EMPLOYMENT AGREEMENT
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BY THIS EMPLOYMENT AGREEMENT (the "Agreement") made and entered into
this 1st day of July, 1997, AMTECH SYSTEMS, INC., an Arizona corporation
("Employer"), and XXXX X. XXXXXXX ("Employee"), state, confirm and agree as
follows:
I. RECITALS
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1.1 Employer is engaged in the business of manufacturing and producing
for profit equipment for the fabrication and handling of silicon semiconductor
wafers ("Systems") and further improving technologies and intellectual
properties having application to such business ("Employer's Business").
Employer's Business is conducted on a worldwide basis. All locations in which
material portions of Employer's Business are, or may during the term of
Employee's employment by Employer be, conducted are hereinafter collectively
referred to as the "Market Area."
1.2 Employer has acquired the assets of X.X. Xxxxxxx Machine Products
Corporation (the "Assets"), a company wholly owned by Employee and previously
engaged in a business complementary to Employer's Business ("PRH") pursuant to
an Asset Purchase Agreement of even date herewith. Henceforth, the commercial
application of the Assets shall be considered a part of "Employer's Business".
1.3 Employee has expertise in the business of manufacturing, marketing
and distributing semiconductor equipment and related consumables used in the
lapping and polishing of silicon semiconductor wafers and has knowledge of and
personal relationships affecting the operations, business contacts, trade
secrets, potential customers, marketing strategies and other confidential
matters of critical significance to the commercial application of the Assets and
to Employer's future prospects (the "Trade Secrets"). The aid or assistance by
Employee to any competitor of Employer or direct competition of Employee
respecting Employer's Business within the Market Area would materially and
irreparably injure Employer.
1.4 Employer desires to hire Employee, and Employee desires to accept
such employment, on the terms and conditions hereinafter set forth.
II. AGREEMENTS
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2.1 Employment. Employer hereby employs Employee, and Employee hereby
accepts such employment from Employer, on the terms and conditions set forth in
this Agreement.
2.2 Term. This Agreement will commence upon July 1, 1997 and it will
continue in effect for four (4) years from such date.
2.3 Renewal and Review. This Agreement shall be renewable for
successive one (1) year periods at the mutual election of the Employee and the
Employer. The Board of Directors of the Employer (the "Board") shall
periodically, at least annually, review the salary established in Paragraph 2.6
hereof and may, in its discretion, increase such salary for any subsequent
period in accordance with the Employee's contributions to the success of the
Employer.
2.4 Duties. During the term of this Agreement, the Employee shall
perform such services for Employer as shall from time to time be assigned to
Employee by the Board and the President of Employer, and shall devote all of his
time, attention, skill and energies to the business of the Employer and shall
serve it faithfully, diligently and to the best of his ability. The parties
agree that Employee shall have principal responsibility for the management,
operation and marketing of the business previously conducted by PRH and
exploitation of the Assets. Employee shall be principally situated at Carlisle,
Pennsylvania, the site of the Assets, for at least the first two years of the
term of this Agreement; provided that Employee may be required to travel
extensively in furtherance of Employer's Business and Employee's duties
hereunder. The parties intend that Employee will subsequently relocate to
Employer's principal headquarters and transition to a central management role to
be determined by the mutual consent of Employer and Employee. The parties agree
that Employee may elect to change his residence and place of principal
employment to within a reasonable distance of Employer's Tempe, Arizona office
after completion of the first two years of the term of this Agreement.
2.5 Service as Board Member. If the Employee is elected or appointed as
a member of the Board of Employer or any of its subsidiaries during all or any
portion of the term of this Agreement, the Employee shall serve in such capacity
without additional compensation.
2.6 Compensation. Employee will receive the following compensation for
his services during his term of employment:
(a) Subject to the immediately following sentences, a minimum
gross base salary of $150,000 per year, which, after withholding and
other required deductions, shall be paid in equal installments in
accordance with the salary payment policies as may be established by
Employer from time to time, but in no event shall such installments be
less than monthly.
(b) Participate in any group benefit plan, medical plan and/or
other benefit plans, either currently in effect or as may be
established from time to time by the Board, for which Employee may be
eligible to participate.
(c) Receive such other compensation as may from time to time
be granted to Employee by the Board, in its discretion, including any
bonuses if approved by the Board.
2.7 Expenses and Miscellaneous Benefits. Upon receipt of reasonably
detailed receipts and other documentation as required for obtaining a tax
deduction under the codes and regulations of applicable tax authorities and as
may be requested by Employer, Employer will pay or reimburse Employee for all
ordinary and necessary business expenses incurred or paid
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by Employee in furtherance of Employer's business, all in accordance with
Employer's policies and procedures of general application. Employee will be
permitted to take three (3) weeks of vacation annually during his first ten (10)
years of service with Employer, and four (4) weeks thereafter. Vacation during
any partial year shall be prorated.
