Retention Agreement - Micron Electronics Inc. and Savino R. Ferrales
RETENTION AGREEMENT
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This Retention Agreement (the "Agreement") is dated effective as of
December 1, 2000 (the "Effective Date"), between Micron Electronics, Inc., a
Minnesota corporation, located at 900 East Karcher Road, Nampa, Idaho 83687 (the
"Company"), and Savino R. (Sid) Ferrales, located at the business address of 900
East Karcher Road, Nampa, Idaho 83687 (the "Executive"). Capitalized terms or
words that are not otherwise defined where stated in this Agreement shall have
the meanings assigned to such terms or words in Section 6.
1. Background and Purpose. The Company considers it essential to the best
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interests of its stockholders to take reasonable steps to retain its key
management, including Executive. Further, the Company recognizes that the
uncertainty and questions which might arise among management in the context of a
significant restructuring of the Company's business or any possible change of
control of the Company could result in the departure or distraction of key
management to the detriment of the Company and its stockholders. Accordingly,
the Company has determined that appropriate steps should be taken to reinforce
and encourage Executive's attention and dedication to the Company's business and
to the Executive's assigned duties without distraction in the face of possible
external opportunities, or any potential uncertainty and questions that may
arise in the context of a change of control or restructuring of the Company or
its business. The purpose of this Agreement, therefore, is to provide Executive
with reasonable compensation and incentives that encourage Executive's
continuation of employment with the Company, as well as Executive's enhanced
services and dedication to the operations of HostPro.
2. Term of Agreement. The term of this Agreement shall commence on the
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Effective Date and shall continue for 24 months following the Effective Date
(the "Term").
3. Not a Contract of Employment; Employment At-Will. This Agreement is
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not and shall not be construed as a contract of employment between the Company
and Executive, and nothing in this Agreement shall confer upon Executive any
right to continued employment by the Company. Executive's employment with the
Company shall remain on an at-will basis; meaning that Executive and the Company
shall have the right to terminate employment at any time, for any reason, with
or without cause or prior notice.
4. Retention Pay and Benefits for Continuation in Employment. Subject to
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all of the terms, provisions and conditions set forth in this Agreement, the
Company shall pay to Executive the Retention Pay and Benefits set forth in
Sections 4.1 and 4.2 below.
4.1 Level One Retention Pay and Benefits. The Company shall pay to
Executive a retention bonus in two lump sum installment Payments, if the
Executive is continuously employed with the Company from the Effective Date
through the Retention Date or an Acquirer Hire Date, as applicable, subject to
Sections 4.1.1 and 4.1.2 below.
4.1.1 First Installment. A lump sum Payment of One Hundred
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Thirty Five Thousand Dollars ($135,000) shall be paid to Executive within 10
days following the Execution Date, subject to the repayment conditions and
obligations in Section 4.1.3.
RETENTION AGREEMENT -- Page 1
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4.1.2 Second Installment. A lump sum Payment of One Hundred
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Thirty Five Thousand Dollars ($135,000) shall be paid to Executive within 10
days following the earliest to occur of the Retention Date or an Acquirer Hire
Date, as applicable, subject to the repayment conditions and obligations in
Section 4.1.3.
4.1.3 Repayment Obligations. In the event of (i) a HostPro
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Transaction that occurs during the Term, and (ii) Executive's failure to accept
an Acquirer Employment Offer within 10 days following the closing of such a
HostPro Transaction, Executive shall be required to repay, and hereby expressly
agrees to repay, to the Company the full gross amount of the Payments paid
pursuant to Section 4.1.1 ($135,000) and Section 4.1.2 ($135,000), if previously
paid, within 10 days following such failure to accept an Acquirer Employment
Offer. Further, in the event of Executive's Voluntary Termination or Termination
for Cause with the Company, HostPro or Acquirer, as applicable, prior to the
earliest to occur of (i) Executive's death, (ii) Executive's Disability, (iii) a
Change in Control Date, or (iv) the first anniversary of the Effective Date,
Executive shall be required to repay, and hereby expressly agrees to repay, to
the Company the full gross amount of the Payments paid pursuant to Section 4.1.1
($135,000) and Section 4.1.2 ($135,000) within 10 days following such Voluntary
Termination or Termination for Cause. In the event of Executive's Involuntary
Termination during the Term, Executive shall not be required to repay any
Payments pursuant to this Section 4.1.3.
