Re: Employment Agreement Restatement and Amendment #1

Exhibit 10.46

00000 Xxxxxxx Xxxxxxx

Xxxxxxx, Xxxxxxxxxx 00000

P. 408.240.8300

F. 408.321.0293

xxx.xxxxxxxx.xxx

January 23, 2008

Xxxxxxxx Xxxxx

0000 Xxxxxxxxx Xxxxxxx Xxx

Xxxxxxxxx, XX 00000

Re: Employment Agreement Restatement and Amendment #1

Dear Xxxxxxxx:

Rackable Systems, Inc. (the “Company”) and you entered into an employment agreement dated March 1, 2005 (attached as Exhibit A, the “Offer Letter”) governing the terms of your employment. The parties desire to restate and amend the Offer Letter based on the terms and conditions herein (“Amendment #1). (The Offer Letter, as amended by this Amendment #1, shall be collectively referred to herein as the “Agreement”). In the event of a conflict between the provisions of this Amendment #1 and the Offer Letter, the provisions of this Amendment #1 shall prevail. The parties agree that in consideration of your continued at-will employment and the exchange and receipt by the parties of other good and valuable consideration, the following terms and conditions shall govern your employment:

POSITION. Commencing on March 14, 2005 (“Start Date”) and continuing beyond the date of this Amendment #1, you will serve in an executive capacity in the role of Vice President of Human Resources, reporting to the Company's SVP and General Counsel. Specifically, for purposes of this Agreement, your executive capacity role will be responsibility for the Company's overall human resources functions in the corporation. Of course, the Company may change your position, duties, and work location from time to time in its discretion subject to the terms of this Agreement.


2.	COMPENSATION.


a.	Base Salary. Your base salary is $165,000, less standard payroll deductions and withholdings. You will be paid bi-weekly in accordance with Company practice and policy.

Performance Bonus. In addition, you will be eligible to earn a quarterly performance bonus Performance bonuses are aligned to the Company's quarterly financial reporting periods (each such quarter, a “Company Quarter”); your initial quarterly participation will be adjusted pro rata based upon your Start Date. target of $12,500, based upon both your performance and the Company's performance with respect to applicable performance targets which are expected to include revenue and profitability targets and other organizational milestones (“Targets”), set solely by the CEO. The bonus payment shall be earned upon the fulfillments of Targets and is payable within a reasonable period of time. The Company will determine in its sole

discretion whether the Targets have been achieved, whether you have earned a bonus, and the amount of any earned bonus. You must be employed on the bonus payment date to earn and be eligible to receive any bonus.


c.	Review of Compensation. Your base salary and bonus eligibility will be reviewed on an annual or more frequent basis by the Compensation Committee and are subject to change in the discretion of the Compensation Committee, subject to the terms of the Agreement.


3.	STOCK AWARDS.

Initial Grants. To the extent that you have been issued an Option and/or RSU pursuant to the Offer Letter (“Initial Grants”), the provisions of the Offer Letter and your individual Option and/or Restricted Stock Unit Award Agreement relating to such the Initial Grants shall remain in full force and effect without modification by this Amendment #1. This includes, without limitation, those provisions in the Offer Letter and your individual Option and/or Restricted Stock Unit Award Agreement relating to the vesting and acceleration upon change of control of the Initial Grants. Nothing in this Amendment #1 will be construed to modify the provisions of the 2005 Equity Incentive Plan (the “2005 Plan”) and your individual Option and/or Restricted Stock Unit Award Agreement, which govern the Initial Grants.

Following Grants. Subject to Compensation Committee approval, the Company may issue you additional awards (“Following Grants”) pursuant to the 2005 Equity Incentive Plan (the “2005 Plan”) in the form of options to purchase shares of the Company's common stock at an exercise price equal to the fair market value of the stock as of the date of grant as determined by the Compensation Committee; and/or the right to receive shares of the Company's common stock. Following Grants will be subject to a four-year vesting period subject to your continuous service to the Company as an employee or consultant, with one sixteenth (1/16) of the Following Grant shares vesting for each full Company quarter of your continuous service as an employee or consultant (as defined in the 2005 Plan), following the grant date of the Following Grants. Nothing in this Amendment #1 will be construed to modify the provisions of the 2005 Plan and your individual Following Grant Award Agreement(s), which will govern Following Grants.

