EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of September 1,
1999, by and among METRON TECHNOLOGY B.V., a limited liability company organized
under the laws of the Netherlands ("MTBV"), METRON TECHNOLOGY CORPORATION, a
California corporation ("Employer"), and XXXXX X. XXXXX ("Executive"), a
California resident.
RECITALS
MTBV is the sole shareholder of Employer and Employer desires to employ
Executive on the terms and conditions set forth herein;
Executive desires to accept such employment with Employer pursuant to the terms
and conditions of this Agreement; and
MTBV intends to reconfirm the appointment of Executive as a Managing Director B;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties hereto agree as follows:
1. EFFECTIVE TIME; EMPLOYMENT AND SERVICE
1.1 EFFECTIVE TIME. This Agreement is to be effective as of September 1, 1999,
(the "Effective Time") and shall continue in effect until Executive's employment
terminates pursuant to the provisions of Section 3 herein.
1.2 EMPLOYMENT WITH EMPLOYER. Employer agrees that it will employ Executive as
its Vice President, Finance and Chief Financial Officer or in such other
capacity as determined by Employer's Officers to whom the Executive reports or
Employer's Supervisory Board of Directors. MTBV agrees that it has elected
Executive as a member of the Board of Directors of Employer.
1.3 APPOINTMENT WITH MTBV. In view of Executive's employment with Employer, and
his appointment as a Class B (or similar description) Managing Director by
resolution of the General Meeting of Shareholders of MTBV, the parties now wish
to confirm the terms and conditions of his service as a Managing Director as
provided herein. The term of Executive's appointment as a Managing Director of
MTBV shall be determined by the General Meeting of Shareholders of MTBV. To the
extent permitted under Dutch corporate law, as a Managing Director of MTBV,
Executive shall perform such duties and responsibilities as may be determined
from time to time by MTBV's General Meeting of Shareholders or MTBV's
Supervisory Board (the "MTBV Supervisory Board"), as the case may be.
1.4 RESPONSIBILITIES FOR EMPLOYER. During the term of this Agreement, Executive
shall have such responsibilities as may be assigned to him by Employer's Officer
(or Officers) to whom the Executive reports, or Employer's Supervisory or
Managing Board of Directors. Executive's duties shall be performed at Employer's
Burlingame, California office or at such other location as Employer and
Executive mutually agree; provided, however, that, in the
1.
performance of his duties, Executive shall be required to travel at such
times and to such places as Employer or MTBV may reasonably request from time
to time.
1.5 EXCLUSIVE SERVICES. Executive agrees to devote his full time, attention and
energy to performing his duties and responsibilities to Employer and MTBV.
Executive further agrees that he will not engage in any business activity in
competition with Employer or MTBV nor make preparations to do so, and agrees not
to engage in any outside employment or consulting without written authorization
from MTBV's Supervisory Board. The foregoing, however, shall not preclude
Executive from engaging in the following activities, provided that they do not
unreasonably interfere or conflict with Executive's responsibilities to Employer
and MTBV: (1) engaging in appropriate civic, charitable or religious activities;
(2) devoting a reasonable amount of time to private investments; (3) serving on
the boards of directors of nonprofit entities; or (4) serving on the Board of
Directors of a for-profit entity with the prior written consent of Employer's
Chief Executive Officer.
2. COMPENSATION, BENEFITS AND PERQUISITES
2.1 BASE SALARY. During the period this Agreement is in effect, Employer shall
pay Executive an annual base salary of $180,000.00, less standard deductions and
withholdings. MTBV, acting through the MTBV Supervisory Board or its
Compensation Committee, as the case may be, shall review Executive's base salary
at least annually and may in its sole discretion increase (but not decrease,
unless such decrease is done on an equitable pro-rata basis for all of
Employer's executives, including its CEO) such salary to reflect performance,
appropriate industry data and other factors. Employer and MTBV shall not be
obligated to provide any such salary increases.
