exv10w2






Exhibit 10.2





     AMENDMENT NUMBER ONE (the “Amendment”), dated as of July 27,
2009, between SPSS Inc., a Delaware corporation (the “Company”),
and Raymond H. Panza (the “Executive”), to the Amended and
Restated Employment Agreement (the “Employment Agreement”), dated
as of May 1, 2009, between the Company and the Executive.



     WHEREAS the Executive is a key employee of the Company, and is employed by the Company
pursuant to the Employment Agreement;



     WHEREAS pursuant to, and subject to the terms and conditions of, the Agreement and Plan of
Merger by and among International Business Machines Corporation (the “Parent”), Pipestone
Acquisition Corp. and the Company, dated as of the date hereof (the “Merger Agreement”),
which the Company is entering into contemporaneously with this Amendment, the Company, as the
surviving corporation as a result of the Merger (as defined in the Merger Agreement), will become a
wholly owned subsidiary of the Parent;



     WHEREAS in connection with the Merger, the Executive is selling and disposing of all of his
ownership and equity interest in the Company, including restricted stock units and vested or
unvested stock options with respect to Company stock held by the Executive;



     WHEREAS the Parent has agreed in the context of the Merger Agreement to pay a significant
premium on the current market value of the Company, which will result in a direct and
substantial benefit to the Executive, in consideration for, among other things, the Executive’s
agreement to enter into this Amendment;



     WHEREAS as a result of the Executive’s employment with the Company, the Executive has been
given access to various confidential and proprietary trade secret information of the Company (which
information is one element accounting for the valuation of the Company, including its goodwill) and
will, following the Merger, continue to be given access to such confidential and proprietary trade
secret information;



     WHEREAS Section 10(f) of the Employment Agreement contains various restrictive covenants
pursuant to which the Executive has agreed, among other things, to refrain, during the period of
the Executive’s employment with the Company and for a period of time thereafter, as described
therein, from directly or indirectly engaging in activities that are competitive with the business
of the Company and its Affiliates (as defined in the Employment Agreement) and from soliciting the
Company’s customers and clients;



     WHEREAS the second paragraph of Section 10(f) of the Employment Agreement provides that the
provisions of Section 10(f) shall terminate if, among other things, the Executive’s employment is
terminated for any reason within twelve months after a transaction such as the Merger;









 



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     WHEREAS, in order to protect the value of the Company following the Merger, and as an
inducement to the Parent to enter into the Merger Agreement and pay the purchase price contemplated
thereunder, the Company and the Executive wish to amend the Employment Agreement, with continuing
effectiveness conditioned upon the occurrence of the Closing, to ensure that (A) the Executive will
be required to execute an irrevocable waiver and general release of claims in favor of the Company
and its Affiliates as a condition of receiving certain termination payments upon the Executive’s
termination of employment by the Company without Good Cause or by the Executive for Good Reason or
pursuant to the Special Termination Provision and (B) the provisions of Section 10(f) of the
Employment Agreement shall not terminate after the Closing, including as a result of the
Executive’s termination of employment at any time and for any reason following the Closing.



     NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound hereby, the parties hereto agree as follows:



     SECTION 1. Amendment to Section 5. The following new Section 5(k) is hereby inserted
at the end of Section 5 of the Employment Agreement:




     “Release. The Company shall have no obligation to make any payments described
in Section 5(f)(v) or Section 5(h)(ii) unless, on or prior to the fifty-fifth (55th) day
following the Date of Termination, the Employee has provided an irrevocable waiver and
general release of claims, in the form attached hereto as Annex A, in favor of the
Company and its Affiliates, predecessors and successors, and each of their respective
directors, officers, employees, shareholders, partners, principals, members, agents or
representatives, and such waiver and general release has become effective and irrevocable
in accordance with its terms; provided that notwithstanding the last paragraph
under Section 5(f) (pursuant to which payments to be made thereunder and under Section
5(h)(ii) would otherwise be payable within fifteen (15) days following the Date of
Termination), any payments made pursuant to Section 5(f)(v) and Section 5(h)(ii) shall,
subject to the foregoing requirements of this Section 5(k), be paid on the fifty-fifth
(55th) day following the Date of Termination.”



