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EXHIBIT 10.50
AGREEMENT AND GENERAL RELEASE
Manufacturers' Services Ltd., 000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx
00000, and its affiliates, subsidiaries, divisions, successors and assigns
(collectively referred to throughout this Agreement as "Employer"), and Xxxxx
Xxxxx, ("Employee") agree that:
1. TERMINATION DATE. The parties consider Employee's separation of
employment to be in accordance with Section 5.4 of Employee's Employment
Agreement dated as of January 2, 2002 ("Employment Agreement"). Employee's
termination date shall be January 2, 2003 (the "Termination Date").
a. Employee will be paid all accrued and unused vacation as of the
Termination Date, in the first paycheck following the Termination Date.
b. Employee's participation in Employer's short and long term
disability insurance plans will terminate on the Termination Date.
c. Employee shall receive a 401(k) match for 2002.
2. CONSIDERATION. In exchange for Employee's agreement to the terms
of this Agreement and General Release ("Agreement"), Employer shall do the
following:
a. Employer shall, in accordance with Section 5.4(a) of the
Employment Agreement, pay base salary continuation and Target
Bonus to Employee for a twelve (12) month period following the
Termination Date, less legally required and
voluntarily-authorized deductions, for a total sum of One Million
Fifty Thousand Dollars and No Cents ($1,050,000.00). This amount
will begin to be paid in accordance with Employer's payroll
practices and procedures following the Effective Date of this
Agreement and shall terminate in the event of any material breach
by Employee of Sections 6.1, 6.2 and 7 of the Employment
Agreement.
b. The Employee shall be eligible for a bonus for the 2002 fiscal
year in the amount of One Hundred Seventy Five Thousand Dollars
and No Cents ($175,000.00) in accordance with the terms of the
Employer's Cash Incentive Compensation Plan
c. In the event that a "Change in Control" occurs on or before
January 2, 2003, the Employee may elect to receive those payments
specified in Section 6 of the Change in Control Agreement between
the Employer and Employee dated October 19, 2000 in lieu of the
payments specified in
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Section 2(a) of this Agreement. In the event of such election,
all other terms and conditions of this Agreement shall remain in
full force and effect. For purposes of this provision, the
definition of "Change in Control" set forth in Section 15.8 of
the Change in Control Agreement shall govern.
d. If Employee elects to continue medical and dental coverage under
Employer's medical and dental plans in accordance with the
continuation requirements of COBRA, Employer will, in accordance
with Section 5.4 (b) of the Employment Agreement, pay for the
associated COBRA costs through June 30, 2004. For the subsequent
six (6) month period, Employer will reimburse Employee for costs
associated with Employee's family health, dental and vision
insurance for substantially similar coverage as was provided to
Employee under COBRA in an amount not to exceed $2,000 per month.
To initiate COBRA, Employee must return the COBRA communication
that will be forwarded, by The Xxxxxxx Group, to Employee's home
address.
e. The Employer affirms that all restrictions set forth in the
Amended and Restated Stockholder's Agreement dated June 22, 2000
regarding the Employee's sale of Company stock have lapsed.
Employee's current Company stock options which have not yet
vested as of the Termination Date, shall become vested on the
Termination Date.
f. Employee shall have twelve (12) months from the Termination Date
to exercise all vested options.
g. The Employer agrees to transfer to the employee ownership of the
laptop computer and printer that the Employee has been using
excluding licensed software which the Employer is not authorized
to transfer to the Employee. For tax withholding purposes, the
agreed fair market value of such equipment is $500.
h. Until January 2, 2004, to further ease Employee's transition, the
Employer agrees to provide office space and limited
administrative services to Employee for his use.
i. In the event of Employee's death, all payments and other benefits
due to the Employee under the terms of this Agreement shall be
transferred to his estate.
3. NO CONSIDERATION ABSENT EXECUTION OF THIS AGREEMENT. Employee
understands and agrees that Employee would not receive all of the monies and/or
benefits specified in paragraph "2" above, except for Employee's execution of
this Agreement and General Release and the fulfillment of the promises contained
herein.
