Exhibit 10.6
EMPLOYMENT AGREEMENT
This Agreement is entered into by Xxxxx Xxxxxx (hereinafter referred to as
"Employee") and SpeedFam-IPEC, Inc., on behalf of itself, subsidiaries,
affiliates, predecessors, agents, and employees (hereinafter referred to as
"Company" or "Employer").
1. Term of the Agreement. The term of this Agreement (the "Term") shall
commence on April 9, 2001, and shall continue in effect through April 8, 2003,
after which time you shall be employed at will, with both you and the Company
having the right to terminate the employment for any reason.
2. Position. You will be employed in the position of Chief Technical
Officer and Vice President, Process Engineering for the CMP Group.
3. Compensation. The Company shall, at a minimum, pay an annual base
salary of $200,000, less customary deductions. The Company shall also provide
any benefit or compensation plan, investment or retirement plan, life insurance
plan, health-and-accident plan or disability plan, vacation and leave policies
that are applicable to other executives of the Company. The Company reserves the
right to change Employee salary and benefits on the same terms as other
executives.
4. Termination of Employment.
(a) During the two-year term of this Agreement, if the Company terminates
your employment for reasons other than "Disability" or "Cause" as defined below,
Employee will be paid severance in an amount equal to one (1) year's salary in a
lump sum payment less applicable payroll taxes on the next payroll date
following date of separation.
(b) Disability. "Disability" shall mean a physical or mental infirmity
which impairs your ability to substantially perform your duties with the Company
for a period of 180 days, as determined by an independent physician selected by
the Company and reasonably acceptable to you.
(c) Cause. Termination of your employment by the Company for "Cause" shall
mean termination upon (i) your continued failure to substantially perform your
duties with the Company (other than any such failure resulting from your
incapacity due to Disability) after a written demand for substantial performance
is delivered to you by the company, which demand specifically identifies the
manner in which the company believes that you have not substantially performed
your duties, (ii) your dishonesty, conflict of interest, theft, embezzlement,
misappropriation of company assets, diversion of Company business opportunities,
or breach of your duties of loyalty to the Company, or (iii) you shall have been
guilty of any act or acts constituting a felony, or shall have violated any
provision of any confidentiality, nondisclosure, assignment of invention,
non-competition or similar agreement entered into by you in connection with your
employment by the Company. For purposes of this subsection, no act or failure to
act on your part shall be deemed "willful" unless done or omitted to be done by
you not in good faith and without reasonable belief that your action or omission
was in the best interest of the Company.
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(d) If separation occurs as a result of Change of Control or Constructive
Termination as defined below, Employee will be paid severance in an amount
equal to one (1) year's salary in a lump sum payment less applicable payroll
taxes on the next payroll date following date of separation. In addition, all
unvested stock options awarded to the Employee pursuant to the Company's stock
option plans shall immediately vest in full to the Employee, provided that such
stock options shall be exercisable only within ninety (90) days from such
vesting.
(e) Change of Control. "Change of Control" shall be deemed to have
occurred upon (i) 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, at least
fifty-one percent (51%) of the equity of the combined entity; or (ii) 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); or, (iii) the liquidation of the
Company; or, (iv) one or more transactions which result in the acquisition by
any person or associated group of persons (other than the Company, any employee
benefit plan whose beneficiaries are employees 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 (v) 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 than an Acquiring Person does not include the company or
any employee 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.
(f) Constructive Termination. "Constructive Termination" means the
voluntary termination of employment by the Employee following a Change of
Duties following a Change of Control.
(g) Change of Duties. "Change of Duties" means; (i) significant reduction
in the nature or scope of the Employee's authority or duties from those
immediately prior to the date on which a Change of Control occurs; (ii) a
reduction in the Employee's base annual salary, other than as provided in
paragraph 3; (iii) exclusion from any incentive or benefit program from which
the Employee was previously eligible, and which other executives with
comparable duties participate in; or, (iv) a change in location of the
Employee's principal place of employment by more than fifty (50) miles.
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(h) Notice of Separation. Notification of Employee's intent to
terminate employment with Company shall be communicated by a written Thirty-Day
Notice of Separation to the Company. During this thirty-day period between
notification and actual separation, Employee is expected to continue performance
of duties on a full-time basis.
5. Non-Disclosure/Restricted Covenants. Employee agrees that all
financial data, customer lists, plans, contracts, agreements, literature,
manuals, catalogs, brochures, books, records, computer files applications, maps,
correspondence, and other materials furnished or made available to the Employee
by the Employer, or any of its clients, or created, prepared or secured through
the efforts of the Employee, relating to the business conducted by the Employer,
whether or not containing any confidential information, are and shall remain the
property of the Employer, and the Employee agrees to deliver all such materials,
including all copies thereof, to the Employer upon termination of the Employee's
employment hereunder. Upon separation, other than as expressly directed by the
Employer, Employee shall never, directly or indirectly, sell, use, disclose,
lecture upon, or publish data or information containing or relating to any
confidential information or technology of the Employer, unless Employee had such
confidential information or technology in his possession prior to employment by
Company. In exchange for Employee's employment and the additional consideration
provided hereunder, for a period of one (1) year after separation date, the
Employee agrees that he will not (i) own or have any interest, directly or
indirectly, in 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 competition with the Employer anywhere within the world where any
confidential information acquired by the Employee would reasonably be considered
advantageous to such other competing entity; or (ii) directly or indirectly
entice, induce, or in any manner influence any person who is, or shall be, in
the service of the Employer to leave such service for the purpose of engaging in
business or being employed by or associated with any person, form, association,
partnership, corporation, or other entity which is in competition with the
Employer. In the event that any court shall finally hold that the time or
territory or any other provision of this Paragraph constitutes an unreasonable
restriction against the Employee, the Employee agrees that the provisions hereof
shall not be rendered 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.
6. Miscellaneous.
(a) The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect.
(b) The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Arizona.
(c) This Agreement may be executed in several counterparts, each of which
shall be deemed to be an original but all of which together will constitute one
and the same instrument.
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(d) This Agreement sets forth the entire agreement of the parties hereto
in respect of the subject matter contained herein and supersedes all prior
agreements, promises, covenants, arrangements, communications, representations
or warranties, whether oral or written, by any officer, employee or
representative of any party hereto in respect of the subject matter contained
herein, and any prior agreement of the parties hereto in respect of the subject
matter contained herein is hereby terminated and canceled.
(e) The term of this Agreement or its termination provisions shall not be
modified or amended except pursuant to an instrument in writing executed and
delivered on behalf of each of the parties hereto.
If this document sets forth our agreement on the subject matter hereof,
please sign and return to the Company the enclosed copy of this letter, which
will then constitute our agreement on this subject.
Sincerely,
SPEEDFAM - IPEC
By: /s/ XXXXXXX X. XXXXXXX
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Xxxxxxx Xxxxxxx
CEO and President
ACCEPTED AND AGREED TO
as of this 24th day of April, 2001.
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By: /s/ XXXXX XXXXXX
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Xxxxx Xxxxxx
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