2.2 BONUSES.
(a) Executive shall be entitled to participate in the annual incentive
compensation plans for MTBV's senior management pursuant to the terms of these
plans. Generally, any such compensation shall be paid out of a pool funded by a
percentage of the annual pretax income of MTBV calculated before income taxes
and performance incentive compensation. MTBV shall have the sole discretion to
change or eliminate its annual incentive compensation plans, to determine the
amount placed into the pool, to determine whether Executive is entitled to any
compensation under these plans, and to determine the amount of any such
compensation.
(b) In addition, any such compensation shall be considered earned as of the last
day of Employer's fiscal year provided that Executive has remained employed on a
full-time basis by Employer through that date. Notwithstanding the foregoing, if
Executive is terminated without Cause (as defined in Section 3.4(a) herein), or
resigns for Good Reason (as defined in Section 3.4(b) herein) during the term of
this Agreement, for the fiscal year in which his employment terminates, Employer
shall pay Executive the bonus to which he would otherwise have been entitled had
he been employed as of the last day of such fiscal year multiplied by a
fraction, the numerator of which is the number of days elapsed in the fiscal
year up to and including the date of his termination of employment, and the
denominator of which is 365.
2.
(c) In the event of Executive's death or Disability (as such term is defined in
Section 3.4(c) herein) during the term of this Agreement, for the fiscal year in
which his death or Disability occurs, Employer shall pay Executive's estate (in
the event of Executive's death) or the Executive (in case of his Disability) the
bonus to which he would otherwise have been entitled had he been employed as of
the last day of such fiscal year multiplied by a fraction, the numerator of
which is the number of days elapsed in the fiscal year up to and including the
date of his death, or, in the case of Disability, the last day of active
employment, and the denominator of which is 365.
(d) If Executive is awarded any such compensation, it will be paid in one lump
sum as soon as practicable after the annual audit of Employer's financial
statements are complete and Employer has completed the necessary calculations of
the amounts, if any, which are due. Any such compensation shall be subject to
standard withholdings.
2.3 VACATIONS. Executive shall accrue three weeks of annual vacation with full
pay in accordance with the policies applicable to executive employees of
Employer who are located in the United States. Executive may accrue up to a
maximum of 30 days vacation, at which point further accrual stops until accrued
vacation is used, unless otherwise agreed to in writing between Executive and
Employer.
2.4 EMPLOYEE BENEFITS. Executive shall be entitled to participate in Employer's
benefits and perquisites in accordance with Employer's policies which it now or
in the future makes generally available to all of its executives. Executive
shall pay any contributions which are generally required of its executives to
receive any such benefits. Such perquisites may include but not necessarily be
limited to, use of and reimbursement for cellular/car phone, professional
organizational dues and professional developmental seminars. It is anticipated
that the MTBV Supervisory Board will annually review Executive's benefits
package and may, in its discretion, increase (but not decrease unless such
decrease is done on an equitable pro rata basis for Employer's executives
including its CEO) such perquisites.
2.5 EXPENSES. During the term of his employment hereunder, Executive shall be
entitled to receive prompt reimbursement from Employer or MTBV (in accordance
with their policies and procedures for executive employees and on submission of
written documentation of such expenses suitable to Employer or MTBV) for all
reasonable travel and other expenses incurred by Executive in connection with
his services hereunder. For airline flights of four hours or more in duration,
Executive is entitled to fly business class and be reimbursed for such expenses.
Executive will make reasonable efforts to use frequent flyer benefits derived
from business travel on Employer's behalf to upgrade from coach class to
business class when feasible. Employer reserves the right to require Executive
to fly coach class (regardless of trip length or duration) in any quarter in
which MTBV reasonably expects to report a net loss, provided that such a
requirement is generally applicable to all of Employer's executives.