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4. REVIEW PERIOD. Employee has until twenty-one days from date of
delivery to consider this Agreement. Employee is advised to consult with an
attorney of Employee's choosing prior to executing this Agreement.
5. REVOCATION. Employee may revoke this Agreement for a period of
seven (7) days following the day Employee executes this Agreement. Any
revocation within this period must be submitted, in writing, to Xxxx Xxxxxxx and
state, "I hereby revoke my acceptance of our Agreement and General Release." The
revocation must be personally delivered to Xxxx Xxxxxxx or his designee, or
mailed to:
Xxxx Xxxxxxx
Vice President and General Counsel
Manufacturers' Services Ltd
000 Xxxxx Xxx Xxxxx 000
Xxxxxxx, XX 00000
If Employee mails a revocation, it must be postmarked within seven (7) days of
execution of this Agreement. This Agreement shall not become effective or
enforceable until the revocation period has expired (the "Effective Date"). If
the last day of the revocation period is a Saturday, Sunday, or legal holiday in
Massachusetts, then the revocation period shall not expire until the next
following day which is not a Saturday, Sunday, or legal holiday.
6. GENERAL RELEASE OF CLAIMS. In consideration of the provisions set
forth in this Section 6 and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the Employee knowingly and
voluntarily, unconditionally and irrevocably releases, remises and forever
discharges the Employer, its parent corporation, affiliates, subsidiaries,
divisions, successors and assigns and the current, former and future employees,
attorneys, officers, directors and agents thereof (collectively referred to as
"Releasees"), of and from any and all actions or causes of action, suits,
claims, complaints, cross-claims, motions, counterclaims, charges, dues, costs,
expenses, obligations, contracts, liabilities, accounts, covenants, agreements,
promises, debts, damages, judgments, rights and demands, of any nature
whatsoever, whether existing or contingent, known or unknown, in law and in
equity, which Employee has or may have against Releasees as of the date of
execution of this Agreement, including, but not limited to any alleged violation
of:
- The National Labor Relations Act, as amended;
- Title VII of the Civil Rights Act of 1964, as amended;
- Sections 1981 through 1988 of Title 42 of the United States Code, as
amended;
- The Employee Retirement Income Security Act of 1974, as amended;
- The Immigration Reform Control Act, as amended;
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- The Americans with Disabilities Act of 1990, as amended;
- The Age Discrimination in Employment Act of 1967, as amended;
- The Fair Labor Standards Act, as amended;
- The Occupational Safety and Health Act, as amended;
- The Massachusetts Law Against Discrimination, X.X. x. 151B;
- The Massachusetts Wage and Hour Laws, X.X. x. 151;
- The Massachusetts Civil Rights Act, X.X. x. 93;
- The Massachusetts Privacy Statute, X.X. x. 214, Section 1B;
- The Massachusetts Wage Payment Statute, X.X. x. 149, Section 148 et
seq.;
- The Massachusetts Sexual Harassment Statute, X.X. x. 214 Section 1C;
- The Massachusetts Consumer Protection Act, X.X. x. 93A;
- The Massachusetts Civil Rights Act, X.X. x. 12, Section 11;
- The Massachusetts Equal Rights Act, X.X. x. 93;
- Equal Pay Law for Massachusetts, as amended;
- Any other federal, state or local civil or human rights law or any
other local, state or federal law, regulation or ordinance;
- Any public policy, contract, tort, or common law; or
- Any allegation for costs, fees, or other expenses including attorneys'
fees incurred in these matters.
This release is intended by the Employee to be all encompassing and to
act as a full and total release of any claims that the Employee may have or
has had against the Releasees from the beginning of the world up to and
including the date of this Agreement, except for any claims for breach of
this Agreement.
