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EXHIBIT 10.49
AGREEMENT
AGREEMENT made as of this 14th day of August, 1995, by and between
HADCO CORPORATION (the "Company") and XXXXXXX XXXXXXX ("Xxxxxxx").
WHEREAS, Xxxxxxx desires to retire from his positions as President and
Chief Executive Officer of the Company; and
WHEREAS, both parties have agreed to certain changes with respect to
Xxxxxxx'x future position with the Company; and
WHEREAS, both parties have further agreed to the terms and conditions
applicable to Xxxxxxx'x continued relationship with the Company.
NOW, THEREFORE, in consideration of the premises and other mutual
covenants contained herein, the receipt and legal sufficiency of which are
hereby acknowledged, Xxxxxxx and the Company agree as follows:
1. RESIGNATION AS OFFICER. Xxxxxxx hereby resigns as the Chief
Executive Officer and President of the Company effective at midnight October
28, 1995. From October 29, 1995 through January 31, 1996, Xxxxxxx will remain
an employee of the Company.
2. CONSULTING ARRANGEMENT. Effective February 1, 1996, through
January 31, 1998, Xxxxxxx shall serve as a consultant to the Company.
3. BONUS. The Company agrees to pay to Xxxxxxx a bonus for his
services rendered to the Company during fiscal year 1995, ending October 28,
1995. The bonus will be the same percentage of the bonus pools that are
available for senior executives of the Company in respect of fiscal year 1995
that Xxxxxxx received of senior executive bonus pools for fiscal year 1994.
The bonus pools for fiscal year 1995 have not yet been determined by the
Board of Directors of the Company, and the amount and nature of such pools
will be determined in the future in the sole discretion of the Board. The
bonus with respect to fiscal year 1995 shall be due and payable to Xxxxxxx on
February 1, 1997. Xxxxxxx shall not be eligible for any bonus award for any
period after October 28, 1995.
4. BASE COMPENSATION. Xxxxxxx will continue to receive the same
base salary as he currently receives ($200,000 per annum, payable at the rate
of $16,667 per month) through the end of his employment term, January 31,
1996. Payments of base salary shall be made monthly in accordance with the
Company's existing compensation arrangements. In the event of Xxxxxxx'x
death prior to January 31, 1996, all unpaid base compensation that would have
been due to Xxxxxxx hereunder shall be paid to his estate on the same schedule
as it would have been paid to Xxxxxxx had he been living.
5. FRINGE BENEFITS AND STOCK OPTIONS. Xxxxxxx and the Company agree
to cancel all outstanding unvested stock options currently issued to Xxxxxxx,
effective immediately. Xxxxxxx shall continue to have the right to exercise
all vested stock options, as provided in and
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subject to all the terms of the respective Option Plans, Option Agreements and
Amendments to Option Agreements.
Xxxxxxx shall have and enjoy all other standard fringe benefits such
as health insurance, life insurance and vacation pay (but not including such
items as stock options, bonuses and the like) as may be provided to senior
executives of the Company through the termination of his employment on January
31, 1996.
6. COMPENSATION AS CONSULTANT. During the term of the consulting
arrangement, from February 1, 1996 through January 31, 1998, Xxxxxxx shall be
paid at the rate of $208,160 per annum, payable in equal monthly installments
of $17,346.67 on or about the 15th of each month beginning on or about
February 15, 1996. Xxxxxxx acknowledges that during the period of the
consulting arrangement, he shall be an independent contractor of the Company
and not an employee and, accordingly, Xxxxxxx shall be solely responsible for
payment of all federal and state withholding taxes, FICA and medicare taxes,
and all other applicable employment related fees, taxes or charges.
