EXECUTIVE SEVERANCE AGREEMENT
Exhibit 10.2
EXECUTIVE SEVERANCE AGREEMENT
Steve Robinson | December 8, 2004 |
Data Circuit Systems, Inc.
Data Circuit Systems, Inc. (the Company) is a wholly owned subsidiary of Merix Corporation (Parent). (The term Employer is used in this Agreement to mean either the Company or Parent, whichever employs Executive upon Termination of Executives Employment (as defined in Section 8.1). The Company considers the establishment and maintenance of a sound and vital management to be essential to protecting and enhancing the best interests of the Company, Parent and its shareholders. In this connection, the Company recognizes that, as is the case with many corporations, the possibility of a change of control may exist and that such possibility, and the uncertainty and questions that it may raise among management, may result in the departure or distraction of management personnel to the detriment of the Company, Parent and its shareholders. In order to induce Steve Robinson (Executive) to remain employed by the Company or Parent in the face of uncertainties about the long-term strategies of the Company and Parent and possible change of control of the Company or Parent and their potential impact on Executives position with the Company or Parent, this Agreement, which has been approved by the Board of Directors of the Company, sets forth the severance benefits that Executive will receive in the event Executives employment is terminated under the circumstances described in this Agreement.
1. Employment Relationship.
Executive is currently employed by the Company as President pursuant to a written Employment Agreement. Executive and the Company acknowledge that either party may terminate this employment relationship pursuant to the terms of that Employment Agreement, subject to the obligation to provide the severance benefits specified in this Agreement in accordance with the terms hereof.
2. Release of Claims.
In consideration for and as a condition precedent to receiving the severance benefits outlined in this Agreement, Executive agrees to execute and deliver to Employer a Release of Claims in the form attached as Exhibit A (Release of Claims) that will be delivered to Executive on the date of Termination of Executives Employment.
3. Additional Compensation Upon Termination.
In addition to unpaid salary and other wages, if any, payable to Executive through the date of Termination of Executives Employment, in the event of a Termination of Executives Employment at any time other than for Cause (as defined in Section 8.2 of this Agreement), death or Disability (as defined in Section 8.4 of this Agreement), and contingent upon Executives execution of the Release of Claims and compliance with Section 10 of this Agreement, Executive shall be entitled to the following benefits:
3.1 As severance pay and in lieu of any other compensation for periods subsequent to the date of Termination of Executives Employment, Employer shall pay Executive, in a single payment after employment has ended and eight days have passed following execution of the Release of Claims without revocation, an amount in cash equal to one year of Executives annual base pay at the rate in effect immediately prior to the date of Termination of Executives Employment.
3.2 Executive is entitled to extend coverage under any group health plan in which Executive and Executives dependents are enrolled at the time of Termination of Executives Employment under the COBRA continuation laws for the 18-month statutory period, or for as long as Executive remains eligible under COBRA. Employer will pay Executive a lump sum payment in an amount equivalent to the reasonably estimated cost Executive may incur to extend for a period of 18 months under the COBRA continuation laws Executives group health and dental plan coverage in effect at the time of Termination of Executives Employment, such payment to be made no later than 2 1/2 months following the year in which the Termination of Executives Employment occurs. Executive may use this payment, as well as any payment made under Section 3.1, for such COBRA continuation coverage or for any other purpose.
3.3 Executive shall be entitled to a portion of the benefits under any annual cash incentive plans in effect at the time of Termination of Executives Employment equal to the greater of (a) 50 percent of Executives target benefit under such plan for the year or (b) a prorated amount representing the portion of the plan year during
which Executive was a participant. For purposes of this Agreement, Executives participation in any such plan will be considered to have ended on Executives last day of active employment. In making the proration calculation, the amount of Executives award if Executive had been a participant for the full incentive period shall be divided by the total number of days in the incentive period, and the result multiplied by the actual number of days Executive participated in the plan. The payment amount shall be calculated at the end of the incentive period and the amount shall not be due and payable to Executive until the date that all awards are payable to other eligible employees after the close of the incentive period, but in no event later than 2 1/2 months following the year in which the Termination of Executives Employment occurs. Notwithstanding the foregoing, Executive may elect at any time after Termination of Executives Employment and before such payment, by written notice to Employer, to receive 50 percent of Executives target benefit instead of the prorated amount, in which case the payment shall be made within 20 days of such election. If the applicable plan provides for a greater payment for a participant whose employment terminates prior to the end of an incentive period, the applicable plan payment shall be made. Executive acknowledges that this Section 3.3 modifies and supersedes any payment provisions under any existing or future bonus plan.
3.4 Employer will pay up to $12,500 to a third-party outplacement firm selected by Executive to provide career counseling assistance to Executive for a period of one year following the date of Termination of Executives Employment. Executive may elect to receive the $12,500 in cash in lieu of payment to a third-party outplacement firm payable no later than 2 1/2 months following the year in which the Termination of Executives Employment occurs.