In consideration of the provisions set forth in this Section 6 and
other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the Employer unconditionally and irrevocably
releases, remises and forever discharges the Employee from any and all
actions or causes of action, suits, claims, complaints, cross-claims,
motions, counterclaims, charges, dues, costs, expenses, obligations,
contracts, liabilities, accounts, covenants, agreements, promises, debts,
damages, judgments, rights and demands, of any nature whatsoever, whether
existing or contingent, known or unknown, in law and in equity, including,
but not limited to: (i) any and all claims which arise out of or in
connection with Employee's employment with, change in employment status
with, and/or termination of employment from the Employer; and (ii) any and
all claims arising out of or in connection with the Employee's status as an
officer or
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employee of the Employer. This release is intended by the Employer to be
all encompassing and to act as a full and total release of any claims that
the Employer may have or has had against Employee, as an officer and
employee, from the beginning of the world up to and including the date of
this Agreement, provided, however, that Employee is not in any way released
as: (i) to the matter of In Re Initial Public Offering Securities
Litigation: Xxx Xxxxxxx on behalf of himself and all others similarly
situated vs. Manufacturers' Services, Ltd; Xxxxx Xxxxx, Xxxxxx Xxxxxxx,
Bank of America Securities LLC and et al, docket number 01 CV11000SAS,
which is currently pending in the United States District Court for the
Southern District of New York and in which Employee is individually named
as a defendant; (ii) to any claims for indemnity, contribution or similar
relief against the Employee that arise out of claims, cross-claims or
counterclaims asserted against the Employer by a third party, (ii) to any
claim(s) of gross negligence, fraud, dishonesty or intentional acts,
omissions or misconduct, or (iii) to any claim for breach of this
Agreement. Nothing contained in this Agreement shall be deemed to affect in
any manner any rights to indemnification or contribution to which Employee
may be entitled to under the Employer's charter, bylaws, policies or
otherwise under law.
7. AFFIRMATIONS. The Parties each affirm that they have not filed,
caused to be filed, or presently is a party to any claim, complaint, or action
against the other Party in any forum or form. Employee further affirms that
Employee has been paid and has received all leave (paid or unpaid),
compensation, wages, bonuses, commissions, and/or benefits to which Employee may
be entitled and that no other leave (paid or unpaid), compensation, wages,
bonuses, commissions and/or benefits are due to Employee, except as provided in
this Agreement. Employee furthermore affirms that Employee has no known
workplace injuries or occupational diseases and has been provided and/or has not
been denied any leave requested under the Family and Medical Leave Act.
8. CONFIDENTIALITY. Employee agrees not to disclose any information
regarding the existence or substance of this Agreement, except to an attorney
and/or tax advisor with whom Employee chooses to consult regarding Employee's
consideration of this Agreement.
9. COOPERATION. Employee shall cooperate fully with Employer in the
defense or prosecution of any claims or actions now in existence or which may be
brought in the future against or on behalf of Employer which relate to events or
occurrences that transpired while Employee was employed by Employer. Employee's
full cooperation in connection with such claims or actions shall include, but
not be limited to, being available to meet with counsel to prepare for discovery
or trial and to act as a witness on behalf of Employer. During and after
Employee's employment, Employee shall also cooperate fully with Employer in
connection with any investigation or review by any federal, state or local
regulatory authority as any such investigation relates to events or occurrences
that transpired while Employee was employed with Employer. Employee further
agrees to execute and deliver to Employer any security and other agreements,
instructions, statements, certificates, replacement option grants, or other
documents, and take any and all such other actions that relate to matters that
were within the scope of
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Employee's authority while an employee or officer of Employer, as may be
requested by Employer, to effect, confirm or further assure or protect
Employer's interests provided, however, that nothing herein shall be interpreted
so as to limit, in any way, Employee's rights as a stockholder of the Employer.
Employer will reimburse Employee for all documented out-of-pocket expenses
necessarily incurred as a result of such cooperation, including travel, lodging
and meals. The consideration to be paid in accordance with this Agreement shall
terminate in the event of Employee's failure to cooperate as required under this
paragraph.
Nothing herein shall prohibit or bar either party from providing
truthful testimony in any legal proceeding or in communicating with any
governmental agency or representative or from making any truthful disclosure
required, authorized or permitted under law; provided, however, that in
providing such testimony or making such disclosures or communications, both
parties will use their best efforts to ensure that this Section is complied with
to the maximum extent possible.
