EXHIBIT 10.2
VEECO INSTRUMENTS INC.
XXXXXX X. XXXXX EMPLOYMENT AGREEMENT
This Agreement is made by and between Veeco Instruments Inc., a Delaware
corporation (the "Company"), and Xxxxxx X. Xxxxx ("Executive") as of July 11,
2002. This Agreement is contingent upon and shall become effective only upon the
Closing of the Merger (as defined in the Merger Agreement referred to below).
The terms used herein and not otherwise defined shall have the meanings ascribed
thereto in the Merger Agreement. The period of Executive's employment under this
Agreement is referred to herein as the "Employment Term."
RECITALS
WHEREAS, the Company, Venice Acquisition Corp., an Oregon corporation and a
wholly-owned subsidiary of the Company ("Acquisition"), and Xxxxxxxx Company, an
Oregon corporation ("Xxxxxxxx"), are parties to an Agreement and Plan of Merger,
dated July 11, 2002 (the "Merger Agreement"), pursuant to which, at the
Effective Time, Acquisition will merge with and into Xxxxxxxx, with the result
that Xxxxxxxx will be the surviving corporation and will become a wholly-owned
subsidiary of the Company;
WHEREAS, Executive previously entered into an employment agreement with the
Company on April 3, 2000 (the "Original Agreement");
WHEREAS, Executive agrees to enter into this Agreement which will replace
and supersede the Original Agreement in its entirety.
NOW, THEREFORE, in consideration of the mutual covenants and promises set
forth herein and for other good and valuable consideration, the receipt of and
sufficiency of which are hereby acknowledged, Company and the Executive agree as
follows:
1. DUTIES AND SCOPE OF EMPLOYMENT.
(a) POSITIONS AND DUTIES. Executive will serve as the Company's
President and Chief Executive Officer and hereby agrees and acknowledges that he
will no longer serve as Chairman of the Board of the Company. Executive shall
lead the Company as its President and Chief Executive Officer and shall report
solely and directly to the Board of Directors of the Company (the "Board"). All
other employees of the Company shall report to Executive or his designee and not
directly to the Board. Executive will be responsible for the general and active
management of the business of the Company and for seeing that all orders and
resolutions of the Board are carried into effect. Executive's role will be to
run the Company and he will be responsible for its operating results and will
have general powers of supervision over the business of the Company. Executive
shall be the chief external representative of the Company. Executive will work
with the Chairman to plan and develop strategy for the Company, to set goals and
financial performance measures for the Company and to integrate Xxxxxxxx with
the Company. In addition, Executive will co-chair the Company
Integration Steering Committee and the Company's Strategic Review Board and have
such other powers and duties as the Board assigns to him.
(b) OBLIGATIONS. During the Employment Term, Executive will devote
Executive's full business efforts and time to the Company. During 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 (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, or with any company listed on Exhibit A (but in all cases subject
to Section 12).
(c) 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; provided, however, that no termination of the Executive's employment
by the Company shall be effective without the affirmative vote of at least
two-thirds (2/3) of the members of the Board (other than Executive). As
described in this Agreement, Executive may be entitled to severance benefits
depending upon the circumstances of Executive's termination of employment.
2. COMPENSATION.
(a) BASE SALARY. During the Employment Term, the Company will pay
Executive as compensation for Executive's services a base salary at the
annualized rate of $600,000 (the "Base Salary"). The Base Salary will be paid
through payroll periods that are consistent with the Company's normal payroll
practices. The Executive's Base Salary will be reviewed annually by the
Compensation Committee of the Board (the "Committee") and will be subject to
increase (but not decrease) at the option and sole discretion of the Committee.
(b) BONUSES. For each fiscal year of the Company during the Employment
Term, Executive will be eligible to receive a target bonus of up to 100% of
Executive's then Base Salary based upon the achievement of performance criteria
specified by Committee. The actual amount of the bonus payable for any year will
depend upon the extent to which the applicable performance criteria have been
satisfied. Any bonus that actually is earned will be paid as soon as practicable
(but no later than 2 1/2 months) after the end of the fiscal year for which the
bonus is earned, but only if Executive was employed with the Company through the
end of the fiscal year.