     SECTION 2. Amendment to Section 10(f). The second paragraph of Section 10(f) is
hereby deleted in its entirety from the Employment Agreement, and the following paragraph is hereby
inserted in its place:




     “Notwithstanding any provision of this Agreement to the contrary, the provisions of
this Section 10(f) shall survive termination of the Employee’s employment with the Company
and its Affiliates for any reason, including, without limitation, any termination of the
Employee’s employment following a Change of Control.”









 



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     SECTION 3. Governing Law; Construction. This Amendment shall be deemed to be made in
the State of Illinois, and the validity, interpretation, construction and performance of this
Amendment in all respects shall be governed by the laws of the State of Illinois without regard to
its principles of conflicts of law. No provision of this Amendment or any related document shall
be construed against or interpreted to the disadvantage of any party hereto by any court or other
governmental or judicial authority by reason of such party’s having or being deemed to have
structured or drafted such provision.



     SECTION 4. Effect of Amendment. Except as expressly set forth herein, this Amendment
shall not, by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect
the rights and remedies of the parties to the Employment Agreement, and shall not alter, modify,
amend or in any way affect any of the terms, conditions, obligations, covenants or agreements
contained in the Employment Agreement, all of which shall continue in full force and effect. This
Amendment shall apply and be effective only with respect to the provisions of the Employment
Agreement specifically referred to herein and shall be effective immediately upon its execution by
both parties hereto, provided that if the Merger Agreement terminates and the Closing does not
occur, this Amendment shall be null and void on the date that the Merger Agreement terminates.
Except as set forth in the immediately preceding sentence, on and after the date hereof, any
reference to the Employment Agreement shall mean the Employment Agreement as modified hereby.



     SECTION 5. Counterparts. This Amendment may be executed in one or more counterparts
(including via facsimile), each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument and shall become effective when one or more
counterparts have been signed by each of the parties and delivered to the other party.









 



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     IN WITNESS WHEREOF, this Amendment has been executed by the parties as of the date first
written above.



	 	 	 	 	 
	 	SPSS INC.



by

 	 
	 	/s/ Jack Noonan
 	 
	 	Name:  	Jack Noonan 	 
	 	Title:  	Chairman of the Board, Chief Executive Officer and President 	 
	 



	 	 	 	 	 
	 	EXECUTIVE,

 	 
	 	/s/ Raymond H. Panza
 	 
	 	Raymond H. Panza 	 
	 	 	 









 



 

	 	 	 	 	 




ANNEX A




Release of Claims Form




GENERAL RELEASE 




In exchange
for the sum of _________($___), I, _________,
agree to release and do hereby release International Business Machines Corporation and all of its
subsidiaries (including SPSS Inc. (“SPSS”)) and its and their benefits plans (collectively,
hereinafter “IBM”), from all claims, demands, actions or liabilities I may have against IBM of
whatever kind, including, but not limited to, those which are related to my employment with IBM,
the termination of that employment, eligibility for participation in any separation pay plans or to
receive any other severance payments, eligibility for participation in the Retirement Bridge Leave
of Absence or other or different retirement bridge leaves of absence, or claims for attorneys’
fees. I agree that this Release also releases from liability IBM’s agents, directors, officers,
employees, representatives, successors, and assigns (hereinafter “those associated with IBM”). The
sum above includes all payments that I am entitled to receive pursuant to Section 5(f)(v) or
Section 5(h)(ii), as applicable, of the Amended and Restated Employment Agreement dated May 1,
2009, to which I am a party (the “Employment Agreement”).



I agree that I have voluntarily executed this Release on my own behalf, and also on behalf of any
heirs, agents, representatives, successors and assigns that I may have now or in the future. I
also agree that this Release covers, but is not limited to, claims arising from the Age
Discrimination in Employment Act of 1967, as amended, Title VII of the Civil Rights Act of 1964, as
amended, and any other federal, state, or local law dealing with discrimination in employment,
including, but not limited to, discrimination based on sex, race, national origin, religion,
disability, veteran status or age and any claims for my attorneys’ fees. I also agree that this
Release includes, but is not limited to, claims based on theories of contract or tort, whether
based on common law or otherwise. In addition, I agree to waive any right I have to pursue any
claim or grievance through any IBM internal channel including, but not limited to, the IBM Open
Door Policy. This Release covers both claims that I know about and those that I may not know about
which have accrued by the time I execute this Release. This Release does not prevent me from
enforcing my nonforfeitable rights to my accrued benefits (within the meaning of Sections 203 and
204 of the Employee Retirement Income Security Act of 1974, as amended), as of the date of my
retirement from IBM under the IBM TDSP 401(k), which are not released hereby but survive unaffected
by this document. This Release is not applicable to (1) my claim for any benefit under any
written benefit plan or program maintained by IBM that is accrued and vested as of the date of my
termination of employment, (2) any right to indemnification that I may have under applicable
corporate law, SPSS’s Articles of Incorporation, or SPSS’s Bylaws, and any claim that I may have
under the Indemnification Agreement between SPSS and myself, dated May 21, 2007, (3) any claim that
I may have under any director and officer insurance policy maintained by