4.2 Level Two Retention Pay and Benefits. In the event of a Change
in Control that occurs during the Term, the Company shall pay to Executive a
retention bonus in a one-time lump sum Payment of Two Hundred Seventy Thousand
Dollars ($270,000), subject to the following conditions and obligations:
4.2.1 HostPro or Acquirer Employment Offer. In the further
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event of (i) Executive's receipt and acceptance of the earliest to occur of (A)
a HostPro Employment Offer or (B) an Acquirer Employment Offer, as applicable,
and (ii) Executive thereafter remains continuously employed with either HostPro
or Acquirer, as applicable, through the CIC Retention, Executive shall be paid
the Payment under Section 4.2 within 10 days following the CIC Retention Date;
provided, however, in the event of Executive's Involuntary Termination by
HostPro or Acquirer, as applicable, prior to such CIC Retention Date, Executive
shall be paid the Payment under Section 4.2 within 10 days following such
Involuntary Termination. Alternatively, in the event of Executive's failure to
accept such an offer under clause (i)(A) or (i)(B), Executive shall not receive
the Payment under Section 4.2.
4.2.2 Involuntary Termination. Notwithstanding the provisions
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of Sections 4.2.1 and 4.2.2, the Payment under Section 4.2 shall be paid to
Executive within 10 days following the date of Executive's Involuntary
Termination during the Term by the Company, HostPro or Acquirer, as applicable.
5. Excise Tax. In the event that any Payment to the Executive is subject
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to the Excise Tax as determined pursuant to Section 5.1, the Company shall pay
to Executive a tax restoration payment (the "Gross-Up Payment") equal to: (a)
the Excise Tax on the Payment, plus (b) the Excise Tax on the Gross-Up Payment,
plus (c) federal, state and local income taxes on the Gross-Up Payment, assuming
that such taxes are imposed at their highest marginal rate.
RETENTION AGREEMENT -- Page 2
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All determinations with respect to any Gross-Up Payment shall be made in
accordance with Sections 5.1 through 5.6 below.
5.1 Determination of Gross-Up Payment. Upon prior written notice
from the Executive, the Company shall within 15 days following the earliest of
the Retention Date, the CIC Retention Date, the Change in Control Date, or the
date of termination of Executive's employment, cause the Accounting Firm to (i)
make a determination whether any Payment received by Executive is subject to the
Excise Tax, and (ii) provide supporting calculations and an analysis to
Executive and the Company with respect to such a determination. In the event
that the Accounting Firm determines that any Payment received by Executive is
subject to the Excise Tax, the Company shall cause the Accounting Firm to
determine the amount of the applicable Gross-Up Payment owed to Executive in
accordance with Section 5, and the Company shall thereafter provide such Gross-
Up Payment in accordance with Section 5.2. In the event that the Accounting Firm
determines that any Payment received by Executive is not subject to the Excise
Tax, then the Company shall cause the Accounting Firm to provide the Company,
which shall furnish Executive with a copy, with a written opinion that the
Company has substantial authority under the Code and Regulations not to withhold
such an Excise Tax or report such an Excise Tax on Executive's W-2. Any
determination or opinion by the Accounting Firm shall be binding upon Executive
and the Company with respect to whether the Company is required to provide any
Gross-Up Payment to Executive under this Section 5.1. The Company shall pay all
of the fees and expenses of the Accounting Firm relating to any determination or
opinion required under this Section 5.1. Notwithstanding the Accounting Firm's
determination or opinion, if a claim or notice of possible claim ultimately is
asserted by the Internal Revenue Service (the "Claim") that, if made and
successful, would subject any Payment to the Excise Tax, then Executive shall be
entitled to indemnification and the other rights and obligations as set forth in
Section 5 of this Agreement.
5.2 Initial Gross-Up Payment. In the event that the Accounting Firm
determines a Gross-Up Payment is owed to Executive under Section 5.1, the
Company shall pay to Executive the amount of the Gross-Up Payment determined by
the Accounting Firm within 10 days of the Company's receipt of such
determination, subject to the requirements of Section 7.2 and all of the rights
and obligations as set forth in Section 5 of this Agreement.