3.5 All outstanding stock options, restricted stock, stock bonuses or other stock awards shall be governed by the terms of the applicable agreement or plan.
4. Additional Compensation Upon Termination Following a Change of Control.
In the event of a Termination of Executives Employment other than for Cause, death or Disability within 24 months following a Change of Control (as defined in Section 8.3), or prior to a Change of Control at the direction of a person who has entered into an agreement with the Company or Parent, the consummation of which will constitute a Change of Control, and contingent upon Executives execution of the Release of Claims and compliance with Sections 5 and 10, Executive shall be entitled to the following benefits, which benefits shall be in addition to the benefits provided in Section 3:
4.1 Employer shall pay Executive, in a single payment within the later of (a) eight days after the last day of employment, including employment during the up-to-six-months-employment period referred to in Section 5 if the Company, Parent or the surviving company has requested Executive to continue employment during such period and (b) eight days after execution of the Release of Claims without revocation, an amount in cash equal to one year of Executives annual base pay at the rate in effect immediately prior to the date of Termination of Executives Employment.
4.2 Executive shall be entitled to receive an amount such that the amount payable pursuant to Section 3.3 plus the amount payable pursuant to this Section 4.2 equals 100 percent of the Executives target benefit for the year under annual cash incentive plans in effect at the time of Termination of Executives Employment. The amount payable pursuant to Section 4.2 shall be paid on the same date that the Section 4.1 payment is payable.
4.3 Employer shall maintain in full force and effect, at its sole cost and expense, for Executives continued benefit for a period terminating 18 months after the date of Termination of Executives Employment, a life insurance policy insuring Executives life with coverage equal to two times Executives annual base pay in effect immediately prior to Termination of Executives Employment, provided that Executives continued participation is possible under the general terms and provisions of such policy. At Executives election, or if Executives continued participation in such policy is barred, Employer shall make a lump-sum payment to Executive equal to the total premiums that would have been paid by Employer for such 18-month period, such payment to be made no later than 2 1/2 months following the year in which the Termination of Executives Employment occurs. The maximum amount that Employer shall be obligated to pay pursuant to this Section 4.3 in premiums and payments to Executive shall be $5,000.
4.4 The possibility of forfeiture to the Company or Parent, as the case may be, of all stock issued to Executive under all Executive Stock Bonus Agreements shall immediately lapse.
4.5 All outstanding stock options held by Executive under all stock option and stock incentive plans of the Company or Parent shall become immediately exercisable in full and shall remain exercisable until the earlier of (a) two years after Termination of Executives Employment or (b) the option expiration date as set forth in the applicable option agreement.
4.6 Notwithstanding any provision in this Agreement, in the event that Executive would receive a greater after-tax benefit from the Capped Benefit (as
defined in the next sentence) than from the payments pursuant to this Agreement (the Specified Benefits), the Capped Benefit shall be paid to Executive and the Specified Benefits shall not be paid. The Capped Benefit is the Specified Benefits, reduced by the amount necessary to prevent any portion of the Specified Benefits from being parachute payments as defined in Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (IRC), or any successor provision. For purposes of determining whether Executive would receive a greater after-tax benefit from the Capped Benefit than from the Specified Benefits, there shall be taken into account all payments and benefits Executive will receive upon a Change in Control (collectively, excluding the Specified Benefits, the Change of Control Payments). To determine whether Executives after-tax benefit from the Capped Benefit would be greater than Executives after-tax benefit from the Specified Benefits, there shall be subtracted from the sum of the before-tax Specified Benefits and the Change of Control Payments (including the monetary value of any non-cash benefits) any excise tax that would be imposed under IRC § 4999 and all federal, state and local taxes required to be paid by Executive in respect of the receipt of such payments, assuming that such payments would be taxed at the highest marginal rate applicable to individuals in the year in which the Specified Benefits are to be paid or such lower rate as Executive advises Employer in writing is applicable to Executive.
4.7 If Executives employment with Employer terminates for any reason prior to a Change of Control, other than at the direction of a person who has entered into an agreement with the Company or Parent, the consummation of which will constitute a Change of Control, Executive shall not be entitled to benefits under Section 4 of this Agreement.
5. Additional Service.
Executive agrees that, if requested by the Employer or the surviving company following a Change of Control, Executive will continue his or her employment with Employer or the surviving company for a period of up to six months following the Change of Control in any capacity requested by Employer or the surviving company consistent with Executives areas of professional expertise. During this period Executive shall receive the same salary and substantially the same benefits as in effect prior to the Change of Control. Executive shall not be entitled to any benefits provided by Section 4 if Executive fails to perform in accordance with this Section 5.
