EXHIBIT 10.3
SOLECTRON CORPORATION
XXXXX X. XXXXXX EMPLOYMENT AGREEMENT
This Agreement is made by and between Solectron Corporation (the
"Company"), and Xxxxx X. Xxxxxx ("Executive") effective as of December 15, 2003
(the "Effective Date").
1. Duties and Scope of Employment.
(a) Positions and Duties. Executive will serve as the Company's
Executive Vice President, Engineering. Executive will render such business and
professional services in the performance of Executive's duties, consistent with
Executive's position within the Company, as will reasonably be assigned to
Executive by the Company's Chief Executive Officer (the "CEO") or the CEO's
designate. The period of Executive's employment under this Agreement is referred
to herein as the Employment Term.
(b) Obligations. During the Employment Term, Executive will devote
Executive's full business efforts and time to the Company. For the duration of
the Employment Term, Executive agrees not to actively engage in any other
employment, occupation or consulting activity for any direct or indirect
remuneration without the prior approval of the CEO and the Board of Directors of
the Company (the "Board"); provided, however, that Executive may, without the
prior approval of the CEO and the Board, serve in any capacity with any civic,
educational or charitable organization, provided such services do not interfere
with Executive's obligations to Company.
2. Employee Benefits. During the Employment Term, Executive will be
eligible to participate in accordance with the terms of all Company employee
benefit plans, policies and arrangements that are applicable to other senior
executives of the Company, as such plans, policies and arrangements and terms
may exist from time to time.
3. At-Will Employment. Executive and the Company agree that Executive's
employment with the Company constitutes "at-will" employment. Executive and the
Company acknowledge that this employment relationship may be terminated at any
time, upon written notice to the other party, with or without good cause or for
any or no cause, at the option either of the Company or Executive. However, as
described in this Agreement, Executive may be entitled to severance benefits
depending upon the circumstances of Executive's termination of employment.
4. Compensation.
(a) Base Salary & Car Allowance. During the Employment Term, the
Company will pay Executive an annual salary of $420,000 as compensation for his
services (the "Base Salary"). The Base Salary will be paid through payroll
periods that are consistent with the Company's normal payroll practices, but in
all events will not be less frequent than once per month.
Executive's Base Salary will be subject to review and adjustments will be made
based upon the Company's normal performance review practices.
(b) Bonuses.
(i) Relocation Bonus. Executive will receive a bonus as the
result of executing this Agreement in the gross amount of $200,000 (the
"RELOCATION BONUS") to be paid within thirty (30) days of the Effective Date.
If, before the third annual anniversary of the Effective Date, the Executive's
employment is terminated by the Company for Cause (as defined below), or by the
Executive without Good Reason (as defined below), the Executive shall be
required to repay the amount of such RELOCATION BONUS to the Company in full
within 30 days following such termination date.
(ii) Annual Bonus. Executive's annual target bonus (pre-tax)
will be 120% of his Base Salary ("TARGET BONUS") with an annual maximum bonus of
200% of his annual Base Salary. Executive's annual bonus will be payable upon
achievement of performance goals established by the Compensation Committee of
the Board (the "COMMITTEE"). Notwithstanding anything in the foregoing to the
contrary, Executive's annual bonus (pre-tax) for his first year of employment
will be guaranteed to equal at least $504,000, and shall be determined in
accordance with the following two sentences. For purposes of the Company's
fiscal year ending August 27, 2004, the Executive shall receive a pro rata
annual bonus equal to (x) the greater of (i) $504,000 or (ii) the full year
actual annual bonus computed under the incentive compensation plan approved by
the COMMITTEE, multiplied by (y) a fraction, the numerator of which is the
number of days between and including the Effective Date and August 27, 2004 and
the denominator of which is 364 (the "Fiscal 2004 Fraction"). For purposes of
the Company's fiscal year ending August 26, 2005, the Executive shall receive an
annual bonus equal to the greater of (x) (i) $504,000 multiplied by the
difference between 1 and the Fiscal 2004 Fraction (the "Fiscal 2005 Fraction")
plus (ii) the actual full year annual bonus (if any) multiplied by the
difference between 1 and the Fiscal 2005 Fraction or (y) the actual full year
annual bonus computed under the incentive compensation plan approved by the
COMMITTEE. Subject to the above, Executive may participate in any bonus plan or
similar arrangement the Company may have in place that are applicable to other
senior executives of the Company, on such terms and conditions as the Committee
may determine from time to time in its discretion.
