EXHIBIT 10.4
SOLECTRON CORPORATION
XXXXX XXXXX EMPLOYMENT AGREEMENT
This Agreement is made by and between Solectron Corporation (the
"Company"), and Xxxxx Xxxxx ("Executive") as of 2 September 2004 (the "Effective
Date").
1. Duties and Scope of Employment.
(a) Positions and Duties. Executive will serve as the Company's
Executive Vice President Sales and Account Management. 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 Board of Directors of the Company
(the "Board") (which approval will not be unreasonably withheld); provided,
however, that Executive may, without the approval of 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. During the Employment Term, the Company will pay
Executive an annual salary of $300,000 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 salary will be subject to
review and adjustments will be made based upon the Company's normal performance
review practices.
(b) Bonuses. 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
Compensation Committee of the Board (the "Committee") may determine from time to
time in its discretion.
(c) Stock Options. Executive will be eligible to receive options to
purchase the Company's common stock pursuant to any plans or arrangements it may
have in effect from time to time. The Committee will determine in its discretion
whether Executive will be granted any such 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.
5. Severance.
(a) Involuntary Termination other than for Cause, Death or
Disability Prior to a Change of Control or After Twelve 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 twelve (12) months following a Change of Control and Executive
signs and delivers to the Company a separation agreement and release of claims
in a form satisfactory to the Company, 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 the following severance from the
Company:
(i) Accrued Compensation. Executive will be entitled to
receive all accrued 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.
(ii) 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 or breaches the
covenants in Section 12 or in the separation agreement, all payments pursuant to
this subsection will immediately cease
(iii) 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 covenants in Section 12 or in the separation
agreement, all Company-paid coverage pursuant to this subsection will
immediately cease.
(iv) Payments or Benefits Required by Law. Executive will
receive 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 "Code")).
(b) Involuntary Termination other than for Cause, Death or
Disability or Termination for Good Reason within Twelve Months of a Change of
Control. If within twelve (12) 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 Executive signs and delivers to the Company a separation agreement
and release of claims in a form satisfactory to the Company, 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 the
following severance from the Company:
(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, 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, further, that in the event Executive engages in Competition
or breaches the covenants in Section 12 or in the separation agreement during
the twenty-four month period following such termination, all payments pursuant
to this subsection will immediately cease.
(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 in the event
Executive engages in Competition or breaches the covenants in Section 12 or in
the separation agreement during the thirty-six month period following such
termination, all Company-paid coverage pursuant to this subsection will
immediately cease.
(iv) Payments or Benefits Required by Law. Executive will
receive such other compensation or benefits from the Company as may be required
by law (for example, "COBRA" coverage under Section 4980B of the Code).
(c) Other Terminations. If Executive voluntarily terminates
Executive's employment with the Company (other than for Good Reason within
twelve (12) 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) 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, and
(iii) 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. Golden Parachute Excise Tax.
(a) In the event it will be determined that any payment or
distribution by the Company or other amount with respect to the Company to or
for the benefit of Executive, whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise, but
determined without regard to any additional payments required under this Section
6 (a "Payment"), is (or will be) subject to the excise tax imposed by Section
4999 of the Internal Revenue Code of 1986, as amended (the "Code") or any
interest or penalties are (or will be) incurred by Executive with respect to the
excise tax imposed by Section 4999 of the Code with respect to the Company (the
excise tax, together with any interest and penalties, are hereinafter
collectively referred to as the "Excise Tax"), Executive will be entitled to
receive an additional cash payment (a "Gross-Up Payment") from the Company in an
amount equal to the sum of the Excise Tax and an amount sufficient to pay the
cumulative Excise Tax and all cumulative income taxes (including any interest
and penalties imposed with respect to such taxes) relating to the Gross-Up
Payment so that the net amount retained by Executive is equal to all payments to
which Employee is entitled pursuant to the terms of this Agreement (excluding
the Gross-Up Payment) or otherwise less income taxes (but not reduced by the
Excise Tax or by income taxes attributable to the Gross-Up Payment).
