CONSULTATION AND NONCOMPETITION AGREEMENT
AGREEMENT, entered into as of this 28th of
August, 1997, by and between Gateway 2000, Inc., a Delaware
corporation (the "Company") and Xxxxxxx X. Xxxxxx (the
"Consultant").
WHEREAS, Consultant has been employed by the
Company since 1991 and currently serves as President, Chief
Operating Officer and a member of the Board of Directors (the
"Board") of the Company; and
WHEREAS, the Company and Consultant have mutually
agreed that Consultant shall resign and terminate his employment
as an employee, effective as the opening of business on September
1, 1997 (the "Effective Date");
WHEREAS, the Company wishes to insure that it can
avail itself of Consultant's substantial expertise and knowledge
of the Company's affairs following the termination of his
employment by consulting with him as the Company deems necessary
or desirable, that Consultant will not compete with the Company,
and that Consultant will not disclose trade secrets or
confidential information, as hereinafter described;
NOW, THEREFORE, for good and valuable
consideration, the adequacy of which hereby is acknowledged, the
Company and Consultant agree as follows:
1. Resignation/Continuation as Board Member. Consultant
agrees to serve as a member of the Board through the 1999 Annual
Meeting, and, subject to nomination by the Board and reelection
by Stockholders, for any period thereafter for which he is
nominated and reelected, and shall be entitled to such
compensation as is generally provided to the Company's other non-
management directors. Consultant hereby resigns, effective as of
the Effective Date, from all of his other positions as an
employee or officer with the Company or any of its subsidiaries
and affiliated companies and ventures (the "Affiliates"), as a
director of any Affiliate, and from any other position held by
Consultant at the request of the Company or any Affiliate,
including, without limitation, President and Chief Operating
Officer of the Company and as a member of the Board of Gateway
2000 International Limited. The Company and Consultant agree
that Consultant shall have no right to compensation, past,
present, or future, or any other rights, claims or causes of
action arising in connection with his past or present employment
by the Company and its Affiliates and the termination thereof,
except as expressly provided herein.
2. Consultation Agreement. Except as otherwise provided
herein, from and after the Effective Date and until August 31,
2000 (the "Consultation Period"), Consultant shall serve as a
senior advisor to the Company, provided that, the Company and
Consultant may, by mutual agreement, prior to or on August 31,
2000, extend this Agreement until August 31, 2001. (If the
Agreement is so extended, references to the "Consultation Period"
shall be deemed to include the entire period ending on August 31,
2001; references to the "Initial Consultation Period" shall be
deemed to refer to the period ending on August 31, 2000.) As
such, Consultant shall make himself available to render
consulting services to the Company from time to time as
hereinafter provided on such project(s) relating to the business,
affairs and management of the Company and its Affiliates as may
be assigned to him by the Board and/or the Company's Chief
Executive Officer. It is expressly understood between the
parties that Consultant shall be an independent contractor during
the Consultation Period.
To the extent practicable, any services to be provided by
Consultant shall be performed at such times as are reasonably
convenient to Consultant. The Company acknowledges that
Consultant will have other activities, obligations and
engagements that will command his time and attention, subject to
the provisions of Sections 5, 6 and 7 hereof. In no event shall
the period of consultation exceed an average of sixteen (16)
hours per week calculated on a monthly basis, including what may
be required in connection with Consultant's obligations under
Section 9 hereof. In addition to any other consulting activities
hereunder, Consultant acknowledges that the Company may also call
upon Consultant to represent it before such persons and on such
occasions as are consistent with his knowledge and stature in
respect of the Company, including, without limitation,
participation in Company planning and educational conferences,
appearances before governmental officials and bodies and
participation in programs in the public and private sectors that
enhance the Company's position or potential.
3. Compensation and Expenses. Subject to Section 4,
each year during the Consultation Period, the Company will pay
Consultant Two Hundred Thousand Dollars ($200,000) during the
Consultation Period (the "Consulting Fee"), payable monthly
promptly upon receipt of Consultant's invoice. The Company also
shall reimburse Consultant, in accordance with its standard
policies from time to time in effect, for such reasonable and
necessary out-of-pocket expenses as may be incurred by Consultant
during the Consultation Period in the performance of the duties
and responsibilities assigned to Consultant under this Agreement.
4. Termination of Consulting Agreement.
Notwithstanding anything herein to the contrary, either party
shall have the right by 90 days prior written notice to the other
to terminate the consulting arrangement set forth herein.
5. Agreement Not to Compete.
(a) Without the prior written consent of the
Company, Consultant hereby agrees that during the Consultation
Period and for the one year period following the expiration of
this Agreement or termination of this Agreement by Consultant, or
the ninety day period following termination of this Agreement by
the Company, he shall not, for any reason, directly or
indirectly, (i) engage in, (ii) hold more than 5% of the
outstanding stock of, (iii) accept employment with any business
that Competes with the Company or any of its Affiliates or (iv)
offer advisory or consulting services to assist any such entity
to Compete with the Company. As used herein, the term "Compete"
or "Competes" with the Company or any of its Affiliates shall
mean competing with any of the business conducted by the Company
or any of its Affiliates as of the Effective Date or any time
during the Consultation Period wherever the Company does
business.
