EMPLOYMENT, SEVERANCE, AND NONCOMPETE AGREEMENT
THIS AGREEMENT is between Micron Electronics, Inc., a
Minnesota corporation (the "Company"), and [INSERT FULL NAME OF
THE OFFICER] (the "Officer").
THE PARTIES hereto agree as follows:
1. EMPLOYMENT. The Company hereby employs the Officer as
[INSERT TITLE] of the Company, and the Officer hereby accepts
such employment upon the terms and conditions set forth in this
Agreement and in the Company's offer letter dated [INSERT DATE OF
OFFER LETTER], a copy of which is attached hereto and
incorporated by this reference.
2. TERM. The term of this Agreement shall begin on the
[INSERT DAY (START OR APPOINTMENT DATE, WHICHEVER IS EARLIER)]
day of [INSERT MONTH], 1998, and shall continue until terminated
as provided in this Agreement. The Officer acknowledges that
this Agreement does not create any obligation on the Officer's
part to work for the Company for any fixed period of time, nor
for the Company to employ the Officer for any fixed period of
time, and the Officer's employment may be terminated at any time
with or without cause.
3. DUTIES. The Officer shall serve in such capacity and
perform such duties as the Company shall from time to time
require.
4. REGULAR COMPENSATION. The Company shall pay the Officer
an initial base salary as set forth in the offer letter attached
hereto. In its sole discretion, the Company may change the
Officer's compensation.
5. TERMINATION AND COMPENSATION. The Officer's employment
under this Agreement may be terminated by either party at any
time and for any reason, voluntary or involuntary, with or
without cause, upon prior written notice to the other party. The
date such notice is received by the other party shall be deemed
the "Termination Date." Upon receipt by the Officer of a written
notice of termination from the Company, and upon the Company's
request, the Officer will resign immediately as an Officer. Upon
termination of the Officer's employment during the term of this
Agreement, the Officer shall be entitled to the following
compensation and benefits, depending upon the applicable
circumstances:
(a) If the Officer's employment with the Company is terminated
by the Company for "Cause" (as defined in paragraph 6 herein) or
by the Officer other than for "Good Reason" (as defined in
paragraph 7 herein), the Company shall pay the Officer's base
salary through the Termination Date (less applicable withholdings
and authorized deductions), and the Company shall have no further
obligations to the Officer under this Agreement.
(b) If the Officer's employment with the Company is terminated
by the Company other than for "Cause" (as defined in paragraph 6
herein) or the death of the Officer, or if the Officer's
employment with the Company is voluntarily terminated by the
Officer for "Good Reason" (as defined in paragraph 7 herein),
then the Officer shall be entitled to the Officer's base salary
through the Termination Date, plus (i) any benefits, incentives
or bonuses which pursuant to the terms of any compensation or
benefit plan have been earned or become payable as of the
Termination Date, but which have not yet been paid to the
Officer, and (ii) severance compensation in one lump sum payment
of six (6) months base salary (less applicable withholdings and
authorized deductions) as of the Termination Date. The Officer's
benefits thereafter shall be determined in accordance with the
Company's employee benefit plans and other applicable programs
and practices in effect as of the Termination Date.
(c) In the event of the Officer's death, the Officer's
employment shall be deemed to have ended at the time of death
(referred to herein as the Termination Date), and the Company
shall pay the Officer's base salary through the Termination Date,
plus (i) any benefits, incentives or bonuses which pursuant to
the terms of any compensation or benefit plan have been earned or
become payable as of the Termination Date, but which have not yet
been paid to the Officer, and (ii) a pro rata portion of any
bonus or incentive award that the Officer would have been
entitled to receive in respect of the fiscal year in which the
Officer's Termination Date occurs had the Officer continued in
employment until the end of such fiscal year (less applicable
withholdings and authorized deductions). The Officer's benefits
thereafter shall be determined in accordance with the Company's
employee benefit plans and other applicable programs and
practices in effect as of the Termination Date.
(d) The amounts provided for in paragraphs 5(a), 5(b), and 5(c)
shall be paid within ten (10) days after the Officer's
Termination Date, except that any benefits, incentives or bonuses
payable under paragraphs 5(b) and 5(c) shall be paid in
accordance with the requirements and administration of the
applicable plan or program in effect as of the Termination Date,
including, but not limited to, the timing of such payments,
determinations with respect to the Officer's achievement of
related goals and objectives, and any adjustments to such
payments as allowed by the Company under such plan or program.