5.3 Underpayment and Overpayment; Adjustment to Gross-Up Payment. If
the initial Gross-Up Payment provided under Section 5.2 is insufficient to cover
the amount of the Excise Tax that is ultimately determined pursuant to a Claim
to be owed by Executive with respect to any Payment (an "Underpayment"), the
Company, after exhausting its remedies under Section 5.4, shall promptly pay to
Executive an additional Gross-Up Payment in respect of the Underpayment. If the
initial Gross-Up Payment provided under Section 5.2 is in excess of the amount
necessary to cover the Excise Tax that is ultimately determined pursuant to a
Claim to be owed by Executive with respect to any Payment (an "Overpayment"),
the Executive shall promptly repay to the Company an amount equal to the
Overpayment within 10 business days of the Company's request for such repayment.
5.4 Procedures Relating to Claim. The following procedures shall
apply to the Parties with respect to their respective rights and obligations
under Section 5 of this Agreement in the event of any Claim (as defined in
Section 5.1):
RETENTION AGREEMENT -- Page 3
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5.4.1 Notice of Claim by Executive. Executive shall notify the
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Company of any Claim, irrespective of whether any Gross-Up Payment previously
has been provided by the Company to Executive. Such notice shall be given within
10 days after Executive knows of such Claim, and shall apprise the Company of
the nature of the Claim and the date on which the Claim is requested to be paid,
and shall include complete copies of all notices or communications received by
the Executive from the Internal Revenue Service or its representatives with
respect to the Claim. Executive agrees not to pay the Claim until the expiration
of the 30-day period following the date on which Executive notifies the Company,
or such shorter period ending on the date the Taxes with respect to such Claim
are due (the "Notice Period"). Executive's failure to timely notify the Company
of any claim as required by this Section 5.4.1 shall result in a waiver of
Executive's rights under this Section 5.
5.4.2 Notice by the Company; Cooperation. If the Company
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notifies Executive prior to the expiration of the Notice Period that it desires
to contest the Claim, Executive shall: (a) provide the Company with any
information reasonably requested by the Company relating to the Claim; (b) take
such action in connection with the Claim as the Company may reasonably request,
including, without limitation, accepting legal representation with respect to
such Claim by attorneys selected by the Company; (c) cooperate with the Company
in good faith in contesting the Claim; and (d) permit the Company to participate
in any proceedings relating to the Claim.
5.4.3 No Notice by the Company; Payment on Claim. If the
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Company does not notify Executive prior to the end of the Notice Period of the
Company's desire to contest the Claim, and if the Company previously has not
provided Executive with an initial Gross-Up Payment under Section 5.2, the
Company shall pay to Executive a Gross-Up Payment or an additional Gross-Up
Payment, as the case may be, in respect of any Payment that is subject of the
Claim; provided, however, that Executive shall immediately pay the amount of the
Excise Tax that is the subject of the Claim to the applicable taxing authority
in accordance with applicable law, and Executive shall release, indemnify and
hold the Company harmless from any costs, expenses, penalties, fines, interest
or other liabilities with respect to Executive's failure to pay such Excise Tax
as required under this Section 5.4.3.
5.4.4 Notice by the Company; Payment and Contest of Claim;
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Payment of Advance. If the Company notifies Executive pursuant to Section
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5.4.2 of the Company's desire to contest the Claim, and if thereafter requested
by the Company, Executive shall either pay the Taxes claimed in respect of the
Excise Tax and timely sue for a refund, or timely contest the Claim in any
permissible manner and prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction, and in one or more
appellate courts as the Company shall determine in its sole discretion;
provided, however, that if the Company directs Executive to pay such Claim and
pursue a refund, the Company shall advance the amount of such payment to
Executive on an after-tax and interest-free basis (the "Advance"), subject to
the rights and obligations under Section 5.5.
5.4.5 Control of Proceedings. Executive shall permit the
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Company to control all proceedings related to the Claim and, at the Company's
option, permit the Company to pursue or forgo any and all administrative
appeals, proceedings, hearings, and conferences with the taxing authority in
respect of such Claim. The Company's control of the contest and
RETENTION AGREEMENT -- Page 4
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proceedings related to the Claim shall be limited to the issues related to the
Excise Taxes and Gross-Up Payments, and Executive shall be entitled to settle or
contest, as the case may be, any other unrelated issues raised by the Internal
Revenue Service or other taxing authority.
