EXHIBIT 10.30
EXECUTIVE SEVERANCE AND
NONCOMPETITION AGREEMENT
This Executive
Severance and Noncompetition Agreement (this "
Agreement ” ) is dated May 15, 2008 by
and between Merix Corporation (the " Company "), and
Alfred Pang (“ Executive ”).
RECITALS:
The Company and
Executive are parties to a Severance Agreement dated February 6,
2007 (the “ Severance Agreement
”).
The Severance
Agreement provides that no provision of the Severance Agreement
shall be modified, waived or discharged unless the modification,
waiver or discharge is agreed to in writing and signed by the
Company and Executive.
The Company and
Executive each now desire to terminate the Severance Agreement in
its entirety, without any liability to either of the parties, and
to replace it with the Executive Severance and Noncompetition
Agreement as set forth below.
Merix
Corporation ("Merix") considers the establishment and maintenance
of a sound and vital management to be essential to protecting and
enhancing the best interests of Merix and its
shareholders. In this connection, Merix recognizes that,
as is the case with many publicly held 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 Merix and its
shareholders. In order to induce ("Executive") to remain
employed by Merix in the face of uncertainties about the long-term
strategies of Merix and possible change of control of Merix and
their potential impact on Executive's position with Merix, this
Agreement, which has been approved by the Board of Directors of
Merix, sets forth the severance benefits that Merix will provide to
Executive in the event Executive's employment by Merix is
terminated under the circumstances described in this
Agreement. To induce Merix to enter into this Agreement,
Executive agrees to the covenants set forth in Section 6 of this
Agreement.
1. Employment
Relationship.
Executive is
currently employed by Merix as Executive and Merix acknowledge that
either party may terminate this employment relationship at any time
and for any or no reason, subject to the obligation of Merix to
provide the severance benefits specified in this Agreement in
accordance with the terms hereof.
In
consideration for and as a condition precedent to receiving the
severance benefits outlined in this Agreement, Executive agrees to
execute and deliver to Merix 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 Executive's Employment
(as defined in Section 9.1).
3. Additional
Compensation Upon Termination.
In addition to
unpaid salary and other wages, if any, payable to Executive through
the date of Termination of Executive's Employment, in the event of
a Termination of Executive's Employment at any time other than for
Cause (as defined in Section 9.2 of this Agreement), death or
Disability (as defined in Section 9.4 of this Agreement), and
contingent upon Executive's execution of the Release of Claims and
compliance with Section 11 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 Executive's Employment,
Merix 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 Six (6)
months of Executive's annual base pay at the greater of the rate in
effect immediately prior to the date of Termination of Executive's
Employment or the rateon December 31, 2008.
3.2 Executive
is entitled to extend coverage under any group health plan in which
Executive and Executive's dependents are enrolled at the time of
Termination of Executive's Employment under the COBRA continuation
laws for the 18-month statutory period, or for as long as Executive
remains eligible under COBRA. Merix 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 Executive's group health
and dental plan coverage in effect at the time of Termination of
Executive's Employment. 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
Executive's Employment equal to the greater of (a) 50 percent of
Executive's 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, Executive's participation in any such plan will be
considered to have ended on Executive's last day of active
employment. In making the proration calculation, the
amount of Executive's 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
by Merix to Executive until the date that all awards are payable to
other eligible employees after the close of the incentive period,
except that Executive may elect at any time after Termination of
Executive's Employment, by written notice to Merix, to receive 50
percent of Executive's 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 Merix
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
Executive's Employment. Executive may elect to receive
the $12,500 in cash in lieu of payment to a third-party
outplacement firm.
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 Executive's Employment other than for Cause, death
or Disability within 24 months following a Change of Control (as
defined in Section 9.3), or prior to a Change of Control at
the direction of a person who has entered into an agreement with
Merix, the consummation of which will constitute a Change of
Control, and contingent upon Executive's execution of the Release
of Claims and compliance with Sections 5 and 11, Executive shall be
entitled to the following benefits, which benefits shall be in
addition to the benefits provided in Section 3:
4.1 Merix
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 Merix 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 Executive's annual base pay
at the greater of the rate in effect immediately prior
to the date of Termination of Executive's Employment or the rate on
December 31, 2008.
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 Executive's target
benefit for the year under annual cash incentive plans in effect at
the time of Termination of Executive's 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 Merix
shall maintain in full force and effect, at its sole cost and
expense, for Executive's continued benefit for a period terminating
18 months after the date of Termination of Executive's Employment,
a life insurance policy insuring Executive's life with coverage
equal to two times Executive's annual base pay in effect
immediately prior to Termination of Executive's Employment,
provided that Executive's continued participation is possible under
the general terms and provisions of such policy. At
Executive's election, or if Executive's continued participation in
such policy is barred, Merix shall make a lump-sum payment to
Executive equal to the total premiums that would have been paid by
Merix for such 18-month period. The maximum amount that
Merix 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 Merix 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 Merix shall become immediately
exercisable in full and shall remain exercisable until the earlier
of (a) two years after Termination of Executive's 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 of Merix
(collectively, excluding the Specified Benefits, the "Change of
Control Payments"). To determine whether Executive's
after-tax benefit from the Capped Benefit would be greater than
Executive's 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 Merix in writing is applicable to
Executive.
4.7 If
Executive's employment with Merix terminates for any reason prior
to a Change of Control, other tha