EXHIBIT 10.49
ADDENDUM TO SEVERANCE AGREEMENT
This Addendum to Severance Agreement is by and between
Micron Electronics, Inc., a Minnesota corporation ("the
Company"), and T. Xxxx Xxxx, an individual and officer of
the Company ("the Officer"), and is effective as of the date
both parties sign below.
WHEREAS, the parties entered into a Severance Agreement
dated January 30, 1996 ("the Agreement"); and
WHEREAS, it is the parties mutual desire to modify
certain provisions of the Agreement;
NOW THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the
parties agree to modify the Agreement as follows:
The following subparagraph 2(c) shall be added to the
Agreement:
2(c) In the event that Officer performs any service or
work that conflicts with the interests of the Company or
engages in competition with the Company during the
Transition Period, the Officer shall not thereafter receive
any benefits or payments pursuant to the Agreement or this
Addendum.
The following subparagraphs 3(a) and 3(b) shall be
added to the Agreement:
3(a). All Officer's executive bonuses awarded to
the Officer with respect to his performance at any time
prior to the commencement of fiscal year 1998 (the "Pre-1998
Bonuses") shall be fixed at the amounts determined by the
Compensation Committee of the Company's Board of Directors
(the "Committee") as set forth in written resolutions
approved or entered by the Committee prior to the effective
date of this Addendum. The Company shall not reduce or
change the Committee's determination of the award of any Pre-
1998 Bonuses due Officer. The Company shall pay to Officer
any unpaid portions of the Pre-1998 Bonuses according to the
applicable payout schedule determined by the Committee prior
to the effective date of this Addendum.
3(b). The parties agree that the executive bonus
allocated to the Officer for fiscal year 1998 is fixed at
0.45% of consolidated after-tax net profits of the Company
for such fiscal year ("1998 Bonus"). The Company shall not
reduce or cancel the 1998 Bonus. Provided, however, that
the maximum 1998 Bonus amount that can be paid to the
Officer cannot exceed the greater of $2,000,000 or two
percent (2%) of the Company's consolidated after-tax net
profits. The Company shall pay the entire 1998 Bonus to the
Officer within 90 days after the Company's fiscal 1998 year
end. Notwithstanding any other provision of the Agreement
or this Addendum, the Company shall not be obligated to pay
the Officer for the 1998 Bonus in the event the Officer has
committed during his employment as an Officer of the Company
any act of willful misconduct or gross negligence which has
a material adverse impact to the Company.
3(c) Notwithstanding any other provision of the
Agreement or this Addendum, the Officer shall not be
entitled to payment of any unpaid portion of any executive
bonuses after the Transition Period, as defined in the
Agreement.
Paragraph 4 of the Agreement shall be changed by
addition of the following language:
4. Notwithstanding any other provision of the
Agreement, the Company, the Board of Directors, and the
Officer shall be allowed to state reasons other than "no
comment" regarding the termination; provided, however, that
the Officer and the Company in advance must mutually agree
in writing to what additional statements other than "no
comment" are permissible by any of them.
The following paragraphs 8 through 12 shall be added to
the Agreement:
8. Agreement Not to Compete or Solicit. During a
period of one year after the Termination Date as defined in
the Agreement (the "Period of Restriction"), and in
consideration of the benefits specified in the Agreement and
this Addendum, and the others terms and obligations of the
Agreement and this Addendum, Officer agrees as follows:
(a) Acknowledgment. Officer recognizes and
acknowledges that it is essential for the proper protection
of the Company and its business interests that the Officer
be restrained (a) from competing against the Company during
the Officer's employment and for a reasonable period
following the termination of the Officer's employment with
the Company; (b) from soliciting or inducing any officer or
employee of the Company to leave the employ of the Company;
(c) from hiring or attempting to hire any officer or
employee of the Company; and (d) from soliciting the trade
of or trading with the customers and suppliers of the
Company for any business purpose. Officer further
recognizes and acknowledges that the Company's business
interests that require and justify protection include,
without limitation, trade secrets, confidential information,
proprietary information, customer or supplier information
and lists, accounts, knowledge and skill acquired with the
Company, customer or supplier relations, and avoiding unfair
competition.
(b) Covenant Not to Compete. During the Period
of Restriction the Officer shall not engage in competition
with the Company, render advice or service to any entity in
competition with the company, or engage in any other
employment, occupation, consulting or other business
activity directly related to the business or businesses in
which the Company or its subsidiaries is currently involved.
Involvement by the Officer in a business activity during the
Period of Restriction related to a business in which the
Company and its subsidiaries is no longer engaged shall not
be considered a violation of this Agreement.
(c) Covenant of Non-Solicitation of Employees.
