Exhibit 10.10
AXCELIS TECHNOLOGIES, INC.
EXECUTIVE OFFICER AGREEMENT
This Agreement is entered into effective this 18th day of December, 2003
by and between Axcelis Technologies, Inc., a Delaware corporation with
its principal office at 000 Xxxxxx Xxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxxxx
00000 ("Axcelis" of the "Company") and Xxxxxxx X. Xxxxxxx, with an address
at 0 Xxxxxxxx Xxx, Xxxxxxx, Xxxxxxxxxxxxx ("Executive").
In consideration of the mutual covenants and promises contained herein,
Axcelis and Executive agree as follows:
1. Employment and Term.
1.1. Employment. The Company hereby offers to employ the Executive
as the Chief Financial Officer of the Company and the Executive hereby
accepts such employment with the Company, for the Term set forth in
Section 1.2.
1.2. Term. The term of the Executive's employment under this Agreement
(the "Term") shall commence on the date hereof and end on June 30, 2004,
subject its earlier termination as provided in Section 3 or its extension
by mutual written agreement.
1.3. Duties. During the Term, the Executive shall serve as Chief
Financial Officer of the Company. The Executive shall report to the
Chief Executive Officer and perform duties consistent with his position.
The Executive shall devote his best skill and efforts (reasonable sick leave
and vacations excepted) to the performance of his duties under this
Agreement.
1.4. Base Salary. For services performed by the Executive for the Company
pursuant to this Agreement during the Term, the Company shall pay the
Executive a base salary at the rate of at least $276,000 per year, payable
in accordance with the Company's regular payroll practices (but no less
frequently than monthly). Any compensation which may be paid to the Executive
under any additional compensation or incentive plan of the Company or which
may be otherwise authorized from time to time by the Board (or an appropriate
committee thereof) shall be in addition to the base salary to which the
Executive shall be entitled under this Agreement.
1.5. Expense Reimbursement. The Company shall reimburse the Executive,
upon a proper accounting, for reasonable business expenses and disbursements
incurred by him in the course of the performance of his duties under this
Agreement.
1.6. Vacation. The Executive shall be entitled to vacation and paid time
off during the Term of this Agreement in accordance with the Company's policies
applicable to senior executives, or such greater period as the Board shall
approve, without reduction in salary or other benefits.
1.7. Participation in Benefit Plans. With the exception of the short-term
disability, long-term disability, flexible spending account plan, and the
401(k) plan, the Executive shall also participate in the various benefit plans
maintained in force by the Company from time to time, including any medical,
group life insurance, supplemental life insurance coverage, business travel
insurance, sick leave, and other similar retirement and welfare benefit plans,
programs and arrangements.
2. Exclusivity; Non-Solicitation.
2.1. Exclusivity and Non-Compete. Executive shall not, during the term of
this Agreement, and for a period of one (1) year thereafter, organize or serve
in any capacity (whether as an officer, director, employee, consultant or
otherwise) any person, firm, corporation or other entity which is in direct
competition with Axcelis or which may otherwise give rise to a conflict of
interest or appearance of a conflict of interest with Executive's employment
by the Company, without the prior written consent of Axcelis.
2.2. Non-Solicitation. Executive agrees that during the term of this
Agreement and for a period of one (1) year thereafter, Executive shall not
induce or attempt to induce any of Axcelis' employees or independent
contractors to terminate their employment or contractual relationships
with Axcelis, or solicit, divert or take away, or attempt to divert or
take away the business or patronage of any of the clients, customers or
accounts, or prospective clients, customers or accounts of Axcelis which
were contracted, solicited or served by Axcelis during the period in which
Executive was employed by Axcelis.
3. Early Termination of Employment; Effect of Termination.
3.1. Early Termination . The Term will end prior to June 30, 2004
as follows:
(a) upon 30 days' prior written notice by Axcelis, without cause; or
(b) immediately, by written notice from Axcelis to Executive, if Executive
fails to perform or observe any of the terms, covenants, obligations or
conditions of this Agreement; or
(c) upon 30 days' prior written notice from Executive to Axcelis, without
cause, or
(d) upon 10 days written notice from Executive to Axcelis, if Axcelis fails
to perform or observe any of the terms, covenants, obligations or conditions
of this Agreement; or
(e) immediately, in the event of the Executive's death.