So long as Xxxxxxx has not become employed by another employer
(including the assumption of any consulting position which is essentially
comparable to employment), then the Company agrees, in addition to paying
Xxxxxxx the base consultant compensation described above, to reimburse Xxxxxxx
for all reasonable and necessary out-of-pocket uninsured medical (including
dental and vision care) expenses he incurs during the period of the consulting
arrangement, for treatment of himself or his spouse, up to and including a
maximum cumulative aggregate of $200,000. Such medical (and dental and vision
care) expenses shall be reimbursed within a reasonable time after Xxxxxxx
provides appropriate documentation and evidence of the expenditure and of
eligibility for reimbursement for the expenditure. Xxxxxxx understands and
agrees that the Company will not provide any life or disability insurance or
health (medical, dental or vision) insurance coverage for him or his spouse
or any other covered dependent following termination of his employment on
January 31, 1996. Xxxxxxx agrees that the right to receive reimbursement for
the out-of-pocket uninsured medical expenses set forth above is in full and
complete substitution for all rights he has to continue health insurance
coverage under COBRA. Xxxxxxx specifically relinquishes and waives any claim
or right he may have, on behalf of himself and his spouse, to elect any
continued health insurance coverage under the provisions of COBRA, or under
any other federal or state statute or common law. Xxxxxxx agrees to give the
Company prompt notice of his commencement of any new employment (or
comparable consulting) position.
To the extent that the payment of uninsured medical expenses is
considered taxable income to Xxxxxxx, he shall be solely responsible for
payment of all applicable taxes. In the event of Xxxxxxx'x death prior to
January 31, 1998, all unpaid base consultant compensation that would have been
due to Xxxxxxx hereunder shall be paid to his estate on the same schedule as
it would have been paid to Xxxxxxx had he been living, and, if Xxxxxxx had
not become employed by another employer (or assumed a comparable consulting
position) prior to his death, his estate shall likewise be entitled to be
reimbursed for all uninsured medical expenses not previously reimbursed up to
the maximum cumulative aggregate of $200,000.
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Except as specifically set forth above with respect to reimbursement
for out-of-pocket uninsured medical expenses, Xxxxxxx shall be entitled to and
shall receive no fringe benefits from the Company during the term of the
consulting arrangement. Xxxxxxx specifically relinquishes and waives any
claim or right he may have to any other continued fringe benefit, including
without limitation, pension contributions, 401(k) contributions, health
(medical, dental and vision) and disability insurance, life insurance
coverage, and the like.
7. DUTIES. Xxxxxxx shall continue to perform his usual and
customary duties as Chief Executive Officer and President of the Company from
the effective date of this Agreement through October 28, 1995. Thereafter,
both during the term of Xxxxxxx'x continued employment by the Company, and
during the term of Xxxxxxx'x consulting relationship with the Company, Xxxxxxx
shall perform such duties and responsibilities as may be reasonably requested
of him by the President of the Company. Both parties anticipate that such
duties may include marketing and public relation services for the Company,
both domestically and internationally.
8. TRADING IN COMPANY STOCK. Xxxxxxx agrees to refrain from trading
in the Company's stock during any "quiet period", and agrees to continue to
comply with all filing requirements and other obligations imposed by various
securities laws. For purposes of this Agreement, trading in the Company's
stock includes, without limitation, exercising stock options through a
cashless exercise, pyramiding exercise, or other payment for the shares
purchased in stock of the Company, or selling or buying or agreeing to sell or
buy any shares or other securities.
9. CONFIDENTIALITY OF COMPANY INFORMATION. Xxxxxxx recognizes and
acknowledges that he has been and will be privy to confidential information
concerning the Company's business, including without limitation, financial
data, personnel data, computer programs, supplier lists, technology,
processes, methods, techniques, developments, inventions, improvements,
apparatus, products, policies, customer lists, research data, plans, know-how,
and trade secrets, as well as information relating to sales, costs, profits,
organization, customers, pricing and pricing methods and other general
business operations, which are valuable, special and unique assets of the
Company, access to and knowledge of which have been essential to the
performance of Xxxxxxx'x duties at the Company (hereinafter collectively the
"Confidential Information"). Xxxxxxx agrees that he will not, during the term
of his employment or consulting relationship or thereafter at any time,
disclose any of this Confidential Information to any person, firm,
corporation, association or other entity, excepting the authorized employees
and agents of the Company, nor make use of such Confidential Information
either during the term of his employment or consulting relationship or at any
time thereafter, for any purpose other than incident to his duties with the
Company. Without limiting the generality of the foregoing, Xxxxxxx expressly
agrees that such Confidential Information will not be used to compete directly
or indirectly with the Company.