EMPLOYEE BENEFITS. You are eligible to participate in the Company's standard employee benefit plans in accordance with the terms and conditions of the plans and applicable policies which may be in effect from time to time, and provided by the Company to its executive employees generally, including but not limited to group health insurance coverage, disability insurance, life insurance, ESPP, 401(k) Plan, and paid time off and paid holidays. You will be eligible for reimbursement of your legitimate and documented business expenses incurred in connection with your employment, pursuant to the Company's standard reimbursement expense policy and practices. The Company may modify its benefits programs and policies from time to time in its discretion.


5.	PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT. As a condition of your employment, you are required to abide by the Company's Proprietary Information and Inventions Agreement (the “Non-Disclosure Agreement”), attached to the Offer Letter as Exhibit A.


6.	SERVICE AS EMPLOYEE; OUTSIDE ACTIVITIES.


a.	Location and Duties. You will work at the Company's corporate headquarters currently

located in Fremont, California, subject to necessary business travel. During your employment with the Company, you will devote your best efforts and substantially all of your business time and attention (except for vacation periods and reasonable periods of illness or other incapacity permitted by the Company's general employment policies) to the business of the Company.

Company Policies. Your employment relationship with the Company shall also be governed by the general employment policies and practices of the Company, including but not limited to the policies contained in the Company's Employee Handbook (except that if the terms of this letter differ from or are in conflict with the Company's general employment policies or practices, the Offer Letter as amended by this Amendment #1 will control), and you will be required to abide by such general employment policies and practices of the Company.

Other Activities. Throughout your employment with the Company, you may engage in civic and not-for-profit activities so long as such activities do not interfere with the performance of your duties hereunder or present a conflict of interest with the Company. Subject to the restrictions set forth herein and with the prior written consent of the Board, you may serve as a director of other corporations and may devote a reasonable amount of your time to other types of business or public activities not expressly mentioned in this paragraph.

Conflict of Interest. During your employment by the Company, except on behalf of the Company, you will not directly or indirectly serve as an officer, director, stockholder, employee, partner, proprietor, investor, joint venturer, associate, representative or consultant for or on behalf of any other person, corporation, firm, partnership or other entity whatsoever known by you to compete with the Company (or is planning or preparing to compete with the Company), anywhere in the world, in any line of business engaged in (or planned to be engaged in) by the Company; provided, however, that you may purchase or otherwise acquire up to (but not more than) one percent (1%) of any class of securities of any enterprise (but without participating in the activities of such enterprise) if such securities are listed on any national or regional securities exchange.


7.	AT-WILL EMPLOYMENT RELATIONSHIP. Your employment relationship with the Company is at-will. Accordingly, both you and the Company may terminate the employment relationship at any time, with or without Cause (as defined below), and with or without advance notice.


8.	DEFINITIONS.

Definition of “Cause.” For purposes of the Agreement, “Cause” is defined as one or more of the following events: (i) the indictment or conviction for a felony or other crime, or any misdemeanor involving moral turpitude; (ii) the commission of any other act or omission involving fraud or intentional deceit with respect to the Company or any of its affiliates or any of their directors, stockholders, partners or members; (iii) any act or omission involving dishonesty that causes material injury to the Company or any of its affiliates or any of their directors, stockholders, partners or members; (iv) gross negligence with respect to the Company or any of its subsidiaries; (v) willful misconduct with respect to the Company or any of its subsidiaries; (vi) any other material breach of this agreement or any other agreement referred to herein (including the Non-Disclosure Agreement); provided, however, that, it shall only be deemed Cause pursuant to clause (vi) if you are given written notice describing the basis of Cause and, if the event is reasonably susceptible of cure, you fail to cure within thirty

(30) days.

