EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered
into as of the 26th day of June, 1996, by and between CERPROBE CORPORATION, a
Delaware corporation ("Employer"), and XXXXXX X. XXXXXX ("Employee").
RECITALS
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A. Employer is in the business of the design, manufacture, and
sale of probe cards for use in the semiconductor industry and for semiconductor
testing and the design, manufacture and sale of test and interface hardware
products, including, without limitation, performance boards, prober and handler
interfaces, including complete interface systems (digital, mixed signal and
analog), used by the semiconductor industry (the "Business").
B. Employer desires to employ Employee, and Employee desires
to accept such employment, on the terms and conditions set forth in this
Agreement.
AGREEMENT
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NOW, THEREFORE, in consideration of the foregoing recitals and
the mutual covenants set forth in this Agreement, the parties hereto hereby
agree as follows:
1. Employment. Employer hereby employs Employee and Employee
hereby accepts such employment, to perform such duties and services for and on
behalf of Employer as may, from time to time, be determined by the President of
Employer. Employee shall devote Employee's full and undivided business time,
attention and efforts to Employer's business and to the performance of
Employee's duties under this Agreement, and shall fully and faithfully perform
all duties assigned to Employee under this Agreement, consistent with Employee's
position hereunder, to the best of Employee's abilities. Employee also agrees to
serve as Employer's Chief Financial Officer or in such other position as
Employer's Board of Directors shall determine from time to time.
2. Compensation. Employee shall be entitled to receive a per
annum salary of One Hundred Fifteen Thousand Dollars ($115,000) ("Salary") as
full compensation for all the services rendered by Employee during the term of
Employee's employment hereunder. Employee shall be entitled to receive the
Salary in fifty-two (52) equal payments; payments to be made every week
commencing on June 27, 1996, or pursuant to such other payment schedule
consistent with Employer's compensation policy as from time to time in effect
(less all applicable deductions for all taxes, including federal, state, and
FICA; insurance; pension plans; etc.).
3. Other Benefits. In addition to Employee's Salary, during
the term of Employee's employment hereunder, Employee shall be entitled to the
following:
(a) Incentive Stock Option. Receive an option to
purchase Fifty Thousand (50,000) shares of Employer's Common Stock, par value
$.05 per share, such option to be granted at an option exercise price and
subject to such other terms and conditions of exercise as the Board of Directors
of Employer shall determine, in the exercise of its sole discretion.
(b) Pension Plans. Participation in such pension,
profit sharing and deferred compensation plans and programs, if any, as may be
provided from time to time by Employer to such other comparable level employees
of Employer. Participation in any other executive bonus plan(s) as may be
approved by the Board of Directors in the exercise of its sole discretion.
(c) Medical and Dental Benefits. Participation in
such group medical, accident and dental plans, if any, as may be provided from
time to time by Employer to such other comparable level employees of Employer.
(d) Vacation. Three (3) weeks paid vacation during
the term of this Agreement. Vacation shall be taken at such times as determined
by Employee and approved by Employer. Vacation benefits will be used in a manner
consistent with Employer's vacation policy as from time to time in effect.
(e) Reimbursement. Reimbursement within thirty (30)
days of the submittal of an approved expense report, for ordinary and necessary
out-of-pocket business expenses incurred by Employee in connection with the
business of Employer and Employee's duties under this Agreement. The term
"business expenses" shall include any item of expense that is reasonable,
ordinary or necessary in relation to Employee's duties hereunder. To obtain
reimbursement, Employee shall submit to Employer receipts, bills or sales slips
for the expenses incurred.
(f) Other Benefits. Such other fringe benefits, such
as life and disability insurance, as Employer may make generally available on a
nondiscriminatory basis to all other employees of Employer.
4. Term of Employment.
(a) Employment Term. The term of Employee's
employment hereunder shall commence on June 17,1996, and shall terminate June
16,1997, unless earlier terminated in accordance with the terms of this
Agreement.