(b) The Company and Consultant agree that the
duration and area for which the covenant not to compete set forth
in this Section 5 is to be effective are reasonable. In the
event that any court determines that the time period or the
geographic areas provided for in this Section 5, or both of them,
are unreasonable and that such covenant is to that extent
unenforceable, such covenant shall remain in full force and
effect for the greatest time period and in the greatest
geographical area that would not render it unenforceable. The
Company and Consultant intend that this covenant shall be deemed
to be a series of separate covenants, one for each and every
county of each and every state or other political subdivision of
the United States of America and for any other country in the
world where this covenant is intended to be effective.
(c) As used in Sections 5, 6 and 7, "Affiliates"
shall mean any person who directly or indirectly through one or
more intermediaries controls, is controlled by, or is under
common control with, such specified person (and shall be deemed
to include the Company).
6. Agreement Not to Solicit. During the Consultation
Period, Consultant shall not, acting in any capacity, directly or
indirectly, without the prior consent of the Company: (a)
solicit, offer employment to, otherwise attempt to hire, or
assist in the hiring of, any person employed by the Company or
its Affiliates within the ninety day period preceding any such
action, or (b) encourage or induce, directly or indirectly, any
such person to leave the employment by the Company or its
Affiliates.
7. Nondisclosure of Confidential Information.
(a) "Confidential and Proprietary Information" as used
herein shall include, but is not limited to oral, written or
documentary information of a special and unique nature or value
relating to Gateway's business. Such information shall include,
but is not limited to, the names and addresses of Gateway
employees, customers and potential customers, records concerning
customer contacts and customer purchases, the identity of
customers' key employees, information concerning Gateway's
products, policies, methods of operation, procedures, manuals,
pricing, forecasts, projects, projections, strategic plans,
technical information, product development and methodologies.
(b) "Trade Secrets" as used herein shall mean
Confidential and Proprietary Informationthat derives economic
value, actual or potential, from not being generally known to and
not being readily ascertainable by proper means by other persons
who can obtain economic value from its disclosure or use; and is
subject of efforts that are reasonable under the circumstances to
maintain its secrecy from disclosure to third parties.
Consultant agrees that all such information acquired during the
course of employment as an employee or as a Consultant of the
Company, whether such information is communicated in written or
verbal form and whether such information is kept in recorded or
unrecorded form, shall constitute Trade Secrets of the Company.
(c) "Intellectual Property" as used in this Agreement
shall mean inventions, of any kind, discoveries, know-how, or
improvements, whether or not patentable including works of
authorship.
(d) Consultant acknowledges and agrees that the
misappropriation, unauthorized use or unauthorized disclosure of
the Company's Confidential and Proprietary Information, Trade
Secrets or Intellectual Property would cause irreparable harm to
the Company.
(e) With respect to any Trade Secrets, Consultant
covenants and agrees not to use for any purpose whatsoever or
disclose the Trade Secrets at any time during or after the term
of his employment with the Company in any capacity until such
Trade Secrets become generally available to the public by
independent discovery, development or publication. The rights to
protection of Trade Secrets in this Agreement are in addition to
the rights under common or statutory law for the protection of
Trade Secrets.
(f) With respect to Confidential and Proprietary
Information, Consultant covenants and agrees that during the
Consultation Period and for a period of three years after the
termination of the Consultation Period, Consultant will not use
Confidential and Proprietary Information for any purpose
whatsoever, and will avoid and prevent disclosure of Confidential
and Proprietary Information to any third party, except as
specifically authorized by the Company.
(g) Consultant agrees that his violation of this
Agreement shall entitle the Company to
injunctive relief. The Company shall be entitled to any and all
other remedies and rights available at law or equity. The term
of the covenants herein as they relate to Confidential and
Proprietary Information shall be tolled during any violation
thereof by Consultant; such tolling shall be without prejudice to
the Company's rights to specifically enforce this Agreement or
seek other remedies.
8. Specific Performance. Consultant acknowledges that
the Company would sustain irreparable injury in the event of a
violation by Consultant of any of the provisions of Sections 5, 6
or 7 hereof, and by reason thereof Consultant consents and agrees
that if he violates any of the provisions of said Sections, in
addition to any other remedies available, the Company shall be
entitled to a decree specifically enforcing such provisions, and
shall be entitled to a temporary and permanent injunction
restraining Consultant from committing or continuing any such
violation, from any court of competent jurisdiction, without the
necessity of proving actual damages, posting any bond, or seeking
arbitration in any forum. The provisions of this Section 8 shall
survive the termination or expiration of this Agreement and the
Consultation Period.