(c) Stock Options.
(i) Non-Qualified Stock Option. On the Effective Date,
Executive will be granted (conditioned upon execution of this Agreement) a
non-statutory stock option to purchase 400,000 shares of the Company's Common
Stock (the "COMMON STOCK") at an exercise price equal to the fair market value
per share as of the close of trading on the New York Stock Exchange on the date
of grant (the "OPTION"). The Option will vest as to 1/48th of the shares subject
to the Option upon the Executive's completion of each full month of Service (as
defined below) over the forty-eight (48)-month period measured from the date of
grant. Notwithstanding anything in the foregoing to the contrary, the Shares
subject to the Option shall become fully vested upon the occurrence of a Change
in Control. The Option may be granted from one of the Company's stock option
plans or pursuant to a stand-alone stock option agreement, or a combination of
both. As a
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result, the Option will be subject to the terms, definitions and provisions of
the Company's stock option plan under which it is granted, if any, (the "OPTION
PLAN") and the stock option agreement by and between Executive and the Company
(the "OPTION AGREEMENT"), both of which documents are incorporated herein by
reference; provided, however, that the terms and provisions of the Option
Agreement shall be substantially the same as if the portion of the Option
represented by such Option Agreement had been granted under the Option Plan. The
Company shall take such actions as are necessary to register the shares relating
to such Options under the applicable securities laws on or before the date such
Options become exercisable.
(b) Restricted Stock. Immediately upon the commencement of
employment, the Company will issue Executive a thirty day option to purchase
250,000 shares of Common Stock at a purchase price of $0.001 per share (the
"RESTRICTED STOCK"). In the event Executive's SERVICE (as defined below)
terminates for any reason, and subject to the provisions of this Agreement, the
Company will have the right to repurchase the Restricted Stock at $0.001 per
share (the "REPURCHASE RIGHT") as and to the extent set forth herein and in the
restricted stock agreement by and between Executive and the Company (the
"RESTRICTED STOCK AGREEMENT"), which is hereby incorporated by reference.
Subject to the accelerated vesting provisions set forth in the RESTRICTED STOCK
AGREEMENT, all of the Restricted Stock will vest and be released from the
Company's Repurchase Right upon the Executive's continuation in SERVICE through
the fifth anniversary of the commencement of Executive's employment with the
Company. Notwithstanding anything in the foregoing to the contrary, all of the
Restricted Stock will vest and be released from the Company's Repurchase Right
in the event the Company terminates Executive without "Cause" (as defined
below).
(c) Future Option Grants. Executive acknowledges that the next
scheduled equity award date for all senior executives is September 2005, but the
COMMITTEE is not precluded from making earlier awards if it chooses to do so in
its sole discretion. The COMMITTEE will determine in its discretion whether
Executive will be granted any option or options and the terms of any such option
or options in accordance with the terms of any applicable plan or arrangement
that may be in effect from time to time.
(d) Other Benefits. Executive will be provided with a monthly car
allowance of $500.00, which will be paid in the second paycheck of each month.
In addition, Executive will be eligible to participate in Company's other
executive benefits programs as and to the extent they are in effect for the
Company's other senior executives from time to time.
5. Severance.
(a) Involuntary Termination other than for Cause, Death or
Disability Prior to a Change of Control or After Eighteen Months Following a
Change of Control. If the Company terminates Executive's employment with the
Company without Executive's consent and for a reason other than Cause, Executive
becoming Disabled or Executive's death, any of which occur prior to a Change of
Control, or after eighteen (18) months following a Change of Control, and
provided that Executive signs and delivers to the Company a separation agreement
and release of claims in a form satisfactory to the Company (including
non-solicitation, non-disparagement, and non-competition
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provisions covering 24 months post-termination), then promptly following such
termination of employment, or, if later, the effective date of the separation
agreement and release of claims, then Executive will receive (in addition to all
accrued salary, vacation, expense reimbursements and any other benefits due to
Executive through the date of termination of employment in accordance with the
Company's then existing employee benefit plans, policies and arrangements, and
such other compensation or benefits from the Company as may be required by law
(for example, "COBRA" coverage under Section 4980B of the Internal Revenue Code
of 1986, as amended) the following severance from the Company, conditional upon
Executive's compliance with the terms and conditions of this Agreement and of
the separation agreement and release of claims:
(i) Severance Payment. Executive will be paid continuing
payments of severance pay at a rate equal to Executive's Base Salary rate, as
then in effect, and Executive's target bonus for the year of termination, for a
period of twelve (12) months plus one additional month for every full year
Executive has been employed with the Company as of the date of such termination,
not to exceed twenty-four (24) months (the "Severance Payment Period"), from the
date of such termination, to be paid periodically in accordance with the
Company's normal payroll policies; provided, however, that if during the
Severance Payment Period Executive engages in Competition (as defined below) or
breaches the Non-Solicitation covenants set forth in this Agreement or in the
separation agreement, Executive shall not be entitled to such severance
payments, all severance payments pursuant to this subsection will immediately
cease, and Executive shall be obligated to return to Company any severance
payments received by Executive at any time after Executive has engaged in
Competition or has breached the Non-Solicitation covenants.
(ii) Continued Employee Benefits. Executive will receive
Company-paid coverage during the Severance Payment Period for Executive and
Executive's eligible dependents under the Company's Benefit Plans; provided,
however, that if during the Severance Payment Period Executive engages in
Competition or breaches the Non-Solicitation covenants set forth in this
Agreement or in the separation agreement, Executive shall not be entitled to
such Company-paid coverage, all Company-paid coverage pursuant to this
subsection will immediately cease, and Executive shall be obligated to repay to
Company the cost of such Company-paid coverage received by Executive at any time
after Executive has engaged in Competition or has breached the Non-Solicitation
covenants.
(b) Involuntary Termination other than for Cause, Death or
Disability, or Termination by Executive for Good Reason, within Eighteen Months
of a Change of Control. If within eighteen (18) months following a Change of
Control (i) Executive terminates his or her employment with the Company (or any
parent or subsidiary of the Company) for Good Reason or (ii) the Company (or any
parent or subsidiary of the Company) terminates Executive's employment for other
than Cause, and provided that Executive signs and delivers to the Company a
separation agreement and release of claims in a form satisfactory to the Company
(including non-solicitation, non-disparagement, and non-competition provisions
covering 18 months post-termination), then promptly following such termination
of employment, or, if later, the effective date of the separation agreement and
release of claims, then Executive will receive (in addition to all accrued
salary, vacation, expense reimbursements and any other benefits due to Executive
through the date of termination of employment in accordance with the Company's
then existing employee benefit plans, policies and arrangements, and such other
compensation or benefits from the Company as may be
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required by law (for example, "COBRA" coverage under Section 4980B of the
Internal Revenue Code of 1986, as amended) the following severance from the
Company, conditional upon Executive's compliance with the terms and conditions
of this Agreement and of the separation agreement and release of claims:
(i) Severance Payment. For a period of eighteen (18) months
following Executive's termination of employment (the "Change of Control
Severance Payment Period"), Executive will be paid continuing payments of
severance pay equal to Executive's average Base Salary rate for the two years
prior to such termination, and Executive's average annual target bonus for the
two years prior to such termination, to be paid in equal installments
periodically in accordance with the Company's normal payroll practices;
provided, however, that if Executive has been employed for less than two years
prior to such termination, for a period of eighteen (18) months following such
termination under this subparagraph (b), Executive will be paid continuing
payments of severance pay equal to Executive's average Base Salary rate for the
period Executive was actually employed with the Company, and Executive's average
annual target bonus for the period Executive was actually employed with the
Company, to be paid in equal installments periodically in accordance with the
Company's normal payroll practices; provided, however, that in the event
Executive engages in Competition or breaches the Non-Solicitation covenants set
forth in this Agreement or in the separation agreement during the twenty-four
month period following such termination, Executive shall not be entitled to such
severance payments, all severance payments pursuant to this subsection will
immediately cease, and Executive shall be obligated to return to Company any
severance payments received by Executive at any time after Executive has engaged
in Competition or has breached the Non-Solicitation covenants.
(ii) Options. Executive will be entitled to continue vesting
for twelve (12) months following the date of such termination with respect to
any Company stock options (whether granted to Executive on, before or after the
date of this Agreement); provided, however, that all Company stock options will
immediately cease vesting if Executive engages in Competition or breaches the
covenants in Section 12 or in the separation agreement during such 12-month
period. Additionally, Executive will have a period of one year and ninety days
(90) following such termination of employment (the "Post-Termination Exercise
Period") to exercise Executive's vested Company stock options (whether granted
on, before or after the date of this Agreement), but in no event beyond the
original maximum term of the option; provided, however, that all Company stock
options will immediately terminate and Executive will have no further rights
with respect to such options in the event Executive engages in Competition or
breaches the covenants in Section 12 or in the separation agreement during such
Post-Termination Exercise Period.
(iii) Continued Employee Benefits. Executive will receive
Company-paid coverage for a period of thirty-six (36) months for Executive and
Executive's eligible dependents under the Company's Benefit Plans; provided,
however, that if during the Change of Control Severance Payment Period Executive
engages in Competition or breaches the Non-Solicitation covenants set forth in
this Agreement or in the separation agreement, Executive shall not be entitled
to such Company-paid coverage, all Company-paid coverage pursuant to this
subsection will immediately cease, and Executive shall be obligated to repay to
Company the cost of such Company-paid coverage received by Executive at any time
after Executive has engaged in Competition or has breached the Non-Solicitation
covenants.
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(c) Other Terminations. If Executive voluntarily terminates
Executive's employment with the Company (other than for Good Reason within
eighteen (18) months of a Change of Control) or if the Company terminates
Executive employment with the Company for Cause, then Executive will (i) receive
the Base Salary through the date of termination of employment, (ii) receive all
accrued vacation, expense reimbursements and any other benefits due to Executive
through the date of termination of employment in accordance with established
Company plans, policies and arrangements, and (iii) not be entitled to any other
compensation or benefits (including, without limitation, accelerated vesting of
stock options or release from the Company's Repurchase Rights regarding the
Restricted Stock) from the Company except to the extent provided under the
applicable stock option agreement(s) or as may be required by law (for example,
"COBRA" coverage under Section 4980B of the Code).
(d) Termination due to Death or Disability. If Executive's
employment with the Company is terminated due to Executive's death or
Executive's becoming Disabled, then Executive or Executive's estate (as the case
may be) will (i) receive the Base Salary through the date of termination of
employment, (ii) receive all accrued vacation, expense reimbursements and any
other benefits due to Executive through the date of termination of employment in
accordance with Company-provided or paid plans, policies and arrangements, (iii)
receive the severance payments and Employee Benefits as set forth in
subparagraph (a) or (b) of this Section, whichever is applicable depending upon
the occurrence of a Change of Control event, and (iv) not be entitled to any
other compensation or benefits from the Company except to the extent required by
law (for example, "COBRA" coverage under Section 4980B of the Code).
6. Definition of Terms. The following terms referred to in this
Agreement will have the following meanings:
(a) Benefit Plans. "Benefit Plans" means plans, policies or
arrangements that the Company sponsors (or participates in) and that immediately
prior to Executive's termination of employment provide Executive and/or
Executive's eligible dependents with medical, dental, vision and/or financial
counseling benefits. Benefit Plans do not include any other type of benefit
(including, but not by way of limitation, disability, life insurance or
retirement benefits). A requirement that the Company provide Executive and
Executive's eligible dependents with coverage under the Benefit Plans will not
be satisfied unless the coverage is no less favorable than that provided to
Executive and Executive's eligible dependents immediately prior to Executive's
termination of employment. Notwithstanding any contrary provision of this
Section 7, but subject to the immediately preceding sentence, the Company may,
at its option, satisfy any requirement that the Company provide coverage under
any Benefit Plan by instead providing coverage under a separate plan or plans
providing coverage that is no less favorable or by paying Executive a lump sum
payment sufficient to provide Executive and Executive's eligible dependents with
equivalent coverage under a third party plan that is reasonably available to
Executive and Executive's eligible dependents.
(b) Cause. "Cause" means (i) a willful failure by Executive to
substantially perform Executive's duties as an employee, other than a failure
resulting from the Executive's
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complete or partial incapacity due to physical or mental illness or impairment,
(ii) a willful act by Executive that constitutes gross misconduct and that is,
or poses the potential to be, injurious to the Company, (iii) circumstances
where Executive willfully imparts material confidential information relating to
the Company or its business to competitors, or to other third parties other than
in the course of properly carrying out Executive's duties, (iv) a material and
willful violation by Executive of a federal or state law or regulation
applicable to the business of the Company or (v) Executive's conviction or plea
of guilty or no contest to a felony. No act or failure to act by Executive will
be considered "willful" unless committed without good faith and without a
reasonable belief that the act or omission was in the Company's best interest.
(c) Change of Control. "Change of Control" means the occurrence of
any of the following:
(i) the sale, lease, conveyance or other disposition of all
or substantially all of the Company's assets to any "person" (as such term is
used in Section 13(d) of the Securities Exchange Act of 1934, as amended),
entity or group of persons acting in concert;
(ii) any person or group of persons becoming the "beneficial
owner" (as defined in Rule 13d-3 under said Act), directly or indirectly, of
securities of the Company representing 30% or more of the total voting power
represented by the Company's then outstanding voting securities;
(iii) a merger or consolidation of the Company with any other
corporation, other than a merger or consolidation that would result in the
voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity or its controlling entity) at
least 50% of the total voting power represented by the voting securities of the
Company or such surviving entity (or its controlling entity) outstanding
immediately after such merger or consolidation; or
(iv) a contest for the election or removal of members of the
Board that results in the removal from the Board of at least 50% of the
incumbent members of the Board.
(d) Competition. "Competition" will mean Executive's direct or
indirect engagement in (whether as an employee, consultant, agent, proprietor,
principal, partner, stockholder, corporate officer, director or otherwise), or
ownership interest in or participation in the financing, operation, management
or control of, any person, firm, corporation or business that competes with
Company or is a customer of the Company.
(e) Disability. "Disability" will mean that Executive has been
unable to perform the principal functions of Executive's duties due to a
physical or mental impairment, but only if such inability has lasted, or is
reasonably expected to last, for at least six months. Whether Executive has a
Disability will be determined by the Board based on evidence provided by one or
more physicians selected by the Board.
(f) Good Reason. "Good Reason" means (without Executive's consent)
(i) a material reduction in Executive's title, authority, status, or
responsibilities, (ii) a material breach by
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the Company of its obligations under this Agreement, or (iii) a relocation of
Executive's principal place of employment by more than twenty five (25) miles.
With respect to a termination of employment that occurs during the six (6) month
period immediately following a Change of Control, clause (i) of the preceding
sentence will be applied by replacing the word "reduction" with the word
"change."
(g) Service. For purposes of this Agreement, "SERVICE" means the
performance of services by Executive as an officer, employee, consultant or
board member of the Company or any parent or subsidiary corporation (as such
terms are defined in Sections 424(e) and (f) of the Internal Revenue Code).
7. Successors.
(a) The Company's Successors. Any successor to the Company
(whether direct or indirect and whether by purchase, merger, consolidation,
liquidation or otherwise) to all or substantially all of the Company's business
and/or assets will be obligated to assume and perform the obligations under this
Agreement in the same manner and to the same extent as the Company would be
required to perform such obligations in the absence of a succession. For all
purposes under this Agreement, the term "Company" will include any successor to
the Company's business and/or assets which become bound by the terms of this
Agreement by operation of law.
(b) Executive's Successors. The terms of this Agreement and all
vested rights of Executive hereunder will inure to the benefit of, and be
enforceable by, Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees.
