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EXHIBIT 10.15
XETEL CORPORATION
PERSONAL AND CONFIDENTIAL
XETEL CORPORATION
February 22, 1999
Dear :
We are pleased to inform you that the Company's Board of Directors has
approved a special severance benefit program for you. The purpose of this letter
agreement is to set forth the terms and conditions of your severance benefits
and to explain the limitations that will govern their overall value.
Your severance package will become payable if within eighteen (18)
months following a substantial change in ownership or control of the Company
either (i) your employment is terminated by the Company other than for cause or
(ii) you resign following a significant reduction in your compensation or duties
or a relocation of your principal place of employment.
Part One of this letter agreement specifies the terms and conditions of
your severance benefits. Part Two sets forth certain definitional provisions to
be in effect for purposes of determining your benefit entitlements. Part Three
concludes this agreement with a series of general terms and conditions
applicable to your benefits.
PART ONE -- CHANGE IN CONTROL BENEFITS
Upon any Involuntary Termination effected within eighteen (18) months
after a Change in Control, you will become entitled to receive the special
severance benefits set forth below. However, those benefits will in all events
be subject to the restrictive covenants of Paragraph 5 of this Part One and will
be in lieu of all other severance benefits to which you might otherwise be
entitled upon such termination of your employment.
1. SEVERANCE PAYMENTS. You will receive severance payments from the
Company in an aggregate amount equal to the sum of (A) two (2) times the annual
rate of base salary in effect for you at the time of your Involuntary
Termination plus (B) two (2) times the bonus paid to you as defined in the
annual executive variable pay plan and previously approved by the Board of
Directors for services rendered in the four fiscal quarters immediately
preceding your Involuntary Termination. The severance payments will be paid to
you in twenty-six (26) equal installments at bi-weekly intervals over the twelve
(12) month period following your Involuntary Termination. At your election, in
lieu of the twenty-six (26) installment payments, the Company will pay you
ninety percent (90%) of your aggregate severance payment within ten (10)
business days following your Involuntary Termination and the balance in
twenty-six (26) equal installments at bi-weekly intervals over the twelve (12)
month period following your Involuntary Termination. Your election to receive
ninety percent (90%) of your severance payments in a lump sum payment must be
made within five (5) business days of your Involuntary Termination. All payments
under this Paragraph 1 will be subject to the Company's collection of applicable
withholding taxes.
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XETEL CORPORATION
PERSONAL AND CONFIDENTIAL
2. HEALTH CARE COVERAGE. The Company will, at its expense, provide you
and your eligible dependents with continued health care coverage under the
Company's medical/dental insurance plan until the earlier of (i) eighteen (18)
months after the effective date of your Involuntary Termination or (ii) the
first date that you are covered under another employer's health benefit program
which provides substantially the same level of benefits without exclusion for
pre-existing medical conditions
3. OPTION AND RESTRICTED STOCK ACCELERATION. Each outstanding Option
will automatically accelerate, so that each such Option will become fully
exercisable for all of the shares of Common Stock at the time subject to such
Option and may be exercised for any or all of those shares as fully-vested
shares of Common Stock. Each such accelerated Option, together with all of your
other vested Options, will remain exercisable until the earlier of (i) the
expiration of the one (1)-year period measured from the effective date of your
Involuntary Termination or (ii) the end of the specified option term and may be
exercised for any or all of the option shares in accordance with the exercise
provisions of the option agreement evidencing the grant. In addition, all the
restricted shares of Common Stock issued to you pursuant to the Restricted Stock
Issuances will become immediately vested and the Company's repurchase right with
respect to such shares will immediately terminate.
4. BENEFIT REDUCTION. Should any of your severance benefits under this
letter agreement be deemed to be parachute payments under Code Section 280G,
then the following limitations will become applicable: (i) first, the dollar
amount of your severance payment under Paragraph 1, and (ii) then, the
accelerated vesting of your Options and Restricted Stock Issuances under
Paragraph 3 will be reduced to the extent (and only to the extent) necessary to
provide you with the maximum after-tax benefit available, after taking into
account any parachute excise tax which might otherwise be payable by you under
Code Section 4999 and any analogous State income tax provision.
