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AGREEMENT
THIS AGREEMENT, dated as of September __, 2000, is between EFTC
Corporation, a Colorado corporation (the "Company"), and Xxxx Xxxxxxxx
("Xxxxxxxx").
Recitals
A. The parties have reached a mutual understanding and agreement
regarding the termination of Xxxxxxxx'x employment with the Company.
X. Xxxxxxxx currently serves as Chairman of the Company's Board
of Directors.
Agreement
The parties agree as follows:
1. Xxxxxxxx is currently an employee of the Company pursuant to an
employment agreement between Xxxxxxxx and the Company entered into as of June 5,
1998 (the "Employment Agreement"). Xxxxxxxx hereby agrees that his employment
with the Company pursuant to the Employment Agreement will terminate effective
as of September 30, 2000 (the "Termination Date") and that his services as an
employee of the Company and as an officer, member and trustee of any committee
or benefit plan of any of its divisions, subsidiaries, affiliates and related
organizations shall terminate on the Termination Date.
2. Xxxxxxxx will remain as the Chairman of the Board of Directors of
the Company and as a member of its Board of Directors until January 31, 2001.
Xxxxxxxx will no longer serve as Chairman of the Board of Directors of the
Company after January 31, 2001, and will resign as a member of the Board of
Directors no later than April 1, 2001.
3. During the period from October 1, 2000 through December 31, 2000 (as
the same may be extended by written agreement of both parties, the "Consulting
Period"), Xxxxxxxx shall serve as a consultant to the Company, providing
services with respect to the transition of the Company's business and the
development of business prospects by the Company and such other services as may
be specified from time to time by the Board of Directors of the Company.
Xxxxxxxx will be furnished with an appropriate office and with such secretarial
support as may be reasonably necessary to perform his duties during the
Consulting Period. Xxxxxxxx will also be reimbursed for travel expenses incurred
on behalf of the Company during the Consulting Period in accordance with the
Company's normal policies for the reimbursement of travel expenses. Xxxxxxxx
will be entitled to retain the existing Company car currently under lease during
the Consulting Period and, at the end of the Consulting Period, will be
permitted to purchase such car at the off-lease purchase price at that date.
4. No later than the end of the Consulting Period, Xxxxxxxx will vacate
his office at the Company, leaving all Company property and returning to the
Company all Company property he may have outside the office, including, without
limitation, all electronic and paper files, training materials, policies and
procedures, notebooks, handbooks, customer lists, mailing lists, account
information, credit cards, phone cards and all other tangible or intangible
property.
5. Xxxxxxxx will be entitled to receive a severance payment in an
aggregate amount of $360,000, payable in fifteen equal monthly installments,
with the first payment due and payable on October 31, 2000 and the final payment
due and payable on December 31, 2001. No portion of the severance payment shall
be made until the 7-day revocation period described in paragraph 27 below has
expired without revocation of this Agreement by Xxxxxxxx. If Xxxxxxxx should die
prior to the receipt of all severance payments provided by this Paragraph 5, any
remaining balance shall be made, in monthly installments, to his estate.
6. Xxxxxxxx will be entitled to receive a single payment of
$27,500 to be made on September 29, 2000, for all of his services as a
consultant during the Consulting Period,
7. Xxxxxxxx currently holds 442,172 stock options issued to him
pursuant to the terms of the Company's Equity Incentive Plan, some of which are
not currently vested. All of the options that Xxxxxxxx currently holds under the
Company's Equity Incentive Plan shall become fully vested and exercisable on the
Termination Date and shall remain exercisable through December 31, 2002.
Xxxxxxxx also holds 450,000 options that were granted to him under the terms of
the Company's 2000 Equity Stock Option Plan. Of those options, 225,000 options
are subject to time-based vesting based upon his employment with the Company.
All of such time-based vesting options shall fully vest and become immediately
exercisable on the Termination Date and shall remain exercisable until December
31, 2002. Xxxxxxxx also holds 225,000 options granted under the Company's 2000
Equity Stock Option Plan the vesting of which is based on certain performance
criteria. Those options shall vest, if at all, in accordance with the
satisfaction of the performance vesting requirements set forth in those options
and, to the extent that such options become exercisable, they will remain
exercisable until December 31, 2002. The Company shall take all necessary
actions in order to provide for the acceleration of the options as above
provided and for the extension of the period of time to exercise those options
by Xxxxxxxx or his estate following his termination of employment with the
Company on the Termination Date. All options currently held by Xxxxxxxx are
specified in Schedule 7 to this Agreement.