(c) EMPLOYEE BENEFITS. During the Employment Term, Executive will be
eligible to participate in such employee benefit plans or programs of the
Company as are generally made available by the Company to its executive
officers, and shall be entitled to such other fringe benefits, as are from time
to time made available by the Company to the Chairman of the Company, as such
plans, policies and arrangements and terms may exist from time to time. During
the Employment Term, the Company will pay the Executive a monthly car allowance
in an amount not less than the monthly car allowance currently paid to
Executive.
(d) BUSINESS EXPENSES. The Company will reimburse Executive, in
accordance with the practices in effect from time to time for other officers or
staff personnel of the Company, for all
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reasonable traveling expenses and other disbursements incurred by the Executive
for or on behalf of the Company in the performance of the Executive's duties
hereunder, upon presentation by the Executive to the Company of appropriate
documentation.
(e) STOCK OPTIONS. At least once during each fiscal year of the
Company during the Employment Term, the Committee will consider granting
Executive an option or options to purchase shares of the Company's common stock
("Shares") at a per Share exercise price equal to no more than the fair market
value per Share on the grant date(s) of the option(s). The number and terms and
conditions of any options granted to Executive will be determined at the
discretion of the Committee, but in no event shall the number of stock options,
or the terms and conditions of such stock options, be less favorable than the
stock options granted to the Chairman of the Company.
(f) VACATION. Executive will be entitled to paid vacation of four
weeks per year in accordance with the Company's vacation policy, with the timing
and duration of specific vacations mutually and reasonably agreed to by the
parties hereto.
3. COMPENSATION UPON TERMINATION.
(a) Notwithstanding anything to the contrary in this Agreement, if
Executive's employment with the Company terminates for any reason (including,
death or Disability), other than pursuant to a termination of Executive's
employment for Cause or a resignation by the Executive without Good Reason, then
Executive (or if applicable, his estate) shall be entitled to the following
benefits:
(i) BASE SALARY. As severance pay and in lieu of any other
compensation for periods subsequent to the date of termination, the Company
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
(the "Payment Date"), an amount in cash equal to the product of three times
Executive's Base Salary at the rate in effect immediately prior to the date of
termination.
(ii) BONUS. Executive shall be entitled to receive an amount
equal to 100% of the Executive's target bonus for the year in which termination
occurs as set forth in Section 2(b) (less amounts previously paid). The amount
payable pursuant to this Section 3(a)(ii) shall be paid on the Payment Date.
(iii) STOCK OPTIONS AND RESTRICTED STOCK. All outstanding stock
options held by Executive under all stock option and stock incentive plans of
the Company shall become immediately exercisable in full (except with respect to
any plan intended to qualify under Section 423 of the Internal Revenue Code of
1986, as amended (the "Code")) and shall remain exercisable until the earlier of
(i) three years after termination of employment and (ii) the option expiration
date as set forth in the applicable option agreement. All vesting requirements
and repurchase rights of the Company under all outstanding restricted stock
awards held by the Executive shall immediately terminate.
(iv) The additional benefits set forth in Sections 5 and 6.
(b) In the event that Executive desires to terminate his employment
pursuant to this Section 3 for Good Reason, Executive shall, prior to such
termination, meet with the Board to discuss his intention to terminate for Good
Reason and the basis for such termination (and the Board
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shall meet with Executive within ten days of Executive's request for a meeting).
If the Company has not, within ten days following such meeting with the Board,
cured the situation to Executive's reasonable satisfaction, then Executive shall
have the right to terminate this Agreement and receive the benefits set forth in
this Section 3. Notwithstanding the foregoing, if Executive terminates his
employment for Good Reason under this Section 3 and the Company does not agree
that Executive had the right to terminate for Good Reason under this Section 3,
the Company shall be entitled to seek resolution of the disagreement pursuant to
Section 14 hereof.
