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Exhibit 10.18
AGREEMENT
This Agreement is made and entered into freely and voluntarily and is
effective as of July 23, 1996, by and between Xxxxxx X. Xxxxxx (hereinafter
referred to as "Xxxxxx") and Continental Circuits Corp. (hereinafter referred to
as "Continental").
WHEREAS, the parties mutually wish to modify their current employment
relationship and provide for an orderly termination of Xxxxxx'x employment by
Continental, all on terms satisfactory to both Xxxxxx and Continental:
IN CONSIDERATION of the acts, payments, covenants and mutual agreements
herein described and agreed to be performed, Continental and Xxxxxx agree as
follows:
1. Termination of Current Relationship. The parties acknowledge that
Xxxxxx'x employment by Continental terminated as of June 11, 1996 (the "Date of
Termination"). As of the Date of Termination, Xxxxxx resigned as an officer of
Continental.
2. No Continuing Duties. Xxxxxx acknowledges that from and after the
Date of Termination, he has had and shall have no further duties for or on
behalf of Continental.
3. Severance Payment. So long as Xxxxxx continues to comply with all
requirements of this Agreement, Continental agrees to pay Xxxxxx an amount equal
to 12 months base salary, over a 12-month period, at the times and in the
amounts that are presently paid to Xxxxxx in accordance with the normal payroll
procedures of Continental.
4. Benefits.
a. Continental agrees to pay premiums for medical benefits (COBRA)
for Xxxxxx and Xxxxxx'x dependents, if any, for coverage similar to those
benefits currently provided by Continental for 90 days following the Date of
Termination.
b. From and after July 31, 1996, Xxxxxx shall be responsible for all
expenses relating to Xxxxxx'x Lincoln automobile, including without limitation
all lease payments and costs of maintenance, fuel and insurance.
c. Continental will pay up to $10,000 for costs of outplacement
services for Xxxxxx which are incurred by Xxxxxx within 90 days of the Date of
Termination.
5. Stock Options. Effective as of the date of Termination, all of
Xxxxxx'x 6,000 outstanding stock options shall be fully vested.
6. Release and Covenant Not to Xxx. Xxxxxx hereby releases, acquits and
forever discharges Continental, its subsidiaries, affiliates, directors,
officers, employees and agents of and from any and all actions, claims, damages,
expenses or costs of whatever nature arising out of Xxxxxx'x employment and the
termination of such relationship, or Xxxxxx'x service as an officer or director
of Continental (or any subsidiary) including, but not limited to, any rights or
claims to any vacation, sick leave, severance, medical, dental or any other
benefits under the Company's internal policies, under any federal, state or
local statute or regulation, or under common law. Xxxxxx further covenants and
agrees not to join in or commence any action, suit or proceeding, in law or in
equity, or before any administrative agency, or to incite, encourage, or
participate in any such action, suit or proceedings, against Continental, its
subsidiaries, affiliates, directors, officers, employees or agents in any way
pertaining to or arising out of his employment by or service as an employee,
consultant, officer or director of Continental (or any subsidiary) or the
termination of any of such relationships.
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Xxxxxx acknowledges that the consideration afforded him under this
Agreement, including the payments described in Paragraph 3 above, are in full
and complete satisfaction of any claims Xxxxxx may have, or may have had,
arising out of his employment with Continental (or any subsidiary) or the
termination thereof.
Continental hereby releases, acquits and forever discharges Xxxxxx of
and from any and all actions, claims, damages, expenses or costs of whatever
nature arising out of Xxxxxx'x employment by or service as an employee,
consultant, officer or director of Continental (or any subsidiary), except for
those matters as to which Xxxxxx is not entitled to indemnification, as
contemplated by Paragraph 17 below.
7. Time Period for Considering or Canceling this Agreement. Xxxxxx
acknowledges that Continental has encouraged him to consult with an attorney of
his choice with respect to this Agreement. Xxxxxx further acknowledges that he
has been offered a period of time of at least 21 days to consider whether to
sign this Agreement, and Continental agrees that Xxxxxx may cancel this
Agreement at any time during the seven days following the date on which this
Agreement has been signed by all parties to this Agreement. In order to cancel
or revoke this Agreement, Xxxxxx must deliver to Continental at 0000 Xxxx Xxxxxx
Xxxx, Xxxxxxx, XX 00000, written notice stating that Xxxxxx is canceling or
revoking this Agreement. If this Agreement is timely canceled or revoked, none
of the provisions of this Agreement shall be effective or enforceable and
Continental shall not be obligated to make the payments to Xxxxxx or to provide
Xxxxxx with the other benefits described in this Agreement.