5.5 Repayment of Advance on Refund. If, after receipt by Executive
of an Advance under Section 5.4.4 of this Agreement, Executive becomes entitled
to a refund with respect to the Claim to which such Advance relates, Executive
shall pay to the Company the amount of the refund (together with any interest
paid or credited thereon after Taxes applicable thereto). However, if after
receipt by Executive of an Advance, a determination is made that Executive shall
not be entitled to any refund with respect to the Claim and the Company does not
promptly notify Executive of its intent to contest the denial of refund, then
the amount of the Advance shall not be required to be repaid by Executive and
the amount thereof shall offset the amount of any additional Gross-Up Payment
then owing to Executive.
5.6 Indemnification; Further Assurances. The Company shall indemnify
Executive and hold Executive harmless, on an after-tax basis, from any costs,
expenses, penalties, fines, interest or other liabilities (the "Losses")
incurred by Executive with respect to the exercise by the Company of any of its
rights under this Section 5, including, without limitation, any Losses related
to the Company's decision to contest a Claim or any imputed income to Executive
resulting from any Advance or action taken on Executive's behalf by the Company
pursuant to this Section 5. The Company shall pay all reasonable legal fees and
expenses incurred by the Company under this Section 5, and shall promptly
reimburse Executive for the reasonable expenses incurred by Executive in
connection with any actions taken by the Company or required to be taken
pursuant to this Section 5.
6. Definitions. For purposes of this Agreement, the following capitalized
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words shall have the meanings set forth below:
"Accounting Firm" means PricewaterhouseCoopers LLP or, if such firm is
unable or unwilling to perform the services contemplated by this Agreement, such
other national accounting firm as the Company and Executive shall designate by
mutual agreement.
"Acquirer" means any entity that is a party to the transaction
resulting in a HostPro Transaction during the Term, or such entity's successor.
"Acquirer Employment Offer" means a final offer of employment for an
executive position that, with the approval of the Chief Executive Officer of the
Company, is offered by an Acquirer to the Executive during the Term.
"Acquirer Hire Date" means the date that Executive is hired pursuant
to Executive's acceptance of an Acquirer Employment Offer.
"Board" means the Board of Directors of the Company.
"Change in Control" means, and shall be deemed to have occurred solely
for the purposes of this Agreement, in the event of (i) a sale, liquidation or
distribution of all or substantially all of the PC Business Assets of the
Company, irrespective of the form of the transaction or series of transactions;
(ii) any person (as such term is used in Sections 13(d) and
RETENTION AGREEMENT -- Page 5
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14(d) of the Exchange Act) or entity becoming the beneficial owner (as defined
in Rule 13d-3 promulgated under the Exchange Act), directly or indirectly, of
securities of the Company representing fifty percent (50%) of the total voting
power of all of its then outstanding securities; or (iii) a merger or
consolidation of the Company with or into any other entity, other than a merger
or consolidation that would result in the holders of the voting securities of
the Company outstanding immediately prior thereto holding securities which
represent immediately after such merger or consolidation more than fifty percent
(50%) of the total combined voting power of the entity which survives such
merger or consolidation or the parent of the entity which survives such merger
or consolidation. To the extent that less than all of the PC Business Assets
have been sold, liquidated or distributed, the issue of whether "substantially
all" of such assets have been sold, liquidated or distributed shall be
determined by the Committee in its reasonable discretion.
"Change in Control Date" means the date of closing with respect to a
transaction, the consummation of which results in a Change in Control.
"CIC Retention Date" means the date of the six-month anniversary
following the Change in Control Date, provided Executive is still employed on
such date by HostPro or Acquirer, as applicable.
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor provisions thereto.
"Committee" means the Compensation Committee of the Board.