4. OTHER TERMINATION. If Executive's employment with the Company terminates
pursuant to a termination of Executive's employment for Cause or a resignation
by the Executive (except as permitted herein for Good Reason), then (a) the
vesting of all the Executive's outstanding stock options and restricted stock
awards will terminate immediately, (b) all payments of compensation by the
Company to Executive hereunder will terminate immediately (except as to amounts
already earned and as otherwise provided in Sections 5 and 6), and (c) Executive
will only be eligible for severance benefits in accordance with the Company's
established policies as then in effect, if any.
5. GOLDEN PARACHUTE EXCISE TAX GROSS-UP. In the event that the severance
and other benefits provided for in this Agreement or otherwise payable to the
Executive constitute "parachute payments" within the meaning of Section 280G of
the Code and will be subject to the excise tax imposed by Section 4999 of the
Code (whether in connection with the Merger or otherwise), then the Executive
shall receive (a) a payment from the Company sufficient to pay such excise tax,
and (b) an additional payment from the Company sufficient to pay the excise tax
and federal and state income taxes arising from the payments made by the Company
to Executive pursuant to this sentence. Unless the Company and the Executive
otherwise agree in writing, the determination of Executive's excise tax
liability and the amount required to be paid under this Section 5 shall be made
in writing by the accounting firm that is the Company's auditors or such other
accounting firm that is mutually acceptable to the Company and the Executive
(the "Accountants"). In the event that the excise tax incurred by Employee is
determined by the Internal Revenue Service to be greater or lesser than the
amount so determined by the Accountants, the Company and Employee agree to
promptly make such additional payment, including interest and any tax penalties,
to the other party as the Accountants reasonably determine is appropriate to
ensure that the net economic effect to Employee under this Section 5, on an
after-tax basis, is as if the Code Section 4999 excise tax did not apply to
Executive. For purposes of making the calculations required by this Section 5,
the Accountants may make reasonable assumptions and approximations concerning
applicable taxes and may rely on interpretations of the Code for which there is
a "substantial authority" tax reporting position. The Company and the Executive
shall furnish to the Accountants such information and documents as the
Accountants may reasonably request in order to make a determination under this
Section 5. The Company shall bear all costs the Accountants may reasonably incur
in connection with any calculations contemplated by this Section 5.
6. OTHER POST-EMPLOYMENT BENEFITS. In addition to the benefits provided
elsewhere in this Agreement, for a period of five years after the termination of
Executive's employment with the Company (by the Company or Executive for any
reason), at the Company's expense, the Executive shall be entitled to
participate in all group health and insurance programs and all other benefits,
fringe benefits and perquisites available generally to senior executives of the
Company (including in the case of health programs, continued coverage for the
Executive's spouse and eligible dependents). In the event that the Executive's
participation in any such plan or program is prohibited by operation of law or
by the terms of such plan or program as in effect immediately preceding the date
of
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termination of employment, the Company shall arrange to provide the Executive,
at the Company's expense, with benefits substantially similar to those which the
Executive would have been entitled to receive under such plans and programs.
7. DEFINITIONS.
(a) GOOD REASON. "Good Reason" means:
(i) The assignment to Executive of a different title, job or
responsibilities that results in a substantial decrease in the level of
responsibility of Executive with respect to the Company's business;
(ii) A reduction by the Company in Executive's Base Salary,
other than a salary reduction that is part of a salary reduction affecting
Company employees generally;
(iii) A significant reduction by the Company in total benefits
available to Executive under cash incentive, stock incentive and other employee
benefit plans;
(iv) The Company's material breach of its obligations under this
Agreement;
(v) The Company requiring Executive to travel on Company
business to an extent substantially inconsistent with his duties as Chief
Executive Officer; or
(vi) The Company's movement of its headquarters outside the
continental United States.