Definition of “Good Reason.” For purposes of the Agreement, “Good Reason” is defined as one or more of the following conditions that occur without your written consent: (i) the assignment to you, or the removal from you, of any duties or responsibilities that results in the material diminution of your authority, duties or responsibilities as Vice President of Human Resources, including a Change in Control that results in your no longer serving as the Vice President of Human Resources or any similar position; (ii) a material reduction by the Company of your base salary; (iii) the Company's material breach of its obligations to you under this offer letter agreement; or (iv) your office relocation to a location more than fifty miles from your then present location; provided however that, it shall only be deemed Good Reason pursuant to the foregoing definition if (x) the Company is given written notice from you within ninety (90) days following the first occurrence of a condition that you consider to constitute Good Reason describing the condition and fails to remedy such condition within thirty (30) days following such written notice, and (y) you resign from employment within ninety (90) days following the end of the period within which the Company was entitled to remedy the condition constituting Good Reason but failed to do so.


c.	Definition of “Change in Control.” For purposes of the Agreement, “Change in Control” means the occurrence, in a single transaction or in a series of related transactions, of either of the following events:

There is consummated (A) a merger, consolidation or similar transaction involving (directly or indirectly) the Company or (B) a tender offer or exchange offer addressed to the stockholders of the Company and, in either event, immediately after the consummation of such merger, consolidation or similar transaction or such tender or exchange offer, the stockholders of the Company immediately prior thereto do not own, directly or indirectly, either (A) outstanding voting securities representing more than fifty percent (50%) of the combined outstanding voting power of the surviving entity in such merger, consolidation or similar transaction or (B) more than fifty percent (50%) of the combined outstanding voting power of the parent of the surviving entity in such merger, consolidation or similar transaction, in each case in substantially the same proportions as their ownership of the outstanding voting securities of the Company immediately prior to such transaction; or

ii.

There is consummated a sale, lease, exclusive license or other disposition of all or substantially all of the consolidated assets of the Company and its subsidiaries, other than a sale, lease, license or other disposition of all or substantially all of the consolidated assets of the Company and its subsidiaries to an entity, more than fifty percent (50%) of the combined voting power of the voting securities of which are owned by stockholders of the Company in substantially the same proportions as their ownership of the outstanding voting securities of the Company immediately prior to such sale, lease, license or other disposition.

The term Change in Control shall not include a sale of assets, merger or other transaction effected exclusively for the purpose of changing the domicile of the Company.


9.	CHANGE IN CONTROL SEVERANCE BENEFITS. If, within 12 months following a Change

in Control, your employment is terminated by the Company without Cause, or by you for Good Reason; and if you sign, date, return to the Company and allow to become effective a release of all claims in a form satisfactory to the Company in its sole discretion (the “Release”); then in lieu of any Severance Benefits set forth in Section 10 herein, you shall be entitled to receive the following severance benefits (the “Change in Control Severance Benefits”):

The vesting of all unvested stock options and all unvested grants of restricted stock herein referred to and any subsequent grants of stock options, restricted stock or any other stock awards in future plans, shall accelerate in such amount equal to the number of shares that would vest over an additional twelve (12) month period as if you have continued to be an employee of the Company for additional twelve (12) months following your termination;

You will be eligible to receive severance pay in the total amount equal to the sum of six (6) months of your base salary in effect as of the employment termination date. For purposes of this Section 9(b), “base salary” as used herein does not include any annual performance bonus or any other bonus payment. The severance pay will be subject to required payroll deductions and withholdings, and will be paid in thirteen (13) equal installments over a period of six (6) months, with such payments made on the Company's normal payroll schedule; and

If you timely elect and continue to remain eligible for continued group health insurance coverage under federal COBRA law or, if applicable, state insurance laws (collectively, “COBRA”), the Company will pay your COBRA premiums sufficient to continue your group health insurance coverage at the same level in effect as of your employment termination date (including dependent coverage, if applicable) for six (6) months after the employment termination date; provided that, the Company's obligation to pay your COBRA premiums will cease earlier if you become eligible for group health insurance coverage through a new employer and you must provide prompt written notice to the Company if you become eligible for group health insurance coverage through a new employer within six (6) months of your employment termination date.

