FORM OF EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), dated as of March 31,
1998, is between EFTC CORPORATION, a Colorado corporation ("Parent"), and
________________ ("Employee").
RECITALS
A. Parent has acquired RM Electronics, Inc., a New Hampshire
corporation ("Target"), pursuant to the Agreement and Plan of Reorganization,
dated as of March 31, 1998 among Parent and Target and RM Electronics
Acquisitions Corporation.
B. Employee is a member of the leadership team of Target and has been
offered and accepted employment with Parent. This Agreement sets forth the terms
on which Parent employs Employee.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, and of the
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
a. Definitions. The following terms shall have the following meanings as
used in this Agreement.
"Base Salary" has the meaning set forth in Section 3(a).
"Company" means Parent, its successors and assigns, and any of
its present or future subsidiaries, and persons controlled by, controlling or
under common control with it.
"Employee" has the meaning set forth in the opening statement
to this Agreement.
"Expiration Date" has the meaning set forth in Section 4.
"Inventions" mean inventions, discoveries, trade secrets,
concepts and ideas, whether patentable, based on or comprising Proprietary
Information, made or conceived (regardless of when actually made or implemented)
by Employee, whether during the hours of his engagement or with the use or
assistance of the Company's facilities, materials or personnel, either solely or
jointly with others, and during the term of this Agreement or any extension
hereof. Inventions shall include products, processes, devices, methods,
apparatuses, designs, formulas, techniques, programs, computer software as well
as improvement thereof or know-how related thereto, but shall exclude other
inventions of Employee that Employee establishes, by
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competent proof, are neither derived from or made in connection with Proprietary
Information nor developed for the Company.
"Parent" has the meaning set forth in the opening statement to
this Agreement.
"Participate In" means directly or indirectly, for his own
benefit or for, with or through any other person or entity, own, manage,
operate, control, lend money to or participate in the ownership, management,
operation or control of, or be connected as a director, officer, employee,
partner, consultant, agent, independent contractor or otherwise with, or
acquiesce in the use of his name in.
"Proprietary Information" means information disclosed to or
known or developed by Employee about the Company's plans, strategies, prospects,
products, processes and services, including information and materials relating
to the Company's products, manufacturing procedures and techniques and
information relating to the Company's research, development, inventions,
manufacture, purchasing, accounting, engineering, marketing, merchandising and
selling, but excluding information that Employee establishes, by competent
proof, (i) was known, other than under an obligation of confidentiality or
binder of secrecy, to Employee prior to his engagement by the Company; (ii) has
passed into the public domain prior to or after its development by or for the
Company other than through acts or omissions attributable to Employee; or (iii)
was subsequently obtained other than under an obligation of confidentiality or
binder of secrecy from a third party not acquiring the information under an
obligation of confidentiality from the disclosing party.
b. Employment; Capacity; Duties; Reporting Structure; Location. The Company
will employ Employee as its General Manager of Personal Electronics or in such
other Employee capacity of comparable responsibility as the Company determines.
During his employment by the Company, Employee will perform the duties and bear
the responsibilities commensurate with his position and will serve the Company
faithfully and to the best of his ability. Employee will substantially all of
his working time, attention and energies to the business of the Company. Except
as may be required by law, Employee will not take any actions or make any
statements that discredit the Company or its products or services. Except for
his involvement in personal investments, provided such involvement does not
require any significant services on his part, Employee will not engage in any
other business activity or activities that require significant personal services
by Employee or that, in the Company's reasonable business judgment, may conflict
with the proper performance of Employee's duties hereunder. Employee's
supervisor will be, and Employee will report directly to, the Company's Chief
Executive Officer, currently Xxxx Xxxxxxxx, or any other officer of the Company
that the Chief Executive Officer may designate. Employee initially will be based
at the Company's facilities in New Hampshire. The Company may relocate Employee
to other facilities of the Company during the term of this Agreement only within
a reasonable commuting distance of Employee's New Hampshire residence.
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c. Base Salary; Bonuses; Benefits; Equity Incentives: Sick Leave; Vacation;
Expenses.
(a) As compensation for all services rendered by Employee, the
Company will pay Employee a salary of $125,000 per year ("Base Salary"),
prorated for any portion of a year, payable in arrears in the same manner as the
Company customarily pays the salaries of its employees.