6. Tax Withholding; Subsequent Employment.
6.1 All payments provided for in this Agreement are subject to applicable tax withholding obligations imposed by federal, state and local laws and regulations.
6.2 The amount of any payment provided for in this Agreement shall not be reduced, offset or subject to recovery by the Company or Parent by reason of any compensation earned by Executive as the result of employment by another employer after Termination of Executives Employment.
7. Other Agreements.
This Agreement replaces and supersedes any severance agreement or other similar agreement between Executive and the Company or Parent entered into prior to the date of this Agreement. In the event that severance benefits are payable to Executive under any other agreement with the Company or Parent in effect at the time of Termination of Executives Employment (including but not limited to any employment agreement, but excluding for this purpose any stock option agreement or stock bonus agreement or stock appreciation right agreement that may provide for accelerated vesting or related benefits upon the occurrence of a Change in Control), the benefits provided in this Agreement shall not be payable to Executive. Executive may, however, elect to receive all of the benefits provided for in this Agreement in lieu of all of the benefits provided in all such other agreements. Any such election shall be made with respect to the agreements as a whole, and Executive may not select some benefits from one agreement and other benefits from this Agreement.
8. Definitions.
8.1 Termination of Executives Employment.
Termination of Executives Employment means that Employer has terminated Executives employment (including termination of employment with any subsidiary of the Company or Parent). For purposes of Section 3, if Executive is assigned additional or different titles, tasks or responsibilities from those currently held or assigned, consistent with Executives areas of professional expertise, with no decrease in annual base compensation, and with no requirement that Executive be based more than 50 miles from where Executives office is located on the date of this Agreement, whether at the Parent, Company or any subsidiary of the Company or Parent, such circumstances shall not constitute a Termination of Executives Employment. For purposes of Section 4, Termination of Executives Employment shall include termination by Executive, within 24 months of a Change of Control, by written notice to Employer referring to the applicable paragraph of Section 8.1, for Good Reason based on:
(a) the assignment to Executive of a different title, job or responsibilities that results in a decrease in the level of responsibility of Executive with respect to the surviving company after the Change of Control when compared to Executives level of
responsibility for Employers operations prior to the Change of Control; provided that Good Reason shall not exist if Executive continues to have the same or a greater general level of responsibility for the former Employer operations after the Change of Control as Executive had prior to the Change of Control even if the former Employer operations are a subsidiary or division of the surviving company and such operations receive the same or greater budget than before the Change of Control;
(b) a reduction by Employer or the surviving company in Executives annual base pay as in effect immediately prior to the Change of Control;
(c) a significant reduction by Employer or the surviving company in total benefits available to Executive under cash incentive, stock incentive and other employee benefit plans after the Change of Control compared to the total package of such benefits as in effect prior to the Change of Control;
(d) a requirement by Employer or the surviving company that Executive be based more than 50 miles from where Executives office is located immediately prior to the Change of Control, except for required travel on company business to an extent substantially consistent with the business travel obligations that Executive undertook on behalf of the Employer prior to the Change of Control;
(e) the failure by the Company or Parent to obtain from any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company or Parent, as the case may be the assent to this Agreement contemplated by Section 9 hereof; or
(f) the failure of Employer or its affiliates to support Employer by providing the working capital for Employer to grow and meet its budgeted EBITDA or to purchase the capital equipment reasonably necessary to produce the products necessary to meet its financial targets.
8.2 Cause.
Termination of Executives Employment for Cause shall mean termination upon (a) the willful and continued failure by Executive to perform substantially Executives reasonably assigned duties with Employer (other than any such failure resulting from Executives incapacity due to physical or mental illness) after a demand for substantial performance is delivered to Executive by the Board of Directors of Employer that specifically identifies the manner in which the Board believes that Executive has not substantially performed Executives duties or (b) the willful engaging by Executive in illegal conduct that is materially and demonstrably injurious to the Company or Parent. No act, or failure to act, on Executives part shall be
considered willful unless done, or omitted to be done, by Executive without reasonable belief that Executives action or omission was in, or not opposed to, the best interests of the Company or Parent. Any act, or failure to act, based upon authority given pursuant to a resolution duly adopted by the Board or based upon the advice of counsel for the Company or Parent shall be conclusively presumed to be done, or omitted to be done, by Executive in the best interests of the Company or Parent.