During the term of the Officer's employment and during the
Period of Restriction, the Officer shall not directly or
indirectly, personally or through others, 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 the Company; provided, however,
that the Company shall not preclude the Officer from giving
an employment reference at the request of an employee of the
Company or at the request of a prospective employer of such
employee. During the term of the Officer's employment and
during the Period of Restriction, the Officer shall not
encourage, induce, attempt to induce, solicit or attempt to
solicit any employee of the Company, or any parent,
subsidiary or affiliate of the Company, to leave his or her
employment with the Company, or with any parent, subsidiary
or affiliate of the Company.
(d) Covenant of Non-Interference or Solicitation
or Diversion of Business. During the term of the Officer's
employment and during the Period of Restriction the Officer
shall not, directly or indirectly, personally or through
others, contact, solicit, advise, encourage, induce, or
consult any client, account, or customer of the Company for
the purpose or with the effect of causing such client,
account or customer to purchase, license or otherwise obtain
products or services from a person, firm, business or entity
in competition with the Company. Similarly, during the term
of the Officer's employment and during the Period of
Restriction, Officer shall not, directly or indirectly
interfere with the business relationship between the Company
and its customers, dealers, distributors, suppliers,
vendors, independent contractors, service providers, or
other parties with which the Company has business
relationships, or encourage or induce (or attempt to induce)
any such party to terminate its relationship with the
Company, or to modify the terms of such relationship in a
manner adverse to the best interests of the Company.
(e) Covenant of Non-Solicitation of Customers and
Suppliers. Officer agrees that during the Officer's time of
employment with the Company the Officer shall not, directly
or indirectly, personally or through others, solicit the
trade of, or trade with, any customer or prospective
customer, or supplier or prospective supplier of the Company
for any business purpose other than for the benefit of the
Company.
(f) Acknowledgment of Reasonableness of
Restrictions. Officer specifically acknowledges and agrees
that the covenants and nature of the limitations upon
Officer's activities as specified herein, together with the
duration and scope of such covenants and restrictions, are
reasonable limitations on Officer's activities, and that the
restrictions are required to preserve, promote and protect
the business interests and good-will of the Company.
(g) Interpretation of Covenants. In the event
that any covenant or the provisions of any covenant or
restriction in this Agreement or Addendum shall be held
invalid or unenforceable by a court of competent
jurisdiction for any reason, including, but not limited to,
the duration or scope thereof, such invalidity or
unenforceability shall attach only to the specific covenant
or provision determined to be unenforceable and the
remaining covenants or provisions of the specific covenant
shall remain in full force and effect for the greatest time
period and for the broadest scope permitted by applicable
law. Officer and the Company intend that each of the
covenants 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 the covenants shall be effective. In the event of any
inconsistency between the covenant or the provisions of any
covenant or restriction in this Addendum and the terms of
the Agreement, the covenants, provisions and restriction of
this Addendum shall control.
9. Entitlement to Equitable Relief. Officer and the
Company acknowledge and agree that the breach by Officer of
any covenant, restriction or obligation under this Agreement
or Addendum will cause the Company substantial, immediate
and irreparable harm, that the extent of damages will be
difficult to measure, and, consequently, there is not
adequate remedy at law in the event of such breach.
Accordingly, the Company and Officer hereby agree that the
Company shall be entitled to injunctive relief, without
prejudice to any other right the Company may have in law or
in equity under this Agreement or Addendum, by bringing an
appropriate action for such remedy in any court of competent
jurisdiction which the Company, in its sole discretion,
deems appropriate.
10. Restrictive Covenants. Officer represents and
warrants that the Officer's experience and capabilities are
such that the restrictive covenants set forth in this
Agreement or Addendum will not prevent the Officer from
earning a livelihood, and that Officer will be fully able to
earn and receive an adequate livelihood for Officer and
Officer's dependents if any of such provisions should be
specifically enforced against Officer.
11. Covenants of the Essence. The covenants of the
Officer set forth herein are of the essence of this
Agreement or Addendum; they shall be construed as
independent of any other provision in this Agreement or
Addendum; and the existence of any claim or cause of action
of the Officer against the Company, whether predicated on
this Agreement or Addendum or not, shall not constitute a
defense to the enforcement by the Company of these
covenants.
12. Tolling Period. The covenants and obligations of
the Officer contained in this Agreement or Addendum shall be
extended by the length of time during which the Officer
shall have been in breach of any of said provisions.
NO FURTHER MODIFICATION. Except as expressly set forth
hereinabove in this Addendum, the terms and conditions of
the Agreement shall remain in full force and effect.
MICRON ELECTRONICS, INC. OFFICER
By: /s/ Xxxxxx X. Xxxxxxx /s/ T. Xxxx Xxxx
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Its: Chairman and CEO Dated: Janaury 23, 1998
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Dated: January 23, 1998
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