EXHIBIT 10.27
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into this 8th day of October, 1998, by
and between SPEEDFAM INTERNATIONAL, INC., an Illinois corporation (hereinafter
referred to as the "Company") and XXXXXXX X. XXXXXXX (hereinafter referred to
as the "Executive").
W I T N E S S E T H :
WHEREAS, the Company desires to retain the services of the Executive in
the capacities set forth herein, and the Executive desires to be employed by
the Company in such capacities;
NOW THEREFORE, in consideration of the promises and mutual covenants
herein contained, the Company and the Executive hereby agree as follows:
1. Employment. The Company hereby employs the Executive and the
Executive hereby accepts employment with the Company upon the terms and
conditions hereinafter set forth and subject to the policies as published
in the Company's Employee Handbook, Annual Incentive Compensation Plan,
and the 1995 Stock Option Plan, each as from time to time amended.
2. Term. Subject to the provisions for extension hereinafter set
forth in Section 3 and for earlier termination hereinafter set forth in
Section 12 of this Agreement, the term of employment hereunder shall
commence on the date hereof and end on May 31, 2000.
3. Automatic Extension. The term of employment of the Executive
hereunder shall automatically continue for additional one (1) year terms
upon the same terms and conditions contained herein (except for the
guaranteed minimum incentive compensation bonus (Section 4.3), certain
severance payments (Section 4.8), and grant of 300,000 stock options
(Section 4.7), each of which apply solely to the initial term) unless
either the Company or the Executive shall notify the other at least thirty
(30) days prior to the expiration of the initial term or any renewal term
of its or his intention to terminate this Agreement as of the end of its
then current term.
4. Compensation. The Company agrees to provide the Executive with
the following compensation for all services rendered under this Agreement:
4.1. Salary. During the term hereof, the Company shall pay to
the Executive a Base Annual Salary of FOUR HUNDRED THOUSAND DOLLARS
($400,000.00), payable in accordance with the standard payroll
practices of the Company (including any salary-reduction
contributions to plans or programs maintained by the Company).
Further, the Base Annual Salary of the Executive
shall be reviewed annually by the Company and increased as
appropriate, although the amount may be decreased after the first
year, but only incident to, and consistent with (on a percentage
basis), a general reduction in base salaries of Company's executives
resulting from poor company performance.
4.2. Annual Incentive Opportunity. During the term of this
Agreement, the Executive shall participate in the annual incentive
plan maintained by the Company for its executives. The Executive's
annual bonus under the incentive compensation plan shall be targeted
at one hundred percent (100%) of the Executive's Base Annual Salary
(with a maximum bonus of two hundred percent (200%) of the
Executive's Base Annual Salary), subject to satisfaction of annual
milestones reasonably established by the Compensation Committee of the
Board of Directors of the Company. Annual milestone objectives for
the years ending May 31, 1999, and May 31, 2000, shall be established
within ninety (90) days from the date hereof.
4.3. Minimum Incentive Bonus. Solely for the fiscal year ending
May 31, 1999 hereunder, the Company shall pay the Executive a
guaranteed bonus under the incentive plan in the minimum amount of
Two Hundred Fifty Thousand Dollars ($250,000.00), payable upon the
Company's fiscal year end of May 31, 1999, it being agreed, however,
that the 100% target bonus for the fiscal year ending May 31, 1999,
will be Executive's relevant Base Annual Salary (an annualized figure
as defined), prorated for the period beginning with the period of
employment through May 31, 1999.
4.4. Long-term Incentive Opportunity. During the term of this
Agreement, the Executive shall participate in any long-term incentive
plan maintained by the Company, including, but not limited to, stock
options, performance shares, restricted stock and long-term cash
incentive plans, in a manner consistent with other executives of the
Company, as reasonably determined by the Board of Directors of the
Company.