3.2. Effect of Early Termination. In the event of termination in
accordance with Section 3.1(a) or (d), the Company shall continue to make
payments to Executive through the remainder of the Term of the Agreement as
provided in Section 1.2 above (which amount may be paid in a lump sum if
requested by the Executive). In the event of any other termination prior to
the end of the Term, the Company shall have no further obligations to the
Executive after his termination of employment, except as set forth in Section
3.4.
3.3. Separation Payment and Option Acceleration; Release of Claims. In the
event the Executive's employment with the Company terminates either on June 30,
2004 or prior to such date as a result of a termination in accordance with
Section 3.1(a) or (d), then (on the condition that the Executive executes and
delivers the Release of Claims described below):
(a) the Company shall make a lump sum payment to Executive in the amount of
$23,000 (the "Separation Payment"), which shall be paid by check or wire
transfer to a bank account designated by Executive; and
(b) All stock options awarded to the Executive by the Company on or before the
date of termination shall become fully vested as of the date of termination
and shall remain in effect and exercisable in accordance with the terms and
conditions of their grant.
In consideration of the Separation Payment and option acceleration provisions
of this Section 3.3, upon termination of his employment with the Company,
Executive agrees to execute and deliver to the Company a separation agreement
containing a Release of Claims in substantially the form attached here to as
Exhibit A.
3.4. Accrued Vacation. Upton termination of Executive's employment for
any reason, the Company will make a lump sum payment equal to Executive's
unused accrued vacation time.
3.5. Full Compensation; No Other Compensation. The Executive acknowledges
that upon his termination of employment for any reason, the payments and
benefits specified in this Agreement are good, sufficient and valuable
consideration and that such payments, when received, will constitute payment
in full for any and all wages, including accrued unused vacation pay.
Unless otherwise provided for expressly in this Agreement, all other
benefits will cease as of the date of termination of employment.
4. Miscellaneous.
4.1. Entire Agreement. This Agreement represents the entire and integrated
agreement between Axcelis and Executive with respect to the subject matter
hereof and supersedes all prior negotiations, representations or agreements
(including but not limited to the Consulting Agreement between the Company and
the Executive dated as of June 9, 2003, as amended), either written or oral.
This Agreement may be amended only by written instrument signed by both Axcelis
and Executive.
4.2. No Inadvertent Waivers. No waiver of any portion of this Agreement shall
be effective unless in writing. The failure of a party at any time to require
performance by the other of any provision shall in no way affect the right of
such party to enforce that or any other provision of this Agreement. No waiver
of any breach of this Agreement shall constitute a waiver of any subsequent
breach of the same or any other provision of this Agreement.
4.3. Governing Law. This Agreement and the rights and obligations of the
parties shall be governed and construed in accordance with the laws of the
Commonwealth of Massachusetts. Any action brought pursuant to or in connection
with this Agreement shall be brought only in the state or federal courts within
the Commonwealth of Massachusetts without regard to its conflict of laws
provisions. In any such action, Executive submits to the personal jurisdiction
of the courts of the Commonwealth of Massachusetts, waives any objections to
venue of such courts, and agrees to accept service of process by any means
reasonably calculated to give effective notice of the action.
4.4. Severablility. The provisions of this Agreement are severable and if
any of the provisions hereof are held to be invalid, illegal or unenforceable,
in whole or in part, the remaining provisions of this Agreement shall remain
binding and enforceable by and between the parties.
4.5. Section Headings. Section headings are for convenience only and shall
not be considered in the interpretation of this Agreement.
4.6. Availability of Equitable Remedies. The Executive agrees and warrants
that the covenants contained herein are reasonable, that valid consideration
has been and will be received therefor and that the agreements set forth
herein are the result of arms-length negotiations between the parties hereto.
