EXHIBIT 10.13
SMTC CORPORATION
July 30, 1999
Xxxxxx X. Xxxxxxx
00000 Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Re: Employment Agreement
Dear Xx. Xxxxxxx:
This letter sets forth the terms and conditions of your employment with
SMTC Corporation, a Delaware corporation (the "COMPANY") to be effective as of
the date of closing of the transactions (the "EFFECTIVE DATE") described in the
Reorganization and Merger Agreement dated as of July 26, 1999 among the Company,
HTM Holdings, Inc. ("HTM"), The Surface Mount Technology Centre Inc. ("SMTC"),
EMSIcon Investments LLC, the SMTC stockholders, and the HTM stockholders and
warrantholders (the "REORGANIZATION AGREEMENT").
1. EMPLOYMENT AND SERVICES. You shall be employed as the Executive Vice
President of Business Development of the Company for the period beginning on the
Effective Date and ending on December 31, 2001 or on such earlier date as your
employment is terminated pursuant to paragraph 4 hereof (the "EMPLOYMENT
PERIOD"). The Employment Period shall automatically be extended for successive
one-year terms on December 31, 2001 and each anniversary thereof, unless (i)
either party has given written notice of non-renewal to the other party at least
90 days prior to the scheduled expiration date of the Employment Period or (ii)
your employment has been terminated pursuant to paragraph 4 hereof.
During the Employment Period, you shall render such services of a senior
executive nature to the Company, its subsidiaries and its affiliates and shall
have such powers, duties and responsibilities as may from time to time be
prescribed by the Company's Board of Directors (the "BOARD"). You shall perform
and discharge, faithfully, diligently and competently, such services, duties and
responsibilities. You shall devote all of your business time and attention and
your best efforts and ability to the business and affairs of the Company and its
subsidiaries and shall not engage in other business activities (whether or not
compensated) during the term of this Agreement without prior written consent of
the Board. You agree to serve, if elected or appointed thereto, in one or more
positions as an officer or director of the Company or any one or more of the
Company's present or future subsidiaries or affiliates, or as an officer,
trustee, director or other fiduciary of any pension or other employee benefit
plan of the Company
or any of its subsidiaries or affiliates. Service in such additional positions
will be without additional compensation except for reimbursement of reasonably
related business expenses on the same terms as provided elsewhere in this
Agreement.
2. COMPENSATION.
a. As compensation for your services performed under this Agreement
during the Employment Period, the Company shall pay you a base salary at the
rate of $225,000 per year. Such salary shall be payable in installments in
accordance with the Company's regular payroll practices. During the Employment
Period, you will be eligible to receive an annual bonus payment based on the
Company's achievement of the EBITDA Targets and the Target Performance Bonus set
forth on Annex A hereto. Such EBITDA Targets may be adjusted by the Board from
time to time to reflect any future acquisitions, mergers or other business
combinations by or involving the Company. For the fiscal year ending December
31, 1999, the EBITDA Targets shall be calculated on a pro forma basis as if the
combination of HTM and SMTC had occurred on January 1, 1999. Beginning in
fiscal year 2000 you will be entitled to receive a mid-year payment to be
credited against your annual bonus payment in an amount equal to 40% of the
annual bonus payment that you would receive based on the Board's mid-year
projection of the Company's year-end EBITDA, provided that in no case shall you
have any liability to repay any portion of this payment to the Company in the
event that the Company's actual year-end EBITDA is below the Board's projection.
b. The Company will pay you an additional bonus on or before April
15, 2000 equal to the amount that would cause your after tax proceeds from such
bonus to equal the amount of your tax liability, if any, arising from your
receipt of an ownership interest in J&L Investments, LLC, a Delaware limited
liability company, as described in the Reorganization Agreement.
3. BENEFITS. During the Employment Period, you shall be entitled to
participate in or receive benefits under any life insurance plan, health and
accident insurance plan, retirement plan and all other benefit arrangements
generally available to the Company's executive officers and employees (other
than severance plans or arrangements) as in effect from time to time. The
Company will at all times maintain a life insurance policy with a death benefit
of $225,000 to be paid to a beneficiary of your choice. In addition, the Company
will reimburse your reasonable out-of-pocket expenses incurred in connection
with the performance of your services hereunder, in each case subject to and
consistent with Company policy. During the Employment Period you shall be
entitled to 20 paid vacation days in each fiscal year and shall also be entitled
to all paid holidays given by the Company to its employees. Your paid vacation
days shall be prorated for any period of service hereunder less than a full
year. You will not be entitled to cash compensation for any vacation time not
taken during the term hereof.