4.5. Relocation and Commuting Benefits. For a two year period
commencing with the execution of this Agreement, while the Executive
remains an employee of the Company and commutes from Portland, Oregon,
the Company shall lease in its name for the benefit and control of the
Executive, a reasonably priced fully-furnished two bedroom apartment
or two bedroom condominium in the Phoenix, Arizona area (maximum 2,500
square feet). During this two year period, the Company shall pay
reasonable costs of coach class airline tickets for weekly travel for
the Executive or his wife between Portland, Oregon and Phoenix,
Arizona. Following this two year period, the Executive shall be
responsible for all further commuting costs.
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4.5.1 If the Executive elects to move to the Phoenix area while
employed by the Company, the Company will pay all reasonable and
ordinary costs of relocating the Executive and his wife from Portland
to the Phoenix area, including without limitation, moving costs,
costs associated with selling the Executive's house in Portland
(including, without limitation, real estate commissions), and
reasonable and ordinary costs (other than purchase price) associated
with purchasing a home in the Phoenix area. The Company shall not be
responsible for any loss in equity incurred in the sale of the
Executive's Portland, Oregon residence.
4.5.2 To the extent that any relocation or commuting benefit
paid hereunder is taxable to the Executive, the Company shall pay to
the Executive a full gross-up (except to the extent such expenditures
by the Executive may be deducted on the Executive's personal income
tax return) so that the amounts paid by the Company, net of the
Executive's taxes, fully cover the relevant expenses.
4.6. Other Benefits. To the extent that the Executive is eligible
under appropriate laws and regulations, the Executive shall be entitled to
participate in and receive benefits under any and all pension,
profit-sharing, health, disability and insurance plans, if any, which the
Company may maintain. The Executive shall not receive automobile benefits
or allowances.
4.7. Equity Incentive. Subject to shareholder approval to increase the
number of authorized option shares, which is contemplated at the annual
shareholders meeting scheduled for October 8, 1998, the Company shall grant
the Executive options to purchase 300,000 shares of common stock of the
Company. With respect to such options:
4.7.1. The exercise price for such options shall be the Company's
per share market price at the close of business on October 8, 1998.
The options will be non-qualified options, subject to all terms and
conditions of the Company's 1995 Stock Option Plan. Except as set
forth otherwise in the Stock Option Plan and herein, the options
granted hereunder shall vest ratably (in 5 equal installments) and
annually as of the end of each of the next 5 fiscal years ended May
31, with the first year's vesting to occur on May 31, 1999. Subject
to the Stock Option Plan and this Agreement, vested options may be
exercised for ten years from the date of grant. In the event of the
death of the Executive, vested options may be exercised for one year
from the date of death. In all other events, vested options must be
exercised within 90 days of termination. Subject to the obligation of
the Executive under the Company's 1995 Stock Plan for Employees and
Directors to hold shares resulting from the exercise of an option for
at least 6 months from the date the option was acquired, the
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Company will cooperate in any same day exercise and sale (or if same
is not available, a cashless exercise) associated with such options.
4.7.2 Upon termination of the Executive's employment, option
vesting will cease; provided, however, that if any termination
severance payment is due in connection therewith pursuant to Section
12.3, the Executive will receive an additional one year of vesting as
of the date of termination. Payment of all amounts and benefits
hereunder and additional vesting of stock shall be subject to
compliance with the provisions of this Agreement and specifically the
restrictive covenants set forth in Section 13 hereof.
4.8 Business Combination Severance Payment. If, within six (6) months
of the date hereof, the Company has not closed a transaction to be merged
with, acquire or be acquired by another company of at least approximate
comparable size to the Company (based on annual sales), or if same is
closed and Executive is not appointed President and Chief Executive Officer
of the combined company, the Executive may terminate his employment
hereunder, or if same is closed and Executive's employment as President and
Chief Executive Officer is terminated (other than for cause) within one (1)
year of such closing and except as otherwise provided in Section 12.2, then
the Company shall pay the Executive a lump sum cash severance payment equal
to two times his Base Annual Salary.