8. Confidentiality of Agreement. Xxxxxx and Continental agree to
maintain in confidence the terms and existence of this Agreement and the
discussions that let to its creation and execution, with the exception that
Continental may disclose this Agreement and its terms to the extent required or
appropriate under applicable securities laws or other laws and that Xxxxxx may
disclose such matters to any attorney who is providing advice to Xxxxxx, to any
accountant or federal or state tax agency for purposes of complying with any tax
laws, or as otherwise required by law. Further, Xxxxxx acknowledges that any
duties of confidentiality imposed upon Xxxxxx by agreement or by law, including
without limitation those imposed by Paragraphs 8 and 10 of this Agreement, shall
survive the termination of Xxxxxx'x employment.
9. Reliance. Xxxxxx warrants and represents that (i) he has relied
on his own judgment regarding the consideration for and language of this
Agreement; that (ii) Continental has not in any way coerced or unduly influenced
him to execute this Agreement; and (iii) that this Agreement is written in a
manner that is understandable to him and he has read an understood all
paragraphs of this Agreement.
10. Confidential Information. Xxxxxx acknowledges that, during his
employment by Continental, Xxxxxx has received and also contributed to the
production of, Confidential Information. For purposes of this Agreement, Xxxxxx
agrees that "Confidential Information" shall mean information or material
proprietary to Continental or designated as Confidential Information by
Continental and not generally known by non-Continental personnel, which Xxxxxx
developed or of or to which Xxxxxx obtained knowledge or access through or as a
result of Xxxxxx'x relationship with Continental (including information
conceived, originated, discovered or developed in whole or in part by Xxxxxx).
Xxxxxx further agrees:
10.1 To furnish Continental on demand, a complete list of the names
and addresses of all present, former and potential customers and
other contacts gained while an employee of Continental, whether
or not in the possession or within the knowledge of Continental.
10.2 That all notes, memoranda, documentation and records in any way
incorporating or reflecting any Confidential Information shall
belong exclusively to Continental, and Xxxxxx agrees promptly to
turn over all copies of such materials in Xxxxxx'x control to
Continental.
10.3 That Xxxxxx will hold in confidence and not directly or
indirectly reveal, report, publish, disclose or transfer any of
the Confidential Information to any person or entity, or utilize
any of the Confidential Information for any purpose, except in
the course of Xxxxxx'x work for Continental.
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10.4 That any ideas in whole or in part conceived of or made by Xxxxxx
during the term of his employment or relationship with
Continental which were made through the use of any of the
Confidential Information of Continental or any of Continental's
equipment, facilities, trade secrets or time, or which result
from any work performed by Xxxxxx for Continental, belong
exclusively to Continental and shall be deemed a part of the
Confidential Information for purposes of this Agreement. Xxxxxx
hereby assigns and agrees to assign to Continental all rights in
and to such Confidential Information whether for purposes of
obtaining patent or copyright protection or otherwise. Xxxxxx
shall acknowledge and deliver to Continental, without charge to
Continental (but at its expense) such written instruments and do
such other acts, including giving testimony in support of
Xxxxxx'x authorship or inventorship, as the case may be,
necessary in the opinion of Continental to obtain patents or
copyrights or to otherwise protect or vest in Xxxxxx the entire
right and title in and to the Confidential Information.