(b) Employee will be eligible to be considered for bonuses
under the Management Bonus Plan established by the Compensation Committee of the
Board of Directors of the Company. If a bonus is so awarded and has not been
paid prior to termination or expiration of this Agreement (other than in
connection with a termination under Section 5(c) or 5(d)), the Company will pay
to Employee, within 90 days after the end of the calendar year in which such
termination or expiration occurs, a proportionate part of the bonus so awarded
based on the number of days elapsed during the calendar year in which such
termination or expiration occurs from January 1 of such year through and
including the date termination or expiration occurs.
(c) In addition to Base Salary, the Company will provide
Employee with the benefits of such insurance plans, hospitalization plans,
pension or profit sharing plans and other employee fringe benefit plans as are
customarily provided to employees of the Company and for which Employee is
eligible under the terms of such plans. Nothing in this Agreement shall require
the Company to adopt or maintain any such plan.
(d) In addition to the stock options the Company has awarded
Employee on or before the date hereof, the Company also may award or grant
Employee such stock options and other equity incentives as are approved by the
Company in its sole discretion. Nothing in this Agreement shall require the
Company to establish an equity incentive program or confer on Employee any right
to receive any stock option or other equity incentive not awarded on or before
the date hereof.
(e) The Company will reimburse Employee for the reasonable
out-of-pocket expenses incurred by Employee at the request of the Company in the
performance of his duties under this Agreement and such other expenses as may be
approved by the Company, in each case upon presentation to the Company of an
itemized accounting of such expenses with reasonable supporting data.
d. Term. This Agreement shall be effective on the date hereof
and, unless earlier terminated in accordance Section 5, shall
expire two years from the date hereof (the "Expiration Date").
If this Agreement terminates or expires, this Agreement shall
forthwith become void and there shall be no liability or
obligation on the part of the parties hereto, except as
otherwise provided herein, including the payment of accrued
Base Salary and benefits, if any, and except the provisions of
this
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Section 4 and Sections 6, 7, 8, 9 and 10 will remain in full
force and effect and survive any termination or expiration of
this Agreement.
e. Termination.
(a) If Employee dies, the Company will pay his estate the
compensation that would otherwise have been payable to him for the month in
which his death occurs, and this Agreement will be deemed terminated on the last
day of such month.
(b) If Employee is prevented from performing his duties by
reason of illness or incapacity for a continuous period of 120 days, the Company
may terminate this Agreement by notice to Employee or his duly appointed legal
representative. For purposes of this Section 5(b), a period of illness or
incapacity will be deemed to have occurred for a "continuous" period of 120 days
notwithstanding Employee's performance of his duties during a single period of
less than 15 continuous days during such 120 day period.
(c) The Company may terminate this Agreement at any time, with
cause, by giving written notice of termination to Employee. For purposes of this
Agreement, "cause" means any one or more of the following: (i) gross negligence
or willful misconduct that is materially injurious to the Company; (ii) conduct
that would constitute a felony or other crime of moral turpitude where
committed; (iii) material failure to perform assigned services and duties under
this Agreement, which failure continues for at least 30 days after notice in
writing thereof is given by the Company; or (iv) breach or threatened breach by
Employee of any provision of Section 6, 7 or 8.
(d) The Company may terminate this Agreement at any time,
without cause, by giving written notice of termination to Employee. In such
event Employee shall be entitled to receive (i) a severance payment equal to the
amount of Base Salary that he would have received pursuant to Section 3(a) for
the period through the remainder of the term of this Agreement under Section 4
and (ii) a continuation of benefits as specified in Section 3(b) for such
period. Any payment pursuant to this Section 5(d) will be paid in equal monthly
installments over such period. Notwithstanding anything in the foregoing to the
contrary, Employee will not be entitled to any severance payment until he has
executed and delivered to the Company a release, in form and substance
reasonably satisfactory to the Company, fully releasing the Company (and its
officers, directors, shareholders, employees and agents) from any claim or cause
of action that Employee may have against the Company or such other persons
relating in any way to this Agreement, Employee's employment by the Company or
any other aspect of Employee's relationship with the Company, through the date
of such release (other than compensation accrued but unpaid through the date of
such termination and other amounts owed to Employee prior to such termination).