2.6 INDEMNIFICATION.
(a) Except to the extent modified below in (b), Employer, with regard to
Executive's performance of services on behalf of Employer as an employee,
officer, director, or
3.
agent, and MTBV as an employee, officer, director, or agent, with regard to
Executive's performance of services on behalf of MTBV, agree, to the fullest
extent authorized or permitted by MTBV's charter documents and applicable
law, to fully indemnify Executive and to hold him harmless from and against
all claims, damages, judgments, losses, liabilities, fees and expenses
incurred by him or threatened against him in connection with his performance
of services hereunder and to make advances to him for the payment of legal
fees, witness fees, expenses and costs related thereto. MTBV and Employer
also agree to pay any damages, judgments, fines and amounts paid in
settlement and any other amounts that Executive becomes legally obligated to
pay because of any claim or claims made against or by Executive in connection
with any threatened, pending or completed action, suit or proceeding to which
Employee is entitled to indemnification pursuant to the terms of this Section
2.8(a), PROVIDED, HOWEVER, Employee shall not settle any such proceeding
without the express written consent of the Supervisory Board of MTBV. MTBV
and Employer agree to use their best efforts to include Executive in the
coverage of any errors and omissions and/or directors and officers insurance
policies, if any, obtained by MTBV or Employer for officers and directors of
MTBV and Employer, respectively.
(b) The indemnification provisions of Section 2.8(a) shall not apply with
respect to the obligations of MTBV or Employer to indemnify Executive in the
following events:
- to the extent that Executive is indemnified
pursuant to any insurance purchased and
maintained by or on behalf of MTBV and/or
Employer pursuant to the provisions of
Section 2.8(a) of this Agreement and any
resulting obligations are actually paid on
behalf of or reimbursed to Executive
pursuant to such insurance;
- on account of Executive's acts or omissions
that involve intentional misconduct or would
constitute Cause under Section 3.4(a)
herein;
- on account of violations of the provisions
of Section 4 of this Agreement;
- on account of acts or omissions of Executive
that Executive believed or reasonably should
have known at the time of the act or
omission to be contrary to the best
interests of MTBV and Employer or its
shareholders or that involve the absence of
good faith on the part of Executive;
- with respect to any transaction from which
Executive derived an improper personal
benefit;
- on account of acts or omissions that show a
reckless disregard by Executive for his
duties to MTBV or Employer or their
shareholders in circumstances in which
Executive was aware, or should have been
aware, in the ordinary course of performing
an
4.
officer's duties, of a risk of serious
injury to MTBV, Employer or their
shareholders;
- on account of acts or omissions that
constitute an unexcused pattern of
inattention that amounts to an abdication of
Executive's duties to MTBV, Employer or
their shareholders;
- on account of acts or omissions that
constitute a violation of Section 16 of the
Securities and Exchange Act of 1934; or
- if indemnification is unlawful.
(c) CONTINUATION OF INDEMNITY. MTBV's and Employer's indemnity obligations
contained herein shall continue during the period Employee is a director,
officer, employee or other agent of MTBV or the Employer, respectively (or is or
was serving at the request of MTBV or Employer as a director, officer, employee
or other agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise) and shall survive the termination of
Executive's employment with Employer and continue thereafter so long as
Executive shall be subject to any possible claim or threatened, pending or
completed action, suit or proceeding, by reason of the fact that Executive was
serving in the capacity referred to herein and to the extent he would otherwise
be entitled to indemnification pursuant to Section 2.8(a).
(d) EXPENSES. Upon request, MTBV or Employer may advance, prior to the final
disposition of any proceeding covered by this Section 2.6 (excluding any
proceedings instituted by Executive or Employer under Sections 5.9 and 5.10
herein), such advance not to be unreasonably withheld or delayed, all reasonable
expenses incurred by Executive in connection with such proceeding upon receipt
of an undertaking by or on behalf of Executive to repay said amounts if it shall
be determined ultimately that Executive is not entitled to be indemnified under
the provisions of this Agreement, applicable law, MTBV's Articles of Association
or Employer's Charter Documents, or otherwise.
3. TERMINATION OF EXECUTIVE'S EMPLOYMENT
3.1 TERMINATION OF EMPLOYMENT. Executive's employment by Employer under this
Agreement may be terminated by Employer or Executive at any time, with or
without cause. Executive's appointment as a Managing Director of MTBV may be
terminated by the General Meeting of Shareholders of MTBV as permitted by the
Articles of Association of MTBV and Netherlands law. Executive agrees to give
ninety (90) days' written notice if he intends to resign without Good Reason.
3.2 SEVERANCE BENEFITS UPON TERMINATION BY EMPLOYER WITHOUT CAUSE, UPON
RESIGNATION BY EXECUTIVE FOR GOOD REASON OR DISABILITY. If this Agreement is:
(1) terminated by Employer without Cause; or (2) terminated by the Executive for
Good Reason; or (3) terminated by Employer as a result of Executive's
Disability; and if Executive provides the
5.
Company with a signed general release of all claims, a form of which is set
forth in Exhibit A, Employer shall provide Executive with the following
severance benefits only:
(a) Continuation of Executive's final base salary for a period of twelve (12)
months after Executive's termination date. These payments will be made on the
Company's standard payroll dates and will deduct standard deductions and
withholdings. To the extent, if any, Executive receives disability insurance
benefits during this salary continuation period, Executive agrees to tender
those payments to Employer.
(b) To the extent permitted by federal COBRA law and by Employer's current group
health insurance policies, Executive will be eligible to continue his health
insurance benefits. Employer will pay the cost of continuing such benefits for a
period of twelve (12) months after Executive's termination date. Should
Executive become eligible for such health care benefits through another
employer, any such payments under this provision shall immediately cease.
Executive agrees to notify Employer immediately if he becomes eligible for such
benefits; and
(c) In the event Executive's employment is terminated because of his Disability,
Executive also shall be entitled to receive the pro-rata bonus as specified in
Section 2.2(c) herein.
3.3 NO BENEFITS IF TERMINATED BY EMPLOYER FOR CAUSE, UPON RESIGNATION BY
EMPLOYEE WITHOUT GOOD REASON, OR UPON DEATH. If Executive's employment is
terminated for Cause by Employer, or if Executive resigns without Good Reason,
or if this Agreement is terminated by Executive's death, Executive shall not be
entitled to receive any severance benefits whatsoever, provided, however, that
in the event of Employee's death, his estate shall be entitled to the pro-rata
bonus as specified in Section 2.2(c) herein.
3.4 DEFINITIONS.
(a) DEFINITION OF "CAUSE." For purposes of this Article 3, "Cause" shall mean
the following: (i) indictment or conviction of, or a plea of nolo contendere to,
any felony or any misdemeanor involving moral turpitude; (ii) commission of an
act of fraud, theft or embezzlement of property of MTBV or any of its
subsidiaries or commission of similar acts involving dishonesty or moral
turpitude that are materially injurious to MTBV or any of its subsidiaries;
(iii) Executive's failure to devote substantially all of his working time and
efforts during normal business hours to the business of MTBV and its
subsidiaries except as otherwise permitted by this Agreement or to comply with
the covenants contained in Sections 4.1 or 4.2 of this Agreement; (iv) knowingly
providing materially misleading information concerning MTBV or any of its
subsidiaries to MTBV, the MTBV Managing Board or Supervisory Board, its General
Meeting of Shareholders, any shareholder holding 10% or more of MTBV stock, any
governmental body or regulatory agency or to any lender or other financing
source or proposed financing source of MTBV or its subsidiaries; or (v) any
other failure by Executive to substantially perform his material duties as an
employee of Employer under this Agreement or as a Managing Director of MTBV
(excluding nonperformance resulting from Executive's disability) which failure
is not cured within thirty (30) days after written notice from the XXXX
0.
Supervisory or Managing Board, in the case of Executive's duties to MTBV, or
from the Employer, in the case of Executive's duties to Employer, specifying the
act(s) of nonperformance or within such longer period (but no longer than sixty
(60) days in any event) as is reasonably required to cure such nonperformance.
