EXHIBIT 10.16
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AMENDMENT NUMBER TWO TO
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THIS AMENDMENT NUMBER TWO TO (this
"Amendment"), dated as of November 30, 1999 and effective as of the Effective
Date defined below, is made by and between SAVOIR TECHNOLOGY GROUP, INC., a
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Delaware corporation, as successor in interest to Western Micro Technology, Inc.
("Savoir") having offices at 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx
00000 and SIRIUS COMPUTER SOLUTIONS, INC., a Texas corporation, as successor in
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interest to Sirius Computer Solutions, LTD, a Texas limited partnership
("Sirius") having offices at 000 X.X. Xxxx 000, Xxxxx 0000, Xxx Xxxxxxx, Xxxxx
00000.
RECITALS
A. WHEREAS, Savoir and Sirius are parties to an , dated as of September 30, 1997, and first
amended December 31, 1998 (the "XXX"); and
B. WHEREAS, On or about October 1, 1999, Savoir inadvertently disclosed
certain confidential and proprietary information concerning Sirius
customers to certain employees of Real Applications (the
"Disclosure"); and
C. WHEREAS, Savoir and Sirius have agreed to resolve all claims and
disputes arising from such Disclosure by amending the terms and
conditions of the XXX as set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and mutual promises
set forth in this Amendment and for other further valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Definitions. The terms used in this Amendment have the meanings set
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forth below, have the meanings set forth in the XXX:
1.1 "Amendment Effective Date" means the last date opposite the signature
lines below; provided, however, that if Sirius has dated, executed and delivered
this Amendment to Savoir on or before November 10, 1999, then the terms and
conditions of this Amendment shall be effective as of October 1, 1999.
1.2 "Subject Machines: means IBM RS/6000 and IBM AS/400 computers and IBM
storage equipment, Netfinity, printers and other products provided by IBM to
Savoir that is provided by IBM to Savoir and approved by IBM to be provided to
Sirius.
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2. Personnel Rebates. Section 4.2 of the XXX is hereby deleted and amended
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in its entirety to read as follows:
"Commencing on the Amendment Effective Date, within thirty (30) days after
the end of each calendar quarter Savoir will pay to Sirius, in cash,
rebates equal to: (a) one percent (1%) of the Net Sales Price received by
Savoir on sales of AS/400 Machines to Sirius during the prior calendar
quarter, and (b) two and five thousand six hundred twenty five ten
thousandths percent (2.5625%) of the Net Sales Price received by Savoir
on sales of RS/6000 Machines and storage Machines to Sirius during the
prior calendar quarter. For purposes of this Section 4.2, the "Net Sales
Price" shall mean the invoiced sales price less freight, insurance and
taxes."
3. Early Termination of XXX. Section 8 of the XXX is hereby deleted and
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amended in its entirety to read as follows:
"Subject to earlier termination in accordance with Section 9 of this
Agreement, the term of this Agreement shall commence on the date set forth
above and shall terminate as of December 31, 2000."
4. Savoir Obligations. In addition to its other obligations under the XXX,
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Savoir agrees that during the period from the Amendment Effective Date through
December 31, 2000, Savoir shall locate four (4) Savoir employees on-site at the
Sirius San Antonio, Texas headquarters location, for the purpose of providing
customer support to Sirius employees. Two (2) such employees shall be services
personnel; one (1) such employee shall be an operations employee; and one (1)
such employee shall be a sales person with expertise in the Subject Machines.
5. Sirius Obligations. In addition to its other obligations under the XXX
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Agreement, Sirius agrees that during the term of the Agreement and for a period
of twelve (12) months after termination of the Agreement, Sirius will not enter
into an agreement with any third party to purchase AS/400 Machines; provided,
however, that during such period Sirius may purchase AS/400 Machines directly
from IBM or through Savoir.
6. Miscellaneous Provisions.
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6.1 Release. Both parties agree that this Amendment resolves all claims
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arising out of or relating to the Disclosure, as defined in the Recitals above,
and each party hereby fully and forever releases, waives, acquits and discharges
the other party, its officers, employees, directors and affiliates from any and
all claims that the releasing party ever had, now has or may hereafter have
against the other by reason of, based upon or arising out of, in whole or in
part, the Disclosure. Each party covenants that it will not institute or
prosecute, against the other party, any action or other proceeding of any kind
whatsoever, in law or in equity, based in whole or in part upon any claims
released by this Section 6.1. Each Party expressly waives the benefits of any
statutory provision or common law rule that provides, in sum or substance, that
a general release does not extend to claims relating to the Disclosure which the
Party does not know or suspect to exist in its favor at the time of executing
the release, which if known by it,
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would have materially affected its settlement with any other party. Without
limiting the generality of the foregoing, each Party expressly waives its rights
under Section 1542 of the California Civil Code, relating to the Disclosure,
which provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM, MUST HAVE MATERIALLY AFFECTED THE SETTLEMENT WITH THE
DEBTOR."
6.2 Nondisclosure. The terms and conditions of this Agreement are
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confidential, and each party agrees that it will not disclose to any third party
the terms and conditions of this Amendment, or any information concerning the
occurrence of, or the facts surrounding, the Disclosure, except to the extent
that such disclosure may be required by law. If such disclosure is required by
law, then prior to any disclosure the disclosing party shall first provide to
the other party written notice of the proposed disclosure, and the other party,
may elect, at its sole discretion, to oppose or minimize such disclosure.
6.3 Entire Agreement. This Amendment together with the XXX constitutes the
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complete and entire statement of all terms, conditions and representations of
agreement between Savoir and Sirius with respect to the subject matter contained
herein and supersedes all prior oral or written agreements or understandings.
Except as expressly amended by this Amendment, all terms and conditions of the
XXX remain in full force and effect.
SIRIUS COMPUTER SOLUTIONS, INC., SAVOIR TECHNOLOGY GROUP, INC.,
a Texas corporation a Delaware corporation
By /s/ Xxxxxx X. Xxxxx By /s/ Xxxxx Xxxxx
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Its President Its Chairman & CEO
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Date 11/3/99 Date 11/3/99
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