Exhibit 10.17
SMTC CORPORATION
000 Xxxx Xxxx
Xxxxxxx, Xxxxxxx X0X 0X0
July 27, 2000
Xx. Xxxxxxx X. Xxxxx
c/o Pensar Corporation
0000 X. Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Re: Employment Agreement
Dear Xx. Xxxxx:
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
Stock Purchase Agreement dated as of May 23, 2000 among Pensar Corporation, a
Wisconsin corporation ("Pensar"), the Company, you and the other stockholders of
the Company (the "Stock Purchase Agreement"). This Agreement is entered into in
connection with the transactions described in the Stock Purchase Agreement
pursuant to which you, as a stockholder of Pensar, will receive certain cash
payments and common stock of the Company upon the purchase of your shares of
common stock of Pensar.
1. Employment and Services. You shall be employed as Executive Vice
President, Pensar Corporation 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 of each year beginning with December 31, 2001, 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 and its subsidiaries, including Pensar
Corporation (collectively, the "SMTC Group"), 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
Pensar Employee
Employment Agreement
July 27, 2000
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 SMTC Group and
shall not engage in other business activities (whether or not compensated)
during the Employment Period 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 any one or more current or future members of the SMTC
Group or any of their affiliates, or as an officer, trustee, director or other
fiduciary of any pension or other employee benefit plan of any member of the
SMTC Group. 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. 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 $275,000 per year, subject to such increases as the Board may
approve in its sole discretion ("Base Salary"). Such compensation shall be
payable in installments in accordance with the Company's regular payroll
practices.
3. Benefits.
a. Participation in Benefit Plans. 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 executive officers and employees of the
Company (other than severance plans or arrangements) as in effect from time to
time, except to the extent these benefit plans are duplicative of benefits
otherwise provided to you under this agreement. Participation in these benefit
plans shall be subject to (i) the terms of the applicable plan documents, (ii)
generally applicable policies of the Company, and (iii) the discretion of the
Board or any administrative or other committee provided for in or contemplated
by such plan.
b. Business Expenses. 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 the policies of
the Company.
c. Vacation. During the Employment Period you shall be entitled to
forty paid vacation days in every fiscal year, to be taken at such times and
intervals as shall be determined by you in your reasonable discretion and as
consented to by the Board, which consent shall not be unreasonably withheld. You
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.
-2-
Pensar Employee
Employment Agreement
July 27, 2000
d. Other Allowances. You shall be entitled to annual allowances of
(i) $15,000 per annum for a company car, (ii) $2,000 per annum for tuition
reimbursement, and (iii) $1,000 per annum for third-party financial planning
services. You shall also be entitled to a one-time $1,000 allowance for the
purchase of a computer, to be repaid over 18 months through payroll deductions.
e. Stock Option. On the Effective Date, the Company shall grant you
a stock option to purchase _________ shares of Common Stock, $0.001 par value,
of the Company at an exercise price of $16.00 per share. Such stock option shall
be pursuant to the Company's 2000 Stock Option Plan as in effect from time to
time and any applicable stock grant agreement and the Stockholders Agreement
dated as of July 27, 2000, by and among the Company and certain of its
stockholders.
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 for Good Reason (which termination
shall in any event be upon not less than 30 days' prior written notice). 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 until the date
which is one year following the date of such termination or until December 31,
2001, whichever is later. Except as set forth in this paragraph 4, you shall not
be entitled to any compensation or other payment from the Company or any current
or future member, or affiliate of any such member, of the SMTC Group 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 any member of the SMTC
Group, or (iii) your material breach of this Agreement that is not cured within
30 days after written notice thereof to you by the Company (provided, however,
that the Company shall be required to allow only one such cure period in each
twelve-month period), 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 or (ii) a reduction in your
responsibilities and authority such that you no longer function as Executive
Vice President, Pensar Corporation, provided however, that if you do not
terminate within 30 days after the Company has provided you notice of any such
reduction in responsibilities (provided, however, that the Employee shall be
required to allow only one such cure period in each twelve-month period), then
you shall be deemed to have waived your right to terminate for Good Reason based
on such reduction.