(b) DEFINITION OF "GOOD REASON." "Good Reason" shall mean: (i) a material
adverse change in the responsibilities, authority, title or office of Executive
resulting in the substantial diminution of his position; (ii) except for
decreases made on an equitable pro rata basis for Employer's executives located
in the United States, a diminution in Employee's annual base salary below the
amount stated in Section 2.1 or as same may be increased from time to time;
(iii) except for changes made on an equitable pro rata basis for Employer's
executives located in the United States, the failure by Employer to continue to
provide Executive with benefits substantially similar to those enjoyed by
executives of Employer; (iv) Employer's requiring of Executive to be based
anywhere other than a location which is within a 50-mile radius of the Company's
existing office in Burlingame, California; or (v) any other material breach by
Employer of this Agreement; excluding for all of these purposes an isolated,
insubstantial or inadvertent action not taken in bad faith which is remedied by
Employer promptly after notice thereof is given by Executive.
(c) DEFINITION OF "DISABILITY." "Disability" shall have the same meaning
provided in Section 22(e)(3) of the Internal Revenue Code of 1986, as amended,
except for that section's reference to "12 months," which time period shall
instead be ninety (90) days.
3.5 MERGER, TRANSFER OF ASSETS OR DISSOLUTION. This Agreement shall not be
terminated by a voluntary or involuntary dissolution of Employer or MTBV or the
transfer of all or substantially all the stock or assets of Employer or MTBV or
the merger of Employer or MTBV with or into another entity.
4. CONFIDENTIALITY AND TRADE SECRETS
4.1 PROPRIETARY INFORMATIONS AND INVENTIONS AGREEMENT. Executive agrees to abide
by all of Employer's policies and procedures and further agrees to sign and
abide by the terms of Employer's Proprietary Information and Inventions
Agreement, attached hereto as Exhibit B.
4.2 NONSOLICITATION OBLIGATIONS. Executive agrees that for two (2) years
following the termination of his employment, he will not, either directly or
through others, solicit, attempt to solicit, or induce any employee, consultant
or independent contractor of Employer or MTBV to terminate his or her
relationship with these entities in order to become an employee, consultant or
independent contractor to or for any other person or business ENTITY. Executive
also agrees that in order to protect MTBV and Employer's confidential and
proprietary information, for two (2) years following the termination of his
employment, he will not, either directly or through others, render services to,
contract with, or attempt to solicit business from any principal, customer or
prospective customer of Employer or MTBV for products or services offered by
Employer or MTBV at the time of Executive's termination of employment.
7.
4.3 SCOPE OF RESTRICTIONS. If the scope of the restrictions in this section are
determined by a court of competent jurisdiction to be too broad to permit
enforcement of such restrictions to their full extent, then such restrictions
shall be construed or rewritten ("Blue-lined") so as to be enforceable to the
maximum extent permitted by law, and Executive hereby consents, to the extent he
may lawfully do so, to the judicial modification of the scope of such
restrictions in any proceeding brought to enforce them.
5. MISCELLANEOUS
5.1 AMENDMENT. This Agreement may be amended only in writing signed by each of
the parties.
5.2 ENTIRE AGREEMENT. This Agreement contains the entire agreement between the
parties with respect to its subject matter and supersedes all prior agreements
and understandings, oral or written, between the parties; all prior agreements
regarding the subject matter of this Agreement are hereby terminated, including
Executive's previous employment agreement.
5.3 NO ASSIGNMENT BY EXECUTIVE. Executive acknowledges that the services to be
rendered by him are unique and personal. Accordingly, Executive may not delegate
or assign any of his obligations under this Agreement.
5.4 SUCCESSORS AND ASSIGNS. Subject to Section 5.3, the provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto,
any successor to or assign of Employer or MTBV, and upon Executive's heirs and
the personal representative of Executive or Executive's estate.
5.5 NOTICES. Any notice or other communication required or permitted hereunder
shall be sufficient if given in writing, (i) by hand-delivery, (ii) by express
courier, (iii) by first class mail, certified or registered with return receipt
requested or (iv) by facsimile transmission with written confirmation sent the
same day by first class mail, certified or registered with return receipt
requested, which shall be addressed as follows (or to such other address as a
party may specify by notice duly given in accordance with this Section 5.5):
If to Employer:
Metron Technology Corporation
0000 Xxx Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxx, President
8.