10.

SEVERANCE BENEFITS. If, at any time other than during the 12 month period following a Change in Control, your employment is terminated by the Company without Cause, or by you for Good Reason; and if you sign, date, return to the Company and allow to become effective a release of all claims in a form satisfactory to the Company in its sole discretion (the “Release”); then you shall be entitled to receive the following severance benefits (the “Severance Benefits”):

Xxxxxxxxx pay in the total amount equal to the sum of six (6) months of your base salary in effect as of the employment termination date. The severance pay will be subject to required payroll deductions and withholdings, and will be paid in thirteen (13) equal installments over a period of six (6) months, with such payments made on the Company's normal payroll schedule. For purposes of this Section 10(a), “base salary” as used herein does not include any annual performance bonus or any other bonus payment; and

If you timely elect and continue to remain eligible for COBRA, the Company will pay your COBRA premiums sufficient to continue your group health insurance coverage at the same level in effect as of your employment termination date (including dependent coverage, if applicable) for Six (6) months after the employment termination date; provided that, the Company's obligation to pay your COBRA premiums will cease earlier if you become eligible for group health insurance coverage through a new employer and you must provide prompt

written notice to the Board if you become eligible for group health insurance coverage through a new employer within six (6) months of your employment termination date.

11.

Conditions to Eligibility to Severance Benefits or Change in Control Severance Benefits. Notwithstanding the foregoing, you will not be eligible for the Severance Benefits or the Change in Control Severance Benefits if: (A) your employment is terminated for Cause, or if you resign for any reason that does not qualify as Good Reason; or (B) in the event that you materially breach the Non-Disclosure Agreement, the Release of claims, or any other obligations you owe to the Company after termination of your employment (including but not limited to the provisions of the Non-Disclosure Agreement), and the Company's obligation to provide the Severance Benefits or the Change in Control Benefits (or to continue to provide such benefits) will cease immediately and in full as of the date of your breach (in addition to any other remedies available to the Company).

12.

Deferred Compensation. Anything in the Agreement to the contrary notwithstanding, if the Company reasonably determines that any payments hereunder fail to satisfy the distribution requirements of Section 409A(a)(2) of the Internal Revenue Code of 1986, as amended (the “Code”) and you concur with such determination in writing, then the payment of such benefit shall be delayed to the minimum extent necessary so that such payments are not subject to the provisions of Section 409A(a)(1) of the Code; provided, however, that in no event shall such delay be more than six (6) months and one (1) day from the date of termination of your employment with the Company.


13.	Excise Tax.

Anything in the Agreement to the contrary notwithstanding, if any payment or benefit that you would receive pursuant to this offer letter agreement or otherwise (“Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be equal to the Reduced Amount (defined below). The “Reduced Amount” shall be either (y) the largest portion of the Payment that would result in no portion of the Payment (after reduction) being subject to the Excise Tax, or (z) the entire Payment, whichever amount after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in your receipt, on an after-tax basis, of the greatest amount of the Payment to you.

If a reduction in the Payment is to be made, the reduction in payments and/or benefits shall occur in the following order unless you elect in writing a different order (provided, however, that such election shall be subject to Company approval, such approval not to be unreasonably withheld or delayed, if made on or after the date on which the event that triggers the Payment occurs (the “Payment Event”)): (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to you. In the event that acceleration of compensation from your equity awards is to be reduced, such acceleration of vesting shall be canceled in the reverse order of the date of grant unless you elect in writing a different order for cancellation.


c.	The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Payment Event shall perform the foregoing calculations. If the

accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Payment Event, a nationally recognized accounting firm appointed by the Board and reasonably approved by you shall make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder.