5. Duties. The Executive shall, subject to the right of the Board of the
Company in its sole discretion to terminate Executive's employment pursuant to
Section 12.3 and thereby terminate his officer position, serve as President and
Chief Executive Officer of the Company. As such, the Executive's duties and
responsibilities shall include, but shall not be limited to, overseeing all
corporate functions and directing the Company so as to seek to obtain sales and
profit goals and maximum return on invested capital. The Executive's duties
shall include the facilitation and execution of any plan of merger, acquisition
or other business combination involving the Company as the Board of Directors
shall reasonably direct. Subject to the approval of the Board of the Company,
the President/Chief Executive Officer is responsible for the formulation of
current and long range plans and objectives, and represents the organization
with its customers and the business and non-business communities. The Executive
shall also be responsible for the performance of such other duties and
responsibilities as may be prescribed from time to time by the Board of
Directors of the Company. The Board of Directors of the Company shall nominate
the Executive, subject to their fiduciary duty as directors, for election by the
shareholders to the Board of Directors.
6. Extent of Service. The Executive shall devote the Executive's full
business time, attention, and energies to the business of the Company and its
Affiliates and shall not, during the term of this Agreement, be engaged in any
other business activity, whether or not such activity is pursued for gain,
profit, or other pecuniary advantage, unless written approval is first secured
from the Board of Directors of the
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Company, with such approval not unreasonably being withheld. The following
exception is agreed upon in advance: continued membership on the Board of
Directors of Radisys.
7. Working Facilities. The Executive shall be furnished with office space,
furnishings, secretarial support and such other facilities and services which
are reasonably necessary for the performance of the Executive's duties.
8. Expenses. The Company will reimburse the Executive for all reasonable
business expenses which are incurred by the Executive in the promoting of the
interests of the Company upon presentation by the Executive from time to time
(at least monthly) of an itemized account of such expenses containing such
detail as may reasonably be required by the Board of Directors of the Company.
In addition, the Company shall indemnify the Executive as a officer, director
and employee to the maximum extent permitted under law and the Company's
corporate documents.
9. Vacation. The Executive shall be entitled to paid vacation in
accordance with Company policy as set forth in the Company's Employee
Handbook. All vacation time shall be taken by the Executive at such times as
shall be mutually agreed upon by the Executive and the Board of Directors of
the Company.
10. Disability. If, as a result of sickness or other disability, the
Executive is not able to perform the Executive's duties, this Section 10 shall
apply as follows:
10.1. For the first ninety (90) consecutive days of sickness or other
disability the Company shall continue to pay the Executive full Base Annual
Salary (reduced by any payments from any short-term disability plan which may
be maintained by the Company), and shall continue to pay premiums on then
existing group life, health, disability and other insurance plans with respect
to which the Executive participates, provided the Executive remains eligible to
participate thereunder.
10.2 If the disability or other sickness continues past ninety (90)
consecutive days, the Company, in its sole discretion, may elect to place the
Executive on Disability Leave of Absence. During such period, the Company
shall, for the remainder of the contract term, or until the Executive returns
from such Disability Leave of Absence, continue to pay premiums on then
existing group life, health, disability and other insurance plans with respect
to which the Executive participates, provided the Executive remains eligible to
participate thereunder. Further, the Company shall pay to the Executive,
two-thirds (2/3) of the Executive's Base Annual Salary, reduced by any payments
for which the Executive is eligible from any disability insurance programs
maintained by the Company.
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11. Death. If the Executive dies during the term of this Agreement, the
Company shall pay to the Executive's Beneficiary (or if there is no named
Beneficiary, the estate of the Executive), the compensation as set forth in
Section 4 of this Agreement, for the period up to the date of the Executive's
death, and the Executive's annual incentive award prorated through the date of
death, payable at fiscal year end if and to the same extent bonuses are paid
for that fiscal year to other executives generally. In no event shall the
Company be obligated to pay to any person any other compensation with respect
to any period following the date of the Executive's death.