9. Cooperation.
(a) Consultant shall cooperate fully with the
Company in the prosecution or defense, as the case may be, of any
and all actions, governmental inquiries or other legal
proceedings in which his assistance may be reasonably requested
by the Company. Such cooperation shall include, among other
things, making relevant documents in his custody or control
available to the Company or its counsel, making himself available
for interviews by the Company or its counsel, and making himself
available to appear as a witness, at deposition, trial or
otherwise. Any reasonable out-of-pocket expenses incurred by
Consultant in fulfilling his obligations under this Section 9(a)
shall be reimbursed by the Company. Such Company requests shall
be reasonable and recognize the other business and personal
activities of the Consultant undertaken not in violation hereof.
(b) The Company will reimburse the consultant for
reasonable legal fees and expenses he incurs in cooperating in
the prosecution or defense of the matters referenced in Section
9(a).
(c) The provisions of this Section 9 shall survive
the termination or expiration of this Agreement and the
Consultation Period only for so long as Consultant shall serve as
a member of the Board of Directors of the Company.
10. Additional Consultant Rights
(a) Consultant shall be indemnified and held
harmless by the Company against all legally indemnifiable
expense, liability and loss reasonably incurred or suffered by
Consultant while acting on behalf of the Company pursuant to this
Agreement on the same terms as and to the fullest extent,
provided to directors or executive officers under the Company's
Restated Certificate of Incorporation.
(b) The Company and Consultant agree that in the
event that, during the Consultation Period, the Company amends
its outstanding stock option plans to provide for the
acceleration or assumption of or substitution for unvested stock
options upon the occurrence of a "Change of Control" or similar
event of the Company, such amendment shall apply, on the same
terms and conditions, to the stock options previously granted the
Consultant and outstanding as of such date.
(c) For the longer of the Consultation Period or his
service as a member of the Board, Consultant shall be entitled to
use, at Consultant's own cost, the travel service of the Company
and its relocation service.
11. Notices. All notices required or permitted
hereunder shall be given in writing by personal delivery; by
confirmed facsimile transmission; by express delivery via
reputable express courier service; or by registered or certified
mail, return receipt requested, postage prepaid, in each case
addressed to the parties at the respective addresses set forth
below their signatures hereto, or at such other address as may be
designated in writing by either party to the other in the manner
set forth herein. Notices which are delivered personally, by
confirmed facsimile transmission, or by courtier as aforesaid,
will be effective on the date of delivery. Notices delivered by
mail will be deemed effectively given upon the fifth calendar day
subsequent to the postmark date thereof.
12. Miscellaneous.
(a) The failure of either party hereto at any time to
require performance by the other party of any provision hereunder
will in no way affect the right of that party thereafter to
enforce the same, nor will it affect any other party's right to
enforce the same, or to enforce any of the other provisions in
this Agreement; nor will the waiver by either party of the breach
of any provision thereof be taken to be a waiver of any prior or
subsequent breach of such provision or as a waiver of the
provision itself.
(b) This Agreement constitutes the entire agreement
between the parties with respect to its subject matter. It
supersedes any prior agreement or understanding between them, and
it may not be modified or amended except by a writing executed by
both parties.
(c) This Agreement shall be governed by and
interpreted in accordance with the laws of the State of South
Dakota without regard to its conflict of law provisions.
(d) Each provision of this Agreement
shall be considered severable and if a provision is for any
reason held to be invalid, all remaining provisions shall be
enforceable. If any provision of this Agreement is held to
impose a restriction upon Consultant which is unenforceable in
scope but could be made enforceable by limiting the scope,
Consultant and the Company agree to a modification of the invalid
or unenforceable provision to the extent required for
enforceability.
(e) This agreement shall be binding and inure to
the benefit of the parties and their respective successors in
interest of any kind whatsoever, provided that, because this
Agreement is a personal contract calling for the provision of
unique services by Consultant, Consultant's rights and
obligations hereunder may not be sold, transferred, assigned,
pledged or hypothecated by Consultant. The rights and
obligations of the Company hereunder will be binding upon and run
in favor of the successors and assigns of the Company, but no
assignment by the Company shall release the Company from its
obligations hereunder, and the Company shall not assign this
Agreement to any entity other than an Affiliate.
The parties have agreed to and executed this Agreement as
of the date first set forth above.
Signature and Notice Address: Signature and Notice Address:
Gateway 2000, Inc. Xxxxxxx X. Xxxxxx
000 Xxxxxxx Xxxxx 000 X. Xxxxxxxx
Xxxxx Xxxxx Xxxx, XX 00000-0000 Xxxxxxxx, XX 00000
Attn: Senior Vice President,
General Counsel & Secretary
By:/s/Xxxxxxxx X. Xxxxx /s/Xxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxx
