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Exhibit 10.16
SEVERANCE AGREEMENT AND RELEASE
This Severance Agreement and Release ("Agreement") is made by and between
MCMS, Inc. (the "Company"), and Xxxxxxx X. Xxxxxxx ("Employee").
WHEREAS, Employee was employed by the Company;
WHEREAS, the Company and Employee have entered into an Assignment of
Inventions and Rights Agreement; and
WHEREAS, the Company and Employee have entered into a Confidential
Information Agreement (the "Confidentiality Agreement");
NOW THEREFORE, in consideration of the mutual promises made herein, the
Company and Employee (collectively referred to as "the Parties") hereby agree as
follows:
1. Termination. The Company terminates Employee from Employee's
position as President, Chief Operating Officer effective Monday, January 24,
2000.
2. Consideration. The Company agrees to pay Employee severance
compensation in an amount equal to four (4) months of Employee's regular salary,
or $80,000.00 (less all customary federal, state, and local taxes and other
withholdings which Employee would not otherwise be entitled to receive). The
Company agrees to pay Employee such severance compensation at the rate of
$9,230.77 every two weeks, less applicable withholding, for four (4) months
following the Effective Date of termination (the "Payment Period"). Such payment
will be made in accordance with the Company's standard payroll practices. During
the Payment Period, Employee will not be entitled to accrual of any employee
benefits, including, but not limited to, vacation benefits or bonuses.
3. Benefits. Employee shall have the right to convert Employee's health
insurance benefits (medical, dental, vision) to individual coverage pursuant to
COBRA commencing on February 1, 2000. Should Employee so elect, the Company
shall directly pay the related COBRA premiums for four (4) months health care
coverage.
4. Confidential Information. Employee shall continue to maintain the
confidentiality of all confidential and proprietary information of the Company
and shall continue to comply with the terms and conditions of the
Confidentiality Agreement between Employee and the Company.
5. Release of Claims. Employee agrees that the foregoing consideration
represents settlement in full of all outstanding obligations owed to Employee by
the Company. Employee, on behalf of Employee, and Employee's respective heirs,
family members, executors and assigns, hereby fully and forever releases, to the
fullest extent permitted by law, the Company and its respective officers,
directors, employees, investors, shareholders, administrators, affiliates,
divisions, subsidiaries, predecessor and successor corporations, and assigns,
from, and agrees not to
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xxx concerning, any claim, duty, obligation or cause of action relating to any
matters of any kind, whether presently known or unknown, suspected or
unsuspected, that Employee may possess arising from any omissions, acts or facts
that have occurred up until and including the Effective Date of this Agreement
including, without limitation,
(a) any and all claims relating to or arising from Employee's
employment relationship with the Company or the termination of that
relationship;
(b) any and all claims for wrongful discharge of employment;
termination in violation of public policy; discrimination; breach of contract,
both express and implied; breach of a covenant of good faith and fair dealing,
both express and implied; promissory estoppel; negligent or intentional
infliction of emotional distress; negligent or intentional misrepresentation;
negligent or intentional interference with contract or prospective economic
advantage; unfair business practices; defamation; libel; slander; negligence;
personal injury; assault; battery; invasion of privacy; false imprisonment; and
conversion;
(c) any and all claims for violation of any federal, state or
municipal statute, including, but not limited to, Title VII of the Civil Rights
Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in Employment
Act of 1967, the Americans with Disabilities Act of 1990, the Fair Labor
Standards Act, the Employee Retirement Income Security Act of 1974, The Worker
Adjustment and Retraining Notification Act, Older Workers Benefit Protection
Act; the California Fair Employment and Housing Act, and Labor Code section 201,
et seq. and section 970, et seq.;
(d) any and all claims for violation of the federal, or any state,
constitution;
(e) any and all claims arising out of any other laws and regulations
relating to employment or employment discrimination; and
(f) any and all claims for attorneys' fees and costs.
Employee agrees that the release set forth in this section shall be and
remain in effect in all respects as a complete general release as to the matters
released. This release does not extend to any obligations incurred under this
Agreement. This release does not apply to any lawful claim entered into with the
employment security commission for unemployment benefits.
6. Acknowledgment of Waiver of Claims under ADEA. Employee acknowledges
that Employee is waiving and releasing any rights Employee may have under the
Age Discrimination in Employment Act of 1967 ("ADEA") and that this waiver and
release is knowing and voluntary. Employee and the Company agree that this
waiver and release does not apply to any rights or claims that may arise under
ADEA after the Effective Date of this Agreement. Employee acknowledges that the
consideration given for this waiver and release Agreement is in addition to
anything of value to which Employee was already entitled. Employee further
acknowledges that Employee has been advised by this writing that (a) Employee
should consult with an attorney prior to executing this Agreement; (b) Employee
has at least twenty-one (21) days within which to consider this Agreement; (c)
Employee has at least seven (7) days following the execution of this Agreement
by the parties to revoke the Agreement; and (d) this Agreement shall not be
effective until the
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revocation period has expired.
7. No Pending or Future Lawsuits. Employee represents that Employee has no
lawsuits, claims, or actions pending in Employee's name, or on behalf of any
other person or entity, against the Company or any other person or entity
referred to herein.
8. Confidentiality. Employee and Company agree to use their best efforts
to maintain in confidence the existence of this Agreement, the contents and
terms of this Agreement, and the consideration for this Agreement (hereinafter
collectively referred to as "Settlement Information"). Employee and Company
agree to take every reasonable precaution to prevent disclosure of any
Settlement Information to third parties, and agree that there will be no
publicity, directly or indirectly, concerning any Settlement Information.