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4. TERMINATION AND SEVERANCE. The Employment Period shall terminate
prior to its scheduled expiration date on the first to occur of (i) your death
or permanent disability (defined as your actual inability to perform normal
duties for a period of 90 consecutive days or for a total of 120 days in any
two-year period or your prospective inability to perform such duties for such
period as determined in good faith by the Board), (ii) a vote of the Board
directing such termination for Cause, (iii) a vote of the Board directing such
termination without Cause, or (iv) termination by you upon not less than 30
days' prior written notice for Good Reason. In the event of termination of the
Employment Period pursuant to clauses (iii) or (iv) above and so long as you
comply with the restrictions set forth in paragraphs 5 and 6 below, the Company
shall continue to pay your base salary for two years following the date of such
termination. Except as set forth in this paragraph 4, you shall not be entitled
to any compensation or other payment from the Company or any of its affiliates
in connection with the termination of your employment. For purposes of this
agreement, (x) "CAUSE" shall mean (i) your willful and repeated failure to
comply with the lawful directives of the Board, (ii) any criminal act or act of
dishonesty, disloyalty, misconduct or moral turpitude by you that is injurious
to the property, operations, business or reputation of the Company, or (iii)
your material breach of this agreement that is not cured within 30 days after
written notice thereof to you by the Company, and (y) "GOOD REASON" shall mean
(i) the Company's material breach of this agreement that is not cured within 30
days after written notice thereof to the Company by you, (ii) a reduction in
your responsibilities and authority such that you no longer function as the
Executive Vice President of Business Development for the Company, (iii) a change
in the location of the Hi-Tech Manufacturing, Inc. facility where you regularly
report for work, which change extends your commute to such facility by more than
25 miles going one way, or (iv) your removal from the Board, provided however,
that (a) if you do not terminate within 30 days after the Company has provided
you notice of a reduction of your responsibilities, or (b) if you resign from
the Board, then you shall be deemed to have waived your right to terminate for
Good Reason based on such action.
5. CONFIDENTIAL INFORMATION. You acknowledge that information obtained
by you during your employment with the Company (including during the term of
your employment by HTM Holdings, Inc. or Hi-Tech Manufacturing, Inc.) concerning
the business or affairs of the Company ("CONFIDENTIAL INFORMATION") is the
property of the Company. You shall not at any time during or after the
Employment Period, without the prior written consent of the Board, disclose to
any unauthorized person or use for your own account or for the account of any
person other than the Company and its subsidiaries any Confidential Information,
except to the extent necessary to comply with applicable laws or to the extent
that such information becomes generally known to and available for use by the
public other than as a result of your acts or omissions to act. Upon
termination of the Employment Period or at the request of the Board at any time,
you shall deliver to the Board all documents containing Confidential Information
or relating to the business or affairs of the Company that you may then possess
or have under your control.
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6. NON-COMPETITION; NON-SOLICITATION.
a. NON-COMPETITION. You acknowledge that you are and will be in
possession of Confidential Information, that your services are of unique and
great value to the Company, and that some restrictions on your activities during
and after your employment are necessary to protect the goodwill, Confidential
Information and other legitimate interests of the Company and its subsidiaries
and affiliates. Accordingly, during the Employment Period and for the period
thereafter during which you receive continued payments of your base salary
pursuant to Section 4 or, in the case of termination of your employment for
Cause pursuant to Section 4(ii), for a period of one year following the date of
termination of your employment (the "NON-COMPETE PERIOD"), you shall not,
directly or indirectly, own, manage, control, participate in, consult with,
render services to, or in any manner engage in, any enterprise engaged in the
assembly of printed circuit boards or other electronic manufacturing services
within any geographical area in which the Company and its subsidiaries do
business on the date of termination of your employment. Such geographical area
shall include but not be limited to North America (including Mexico), Europe,
Southeast Asia and China. Nothing herein shall prohibit you from being a
passive owner of not more than 5% of any publicly-traded class of capital stock
of any entity engaged in a competing business.
b. NON-SOLICITATION OF EMPLOYEES, SUPPLIERS AND CUSTOMERS. During
the Non-Compete Period, you shall not (i) interfere with the relationship
between the Company and any of its employees, or induce or attempt to induce any
employee of the Company to terminate his or her employment, (ii) hire directly
or through another entity any person who was an employee of the Company at any
time during the Employment Period (iii) induce or attempt to induce any
independent contractor providing services to the Company or any of its
subsidiaries to terminate or diminish its relationship with the Company or its
subsidiaries, (iv) induce or attempt to induce any customer, supplier, licensee
or other business relation of the Company to cease doing business with the
Company, or in any way interfere in any material respect with the relationship
between any such customer, supplier, licensee or business relation and the
Company.
