a period of 12 months following termination of employment. A copy of the Form of Noncompetition Agreement is attached as Exhibit 10.1 and incorporated herein by reference. Item 9.01 Financial Statements and Exhibits. (d) Exhibits. Exhibit 10.1 - Form of Protection of Sensitive Information, Noncompetition and Nonsolicitation Agreement for Executive Officers. Exhibit 99.1 - Press Release issued by Dell Inc., dated July 16, 2007. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. DELL INC. Date: July 16, 2007 By: /s/ Thomas H. Welch, Jr. ------------------------ Thomas H. Welch, Jr. Vice President and Assistant Secretary 2 EXHIBIT INDEX Exhibit No. Description of Exhibit --- ---------------------- 10.1 Form of Protection of Sensitive Information, Noncompetition and Nonsolicitation Agreement for Executive Officers. 99.1 Press Release issued by Dell Inc., dated July 16, 2007. 3 EX-10.1 2 a5448172ex10_1.txt EXHIBIT 10.1 Exhibit 10.1 Protection of Sensitive Information, Noncompetition and Nonsolicitation Agreement Executive is employed by Dell Inc., a Delaware corporation, and/or its affiliates ("Dell"), in a position of trust and confidence. Dell expects Executive to play a critical role in Dell's future business operations and desires to provide Executive with the strategic tools and commitments necessary to enable Executive to help Dell achieve its long-term goals. Likewise, Dell seeks to protect its confidential and proprietary information, trade secrets and good will. Therefore, the Parties have agreed as follows: 1. Dell agrees to provide Executive Sensitive Information (as that term is defined below). Although Executive's employment remains at-will, if Executive's employment is terminated by Dell without Cause Dell will pay Executive an amount equal to six months base salary as severance, which Executive will receive upon Executive's execution of a Severance Agreement and Release in a form acceptable to Dell. Dell will have no obligation to offer or pay a severance to any Executive who resigns from Dell for any reason or is terminated by Dell for Cause, as defined below, and all provisions of this Agreement, including paragraph 4a, will remain in full force and effect with respect to any such Executive. For purposes of this agreement, "Cause" means: (a) a violation of Executive's obligations regarding confidentiality, proprietary information and trade secrets; (b) an act or omission by Executive resulting in Executive being charged with a criminal offense involving moral turpitude, dishonesty or breach of trust; (c) conduct by Executive which constitutes a felony or a plea of guilty or nolo contendere with respect to a felony under applicable law; (d) conduct by Executive that constitutes gross neglect; (e) Executive's insubordination or refusal to implement directives of Executive's manager; (f) Executive's breach of a fiduciary duty to Dell, its affiliates or their shareholders; (g) Executive's failure to satisfactorily perform Executive's job, (h) Executive's chronic absenteeism; (i) Dell's Senior Management's determination that Executive violated Dell's Code of Conduct or committed other acts of misconduct; or (j) Dell's Senior Management's determination that Executive has engaged in a violation or potential violation of state or federal law relating to the workplace environment (including, without limitation, laws relating to sexual harassment or age, sex, or other prohibited discrimination). 2. "Sensitive Information" means that subset of Confidential Information (as that term is defined in Executive's Employment Agreement with Dell) that is not generally disclosed to non-management employees of Dell. Sensitive Information may include: a. Technical information of Dell, its affiliates, its customers or other third parties that is in use, planned, or under development, such as but not limited to: manufacturing and/or research processes or strategies (including design rules, device characteristics, process flow, manufacturing capabilities and yields); computer product, process and/or devices (including device specification, system architectures, logic designs, circuit implementations); software product (including operating system adaptations or enhancements, language compilers, interpreters, translators, design and evaluation tools and application programs); and any other databases, methods, know-how, formulae, compositions, technological data, technological prototypes, processes, discoveries, machines, inventions and similar items; b. Business information of Dell, its affiliates, its customers or other third parties, such as but not limited to: actual and anticipated relationships between Dell and other companies; financial information (including sales levels, pricing, profit levels and other unpublished financial data); global procurement processes, strategies or information; information