EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), dated as of __________,
1997, is between ELECTRONIC FAB TECHNOLOGY CORP., a Colorado corporation
("Parent"), and Circuit Test, Inc., a Florida corporation ("Circuit Test"), and
_____________ __________ ("Executive").
RECITAL
Parent, CTI Acquisition Corp., a Florida corporation and a wholly-owned
subsidiary of Parent ("Merger Sub"), Circuit Test have entered into the
Agreement and Plan of Reorganization, dated as of July 9, 1997, pursuant to
which [Merger Sub was merged with and into Circuit Test]. This Agreement is
executed and delivered pursuant to Article VII of that agreement and sets forth
the terms on which the Company, (as defined below)engages Executive to provide
the services to Circuit Test.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, and of the
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
1. Definitions. The following terms shall have the following meanings as
used in this Agreement:
"Company" means Parent, its successors and assigns, and any of
its present or future subsidiaries, and persons controlled by, controlling or
under common control with it.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor federal statute, and the rules and regulations of the
Securities and Exchange Commission thereunder.
"Executive" has the meaning set forth in the opening statement
to this Agreement.
7.7-1
"Expiration Date" has the meaning set forth in Section 4.
"Parent" has the meaning set forth in the opening statement to
this Agreement.
"Participate In" means, with respect to the Executive,
directly or indirectly, for his own benefit or for, with or through any other
person or entity, own, manage, operate, control, lend money to or participate in
the ownership, management, operation or control of, or be connected as a
director, officer, employee, partner, consultant, agent, independent contractor
or otherwise with, or acquiesce in the use of his name in or by.
"Proprietary Information" means information disclosed to or
known or developed by Executive about the Company's plans, strategies,
prospects, products, processes and services, including information and materials
relating to the Company's products, manufacturing procedures and techniques and
information relating to the Company's research, development, inventions,
manufacture, purchasing, accounting, engineering, marketing, merchandising and
selling, but excluding information that Executive conclusively establishes, (i)
was known, other than under an obligation of confidentiality or binder of
secrecy, to Executive prior to the engagement of Executive hereunder or as a
result of Consultant's employment by Circuit Test or any of its affiliates; (ii)
has passed into the public domain other than through acts or omissions
attributable to Executive; or (iii) was subsequently obtained other than under
an obligation of confidentiality or binder of secrecy from a third party not
possessing the information under an obligation of confidentiality from the
disclosing party.
2. Engagement; Duties. The Company will employ Executive as [TITLE] or
in such other executive capacity as the Company determines from time to time.
During his employment by the Company, Executive will faithfully and to the best
of his ability serve the Company perform the duties and bear the
responsibilities commensurate with his position as the Chief may request.
Executive will devote his entire working time, attention and energies to the
business of the Company. Executive will not at any time discredit the Company or
any of its products and services. Except for his involvement in personal
investments that do not require any significant services on his part, Executive
will not Participate In any other business activity or activities that require
significant personal services by Executive or that, in the judgment of the
Company, may conflict with the proper performance of Executive's duties
hereunder. Employee initially will be based in the Company's facilities in
______________. The Company may relocate Executive to other facilities of the
Company.
3. Compensation; Bonuses; Benefits; Incentives; Expenses.
(a) As compensation for Executive's services hereunder, the
Company will pay Executive a salary of $________ per year (the "Base Salary"),
prorated for any partial year, for each year during the term of this Agreement,
payable monthly in arrears or as the parties hereto may otherwise agree.
(b) The Company will award Executive bonuses in the same
amount, if any, as it awards to any other employee, who in the Company's
judgment holds a position with the
7.7-2
Company comparable to Executive's position and whose duties and responsibilities
and performance thereof are, in the Company's judgment, comparable to
Executive's duties, responsibilities and performance. If a bonus is so awarded
and has not been paid prior to termination or expiration of this Agreement
(other than in connection with a termination under Section 4(c) or 4(d)), the
Company will pay to Executive, within 90 days after the end of the calendar year
in which such termination or expiration occurs, a proportionate part of the
bonus so awarded based on the number of days elapsed during the calendar year in
which such termination or expiration occurs from January 1 of such year through
and including the date termination or expiration occurs.