8. If Xxxxxxxx relocates his personal residence from Phoenix, Arizona,
between January 1, 2001 and May 1, 2001, the Company will reimburse him for any
costs associated with the termination of the lease on his current apartment in
Phoenix, Arizona and will pay the reasonable moving expenses associated with the
move of his household goods and furnishings from Phoenix, Arizona to such
destination within the continental United States as he may specify. Xxxxxxxx
will give the Company at least 30 days prior notice of any such relocation,
during which the Company may seek to sublease his personal residence. Xxxxxxxx
will cooperate with the Company in attempting to minimize the costs of any lease
termination.
9. Xxxxxxxx'x participation in all Company sponsored retirement,
pension, welfare and other benefit arrangements (other than the options
described above in paragraph 7) will terminate effective as of the Termination
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Date, subject to his rights with respect to the continuation of health care
under COBRA.
10. The compensation provided under this Agreement replaces any
compensation as a result of the severance of Xxxxxxxx'x employment with the
Company that would otherwise be provided under the terms of the Employment
Agreement. However, the provisions of Sections 6, 7, and 8 of the Employment
Agreement shall remain fully enforceable in accordance with their terms except
that the Company agrees that it will not unreasonably refuse to waive the
enforcement of the covenant not to compete contained in Section 7 of the
Employment Agreement if Xxxxxxxx should undertake employment in the electronic
contract manufacturing or electronic repair services business during the one
year non-compete period specified in Section 7 of the Employment Agreement.
11. Other than the severance payments described above in paragraph 5,
and the acceleration of vesting and extension of the stock options described in
paragraph 7 above, no additional or accelerated rights or vesting are being
conferred as a result of or in connection with the termination of Xxxxxxxx'x
employment of this Agreement. Xxxxxxxx acknowledges that the consideration
specified above represents an additional payment and consideration to him over
and above all compensation (including salary, wages, bonuses, or benefits) to
which he is entitled, due to his employment and the termination of his
employment.
12. Xxxxxxxx agrees that the consideration provided in this Agreement
is sufficient consideration for the cancellation of any option, right, grant or
other arrangement involving any other benefit from the Company and any benefits
required to be provided to him under applicable law. Except as specifically
provided in this Agreement, Xxxxxxxx hereby expressly and forever waives any and
all options, claims, rights or entitlements, past, present and future, to stock
in the Company or any other benefit from the Company and hereby waives,
releases, and relinquishes any and all rights to exercise such rights, grants or
benefits.
13. Each party agrees that, now and in the future, it will protect and
preserve the other's goodwill and reputation in the industry and that it will
not in any way make any disparaging or derogatory statements, either verbal or
written, regarding the other or, in the case of Xxxxxxxx, the employees,
partners, shareholders, officers or directors of the Company.
14. Individually and on behalf of his heirs, personal representatives,
successors and assigns, Xxxxxxxx agrees that he will not assert or bring any
claims of any kind whatsoever against, and hereby releases, waives and forever
discharges, the Company and/or each of its parents, subsidiaries, divisions, or
otherwise affiliated corporations, partnerships or business enterprises,
including Xxxxxx-XXXX Funding, L.L.C., Xxxxxx Equity Partners IV, L.P., TC
Equity Partners IV, L.L.C., TC Manufacturing Holdings, L.L.C., TC Co-Investors
IV, LLC, TC Management Partners IV, L.L.C., RCBA Strategic Partners, L.P., XXXX
Capital Partners, L.P., Xxxxxxx X. Xxxx & Associates, Inc. and RCBA GP, L.L.C.,
and each of their respective present and former officers, directors,
shareholders, partners, employees, agents, attorneys, representatives,
successors, and assigns (hereinafter individually referred to as "Released
Party" and collectively as "Released Parties") from any and all causes of
action, claims, charges, demands, losses, damages, wages, compensation,
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benefits, costs, attorneys' fees and liabilities of any kind that he may have or
claim to have, in any way relating to or arising out of any act or omission
through the date of this Agreement, subject, however, to the Company's
compliance with and performance of the terms and conditions of this Agreement.