12. Termination of Employment.
12.1. Termination for Cause. The Company may terminate the
Executive's employment under this Section of the Agreement for Cause.
Cause shall be defined as:
12.1.1. The Executive's Material Breach of this Agreement based
on the Executive's willful or grossly negligent failure to perform
his duties hereunder, which breach is not cured within ten (10)
business days after written notice from the Company specifying such
breach has been delivered to the Executive;
12.1.2. Commission by the Executive of any materially fraudulent
or dishonest act in the performance of the Executive's duties
hereunder, other than at the specific direction of the Board; or,
12.1.3. Arrest (unless the charges are dropped within 45 days)
for any felony or crime involving moral turpitude. Executive agrees
that following any such arrest and during the subsequent 45 day
period he may, at the direction of the Board of Directors, be placed
on unpaid leave of absence.
12.1.4. Following a Termination for Cause, the Company shall pay
to the Executive the Base Annual Salary provided in Section 4.1
accrued up to the date of termination. In no event shall the Company
be obligated to pay any other compensation with respect to any period
before or after the date of such termination.
12.2. Termination Following a Change of Control. If in anticipation
of and within 90 days of, or during a period of one (1) year following, a
Change of Control (as hereinafter defined), the employment of the
Executive is terminated by the Company for any reason other than Cause, or
if the Executive is subject to Constructive Termination (as hereinafter
defined), benefits shall be payable under this Section 12.2.
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12.2.1. The Executive shall receive all Base Annual Salary
accrued up to the date of termination and, within thirty (30) days of
termination, a single payment equal to the sum of (i) two (2) times
the sum of the Executive's then current Base Annual Salary and (ii)
the Executive's prorated target annual incentive award opportunity
through date of termination.
12.2.2. All unvested stock options awarded to the Executive
pursuant to the Company's stock option plans shall immediately vest
in full to the Executive; provided that such stock options shall be
exercisable only within ninety (90) days from such vesting.
12.3. Other Termination at the Election of the Company. Except as
otherwise provided in Section 4.8, the Company may elect to terminate the
employment of the Executive for any reason other than Cause or following a
Change of Control, or to not renew the term of the Agreement, upon written
notice to the Executive, accompanied by payment in a lump sum (except
pursuant to Sections 12.3.2 and 12.3.3) of:
12.3.1. All compensation accrued up to the date of termination;
plus
12.3.2. An amount equal to one (1) times the Executive's Base
Annual Salary of record on the date of termination payable pro rata
monthly over one year following termination; plus
12.3.3. The Executive's target annual incentive award,
pro-rated through the date of termination and payable at fiscal year
end if and to the same extent bonuses are paid for that fiscal year
to other executives generally.
12.4. Benefit Payments. Following the termination of the Executive's
employment for any reason, the Company shall pay to the Executive, under
the terms of the Company's benefit plans, an amount equal to the vested
benefits of the Executive in any pension or other benefit plan as of the
termination date. If elected by the Executive, the Company shall, instead
of direct payment to the Employer, transfer such funds to such other
benefit plans as designated by the Executive.
13. Restrictive Covenants.
13.1. Executive understands that the Company's business involves the
design, improvement, development, testing, manufacturing, marketing and
sale of products, and that this business requires substantial investments
in capital and substantial commitments of time and effort by the Company's
employees. The Executive further understands that, as a result, certain of
the Company's
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personnel, including the Executive, acquire information with respect to
customer goodwill, trade secrets and Confidential Information (as
hereinafter defined), which, of itself and apart from the Executive's
abilities, could be of great value to a competitor of the Company,
potential competitors of the Company, and to others.