relating to customer or vendor relationships (including performance requirements, development and delivery schedules, device and/or product pricing and/or quantities, customer lists, customer preferences, financial information, credit information; and similar items; c. Personnel information of Dell and its affiliates, such as but not limited to: information relating to employees of Dell (including information related to staffing, performance, skills, qualifications, abilities and compensation); key talent information; scaling calls; organizational human resource planning information; and similar items; and d. Information relating to future plans of Dell, its affiliates, its customers or other third parties, such as but not limited to: marketing strategies; new product research; pending projects and proposals; proprietary production processes; research and development strategies; and similar items. 3. Executive agrees not to use, publish, misappropriate, or disclose any Sensitive Information, during or after Executive's employment, except as required in the performance of Executive's duties for Dell or as expressly authorized in writing by Dell. 1 4. To protect Sensitive Information, Executive agrees to the following restrictive covenants: a. While Executive is employed by Dell and for the twelve-month period immediately following the end of Executive's employment with Dell, Executive will not, in any geographic region for which Executive had direct or indirect responsibility on behalf of Dell or in any geographic region for which Executive had Sensitive Information, perform services for a Direct Competitor, whether as an employee, consultant, principle, advisor, board member or any other capacity, that are substantially similar to the duties Executive performed for Dell at any time during the last 24 months of Executive's employment with Dell. b. While Executive is employed by Dell and for the twelve-month period immediately following the end of Executive's employment with Dell, Executive will not, directly or indirectly, solicit (or assist another in soliciting) (i) any of Dell's customers or prospective customers with whom Executive had contact on behalf of Dell during the last twelve months of Executive's employment with Dell; or (ii) any of Dell's customers or prospective customers about whom Executive had any Sensitive Information during the last twelve months of Executive's employment with Dell. c. While Executive is employed by Dell and for the twelve-month period immediately following the end of Executive's employment with Dell, Executive will not, encourage (or assist another in encouraging) any supplier, business partner, or vendor of Dell with whom Executive had any contact on behalf of Dell within the last 24 months of Executive's employment or about whom Executive had any Sensitive Information to terminate or diminish its relationship with Dell. d. While Executive is employed by Dell and for the twelve-month period immediately following the end of Executive's employment with Dell, Executive will not, except as required to perform Executive's duties for Dell, directly or indirectly solicit (or assist another in soliciting) for employment, consulting, or other service engagement any employee, contractor, or consultant of Dell or any person who was an employee, contractor, or consultant of Dell at any time during the last twelve months of Executive's employment with Dell. e. While Executive is employed by Dell and for the twelve-month period immediately following the end of Executive's employment with Dell, Executive will not, except as required to perform Executive's duties for Dell, directly or indirectly advise, assist, attempt to influence or otherwise induce or persuade (or assist another in advising, attempting to influence or otherwise inducing or persuading) any person employed by Dell to end his or her employment relationship with Dell. "Direct Competitor" means any entity, or other business concern that offers or plans to offer products or services that are materially competitive with any of the products or services being manufactured, offered, marketed, or are actively developed by Dell as of the date of Executive's execution of this Agreement or the date Executive's employment with Dell ends, whichever is later. By way of illustration, and not by limitation, at the time of execution of this Agreement, the following companies are currently Direct Competitors: Hewlett-Packard, Lenovo, IBM, Gateway, Apple, Acer, and CDW. Executive understands and agrees that the foregoing list of Direct Competitors represents an example of companies which compete with Dell in a material way, and are thus considered Dell Direct Competitors, and that other entities may be considered or become Dell Direct Competitors. 