This release includes but is not limited to:
(i) claims under federal, state or local common laws
prohibiting age, sex, race, national origin, disability, religion,
retaliation, or any other form of discrimination, such as the Age
Discrimination in Employment Act, Title VII of the Civil Rights Act of
1964, Civil Rights Act of 1991, the Americans with Disabilities Act,
the Family Medical Leave Act and the Older Workers Benefit Protection
Act;
(ii) claims for bonuses, incentive or severance compensation,
or for any other compensation whatsoever (except as specified in this
Agreement) or benefits whatsoever (to the extent such compensation and
benefits can be waived and released under applicable law) regardless of
whether certain compensation or benefits are specifically mentioned
above; and
(iii) other legal and equitable claims regarding his
employment, including without limitation, the hiring, retention and
termination of employment.
(b) The Company agrees that it will not assert or bring any claims of
any kind whatsoever against, and it hereby releases, waives and forever
discharges, Xxxxxxxx from any and all causes of action, claims, charges,
demands, losses, damages, wages, compensation, benefits, costs, attorneys' fees
and liabilities of any kind that it may have or claim to have, in any way
relating to or arising out of any act or omission through the date of this
Agreement, subject, however, to his compliance with and performance of the terms
and conditions of this Agreement.
15. The amounts payable and other benefits due under this Agreement are
in lieu of any amounts that would otherwise be payable or due to Xxxxxxxx
arising out of his employment or the termination of his employment with the
Company and are inclusive of all amounts that might be payable to him under the
Employment Agreement, any formal or informal severance plan or arrangement of
the Company, including payments due under any formal or informal, written or
unwritten employment agreement. All payments pursuant to this Agreement will be
subject to applicable federal, state and local withholding requirements.
16. This Agreement contains Xxxxxxxx'x complete understanding regarding
the compensation and benefits to be paid to him as a result of his resignation
and separation of employment from the Company. The money and other consideration
Xxxxxxxx has agreed to receive in exchange for this Agreement constitutes a
final settlement and shall be a complete bar to subsequent administrative
proceedings, legal actions or other actions of any kind to set aside or nullify
this Agreement because of any mistake of fact, any alleged coercion by the
Company or a Released Party, or for any other reason. Xxxxxxxx understands that
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this means that if he were to xxx the Company or a Released Party or make any
sort of legal charge against a Released Party, now or in the future, relative to
these claims, that those suits and charges can be immediately dismissed upon
presentation of this Agreement.
17. Each party recognizes that it would be difficult to ascertain
damages the other would incur in the event of a breach or a threatened breach by
such party of the provisions of this Agreement. Accordingly, each party agrees
that the other party will be entitled, and such party will not oppose on the
basis that an adequate remedy of law exists, any injunctive or other equitable
relief sought by the other party in any court of competent jurisdiction.
Furthermore, each party agrees that in the event such party willfully and
knowingly breaches any of the provisions of this Agreement, such party shall be
liable for actual and consequential damages and for reasonable attorneys' fees
and costs incurred by the other party and/or, as applicable, Released Parties as
a result of the breach. Additionally, in the event Xxxxxxxx violates any of the
provisions of this Agreement or the Employment Agreement, the Company shall be
entitled to withhold any further payments or benefits, if any, otherwise due to
Xxxxxxxx under this Agreement, up to the total amount of damages incurred by the
Company and/or its Released Parties.
18. This Agreement shall be governed in all respects, including its
validity, interpretation and effect, by the internal laws of the State of
Colorado, without giving effect to the principles of conflict of laws. Each
party hereby irrevocably submits to the jurisdiction (including without
limitation in personam jurisdiction), process and venue of the courts of the
State of Colorado and the federal courts of the United States located in Denver,
Colorado, and hereby agree that any action, suit or proceeding for the
interpretation or enforcement of the provisions of this Agreement shall be heard
and determined exclusively in a state or federal court situated in Denver,
Colorado. To the fullest extent to which each party may legally do so, such
party hereby intentionally, knowingly and voluntarily waives any right such
party may have to trial by jury.
19. In the event that any provision contained in this Agreement is
deemed to be illegal, invalid, or unenforceable under present or future laws, in
whole or in part, the parties acknowledge and agree that each and every other
provision of this Agreement shall remain valid and enforceable. The parties
agree to immediately enter into good faith negotiations to replace such illegal,
invalid or unenforceable term or condition with a valid term or condition which
reflects the intention of the parties and of similar economic effect.
20. No modification, amendment, or waiver of any provision of this
Agreement shall be effective unless approved in writing by the parties signing
below.