The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and you within fifteen (15) calendar days after the date on which your right to a Payment is triggered (if requested at that time by the Company or you) or such other time or times as requested by the Company or you. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Company and you with an opinion reasonably acceptable to you that no Excise Tax will be imposed with respect to such Payment. The Company shall be entitled to rely upon the accounting firm's determinations, which shall be final and binding.

14.

DISPUTE RESOLUTION. To ensure the rapid and economical resolution of disputes that may arise in connection with your employment, you and the Company agree that any and all disputes, claims, or causes of action, in law or equity, arising from or relating to the enforcement, breach, performance, execution, or interpretation of this agreement, your employment, or the termination of your employment, shall be resolved, to the fullest extent permitted by law, by final, binding and confidential arbitration in San Francisco, California conducted before a single arbitrator by Judicial Arbitration and Mediation Services, Inc. (“JAMS”) or its successor, under the then applicable JAMS rules. By agreeing to this arbitration procedure, both you and the Company waive the right to resolve any such dispute through a trial by jury or judge or by administrative proceeding. The arbitrator shall: (a) have the authority to compel adequate discovery for the resolution of the dispute and to award such relief as would otherwise be permitted by law; and (b) issue a written arbitration decision including the arbitrator's essential findings and conclusions and a statement of the award. The Company shall pay all of JAMS' arbitration fees. Nothing in this letter agreement shall prevent either you or the Company from obtaining injunctive relief in court if necessary to prevent irreparable harm pending the conclusion of any arbitration. The parties agree that the arbitrator shall award reasonable attorneys fees and costs to the prevailing party in any action brought hereunder, and the arbitrator shall have discretion to determine the prevailing party in an arbitration where multiple claims may be at issue.


15.	MISCELLANEOUS.

General Provisions. The Agreement, including the Non-Disclosure Agreement, constitutes the complete, final and exclusive embodiment of the entire agreement between you and the Company with regard to the subject matter hereof. It is entered into without reliance on any promise or representation, written or oral, other than those expressly contained herein, and it supersedes any other agreements, promises, warranties or representations concerning its subject matter. Changes in your employment terms, other than those expressly reserved herein to the Company's discretion, only can be made in a writing signed by a duly-authorized member of the Company and you. The Agreement will bind the heirs, personal representatives, successors and assigns of both you and the Company, and inure to the benefit of both you and the Company, their heirs, successors and assigns. If any provision of the Agreement is determined to be invalid or unenforceable, in whole or in part, this determination shall not affect any other provision of the Agreement and the provision in question shall be modified

so as to be rendered enforceable in a manner consistent with the intent of the parties insofar as possible under applicable law. The Agreement shall be construed and enforced in accordance with the laws of the State of California without regard to conflicts of law principles. Any ambiguity in the Agreement shall not be construed against either party as the drafter. Any waiver of a breach of the Agreement, or rights hereunder, shall be in writing and shall not be deemed to be a waiver of any successive breach or rights hereunder. The Agreement may be executed in counterparts which shall be deemed to be part of one original, and facsimile signatures shall be equivalent to original signatures.


b.	Legal Right to Work. As required by law, your continued employment is subject to satisfactory proof of your right to work in the United States.


16.	Acceptance. Please sign this Amendment #1 and return them to me as soon as possible to indicate your acceptance of the amended terms of employment with the Company.

Sincerely,

Rackable Systems, Inc.

By: /s/ Xxxxxxx Liebenstern

Xxxxxxx Leibenstern

SVP and General Counsel

1/29/08

Date

Understood and Agreed:

/s/ Xxxxxxxx Xxxxx

Xxxxxxxx Xxxxx

1/24/08

Date

Exhibit A -Offer Letter, dated March 1, 2005

EXHIBIT A

OFFER LETTER, DATED MARCH 1, 2005

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Re: Employment Agreement Restatement and Amendment #1

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