The release will be signed at such times as are reasonably requested by the
Company in order for the release to be fully effective under state and federal
age discrimination laws and other laws that may impose similar requirements, and
will prohibit Employee from making any communications or taking other acts that
may injure the business, goodwill or reputation of the Company or its officers,
directors, shareholders, employees or agents. The Company will then begin making
severance payments, including severance
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payments accrued during any revocation period set forth in the release, at such
time as such revocation period will have expired.
f. Non-Disclosure of Information.
(a) Except as specifically permitted by the Company in writing
and as is required for Employee to perform his services and duties hereunder,
Employee will not, during or prior to two years after the term of this
Agreement, disclose any Proprietary Information to any person or entity for any
purpose or use or permit the use of any Proprietary Information. In addition,
Employee will not, during and for two years after the termination or expiration
hereof, undertake on behalf of any other person or entity any commercial
project, employment or consultancy that would result in use or disclosure of
Proprietary Information unless the Company shall have consented in writing to
such undertaking, employment or consultancy. The Company, in its sole
discretion, may require that Employee and any person or entity proposing to
engage Employee in such a capacity provide appropriate written assurances
regarding the avoidance of any such conflict.
(b) Upon the termination or expiration of this Agreement,
Employee will deliver to the Company all notes, letters, prints, drawings,
records, forms, contracts, studies, reports, appraisals, financial data, lists
of names or other customer data, and any other articles or papers, computer
tapes and materials that have come into his possession by reason of his
engagement by the Company, whether prepared by him, and he will not retain
memoranda or copies of any of those items.
(c) Employee acknowledges that Proprietary Information of the
Company is unique and a valuable asset of the Company, the loss or unauthorized
disclosure or use of which would cause the Company irreparable harm.
g. Inventions.
(a) Employee hereby assigns and agrees to assign to the
Company, or to any person or entity designated by the Company, without royalty
or other consideration to Employee therefor other than the compensation set
forth in this Agreement, all of his right, title and interest in and to all
Inventions, to applications for United States of America and foreign letters
patent and United States of America and foreign letters patent granted upon
Inventions, and to all material related thereto subject to copyright. Employee
further acknowledges that all copyrightable materials developed or produced by
Employee within the scope of his engagement by the Company constitute works made
for hire.
(b) Employee will communicate promptly and disclose to the
Company, in such form as the Company may reasonably request, all information,
details and data pertaining to any Invention.
(c) At the request of the Company, Employee will do all acts necessary or
appropriate to secure for the Company the full benefits of each Invention, and
otherwise to carry
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into full force and effect the assignment contained in Section 7(c). Such acts
may include, giving testimony in support of Employee's inventorship and promptly
executing and delivering to the Company such papers, instruments and documents,
without expense to Employee, as may be appropriate in the Company's opinion to
apply for, secure, maintain, reissue, extend or defend the Company's worldwide
rights in Inventions or in any or all United States of America and foreign
letters patent.
h. Covenants Not to Compete or Interfere.
(a) In view of the unique and valuable services that Employee
has been engaged to render to the Company and Employee's current and future
knowledge of the Company's Proprietary Information, Employee will not, (i)
during the term hereof and (ii) for one year after the termination or expiration
hereof (or, if this Agreement is terminated under Section 5(d) and Employee
receives severance payments, for one year after the period during which such
severance payments are made), Participate In the electronic contract
manufacturing business or any other business the Employee has Participated In
and in which the Company is engaged, or has taken material steps to be engaged,
at the time of such termination or expiration. Notwithstanding the foregoing,
Employee will not be deemed to Participate In a business merely because he owns
less than 5% of the outstanding stock of a corporation (measured in voting power
or equity), if, at the time of its acquisition by Employee, such stock is listed
on a national securities exchange or is reported on the Nasdaq National Market.
(b) During the period specified in Section 8(a) and in no
event less than one year after any termination or expiration of this Agreement,
Employee will not (i) directly or indirectly cause or attempt to cause any
employee of the Company to leave the employ of the Company; (ii) in any way
interfere with the relationship between the Company and any of its employees,
customers or suppliers; (iii) directly or indirectly hire any employee of the
Company (other than former employees who ceased to be employed by the Company at
least six months prior to the date of hire) to work for any entity of which
Employee is an officer, director, employee, consultant, independent contractor
or owner of an equity or other financial interest; or (iv) interfere or attempt
to interfere with any transaction in which the Company was involved during the
term of this Agreement.