5. RESTRICTIVE COVENANTS. For the twenty-four month period following
your Involuntary Termination:
(i) You will not directly or indirectly, whether for your own
account or as an employee, director, consultant or advisor, provide
services to any business enterprise which is at the time in competition
with any of the Company's then existing product lines and which is
located geographically in an area where the Company maintains
substantial business activities, unless you obtain the prior written
consent of the Board.
(ii) You will not directly or indirectly encourage or solicit
any individual to leave the Company's employ for any reason or
interfere in any other manner with the employment relationships at the
time existing between the Company and its current or prospective
employees.
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PERSONAL AND CONFIDENTIAL
(iii) You will not induce or attempt to induce any customer,
supplier, distributor, licensee or other business relation of the
Company to cease doing business with the Company or in any way
interfere with the existing business relationship between any such
customer, supplier, distributor, licensee or other business relation
and the Company.
You acknowledge that monetary damages may not be sufficient to
compensate the Company for any economic loss which may be incurred by reason of
your breach of the foregoing restrictive covenants. Accordingly, in the event of
any such breach, the Company shall, in addition to the cessation of the
severance benefits provided you under this agreement and any remedies available
to the Company at law, be entitled to obtain equitable relief in the form of an
injunction precluding you from continuing to engage in such breach.
PART TWO -- DEFINITIONS
DEFINITIONS. For purposes of this letter agreement, the following
definitions will be in effect:
BOARD means the Company's Board of Directors.
CHANGE IN CONTROL means a change in ownership or control of the Company
effected through any of the following transactions:
(i) a merger or consolidation in which securities possessing
more than forty percent (40%) of the total combined voting power of the
Company's outstanding securities are transferred to a person or persons
different from the persons holding those securities immediately prior
to such transaction, or
(ii) the sale, transfer or other disposition of all or
substantially all of the Company's assets in complete liquidation or
dissolution of the Company, or
(iii) the acquisition, directly or indirectly, by any person
or related group of persons (other than the Company or a person that
directly or indirectly controls, is controlled by, or is under common
control with, the Company) of beneficial ownership (with the meaning of
Rule 13d-3 of the 1934 Act) of securities possessing more than
twenty-five percent (25%) of the total combined voting power of the
Company's outstanding securities pursuant to a tender or exchange offer
made directly to the Company's stockholders or
(iv) a change in the composition of the Board over a period of
thirty-six (36) consecutive months or less such that a majority of the
Board members ceases, by reason of one or more contested elections for
Board membership, to be comprised of individuals who either (A) have
been Board
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XETEL CORPORATION
PERSONAL AND CONFIDENTIAL
members continuously since the beginning of such period or (B) have
been elected or nominated for election as Board members during such
period by at least a majority of the Board members described in clause
(A) who were still in office at the time the Board approved such
election or nomination.
CODE means the Internal Revenue Code of 1986, as amended.
COMMON STOCK means the Company's common stock.
INVOLUNTARY TERMINATION means the termination of your employment with
the Company which occurs by reason of:
(i) your involuntarily dismissal or discharge by the Company
for reasons other than Misconduct; or
(ii) your voluntary resignation following (A) a change in your
position with the Company which materially reduces your level of
responsibility, (B) a reduction in your level of compensation
(including base salary, fringe benefits and participation in a
corporate-performance based bonus or incentive program) by more than
ten percent (10%), or (C) a relocation of your place of employment by
more than fifty (50) miles, provided and only if such change, reduction
or relocation is effected by the Company without your consent.
In no event shall an Involuntary Termination be deemed to occur should
your employment terminate by reason of death, permanent disability or
Misconduct.
MISCONDUCT means the commission of any act of fraud, embezzlement,
dishonesty, discrimination, sexual harassment or any unauthorized use or
disclosure of confidential information or trade secrets of the Company (or any
Parent or Subsidiary), or any other intentional misconduct adversely affecting
the business or affairs of the Company (or any Parent or Subsidiary) in a
material manner. The foregoing definition shall not be deemed to be inclusive of
all the acts or omissions which the Company (or any Parent of Subsidiary) may
consider as grounds for your dismissal or discharge.
1934 ACT means the Securities Exchange Act of 1934, as amended.
OPTION means any option granted to you under the Company's 1997 Stock
Incentive Plan or any other equity incentive plan subsequently adopted by the
Company or any successor which is outstanding at the time of your subsequent
Involuntary Termination.