13.2. The Executive further understands that employment with the
Company is conditioned upon the Company's being able to place complete
trust and confidence in the Executive and to rely on the Executive's doing
everything possible to avoid the disclosure or use of Confidential
Information to persons, corporations, organizations and others outside the
Company, which may become known to, or subject to the control of the
Executive during the term of employment hereunder. The Executive also
understands that competition in the manufacture, sale, and development of
products is not local in nature or scope, but involves various
corporations, organizations and others located within the United States
and throughout the world.
13.3. In recognition of these circumstances and for the purpose of
inducing the Company to employ the Executive (or continue the employment
of the Executive with appropriate compensation reviews) to repose trust
and confidence in the Executive, and to make Confidential Information
available to the Executive, the Executive agrees that the following
restrictive covenants are necessary and proper for the protection of the
Company.
13.4. Subject to Section 13.6 below, the Executive will promptly
disclose and assign the Company, without the right to any form of
compensation therefore, every invention that the Executive, individually or
jointly with others, during the term of the Executive's employment with the
Company and for a period of one (1) year following termination of such
employment for any reason, may discover, invent, conceive or originate,
relating in any way to the present or contemplated scope of the Company's
business with regard to any of its clients, customers, or vendors or to any
Product (as hereinafter defined), Technology (as hereinafter defined),
process, or device dealt in, used or under development or manufacture by
the Company for itself or others that results from or may be suggested by
any work the Executive may do for the Company or at the Company's request
and (in respect to the period of one (1) year following termination of such
Executive) which involves Confidential Information. The Executive will
fully cooperate with the Company in applying for and securing in the name
of the Company or its designee patents or copyrights with respect to said
Inventions (as hereinafter defined) in each country in which the Company
may desire to secure patent or copyright protection. The Executive will
promptly execute all proper documents presented to the Executive for
signature by the Company to enable the Company or its designee to secure
such patent or copyright protection and to transfer
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legal title therein, together with any patents or copyrights that may be
issued thereon or in connection therewith, to the Company or its
designee. The Executive will give such true information and testimony as
may be requested of the Executive by the Company relative to any of said
Inventions.
13.5. Subject to Section 13.6 below, the Company shall have the
exclusive right to use in its business, and to make, use and sell products,
processes, and/or services arising out of any Invention, whether or not
patentable, which is assignable by the Executive to the Company pursuant to
Section 13.4 above.
13.6. The Executive is hereby notified that Sections 13.4 and 13.5
above do not apply to an Invention for which no equipment, supplies,
facility, technology, confidential information, or trade secret information
of the Company was used and which was developed entirely on the Executive's
own time, unless:
13.6.1. The Invention was related:
13.6.1.1. To the business of the Company; or
13.6.1.2. To the Company's actual or demonstrably
anticipated research or development;
or;
13.6.2. The Invention results from any work performed by the
Executive for the Company.
13.7. The Executive agrees that all financial data, customer lists,
plans, contracts, agreements, literature, manuals, catalogues, brochures,
books, records, computer files or applications, maps, correspondence, and
other materials furnished or made available to the Executive by the Company
or an Affiliate (as hereinafter defined), or any of its clients, or
created, prepared or secured through the efforts of the Executive, relating
to the business conducted by the Company or an Affiliate, whether or not
containing any Confidential Information, are and shall remain the property
of the Company, and the Executive agrees to deliver all such materials,
including all copies thereof, to the Company upon termination of the
Executive's employment hereunder, or at any other time at the Company's
request.
13.8. Other than as expressly directed by the Company and in the
performance of duties to the Company or with the expressed permission of
the Company, the Executive shall never, during or following the
Executive's
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employment with the Company, directly or indirectly, sell, use, disclose,
lecture upon, or publish data of information containing or relating to any
Confidential Information or Technology of the Company or its Affiliates or
any Invention assignable to the Company pursuant to the terms of Section
13.4 above.
