EXHIBIT 10.2
[SOLECTRON LOGO]
SOLECTRON CORPORATION
EMPLOYMENT AGREEMENT
This Agreement is made by and between Solectron Corporation (the
"COMPANY"), and [_________] ("EXECUTIVE") as of November 12, 2002 (the
"EFFECTIVE DATE").
1. Duties and Scope of Employment.
(a) Positions and Duties. Executive will continue to serve as the
Company's [___________________________________________]. Executive will render
such business and professional services in the performance of Executive's
duties, consistent with Executive's position within the Company, as shall
reasonably be assigned to Executive by the Company's Chief Executive Officer
(the "CEO") or the CEO's delegate. The period of Executive's employment under
this Agreement is referred to herein as the Employment Term.
(b) Obligations. During the Employment Term, Executive will devote
Executive's full business efforts and time to the Company. For the duration of
the Employment Term, Executive agrees not to actively engage in any other
employment, occupation or consulting activity for any direct or indirect
remuneration without the prior approval of the Board of Directors of the Company
(the "BOARD") (which approval will not be unreasonably withheld); provided,
however, that Executive may, without the approval of the Board, serve in any
capacity with any civic, educational or charitable organization, provided such
services do not interfere with Executive's obligations to Company.
2. Employee Benefits. During the Employment Term, Executive will be
eligible to participate in accordance with the terms of all Company employee
benefit plans, policies and arrangements that are applicable to other senior
executives of the Company, as such plans, policies and arrangements and terms
may exist from time to time.
3. At-Will Employment. Executive and the Company agree that Executive's
employment with the Company constitutes "at-will" employment. Executive and the
Company acknowledge that this employment relationship may be terminated at any
time, upon written notice to the other party, with or without good cause or for
any or no cause, at the option either of the Company or Executive. However, as
described in this Agreement, Executive may be entitled to severance benefits
depending upon the circumstances of Executive's termination of employment.
4. Compensation.
(a) Base Salary. During the Employment Term, the Company will
continue to pay Executive as compensation for Executive's services Executive's
annualized base salary as in effect as of the Effective Date (the "BASE
SALARY"). The Base Salary will be paid through payroll periods that are
consistent with the Company's normal payroll practices, but in all events will
not be
less frequent than once per month. Executive's salary will be subject to review
and adjustments will be made based upon the Company's normal performance review
practices.
(b) Bonuses. Executive may participate in any bonus plan or similar
arrangement the Company may have in place that are applicable to other senior
executives of the Company, on such terms and conditions as the Compensation
Committee of the Board (the "COMMITTEE") may determine from time to time in its
discretion.
(c) Stock Options. Executive shall be eligible to receive options to
purchase the Company's common stock pursuant to any plans or arrangements it may
have in effect from time to time. The Committee will determine in its discretion
whether Executive will be granted any such option or options and the terms of
any such option or options in accordance with the terms of any applicable plan
or arrangement that may be in effect from time to time.
5. Severance.
(a) Involuntary Termination other than for Cause, Death or
Disability. Subject to Section 5(b), if the Company terminates Executive's
employment with the Company without Executive's consent and for a reason other
than "Cause" (as defined below), Executive becoming "Disabled" (as defined
below) or Executive's death, and Executive signs and delivers to the Company a
separation agreement in a form satisfactory to the Company, then promptly
following such termination of employment or, if later, the effective date of the
separation agreement, Executive will (i) receive all accrued vacation, expense
reimbursements and any other benefits due to Executive through the date of
termination of employment in accordance with the Company's then existing
employee benefit plans, policies and arrangements, (ii) be paid continuing
payments of severance pay at a rate equal to Executive's Base Salary rate, as
then in effect, and Executive's target bonus for the year of termination, for a
period of twelve (12) months plus one additional month for every full year
Executive has been employed with the Company as of the date of such termination,
not to exceed twenty-four (24) months (the "SEVERANCE PAYMENT PERIOD"), from the
date of such termination, to be paid periodically in accordance with the
Company's normal payroll policies; provided, however, that if during the
Severance Payment Period Executive engages in "Competition" (as defined below)
or breaches the covenants in Section 11 or in the separation agreement, all
payments pursuant to this subsection shall immediately cease, (iii) receive
Company-paid coverage during the Severance Payment Period for Executive and
Executive's eligible dependents under the Company's "Benefit Plans" (as defined
below); provided, however, that if during the Severance Payment Period Executive
engages in Competition or breaches the covenants in Section 11 or in the
separation agreement, all Company-paid coverage pursuant to this subsection
shall immediately cease, and (iv) receive such other compensation or benefits
from the Company as may be required by law (for example, under Section 4980B of
the Code).