(b) CAUSE. "Cause" means (i) the willful and continued failure by
Executive to perform substantially Executive's reasonably assigned duties with
the Company (other than any such failure resulting from Executive's incapacity
due to physical or mental illness) after a demand for substantial performance is
delivered to Executive by the Board, which specifically identifies the manner in
which the Board believes that Executive has not substantially performed
Executive's duties or (ii) the willful engaging by Executive in illegal conduct
which is materially and demonstrably injurious to the Company. For this purpose,
no act, or failure to act, on Executive's part shall be considered "willful"
unless done, or omitted to be done, by Executive without reasonable belief that
Executive's action or omission was in, or not opposed to, the best interests of
the Company. Any act, or failure to act, based upon authority given pursuant to
a resolution duly adopted by the Board shall be conclusively presumed to be
done, or omitted to be done, by Executive in the best interests of the Company.
(c) DISABILITY. "Disability" means Executive's absence from
Executive's full-time duties with the Company for 180 consecutive days as a
result of Executive's incapacity due to physical or mental illness, unless
within 30 days after notice of termination by the Company following such absence
Executive shall have returned to the full-time performance of Executive's
duties.
8. CONFIDENTIAL INFORMATION AGREEMENT. Executive agrees to enter into the
Company's standard Confidential Information and Invention Assignment Agreement
(the "Confidential Information Agreement") in the form attached as Exhibit B.
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9. 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 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. The Company may not assign or transfer this Agreement
without the prior written consent of Executive. Any other attempted assignment,
transfer, conveyance or other disposition of Executive's right to compensation
or other benefits will be null and void.
10. NOTICES. All notices, requests, demands and other communications called
for hereunder shall be in writing and shall be deemed given (a) on the date of
delivery if delivered personally, (b) one (1) day after being sent by a well
established commercial overnight service, or (c) 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: If to the
Company:
Veeco Instruments Inc.
000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
ATTN: General Counsel
If to Executive:
Xxxxxx X. Xxxxx
at the last residential address known by the Company.
11. 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.
12. NON-COMPETE/NON-SOLICIT.
(a) During the Employment Term and ending on the second anniversary of
Executive's termination of employment with the Company (the "Non-Compete
Period"), Executive shall not, other than on behalf of the Company, directly or
indirectly, without the prior written consent of the Company, engage anywhere in
the Geographic Area in (whether as an employee, agent, consultant, advisor,
independent contractor, proprietor, partner, officer, director or otherwise),
have any ownership interest in (except for passive ownership of one percent (1%)
or less of any entity (other than the Company) whose securities have been
registered under the Securities Act of 1933 or Section 12 of the Exchange Act),
or participate in the financing, operation, management or control of, any firm,
partnership, corporation, entity or business that engages or participates in a
"competing business purpose." The term "competing business purpose" shall mean
the [designing, manufacturing, marketing and servicing of products that deposit
or etch materials on a substrate or
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that provide critical measurements of certain features utilized in data storage
and semiconductor devices].
(b) During the Employment Term and ending on the third anniversary of
Executive's termination of employment with the Company, Executive shall not,
directly or indirectly, without the prior written consent of Company, solicit,
encourage or take any other action which is intended to induce or encourage, or
has the effect of inducing or encouraging, any employee of the Company or any of
its Subsidiaries to terminate his or her employment with the Company. During the
Non-Compete Period, Executive shall not, directly or indirectly, without the
prior written consent of Company, solicit, encourage or take any other action
which is intended to induce or encourage, or has the effect of inducing or
encouraging, any customer, supplier or other business contact of the Company or
any of its Subsidiaries to terminate his, her or its relationship with the
Company or any of its Subsidiaries.
(c) The Geographic Area shall mean (i) the United States, or (ii)
anywhere in the world outside the United States the Company or any of its
Subsidiaries conducts business.
(d) The covenants contained in this Section 12 shall be construed as a
series of separate covenants, one for each county, city, state, country, or any
similar subdivision in any Geographic Area. Except for geographic coverage, each
such separate covenant shall be deemed identical in terms to the covenant
contained in the preceding paragraphs. If, in any judicial proceeding, a court
refuses to enforce any of such separate covenants (or any part thereof), then
such unenforceable covenant (or such part) shall be eliminated from this
Agreement to the extent necessary to permit the remaining separate covenants (or
portions thereof) to be enforced. In the event that the provisions of this
Section 12 are deemed to exceed the time, geographic or scope limitations
permitted by applicable law, then such provisions shall be reformed to the
maximum time, geographic or scope limitations, as the case may be, permitted by
applicable laws.