Xxxxxxx agrees that all materials developed or existing at the
Company, all programs developed for customers or prospective customers, all
files, letters, memoranda, reports, records, data, specifications, customer
lists, proposals, contracts, computer programs or computer-generated data
(whether hard copy or machine-readable form) and other documentation are the
exclusive property of the Company. Xxxxxxx agrees, during the term of his
employment
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and consulting relationship with the Company, to keep and use such materials
only in connection with the performance of his duties with the Company.
Xxxxxxx agrees to return all such materials and any copies thereof
and all other tangible property of the Company immediately upon termination of
his employment with the Company, or with respect to any subsequent consulting
project, immediately upon termination of the specific consulting project.
10. CONFIDENTIALITY OF CUSTOMER AND SUPPLIER INFORMATION. Xxxxxxx
recognizes and acknowledges that certain confidential data of the Company's
customers and suppliers may be made available to or utilized by him in the
course of his employment or consulting relationship with the Company. Xxxxxxx
further acknowledges that the Company may, in certain cases, be subject to
non-disclosure or secrecy agreements with certain customers and suppliers.
Accordingly, Xxxxxxx expressly agrees and warrants that he will not, during
the term of or in the course of his employment or consulting relationship or
at any time thereafter, disclose any such confidential data of any customer
or supplier to others, excepting the authorized employees and agents of the
Company, nor make use of such confidential data either during the term of his
employment or consulting relationship or at any time thereafter, for any
purpose other than incident to his duties with the Company. Xxxxxxx further
agrees to sign any and all non-disclosure and confidentiality agreements
reasonably required by the Company's customers and suppliers and approved by
the Company's senior management.
Xxxxxxx agrees to return to the Company immediately upon the
termination of his employment or consulting relationship any and all copies of
all confidential data with respect to the Company's customers or suppliers,
including without limitation, materials secured from the Company's customers
or suppliers, programs developed for customers or suppliers, all files,
letters, memoranda, reports, records, data, specifications, customer lists,
proposals, contracts, computer programs or computer-generated data (whether
hard copy or machine-readable form) and other documentation relating to the
confidential information, data or technology of the Company's customers or
suppliers.
11. NON-COMPETITION. Through January 31, 1998, Xxxxxxx agrees that
he will not, without the Company's prior express written consent, engage in,
have an interest in, be employed by, or be in any way, directly or indirectly,
connected with as an individual proprietor, partner, stockholder, officer,
employee, director, representative, agent, joint venturer, investor, lender,
or in any other employment, consulting or ownership capacity whatsoever (other
than as the holder of not more than one [1%] percent of the total outstanding
stock of a publicly-held company) any business that is substantially similar
to or competitive with that in which the Company is engaged or is
contemplating engaging as of January 31, 1996.
Without limiting the generality of the foregoing, the Company agrees
that Xxxxxxx may continue to serve on the Board of the IPC, and that such
service by itself will not violate the non-competition provisions of this
Agreement.
12. NON-SOLICITATION. Through January 31, 1999, Xxxxxxx agrees that
he will not, directly or indirectly, (a) employ, retain or engage any person
or entity who has worked for or with the Company as an employee or consultant
during the term of Xxxxxxx'x employment or during the term of Xxxxxxx'x
consulting arrangement; (b) recruit, solicit or induce, or attempt to
recruit, solicit or induce, any employee or consultant of the Company to
terminate his, her or its
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employment or consultant relationship with the Company; (c) solicit,
divert or take away, or attempt to solicit, divert or take away, the business
or patronage of any of the customers or accounts, or prospective customers or
accounts, of the Company which were contacted, solicited or served during the
term of Xxxxxxx'x employment with the Company or during the term of his
consulting arrangement with the Company; or (d) induce or attempt to induce
any customer, vendor, or account of the Company to reduce its business with,
or to cease its business with, the Company.