8. Notices. All notices, requests, demands and other communications
called for hereunder will be in writing and will be deemed given (i) on the date
of delivery if delivered personally, (ii) one (1) business day after being sent
by a well established commercial overnight service, or (iii) four (4) business
days after being mailed by registered or certified mail, return receipt
requested, prepaid and addressed to the parties or their successors at the
following addresses, or at such other addresses as the parties may later
designate in writing:
If to the Company:
Solectron Corporation
000 Xxxxxxxxx Xxxxx, Xxxx. 0
Xxxxxxxx, XX 00000
Attn: Chairman, Compensation Committee of the Board of Directors
cc: Chief Legal Counsel
Solectron Corporation
000 Xxxxxxxxx Xxxxx, Xxxx. 0
Xxxxxxxx, XX 00000
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If to Executive:
Xxxxx X. Xxxxxx
at the last residential address of Executive known by the Company.
9. Severability. In the event that any provision hereof becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement will continue in force and shall be interpreted and
modified as necessary to give best effect to the intentions of the parties as
expressed in the text of this Agreement to the fullest extent permissible under
applicable law.
10. Non-Solicitation. For a period beginning on the Effective Date and
ending one year after the Executive ceases to be employed by the Company or, if
longer, upon the completion of the Severance Payment Period if Executive is
entitled to more than twelve months of severance payments under Section 5(a), or
the Change of Control Severance Payment Period if Executive is entitled to
receive more than twelve months of severance payments under Section 5(b),
Executive, directly or indirectly, whether as employee, owner, sole proprietor,
partner, director, member, consultant, agent, founder, co-venturer or otherwise,
will: (i) not solicit, induce or influence any person to leave employment with
the Company; or (ii) not directly or indirectly solicit business from any of the
Company's customers on behalf of any business that directly competes with the
principal business of the Company.
11. Entire Agreement. This Agreement, together with the PROPRIETARY
INFORMATION AGREEMENT which Executive is required to enter into as a condition
to the effectiveness of this Agreement, and the other agreements referenced
herein (the OPTION AGREEMENT, RESTRICTED STOCK AGREEMENT) constitute the entire
agreement of the parties with respect to the subject matters thereof, and
supersede in their entirety all prior representations, understandings,
undertakings or agreements (whether oral or written and whether expressed or
implied) of the parties with respect to the subject matters of such Agreements.
No future agreements between the Company and Executive may supersede this
Agreement, unless they are in writing and specifically state that they are
intended to supersede this Agreement.
12. Arbitration.
(a) General. In consideration of Executive's service to the
Company, its promise to arbitrate all employment related disputes and
Executive's receipt of the compensation, pay raises and other benefits paid to
Executive by the Company, at present and in the future, Executive agrees that
any and all controversies, claims, or disputes with anyone (including the
Company and any employee, officer, director, shareholder or benefit plan of the
Company in their capacity as such or otherwise) arising out of, relating to, or
resulting from Executive's service to the Company under this Agreement or
otherwise, or the termination of Executive's service with the Company, including
any alleged breach of this Agreement, will be subject to binding arbitration
under the Arbitration Rules set forth in California Code of Civil Procedure
Section 1280 through 1294.2, including Section 1283.05 (the "CCP Rules") and
pursuant to California law. Such disputes which Executive hereby agrees to
arbitrate, and as to which Executive accordingly hereby agrees to waive any
right to a trial by jury, include any statutory claims under state or federal
law, including, but not limited to,
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claims under Title VII of the Civil Rights Act of 1964, the Americans with
Disabilities Act of 1990, the Age Discrimination in Employment Act of 1967, the
Older Workers Benefit Protection Act, the California Fair Employment and Housing
Act, the California Labor Code, claims of harassment, discrimination or wrongful
termination and any statutory claims. Executive further understands that this
Agreement to arbitrate also applies to any disputes that the Company may have
with Executive.
(b) Procedure. Executive agrees that any arbitration will be
administered by the American Arbitration Association ("AAA") and that a neutral
arbitrator will be selected in a manner consistent with its National Rules for
the Resolution of Employment Disputes (the "AAA Rules"). The arbitration
proceedings will allow for discovery according to the rules set forth in the CCP
Rules and the AAA Rules. Executive agrees that the arbitrator will have the
power to decide any motions brought by any party to the arbitration, including
motions for summary judgment and/or adjudication and motions to dismiss and
demurrers, prior to any arbitration hearing. Executive agrees that the
arbitrator will issue a written decision on the merits. Executive also agrees
that the arbitrator will have the power to award any remedies, including
attorneys' fees and costs, available under applicable law. Executive understands
the Company will pay for any administrative or hearing fees charged by the
arbitrator or AAA except that Executive will pay the first $125.00 of any filing
fees associated with any arbitration Executive initiates. Executive agrees that
the arbitrator will administer and conduct any arbitration in a manner
consistent with the AAA Rules and that to the extent that the provisions of the
CCP Rules conflict with the AAA Rules, the CCP Rules will take precedence.