10. NO EFFECT. Nothing in this Agreement shall discontinue, modify or
affect in any way Employee's right to any indemnification, reimbursement,
insurance coverage, subrogation or contribution to which Employee may otherwise
be entitled under the Employer's Director and Officer Liability Insurance
Policy, the Employer's charter, bylaws, policies and practices, or otherwise
under applicable law.
11. NO FUTURE APPLICATION FOR EMPLOYMENT. Employee shall not apply in
the future for employment with Employer.
12. GOVERNING LAW AND INTERPRETATION. This Agreement shall be
governed and conformed in accordance with the laws of the Commonwealth of
Massachusetts without regard to its conflict of laws provisions. In the event
Employee breaches any provision of this Agreement, Employee and Employer affirm
that either may institute an action to specifically enforce any term or terms of
this Agreement. Venue for all such actions will be in the state or federal
courts of the Commonwealth of Massachusetts. Should any provision of this
Agreement be declared illegal or unenforceable by any court of competent
jurisdiction and cannot be modified to be enforceable, such provision shall
immediately become null and void, leaving the remainder of this Agreement in
full force and effect.
13. NON-ADMISSION OF WRONGDOING. Employee agrees that neither this
Agreement nor the furnishing of the consideration for this Release shall be
deemed or construed at anytime for any purpose as an admission by Employer of
any liability or unlawful conduct of any kind. Employee further agrees that he
will not disparage Employer by stating, suggesting, implying, doing or saying
anything that could in any way be harmful to the business interests or good will
of Employer.
Employer agrees that neither this Agreement nor the furnishing of the
consideration for this Release shall be deemed or construed at any time for any
purpose as an admission by Employee of any liability or unlawful conduct of any
kind. Employer further
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agrees that it will cause authorized Employer spokespersons and executive
officers in the course of performance of their duties for the Employer, not to
disparage Employee by stating, suggesting, implying, doing or saying anything
that could in any way be harmful to the business or personal interests of
Employee.
14. AMENDMENT. This Agreement may not be modified, altered or changed
except upon express written consent of both Parties wherein specific reference
is made to this Agreement.
15. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement
between the parties hereto, and fully supersedes any prior agreements or
understandings between the parties, except the Non-Competition Agreement.
Employee acknowledges that Employee has not relied on any representations,
promises, or agreements of any kind made to Employee in connection with
Employee's decision to sign this Agreement, except for those set forth in this
Agreement.
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EMPLOYEE ACKNOWLEDGES THAT EMPLOYEE HAS BEEN ADVISED IN WRITING THAT
EMPLOYEE HAS AT LEAST TWENTY-ONE (21) DAYS TO CONSIDER THIS AGREEMENT AND
GENERAL RELEASE AND IS ADVISED TO CONSULT WITH AN ATTORNEY PRIOR TO SIGNING THIS
AGREEMENT AND GENERAL RELEASE.
HAVING ELECTED TO EXECUTE THIS AGREEMENT AND GENERAL RELEASE, TO
FULFILL THE PROMISES SET FORTH HEREIN, AND TO RECEIVE THEREBY THE CONSIDERATION
SET FORTH IN PARAGRAPH "2" ABOVE, EMPLOYEE FREELY AND KNOWINGLY, AND AFTER DUE
CONSIDERATION, ENTERS INTO THIS AGREEMENT AND GENERAL RELEASE INTENDING TO
WAIVE, SETTLE AND RELEASE ALL CLAIMS EMPLOYEE HAS OR MIGHT HAVE AGAINST
EMPLOYER.
IN WITNESS WHEREOF, the parties hereto knowingly and
voluntarily-executed this Agreement and General Release as of the dates set
forth below:
EMPLOYEE MANUFACTURERS' SERVICES LTD.
/s/ Xxxxx Xxxxx By: /s/ Xxxx Xxxxxxx
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Xxxxx Xxxxx Xxxx Xxxxxxx
Vice President and General
Counsel
12/18/02 12/18/02
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Date Date
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