(c) In addition to Base Salary, the Company will provide
Executive with the benefits of such insurance plans, hospitalization plans,
pension or profit sharing plans and other employee fringe benefit plans as are
customarily provided to employees of the Company and for which Executive is
eligible under the terms of such plans. Nothing in this Agreement shall require
the Company to adopt or maintain any such plan.
(d) In addition to the stock options the Company has awarded
Executive on or before the date hereof, the Company also may award or grant
Executive such stock options and other equity incentives as are approved by the
Company in its sole discretion. Nothing in this Agreement shall require the
Company to establish an equity incentive program or confer on Executive any
right to receive any stock option or other equity incentive not awarded on or
before the date hereof.
(e) The Company will reimburse Executive for the reasonable
out-of-pocket expenses incurred by Executive at the request of the Company in
the performance of his duties hereunder and such other expenses as may be
approved by the Company, in each case upon presentation to the Company of an
itemized accounting of such expenses with reasonable supporting data.
4. Term. This Agreement shall be effective on the date hereof and,
unless earlier terminated in accordance with Section 5, shall expire three years
from the date hereof (the "Expiration Date"). If this Agreement terminates or
expires, this Agreement shall forthwith become void and there shall be no
liability or obligation on the part of the parties hereto, except as otherwise
provided herein and except the provisions of this Section 4 and Sections 6, 7,
8, 9 and 10 will remain in full force and effect and survive any termination or
expiration of this Agreement.
5. Termination.
(a) If Executive dies, the Company will pay Executive's estate
the compensation that would otherwise have been payable to him for the month in
which his death occurs, and this Agreement will be deemed terminated on the last
day of such month.
(b) If Employee is prevented from performing his duties by
reason of illness or incapacity for a continuous period of 120 days, the Company
may terminate this Agreement
7.7-3
by notice to Employee or his duly appointed legal representative. For purposes
of this Section 5(b), a period of illness or incapacity will be deemed to have
occurred for a "continuous" period of 120 days notwithstanding Employee's
performance of his duties during a single period of less than 15 continuous days
during such 120 day period.
(c) The Company may terminate this Agreement at any time, with
cause, by giving written notice of termination to Executive. For purposes of
this Agreement, "cause" means any one or more of the following: (i) gross
negligence or willful misconduct that is injurious to the Company; (ii) conduct
on the part of Executive that would constitute a felony or other crime of moral
turpitude where committed; (iii) failure by Executive to perform assigned
services and duties under this Agreement, which failure continues for at least
thirty (30) days after notice in writing thereof is given by the Company; or
(iv) breach or threatened breach by Executive or Vendor of any provision of
Section 6, 7 or 8.
(d) (i) The Company may terminate this Agreement at any time,
without cause, by giving written notice of termination to Executive. In
connection with any termination by the Company pursuant to this Section
5(d), except as set forth below in clause (ii) of this Section 5(d),
the Company will not be obligated to pay any amount to other than the
amounts specified in Section 3(a) that have accrued through the date of
termination. The Company will make a termination payment to in
connection with a termination under this Section 5(d) if and only if
the conditions set forth below in Section 5(d)(ii) are satisfied, in
which event the amount of termination payments will be determined
pursuant to Section 5(d)(ii).
(ii) In order to receive termination payments under
this Section 5(d), Executive must sign a release, in form and substance
reasonably satisfactory to the Company, fully releasing the Company
(and its officers, directors, shareholders, employees and agents) from
any claim or cause of action that Executive may have against the
Company or such other persons relating in any way to this Agreement,
Executive's employment by the Company or any aspect of Employee's
relationship with the Company, through the date of such release. The
release will be signed at such times as are reasonably requested by the
Company in order for the release to be fully effective under state and
federal age discrimination laws and other laws that may impose similar
requirements, and, except to the extent that Executive may exercise his
rights as a shareholder of the Company, will prohibit Executive from
making any communications or taking other acts that may injure the
business, goodwill or reputation of the Company or its officers,
directors, shareholders, employees or agents. The Company will then
begin making termination payments at such time as any revocation period
set forth in the release will have expired. The amount of the
termination payments payable under this Section 5(d) will equal the
amounts that Executive would have received had this Agreement remained
in effect through twelve (12) months pay if terminated within the first
eighteen (18) months of this Agreement, six (6) months pay if
terminated after eighteen (18) months of this Agreement. Any payments
pursuant to this Section 5(d) will be paid in equal monthly
installments.