(e) Executive acknowledges that the nature of the Company's business
is such that if Executive was to become employed by, or substantially involved
in, the business of a competitor of the Company soon following the termination
of Executive's employment with the Company, it would be very difficult for
Executive not to rely on or use the Company's trade secrets and confidential
information. Executive has agreed to enter into this Agreement to avoid the
inevitable disclosure of the Company's trade secrets and confidential
information.
(f) Executive also acknowledges that the limitations of time,
geography, and scope of activity agreed to in this Agreement are reasonable
because, among other things, (i) the Company is engaged in a highly competitive
industry, (ii) Executive has unique access to, and will continue to have access
to, the trade secrets and know how of the Company, including without limitation
the plans and strategy (and in particular the competitive strategy) of the
Company, and (iii) in the event Executive's employment with the Company ended,
Executive would be able to obtain suitable and satisfactory employment without
violation of this Agreement.
13. ENTIRE AGREEMENT. This Agreement, including the Confidential
Information Agreement and any outstanding stock option or restricted stock
agreements between the Company and Executive, represents the entire agreement
and understanding between the Company and Executive concerning Executive's
employment relationship with the Company, and supersedes and replaces
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any and all prior agreements and understandings concerning Executive's
employment relationship with the Company entered into prior to the date hereof,
including the Original Agreement.
14. 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 pursuant to New York
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, 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 "Rules"). The arbitration proceedings
will allow for discovery according to the rules set forth in the Rules.
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. Notwithstanding the foregoing, 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. 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.
(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.
(d) AVAILABILITY OF INJUNCTIVE RELIEF. In addition to any right under
the Rules to petition a court for provisional relief, Executive agrees that any
party may also petition a court for injunctive relief where either party alleges
or claims a violation of this Agreement or the Confidential Information
Agreement or any other agreement regarding trade secrets, confidential
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information, nonsolicitation or invention assignment. 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 Equal Employment Opportunity
Commission, the applicable state discrimination board 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 been provided an opportunity to seek the
advice of an attorney of Executive's choice before signing this Agreement, 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..
15. NO ORAL MODIFICATION, CANCELLATION OR DISCHARGE. This Agreement may be
changed or terminated only in writing (signed by Executive and the Company).
16. 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.
17. GOOD REASON DEFINITIONS. The Executive hereby agrees that the Merger
and the new terms of Executive's employment with the Company pursuant to this
Agreement will not constitute "Good Reason" under this Agreement or the Original
Agreement.
18. GOVERNING LAW. This Agreement will be governed by the laws of the State
of New York (with the exception of its conflict of laws provisions).
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement on the
respective dates set forth below:
XXXXXX X. XXXXX
/s/ Xxxxxx X. Xxxxx Date: July 11, 2002
--------------------------------------
VEECO INSTRUMENTS INC.
/s/ Xxxx X. Xxxx, Xx. Date: July 11, 2002
--------------------------------------
Name: Xxxx X. Xxxx, Xx.
Title: Executive Vice President and
Chief Financial Officer
SIGNATURE PAGE TO XXXXXX XXXXX EMPLOYMENT AGREEMENT
EXHIBIT A
Executive is a member of the Board of Directors or other committees of
Semiconductor Equipment and Materials International (SEMI) and International
Disk Drive Equipment and Materials Association (XXXXX), two industry trade
groups, and may serve in similar capacities with other organizations.
Executive is also a member of the Board of Directors of kSARIA Corporation, a
manufacturer of automation products for fiber optic assembly.
EXHIBIT B
CONFIDENTIAL INFORMATION AND INVENTION ASSIGNMENT AGREEMENT
EMPLOYEE CONFIDENTIALITY
AND INVENTIONS AGREEMENT
EMPLOYEE CONFIDENTIALITY AND INVENTIONS AGREEMENT dated as of
________________, between VEECO INSTRUMENTS INC., on behalf of itself and its
subsidiaries (collectively, "Employer"), and _____________________ ("Employee").