(b) Other Agreements. If Executive has executed any other agreements
with the Company that provide for severance or similar payments or benefits in
the event of Executive's termination of employment with the Company, then in the
event Executive would be entitled to receive payments and/ or benefits under
both this Agreement and any other such agreement, Executive shall only be
entitled to receive benefits under one such agreement. In such an event,
Executive shall be permitted to choose under which agreement Executive will
receive payments or benefits.
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(c) Other Terminations. If Executive voluntarily terminates
Executive's employment with the Company or if the Company terminates Executive
employment with the Company for Cause, then Executive will (i) receive the Base
Salary through the date of termination of employment, (ii) receive all accrued
vacation, expense reimbursements and any other benefits due to Executive through
the date of termination of employment in accordance with established Company
plans, policies and arrangements, and (iii) not be entitled to any other
compensation or benefits (including, without limitation, accelerated vesting of
stock options) from the Company except to the extent provided under the
applicable stock option agreement(s) or as may be required by law (for example,
"COBRA" coverage under Section 4980B of the Internal Revenue Code of 1986, as
amended (the "CODE").
(d) Termination due to Death or Disability. If Executive's
employment with the Company is terminated due to Executive's death or
Executive's becoming Disabled, then Executive or Executive's estate (as the case
may be) will (i) receive the Base Salary through the date of termination of
employment, (ii) receive all accrued vacation, expense reimbursements and any
other benefits due to Executive through the date of termination of employment in
accordance with Company-provided or paid plans, policies and arrangements, and
(iii) not be entitled to any other compensation or benefits from the Company
except to the extent required by law (for example, under Section 4980B of the
Code).
6. Definitions.
(a) Cause. For purposes of this Agreement, "CAUSE" means (i) a
willful failure by Executive to substantially perform Executive's duties under
this Agreement, other than a failure resulting from the Executive's complete or
partial incapacity due to physical or mental illness or impairment, (ii) a
willful act by Executive that constitutes gross misconduct and that is injurious
to the Company, (iii) a willful breach by Executive of a material provision of
this Agreement, (iv) a material and willful violation by Executive of a federal
or state law or regulation applicable to the business of the Company or (v)
Executive's conviction or plea of guilty or no contest to a felony. No act or
failure to act by Executive shall be considered "willful" unless committed
without good faith and without a reasonable belief that the act or omission was
in the Company's best interest.
(b) Competition. For purposes of this Agreement, Executive shall be
deemed to have engaged in "COMPETITION" if he directly or indirectly engages in
(whether as an employee, consultant, agent, proprietor, principal, partner,
stockholder, corporate officer, director or otherwise), or has any ownership
interest in or participates in the financing, operation, management or control
of, any person, firm, corporation or business that competes with Company or is a
customer of the Company.
(c) Disabled. For purposes of this Agreement, "DISABLED" means
Executive being unable to perform the principal functions of Executive's duties
due to a physical or mental impairment, but only if such inability has lasted or
is reasonably expected to last for at least six months. Whether Executive is
Disabled shall be determined by the Committee based on evidence provided by one
or more physicians selected by the Committee.
(d) Benefit Plans. For purposes of this Agreement, "BENEFIT PLANS"
means plans, policies or arrangements that the Company sponsors (or participates
in) and that immediately prior to
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Executive's termination of employment provide Executive and/or Executive's
eligible dependents with medical, dental, vision and/or financial counseling
benefits. Benefit Plans do not include any other type of benefit (including, but
not by way of limitation, disability, life insurance or retirement benefits). A
requirement that the Company provide Executive and Executive's eligible
dependents with coverage under the Benefit Plans will not be satisfied unless
the coverage is no less favorable than that provided to Executive and
Executive's eligible dependents immediately prior to Executive's termination of
employment. Notwithstanding any contrary provision of Section 5, but subject to
the immediately preceding sentence, the Company may, at its option, satisfy any
requirement that the Company provide coverage under any Benefit Plan by instead
providing coverage under a separate plan or plans providing coverage that is no
less favorable or by paying Executive a lump-sum payment sufficient to provide
Executive and Executive's eligible dependents with equivalent coverage under a
third party plan that is reasonably available to Executive and Executive's
eligible dependents.
