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Exhibit 10.2
AGREEMENT
AGREEMENT made as of the ____ day of ____________, [1999/2000], by and
between Hadco Corporation, a Massachusetts corporation with a usual place of
business in Salem, New Hampshire (hereinafter the "Company"), and _____________,
of _______________ (hereinafter the "Executive"). This Agreement and the
incentive compensation award hereunder are made pursuant and subject to, and are
governed by, the terms and conditions of the Hadco Corporation 1998 Stock Plan,
as Amended and Restated March 3, 1999 and as it may be amended from time to time
(the "1998 Stock Plan"), and the terms and conditions of the 1998 Stock Plan are
incorporated herein by reference, made a part hereof and shall control in the
event of any conflict between the terms of the 1998 Stock Plan and any terms of
this Agreement. A copy of the 1998 Stock Plan has been delivered to the
Executive.
Section 1. Grant of Restricted Stock. The Company grants to the
Executive as an incentive compensation award, on the terms and conditions
hereinafter set forth,_(_) shares of the Company's Common Stock, $0.05 par
value (the "Restricted Stock"), at the current fair market value of
_________________ ($ _____) Dollars per share.
Section 2. Representations and Agreements of Executive; Restrictions on
Restricted Stock.
A. The Executive understands and acknowledges that the Restricted Stock
will be lettered or restricted stock, that the Restricted Stock has not been
registered under the Securities Act or any state securities laws and is being
granted under the exemption to registration provided in Section 3(b) of the
Securities Act and Regulation D promulgated thereunder and/or Section 4(2) of
the Securities Act, and that this transaction has not been reviewed or passed
upon by any federal or state agency. The Executive further understands and
acknowledges that each certificate for the Restricted Stock issued in connection
with this Agreement shall contain the following restrictive legends:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933. These shares have been
acquired for investment and not with a view to distribution or resale,
and may not be sold, mortgaged, pledged, hypothecated or otherwise
transferred without an effective registration statement of such shares
under the Securities Act of 1933, or an opinion of counsel for Hadco
Corporation that registration is not required under such Act.
The shares represented by this certificate are subject to
risks of forfeiture as described in a certain Agreement dated as of
[___________, 2000], a copy of which the Company will furnish to the
holder of this certificate upon request and without charge."
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B. The Executive represents and warrants that he is acquiring the
Restricted Stock for purposes of long-term investment, for the personal account
of the Executive, and with no present intention of reselling, distributing or
otherwise transferring the Restricted Stock or any portion of the Restricted
Stock, and that the Executive has no contract, undertaking or arrangement with
any person or entity to sell or transfer all or any portion of the Restricted
Stock to that person or entity, or to have that person or entity sell for him
all or any portion of the Restricted Stock, or to afford or allow any
participation in the Restricted Stock by any other person or entity.
C. The Executive realizes that (i) the acquisition of the Restricted
Stock is a long-term investment; (ii) the Executive must bear the economic risk
of investment for an indefinite period of time because the Restricted Stock has
not been registered under applicable state and federal securities laws and,
therefore, cannot be sold or otherwise transferred unless it is subsequently
registered or exemptions from registration are available; and (iii) the
transferability of the Restricted Stock is restricted, and (a) requires
conformity with the restrictions contained in paragraphs 2.A, 2.D and 3.A of
this Agreement, (b) will be further restricted by legends placed on the
certificate representing the Restricted Stock referring to the applicable
restrictions on transferability, and (c) may be subject to a stop transfer order
until such time as transfer of the Restricted Stock may be effected without
violation of all applicable state and federal securities laws.
D. The Executive agrees and understands that the Restricted Stock is
subject to forfeiture by the Executive in the event of termination of his
employment with the Company within three years of the date of declaration of the
incentive compensation award of which the Restricted Stock constitutes a
deferred bonus amount, all as more fully set forth in this Agreement. The
Executive further agrees and understands that the Restricted Stock may not be
sold, mortgaged, pledged, hypothecated or otherwise transferred by the Executive
until on or after the three year anniversary of the date of declaration of the
incentive compensation award of which the Restricted Stock constitutes a
deferred bonus amount. Notwithstanding the foregoing, the Restricted Stock may
be relieved of these risks of forfeiture and restrictions on transfer described
above pursuant to the provisions of Sections 3.B or 3.C of this Agreement.