6. TERMINATION FOR CAUSE. The Officer's employment under
this Agreement may be terminated for "Cause." For purposes of
this Agreement, "Cause" shall include the following:
(a) The Officer's breach of a fiduciary duty to the Company;
(b) The Officer engages in dishonesty, fraud, gross negligence,
willful malfeasance or other acts of misconduct in the
performance of the Officer's duties or during the course of the
Officer's employment;
(c) The Officer intentionally fails to perform reasonably
assigned duties;
(d) The Officer violates the Company's ethics code or willfully
violates any law, rule or regulation (other than traffic
violations or similar offenses) in the performance of the
Officer's duties; or
(e) The Officer materially breaches any of the terms of this
Agreement.
7. VOLUNTARY TERMINATION FOR GOOD REASON. The Officer may
voluntarily terminate the Officer's employment under this
Agreement at any time for Good Reason. The Officer will be
deemed to have "Good Reason" for voluntary termination of the
Officer's employment, if there should occur:
(a) A substantial adverse change in the Officer's duties or
responsibilities, without the Officer's consent;
(b) A reduction of the Officer's base salary, without the
Officer's consent, by more than twenty-five percent (25%); or
(c) A relocation of the Officer's principal place of employment
or office with the Company by more than a fifty (50) mile radius,
without the Officer's consent.
8. GENERAL RELEASE. Upon receipt of all compensation and
benefits under this Agreement, the Officer and Company settle,
waive, and voluntarily release any and all claims each has or may
have against the other, inclusive of any of the Company's
affiliates, officers, directors, employees or agents, both
individually and in their official capacities.
9. AGREEMENT NOT TO COMPETE OR SOLICIT. During such time
as the Officer is employed by the Company and for the six (6)
month period after the Termination Date (collectively, the
"Period of Restriction"), and in consideration of the terms and
conditions of this Agreement, the Officer agrees as follows:
(a) Acknowledgment. The Officer recognizes and
acknowledges that it is essential for the proper protection of
the Company and its business interests that the Officer be
restrained (i) 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; (ii)
from soliciting or inducing any Officer or employee of the
Company to leave the employ of the Company; (iii) from hiring or
attempting to hire any Officer or employee of the Company; and
(iv) from soliciting the trade of or trading with the customers
and suppliers of the Company for any business purpose. The
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. 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 in which the Company is
now involved or becomes involved during the Period of
Restriction. The phrase "In Competition With the Company" as
used herein shall be deemed to include competition with the
Company or its respective successors or assigns, or the
businesses of any of them. A person, firm, business, or other
entity is In Competition With the Company if it is engaged in the
design, development, manufacture, marketing, sale, or service of
semiconductor memory products, personal computers, servers,
printed circuit boards, memory modules, related personal computer
peripheral equipment, or any other business in which the Company,
or any parent, subsidiary or affiliate of the Company is
currently engaged or becomes engaged during the Period of
Restriction, including any business which is substantially
similar to or competitive with any such business or products.
(c) Covenant of Non-Solicitation of Employees. 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. 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 any parent, subsidiary or
affiliate of the Company.
(d) Covenant of Non-Interference or Diversion of
Business. 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 Period of Restriction, the 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. The 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. The Officer further
agrees that during the Period of Restriction, the Officer shall
not, directly or indirectly, personally or through others,
solicit the trade of, or trade with, any customers or suppliers,
or prospective customers or suppliers, of the Company.
(f) Acknowledgment of Reasonableness of Restrictions.
The Officer specifically acknowledges and agrees that the
covenants and nature of the limitations upon the Officer's
activities as specified in this Agreement, together with the
duration and scope of such covenants and restrictions, are
reasonable limitations on the Officer's activities, and that the
restrictions are required to preserve, promote and protect the
business interests and good-will of the Company and impose no
greater restraint than is reasonably necessary to secure such
protection.
(g) Interpretation of Covenants. In the event that
any covenant or the provisions of any covenant or restriction in
this Agreement 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. The 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.
10. ACCOUNTING FOR PROFITS. The Officer covenants and
agrees that in the event the Officer violates any of the
Officer's restrictions or obligations under this Agreement the
Company shall be entitled to an accounting and payment of all
profits, compensation, commissions, remuneration or other
benefits which the Officer directly or indirectly has received
and/or may receive as a result of or growing out of or in
connection with the violation of any such restrictions or
obligations. The Officer and the Company 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 the
Company is or may be entitled at law, in equity, or under this
Agreement.