13.9. During the term of the Executive's employment with the Company
and for a period of two (2) years after the termination thereof, the
Executive agrees that the Executive will not:
13.9.1. Own or have any interest in, directly or indirectly,
except through stock traded on a national stock exchange where the
Executive owns less than one percent (1%) of the total issued and
outstanding shares of such stock, or act as an officer, director,
agent, employee, or consultant of, or assist in any way or in any
capacity, any person, firm, association, partnership, corporation or
other entity which sells or provides products or services in direct
competition with the products or services of the Company or its
Affiliates anywhere within the world where any Confidential
Information acquired by the Executive would reasonably be considered
advantageous to such other competing entity, or
13.9.2. Directly or indirectly entice, induce or in any manner
influence any person who is, or shall be, in the service of the
Company or its Affiliates to leave such service for the purpose of
engaging in business or being employed by or associated with any
person, firm, association, partnership, corporation or other entity
which sells or provides products or services in competition with the
Company or its Affiliates anywhere in the world.
If any court shall finally hold that the time, territory or any other
provision of this Section 13.9 constitutes an unreasonable restriction
against the Executive, the Executive agrees that the provisions hereof
shall not be rendered null and void, but shall apply as to such time,
territory, and other extent as such court may determine to be a reasonable
restriction under the circumstances involved.
13.10. The Executive understands that if there is a breach by the
Executive of any duty to the Company with respect to any Confidential
Information or Invention, the Company may suffer irreparable injury and
may not have adequate remedy at law. As a result, the Executive agrees
that if a breach of this Agreement occurs, the Company may, in addition to
any other remedies available to it, bring an action or actions for
injunction, specific performance, or both, and have entered into a
temporary restraining order, preliminary or permanent injunction, or other
action compelling specific performance.
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14. Definitions.
14.1. "Affiliate" means any entity in which the Company, or any entity
which owns, directly or indirectly, a majority ownership interest in the
Company, owns, directly or indirectly, at least a twenty percent (20%) interest
in such entity.
14.2. "Base Annual Salary" means the annualized value of the Executive's
salary, based on the most recent pay period.
14.3. "Board" means the Board of Directors of the Company.
14.4. "Change in Duties" means:
14.4.1. A significant reduction in the nature or scope of the
Executive's authority or duties from those immediately prior to the date on
which a Change of Control occurs;
14.4.2. A reduction in the Executive's Base Annual Salary, other
than as provided in Section 4.1;
14.4.3. Exclusion from any incentive or benefit program from which
the Executive was previously eligible, and which other executives with
comparable duties participate in; or
14.4.4. A change in location of the Executive's principal place of
employment by more than fifty (50) miles.
14.5. "Change of Control" shall be deemed to have occurred upon:
14.5.1. A business combination, including a merger or consolidation,
of the Company as a result of which the shareholders of the Company prior to
the combination do not continue to own, directly or indirectly, more than
fifty-one percent (51%) of the equity of the combined equity;
14.5.2. A sale, transfer, or other disposition in one or more
transactions (other than in transactions in the ordinary course of business or
in the nature of a financing) of the assets or earning power aggregating more
than forty-five percent (45%) of the assets or operating revenues of the
Company to any person or affiliated or associated group of persons (as defined
by Rule 12b-2 of the Exchange Act in effect as of the date hereof);
14.5.3. The liquidation of the Company;
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14.5.4. One or more transactions which result in the acquisition by
any person or associated group of persons (other than the Company, any
Executive benefit plan whose beneficiaries are Executives of the Company or
any of its subsidiaries) of the beneficial ownership (as defined in Rule
13d-3 of the Exchange Act, in effect as of the date hereof) of forty
percent (40%) or more of the Common Stock of the Company or securities
representing forty percent (40%) or more of the combined voting power of
the voting securities of the Company, provided such affiliated persons
owned less than forty percent (40%) prior to such transaction or
transactions; or
14.5.5. The election or appointment, within a twelve (12) month
period, of any person or affiliated or associated group, or its or their
nominees, to the Board of Directors of the Company, such that such persons
or nominees, when elected or appointed, constitute a majority of the Board
of Directors of the Company and whose appointment or election was not
approved by a majority of those persons who were directors at the beginning
of such period or whose election or appointment was made at the request of
an Acquiring Person. An "Acquiring Person" is any person who, or which,
together with all affiliates or associates of such person, is the
beneficial owner of twenty percent (20%) or more of the Common Stock of the
Company then outstanding, except that an Acquiring Person does not include
the Company or any Executive benefit plan of the Company or any of its
subsidiaries or any person holding Common Stock of the Company for or
pursuant to such plan. For the purpose of determining who is an Acquiring
Person, the percentage of the outstanding shares of the Common Stock of
which a person is a beneficial owner shall be calculated in accordance with
Rule 13d-e of the Exchange Act.
