AGREEMENT NOT TO COMPETE OR SOLICIT
(Xxxx Xxxxxx)
This Agreement not to Compete or Solicit ("Agreement") is made and entered
into as of June ___, 1998 by and between Micron Technology, Inc., a Delaware
corporation, and Xxxx Xxxxxx ("Officer"), to be effective as set forth in
paragraph 1 below.
RECITALS
A. Micron Technology, Inc. has entered into an Agreement and Plan of
Reorganization dated June 22, 1998 (the "Merger Agreement") with Rendition, Inc.
("Rendition"), pursuant to which Rendition will merge with and into Micron
Technology, Inc. (the "Merger") with Micron Technology, Inc to be the surviving
entity. The Merger will be effective at the "Effective Time" as defined in the
Merger Agreement. As a condition of the Merger, Micron Technology, Inc. has
required Officer to execute various forms of agreements, including this
Agreement.
B. At the Effective Time, Officer will be employed by Micron Technology,
Inc. in the capacity of .
C. Micron is engaged in a highly competitive world-wide business of
designing, developing, manufacturing, and marketing semiconductor memory
products (including, but not limited to, DRAM, SRAM, Flash and SGRAM), other
silicon-based integrated circuit products, remote intelligent communications,
field emission displays, graphics processors/accelerators and related products.
D. Officer's position with Micron Technology, Inc. is a position of trust
and confidence which allows Officer access to confidential, proprietary and
other information provided to Officer solely for use in a manner consistent with
the best interests of Micron and consistent with officer's duty of loyalty. For
example, and not by way of limitation, Officer has access to Micron's
confidential and proprietary information, including but not limited to
manufacturing operations, assets, information systems, intellectual property,
contracts, customers, personnel, compensation, business, marketing and strategic
plans, prospects, research and development, know-how, trade secrets,
technologies (both process and product), engineering, design and performance
data and capabilities, and financial data ("Micron's Proprietary Information").
E. Micron Technology, Inc. and Officer have contemporaneously herewith
entered into a severance agreement effective as of the Effective Time (the
"Severance Agreement") pursuant to which Micron Technology, Inc. has agreed to
provide certain levels of remuneration to Officer upon termination of
employment or deemed termination of employment, pursuant to paragraphs 1 and
2(b), respectively, of the Severance Agreement.
AGREEMENT
In consideration of the foregoing, the mutual promises herein contained,
and for other good and valuable consideration, the receipt and sufficiency which
are hereby acknowledged, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. Effective Date of the Agreement. This Agreement will be effective as of
the Effective Time of the Merger, provided that if the Effective Time of the
Merger does not occur on or before December 15, 1998, this Agreement shall be
null and void.
2. Covenant Not to Compete. During the Period of Restriction, Officer shall
not in any part of the world, alone or in association with others, directly or
indirectly, (A) be employed with, act as a consultant, agent or independent
contractor for, or render advice or service to, any Business Entity that is In
Competition With Micron, but only in respect of the Relevant Segment of such
Business Entity which causes such Business Entity to be classified as being In
Competition With Micron, or (B) as an owner, shareholder, officer, director,
partner, lender, investor, co-venturer, act in any capacity that impacts or
affects the activities of the Relevant Segment of a Business Entity In
Competition With Micron.
a. Definitions.
Capitalized terms used throughout the Agreement shall have the meanings
assigned to them below or as assigned to them immediately following the use of
such term, as the case may be.
(1) Business Entity. The phrase "Business Entity" as used throughout
this Agreement shall mean any person, proprietorship (including a proprietorship
comprised of the Officer), corporation, joint venture, partnership, limited
liability partnership, limited liability company, trust, organization, firm, or
any other business or enterprise regardless of form, including foreign
counterparts to any of the foregoing.
(2) In Competition With Micron. The phrase "In Competition With
Micron" as used throughout this Agreement shall mean the engagement or
participation in (A) the design, development, manufacture, sale or marketing of
(i) semiconductor memory products (including, but not limited to, DRAM, SRAM,
Flash and SGRAM), (ii) other silicon-based integrated circuit products, other
than semiconductor memory products, the design, development,
manufacture and marketing of which could reasonably be expected to utilize
Micron's Proprietary Information, (iii) remote intelligent communications, (iv)
field emission displays, or (v) graphics processors/accelerators and related
products; or (B) any other silicon-based integrated circuit business in which
Micron is currently engaged or becomes engaged prior to the Termination Date.