(b) Termination. Notwithstanding anything contained
in this Agreement to the contrary, Employee's employment hereunder is entirely
at will, and may be terminated by Employer with or without cause, subject only
to the payment obligations of Employer as hereafter set forth. In the event
Employer terminates Employee's employment hereunder for Cause (as hereafter
defined), Employee's employment hereunder shall immediately terminate on the
effective date of such termination as established by Employer, and Employee
shall only receive Salary and any other benefits under this Agreement prorated
through the effective date of Employee's termination.
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For purposes of this Agreement, "Cause" means: (i) "Total and
Permanent Incapacity" (as hereinafter defined) of Employee; (ii) the failure or
inability (not as a consequence of any illness, accident or other disability, as
confirmed by competent medical evidence) of Employee to perform Employee's
duties hereunder for a period of thirty (30) days in a manner reasonably
satisfactory to Employer's Board of Directors, provided the decision of the
Board of Directors is not arbitrary or capricious, and is not made in bad faith
and further that the failure or inability is not as a consequence of any
illness, accident or other disability as confirmed by competent medical
evidence; or (iii) "Serious Misconduct" (as hereinafter defined) of Employee.
"Total and Permanent Incapacity" means such physical or mental condition of
Employee, including alcoholism, which renders Employee incapable of performing
Employee's duties hereunder for a period in excess of sixty (60) days. In the
event Employee is a Qualified Individual with a Disability, as defined in the
American with Disabilities Act, Employer shall not terminate Employee's
employment hereunder if Employee is able to perform the essential functions of
the Employee's job with or without reasonable accommodation from Employer.
"Serious Misconduct" means embezzlement or misappropriation of corporate funds;
other acts of Dishonesty (as hereinafter defined); activities harmful to the
reputation of Employer (other than as a consequence of good faith decisions made
by Employee in the normal performance of Employee's duties hereunder); the
conviction of or the plea by Employee to any criminal felony offense or any
criminal offense regarding dishonesty or moral turpitude; the refusal to perform
the duties assigned to Employee pursuant to this Agreement (unless such duties
shall be unlawful); or the breach of any of the terms or conditions contained in
this Agreement or any other Agreement between Employee and Employer.
"Dishonesty" shall include, but shall not be limited to, the furnishing of any
information, reports, documents or certificates by Employee to Employer which
Employee knew, believed or should have known to be false or misleading or
omitted to state a material fact necessary to be stated therein in order to make
any of the statements, or information therein not misleading.
In the event Employer terminates Employee's employment
hereunder, for reasons other than for Cause, Employee's employment hereunder
shall immediately terminate on the effective date of such termination as
established by Employer, and Employee shall only receive (i) Salary for the
remaining period of the term of this Agreement, payable on the dates such Salary
shall otherwise have been payable hereunder, and (ii) any other fringe benefits
under this Agreement prorated through the effective date of Employee's
termination.
Notwithstanding anything contained in this Agreement to the
contrary, Employee may resign and terminate Employee's employment hereunder,
with or without cause, subject to the requirement that Employee shall provide
Employer with not less than sixty (60) days' prior written notice. In such
event, Employee shall not receive any Salary or any other benefits under this
Agreement after the effective date of Employee's resignation.
(c) Death. In the event of the death of Employee
during the term of this Agreement, this Agreement and Employee's employment
hereunder shall terminate as of the date of the death of Employee, and
Employee's estate or personal representative shall be entitled to receive Salary
and other fringe benefits prorated for the period of Employee's employment to
the date of death.
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(d) Suspension. Employer shall have the right to
suspend Employee with full pay for any period of time the Board of Directors of
Employer deems, in its sole discretion, necessary or appropriate to investigate
Employee's conduct in connection with Section 4(b) hereof.