"Disability" means (i) Executive's incapacity due to physical or
mental illness that causes Executive to be absent from the full-time or regular
performance of Executive's duties with the Company, HostPro or Acquirer, as
applicable, for at least 90 consecutive days, and (ii) Executive's failure to
return to full-time or regular performance of Executive's duties for the
Company, HostPro or Acquirer, as applicable, within 15 days after receiving
written notice of termination of this Agreement due to Disability. Any question
as to the existence of a Disability upon which Executive and the Company cannot
agree shall be determined by a qualified independent physician selected by
Executive (or, if Executive is unable to make such selection, a selection shall
be made by any adult member of Executive's immediate family), and approved by
the Committee. The determination of such physician made in writing to the
Company and to Executive shall be final and conclusive for all purposes of
determining Disability under this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and any successor provisions thereto.
"Excise Tax" means the federal excise tax, together with any interest
or penalties thereon, on the type of payment defined under Section 280G(b) of
the Code.
"Execution Date" means the latest to occur of (i) approval of this
Agreement by the Committee, or (ii) execution of this Agreement by the Parties.
RETENTION AGREEMENT -- Page 6
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"Good Reason" means a resignation of Executive's employment because of
one or more of the following reasons: (i) a substantial adverse change without
Executive's consent in Executive's responsibilities from those in effect or
assigned as of the Execution Date, provided that this clause (i) shall not apply
to constitute Good Reason following a Change in Control, a HostPro Hire Date or
an Acquirer Hire Date; (ii) a Company-imposed reduction of Executive's annual
base salary with the Company below the level set as of the Effective Date,
without Executive's consent; (iii) a Company-imposed relocation of Executive's
principal place of employment with the Company by more than a 50 mile radius
surrounding the cities of Boise, Idaho, Austin, Texas, Los Angeles, California,
or Seattle, Washington, without Executive's consent; (iv) the implementation
during the Term of a reporting structure under which Executive reports directly
to a person other than the Chief Executive Officer of the Company (prior to a
Change in Control), the Chief Executive Officer of HostPro (following a HostPro
Hire Date) or the Chief Executive Officer of Acquirer (following an Acquirer
Hire Date), without Executive's consent; (v)(A) the Revenues of the PC Systems
Business are below One Hundred Million Dollars ($100,000,000) on an annualized
basis, based on the trailing three months, and (B) the Board has adopted a
resolution to exit the PC Systems Business; provided, however, that any event
described in clauses (i) through (v) shall not constitute Good Reason unless it
is first communicated by Executive to the Company in writing and such event is
not corrected by the Company in a manner that is reasonably satisfactory to
Executive within 10 days of the Company's receipt of such written notice from
Executive. The event described in clause (v) also shall not constitute Good
Reason for purposes of Involuntary Termination and the corresponding receipt of
any Payments under this Agreement unless Executive after the occurrence of such
event remains continuously employed by the Company, HostPro or Acquirer, as
applicable, until the earliest to occur of (a) the six month anniversary
following the end of the month in which the event described in clause (v)
occurs, or (b) Executive's termination of employment other than by reason of
Disability or Termination for Cause, and such termination occurs during the Term
and following the occurrence of the event described in clause (v). Executive's
transfer of employment to HostPro or Acquirer, as applicable, or the acceptance
by Executive at the time of such transfer of any terms of employment with
HostPro or Acquirer, as applicable, shall not constitute Good Reason under this
Agreement. Notwithstanding the immediately preceding sentence, during the Term
and following a HostPro Hire Date or an Acquirer Hire Date, as applicable, Good
Reason under this Agreement may include: (x) a reduction in Executive's annual
base salary by more than $30,000 below the level set as of the HostPro Hire Date
or Acquirer Hire Date, as applicable, and a change in reporting structure under
which Executive reports directly to a person other than the Chief Executive
Officer of HostPro or Acquirer, as applicable, without Executive's consent; or
(y) modifications to the material terms of Executive's employment with HostPro
or Acquirer, as applicable, without Executive's consent; provided, however, that
any event described in clauses (x) and (y) shall not constitute Good Reason
under this Agreement unless it is first communicated in writing by Executive to
the Company and to HostPro or Acquirer, as applicable, and such event is not
corrected in a manner that is reasonably satisfactory to Executive within 10
days of the last receipt by each of the foregoing entities (the Company and
HostPro or Acquirer, as applicable) of such written notice from Executive.
"HostPro" means HostPro, Inc., a Delaware corporation, or its
successor.