Moreover, the Company shall have the right to accelerate the lapse of these
risks of forfeiture and restrictions on transfer on the Restricted Stock at any
time.
E. The Executive understands and agrees that the Restricted Stock is to
be issued from the pool of shares of Common Stock reserved for the 1998 Stock
Plan.
F. The Executive understands and agrees that neither the Company, the
Board of Directors, any committee of the Board of Directors nor any employee,
officer or agent thereof guarantees that any particular federal, state or local
tax consequences will occur as a result of this Agreement and/or the issuance of
the Restricted Stock. The Executive hereby agrees that he alone shall be
responsible for the tax consequences of this Agreement and the issuance of the
Restricted Stock.
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Section 3. Termination.
A. If the Executive voluntarily terminates his employment with the
Company other than by reason of his retirement at or after the normal retirement
date as described in the Hadco Corporation Retirement Plan or if the Executive's
employment is terminated by the Company for cause as defined herein, he shall
forfeit the Restricted Stock if the Restricted Stock has not been held for at
least three years after the date of declaration of the incentive compensation
award of which the Restricted Stock was a part. For purposes hereof, employment
shall not be deemed terminated if the Executive remains employed by the Company
or any subsidiary or affiliate thereof. For purposes of this Agreement, the
Company shall have "cause" to terminate the Executive in the event of: (a) the
willful and continued failure by the Executive to substantially perform his
duties, after demand for substantial performance is delivered by the Company to
the Executive identifying with specificity the grounds for the Company's belief
that the Executive has not substantially performed his duties; (b) the permanent
physical or mental incapacity of the Executive; (c) the commission by the
Executive of any act of fraud or embezzlement relating to the property of the
Company and/or the services to be provided by the Executive; or (d) the
Executive's unauthorized disclosure of proprietary confidential information of
the Company or the Executive's engaging in competition with the Company.
B. If the Executive is involuntarily terminated from employment without
cause as defined herein, including by reason of his death or disability or if
termination of employment of the Executive is due to retirement at or after the
normal retirement date as described in the Hadco Corporation Retirement Plan,
the Restricted Stock held by the Executive at the time of termination shall be
relieved of the restrictions contained in Sections 2.D and 3.A of this Agreement
(but not of any securities law restrictions which may apply to the Restricted
Stock or its disposition). For purposes hereof, the definition of "disability"
as set forth in the Hadco Corporation Retirement Plan shall apply.
C. Upon any sale of all or substantially all of the assets of the
Company, or upon a merger, consolidation or tender offer in respect of which the
stockholders holding all of the Company's outstanding voting securities
immediately prior to the consummation thereof hold less than 50% of all of the
Company's outstanding voting securities immediately after such consummation
(each of the foregoing sale, merger, consolidation or tender offer hereinafter
called an "Acquisition"), then the date upon which the Restricted Stock shall be
relieved of the restrictions contained in Sections 2.D and 3.A of this Agreement
(but not of any securities law restrictions which may apply to the Restricted
Stock or its disposition) shall be automatically accelerated to occur
immediately prior to the consummation of such Acquisition.
Section 4. Effect Upon Employment. Neither the 1998 Stock Plan nor this
Agreement or the grant of the Restricted Stock, nor any other plan of the
Company, confers any right upon the Executive with respect to the continuation
of his employment or business relationship with the Company or any of its
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subsidiaries or affiliates. Nothing contained herein shall be construed as
interfering with or restricting the right of the Company or any of its
subsidiaries or affiliates to terminate the Executive's employment or business
relationship at any time free from any liability or claim under the 1998 Stock
Plan, this Agreement or any other plan of the Company.
Section 5. Status as a Stockholder. Prior to the three (3) year
anniversary of the date of declaration of the incentive compensation award of
which the Restricted Stock was a part and after issuance of a certificate
representing the Restricted Stock, the Executive shall have all rights as a
stockholder except as specifically set forth herein.