In consideration of Employee's employment and/or continued employment
by Employer, the payment of Employee's compensation by Employer, and Employer's
entrusting to Employee of confidential information relating to its business,
Employee agrees to and accepts the conditions of employment hereinafter set
forth.
1. CONFIDENTIALITY. During the term of Employee's employment with Employer
and for five years thereafter, Employee will not use or disclose to any
individual or entity any Confidential Information (as defined below)
except (i) in the performance of Employee's duties for Employer, (ii)
as authorized in writing by Employer, or (iii) as required by law or
legal process, provided, that, prior written notice of such required
disclosure is provided to Employer and, provided, further, that, all
reasonable efforts to preserve the confidentiality of such information
shall be made. As used herein, "CONFIDENTIAL INFORMATION" shall mean
information that (i) is used or potentially useful in Employer's
business, (ii) Employer treats as proprietary, private or confidential,
and (iii) is not generally known to the public. "Confidential
Information" includes, without limitation to, information relating to
Employer's products or services, processing, manufacturing, selling,
customer lists, call lists, customer data, memoranda, notes, records,
technical data, sketches, plans, drawings, chemical formulae, trade
secrets, composition of products, research and development data,
sources of supply and material, operating and cost data, financial
information, and information contained in manuals or memoranda.
"Confidential Information" also includes proprietary and/or
confidential information of Employer's customers, suppliers and trading
partners who may share such information with Employer pursuant to a
confidentiality agreement or otherwise. The Employee agrees to treat
all such customer, supplier or trading partner information as
"Confidential Information" hereunder.
2. INVENTIONS.
a. Attached as APPENDIX A hereto is a compete and accurate list of
each invention, discovery, idea, improvement or application
(each, an "Invention") whether or not patentable, conceived,
developed, created or made by Employee, either alone or with
others, prior to employment with Employer. Except as set forth on
APPENDIX A, Employee has no unpatented Inventions which are to be
withheld from this Agreement and all present or future Inventions
of Employee are subject to assignment to Employer hereunder.
b. Employee shall promptly advise Employer, in writing, of each
Invention, whether or not patentable, which is in any way or
manner related to the business of Employer or resulting from or
was suggested by any work done for Employer and which is
conceived, developed, created or made by Employee, alone or with
others, (i) during his or her employment with Employer or (ii)
within two years after the termination of Employee's employment
with Employer but which is
based on Employer's trade secrets or Confidential Information
(each, an "Employer Related Invention"). Each Employer Related
Invention shall become the sole and exclusive property of
Employer. Employee agrees to disclose the same promptly to
Employer, to execute all documents requested by Employer for
vesting in it the entire right, title and interest in and to the
same, to execute all documents requested by Employer for filing
and prosecuting such applications for patents, copyrights and/or
trademarks as Employer, in its sole discretion may desire to
prosecute, and to give Employer all the assistance it reasonably
requires, including the giving of testimony in any suit, action
or proceeding, in order to obtain, maintain and protect
Employer's right therein and thereto.
c. The assignment of inventions contained herein shall not apply to
an invention that the Employee develops entirely on his or her
own time without using the Employer's equipment, supplies,
facilities or trade secret information except for those
inventions that either: (1) relate at the time of conception or
reduction to practice of the invention to the Employer's
business, or actual or demonstrably anticipated research or
development of the Employer; or (2) result from any work
performed by the Employee for the Employer. With respect to
Employees at Employer's facilities located within the State of
California, the foregoing provisions of this paragraph 2(c) are
intended to reflect the limitations on the assignment of
inventions imposed by California Labor Code Section 2870(a).
3. EMPLOYMENT AT-WILL. Employee acknowledge that his or her employment by
Employer is not for any specified period of time and that it can be
terminated by either Employee or Employer at any time. In other words,
this is an "employment at will."