2.8 Termination.
(a) Death. In the event of the Employee's death during the
term of this Agreement, this Agreement shall thereupon terminate and
Employer shall pay to the Employee's beneficiary or estate, as that
term is hereinafter defined, the pro rata portion of the Employee's
salary which was earned but unpaid at the date of the Employee's death.
As used herein, the term "beneficiary or estate" means the
person or persons designated by the Employee in the last written notice
delivered to the Employer during his lifetime, or in the absence of
such written notice, such person or persons designated by the Employee
in his last will and testament specifically to receive Employee's
benefits under the terms of this Agreement, or, in the absence of both
written notice and such a designation, the Employee's estate. In the
event that the Employee should during his lifetime designate a person
or persons other than his wife as beneficiary or beneficiaries in such
written notice, such notice to be valid must contain the signed consent
of the Employee's spouse.
(b) Permanent Disability. In the event the Employee should
become permanently disabled during the term of this Agreement, then
this Agreement shall terminate. For the purposes hereof, "permanent
disability" shall mean that disability resulting from injury, disease
or other cause, whether mental or physical, which incapacitates the
Employee from performing his normal duties as an employee, which
appears to be permanent in nature and contemplates the continuous,
necessary and substantially complete loss of all professional
activities. The determination of "permanent disability" shall be made
by a qualified physician licensed to practice medicine in the state of
Arizona and acceptable to Employer.
(c) Temporary Disability. In the event the Employee should
become disabled, and such disability is not permanent, as defined
above, such disabled Employee shall be entitled to his salary for a
period of one-hundred eighty (180) days. If such temporary disability
continues longer than such one-hundred eighty (180) day period, then
Employee shall be deemed to have become permanently disabled for the
purposes of this Agreement at the end of said ninety (90) day period.
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(d) Voluntary Withdrawal. The Employee may voluntarily
terminate his employment hereunder by giving at least sixty (60) days
prior written notice to the Board of his intention to withdraw. Such
notice shall specify the end of a calendar month as the termination
date.
(e) Dismissal. Employer may terminate Employee's employment
under this Agreement at any time with or without cause (as defined in
Section 2.9 hereof) by giving at least thirty (30) days written notice
to the Employee at his address as listed on the Employer's records
specifying the effective date of termination.
2.9 Termination for Cause. This Agreement may be terminated for cause
by Employer. "Cause" shall mean (i) Employee's wilful, repeated or negligent
failure to perform his duties hereunder and to comply with any reasonable or
proper direction given by or on behalf of the Company's Board of Directors and
the continuation of such failure following twenty (20) days written notice to
such effect, (ii) Employee being guilty of serious misconduct on the Company's
premises or elsewhere, whether during the performance of his duties or not,
which is reasonably likely to cause material damage to the reputation of the
Company or render it materially more difficult for Employee to satisfactorily
continue to perform his duties; (iii) Employee being found guilty in a criminal
court of any offense of a nature which is reasonably likely to materially
adversely affect the reputation of the Company or to materially prejudice its
interests if Employee were to continue to be employed by the Company; (iv)
Employee's commission of any act of fraud, theft or any intentional tort against
the Company, or (v) Employee's violation of any of the material terms,
covenants, representations or warranties contained in this Agreement and failure
to correct such violation within twenty (20) days after written notice by the
Company. Upon any termination under this Paragraph 2.9, Employee or Employee's
estate, as the case may be, will be entitled to receive only that compensation
due Employee through the date of termination.
2.10 Termination Other than for Cause. In the event that Employer
terminates this Agreement without cause, Employee will receive $150,000 per
annum, net of withholding and other deductions required by law, for the balance
of the remaining contract, payable at Employer's election either in a lump sum
or at the times such salary would have been payable were Employee to remain
employed by Employer.
2.11 Noncompetition.
(a) Employee agrees that, except in accordance with his duties
under this Agreement on behalf of Employer, he will not during the term
of this Agreement:
(i) Participate in, be employed in any capacity by,
serve as director, consultant, agent or representative for, or
have any interest, directly or indirectly, in any enterprise
which is engaged in the business of distributing, selling or
otherwise trading in products or services which are
competitive to any products or services distributed, sold or
otherwise traded in by Employer or any of its subsidiaries
during the term of the Employee's employment with Employer, or
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which are competitive to any products or services being
actively developed, with the bona fide intent to market same,
by Employer or its subsidiaries during the term of the
Employee's employment with Employer.