14.6. "Code" means the Internal Revenue Code of 1986, as from time to time
amended.
14.7. "Company" means SpeedFam International, Inc., an Illinois
corporation.
14.8. "Confidential Information" means any and all Technology and/or
information which:
14.8.1. Is provided to the Executive by the Company;
14.8.2. Is created, developed, or otherwise generated by or on
behalf of the Company;
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14.8.3. Concerns or relates to any aspect of the Company's business;
or
14.8.4. Is, for any reason, identified by the Company as
confidential.
14.8.5. Notwithstanding the foregoing provisions of this Section
14.8, Confidential Information shall not include such information which the
Executive can show, clearly and convincingly:
14.8.5.1. Is publicly and openly known and in the public domain;
14.8.5.2. Becomes publicly and openly known and in the public
domain through no fault of the Executive; or
14.8.5.3. Is in the Executive's possession and documented prior
to this Agreement, lawfully obtained from a source other than
from the Company, and not subject to any obligation of
confidentiality or restricted use.
14.9. "Constructive Termination" means the voluntary termination of
employment by the Executive following a Change in Duties following a Change of
Control.
14.10. "Exchange Act" means the Securities Exchange Act of 1934, as from
time to time amended.
14.11. "Invention" means any new or useful art, discovery, or improvement
(including any technologies, tests, programs, products, concepts, ideas,
apparatus, equipment, machinery, processes, methods, formulae, designs or
techniques), whether or not related to a Product and whether or not patentable,
and all the know-how related thereto.
14.12. "Material Breach" means a willful or grossly negligent failure to
perform the Executive's duties as set forth in this Agreement.
14.13. "Product" means any product or service which is, or may in the
reasonable future be, manufactured, sold, designed, developed, considered by,
or of interest to the Company or an Affiliate (including, but not limited to,
any product or service involving CMP planarization technology, such as CMP-V
tools or any free-abrasive machining, lapping, polishing and grinding).
14.14. "Technology" means prototypes, models, concepts, inventions,
circuit designs, drawings, hardware, technological developments and improve-
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ments, methods, techniques, systems, documentation, data, works of authorship,
products, and related information whether or not patentable, copyrightable, and
whether or not presently used or used in the future.
14.15. "Voting Securities" means any securities which ordinarily
possess the power to vote in the election of directors without the happening of
any precondition or contingency.
15. Miscellaneous.
15.1. This Agreement supersedes all prior agreements and
understandings by and between the Executive and the Company and any of its
Affiliates or their respective directors, officers, shareholders, employees,
attorneys, agents, or representatives, including any Severance Agreement,
Employment Letter, Employment Terms, Non-Disclosure Agreement and/or
Employment Agreement (including change of control provisions) and constitutes
the entire agreement between the parties, respecting the subject matter hereof
and there are no representations, warranties or other commitments other than
those expressed herein.
15.2. The Executive represents and warrants to the Company that the
Executive is not a party to or bound by, and the employment of the Executive by
the Company or the Executive's disclosure of any information to the Company or
its use of such information will not violate or breach any employment,
retainer, consulting, license, non-competition, non-disclosure, trade secrets
or other agreement between the Executive and any other person, partnership,
corporation, joint venture, association or other entity.