RETENTION AGREEMENT -- Page 7
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"HostPro Employment Offer" means a final offer of employment for an
executive position with HostPro that is approved by the Chief Executive Officer
of the Company and offered to executive during the Term.
"HostPro Hire Date" means the date that Executive is hired pursuant to
Executive's acceptance of a HostPro Employment Offer.
"HostPro Transaction" means, and shall be deemed to have occurred
solely for the purposes of this Agreement, in the event of (i) the sale of
substantially all of the assets of HostPro, or (ii) a merger or consolidation of
HostPro with or into any other entity.
"Involuntary Termination" means: (i) any termination of Executive's
employment with the Company by the Company other than by reason of Disability or
Termination for Cause; (ii) any termination of Executive's employment with
HostPro by HostPro other than by reason of Disability or Termination for Cause;
(iii) any termination of Executive's employment with Acquirer by Acquirer other
than by reason of Disability or Termination for Cause; or (iv) any resignation
of employment with the Company, HostPro (following a HostPro Hire Date), or
Acquirer (following an Acquirer Hire Date) by Executive that occurs within 30
days following an event that constitutes Good Reason (to the extent applicable
with respect to the Company, HostPro or Acquirer).
"Parties" means the Company and Executive.
"Payment" means (i) any payment or portion thereof with respect to the
retention bonuses under Sections 4.1 or 4.2, (ii) or (ii) any payment that is
described in Section 280G(b)(2) of the Code which is received by Executive
during the Term. All Payments shall be made less applicable federal, state and
local tax withholding and payroll deductions.
"PC Business Assets" means the assets directly and predominantly
attributable to the Company's operations to market, design, develop, supply,
manufacture, distribute, and sell personal computer products, including, without
limitation, inventories, property, plant, equipment, manufacturing and
distribution assets and related systems. "PC Business Assets" shall not include
cash and cash equivalents, liquid investments, or the assets directly and
predominantly attributable to the operations of the Company's other reportable
segments, including, without limitation, the HostPro and SpecTek operations, as
referred to in the Company's latest Form 10-K or Form 10-Q filed under the
Exchange Act.
"PC Systems Business" means that segment of the Company's business
involving the marketing, design, development, supply, manufacturing,
distribution and sales of PC Business Assets.
"Regulations" means the proposed, temporary and promulgated
regulations under Section 280G of the Code, or any successor provision thereto.
"Retention Pay and Benefits" means the pay and benefits payable to
Executive under Section 4.
RETENTION AGREEMENT -- Page 8
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"Retention Date" means the earliest to occur of (i) the date 6 months
following the Effective Date, provided that Executive is still employed on such
date by the Company, HostPro or Acquirer, as applicable; (ii) a Change in
Control Date, provided that Executive is still employed on such date by the
Company, HostPro or Acquirer, as applicable; or (iii) the date of Executive's
Involuntary Termination, prior to a Change in Control that occurs during the
Term.
"Revenues of the PC Systems Business" means the revenue, on an
annualized basis, of the reportable segment of the Company's business involving
the marketing, design, development, supply, manufacturing, distribution and
sales of personal computer products. "Revenues of the PC Systems Business" shall
not include revenue attributable to the operations of the Company's other
reportable segments, including, without limitation, the HostPro and SpecTek
operations, as referred to in the Company's latest Form 10-K or Form 10-Q filed
under the under the Exchange Act.
"Taxes" means the federal, state and local income taxes to which
Executive is subject at the time of determination, calculated on the basis of
the highest marginal rates then in effect, plus any additional payroll or
withholding taxes to which Executive is then subject.
"Term" is as defined in Section 2.