5. Noncompetition. During the period of Employee's employment
hereunder, and for a period of six (6) months from and after the date of
termination of Employee's employment hereunder (or such lesser period to the
maximum extent permitted by applicable law), neither Employee nor any person or
entity controlled (directly or indirectly) by Employee, whether as employer,
employee, proprietor, partner, stockholder (other than the holder of less than
five percent (5%) of the stock of a corporation the securities of which are
traded on a national securities exchange or in the over-the-counter market),
director, officer, consultant, agent or otherwise, shall within, into or from
the Restricted Territory (as defined below) engage or cause others to engage in
the Business unless first authorized in writing by Employer, which authorization
may be withheld in the sole and absolute discretion of Employer. For purposes of
this Agreement, the term "Restricted Territory" shall mean the United States of
America, and all other countries in which the Employer conducts the Business on
the date hereof. If Employee violates Employee's obligations contained in this
Section 5, then the time periods hereunder shall be extended by the period of
time equal to that period beginning when the activities constituting such
violation commenced and ending when the activities constituting such violation
terminated.
6. Nonsolicitation. During the period of Employee's employment
hereunder, and for a period of twelve (12) months from and after the date of
termination of Employee's employment hereunder (or such lesser period to the
maximum extent permitted by applicable law), neither Employee nor any person or
entity controlled (directly or indirectly) by Employee whether as employer,
employee, proprietor, partner, stockholder (other than the holder of less than
five percent (5%) of the stock of a corporation the securities of which are
traded on a national securities exchange or in the over-the-counter market),
director, officer, consultant, agent or otherwise, shall solicit (a) in respect
of the Business, any person or other entity that is, or was within the previous
twelve (12) month period immediately prior to the date of termination of
Employee's employment hereunder, a customer or supplier of Employer, or (b) any
person who, on such date, is an employee of Employer, for employment, or as an
independent contractor with any person or entity, unless first authorized in
writing by Employer, which authorization may be withheld in Employer's sole and
absolute discretion. If Employee violates Employee's obligations contained in
this Section 6, then the time periods hereunder shall be extended by a period of
time equal to that period beginning when the activities constituting such
violation commenced and ending when the activities constituting such violation
terminated.
7. Trade Secrets and Other Confidential Information. From and
after the date hereof, Employee shall not communicate or divulge to, or use for
the benefit of, any person, firm or corporation other than Employer and/or
Employer's subsidiaries and its or their agents and representatives, any of the
trade secrets, methods, formulas, business and/or marketing plans, processes or
any other proprietary or confidential information with respect to Employer, its
subsidiaries, its or their business, financial condition, business operations or
methods, or business prospects. The preceding sentence shall not apply to
information which (a) is, was or becomes generally known or available to the
public or the industry other than as a result of a disclosure by Employee in
violation of this Agreement, or (b) is required to be disclosed by law. Employee
shall advise Employer, in writing, of any request, including a subpoena or
similar legal inquiry, to disclose
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any such confidential information, such that Employer and/or its subsidiaries
can seek appropriate legal relief.
8. Return of Employer Property. Immediately upon the
expiration of this Agreement or the termination of Employee's employment with
Employer, whichever shall later occur, Employee shall return to Employer any and
all property of Employer, including, but not limited to, all documents,
agreements, schedules, statements, customer lists, supplier lists, plans,
designs, parts and equipment, that is in the possession or control (direct or
indirect) of Employee. Notwithstanding the foregoing, Employee shall immediately
return to Employer all such property described in this Section 8 upon
termination of this Agreement at any time for Cause.