(b) Subject to the provisions of Section 6(c), all determinations
required to be made under this Section 6, including whether and when a Gross-Up
Payment is required and the amount of such Gross-Up Payment and the assumptions
to be utilized in arriving at the determination, will be made by a nationally
recognized certified public accounting firm selected by the Company with the
consent of Executive, which should not unreasonably be withheld (the "Accounting
Firm") which will provide detailed supporting calculations both to the Company
and Executive within 30 days after the receipt of notice from Executive that
there has been a Payment, or such earlier time as is requested by the Company.
All fees and expenses of the Accounting Firm will be borne solely by the
Company. The Company, as determined in accordance with this Section 6, will pay
any Gross-Up Payment to Executive within five days after the receipt of the
Accounting Firm's determination. If the Accounting Firm determines that no
Excise Tax is payable by Executive, it will so indicate to Executive in writing.
Any determination by the Accounting Firm will be binding upon the Company and
Executive. As a result of uncertainty in the application of Section 4999 of the
Code at the time of the initial determination by the Accounting Firm, it is
possible that Gross-Up Payments that the Company should have made will not have
been made (an "Underpayment"), consistent with the calculations required to be
made hereunder. In the event the Company exhausts its remedies in accordance
with Section 6(c) and Executive thereafter is required to make a payment of any
Excise Tax, the Accounting Firm will determine the amount of Underpayment that
has occurred and the Underpayment will be promptly paid by the Company to or for
the benefit of Executive.
(c) Executive will notify the Company in writing of any claim by
the Internal Revenue Service that, if successful, would require a Gross-Up
Payment (that has not already been paid by the Company). The notification will
be given as soon as practicable but no later than ten business days after
Executive is informed in writing of the claim and will apprise the Company of
the nature of the claim and the date on which the claim is requested to be paid.
Executive will not pay the claim prior to the expiration of the 30-day period
following the date on which Executive gives notice to the Company or any shorter
period ending on the date that any payment of taxes with respect to the claim is
due. If the Company notifies Executive in writing prior to the expiration of the
30-day period that it desires to contest the claim, Executive will:
(i) give the Company any information reasonably requested by
the Company relating to the claim;
(ii) take any action in connection with contesting the claim
as the Company will reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to the claim by
an attorney reasonably selected by the Company;
(iii) cooperate with the Company in good faith in order
effectively to contest the claim; and
(iv) permit the Company to participate in any proceedings
relating to the claim.
(d) The Company will bear and pay directly all costs and expenses
(including additional interest and penalties) incurred in connection with the
contest and will indemnify and hold Executive harmless, on an after-tax basis,
for any Excise Tax or income tax (including interest and penalties with respect
thereto) imposed as a result of the representation and payment of costs and
expenses. Without limitation of the forgoing provisions of this Section 6, the
Company will control all proceedings taken in connection with the contest and,
at its sole option, may pursue or forego any and all administrative appeals,
proceedings, hearings, and conferences with the taxing authority in respect of
the claim and may, at its sole option, either direct Executive to pay the tax
claimed and xxx for a refund or contest the claim in any permissible manner, and
Executive agrees to prosecute the contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one or more
appellate courts, as the Company will determine. If the Company directs
Executive to pay the claim and xxx for a refund, the Company will advance the
amount of the payment to Executive, on an interest-free basis, and will
indemnify and hold Executive harmless, on an after-tax basis, from any Excise
Tax or income tax (including interest or penalties with respect thereto) imposed
with respect to the advance or with respect to any imputed income with respect
to the advance; and any extension of the statute of limitations relating to
payment of taxes for the taxable year of Executive with respect to which the
contested amount is claimed to be due will be limited solely to the contested
amount. The Company's control of the contest will be limited to issues with
respect to which a Gross-Up Payment would be payable hereunder and Executive
will be entitled to settle or contest, as the case may be, any other issue
raised by the Internal Revenue Service or any other taxing authority.
