EXHIBIT 10.12
THE SURFACE MOUNT TECHNOLOGY CENTRE INC.
July 30, 1999
Xxxxx X'Xxxxxxx
00 Xxxxx Xxxx
Xxxxxxxx Xxxx, Xxxxxxx X0X 0X0
Re: Employment Agreement
Dear Xx. X'Xxxxxxx:
This letter sets forth the terms and conditions of your employment with The
Surface Mount Technology Centre Inc., an Ontario corporation (the "COMPANY") to
be effective as of the date of closing of the transactions (the "EFFECTIVE
DATE") described in the Reorganization and Merger Agreement dated as of July 26,
1999 among the Company, SMTC Corporation ("HOLDINGS"), HTM Holdings, Inc.
("HTM"), EMSIcon Investments LLC, the Company's stockholders, the HTM
stockholders and warrantholders and others (the "REORGANIZATION AGREEMENT").
This Agreement is entered into in connection with the transactions described in
the Reorganization Agreement pursuant to which you, as a stockholder of the
Company, will receive certain payments upon the repurchase for cancellation of a
portion of your interest in the Company.
1. EMPLOYMENT AND SERVICES. You shall be employed as a Vice President of
the Company, Holdings and its subsidiaries (the "SMTC GROUP") for the period
beginning on the Effective Date and ending on December 31, 2001 or on such
earlier date as your employment is terminated pursuant to paragraph 4 hereof
(the "EMPLOYMENT PERIOD"). The Employment Period shall automatically be
extended for successive one-year terms on December 31, 2001 and each anniversary
thereof, unless (i) either party has given written notice of non-renewal to the
other party at least 90 days prior to the scheduled expiration date of the
Employment Period or (ii) your employment has been terminated pursuant to
paragraph 4 hereof.
During the Employment Period, you shall render such services of a senior
executive nature to the SMTC Group and shall have such powers, duties and
responsibilities as may from time to time be prescribed by the Holdings Board of
Directors (the "BOARD"). You shall perform and discharge, faithfully,
diligently and competently, such services, duties and responsibilities. You
shall devote all of your business time and attention and your best efforts and
ability to the business and affairs of the SMTC Group and shall not engage in
other business activities (whether or not compensated) during the Employment
Period without prior
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Employment Agreement
July 30, 1999
written consent of the Board. You agree to serve, if elected or appointed
thereto, in one or more positions as an officer or director of any one or more
current or future members of the SMTC Group, or any one or more of the present
or future subsidiaries or affiliates of Holdings, or as an officer, trustee,
director or other fiduciary of any pension or other employee benefit plan of the
Company, or any one or more of the present or future subsidiaries or affiliates
of Holdings. Service in such additional positions will be without additional
compensation except for reimbursement of reasonably related business expenses on
the same terms as provided elsewhere in this Agreement.
2. COMPENSATION. As compensation for your services performed under this
Agreement during the Employment Period, the Company shall pay you a base salary
at the rate of $200,000 per year. Such salary shall be payable in installments
in accordance with the Company's regular payroll practices. During the
Employment Period, you will be eligible to receive an annual bonus payment based
on the achievement by Holdings of the EBITDA Targets and the Target Performance
Bonus set forth on Annex A hereto. Such EBITDA Targets may be adjusted by the
Board from time to time to reflect any future acquisitions, mergers or other
business combinations by or involving Holdings or its affiliates. For the
fiscal year ending December 31, 1999, the EBITDA Targets shall be calculated on
a pro forma basis as if the combination of HTM and SMTC had occurred on January
1, 1999. Beginning in fiscal year 2000 you will be entitled to receive a mid-
year advance against your annual bonus payment in an amount equal to 40% of the
annual bonus payment that you would receive based on the Board's mid-year
projection of the year-end EBITDA.
3. BENEFITS. During the Employment Period, you shall be entitled to
participate in or receive benefits under any life insurance plan, health and
accident insurance plan, retirement plan and all other benefit arrangements
generally available to the Company's executive officers and employees (other
than severance plans or arrangements) as in effect from time to time. Without
limiting the foregoing, you shall be entitled to receive up to Cdn$15,000
annually in accordance with past practice in connection with your contribution
to a registered retirement savings plan. In addition to any life insurance plan
described above as being generally available to the Company's executive officers
and employees, the Company will at all times maintain a life insurance policy
with a death benefit of $200,000 to be paid to a beneficiary of your choice. In
addition, the Company will reimburse your reasonable out-of-pocket expenses
incurred in connection with the performance of your services hereunder, in each
case subject to and consistent with Company policy. During the Employment
Period you shall be entitled to twenty paid vacation days in each fiscal year
and shall also be entitled to all paid holidays given by the Company to its
employees. Your paid vacation days shall be prorated for any period of service
hereunder less than a full year. You will not be entitled to cash compensation
for any vacation time not taken during the term hereof.