7. Term of Agreement. This Agreement will have an initial term of two (2)
years commencing on the Effective Date. On the second anniversary of the
Effective Date and on each annual anniversary of the Effective Date thereafter,
this Agreement automatically will renew for an additional term of one year
unless at least three (3) months prior to such anniversary, Executive or the
Company gives the other party written notice that the Agreement will not be
renewed. If Executive incurs a termination of employment that entities Executive
to receive the payments and benefits described in Section 5, this Agreement will
not terminate until all of Executive's and the Company's obligations under the
Agreement have been satisfied.
8. Assignment. This Agreement will be binding upon and inure to the
benefit of (a) the heirs, executors and legal representatives of Executive upon
Executive's death and (b) any successor of the Company. Any such successor of
the Company will be deemed substituted for the Company under the terms of this
Agreement for all purposes. For this purpose, "SUCCESSOR" means any person,
firm, corporation or other business entity which at any time, whether by
purchase, merger or otherwise, directly or indirectly acquires all or
substantially all of the assets or business of the Company. None of the rights
of Executive to receive any form of compensation payable pursuant to this
Agreement may be assigned or transferred except by will or the laws of descent
and distribution. Any other attempted assignment, transfer, conveyance or other
disposition of Executive's right to compensation or other benefits will be null
and void.
9. Notices. All notices, requests, demands and other communications called
for hereunder shall be in writing and shall be deemed given (i) on the date of
delivery if delivered personally, (ii) one (1) day after being sent by a well
established commercial overnight service, or (iii) four (4) days after being
mailed by registered or certified mail, return receipt requested, prepaid and
addressed to the parties or their successors at the following addresses, or at
such other addresses as the parties may later designate in writing:
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If to the Company:
Solectron Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chairman, Compensation Committee of the Board of Directors
If to Executive:
[__________________________________]
at the last residential address known by the Company.
10. Severability. In the event that any provision hereof becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement will continue in full force and effect without said
provision.
11. Non-Solicitation. For a period beginning on the Effective Date and
ending one year after the Executive ceases to be employed by the Company or, if
longer, upon the completion of the Severance Payment Period, Executive, directly
or indirectly, whether as employee, owner, sole proprietor, partner, director,
member, consultant, agent, founder, co-venturer or otherwise, will: (i) not
solicit, induce or influence any person to leave employment with the Company; or
(ii) not directly or indirectly solicit business from any of the Company's
customers and users on behalf of any business that directly competes with the
principal business of the Company.
12. Entire Agreement. This Agreement, together with any agreements
relating to stock option outstanding as of the Effective Date and agreements
referenced in Section 5(b), if any, represent the entire agreement and
understanding between the Company and Executive concerning Executive's
employment relationship with the Company, and supersede and replace any and all
prior agreements and understandings concerning Executive's employment
relationship with the Company.
13. Arbitration.
(a) General. In consideration of Executive's service to the Company,
its promise to arbitrate all employment related disputes and Executive's receipt
of the compensation, pay raises and other benefits paid to Executive by the
Company, at present and in the future, Executive agrees that any and all
controversies, claims, or disputes with anyone (including the Company and any
employee, officer, director, shareholder or benefit plan of the Company in their
capacity as such or otherwise) arising out of, relating to, or resulting from
Executive's service to the Company under this Agreement or otherwise or the
termination of Executive's service with the Company, including any breach of
this Agreement, shall be subject to binding arbitration under the Arbitration
Rules set forth in California Code of Civil Procedure Section 1280 through
1294.2, including Section 1283.05 (the "Rules") and pursuant to California law.
Disputes which Executive agrees to arbitrate, and thereby agrees to waive any
right to a trial by jury, include any statutory claims under state or federal
law, including, but not limited to, claims under Title VII of the Civil Rights
Act of 1964, the Americans with Disabilities Act of 1990, the Age Discrimination
in Employment Act of 1967, the Older Workers Benefit Protection Act, the
California Fair Employment and Housing Act, the
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California Labor Code, claims of harassment, discrimination or wrongful
termination and any statutory claims. Executive further understands that this
Agreement to arbitrate also applies to any disputes that the Company may have
with Executive.