8.3 Change of Control.
A Change of Control shall mean that one of the following events has taken place:
(a) The shareholders of the Company approve one of the following:
(i) Any merger or statutory plan of exchange involving the Company (Company Merger) in which the Company is not the continuing or surviving corporation or pursuant to which shares of the Companys common stock would be converted into cash, securities or other property, other than a Company Merger in which Parent continues to hold the same proportionate ownership of common stock of the surviving corporation after the Company Merger; or
(ii) Any sale, lease, exchange, or other transfer (in one transaction or a series of related transactions) of all or substantially all of the assets of the Company or the adoption of any plan or proposal for the liquidation or dissolution of the Company;
(b) The shareholders of Parent approve one of the following:
(i) Any merger or statutory plan of exchange involving Parent (Parent Merger) in which Parent is not the continuing or surviving corporation or pursuant to which shares of Parents common stock would be converted into cash, securities or other property, other than a Parent Merger in which the holders of shares of Parents common stock immediately prior to the Parent Merger have the same proportionate ownership of common stock of the surviving corporation after the Parent Merger; or
(ii) Any sale, lease, exchange, or other transfer (in one transaction or a series of related transactions) of all or substantially all of the assets of Parent or the adoption of any plan or proposal for the liquidation or dissolution of Parent;
(c) A tender or exchange offer, other than one made by Parent, is made for shares of Parents common stock (or securities convertible into shares of Parents common stock ), and such offer results in a portion of those securities being purchased and the offeror after the consummation of the offer is the beneficial owner (as determined pursuant to Section 13(d) of the Securities Exchange Act of 1934, as amended (the Exchange Act)), directly or indirectly, of securities representing at least 20 percent of the voting power of outstanding securities of Parent;
(d) Parent receives a report on Schedule 13D of the Exchange Act reporting the beneficial ownership by any person of securities representing 20 percent or more of the voting power of outstanding securities of the Company, except that if such receipt shall occur during a tender offer or exchange offer described in (c) above, a Change of Control shall not take place until the conclusion of such offer; or
(e) During any period of 12 months or less, individuals who at the beginning of such period constituted a majority of Parents Board of Directors cease for any reason to constitute a majority thereof, unless the nomination or election of such new directors was approved by a vote of at least two-thirds of Parents directors then still in office who were directors of Parent at the beginning of such period.
Notwithstanding anything in the foregoing to the contrary, no Change of Control shall be deemed to have occurred for purposes of this Agreement by virtue of any transaction that results in Executive, or a group of persons that includes Executive, acquiring, directly or indirectly, securities representing 20 percent or more of the voting power of outstanding securities of the Company or Parent.
8.4 Disability.
Termination of Executives Employment based on Disability shall mean termination without further compensation under this Agreement, due to a mental or physical impairment of Executive that is expected to result in death or that has lasted or is expected to last for a continuous period of 12 months or more and that causes Executive to be unable, with reasonable accommodation in the opinion of Employers Board of Directors, to perform his or her duties for Employer and to be engaged in any substantial gainful activity.
9. Successors; Binding Agreement.
9.1 This Agreement shall be binding on and inure to the benefit of the Company, Parent and their respective successors and assigns. Upon Executives written request, the Company or Parent, as they case may be, will seek to have any successor, by agreement, assent to the fulfillment by the Company or Parent, as the
case may be, of its obligations under this Agreement. If such a request is made, failure of the Company or Parent to obtain such assent prior to or at the time a company becomes a successor shall constitute Good Reason for termination by Executive of his or her employment and, if a Change of Control has occurred, shall entitle Executive to the benefits pursuant to Section 4.
9.2 This Agreement shall inure to the benefit of and be enforceable by Executive and Executives legal representatives, executors, administrators and heirs.
10. Resignation of Corporate Offices.
Executive will resign Executives office, if any, as a director, officer or trustee of the Company, Parent, their respective subsidiaries or affiliates and of any other corporation or trust of which Executive serves as such at the request of the Company or Parent, effective as of the date of Termination of Executives Employment. Executive agrees to provide the Company or Parent, as the case may be, such written resignation(s) upon request and that no severance will be paid until after such resignation(s) are provided.
11. Governing Law; Arbitration.
This Agreement shall be construed in accordance with and governed by the laws of the State of Oregon. Any dispute or controversy arising under or in connection with this Agreement, or the breach thereof, shall be settled exclusively by arbitration under the [Mutual Agreement to Arbitrate Claims signed by the Executive], and judgment upon the award rendered by the Arbitrator may be entered in any Court having jurisdiction thereof. Notwithstanding any provision in the Mutual Agreement to Arbitrate Claims, Employer shall pay all arbitration fees and reasonable attorneys fees and expenses (including at trial and on appeal) of Executive in enforcing its rights under this Agreement in the event of a Termination of Executives Employment within 24 months following a Change of Control.
12. Amendment.
No provision of this Agreement may be modified unless such modification is agreed to in writing signed by Executive, Parent and the Company.
13. Severability.
If any of the provisions or terms of this Agreement shall for any reason be held invalid or unenforceable, such invalidity or unenforceability shall not affect any other
terms of this Agreement, and this Agreement shall be construed as if such unenforceable term had never been contained in this Agreement.
Merix Corporation | ||
By: | ||
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Title: |
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Mark R. Hollinger | ||
Data Circuit Systems | ||
By: |
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Title: |
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Steve Robinson |