If to MTBV:
Metron Technology B.V.
c/o FSI International, Inc.
000 Xxxx Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx, Chairman, Supervisory
Board of Directors
If to Executive:
Xxxxx X. Xxxxx
000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Any notice so sent shall be deemed effectively made on the day of actual
delivery to the recipient (if by hand or express courier), on the fifth business
day following mailing (if by airmail) or on the next business day following
transmission (if by telefax with written confirmation).
5.6 WAIVER OF BREACH. Any waiver by either party of compliance with any
provision of this Agreement by the other party shall not operate or be construed
as a waiver of any other provision of this Agreement, or of any subsequent
breach by such party of a provision of this Agreement. No waiver by MTBV shall
be valid unless in writing and signed by the Chairman of the MTBV Supervisory
Board.
5.7 SEVERABILITY. If any one or more of the provisions (or portions thereof) of
this Agreement shall for any reason be held by a final determination of a court
of competent jurisdiction to be invalid, illegal, or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provisions (or portions of the provisions) of this Agreement, and the
invalid, illegal or unenforceable provisions shall be deemed replaced by a
provision that is valid, legal and enforceable and that comes closest to
expressing the intention of the parties hereto.
5.8 GOVERNING LAW. This Agreement shall be interpreted and enforced in
accordance with the laws of the State of California, without giving effect to
conflict of law principles. Executive hereby expressly agrees that the intention
of the parties is that Executive will remain a resident of California and will
perform all or substantially all of his services as an employee of Employer
hereunder and as a Managing Director of MTBV in and from the United States and
not The Netherlands. Accordingly, the parties hereby expressly exclude
application of Netherlands law to this Agreement, including in particular but
without limitation all Netherlands laws regarding employment, termination of
employment and employee benefits. Executive hereby irrevocably consents to such
exclusion and waives any and all claims or causes of action that he might
otherwise assert against MTBV, its subsidiaries, officers, directors and
shareholders based on, or arising out of, any provision of Netherlands law.
9.
5.9 DISPUTE RESOLUTION. Unless otherwise prohibited by law, all disputes,
claims, and causes of action (including but not limited to any claims of
statutory discrimination of any type), in law or equity, arising from or
relating to this Agreement or its enforcement, performance, breach, or
interpretation, or to Executive's employment with Employer or service with MTBV,
or the termination of that employment or service, shall be resolved solely and
exclusively by final, binding and confidential arbitration through Judicial
Arbitration & Mediation Services/Endispute, Inc. ("JAMS") under the then
existing JAMS employment arbitration rules. Employer shall be responsible for
paying any and all fees and costs necessary to initiate such arbitration
proceedings, subject to final apportionment by the Arbitrator. Executive
understands and agrees that this provision waives his right to a jury trial on
these claims. This arbitration shall be held in the San Francisco Bay Area.
Nothing in this section is intended to prevent either party from obtaining
injunctive relief in court to prevent irreparable harm pending the conclusion of
any such arbitration.
5.10 ATTORNEYS' FEES. In the event of litigation between Executive and Employer
arising under Section 5.9 herein, the prevailing party shall be entitled to
reimbursement from the non-prevailing party for its reasonable attorneys' fees
and costs of suit in addition to such other relief as may be granted.
5.11 HEADINGS. The headings of articles and sections herein are included solely
for convenience and reference and shall not control the meaning or
interpretation of any of the provisions of this Agreement.
5.12 COUNTERPARTS. This Agreement may be executed by either of the parties
hereto in counterparts, each of which shall be deemed to be an original, but all
such counterparts shall constitute a single instrument.
10.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date set forth above.
METRON TECHNOLOGY B.V.
By: /s/ X. Xxxxx
____________________________________
Xx Xxxxx
President
METRON TECHNOLOGY CORPORATION
By: /s/ X. Xxxxx
____________________________________
Xx Xxxxx
President
EXECUTIVE
/s/ Xxxxx X. Xxxxx
________________________________________
Xxxxx X. Xxxxx
11.