5. Executive represents and agrees that, following the end of Executive's employment with Dell, Executive will be willing and able to engage in employment not prohibited by this Agreement. If Executive subsequently desires to pursue an opportunity prohibited by the terms of this Agreement, Executive agrees to make written request to Dell's Human Resources Senior Vice President for a modification of the restrictions contained in this Agreement prior to pursuing the opportunity, such request to include the name and address of the entity or business concern involved (if any) and the title, nature, and duties of the activity Executive wishes to pursue. 6. Dell and Executive agree and believe that the terms of this Agreement are reasonable and do not impose a greater restraint than necessary to protect Dell's Sensitive Information and Dell's other legitimate business interests. If a court of competent jurisdiction holds this not to be the case, Dell and Executive agree that the terms of this Agreement are hereby automatically reformed and rewritten to the extent necessary to make the Agreement valid and enforceable. Dell and Executive also agree to request that the Court not invalidate or ignore the terms of this Agreement but instead to honor this provision by reforming or modifying any overbroad or otherwise invalid terms to the extent needed to render the terms valid and enforceable and then enforcing the Agreement as reformed or modified. It is the express intent of Dell and Executive that the terms of this Agreement be enforced to the full extent permitted by law. 2 7. Executive acknowledges and agrees that a violation of this Agreement would cause irreparable harm to Dell, and Executive agrees that Dell will be entitled to an injunction restraining any violation or further violation of such provisions. In this connection, Executive covenants that Executive will not assert in any proceeding that any given violation or further violation of the covenants contained in this Agreement: (i) will not result in irreparable harm to Dell; or (ii) could be remedied adequately at law. Dell's right to injunctive relief shall be cumulative and in addition to any other remedies provided by law or equity. 8. This agreement supplements Executive's other agreements regarding the protection of Dell's Confidential Information. No waiver of this Agreement will be effective unless it is in writing and signed by Dell's Chief Executive Officer. This Agreement may not be superseded by any other agreement between Executive and Dell unless such agreement specifically and expressly states that it is intended to supersede the Protection of Sensitive Information, Noncompetition and Nonsolicitation Agreement between Executive and Dell. 9. This Agreement will not be effective until you have acknowledged and agreed to the terms and conditions set forth herein by executing this Agreement in the space provided below and returning it by faxing a signed copy of the Agreement to 512-283-3353. I have carefully read this Agreement. I understand and accept its terms. I agree that I will continue to be bound by the provisions of this Agreement after my employment with Dell has ended. - ------------------------------------- --------------------------- Signature Dell Executive Printed Name - -------------------------------- Date Dell Inc. By: ------------------------------------------- Dominick DiCosimo, VP, Global HR Operations 3 EX-99.1 3 a5448172ex99_1.txt EXHIBIT 99.1 Exhibit 99.1 NASDAQ Board Stays Decision of Listing and Hearing Review Council Regarding Dell Common Stock ROUND ROCK, Texas--(BUSINESS WIRE)--July 16, 2007--Dell today announced that the Board of Directors of The NASDAQ Stock Market LLC has called the NASDAQ Listing and Hearing Review Council's June 27, 2007 decision regarding the company for review, and had also stayed the Council's decision to suspend the company's common stock from trading. Dell's common stock will remain listed on The NASDAQ Stock Market pending further consideration by the NASDAQ Board. The company is committed to regaining compliance with all NASDAQ listing requirements as soon as possible. About Dell Dell Inc. (NASDAQ:DELL) listens to customers and delivers innovative technology and services they trust and value. Uniquely enabled by its direct business model, Dell is a leading global systems and services company and No. 34 on the Fortune 500. For more information, visit www.dell.com. To get Dell news direct, visit www.dell.com/RSS. Dell is a trademark of Dell Inc. Dell disclaims any proprietary interest in the marks and names of others. CONTACT: Dell Inc., Round Rock Media Contacts: Bob Pearson, 512-728-3256 bob_pearson@dell.com or David Frink, 512-728-2678 david_frink@dell.com or Investor Contacts: Lynn A. Tyson, 512-723-1130 lynn_tyson@dell.com or Robert Williams, 512-728-7570 robert_williams@dell.com -----END PRIVACY-ENHANCED MESSAGE-----