Section 6. Notices. Any notice permitted or required under this
Agreement shall be sufficient if made in writing and mailed, postage prepaid, or
delivered in hand to the parties as follows: (a) as to the Company, to its
Treasurer at the principal office of the Company; and (b) as to the Executive,
at the address listed for the Executive on the books of the Company or the books
of the Stock Transfer Agent, or (c) as to either party, at such other address as
shall be designated by the addressee in a written notice to the other complying
as to delivery with the terms of this Section 6.
Section 7. Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the substantive laws of the
Commonwealth of Massachusetts without giving effect to the principles of the
conflicts of laws thereof.
Section 8. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior or contemporaneous agreements and understandings, written
or oral, relating to the subject matter hereof. No modification or addition to
this Agreement shall be valid unless in writing, specifically referring to this
Agreement and signed by both parties hereto. No waiver of any rights under this
Agreement shall be valid unless in writing and signed by the party to be charged
with such waiver. No waiver of any term or condition contained in this Agreement
shall be deemed or construed as a further or continuing waiver of such term or
condition, unless the waiver specifically provides otherwise.
Section 9. Binding Effect. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective heirs, executors,
administrators, representatives, successors and assigns, subject to the
limitations set forth herein; provided, however, that as respects the Executive,
this Agreement and his rights thereunder are deemed to be personal in nature and
may not be assigned or transferred.
Section 10. Interpretation and Construction. Any interpretation or
construction of this Agreement by the Company's Board of Directors, or a duly
authorized committee appointed by the Board, shall be final, conclusive and
binding on all interested parties. The section headings are for convenience of
reference only and shall not be deemed germane to the interpretation or
construction of this Agreement.
Section 11. Survival. All representations, warranties and
acknowledgments made in this Agreement shall survive the issuance and delivery
of the certificate or certificates
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representing the Restricted Stock.
Section 12. Withholding Taxes. If the Company or any of its
subsidiaries or affiliates in its discretion determines that it is obligated to
withhold any tax in connection with the grant of the Restricted Stock, or in
connection with the transfer of, or the lapse of restrictions on, any Restricted
Stock or other property acquired pursuant hereto, the Executive hereby agrees
that he will pay any such withholding taxes and if the Executive does not pay
such withholding taxes, the Company or any of its subsidiaries or affiliates may
withhold from the Executive's wages or other remuneration the appropriate amount
of tax. At the discretion of the Company or any of its subsidiaries or
affiliates, the amount required to be withheld may be withheld in cash from such
wages or other remuneration or in kind from the Restricted Stock or other
property otherwise deliverable to the Executive.
Section 13. Severability. The invalidity, illegality or
unenforceability of any provision of this Agreement shall in no way affect the
validity, legality or enforceability of any other provision.
Section 14. Provision of Documentation to Executive. By signing this
Agreement the Executive acknowledges receipt of a copy of this Agreement and a
copy of the 1998 Stock Plan.
Section 15. Tax Treatment. It is intended that the Restricted Stock
distribution hereunder shall be taxable income to the Executive in the calendar
year in which the substantial risk of forfeiture with respect to the stock
lapses (or in such earlier calendar year during which the Executive files an
effective election under Section 83(b) of the Internal Revenue Code). However,
neither the Company, the Committee nor any employee, officer or agent thereof
guarantees that any particular federal, state or local tax consequences will
occur as a result of participation in the 1998 Stock Plan or as a result of this
Agreement and the issuance of the Restricted Stock, and the Executive is
responsible for the tax consequences to him of participating in the 1998 Stock
Plan, of this Agreement and of the issuance of the Restricted Stock.
Notwithstanding the preceding sentence, if the Internal Revenue Service shall at
any time interpret this Agreement and the terms hereunder to be ineffective with
regard to the deferral of the Executive's income, and that interpretation
becomes final and unappealable, then the Company shall distribute to the
Executive, free of the forfeiture provisions thereof (but not of any securities
law restrictions which may apply to the shares or their disposition), a portion
of the Restricted Stock equal in value to such income tax liability (but not
more than the remaining portion of the Restricted Stock). Any remaining portion
of the Restricted Stock shall continue to be subject to the remaining provisions
of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
HADCO CORPORATION
By:
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Executive
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