11. INDEMNIFICATION. Without in any way limiting any other
rights or remedies otherwise available to the Company at law or
in equity, the Officer shall hold harmless and indemnify the
Company from and against, and shall compensate and reimburse the
Company for, any loss, damage, injury, decline in value, lost
opportunity, liability, exposure, claim, demand, settlement,
judgment, award, fine, penalty, tax, fee (including reasonable
attorneys' fees), charge, cost (including costs of
investigation), or expense of any nature (collectively, the
"Damages") which are directly or indirectly suffered or incurred
at any time by the Company, or to which the Company otherwise
becomes subject (regardless of whether or not such Damages relate
to a third party claim), and that arise from or are directly or
indirectly connected with any breach of any covenant or
obligation of the Officer contained herein.
12. ENTITLEMENT TO EQUITABLE RELIEF. The Officer and the
Company acknowledge and agree that the breach by the Officer of
any covenant, restriction or obligation under this Agreement will
cause the Company substantial, immediate and irreparable harm,
that the extent of damages will be difficult to measure, and,
consequently, there is not an adequate remedy at law in the event
of such breach. Accordingly, the Company and the 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, by bringing an appropriate
action for such remedy in any court of competent jurisdiction
which the Company, in its sole discretion, deems appropriate.
13. RESTRICTIVE COVENANTS. The Officer represents and
warrants that the Officer's experience and capabilities are such
that the restrictive covenants set forth in this Agreement will
not prevent the Officer from earning a livelihood, and that the
Officer will be fully able to earn and receive an adequate
livelihood for the Officer and the Officer's dependents if any of
such provisions should be specifically enforced against the
Officer.
14. CONSENT TO JURISDICTION AND VENUE. The Officer hereby
irrevocably submits to the jurisdiction of the United States
District Court for the District of Idaho, or the District Court
in and for the Counties of Ada or Canyon, State of Idaho, in any
action or proceeding arising out of or relating to this
Agreement, and the Officer hereby irrevocably agrees that all
claims in respect of any such action or proceeding may be heard
and determined in such courts. The Officer further irrevocably
waives any objection that the Officer now or hereafter may have
to the laying of venue of any action or proceeding arising out of
or relating to this Agreement brought in such courts on the
ground that any such action or proceeding in such courts has been
brought in an inconvenient forum. Nothing in this paragraph
shall affect the right of the Company to bring any action or
proceeding against the Officer or the Officer's property in the
courts of other jurisdictions. The Officer agrees that a final
judgment in any such action or proceeding shall to the extent
permitted by applicable law be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other
manner provided by applicable law related to the enforcement of
judgments.
15. COMPANY VIOLATION NOT A DEFENSE. The existence or
allegation of any claims or causes of action of the Officer
against the Company shall not constitute a defense to the
enforcement by the Company of the covenants or obligations
contained in this Agreement.
16. COVENANTS OF THE ESSENCE. The covenants of the Officer
set forth herein are of the essence of this Agreement; they shall
be construed as independent of any other provision in this
Agreement; and the existence of any claim or cause of action of
the Officer against the Company, whether predicated on this
Agreement or not, shall not constitute a defense to the
enforcement by the Company of these covenants.
17. TOLLING PERIOD. The covenants and obligations of the
Officer contained in this Agreement shall be extended by the
length of time during which the Officer shall have been in breach
of any of said provisions.
18. BINDING EFFECT. This Agreement shall be binding upon
and inure to the benefit of the parties and their respective
successors in interest of any kind whatsoever.
19. FINAL AGREEMENT. This Agreement supersedes all prior
employment agreements, and is the entire and final understanding
of the parties as to the subject matter hereof.
20. APPROVAL. This Agreement and the Officer's employment
hereunder is subject to approval by the Company's Board of
Directors and, until such approval shall be given, and evidenced
by a written resolution of the Board of Directors, or a committee
thereof, shall be of no force and effect.
MICRON ELECTRONICS, INC. [INSERT FULL NAME OF OFFICER]
------------------------- -----------------------------
Xxxxxx X. Xxxxxxxx
Senior Vice President,
Worldwide Human Resources
Date:______________ Date:_______________