13. REMEDIES. Both parties agree that the restrictions contained in
Sections 9, 10, 11 and 12 are necessary for the protection of the business and
goodwill of the Company, and they are considered by Xxxxxxx to be reasonable
for such purposes. Xxxxxxx agrees that, in the event of a breach or
threatened breach by him of the provisions of Sections 9, 10, 11 or 12, the
Company will suffer irreparable harm which cannot be adequately compensated by
a payment of money damages. Accordingly, Xxxxxxx agrees that, in the event of
such a breach or threatened breach by him, the Company shall be entitled to
injunctive relief, both preliminarily and permanently, and to specific
enforcement of the provisions of Sections 9, 10, 11 and 12. Nothing contained
in this section shall be construed as prohibiting the Company from pursuing
any other remedies available to it for such breach or threatened breach,
including recovery of monetary damages from Xxxxxxx or others.
Xxxxxxx agrees, in addition to and not in lieu of any other remedies
the Company may have, that in the event he violates any of the provisions of
Sections 9, 10, 11 and 12, he shall forfeit entitlement to any additional
compensation or benefit from the Company, including without limitation, any
base salary not already earned and paid, any consulting fee not already paid,
any bonus amount not already paid, any automobile allowance not already paid,
any uninsured medical expense not already paid, any other fringe benefit
contribution not already paid or received, and any stock option not already
exercised.
14. SEVERABILITY. If any restriction set forth in Sections 9, 10, 11
or 12 are found by any court of competent jurisdiction to be unenforceable
because it extends for too long a period of time or over too great a range of
activities or in too broad a geographic area, it shall be interpreted to
extend only over the maximum period of time, range of activities or geographic
area as to which it may be enforceable. If any provision of this Agreement
shall be held by a court of competent jurisdiction to be illegal or invalid,
the validity of the remaining parts, terms or provisions shall not be affected
thereby and said illegal or invalid part, term or provision shall be deemed
not to be part of this Agreement, while the remaining provisions shall
continue in full force and effect.
15. PUBLICATION OF THIS AGREEMENT. Both parties agree that the terms
and contents of this Agreement, and the contents of negotiations and
discussions resulting in this Agreement shall be maintained in confidence by
Xxxxxxx, the Company, and their respective agents and representatives, and
none of the above shall be disclosed except (i) to the extent required by
federal or state law, (ii) as otherwise agreed to in writing by both parties,
(iii) to enforce this Agreement, or (iv) a press release by the Company in a
form deemed by the Company in good faith to be appropriate after consulting
with Xxxxxxx and in any SEC filing by the Company that
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is deemed appropriate by the Company, including without limitation in its
proxy statement, Form 8-K, Form 10-Q or Form 10-K, or any exhibits to any
of the foregoing.
Xxxxxxx agrees that he will speak positively about the Company and its
activities, and endorse and support the business and products of the Company
whenever the opportunity arises. Xxxxxxx further agrees that he will not in
any way verbally or in writing communicate statements or opinions which would
be derogatory to the reputation or the business and financial integrity of
the Company, or do any other act which might be detrimental to the Company.
Each party agrees to cooperate in the drafting and issuance of an
appropriate press release to be issued contemporaneously with the execution of
this Agreement.