(c) If any restriction contained in this Section 8 is deemed
to be invalid, illegal or unenforceable by a court of competent jurisdiction by
reason of its duration, geographical scope or otherwise, then such provision
will be deemed reduced in extent, duration, geographical scope or otherwise by
the minimum reduction necessary to cause the restriction to be enforceable.
i. Injunctive Relief. Employee acknowledges that the breach or
threatened breach by Employee of any of the provisions of
Section 6, 7 or 8 would cause the Company irreparable harm.
Upon the breach or threatened breach of any of the provisions
of Section 6, 7 or 8, the Company will be entitled to an
injunction, without bond, restraining Employee from committing
such breach. This right shall not be construed to limit the
Company's ability to obtain any other remedies
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available to it for such breach or threatened breach, including the recovery of
damages.
j. General Provisions.
(a) Except as otherwise provided herein, any and all remedies
herein expressly conferred upon a party will be deemed cumulative with and not
exclusive of any other remedy conferred hereby, or by law or equity upon such
party, and the exercise by a party of any one remedy will not preclude the
exercise of any other remedy. No failure or delay on the part of any party
hereto in the exercise of any right hereunder shall impair such right or be
construed to be a waiver of, or acquiescence in, any breach of any
representation, warranty or agreement herein, nor shall any single or partial
exercise of any such right preclude other or further exercise thereof or of any
other right.
(b) This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado (without regard to the
principles of conflicts of law thereof). Except as otherwise provided herein, in
the event that any provision of this Agreement, or the application thereof,
becomes or is declared by a court of competent jurisdiction to be illegal, void
or unenforceable, the remainder of this Agreement will continue in full force
and effect and the application of such provision to other persons or
circumstances will be interpreted so as reasonably to effect the intent of the
parties hereto. Except as otherwise provided herein, the parties hereto further
agree to replace such void or unenforceable provision of this Agreement with a
valid and enforceable provision that will achieve, to the extent possible, the
economic, business and other purposes of such void or unenforceable provision.
(c) All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally or by commercial
delivery service, or mailed by registered or certified mail, return receipt
requested, or sent via facsimile, with confirmation of receipt, to the parties
hereto at the following address or at such other address for a party hereto as
shall be specified by notice hereunder:
(i) if to the Company, to:
EFTC Corporation
0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx
Facsimile No.: (000) 000-0000
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with a copy to:
Holme Xxxxxxx & Xxxx LLP
0000 Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
(ii) If to Employee:
===================
-------------------
(d) Except as otherwise provided herein, neither party hereto
may assign its rights or delegate its obligations under this Agreement. The
Company may assign its rights and delegate its obligations under this Agreement
to any affiliate of the Company or to any person or entity that acquires all or
substantially all of the business of the Company whether through merger,
purchase of assets, purchase of stock or otherwise. This Agreement will be
binding upon and inure to the benefit of the parties hereto and their respective
legal representatives, heirs, and permitted successors and assigns.
(e) This Agreement constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings, both written and oral, among the parties
hereto with respect to the subject matter hereof
(f) This Agreement may be amended or modified in writing by the parties
hereto.
(g) When a reference is made in this Agreement to a Section,
such reference shall be to a Section of this Agreement unless otherwise
indicated. The words "include," "includes" and "including" when used herein
shall be deemed in each case to be followed by the words "without limitation."
The Section headings contained in this Agreement are for reference purposes only
and shall not affect in any way the meaning or interpretation of this Agreement.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms.
(h) This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties hereto and delivered to the other parties hereto, it being
understood that all parties hereto need not sign the same counterpart.
(i) In the event of any proceeding to enforce this Agreement,
the prevailing party shall be entitled to receive from the losing party all
reasonable costs and expenses, including the reasonable fees of attorneys,
accountants and other experts, incurred by the
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prevailing party in investigating and prosecuting (or defending) such action at
trial or upon any appeal.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Employment Agreement as of the date first written above.
Parent:
EFTC CORPORATION
By: /s/ Xxxx Xxxxxxxx
Employee:
[Xxxxxxx Xxxxxxxx]
[Xxxxxx Xxxxxx]
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