Employee and Company agree to take every precaution to disclose Settlement
Information only to those attorneys, accountants, governmental entities, and
family members who have a reasonable need to know of such Settlement
Information.
9. No Cooperation. Employee agrees not to act in any manner that might
damage the business of the Company. Employee agrees not to counsel or assist any
attorneys or their clients in the presentation or prosecution of any disputes,
differences, grievances, claims, charges, or complaints by any third party
against the Company and/or any officer, director, employee, agent,
representative, shareholder or attorney of the Company, unless under a subpoena
or other court order to do so.
10. Non-Disparagement. Employee agrees to refrain from any disparagement,
defamation, libel or slander of Company and its respective officers, directors,
employees, investors, shareholders, administrators, affiliates, divisions,
subsidiaries, predecessor and successor corporations, and assigns or tortious
interference with the contracts and relationships of the Company and its
respective officers, directors, employees, investors, shareholders,
administrators, affiliates, divisions, subsidiaries, predecessor and successor
corporations, and assigns. Company agrees to refrain from any disparagement,
defamation, libel or slander of Employee.
11. Non-Solicitation. Employee acknowledges that in the course of
Employee's employment with the Company Employee became familiar with the
Company's trade secrets and with other Confidential Information concerning the
Company and its subsidiaries and that Employee's services were of special and
unique value to the Company and its subsidiaries. Therefore, Employee agrees
that for twelve (12) months following execution of this Agreement (the
"Non-Solicitation Period"), Employee shall not directly or indirectly through
another entity (i) induce or attempt to induce any employee of the Company or
any of its subsidiaries to leave the employ of the Company or any such
subsidiary, or in any way interfere with the relationship between the Company or
any of its subsidiaries and any employee thereof, or (ii) induce or attempt to
induce any customer, supplier, licensee, licensor, franchisee or other business
relation of the Company or any of its subsidiaries to cease doing business with
the Company or any such subsidiary, or in any way interfere with the
relationship between any such customer, supplier, licensee or business relation
and the Company or any such subsidiary.
In the event of the breach or threatened breach by Employee of any
of the provisions of this paragraph 11, the Company, in addition and
supplementary to other rights and remedies
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existing in its favor, may apply to the court of law or equity of competent
jurisdiction for specific performance and/or injunctive relief in order to
enforce or prevent any violations of the provisions hereof.
12. Breach of Agreement. Should there be a breach by Employee of any
provision of this Agreement, including, without limitation, paragraphs
4(confidential information), 8(confidentiality), and paragraph
11(non-solicitation) during the Payment Period, MCMS, in addition to any other
remedies it is entitled to pursue, will cease any and all payments provided for
hereunder. This paragraph shall not limit any remedies MCMS is entitled to
pursue subsequent to the Payment Period.
13. No Admission of Liability. The Parties understand and acknowledge that
this Agreement constitutes a compromise and settlement of disputed claims. No
action taken by the Parties hereto, or either of them, either previously or in
connection with this Agreement shall be deemed or construed to be (a) an
admission of the truth or falsity of any claims heretofore made or (b) an
acknowledgment or admission by either party of any fault or liability whatsoever
to the other party or to any third party.
14. Costs. The Parties shall each bear their own costs, attorneys' fees
and other fees incurred in connection with this Agreement.
15. Authority. The Company represents and warrants that the undersigned
has the authority to act on behalf of the Company and to bind the Company and
all who may claim through it to the terms and conditions of this Agreement.
Employee represents and warrants that Employee has the capacity to act on
Employee's own behalf and on behalf of all who might claim through Employee to
bind Employee to the terms and conditions of this Agreement. Employee warrants
and represents that there are no liens or claims of lien or assignments in law
or equity or otherwise of or against any of the claims or causes of action
released herein.
16. No Representations. Employee represents that Employee has had the
opportunity to consult with an attorney, and has carefully read and understands
the scope and effect of the provisions of this Agreement. Neither party has
relied upon any representations or statements made by the other party hereto
which are not specifically set forth in this Agreement.
17. 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 shall continue in full force and effect without said
provision.
18. Entire Agreement. This Agreement represents the entire agreement and
understanding between the Company and Employee concerning Employee's separation
from the Company, and supersedes and replaces any and all prior agreements and
understandings concerning Employee's relationship with the Company and
Employee's compensation by the Company except the Confidentiality Agreement and
the Assignment of Inventions and Rights Agreement, which shall remain in full
force and effect.
19. No Oral Modification. This Agreement may only be amended in writing
signed by
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Employee and an officer of the Company.
20. Governing Law. This Agreement shall be governed by the laws of the
State of Idaho, without regard to its conflict of laws provisions.
21. Effective Date. This Agreement is effective seven days after it has
been signed by both Parties.
22. Counterparts. This Agreement may be executed in counterparts, and each
counterpart shall have the same force and effect as an original and shall
constitute an effective, binding agreement on the part of each of the
undersigned.
23. Voluntary Execution of Agreement. This Agreement is executed
voluntarily and without any duress or undue influence on the part or behalf of
the Parties hereto, with the full intent of releasing all claims. The Parties
acknowledge that:
(a) They have read this Agreement;
(b) They have been represented in the preparation, negotiation, and
execution of this Agreement by legal counsel of their own choice or that they
have voluntarily declined to seek such counsel;
(c) They understand the terms and consequences of this Agreement and
of the releases it contains;
(d) They are fully aware of the legal and binding effect of this
Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the
respective dates set forth below.
MCMS, Inc.
Dated: January 24, 2000 By /s/ Xxxxxx Xxxxxxxxx
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Xxxxxx Xxxxxxxxx
Vice President and General Counsel
Xxxxxxx X. Xxxxxxx, an individual
Dated: January 24, 2000 By /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