(c) Remedy. Except as provided by the CCP Rules, arbitration will
be the sole, exclusive and final remedy for any dispute between Executive and
the Company. Accordingly, except as provided for by the CCP Rules, neither
Executive nor the Company will be permitted to pursue court action regarding
claims that are subject to arbitration. Notwithstanding anything in the CCP
Rules or the AAA Rules, the arbitrator will not have the authority to disregard
or refuse to enforce any lawful Company policy, and the arbitrator will not
order or require the Company to adopt a policy not otherwise required by law,
which the Company has not adopted.
(d) Availability of Injunctive Relief. In addition to the right
under the CCP Rules to petition the court for provisional relief, Executive
agrees that any party may also petition the court for injunctive relief where
either party alleges or claims a violation of this Agreement or the
Confidentiality Agreement or any other agreement regarding trade secrets,
confidential information, nonsolicitation or Labor Code Section 2870. In the
event either party seeks injunctive relief, the prevailing party will be
entitled to recover reasonable costs and attorneys' fees.
(e) Administrative Relief. Executive understands that this
Agreement does not prohibit Executive from pursuing an administrative claim with
a local, state or federal administrative body such as the Department of Fair
Employment and Housing, the Equal Employment Opportunity Commission or the
workers' compensation board. This Agreement does, however, preclude Executive
from pursuing court action regarding any such claim.
(f) Voluntary Nature of Agreement. Executive acknowledges and
agrees that Executive is executing this Agreement voluntarily and without any
duress or undue influence by the Company or anyone else. Executive further
acknowledges and agrees that Executive has carefully
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read this Agreement and that Executive has asked any questions needed for
Executive to understand the terms, consequences and binding effect of this
Agreement and fully understand it, including that Executive is waiving
Executive's right to a jury trial. Finally, Executive acknowledges and agrees
that Executive has been provided an opportunity to seek the advice of an
attorney of Executive's choice before signing this Agreement.
13. No Oral Modification, Cancellation or Discharge. This Agreement may
be changed, amended, modified, waived or discharged (either generally or in a
particular instance, either retroactively or prospectively, and either for a
specified period of time or indefinitely) only by a writing signed by Executive
and a duly authorized Officer of the Company and which specifically states that
it is intended to alter this Agreement.
14. Waiver of Breach. The waiver of any particular breach of any term or
provision of this Agreement, which must be in writing, will not operate as or be
construed to be a waiver of any other, previous, or subsequent breach of this
Agreement.
15. Headings. All captions and section headings used in this Agreement
are for convenient reference only and do not form a part of this Agreement.
16. Withholding. The Company is authorized to withhold, or cause to be
withheld, from any payment or benefit under this Agreement the full amount of
any applicable withholding taxes.
17. Governing Law. This Agreement will be governed by the laws of the
State of California (with the exception of its conflict of laws provisions).
18. Acknowledgment. Executive acknowledges that he has had the
opportunity to discuss this matter with and obtain advice from Executive's
private attorney, has had sufficient time to, and has carefully read and fully
understands all the provisions of this Agreement, and is knowingly and
voluntarily entering into this Agreement.
19. Counterparts. This Agreement may be executed in counterparts, and
each counterpart will have the same force and effect as an original and will
constitute an effective, binding agreement on the part of each of the
undersigned.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement on the
respective dates set forth below:
EXECUTIVE
/s/ Xxxxx X. Xxxxxx Date: Feb 2, 2004
-------------------------------------------
Xxxxx X. Xxxxxx
SOLECTRON CORPORATION
/s/ Xxxxxxx Xxxxxx Date: 2 Feb 2004
-------------------------------------------
Xxxxxxx Xxxxxx
President, Chief Executive Officer
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