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Employment Agreement
July 30, 1999
4. TERMINATION AND SEVERANCE. The Employment Period shall terminate
prior to its scheduled expiration date on the first to occur of (i) your death
or permanent disability (defined as your actual inability to perform normal
duties for a period of 90 consecutive days or for a total of 120 days in any
two-year period or your prospective inability to perform such duties for such
period as determined in good faith by the Board), (ii) a vote of the Board
directing such termination for Cause, (iii) a vote of the Board directing such
termination without Cause, or (iv) termination by you upon not less than 30
days' prior written notice for Good Reason. In the event of termination of the
Employment Period pursuant to clauses (iii) or (iv) above and so long as you
comply with the restrictions set forth in paragraphs 5 and 6 below, the Company
shall continue to pay your base salary for two years following the date of such
termination. Except as set forth in this paragraph 4, you shall not be entitled
to any compensation or other payment from any current or future member, or
affiliate of any such member, of the SMTC Group in connection with the
termination of your employment. For purposes of this Agreement, (x) "CAUSE"
shall mean (i) your willful and repeated failure to comply with the lawful
directives of the Board, (ii) any criminal act or act of dishonesty, disloyalty,
misconduct or moral turpitude by you that is injurious to the property,
operations, business or reputation of any member of the SMTC Group, or (iii)
your material breach of this Agreement that is not cured within 30 days after
written notice thereof to you by the Company, and (y) "GOOD REASON" shall mean
(i) the Company's material breach of this Agreement that is not cured within 30
days after written notice thereof to the Company by you or (ii) a reduction in
your responsibilities and authority such that you no longer function as a Vice
President of the Company, provided however, that if you do not terminate within
30 days after the Company has provided you notice of any such reduction in
responsibilities, then you shall be deemed to have waived your right to
terminate for Good Reason based on such reduction.
5. CONFIDENTIAL INFORMATION. You acknowledge that information obtained
by you during your employment with the Company (including during the term prior
to the Employment Period) concerning the business or affairs of the Company or
any member of the SMTC Group ("CONFIDENTIAL INFORMATION") is the property of the
Company. You shall not at any time during or after the Employment Period,
without the prior written consent of the Board, disclose to any unauthorized
person or use for your own account or for the account of any person other than
the Company or its affiliates any Confidential Information, except to the extent
necessary to comply with applicable laws or to the extent that such information
becomes generally known to and available for use by the public other than as a
result of (i) your acts or (ii) during the Employment Period, your omissions to
act. Upon termination of the Employment Period or at the request of the Board
at any time, you shall deliver to the Board all documents containing
Confidential Information or relating to the business or affairs of the Company
or its affiliates that you may then possess or have under your control.
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Employment Agreement
July 30, 1999
6. NON-COMPETITION; NON-SOLICITATION.
a. NON-COMPETITION. You acknowledge that you are and will be in
possession of Confidential Information, that your services are of unique and
great value to the Company, and that some restrictions on your activities during
and after your employment are necessary to protect the goodwill, Confidential
Information and other legitimate interests of the Company and its affiliates.
Accordingly, during the Employment Period and for the period thereafter during
which you receive continued payments of your base salary pursuant to Section 4
or, in the case of termination of your employment for Cause pursuant to Section
4(ii), for a period of one year following the date of termination of your
employment (the "NON-COMPETE PERIOD"), you shall not, directly or indirectly,
own, manage, control, participate in, consult with, render services to, or in
any manner engage in, any enterprise engaged in the assembly of printed circuit
boards or other electronic manufacturing services within any geographical area
in which the Company or its affiliates do business on the date of termination of
your employment. Such geographical area shall include but not be limited to
North America (including Mexico), Europe, Southeast Asia and China. Nothing
herein shall prohibit you from being a passive owner of not more than 5% of any
publicly-traded class of capital stock of any entity engaged in a competing
business.