11. Non-Compete After Employment Term. The parties acknowledge that
Xxxxxx has acquired much knowledge and information concerning the business of
Continental and its affiliates as the result of Xxxxxx'x employment. The parties
further acknowledge that the scope of business in which Continental is engaged
as of the date of execution of this Agreement is world-wide and very competitive
and one in which few companies can successfully compete. Competition by Xxxxxx
in that business would severely injure Continental. Accordingly, until one year
after the Date of Termination, Xxxxxx will not:
11.1 Within any jurisdiction or marketing area in which Continental or
any of its affiliates is doing business or is qualified to do
business, directly or indirectly own, manage, operate, control,
be employed by or participate in the ownership, management,
operation or control of, or be connected in any manner with, any
business of the type and character engaged in and competitive
with that conducted by Continental or any of its affiliates. For
these purposes, ownership of securities of not in excess of 1% of
any class of securities of a public company shall not be
considered to be competition with Continental or any of its
affiliates;
11.2 Persuade or attempt to persuade any potential customer or client
to which Continental or any of its affiliates has made a proposal
or sale, or with which Continental or any of its affiliates has
been having discussions, not to transact business with Xxxxxx or
such affiliate, or instead to transact business with another
person or organization;
11.3 Solicit the business of any company which is a customer or client
of Continental or any of its affiliates at any time during
Xxxxxx'x employment by the Continental, or was its customer or
client within two years prior to the date of this Agreement,
provided, however, if Xxxxxx becomes employed by or represents a
business that exclusively sells products that do not compete with
products then marketed or intended to be marketed by Continental,
such contact shall be permissible; or
11.4 Solicit, endeavor to entice away from Continental or any of its
affiliates, or otherwise interfere with the relationship of
Continental or any of its affiliates with, any person who is
employed by or otherwise engaged to perform services for
Continental or any of its affiliates, whether for Xxxxxx'x
account or for the account of any other person or organization.
12. Common Law of Torts or Trade Secrets. Nothing in this Agreement
shall be construed to limit or negate the common law of torts or trade secrets
where such common law provides Continental with broader protection than the
protection provided by this Agreement.
13. Nature of the Agreement. This Agreement and all provisions
hereof, including all representations and promises contained herein, are
contractual and not a mere recital and shall continue in permanent force and
effect. This Agreement and all attachments constitute the sole and entire
agreement of the parties with respect to the subject matter hereof, superseding
all prior agreements and understandings between the parties, and there are no
agreements of any nature whatsoever between the parties hereto except as
expressly stated herein. This Agreement may not be modified or changed except by
means of a written instrument signed by both parties. If any portion of this
Agreement is found to be unenforceable for any reason whatsoever, the
unenforceable provision shall be considered to be severable, and the remainder
of the Agreement shall
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continue to be in full force and effect. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Arizona.
14. No Admission of Liability. Nothing contained in this Agreement
shall be construed in any manner as an admission by Continental or Xxxxxx that
he or it has violated any statute, law or regulation, or breached any contract
or agreement.
15. Remedies. Any and all remedies set forth herein are intended to
be nonexclusive and either party may, in addition to such remedies, seek any
additional remedies available either in law or in equity in the event of default
or breach by the other party.
16. Injunctive Relief. Xxxxxx agrees that it would be difficult to
measure the damage to Continental from any breach by Xxxxxx of the covenants set
forth herein, that injury to Continental from any such breach would be
impossible to calculate, and that money damages would therefore be an inadequate
remedy for any such breach. Accordingly, Xxxxxx agrees that if Xxxxxx should
breach any term of this Agreement, Continental shall be entitled, in addition to
and without limitation of all other remedies it may have, to offset payments to
Xxxxxx required by this Agreement and/or to injunctions or other appropriate
orders to restrain any such breach without showing or proving any actual damage
to Continental. This paragraph shall survive termination of Xxxxxx'x employment.
17. Indemnification. Continental will provide indemnification to
Xxxxxx in accordance with the current Certificate and Bylaws of Continental.
These obligations shall survive the termination of Xxxxxx'x employment.
18. Testimony. If Xxxxxx has knowledge of or is alleged to have
knowledge of any matters which are the subject of any pending, threatened or
future litigation involving Continental (or any subsidiary), he will make
himself available to testify if and as necessary. Xxxxxx will also make himself
available to the attorneys representing Continental in connection with any such
litigation or dispute for such purposes as they may deem necessary or
appropriate, including but not limited to the review of documents, discussion of
the case and preparation for any legal proceedings. This Agreement is not
intended to and shall not be construed so as to in any way limit or affect the
testimony which Xxxxxx gives in an such proceedings. Further, it is understood
and agreed that Xxxxxx will at all times testify fully, truthfully and
accurately, whether in deposition, hearing, trial or otherwise.
19. No Disparagement. Each party agrees that as part of the
consideration for this Agreement, he or it will not make disparaging or
derogatory remarks, whether oral or written, about the other party or, in the
case of Continental, about its subsidiaries, affiliates, officers, directors,
employees or agents.
Dated this 23rd day of July, 1996.
/s/Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
CONTINENTAL CIRCUITS CORPORATION
By: /s/ Xxxxxxxxx X. XxXxxxx, III
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Xxxxxxxxx X. XxXxxxx, III
Its: President and CEO