(ii) In addition, Employee agrees that for a period
of seven and one-half (7.5) years after the date of this
Agreement (unless Employer breaches this Agreement by failing
to pay to the Employee all sums due him under the terms
hereof, in which event the following provisions of this
Section 2.11(a) shall be inapplicable), Employee shall observe
the covenants set forth in this Section 2.11 and shall not
own, either directly or indirectly or through or in
conjunction with one or more members of his spouse's family or
through any trust or other contractual arrangement, a greater
than five percent (5%) interest in, or otherwise control
either directly or indirectly, any partnership, corporation,
or other entity which distributes, sells, or otherwise trades
in products which are competitive to any products or services
being developed, distributed, sold or otherwise traded in by
Employer or its subsidiaries, during the term of this
Agreement, or being actively developed by Employer or any of
Employer's subsidiaries during the term of this Agreement with
Employer with a bona fide intent to market same. Employee
further agrees, for such five year period following
termination, to refrain from directly or indirectly soliciting
Employer's vendors, customers or employees, except that the
Employee may solicit Employer's vendors or customers in
connection with a business that does not compete directly or
indirectly with that of Employer or its subsidiaries.
(b) Employee hereby agrees that damages and any other remedy
available at law would be inadequate to redress or remedy any loss or
damage suffered by Employer upon any breach of the terms of this
Section 2.11 by Employee, and Employee therefore agrees that Employer,
in addition to recovering on any claim for damages or obtaining any
other remedy available at law, also may enforce the terms of the
Section 2.11 by injunction or specific performance, and may obtain any
other appropriate remedy available in equity.
2.12 Assignment of Patents. Employee shall disclose fully to Employer
any and all discoveries and any and all ideas, concepts or inventions relating
to Employer's Business which he shall conceive or make during his period of
employment, or during the period of six months after his employment shall
terminate, which are in whole or in part the result of his work with Employer.
Such disclosure is to be made promptly after each such discovery or conception,
and each such discovery, idea, concept or invention will become and remain the
property of Employer, whether or not patent applications are filed thereon. Upon
request and at the expense of Employer, Employee shall make application through
the patent solicitors of Employer for letters patent of the United States and
any and all other countries at the discretion of Employer on such discoveries,
ideas and inventions, and assign all such applications to Employer, or at its
order, forthwith, without additional payment by Employer during his period of
employment and for reasonable compensation for time actually spent by Employee
at such work at the request of Employer after the termination of the employment.
Employee shall give Employer, its attorneys and solicitors, all reasonable
assistance in preparing and prosecuting such applications
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and, on the request of Employer, execute all papers and do all things that may
be reasonably necessary to protect the right of Employer and vest in it or its
assigns the discoveries, ideas or inventions, applications and letters patent
herein contemplated. Said cooperation shall also include all actions reasonably
necessary to aid Employer in the defense of its rights in the event of
litigation.
2.13 Trade Secrets.
(a) In the course of the term of this Agreement, it is
anticipated that Employee shall have access to secret or confidential
technical and commercial information, records, data, specifications,
systems, methods, plans, designs, policies, inventions, material and
other knowledge ("Confidential Material"), whether or not copyrighted,
owned by Employer and its subsidiaries, including without limitation
all such information and material relating to the Assets. Employee
recognizes and acknowledges that included within the Confidential
Material are Employer's confidential commercial information,
technology, methods of manufacture, designs, and any computer programs,
source codes, object codes, executable codes and related materials,
including without limitation customer lists and all such information
and material relating to the Assets, all as they may exist from time to
time, and that they are valuable, special and unique aspects of
Employer's Business. All such Confidential Material shall be and remain
the property of the Company. Except as required by his duties to the
Company, Employee shall not, directly or indirectly, either during the
term of his employment or at any time thereafter, disclose or
disseminate to anyone or make use of, for any purpose whatsoever, any
Confidential Material. Upon termination of his employment, Employee
shall promptly deliver to the Company all Confidential Material
(including all copies thereof, whether prepared by Employee or others)
which are in the possession or under the control of Employee. Employee
shall not be deemed to have breached this Section 2.13 if (i) Employee
shall be specifically compelled by lawful order of any judicial,
legislative, or administrative authority or body to disclose any
Confidential Material or else face civil or criminal penalty or
sanction, or (ii) Employee can demonstrate by clear and convincing
evidence that the Confidential Material is or became publicly and
openly known and in the public domain through no fault of the Employee.