c. SCOPE OF RESTRICTION. If, at the time of enforcement of this
paragraph 6, a court shall hold that the duration, scope or area restrictions
stated herein are unreasonable under circumstances then existing, you agree that
the maximum duration, scope or area reasonable under such circumstances shall be
substituted for the stated duration, scope or area.
d. NECESSITY OF RESTRAINTS. You acknowledge that the restraints
imposed by this paragraph 6 and by paragraph 5 above are reasonable and
necessary for the protection of the Company and its subsidiaries, and that the
Company would be irreparably harmed by a breach by you of these provisions.
7. WITHHOLDING; CURRENCY. All payments made by the Company under this
Agreement shall be net of any tax or other amounts required to be withheld by
the Company
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under any applicable law or legal requirement. All amounts set
forth in this agreement are denominated in US Dollars.
8. PRIOR AGREEMENTS. With the exception of terms that relate to your
employment in each of (i) the Grant of Stock Purchase Options, dated the date
hereof, delivered to you by the Company, (ii) the Operating Agreement of J&L
Investments, LLC and (iii) the Stockholders Agreement of the Company, dated the
date hereof, all prior agreements, arrangements or understandings, written or
oral, with respect to your employment with the Company, HTM or any subsidiary or
affiliate thereof are superseded by this Agreement and shall be of no further
force and effect.
9. SURVIVAL. The provisions of paragraphs 5 and 6 hereof will survive
any termination of this Agreement in accordance with their respective terms.
10. GOVERNING LAW. All questions concerning the construction, validity
and interpretation of this Agreement shall be governed by the laws of the State
of Delaware without giving effect to any choice or conflict of laws provision or
rule that would cause the application of the domestic substantive laws of any
other jurisdiction.
11. NOTICES. All notices, requests and demands to or upon the parties
hereto to be effective shall be in writing, by facsimile, by overnight courier
or by registered or certified mail, postage prepaid and return receipt
requested, and shall be deemed to have been duly given or made upon: (i)
delivery by hand, (ii) one business day after being sent by overnight courier;
or (iii) in the case of transmission by facsimile, when confirmation of receipt
is obtained. Such communications shall be addressed and directed to the parties
as follows (or to such other address as either party shall designate by giving
like notice of such change to the other party):
If to you, at the address first stated above.
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If to the Company:
SMTC Corporation
c/o EMSIcon Investments, LLC
c/o Bain Capital, Inc.
Two Xxxxxx Xxxxx
Xxxxxx, XX 00000
with a copy to:
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx
Facsimile: 000-000-0000
with a copy to:
The Surface Mount Technology Centre Inc.
000 Xxxx Xxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
12. AMENDMENT; WAIVER. No provision of this Agreement may be amended
modified, waived or discharged unless such amendment waiver, modification or
discharge is approved by the Board and agreed to in writing signed by you and
such officer as may be specifically authorized by the Board in connection with
such approval. No waiver of any condition or provision of this Agreement shall
be deemed a waiver of similar or dissimilar provisions or conditions at the same
or at any prior or subsequent time.
13. ASSIGNMENT. This Agreement shall inure to the benefit of and be
binding upon (i) you, your personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees and (ii)
the Company and its successors (including, without limitation, by means of
reorganization, merger, consolidation or liquidation) and permitted assigns.
The Company may assign this Agreement to any of its subsidiaries or to any
successor of the Company by reorganization, merger, consolidation or liquidation
and any transferee of all or substantially all of the business or assets of the
Company or of any division or line of business of the Company with which you are
at any time associated. The Company requires your personal services hereunder
and you may not assign this Agreement.
* * * * *
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Please execute the extra copy of this letter Agreement in the space below
and return it to the undersigned at the address set forth above to confirm your
understanding and acceptance of the agreements contained herein.
Very truly yours,
SMTC CORPORATION
By:/s/ Xxxxxxxx Xxxx
-----------------
Name: Xxxxxxxx Xxxx
Title: Vice President
Accepted and agreed to:
EMPLOYEE
/s/ Xxxxxx X. Xxxxxxx
---------------------
Xxxxxx X. Xxxxxxx
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