b. NON-SOLICITATION OF EMPLOYEES, SUPPLIERS AND CUSTOMERS. During
the Non-Compete Period, you shall not (i) interfere with the relationship
between the Company or any of its affiliates, and any of their employees, or
induce or attempt to induce any employee of the Company or its affiliates to
terminate his or her employment, (ii) hire directly or through another entity
any person who was an employee of the Company or any of its affiliates at any
time during the Employment Period (other than a former employee of the Company
who left his or her employment without any inducement by you), (iii) induce or
attempt to induce any independent contractor providing services to the Company
or any of its affiliates to terminate or diminish its relationship with the
Company or its affiliates, (iv) induce or attempt to induce any customer,
supplier, licensee or other business relation of the Company or its affiliates
to cease doing business with such entity, or (v) in any way interfere in any
material respect with the relationship between any such customer, supplier,
licensee or business relation and the Company or its affiliates.
c. SCOPE OF RESTRICTION. If, at the time of enforcement of this
paragraph 6, a court shall hold that the duration, scope or area restrictions
stated herein are unreasonable under circumstances then existing, you agree that
the maximum duration, scope or area reasonable under such circumstances shall be
substituted for the stated duration, scope or area.
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Employment Agreement
July 30, 1999
d. NECESSITY OF RESTRAINTS. You acknowledge that the restraints
imposed by this paragraph 6 and by paragraph 5 above are reasonable and
necessary for the protection of the Company and its affiliates, and that any
such entity would be irreparably harmed by a breach by you of these provisions.
7. WITHHOLDING; CURRENCY. All payments made by the Company under this
Agreement shall be net of any tax or other amounts required to be withheld by
the Company under any applicable law or legal requirement. Except as
specifically noted, all amounts set forth in this Agreement are denominated in
US Dollars.
8. PRIOR AGREEMENTS. Except as expressly provided herein, all prior
agreements, arrangements or understandings, written or oral, with respect to
your employment with the Company or any subsidiary or affiliate thereof are
superseded by this Agreement and shall be of no further force and effect.
9. SURVIVAL. The provisions of paragraphs 5 and 6 hereof will survive
any termination of this Agreement in accordance with their respective terms.
10. GOVERNING LAW. All questions concerning the construction, validity
and interpretation of this Agreement shall be governed by the laws of the
Province of Ontario without giving effect to any choice or conflict of laws
provision or rule that would cause the application of the domestic substantive
laws of any other jurisdiction.
11. NOTICES. All notices, requests and demands to or upon the parties
hereto to be effective shall be in writing, by facsimile, by overnight courier
or by registered or certified mail, postage prepaid and return receipt
requested, and shall be deemed to have been duly given or made upon: (i)
delivery by hand, (ii) one business day after being sent by overnight courier;
or (iii) in the case of transmission by facsimile, when confirmation of receipt
is obtained. Such communications shall be addressed and directed to the parties
as follows (or to such other address as either party shall designate by giving
like notice of such change to the other party):
If to you, at the address first stated above.
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Xxxxx X'Xxxxxxx
Employment Agreement
July 30, 1999
If to the Company:
The Surface Mount Technology Centre Inc.
000 Xxxx Xxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx
with a copy to:
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx
Facsimile: 000-000-0000
12. AMENDMENT; WAIVER. No provision of this Agreement may be amended
modified, waived or discharged unless such amendment waiver, modification or
discharge is approved by the Board and agreed to in writing signed by you and
such officer as may be specifically authorized by the Board in connection with
such approval. No waiver of any condition or provision of this Agreement shall
be deemed a waiver of similar or dissimilar provisions or conditions at the same
or at any prior or subsequent time.
13. ASSIGNMENT. This Agreement shall inure to the benefit of and be
binding upon (i) you, your personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees and (ii)
the Company and its successors (including, without limitation, by means of
reorganization, merger, amalgamation, consolidation or liquidation) and
permitted assigns. The Company may assign this Agreement to Holdings or any
subsidiary or affiliate of Holdings or to any successor of the Company or
Holdings by reorganization, merger, amalgamation, consolidation or liquidation
and any transferee of all or substantially all of the business or assets of the
Company, Holdings or of any division or line of business of the Company or
Holdings with which you are at any time associated. The Company and Holdings
require your personal services hereunder and you may not assign this Agreement.
* * * * *
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Employment Agreement
July 30, 1999
Please execute the extra copy of this letter Agreement in the space below
and return it to the undersigned at the address set forth above to confirm your
understanding and acceptance of the agreements contained herein.
Very truly yours,
THE SURFACE MOUNT TECHNOLOGY CENTRE INC.
By: /s/ Xxxx Xxxxxx
----------------
Name: Xxxx Xxxxxx
Title: President
Accepted and agreed to:
EMPLOYEE
/s/ Xxxxx X'Xxxxxxx
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Xxxxx X'Xxxxxxx
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