(b) Employee hereby agrees that damages and any other remedy
available at law would be inadequate to redress or remedy any loss or
damage suffered by Employer upon any breach of the terms of this
Section 2.13 by Employee, and Employee therefore agrees that Employer,
in addition to recovering on any claim for damages or obtaining any
other remedy available at law, also may enforce the terms of this
Section 2.13 by injunction or specific performance, and may obtain any
other appropriate remedy available in equity.
2.14 Representations and Warranties. The Employee hereby represents and
warrants that the execution of this Agreement and the discharge of his
obligations hereunder will not breach or conflict with any other contracts,
agreements, covenants or understandings, either oral or written, between the
Employee and any other party or parties.
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2.15 Assignment. This Agreement and the rights, interests and benefits
shall not be assigned, transferred, pledged or hypothecated in any way and shall
not be subject to execution, attachment or similar process. Any attempt to
assign, transfer, pledge or hypothecate or make any other disposition of this
Agreement or of such rights, interests and benefits contrary to the foregoing
provision or the levy of any attachment or similar process thereupon, shall be
null and void and without effect and shall relieve the Employer and Employee of
any and all liability hereunder; provided, however, that the obligations set
forth in Sections 2.11, 2.12 and 2.13 of this Agreement shall survive any
termination of this Agreement.
2.16 Attorneys' Fees. In the event either party hereto institutes an
action or other proceeding to enforce any rights arising under this Agreement,
the party prevailing in such action or other proceeding shall be paid all
reasonable costs and attorneys' fees by the other party, such fees to be set by
court and not by the jury.
2.17 Notices. Any notice or communication to be given under the terms
of this Agreement ("Notice") shall be in writing and delivered in person or
deposited, certified or registered, in the United States mail, postage prepaid,
addressed as follows:
If to Employer: Amtech Systems, Inc.
000 X. Xxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Attn: X.X. Xxxxx
If to Employee: Xxxx X. Xxxxxxx
0 Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxxx 00000
or at such other address as either party may from time to time designate by
Notice hereunder. Notices shall be effective upon delivery in person, or if
mailed at midnight on the third business day after the date of mailing.
2.18 Entire Agreement. This Agreement constitutes and embodies the full
and complete understanding and agreement of the parties hereto and supersedes
all prior understandings or agreements whether oral or in writing.
2.19 Modifications and Amendments. This Agreement shall not be altered
or amended except by a written agreement signed by the parties hereto.
2.20 Benefit and Binding Effect. Except as herein otherwise expressly
provided, this Agreement shall be binding upon and inure to the benefit of the
Employer and its successors and assigns, including any corporation, person or
other entity which may acquire all or substantially all of the assets of the
business of Employer or any other corporation with or into which Employer is
consolidated or merged, and the Employee and his heirs, executors,
administrators and legal representatives; provided, however, that the
obligations of Employee hereunder may not be delegated or assigned.
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2.21 Governing Law. This Agreement shall be governed by and construed
in accordance with Pennsylvania law, without reference to conflict of laws
principles. Notwithstanding the foregoing choice of law, the parties expressly
agree that any controversy, dispute, litigation or claim arising out of the
subject matter of this Agreement shall be brought or commenced only in a federal
or state court located in Maricopa County, Arizona. The parties agree to be
subject to the personal jurisdiction of the federal and/or state courts situated
in Maricopa County, Arizona, and agree that a claim of forum non-conveniens
shall not be a defense to an action initiated in such venues.
2.22 Headings; Interpretation; Gender. The paragraph headings used
herein are for convenience and reference only and are not intended to define,
limit or describe the scope or intent of any provision of this Agreement. When
used in this Agreement, the term "including" shall mean without limitation by
reason of enumeration. Words used herein in the singular shall include the
plural and words used herein in the masculine gender shall include the feminine
in all cases where such would apply.
2.23 Waiver. The failure of either party to insist, in any one or more
instances, upon strict performance of any of the terms or conditions of this
Agreement shall not be construed as a waiver or a relinquishment of any right
granted hereunder or of the future performance of any such term, covenant or
condition, but the obligations of either party with respect thereto shall
continue in full force and effect.
2.24 Severability. In the event that any portion of this Agreement may
be held to be invalid or unenforceable for any reason whatsoever, it is agreed
that said invalidity or unenforceability shall not affect the other portions of
this Agreement and that the remaining covenants, terms and conditions, or
portions thereof, shall remain in full force and effect, and any court of
competent jurisdiction may so modify the objectionable provisions as to make it
valid, reasonable and enforceable.
2.25 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed a duplicate original.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
this 1st day of July, 1997.
AMTECH SYSTEMS, INC.,
an Arizona corporation
By:
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Its:
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EMPLOYER
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XXXX X. XXXXXXX
EMPLOYEE
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