If, after the receipt by Executive of an amount advanced by the
Company pursuant to Section 6(d), Executive becomes entitled to receive any
refund with respect to the claim, Executive will, subject to the Company's
compliance with the requirements of Section 6(d), promptly pay to the Company
the amount of the refund (together with any interest paid or credited thereon
after taxes applicable thereto). If, after the receipt by Executive of an amount
advanced by the Company pursuant to this Section 6(d), a determination is made
that Executive will not be entitled to any refund with respect to the claim and
the Company does not notify Executive in writing of its intent to contest the
denial of refund prior to the expiration of 30 days after the determination,
then the advance will be forgiven and will not be required to be repaid and the
amount of the advance will offset, to the extent thereof, the amount of Gross-Up
Payment required to be paid.
7. 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 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 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 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 33% 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 the Company of its obligations as an
employee, 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."
8. Term of Agreement. This Agreement will have an initial term of two
(2) years commencing on the Effective Date. On the second anniversary of the
Effective Date and on each annual anniversary of the Effective Date thereafter,
this Agreement automatically will renew for an additional term of one year
unless at least three (3) months prior to such anniversary, Executive or the
Company gives the other party written notice that the Agreement will not be
renewed. If Executive incurs a termination of employment that entitles Executive
to receive the payments and benefits described in Section 5, this Agreement will
not terminate until all of Executive's and the Company's obligations under the
Agreement have been satisfied.
9. 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 assume the obligations under this Agreement and agree
expressly to 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 executes and delivers the assumption agreement described in this Section
9(a) or which becomes bound by the terms of this Agreement by operation of law.
(b) Executive's Successors. The terms of this Agreement and all
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.
10. 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) day after being sent by a well
established commercial overnight service, or (iii) four (4) 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
Xxxxxxxx, XX 00000
Attn: Chairman, Compensation Committee of the Board of Directors
If to Executive:
Xxxxx Xxxxx
at the last residential address known by the Company.
11. 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 full force and effect without said
provision.
12. 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 severance under Section 5(a) or the Change of Control Severance
Payment Period if Executive is entitled to receive severance 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 and users on behalf of any business that directly competes
with the principal business of the Company.
13. Entire Agreement. This Agreement constitutes the entire agreement of
the parties hereto and supersedes 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 matter hereof.
No future agreements between the Company and Executive may supersede this
Agreement, unless they are in writing and specifically mention this Section 13.
14. 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 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 "Rules") and pursuant to
California law. Disputes which Executive agrees to arbitrate, and thereby agrees
to waive any right to a trial by jury, include any statutory claims under state
or federal
law, including, but not limited to, 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 arbitration proceedings will allow
for discovery according to the rules set forth in the National Rules for the
Resolution of Employment Disputes or California Code of Civil Procedure.
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 Rules and
that to the extent that the AAA's National Rules for the Resolution of
Employment Disputes conflict with the Rules, the Rules will take precedence.
(c) Remedy. Except as provided by the 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 Rules, neither Executive nor
the Company will be permitted to pursue court action regarding claims that are
subject to arbitration. Notwithstanding, 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 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 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 agrees that Executive has
been provided an opportunity to seek the advice of an attorney of Executive's
choice before signing this Agreement.
15. No Oral Modification, Cancellation or Discharge. This Agreement may
be changed or terminated only in writing (signed by Executive and the Company).
16. Waiver of Breach. The waiver of a 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.
17. Headings. All captions and section headings used in this Agreement
are for convenient reference only and do not form a part of this Agreement.
18. 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.
19. Governing Law. This Agreement will be governed by the laws of the
State of California (with the exception of its conflict of laws provisions).
20. 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.
21. 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 TO FOLLOW]
IN WITNESS WHEREOF, the undersigned have executed this Agreement on the
respective dates set forth below:
EXECUTIVE
/s/ Xxxxx Xxxxx Date: 10/21/04
---------------------------------
Xxxxx Xxxxx
SOLECTRON CORPORATION
/s/ Xxxxx X'Xxxxxx Date: 25 Sep 2004
---------------------------------
Xxxxx X'Xxxxxx
Executive Vice President
Human Resources