4. TERMINATION OF EMPLOYMENT. In the event of termination of employment by
either party, this Agreement will remain in effect. Upon termination,
Employee will immediately deliver to Employer all property belonging to
Employer then in the Employee's possession or control, including all
Documents (as defined herein) embodying Confidential Information. As
used herein, DOCUMENTS" shall mean originals or copies of files,
memoranda, correspondence, notes, photographs, slides, overheads, audio
or video tapes, cassettes, or disks, and records maintained on computer
or other electronic media.
5. INDEPENDENT OBLIGATIONS. Employee acknowledges and agrees that the
obligations and covenants under this Agreement are intended to be, and
shall be construed as, agreements separate and independent from other
terms and provisions of his or her employment. The existence of any
claim or cause of action by Employee against Employer, whether
predicated on Employee's employment or otherwise, shall not constitute
a defense to the enforcement by Employer of said covenants.
6. SPECIFIC PERFORMANCE. Employee acknowledges that a breach or threatened
breach of the covenants and agreements contained herein cannot
reasonably or adequately be compensated in damages and that such breach
will cause Employer irreparable loss or damage. Accordingly, in
addition to and not in limitation of any and all other rights and
remedies at law or in equity, Employer shall be entitled to injunctive
or other equitable relief restraining Employee and any business, firm,
partnership, individual, corporation or entity participating therein
from committing or continuing such breach.
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7. ARBITRATION OF DISPUTES; WAIVER OF JURY TRIAL.
a. Any claim or controversy arising out of Employee's employment or
the cessation thereof, including any claim relating to this
Agreement, shall be settled solely by binding arbitration, in
accordance with the rules of the American Arbitration
Association. In such arbitration, each party shall bear its own
legal fees and related costs, except that the parties shall share
equally the fee of the arbitrator, provided that Employee's
portion of the arbitrator's fee shall not exceed the amount of
the filing fee for commencing an action in the court of general
jurisdiction in the judicial district in which Employee's place
of employment is located.
b. The decision or award of the arbitrator shall be final and
binding upon the parties. The arbitrator shall have the power to
award any type of legal and/or equitable relief available in a
court of competent jurisdiction, including, but not limited to,
the costs of arbitration and attorney's fees, to the extent such
damages are available under law. Any arbitral award may be
entered as a judgment or order in any court of competent
jurisdiction.
c. To the extent that any claim between the parties is found not to
be subject to arbitration, such claim shall be decided by a judge
sitting without a jury, to ensure rapid adjudication of those
claims and proper application of existing law.
d. Any such arbitration or judicial proceeding shall be brought in
the judicial district in which Employee's place of employment is
located.
8. SEVERABILITY. It is agreed that the invalidity or unenforceability of
any paragraph or provision (or any part thereof) of this Agreement
shall not affect the validity or enforceability of any one or more of
the other paragraphs or provisions (or other parts thereof). Should any
provision of this Agreement be declared illegal or unenforceable by any
court of competent jurisdiction, arbitrator or other forum and cannot
be modified to be enforceable (which the parties expressly authorize
such court, arbitrator or other forum to do), such provision shall
immediately become null and void, leaving the remainder of this
Agreement in full force and effect.
9. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to its
choice or conflict of laws provisions.
10. SECTION HEADINGS. Section headings are used herein for convenience of
reference only and shall not affect the meaning of any provision of
this Agreement.
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THUS, the parties knowingly and voluntarily execute this Agreement as of
the dates set forth below.
EMPLOYER: EMPLOYEE:
VEECO INSTRUMENTS INC.
By: Signature:
--------------------------------- ---------------------------
Title: Printed Name:
------------------------------ ------------------------
Date: Date:
------------------------------- --------------------------------
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APPENDIX A TO
EMPLOYEE CONFIDENTIALITY
AND INVENTIONS AGREEMENT
INVENTIONS PRIOR TO EMPLOYMENT WITH EMPLOYER
Brief Description Right, Title or Interest
of Inventions (1) and Date Acquired
----------------- -----------------
(1) "None" unless otherwise indicated.
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