15.3. No modification or amendment of, or waiver under, this Agreement
shall be valid unless signed in writing and signed by the Executive and an
appropriate officer of the Company, pursuant to expressed authority of the
Board of Directors of the Company.
15.4. The Executive agrees to indemnify the Company and its Affiliates
against, and to hold the Company and its Affiliates harmless from, any and all
claims, lawsuits, losses, damages, expenses, costs and liabilities, including,
without limitation, court costs and attorney's fees, which the Company or any
of its Affiliates may sustain as a result of, or in connection with, either
directly or indirectly, the Executive's breach or violation of any of the
provisions of this Agreement.
15.5. The Company agrees to indemnify the Executive against, and to
hold the Executive harmless from, any and all claims, lawsuits, losses,
damages, expenses, costs and liabilities, including, without limitation, court
costs and
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attorney's fees, which the Executive may sustain as a result of, or in
connection with, either directly or indirectly, the breach or violation by the
Company or its Affiliates of any of the provisions of this Agreement or any
applicable law or regulations.
15.6. The Executive hereby agrees that if the Executive violates any
provision of this Agreement, the Company will be entitled, if it so elects, to
institute and prosecute proceedings at law or in equity to obtain damages with
respect to such violation or to enforce the specific performance of this
Agreement by the Executive or to enjoin the Executive from engaging in any
activity in violation hereof.
15.7. The waiver by either party to this Agreement of a breach of any
provision of this Agreement by the other shall not operate or be construed as a
waiver of any subsequent breach.
15.8. Any communication which may be required under this Agreement
shall be deemed to have been properly given when delivered personally at the
address set forth below for the intended party during normal business hours,
when sent by facsimile or other electronic transmission to the respective
facsimile transmission numbers of the parties set forth below with telephone
confirmation of receipt, or when sent by U.S. registered or certified mail,
return receipt requested, postage prepaid as follows:
If to the Company: SpeedFam International, Inc.
000 X. 00xx Xxxxxx
Xxxxxxxx, XX 00000-0000
Attention: Chairman of the Board
Facsimile: 000-000-0000
Confirm: 000-000-0000
If to the Executive: Xxxxxxx X. Xxxxxxx
0000 X.X. 000xx Xxxxx
Xxxxxxxx, Xxxxxx 00000
Confirm: 000-000-0000
Notices shall be given to such other addressee or address, or both, or by way
of such other facsimile transmission number, as a particular party may from
time to time request by written notice to the other party to the Agreement.
Each notice, request, demand, approval or other communication which is sent in
accordance with this Section shall be deemed to be delivered, given and
received for all purposes of this Agreement as of two (2) business days after
the date of deposit thereof for mailing in a duly constituted U.S. post office
or branch thereof, one (1) business day after deposit with a recognized
overnight courier
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service or upon written confirmation of receipt of any facsimile
transmission. Notice given to a party hereto by any other method shall only
be deemed to be delivered, given and received when actually received in
writing by such party.
15.9. This Agreement shall inure to the benefit of and be binding
upon the Company and the Executive and their respective heirs, personal
representatives, successors and assigns.
15.10. All claims, disputes and other matters in question arising out
of, or relating to this Agreement, or the breach thereof, shall be decided
by arbitration, pursuant to the rules established by the American
Arbitration Association for the arbitration of such disputes, and such
arbitration shall occur in Chandler, Arizona.
15.11. This Agreement may be signed in multiple counterparts which
when taken together shall constitute the entire Agreement.
15.12 This Agreement shall be governed and construed in accordance
with the laws of the State of Arizona.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
SPEEDFAM INTERNATIONAL, INC. an Illinois
Corporation
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Xxxxx Xxxxxx
Title: Chairman
Executive
/s/ Xxxxxxx X. Xxxxxxx 10/8/98
---------------------------------------
Xxxxxxx X. Xxxxxxx
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