For purposes of this Agreement, and without limiting the generality of the
foregoing, the parties agree and acknowledge that Texas Instruments, Xxxxxxxx
Semiconductor, Samsung, Mitsubishi, Motorola, LG Semicon, NEC, Hitachi, Fujitsu,
Hyundai, Mosel Vitelic, Winbond, Vanguard, Alliance, Etrontech, HMC, ISSI, TMT,
TSMC, UMC, Advanced Micro Devices, Inc., IBM, Intel, SGS Thomson, Dallas
Semiconductor, Sharp, Sony, Toshiba, NEC, Raytheon, PixTech, 3D Labs, 3Dfx,
nVidia, XXX, X0, Trident and Cirrus, or Relevant Segments thereof, or a joint
venture or other cooperative arrangement among or between two or more of any of
the foregoing (or among or between any of the foregoing and any third party) are
In Competition With Micron. Notwithstanding any other language in this Agreement
to the contrary, nothing in this Agreement shall be interpreted or construed to
prevent Officer from purchasing or holding for investment less than 3% of
outstanding capital stock of any Business Entity that is In Competition With
Micron with a class of equity securities which are regularly traded either on a
national securities exchange or in the over-the-counter market.
(3) Micron. The term "Micron" as used throughout this Agreement shall
mean Micron Technology, Inc, and all subsidiaries and entities with which it
consolidates its results of financial operations other than Micron Electronics,
Inc.
(4) Period of Restriction. The phrase "Period of Restriction" as
used throughout this Agreement is defined to mean the period commencing on the
effective date of this Agreement and continuing during the term of Officer's
employment with Micron and for a period of one (1) year after the Termination
Date.
(5) Termination Date. The phrase "Termination Date" as used
throughout this Agreement shall mean the effective date of written notice from
Micron or Officer to the other that Officer's active employment with Micron is
terminated for any reason, voluntary or involuntary, with or without cause.
Officer's Termination Date under this Agreement shall be determined without
regard to whether Officer is treated as an employee for benefit purposes under
paragraph 3 of the Severance Agreement.
(6) Relevant Segment. The phrase "Relevant Segment" shall mean with
respect to a Business Entity, the separately identifiable division, group, unit,
operation, section, subsidiary, portion or any other subdivision thereof
(regardless of characterization by name) that engages in conduct deemed
to be In Competition With Micron. In certain instances, a Business Entity may
not have a Relevant Segment due to the fact that either (A) the Business Entity
as a whole is engaged in conduct that constitutes activities In Competition With
Micron or (B) it is difficult to identify the Relevant Segment of a Business
Entity that is In Competition With Micron due to centralized management,
centralized operations or other reasons. In the case of either subparagraph (A)
or (B) of this definition, the Business Entity as a whole shall be deemed to be
the "Relevant Segment" for purposes of this Agreement.
b. Acknowledgment of Reasonableness of Restrictions. Officer
specifically acknowledges and agrees that the nature of the limitations upon
Officer's activities as specified herein, together with the duration and scope
of such restrictions, are reasonable limitations on Officer's post-employment
activities and that the restrictions are required to preserve, promote and
protect Micron's Proprietary Information and the business, accounts and good-
will of Micron and impose no greater restraint than is reasonably necessary to
secure such protection.
c. Interpretation of Covenant Not to Compete. In the event that any
provision of the covenant not to compete set forth in paragraph 2 herein shall
be held invalid or unenforceable by a court of competent jurisdiction by reason
of the duration or scope thereof, such invalidity or unenforceability shall
attach only to the specific provision determined to be unenforceable and the
remainder of the covenant shall remain in full force and effect for the greatest
time period and for the broadest scope permitted by applicable law. Officer and
Micron intend that the covenant not to compete set forth in paragraph 2 herein
shall be deemed to be a series of separate covenants, one for each and every
county of each and every state of the United States of America and one for each
and every political subdivision of each and every other country where such
covenant not to compete is effective.
d. Nondisclosure of Micron's Proprietary Information. Notwithstanding
the expiration of the Period of Restriction, Officer expressly agrees never to
disclose to any third party, or use, any of Micron's Proprietary Information.
Officer shall not represent, consult with or render advice or service to,
directly or indirectly, personally or through others, any person, firm or
business entity in any intellectual property license discussions, negotiations,
proceedings or litigation against Micron. Notwithstanding any other language in
this Agreement to the contrary, nothing in this Agreement shall be interpreted
or construed to prevent or prohibit Officer from testifying for hire as an
expert witness in patent infringement cases, provided that (i) Micron is not an
adverse party therein, or (ii) such testimony does not adversely impact any
patents, intellectual property or products of Micron.