 



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SPSS, and any claim pursuant to Section 9 of my Employment Agreement that SPSS make special
arrangements, if necessary, to continue to provide directors and officers insurance coverage after
my date of termination, (4) any claim that I may have under Section 8 (Tax Gross-Up) of my
Employment Agreement, (5) any claim to post termination compensation or benefits under Section 5(f)
or Section 5(h), as applicable, of my Employment Agreement, or (6) any claim or right that may not
be released or waived under applicable law. This Release does not preclude filing a charge or
claim with the U.S. Equal Employment Opportunity Commission, provided that I shall not be permitted
to accept any personal relief with respect to any such charge or claim.



I acknowledge that I have been advised by IBM to seek legal counsel concerning this matter. I
acknowledge and agree that:




	 	1.	 	The payment hereunder constitutes consideration for this Release, in
that it is consideration to which I would not have otherwise been entitled unless
I signed this Release.
	 
	 	2.	 	I have been given the opportunity to take a period of at least
forty-five (45) days within which to consider this Release, and I have had an
opportunity to consult with an attorney regarding the terms of this Release and
the consideration period. I understand that I may choose to waive or not waive
the right to take the full 45 days. Therefore, in the event the date of the
execution of this Release is less than 45 days from the date I received it, it is
a knowing and voluntary waiver of my right to wait the full 45 days before
executing it. IBM has placed no pressure on me to execute this Release or return
it before the expiration of the 45-day period.
	 
	 	3.	 	This Release does not waive any claims that I may have which arise
after the date I sign this Release.
	 
	 	4.	 	I have not relied on any representations, promises, or agreements of
any kind, whether written or oral, made to me in connection with my voluntary
decision to accept the consideration except for what is expressly provided for
herein.
	 
	 	5.	 	I agree to keep confidential both the nature and terms of this
agreement.
	 
	 	6.	 	Federal and state income tax and other applicable payroll taxes will
be withheld by IBM from the sum to be paid to me hereunder.
	 
	 	7.	 	I understand my obligations to IBM under the Agreement Regarding
Confidential Information, Intellectual Property, and Other Matters which I signed
at the time I began my employment with IBM Corporation, and under the Employment
Agreement, and the extent to which those obligations continue after my employment
ends.










 



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	 	8.	 	I agree to return to IBM Corporation within 15 days from the date I
execute this Release my IBM badge, my corporate charge card, IBM Thinkpad, Model
___, Serial #___, its accessories, and any other property in my
possession belonging to IBM Corporation.
	 
	 	9.	 	Payment by IBM hereunder is contingent upon my delivery to IBM no
later than (insert here the last date Release will be accepted by IBM ) of
this Release, properly executed and notarized, containing no modifications to the
typewritten text not agreed to in writing by IBM. Payment by IBM hereunder is also
contingent upon the expiration of the below described period of revocation without
me having exercised that right to revoke. If each of these contingencies is met,
payment by IBM would be made on the fifty-fifth day following the date of my
termination of employment.





I understand that this Release is not effective or enforceable for seven (7) days after I sign it,
and I may revoke it during that time. To revoke, I agree to deliver a written notice of revocation
to Mr./Ms. ______, whose address is IBM Corporation, ______. I
understand this must be done prior to the conclusion of the seventh day after I sign the Release.
I understand that if Mr./Ms. ______ does not receive a written revocation by the
end of the seven-day period, this Release will become fully enforceable at that time. I also
understand that revocation of this Release does not alter or change the termination of my
employment at IBM.



In the event that any part of this Release shall be invalid, illegal or otherwise unenforceable,
the validity, legality, and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.



I hereby acknowledge that I understand and agree to this General Release.



	 	 	 
	 


	 	Name [print]
	 
	 	 
	 


	 	Signature
	 
	 	 
	 


	 	Witness or Notary Public
	[Signature]
	 	 
	 
	 	 
	 


	 	Date