7.7-4
6. Non-Disclosure of Information.
(a) Except as specifically permitted by the Company in writing
and as is required for Executive to perform his services and duties hereunder,
Executive will not, during or prior to two years after the term of this
Agreement, disclose any Proprietary Information to any person or entity for any
purpose or use or permit the use of any Proprietary Information. In addition,
Executive will not, during and for two years after the termination or expiration
hereof, undertake on behalf of any other person or entity any commercial
project, employment or consultancy that would result in use or disclosure of
Proprietary Information or that would appear to involve such use or disclosure
unless the Company shall have consented in writing to such undertaking,
employment or consultancy. The Company may require that Executive and any person
or entity proposing to engage Executive in such a capacity provide appropriate
written assurances regarding the avoidance of any such conflict.
(b) Upon the termination or expiration of this Agreement,
Executive will deliver to the Company all notes, letters, prints, drawings,
records, forms, contracts, studies, reports, appraisals, financial data, lists
of names or other customer data, and any other articles or papers, computer
tapes and materials that have come into their possession by reason of
Executive's employment by the Company or Executive's prior employment by the
Circuit Test or its affiliates and subsidiaries, whether or not prepared by
Executive, and Executive will not retain memoranda or copies of any of those
items.
(c) Executive acknowledges that Proprietary Information of the
Company is unique and a valuable asset of the Company, the loss or unauthorized
disclosure or use of which would cause the Company irreparable harm.
7. Inventions.
(a) Executive hereby assigns and agrees to assign to the
Company, or to any person or entity designated by the Company, without royalty
or other consideration to Executive therefor other than the compensation set
forth in this Agreement, all of his right, title and interest in and to all
Inventions, to applications for United States of America and foreign letters
patent and United States of America and foreign letters patent granted upon
Inventions, and to all material related thereto subject to copyright. Executive
further acknowledges that all copyrightable materials developed or produced by
Executive within the scope of his engagement by the Company constitute works
made for hire.
(b) Executive will communicate promptly and disclose to the
Company, in such form as the Company may reasonably request, all information,
details and data pertaining to any Invention.
(c) At the request of the Company, Executive will do all acts
necessary or appropriate to secure for the Company the full benefits of each
Invention, and otherwise to carry into full force and effect the assignment
contained in Section 7(a). Such acts may include, giving testimony in support of
Executive's inventorship and promptly executing and delivering to the
7.7-5
Company such papers, instruments and documents, without expense to Executive, as
may be appropriate in the Company's opinion to apply for, secure, maintain,
reissue, extend or defend the Company's worldwide rights in Inventions or in any
or all United States of America and foreign letters patent.
8. Covenants Not to Compete or Interfere.
(a) In view of the unique and valuable services that Executive
has been engaged to provide to the Company and Executive's current and future
knowledge of the Company's Proprietary Information, Executive will not, (i)
during the term hereof and (ii) for two years after the termination or
expiration hereof (or, if this Agreement is terminated under Section 5(d) and
Executive receives termination payments, during the period such payments are
received), Participate In the electronic contract manufacturing or repair
business and any other business in which the Company is engaged, or has taken
material steps to be engaged, at the time of such termination or expiration.
Notwithstanding the foregoing, Executive will not be deemed to Participate In a
business merely because Executive owns less than 5% of the outstanding stock of
a corporation (measured in voting power or equity), if, at the time of its
acquisition by Executive, such stock is listed on a national securities exchange
or is reported on the Nasdaq National Market.
(b) During the period specified in Section 8(a) and in no
event less than two years after any termination or expiration of this Agreement,
Executive will not (i) directly or indirectly cause or attempt to cause any
employee of the Company to leave the employ of the Company; (ii) in any way
interfere with the relationship between the Company and any of its employees,
customers or suppliers; (iii) directly or indirectly hire any employee of the
Company to work for any entity of which Executive is an officer, director,
employee, Executive, independent contractor or owner of an equity or other
financial interest; or (iv) interfere or attempt to interfere with any
transaction in which the Company was involved during the term of this Agreement.
(c) If any restriction contained in this Section 8 is deemed
to be invalid, illegal or unenforceable by a court of competent jurisdiction by
reason of its duration, geographical scope or otherwise, then such provision
will be deemed reduced in extent, duration, geographical scope or otherwise by
the minimum reduction necessary to cause the restriction to be enforceable.