3. Non-Interference or Solicitation or Diversion of Business. During the
Period of Restriction, Officer shall not, directly or indirectly, personally or
through others interfere with the business relationship between Micron and its
customers, dealers, distributors, suppliers, vendors, independent contractors,
service providers, or other parties with which Micron has business
relationships, or advise, encourage, induce or attempt to induce any such party
to terminate its relationship with Micron, or to modify the terms of such
relationship in a manner adverse to the best interests of Micron.
4. Non-Solicitation of Employees. During the Period of Restriction, Officer
shall not directly or indirectly, personally or through others, (a) employ or
solicit for employment, or advise or recommend to any other person, firm,
business or entity that they employ or solicit for employment, any employee of
Micron; provided however, that this paragraph shall not preclude Officer from
giving an employment reference at the request of an employee of Micron or at the
request of a prospective employer of such employee or (b) encourage, induce,
attempt to induce, solicit or attempt to solicit any employee of Micron to leave
his or her employment with Micron.
5. Conflicting Obligations. Officer agrees that, during the term of Officer's
employment with Micron, Officer will not engage in any other employment,
occupation, consulting or other business activity directly related to the
business in which Micron is now engaged or becomes involved during the term of
Officer's employment, nor will Officer engage in any other activities that
conflict with Officer's obligations and duties to Micron.
6. Accounting for Profits. Officer covenants and agrees that in the event
Officer violates any of Officer's restrictions or obligations under this
Agreement Micron shall be entitled to an accounting and payment of all profits,
compensation, commissions, remunerations or other benefits which Officer
directly or indirectly has received and/or may receive as a result of, growing
out of or in connection with the violation of any such restrictions or
obligations. Officer and Micron acknowledge and agree that such remedy shall be
in addition to and not in limitation of any injunctive relief or other rights or
remedies to which Micron is or may be entitled at law, in equity or under this
Agreement.
7. Entitlement to Equitable Relief. Micron and Officer acknowledge and
agree that the breach by Officer of any restriction or obligation under this
Agreement will cause Micron substantial, immediate and irreparable harm, that
the extent of damages will be difficult to measure, and, consequently, there is
no adequate remedy at law in the event of such breach. Accordingly, Micron and
Officer agree that Micron shall be entitled to obtain immediate injunctive
relief (without necessity of posting a bond), without prejudice to any other
right Micron may have in law or in equity under this Agreement, by bringing an
appropriate
action for such remedy in any court of competent jurisdiction which
Micron, in its sole discretion, deems appropriate.
8. General Provisions.
(a) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Idaho applicable to contracts entered
into and to be performed entirely within such State.
(b) Jurisdiction and Venue. Micron and Officer acknowledge the personal
jurisdiction of, and consent to venue in, the state courts of Ada County, State
of Idaho for any action arising out of or in any way related to the
interpretation and enforcement of this Agreement.
(c) Entire Agreement. Except as otherwise specifically provided herein,
this Agreement sets forth the entire agreement and understanding between Micron
and Officer relating to the subject matter hereof and supersedes all prior
understandings and agreements with respect thereto. No modification of or
amendment to this Agreement, or any waiver of any rights under this Agreement,
will be effective unless contained in a writing signed by both of the parties
hereto. Any subsequent change or changes in Officer's duties, salary or
compensation will not affect the validity or scope of this Agreement. This
Agreement does not supersede, modify or alter the noncompete provisions of
paragraph 2 of the Severance Agreement or the provisions of any Assignment of
Rights & Inventions and/or Confidential Information agreements previously
executed by Officer in favor of Micron (collectively, "Additional Agreements").
The obligations contained in the Additional Agreements shall continue
independent of the obligations of one another and of this Agreement.
(d) Severability. If one or more of the provisions of this Agreement are
deemed void by law, then the remaining provisions shall continue in full force
and effect.
(e) Termination of Employment. Nothing in this Agreement shall be
construed to give to Officer any right to employment for any specific period of
time, or to affect in any manner whatsoever the right or power of Micron to
terminate Officer's employment, for any reason or no reason, with or without
cause.
(f) Legal Fees. In any action to interpret or enforce the terms of this
Agreement, whether in law or in equity, the prevailing party shall be entitled
to recover its reasonable attorneys' fees, expert witness fees, and out-of-
pocket costs incurred in connection with such action in addition to any other
relief it may be awarded.
(g) Successors and Assigns. This Agreement will be binding upon officer's
heirs, executors, administrators and other legal representatives and will be for
the benefit of Micron, its successors and assigns.
(h) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original, but all of which shall
be deemed one and the same instrument.
IN WITNESS WHEREOF, Micron Technology, Inc. and Officer have executed this
Agreement as of the date first set forth above.
MICRON: XXXX XXXXXX:
Signature: /s/ Xxxxxx X. Xxxxxxxx Signature: /s/ Xxxx Xxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman, CEO and President