16. ACKNOWLEDGMENTS AND RELEASE. Xxxxxxx acknowledges that he has
been given twenty-one (21) days to consider this Agreement and that the
Company has advised him to consult with an attorney of his own choosing prior
to signing this Agreement. Xxxxxxx further acknowledges that he has been
informed that since he is 40 years of age or older, he might have specific
rights and/or claims under the Age Discrimination in Employment Act of 1967,
as amended. In consideration for the payments and benefits described herein
and the opportunity to serve as consultant as described herein, Xxxxxxx
specifically waives such rights and/or claims to the extent that such rights
and/or claims arose prior to the date this Agreement was executed. Xxxxxxx
may revoke this Agreement for a period of seven (7) days after the execution
of his Agreement, and the Agreement shall not be effective or enforceable
until the expiration of this seven (7) day revocation period. Xxxxxxx affirms
that no other promises or agreements or any kind have been made to or with him
by any person or entity whatsoever to cause him to sign this Agreement, and
that he fully understands the meaning and intent of this Agreement. Xxxxxxx
states and represents that he has had an opportunity to fully discuss and
review the terms of this Agreement with an attorney. Xxxxxxx further states
and represents that he has carefully read this Agreement, understands the
contents herein, freely and voluntarily assents to all of the terms and
conditions hereof, and signs his name as his own free act and deed. In
exchange for the benefits provided herein and the opportunity to serve as
consultant as described herein, Xxxxxxx for himself, his representatives,
agents, heirs and/or estate, successors and assigns, hereby absolutely and
unconditionally releases and forever discharges the Company, its subsidiaries
and/or successors, assigns, directors, stockholders, officers, employees
and/or agents, both individually and in their official capacities with the
Company, from any and all actions or causes of action, suits, claims,
complaints, contracts, liabilities, agreements, promises, debts and damages,
whether existing or contingent, known or unknown, which arose out of his
employment with and/or separation from employment from the Company and which
involve events from the beginning of time to the effective date of this
Agreement. This release is intended by Xxxxxxx to be all encompassing and to
act as a full and total release of all claims that he may have or may have had
against the Company, its subsidiaries and/or successors, assigns, directors,
stockholders, officers, employees and/or agents, both individually and in
their official capacities with the Company, including but not limited to any
federal or state law or regulation dealing with either employment or
employment discrimination such as those laws or regulations concerning
discrimination on the basis of age, race, color, religion, creed, sex, sexual
orientation, national origin, handicap status, disability status or status as
disabled or Vietnam era veteran; any contract, whether oral or written,
express or implied, or common law.
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17. ENTIRE AGREEMENT. This Agreement contains and constitutes the
sole and entire understanding and agreement between the parties with respect
to Xxxxxxx'x employment, termination of employment, compensation, and
consulting arrangements, and supercedes and terminates all previous oral or
written negotiations, agreements (including without limitation the Employment
Agreement between the Company and Xxxxxxx dated as of January 21, 1994, as
amended, and all rights, obligations and liabilities thereunder), commitments,
and arrangements between the parties; provided, however, that as amended in
accordance with the provisions hereof, the various outstanding Stock Option
Agreements shall remain in force and effect. This Agreement may not be
amended or modified or waived, in whole or in part, except by a writing signed
by both parties.
18. APPLICABLE LAW. This Agreement shall be governed by and
construed and enforced in accordance with the substantive law of the
Commonwealth of Massachusetts, without giving effect to the choice of law
provisions thereof.
19. MISCELLANEOUS. This Agreement may be executed in any number of
counterparts, and each executed counterpart shall have the same force and
effect as the original instrument, as if all parties to the counterparts have
signed the same instrument. This instrument shall not be construed for or
against any party because that party's legal representative drafted the
Agreement, or any portion of the Agreement. Section headings are for
convenience only and should not be considered in the interpretation of this
Agreement. This Agreement shall be binding upon, and inure to the benefit of
and be enforceable by each of the parties hereto, their respective heirs,
legal representatives, successors and assigns.
IN WITNESS WHEREOF, the parties hereto have set their hands this 14th
day of August, 1995.
Dated: 8/11/95 /s/ Xxxxxxx Xxxxxxx
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XXXXXXX XXXXXXX
HADCO CORPORATION
Dated: 8/18/95 /s/ Xxxxxx X. Xxxxx
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