RESTRICTED STOCK ISSUANCES means the direct restricted stock issuances
made to you under the Company's 1997 Stock Incentive Plan subject to the
Company's right to repurchase those shares upon your termination of service.
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XETEL CORPORATION
PERSONAL AND CONFIDENTIAL
PART THREE -- MISCELLANEOUS PROVISIONS
1. TERMINATION FOR MISCONDUCT. In the event your Involuntary
Termination occurs as a result of Misconduct or should you resign under the
circumstances which would otherwise constitute grounds for Termination for
Misconduct, then the Company shall only be required to pay you (i) any unpaid
compensation earned for services previously rendered through the date of such
termination and (ii) any accrued but unpaid vacation benefits or sick days, and
no benefits will be payable to you under Part One of this letter agreement.
2. GENERAL CREDITOR STATUS. The benefits to which you may become
entitled under this letter agreement (except those attributable to your Options
and restricted shares of Common Stock) will be paid, when due, from the general
assets of the Company. Your right (or the right of the executors or
administrators of your estate) to receive any such payments will at all times be
that of a general creditor of the Company and will have no priority over the
claims of other general creditors of the Company.
3. DEATH. Should you die before receipt of all benefits to which you
become entitled under this letter agreement, then the payment of such benefits
will be made, on the due date or dates hereunder had you survived, to the
executors or administrators of your estate. Should you die before you exercise
your Options, then each such Option may be exercised, during the applicable
exercise period in effect hereunder for those Options at the time of your death,
by the executors or administrators of your estate or by person to whom the
Option is transferred pursuant to your will or in accordance with the laws of
inheritance.
4. MISCELLANEOUS. The provisions of this letter agreement will be
construed and interpreted under the laws of the State of Texas. This agreement
incorporates the entire agreement between you and the Company relating to the
subject of severance benefits and supersedes all prior agreements and
understandings with respect to such subject matter. This agreement may only be
amended by written instrument signed by you and another duly-authorized officer
of the Company. If any provision of this letter agreement as applied to any
party or to any circumstance should be adjudged by a court of competent
jurisdiction to be void or unenforceable for any reason, the invalidity of that
provision shall in no way affect (to the maximum extent permissible by law) the
application of such provision under circumstances different from those
adjudicated by the court, the application of any other provision of this letter
agreement, or the enforceability or invalidity of this letter agreement as a
whole. Should any provision of this letter agreement become or be deemed
invalid, illegal or unenforceable in any jurisdiction by reason of the scope,
extent or duration of its coverage, then such provision shall be deemed amended
to the extent necessary to conform to applicable law so as to be valid and
enforceable or, if such provision cannot be so amended without materially
altering the intention of the parties, then such provision shall be stricken and
the remainder of this letter agreement shall continue in full force and effect.
5. REMEDIES. All rights and remedies provided pursuant to this letter
agreement or by law will be cumulative, and no such right or remedy will be
exclusive of any other. A party may pursue any one or more rights or remedies
hereunder or may seek damages
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XETEL CORPORATION
PERSONAL AND CONFIDENTIAL
or specific performance in the event of another party's breach hereunder or may
pursue any other remedy by law or equity, whether or not stated in this letter
agreement.
6. ARBITRATION. Any controversy which may arise between you and the
Company with respect to the construction, interpretation or application of any
of the terms, provisions or conditions of this agreement or any monetary claim
arising from or relating to this agreement will be submitted to final and
binding arbitration in Austin, Texas in accordance with the rules of the
American Arbitration Association then in effect.
7. NO EMPLOYMENT OR SERVICE CONTRACT. Nothing in this agreement shall
confer upon you any right to continue in the employment of the Company for any
period of specific duration or interfere with or otherwise restrict in any way
the rights of the Company or you, which rights are hereby expressly reserved by
each, to terminate your employment at any time for any reason whatsoever, with
or without cause.
Please indicate your acceptance of the foregoing provisions of this
severance agreement by signing the enclosed copy of this letter agreement and
returning it to the Company.
XETEL CORPORATION
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Signature: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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Date: 2/22/99
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Title: President and CEO
ACCEPTED BY AND AGREED TO
By:
Signature:
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Date:
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Title:
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