-3-
Pensar Employee
Employment Agreement
July 27, 2000
5. Confidential Information. You acknowledge that by reason of the
transactions described in the Stock Purchase Agreement and by reason of your
employment by Pensar Corporation (during the term prior to the Employment
Period) and the Company, you have acquired and will acquire information
concerning the business or affairs of members of the SMTC Group (collectively,
the "Confidential Information"). You further acknowledge that the Confidential
Information is the property of the SMTC Group. 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 SMTC Group or its affiliates any
Confidential Information, except to the extent necessary to comply with (i)
applicable law or regulation or (ii) an order of a court or governmental
authority acting within its jurisdiction.
Notwithstanding anything contained in this Agreement to the contrary, the
term "Confidential Information" shall not include information that (i) becomes
generally available to the public other than as a result of a disclosure by you
or anyone to whom you transmit Confidential Information; (ii) was available to
you on a nonconfidential basis prior to acquiring such information in connection
with your employment by Pensar Corporation or the Company or otherwise from
Pensar Corporation, the Company or another member of the SMTC Group (including
during the term prior to the Employment Period); (iii) during or after the
Employment Period becomes available to you on a nonconfidential basis from a
source other than the Company or another member of the SMTC Group who, to your
knowledge, is not bound by a confidentiality agreement or other obligation of
secrecy with the Company with respect to such information; or (iv) was known to
you or in your possession prior to the date you acquired such information in
connection with your employment by Pensar Corporation or the Company or
otherwise from Pensar Corporation, the Company or by another member of the SMTC
Group (including during the term prior to the Employment Period).
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 SMTC
Group or their affiliates that you may then possess or have under your control.
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 SMTC Group, 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 SMTC Group.
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
-4-
Pensar Employee
Employment Agreement
July 27, 0000
xxx 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 design, development, manufacture or assembly of
printed circuit boards or other electronic manufacturing services within any
geographical area in which the SMTC Group or its affiliates do business on the
date of termination of your employment. Such geographical area shall include but
not be limited to North America (including Mexico). 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 SMTC Group or any of its affiliates on the one hand, and any of
their employees on the other hand, or induce or attempt to induce any employee
of the SMTC Group or its affiliates to terminate his or her employment, (ii)
hire directly or through another entity any person who was an employee of the
SMTC Group or any of its affiliates at any time during the Employment Period
(other than a former employee of the SMTC Group who left his or her employment
without any inducement by you), (iii) induce or attempt to induce any
independent contractor providing services to the SMTC Group or any of its
affiliates to terminate or diminish its relationship with the SMTC Group or its
affiliates, (iv) induce or attempt to induce any customer, supplier, licensee or
other business relation of the SMTC Group or its affiliates to cease doing
business with such entity, or (v) in any way interfere in any material respect
with the relationship between any such customer, supplier, licensee or business
relation and the SMTC Group or its affiliates.
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 SMTC Group and its affiliates, and that any
such entity would be irreparably harmed by a breach by you of these provisions,
and that the SMTC Group have the right and remedy to seek specific performance
and accounting.
e. Enforceability of Covenants Under Stock Purchase Agreement.
Notwithstanding anything to the contrary in this Agreement, nothing herein shall
limit or impair in any way the separate and independent enforceability of the
non-competition and confidentiality covenants set forth in Sections 7 and 8 of
the Stock Purchase Agreement, which covenants shall be and remain separate and
independent covenants enforceable in accordance with their terms.
-5-
Pensar Employee
Employment Agreement
July 27, 2000
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 under any applicable law or legal requirement. All amounts set forth
in this Agreement are denominated in US Dollars.
8. Prior Agreements. Except as expressly provided herein, all prior
agreements, arrangements or understandings, written or oral, with respect to
your employment with the Company 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 4, 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.
If to the Company:
Pensar Corporation
0000 X. Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
with a copy to:
SMTC Corporation
000 Xxxx Xxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
-6-
Pensar Employee
Employment Agreement
July 27, 2000
and:
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx
Facsimile: 000-000-0000
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, amalgamation, consolidation or liquidation) and
permitted assigns. The Company may assign this Agreement to any member of the
SMTC Group 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 associated. The Company and the members of the
SMTC Group require your personal services hereunder and you may not assign this
Agreement.
* * * * *
-7-
Pensar Employee
Employment Agreement
July 27, 2000
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/ Xxxx Xxxxxx
--------------------------
Name: Xxxx Xxxxxx
Title: President
Accepted and agreed to:
/s/ Xxxxxxx X. Xxxxx
-------------------------
Xxxxxxx X. Xxxxx