"Termination for Cause" means termination of Executive's employment
during the Term because of (i) any willful, material violation by the Executive
of any law or regulation applicable to the business of the Company (or a
subsidiary of the Company), HostPro or Acquirer, as applicable, the Executive's
conviction for, or guilty plea to, a felony or a crime, or any willful
perpetration by the Executive of a common law fraud, (ii) Executive's commission
of an act of personal dishonesty which involves personal profit in connection
with the Company, HostPro or Acquirer, as applicable, or any other entity having
a business relationship with the Company, HostPro or Acquirer, as applicable,
(iii) any breach by Executive of any material provision of any agreement or
understanding between the Company, HostPro or Acquirer, as applicable, and
Executive regarding Executive's service as an employee, officer, director or
consultant to the Company, HostPro or Acquirer, as applicable, which results in
loss, damage or injury to the Company, HostPro or Acquirer, including, without
limitation, the willful and continued refusal of Executive to perform the
material duties reasonably required of Executive as an employee, officer,
director or consultant of the Company, HostPro or Acquirer, as applicable, other
than as a result of having a Disability, (iv) Executive's violation of the
policies of the Company, HostPro or Acquirer, as applicable, so as to cause
loss, damage or injury to the property, reputation or employees of the Company,
HostPro or Acquirer, or (v) any willful misconduct or unauthorized actions by
Executive which results in loss, damage or injury to the Company, HostPro or
Acquirer.
"Voluntary Termination" means Executive's resignation or voluntary
termination of employment (i) with the Company other than for Good Reason, (ii)
with Acquirer after an Acquirer Hire Date other than for a reason within the
meaning of Good Reason as applicable to such employment following a Change in
Control, or (iii) with HostPro after a HostPro Hire Date other than for a reason
within the meaning of Good Reason as applicable to such employment following a
Change in Control.
RETENTION AGREEMENT -- Page 9
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7. Other Terms, Conditions and Provisions.
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7.1 Confidentiality. As a condition to Payment of the Retention Pay
and Benefits, Executive agrees not to disclose to any person, agency or court
the terms and provisions of this Agreement, or any of the discussions between
Executive and the Company's representatives relating to this Agreement, unless
Executive is expressly compelled to do so pursuant to legal process (e.g., a
court summons or subpoena), or as otherwise required by law. Executive may
discuss this Agreement and the terms and provisions hereof with Executive's
attorney, financial advisor, certified public accountant or immediate family
members on a confidential basis; provided, however, that Executive understands
and agrees that any material breach of confidentiality by such persons shall be
deemed a material breach by Executive. Executive further understands that the
Company may have a legal obligation to publicly disclose some or all of the
terms and provisions of this Agreement; and, if so, the Company shall disclose
such terms and provisions to the extent required under applicable law or
regulation. This Section 7.1 shall survive the termination of this Agreement.
7.2 Tax Treatment of Retention Pay and Benefits. All Payments and
Gross-Up Payments payable to Executive under this Agreement are subject to
applicable federal, state and local tax withholding (including, but not limited
to, withholding for applicable Excise Taxes to the extent provided in Section 5)
and payroll deductions, and constitute taxable income to Executive. Other than
as expressly provided in this Agreement, Executive, and not the Company, is
liable for federal, state and local income taxes and any employee's share of
employment taxes on the Retention Pay and Benefits.
7.3 Dispute Resolution. Any dispute concerning the interpretation or
construction of this Agreement or relating to any compensation or benefits that
Executive may claim under this Agreement shall first be submitted to
confidential mediation before a mediator mutually selected and agreed to by the
Parties, except as otherwise provided under Section 5.4. If the Parties fail to
resolve such dispute through such mediation, the dispute shall be submitted for
binding arbitration to be conducted in accordance with the National Rules for
the Resolution of Employment Disputes (the "Arbitration Rules") of the American
Arbitration Association (the "AAA"). The arbitrator selected by Executive and
the arbitrator selected by the Company shall, within 10 days of their
appointment, select a third neutral arbitrator. In the event that they are
unable to do so, the Parties or their attorneys may request the AAA to appoint
the third neutral arbitrator. Prior to the commencement of hearings, each of
the arbitrators appointed shall provide an oath or undertaking of impartiality.
Any decision or award of the arbitral tribunal shall be final and binding upon
the parties to the arbitration proceeding. The Parties agree that the arbitral
award may be enforced against the parties to the arbitration proceeding or their
assets wherever the award may be entered in any court having jurisdiction
thereof. The venue for any mediation or arbitration under this Section 7.3 shall
be in Boise, Idaho, unless the Parties mutually agree to an alternative
location. The Parties shall be responsible for their own costs and legal fees
in any mediation or arbitration proceedings under this Section 7.3.
7.4 Successors; Assignment.
7.4.1 Successors and Assigns. This Agreement shall be binding
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on the Company, its successors and assigns, including any person acquiring
control of the Company's business and operations.