The Executive recognizes and acknowledges that the provisions of Section 2
are vitally important to the continuing welfare of the Company, and its
subsidiaries and affiliates, and that money damages constitute a totally
inadequate remedy for any violation thereof. Accordingly, in the event of
any such violation by the Executive, the Company, and its subsidiaries and
affiliates, in addition to any other remedies they may have, shall have the
right to institute and maintain a proceeding to compel specific performance
thereof or to obtain an injunction restraining any action by the Executive
in violation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first above written.
AXCELIS TECHNOLOGIES, INC.
By: __/s/ Xxxx X. Puma______________________
Xxxx X. Puma, Chief Executive Officer
EXECUTIVE
/s/ Xxxxxxx X. Bassett_______________________
Xxxxxxx X. Xxxxxxx
Exhibit A
RELEASE OF CLAIMS
General Release and Covenant Not to Xxx.
(f) Release. In consideration of the Company's covenants in this
Agreement, the Executive hereby releases and discharges the Company
and its officers, directors, agents, employees, successors and assigns
("Released Parties") from any and all claims by the Executive arising
before the signing of this Agreement, including all claims arising out
of the Executive's employment with the Company or the termination thereof
(except those relating to performance of this Agreement and the Company's
obligations under the Indemnification Agreement between the Executive and
the Company dated June 26, 2003 (the "Indemnification Agreement")) and
claims arising under common law and claims arising under federal or state
labor and employment laws and laws prohibiting discrimination on the basis
of age, sex, race, national origin or disability. The laws referred to in
the preceding sentence include Title VII of the Civil Rights Act of 1964,
as amended; the Equal Pay Act of 1963, as amended; the Age Discrimination
in Employment Act of 1967 (ADEA), as amended; the Fair Labor Standards Act
of 1938, as amended; the Americans With Disabilities Act of 1990, as amended;
the Rehabilitation Act of 1973, as amended; the Family and Medical Leave Act
of 1993, as amended; Chapter 151B of the Massachusetts General Laws, Chapter
149 of the Massachusetts General Laws; the Massachusetts Civil Rights Act and
the Massachusetts Equal Rights Law; or any other state or federal law, order,
public policy or regulation affecting or relating to the rights and/or claims
of employees. Nothing in this Agreement shall be construed to be a release of
certain ADEA and Title VII rights that is not allowed by law, except that the
Employee waives and shall not accept any damages from any such claims.
(g) Covenant Not to Xxx. The Executive represents and warrants that he has
not filed any complaints, charges, or claims for relief against the Released
Parties with any local, state or federal court or administrative agency.
The Executive agrees and covenants not to xxx or bring any claims or charges
against the Released Parties with respect to any matters arising out of or
relating to the Executive's employment with or separation from the Company,
other than enforcement of the terms of this Agreement or the Indemnification
Agreement. In the event that the Executive institutes any such action, that
claim shall be dismissed upon presentation of this Agreement and he shall
reimburse the Company for all legal fees and expenses incurred in defending
such claim and obtaining its dismissal.
(h) No Implied Admission. It is understood and agreed that this Agreement
does not constitute any admission by the Company that any action taken with
respect to the Executive was unlawful or wrongful, or that such action
constituted a breach of contract or violated any federal or state law,
policy, rule or regulation.
Compliance with Federal Older Workers Benefit Protection Act of 1990.
(i) Time To Consider Agreement. The Executive acknowledges that he has
been advised in writing to consult with an attorney and has had ample
opportunity to consult with and review this Agreement with an attorney of
his choice, and has been given a period of at least forty-five (45) days
within which to consider whether to sign this Agreement. If the Executive
has signed this Agreement prior to the end of this forty-five (45) day
period, he represents that he has done so knowingly and voluntarily.
(j) Revocation Right. It is agreed and understood that for a period of
seven (7) days following the execution of this Agreement, which period
shall end at 5:00 p.m. on the seventh day following the date of execution
by the Executive, he may revoke this Agreement. This Agreement will not
become effective until this revocation period has expired. This seven
(7) day revocation period cannot be shortened by agreement of the parties
or by any other means