9. Injunctive Relief. Executive acknowledges that the breach or
threatened breach by Executive of any of the provisions of Section 6, 7 or 8
would cause the Company irreparable harm. Upon the breach or threatened breach
of any of the provisions of Section 6, 7 or 8, the Company will be entitled to
an injunction, without bond, restraining Executive from committing such breach.
This right shall not be construed to limit the Company's ability to obtain any
other remedies available to it for such breach or threatened breach, including
the recovery of damages.
10. General Provisions.
7.7-6
(a) Except as otherwise provided herein, any and all remedies
herein expressly conferred upon a party will be deemed cumulative with and not
exclusive of any other remedy conferred hereby, or by law or equity upon such
party, and the exercise by a party of any one remedy will not preclude the
exercise of any other remedy. No failure or delay on the part of any party
hereto in the exercise of any right hereunder shall impair such right or be
construed to be a waiver of, or acquiescence in, any breach of any
representation, warranty or agreement herein, nor shall any single or partial
exercise of any such right preclude other or further exercise thereof or of any
other right.
(b) This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado (without regard to the
principles of conflicts of law thereof). Except as otherwise provided herein, in
the event that any provision of this Agreement, or the application thereof,
becomes or is declared by a court of competent jurisdiction to be illegal, void
or unenforceable, the remainder of this Agreement will continue in full force
and effect and the application of such provision to other persons or
circumstances will be interpreted so as reasonably to effect the intent of the
parties hereto. Except as otherwise provided herein, the parties hereto further
agree to replace such void or unenforceable provision of this Agreement with a
valid and enforceable provision that will achieve, to the extent possible, the
economic, business and other purposes of such void or unenforceable provision.
7.7-7
(c) All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally or by commercial
delivery service, or mailed by registered or certified mail, return receipt
requested, or sent via facsimile, with confirmation of receipt, to the parties
hereto at the following address or at such other address for a party hereto as
shall be specified by notice hereunder:
(i) if to the Company, to:
EFTC Corporation
0000 Xxxx 0xx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx
Facsimile No.: (000) 000-0000
with a copy to:
Holme Xxxxxxx & Xxxx LLP
0000 Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
(ii) If to Executive:
=========================
=========================
(d) Except as otherwise provided herein, no party hereto may
assign its rights or delegate its obligations under this Agreement. The Company
may assign its rights and delegate its obligations under this Agreement to any
affiliate of the Company or to any person or entity that acquires all or
substantially all of the business of the Company whether through merger,
purchase of assets, purchase of stock or otherwise. This Agreement will be
binding upon and inure to the benefit of the parties and their respective legal
representatives, heirs, and permitted successors and assigns.
(e) This Agreement constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings, both written and oral, among the parties
hereto with respect to the subject matter hereof
(f) This Agreement may be amended or modified only in
writing signed by all of the parties hereto.
(g) When a reference is made in this Agreement to a
Section, such reference
7.7-8
shall be to a Section of this Agreement unless otherwise indicated. The words
"include," "includes" and "including" when used herein shall be deemed in each
case to be followed by the words "without limitation." The Section headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement. Whenever the context
may require, any pronoun shall include the corresponding masculine, feminine and
neuter forms.
(h) The parties hereto acknowledge that they have been
represented by counsel during the negotiation, preparation and execution of this
Agreement and, therefore, waive the application of any law, regulation, holding
or rule of construction providing that ambiguities in an agreement or other
document will be construed against the party drafting such agreement or
document.
(i) This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties hereto and delivered to the other parties hereto, it being
understood that all parties hereto need not sign the same counterpart.
(j) In the event of any proceeding to enforce this Agreement,
the prevailing party shall be entitled to receive from the losing party all
reasonable costs and expenses, including the reasonable fees of attorneys,
accountants and other experts, incurred by the prevailing party in investigating
and prosecuting (or defending) such action at trial or upon any appeal.
7.7-9
SIGNATURE PAGE--EMPLOYMENT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first written above.
Parent:
EFTC CORPORATION,
a Colorado corporation
By: _______________________
Circuit Test, Inc.,
a Florida corporation
By: _______________________
Executive:
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7.7-10
