EXHIBIT 10.44
MERIX CORPORATION
Corporate Headquarters
15725 SW Greystone Ct., Suite
200
Beaverton, OR 97006
Date
Name
Address
City, State
ZIP
Re:
AMENDMENT TO EXECUTIVE SEVERANCE
AND
NONCOMPETITION AGREEMENT
Dear
_________:
We have been advised by outside legal counsel
that the following changes to your Executive Severance and
Noncompetition Agreement with Merix Corporation, an Oregon
corporation (the “ Company ”), dated
____________ (the “Agreement”), are advisable under
Section 409A of the Internal Revenue Code (“Section
409A”). Please review this amendment, and if you
agree with it, please execute, date and return it to me.
The Agreement is amended to read as follows
effective January 1, 2009:
1. Section
2 is hereby amended in its entirety to read as follows:
“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, deliver to Merix and not
revoke a Release of Claims in the form attached as Exhibit A
("Release of Claims") within sixty (60) days after the
Executive’s separation from service within the meaning of
Section 409A (the “Release Deadline”), which will be
delivered to Executive on the date of Executive’s separation
from service.”
2. Section
3.1 is hereby amended in its entirety to read as
follows:
“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 lump sum payment, after
Executive’s separation from service, on the ninth day
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 rate on
December 31, 2008.”
3. The
following sentence is added at the end of Section 3.2:
“3.2
This payment shall be made at the same time as the payment made in
Section 3.1.”
4. The
fourth sentence in Section 3.3 is hereby amended in its entirety to
read as follows:
“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, but, in any case, within the short-term deferral
period described in Treasury Regulation Section
1.409A-1(b)(4).”
5. Section
3.4 is hereby amended in its entirety to read as
follows:
“3.4
Merix will pay $12,500 to Executive, which Executive may use to
purchase career counseling assistance or for other
purposes. This payment shall be made at the same time as
the payment made under Section 3.1.”
6. Section
4.1 is amended in its entirety to read as follows:
“4.1 Following
Executive’s separation from service, Merix shall pay
Executive, in a single payment on the ninth day 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
rate in effect immediately prior to the date of Termination of
Executive’s Employment or the rate on December 31,
2008.”
7. Section
4.3 is hereby amended in its entirety to read as
follows:
“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 Executive's separation from service, 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. To the extent that
the life insurance coverage is not exempt from Section 409A, or to
the extent that it is not possible to provide coverage to the
Executive, then 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. This payment
shall be made at the same time as the payment made under Section
3.1.”
8. The
following new paragraph is hereby added to the end of Section
4.6:
“Any reduction made pursuant to this
Section 4.6 shall be made in accordance with the following order of
priority: (x) first, Full Credit Payments (as defined below) will
be reduced in reverse chronological order such that the payment
owed on the latest date following the occurrence of the event
triggering the excise tax will be the first payment to be reduced
(with reductions made pro-rata in the event payments are owed at
the same time) and (y) second, Partial Credit Payments (as defined
below) will be reduced in a manner such as to obtain the best
economic benefit for Executive (with reductions made pro-rata if
economically equivalent). "Full Credit Payment" means a
payment, distribution or benefit, whether paid or payable or
distributed or distributable pursuant to the terms of this
Agreement or otherwise, that if reduced in value by one dollar
reduces the amount of the parachute payment (as defined in Section
280G of the IRC) by one dollar, determined as if such payment,
distribution or benefit had been paid or distributed on the date of
the event triggering the excise tax. "Partial Credit
Payment" means any pay