21. Xxxxxxxx covenants and agrees to cooperate fully with the Released
Parties concerning any business or legal matter about which Xxxxxxxx had
knowledge during his employment with the Company or any Released Party.
22. Both parties agree not to take any action inconsistent with
the provisions of this Agreement.
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23. Xxxxxxxx hereby acknowledges that a copy of this Agreement has been
provided to Xxxxxxxx for his review and consideration. BY SIGNING THIS
AGREEMENT, XXXXXXXX STATES AND ACKNOWLEDGES THAT HE HAS BEEN INVITED AND ADVISED
TO CONSULT WITH AN ATTORNEY BEFORE SIGNING THIS DOCUMENT. Xxxxxxxx acknowledges
and states that has been given a sufficient and adequate period of time in which
to consider, sign and return this Agreement.
24. This Agreement constitutes the entire and final agreement between
Xxxxxxxx and the Company with respect to his termination of employment with the
Company and his consulting services during the Consulting Period. This Agreement
shall constitute a termination of the term of his employment under the
Employment Agreement and the consideration provided hereunder replaces in its
entirety any consideration to which Xxxxxxxx would otherwise be entitled under
the terms of the Employment Agreement. As noted above, the provisions of
Sections 6, 7 and 8 of the Employment Agreement shall remain in full force and
effect in accordance with their terms. Xxxxxxxx warrants and agrees that no
Released Party has made any promise or offered him any other agreement, promise,
or assurance, except those expressed in this document, to induce or persuade him
to enter into this Agreement.
25. This Agreement and each of its provisions shall be deemed drafted
by all of the parties hereto. This Agreement shall not be interpreted strictly
for or against any party, but solely in accordance with the fair meaning of the
provisions hereof to effectuate the purpose and intent of this Agreement.
26. Each party agrees that, notwithstanding the date of the
acknowledgment below, this Agreement shall be deemed executed and made effective
on September 30, 2000.
27. Xxxxxxxx agrees, understands and affirms that:
(a) this Agreement including the foregoing release is a binding
legal document;
(b) he has the right to and should consult with an attorney before
signing this Agreement;
(c) he has twenty-one (21) calendar days in which to consider,
sign and return this Agreement;
(d) he has a period of seven (7) days after signing and returning
this Agreement in which he may revoke this Agreement;
(e) this Agreement does not become effective or enforceable and no
payment or other benefit shall be made or provided (except as required by
applicable law) hereunder until the seven-day revocation period has elapsed; and
(f) any revocation of this Agreement by Xxxxxxxx must be in
writing and delivered to the Company within the seven-day revocation period.
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Executed and delivered to Xxxxxxxx by the Company on September __,
2000.
EFTC CORPORATION, a Colorado corporation
By: /s/
-------------------------
BY SIGNING BELOW XXXXXXXX STATES THAT HE HAS CAREFULLY READ THE
FOREGOING AGREEMENT, INCLUDING THE FULL AND FINAL RELEASE OF ALL CLAIMS, AND THE
WAIVER OF A TRIAL BY JURY CONTAINED HEREIN; THAT HE HAS HAD THE OPPORTUNITY TO
SEEK THE ADVICE OF AND CONSULT WITH COMPETENT LEGAL COUNSEL OF HIS OWN CHOOSING;
THAT HE KNOWS AND UNDERSTANDS THE CONTENTS HEREOF; AND THAT HE HAS SIGNED THE
SAME AS HIS OWN FREE ACT AND DEED.
Accepted and Agreed on _______________, 2000.
/s/ Xxxx Xxxxxxxx
Xxxx Xxxxxxxx
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Schedule 7
(to Agreement dated as of September 30, 2000
between EFTC Corporation and Xxxx Xxxxxxxx)
Options held by Xxxx Xxxxxxxx under Equity Incentive Plan:
Date of Grant Number of Shares Exercise Price
8/5/96 117,941 $4.13
2/24/97 100,000 $5.75
12/15/981 175,000 $8.00
12/15/982 49,231 $8.00
Options held by Xxxx Xxxxxxxx under 2000 Equity Stock Option Plan
Date of Grant Number of Shares Exercise Price
8/22/003 225,000 $2.63
8/22/004 225,000 $2.63
--------
1 Options granted upon the repricing of 350,000 options originally granted
on 8/5/98 with an exercise price of $16.00.
2 Options granted upon the repricing of 100,000 options originally
granted on 10/27/97 with an exercise price of $16.25.
3 Options vest upon the passage of time.
4 Options vest based upon certain events.
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