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<PAGE>
7.4.2 No Assignment by Executive. Executive's rights and
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benefits under this Agreement are personal to Executive, and may not be
transferred or assigned voluntarily or involuntarily.
7.5 Relocation Expenses. In the event Executive shall be required to
relocate in connection with a transfer of employment to HostPro, Executive shall
be reimbursed for reasonable relocation expenses in accordance with the
applicable policies and practices of the Company or HostPro, as applicable.
7.6 Effect on Prior Agreements. This Agreement shall not affect in
any manner Executive's rights and obligations under the Employment and
Noncompete Agreement with the Company dated as of February 13, 1998 (the
"Noncompete Agreement"), or any other agreements between Executive and the
Company or the Company's subsidiaries that pertain to confidentiality, invention
assignment, stock option agreements, or indemnification, and all such agreements
shall remain in full force and effect in accordance with the written terms
thereof.
7.7 Waiver by the Company. In the event that Executive accepts a
HostPro Employment Offer or an Acquirer Employment Offer, the Company agrees to
waive, and upon occurrence of such event shall waive subject to this Section
7.7, any of Executive's covenants not to compete that are set forth in the
Noncompete Agreement; provided, however, that nothing in this Section 7.7 or
this Agreement shall preclude HostPro or Acquirer from entering into any
separate employment, noncompete or other agreement with Executive.
7.8 Release by Executive. As a condition to receipt of any Payments
under Sections 4.1.2 and 4.2, Executive shall execute a waiver and release of
claims against the Company in a form provided by the Company within the
specified consideration or execution periods, and subject to confirmation by the
Company that Executive does not later revoke such waiver and release of claims
within any revocation period allowed by applicable law.
8. Miscellaneous.
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8.1 Amendments; Waivers. No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge
shall be agreed to in writing. Any modification of this Agreement shall be
effective only if in writing and signed by each party or its duly authorized
representative. The waiver of a condition of benefits on any occasion shall not
constitute a waiver of any other condition on the same occasion or a waiver of
the same or any other condition on any other occasion.
8.2 Validity. The terms and provisions of this Agreement are
contractual and not mere recitals. If, for any reason, any provision of this
Agreement shall be held invalid in whole or in part, such invalidity shall not
affect the remainder of this Agreement.
8.3 Counterparts. This Agreement may be executed in two
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
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<PAGE>
8.4 Headings. The headings contained in this Agreement are intended
solely for convenience of reference and shall not affect the rights of the
Parties to this Agreement.
8.5 Governing Law; Venue. The validity, interpretation,
construction, and performance of this Agreement shall be governed by the laws of
the State of Idaho applicable to contracts entered into and performed in such
State.
8.6 Notice to Parties. All notices required or permitted to be given
under this Agreement shall be in writing. Notices may be served by certified or
registered mail, postage paid with return receipt requested; by private courier,
prepaid; by telex, facsimile, or other telecommunication device capable of
transmitting or creating a written record; or personally. Mailed notices shall
be deemed delivered 5 days after mailing, properly addressed. Couriered notices
shall be deemed delivered when delivered as addressed, or if the addressee
refuses delivery, when delivery is refused. Telex or telecommunicated notices
shall be deemed delivered when receipt is either confirmed by confirming
transmission equipment or acknowledged by the addressee or its office. Personal
delivery shall be effective when accomplished. Unless a party changes its
address by giving notice to the other party as provided herein, notices shall be
delivered to Executive at Executive's last known residential address as found in
the Company's records or at such other address or addresses as Executive may
hereafter designate in writing to the Company, and to the Company as follows:
Micron Electronics, Inc.
900 E. Karcher Road
Nampa, Idaho 83687
Attn: General Counsel and Board of Directors
Facsimile: (208) 898-7411
8.7 Entire Agreement. This Agreement contains the entire agreement
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between the Parties concerning the subject matters discussed herein and
supersedes and replaces any earlier understandings, agreements or summaries,
whether written or oral, except as provided in Section 7.6.
MICRON ELECTRONICS, INC.
By /s/ Date: 2/14/2001
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Joel J. Kocher
Chairman, President & CEO
Accepted and agreed:
By /s/ Date: 2/13/2001
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Savino R. (Sid) Ferrales
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