(b) Procedure. Executive agrees that any arbitration will be
administered by the American Arbitration Association ("AAA") and that a neutral
arbitrator will be selected in a manner consistent with its National Rules for
the Resolution of Employment Disputes. The arbitration proceedings will allow
for discovery according to the rules set forth in the National Rules for the
Resolution of Employment Disputes or California Code of Civil Procedure.
Executive agrees that the arbitrator shall have the power to decide any motions
brought by any party to the arbitration, including motions for summary judgment
and/or adjudication and motions to dismiss and demurrers, prior to any
arbitration hearing. Executive agrees that the arbitrator shall issue a written
decision on the merits. Executive also agrees that the arbitrator shall have the
power to award any remedies, including attorneys' fees and costs, available
under applicable law. Executive understands the Company will pay for any
administrative or hearing fees charged by the arbitrator or AAA except that
Executive shall pay the first $200.00 of any filing fees associated with any
arbitration Executive initiates. Executive agrees that the arbitrator shall
administer and conduct any arbitration in a manner consistent with the Rules and
that to the extent that the AAA's National Rules for the Resolution of
Employment Disputes conflict with the Rules, the Rules shall take precedence.
(c) Remedy. Except as provided by the Rules, arbitration shall be
the sole, exclusive and final remedy for any dispute between Executive and the
Company. Accordingly, except as provided for by the Rules, neither Executive nor
the Company will be permitted to pursue court action regarding claims that are
subject to arbitration. Notwithstanding, the arbitrator will not have the
authority to disregard or refuse to enforce any lawful Company policy, and the
arbitrator shall not order or require the Company to adopt a policy not
otherwise required by law, which the Company has not adopted.
(d) Availability of Injunctive Relief. In addition to the right
under the Rules to petition the court for provisional relief, Executive agrees
that any party may also petition the court for injunctive relief where either
party alleges or claims a violation of this Agreement or the Confidentiality
Agreement or any other agreement regarding trade secrets, confidential
information, non solicitation or Labor Code Section 2870. In the event either
party seeks injunctive relief, the prevailing party shall be entitled to recover
reasonable costs and attorneys' fees.
(e) Administrative Relief. Executive understands that this Agreement
does not prohibit Executive from pursuing an administrative claim with a local,
state or federal administrative body such as the Department of Fair Employment
and Housing, the Equal Employment Opportunity Commission or the workers'
compensation board. This Agreement does, however, preclude Executive from
pursuing court action regarding any such claim.
(f) Voluntary Nature of Agreement. Executive acknowledges and
agrees that Executive is executing this Agreement voluntarily and without any
duress or undue influence by the Company or anyone else. Executive further
acknowledges and agrees that Executive has carefully read this Agreement and
that Executive has asked any questions needed for Executive to understand the
terms, consequences and binding effect of this Agreement and fully understand
it, including that Executive is waiving Executive's right to a jury trial.
Finally, Executive agrees that Executive has
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been provided an opportunity to seek the advice of an attorney of Executive's
choice before signing this Agreement.
14. No Oral Modification, Cancellation or Discharge. This Agreement may be
changed or terminated only in writing (signed by Executive and the Company).
15. Waiver of Breach. The waiver of a breach of any term or provision of
this Agreement, which must be in writing, shall not operate as or be construed
to be a waiver of any other previous or subsequent breach of this Agreement.
16. Headings. All captions and section headings used in this Agreement are
for convenient reference only and do not form a part of this Agreement.
17. Withholding. The Company is authorized to withhold, or cause to be
withheld, from any payment or benefit under this Agreement the full amount of
any applicable withholding taxes.
18. Governing Law. This Agreement will be governed by the laws of the
State of California (with the exception of its conflict of laws provisions).
19. Acknowledgment. Executive acknowledges that he has had the opportunity
to discuss this matter with and obtain advice from Executive's private attorney,
has had sufficient time to, and has carefully read and fully understands all the
provisions of this Agreement, and is knowingly and voluntarily entering into
this Agreement.
20. Counterparts. This Agreement may be executed in counterparts, and each
counterpart shall have the same force and effect as an original and shall
constitute an effective, binding agreement on the part of each of the
undersigned.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement on the
respective dates set forth below:
EXECUTIVE
_________________________________________
[________________________________________] Date: __________________
SOLECTRON CORPORATION
_________________________________________
[________________________________________] Date: __________________
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