9. Survival/Remedies/Severability. Employee specifically
acknowledges that (a) Employer currently has operating facilities located in the
Restricted Territory; (b) Employer receives much of its business from and
throughout the Restricted Territory; (c) Employer has plans to expand its
operations throughout the Restricted Territory; and (d) the geographic
restrictions contained in Section 5 hereof, and the length of time restrictions
in Sections 5, 6 and 7 hereof are each necessary and reasonable and were
negotiated with Employer. The restrictions and obligations set forth in Sections
5, 6, 7 and 8 hereof shall survive the expiration or termination of this
Agreement. The parties hereto hereby acknowledge and agree that the restrictions
and obligations set forth in Sections 5, 6, 7 and 8 hereof are reasonable and
necessary, and that any violation thereof would result in substantial and
irreparable injury to Employer, and that Employer may not have an adequate
remedy at law with respect to any such violation. Accordingly, Employee agrees
that, in the event of any actual or threatened violation thereof, Employer shall
have the right and privilege to obtain, in addition to any other remedies that
may be available, equitable relief, including temporary and permanent injunctive
relief, to cease or prevent any actual or threatened violation of any provision
hereof. Each and every provision set forth in Sections 5, 6, 7 and 8 hereof is
independent and severable from the others, and no restriction will be rendered
unenforceable by virtue of the fact that, for any reason, any other or others of
them may be unenforceable in whole or in part. If any provision in Sections 5,
6, 7 or 8 hereof is unenforceable for any reason whatsoever, that provision will
be appropriately limited and reformed to the maximum extent provided by
applicable law. If the scope of any restriction contained herein is too broad to
permit enforcement to its full extent, then such restriction shall be enforced
to the maximum extent permitted by law so as to be judged reasonable and
enforceable, and the parties agree that such scope may be modified by an
arbitrator or judge in any proceeding to enforce this Agreement. This includes,
without limitation, altering or enforcing only portions of the limits on
activity restrictions, the geographic scope, and the duration of the
restrictions unless to do so would be contrary to law or public policy.
10. Miscellaneous.
(a) Notices. All notices required or permitted to be
given hereunder shall be in writing and shall be deemed given when delivered in
person, or three (3) business days after being placed in the hands of a courier
service (e.g., DHL or Federal Express) prepaid or faxed provided that a
confirming copy is delivered forthwith as herein provided, addressed as follows:
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If to Employer:
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CerProbe Corporation
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: X. Xxxx Close
FAX: 000-000-0000
If to Employee:
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Xxxxxx X. Xxxxxx
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxx Xxxxxx, Xxxxxxx 00000
and/or to such other respective addresses and/or addressees as may be designated
by notice given m accordance with the provisions of this Section.
(b) Entire Agreement. This Agreement constitutes the
entire agreement between the parties and shall be binding upon and inure to the
benefit of the parties hereto and their respective legal representatives,
successors and permitted assigns. Except as set forth herein, the provisions of
this Agreement supersede any and all other agreements or understandings, whether
oral or written, between Employer and Employee, with respect to Employee's
employment by Employer. Any amendments, or alternative or supplementary
provisions to this Agreement must be made in writing and duly executed by an
authorized representative or agent of each of the parties hereto.
(c) Non-Waiver. The failure in any one or more
instances of a party to insist upon performance of any of the terms, covenants
or conditions of this Agreement, to exercise any right or privilege in this
Agreement conferred, or the waiver by said party of any breach of any of the
terms, covenants or conditions of this Agreement, shall not be construed as a
subsequent waiver of any such terms, covenants, conditions, rights or
privileges, but the same shall continue and remain in full force and effect as
if no such forbearance or waiver had occurred. No waiver shall be effective
unless it is in writing and signed by an authorized representative of the
waiving party. A breach of any representation, warranty or covenant shall not be
affected by the fact that a more general or more specific representation,
warranty or covenant was not also breached.
(d) Counterparts. This Agreement may be executed in
multiple count erparts, each of which shall be deemed to be an original, and all
such counterparts shall constitute but one instrument.
(e) APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED
AND CONTROLLED AS TO VALIDITY, ENFORCEMENT, INTERPRETATION, CONSTRUCTION, EFFECT
AND IN ALL OTHER RESPECTS BY THE INTERNAL LAWS OF THE STATE OF ARIZONA
APPLICABLE TO CONTRACTS MADE IN THAT STATE.
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(f) Construction. The parties hereto acknowledge and
agree that each party has participated in the drafting of this Agreement and
that this document has been reviewed by the respective legal counsel for the
parties hereto and that the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be applied
to the interpretation of this Agreement. No inference in favor of, or against,
any party shall be drawn from the fact that one party has drafted any portion
hereof.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
EMPLOYER: EMPLOYEE:
CerProbe Corporation
By: /s/ X. Xxxx Close /s/ Xxxxxx X. Xxxxxx
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Name: X. Xxxx Close Xxxxxx X. Xxxxxx
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Its: President/CEO
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