THIRD AMENDMENT TO
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS THIRD AMENDMENT (this "THIRD AMENDMENT") TO AMENDED AND RESTATED
EMPLOYMENT AGREEMENT, as amended, is entered into as of this 30th day of
September, 1999, by and between MICROAGE, INC., a Delaware corporation (the
"COMPANY"), and Xxxxxxxxxxx X. Xxxxxx ("EXECUTIVE").
RECITALS:
WHEREAS, the Company and Executive entered into an Amended and Restated
Employment Agreement, dated as of November 4, 1996, as amended by the First
Amendment to Amended and Restated Employment Agreement, dated as of April 1,
1998 and the Second Amendment to the Amended and Restated Employment Agreement,
dated January 28, 1999 (the "EMPLOYMENT AGREEMENT"); and
WHEREAS, the Company and Executive desire to amend the Employment
Agreement;
NOW, THEREFORE, in consideration of the premises, and for other valuable
consideration, the sufficiency of which is hereby acknowledged by each of the
parties hereto, the parties hereby agree as follows:
A G R E E M E N T:
SECTION 1. AMENDMENTS TO EMPLOYMENT AGREEMENT.
A. Section 4.3(g) of the Employment Agreement is hereby amended in its
entirety to read as follows:
"(g) maintain in full force and effect, for Executive's and his
eligible beneficiaries' continued benefit, until the first to occur of (x) his
attainment of alternative employment or (y) 24 months following the termination
date of his employment hereunder the employee benefits provided pursuant to
Company-sponsored benefit plans, programs or other arrangements in which
Executive was entitled to participate as a full-time employee immediately prior
to such termination in accordance with Section 2.4 hereof, subject to the terms
and conditions of such plans and programs (the "Continued Benefits"). If
Executive's continued participation is not permitted under the general terms and
provisions of such plans, programs and arrangements, the Company shall arrange
to provide Executive with Continued Benefits substantially similar to those
which Executive would have been entitled to receive under such plans, programs
and arrangements; and in addition"
B. Section 5.9 (a) of the Employment Agreement is hereby amended in
its entirety to read as follows:
"(a) NON-COMPETITION. By execution of this Agreement, Executive agrees
that during his employment with the Company and for a period of 24 months
following the date of expiration or termination of his employment hereunder (the
"Non-Competition Period") for any reason (whether such termination shall be
voluntary or involuntary), Executive will not, within the United States (in
which territory Executive acknowledges that the Company has sold or marketed its
products or services and conducted its Business, as defined in Section 5.9(d) as
of the date hereof), directly or indirectly, compete with the Company by
carrying on a business that is substantially similar to the Business. Executive
agrees that the 24 month period referred to in the preceding sentence shall be
extended by the number of days included in any period of time during which he is
or was engaged in activities constituting a breach of this Section 5.9."
SECTION 2. EFFECTIVENESS.
This Third Amendment will become effective as of September 30, 1999.
SECTION 3. MISCELLANEOUS.
A. Full Force and Effect.
Except as expressly provided in this Third Amendment, the Employment
Agreement will remain unchanged and in full force and effect.
B. Counterparts.
This Third Amendment may be executed in any number of counterparts,
all of which taken together will constitute one and the same instrument, and any
of the parties hereto may execute this Third Amendment by signing any such
counterpart.
C. Arizona Law.
It is the intention of the parties that the laws of Arizona will
govern the validity of this Third Amendment, the construction of its terms, and
the interpretation of the rights and duties of the parties.
IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment
as of the date first above written.
Company:
MICROAGE, INC., a Delaware corporation
By: /s/ Xxxxxxx X. XxXxxxxx
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Xxxxxxx X. XxXxxxxx
Chairman of the Board and
Chief Executive Officer
Executive:
/s/ Xxxxxxxxxxx X. Xxxxxx
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Xxxxxxxxxxx X. Xxxxxx
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