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Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into this 6th day of April, 1999, by
and between SpeedFam-IPEC, Inc., an Illinois corporation (hereinafter referred
to as the "Company") and Xxxxx Xxxxxxx (hereinafter referred to as the
"Employee").
W I T N E S S E T H:
WHEREAS, the Company desires to retain the services of the Employee in the
capacities set forth herein, and the Employee 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 Employee hereby agree as follows:
1. Employment. The Company hereby employs the Employee and the
Employee 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, as from time to time amended and
provided to the Employee.
2. Term. Subject to the provisions for earlier termination
hereinafter set forth in Section 10 of this Agreement, the initial 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 Employee
hereunder shall automatically continue for additional one (1) year terms
upon the same terms and conditions contained herein unless either the
Company or the Employee 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 Employee
with the following compensation for all services rendered under this
Agreement:
4.1. Salary. During the term hereof, the Company shall pay to
the Employee a Base Annual Salary of not less than $300,000, 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
Employee shall be reviewed annually by the Company and adjusted as
appropriate.
4.2. Bonus. The Company shall pay to the Employee such bonuses
as the Company may from time to time determine based upon the
evaluation of the Employee's performance by the President/CEO of the
Company pursuant to goals set by the President/CEO with input from
the Employee at the beginning of each fiscal year. Employee's target
bonus shall be equal to 75% of Employee's Base Salary. Employee
shall be paid an initial bonus for the Company's fiscal year
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ending May 31, 1999, of no less than Employee's target bonus
prorated for such part of the Company's fiscal year during which
Employee was employed by the Company hereunder. Employee shall be
paid a bonus for the Company's fiscal year ending May 31, 2000 of no
less than Employee's target bonus.
4.3. Long-term Incentive Opportunity. During the term of this
Agreement, the Employee 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, as determined by the Board of Directors of the
Company.
4.4. Other Benefits. To the extent the Employee is eligible
under the appropriate laws, the Employee 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.
5. Duties. The Employee shall serve as Chief Operating Officer and
President of the Company's CMP Group. As such, the Employee's duties and
responsibilities shall include, but shall not be limited to, profit and
loss responsibility of CMP business, and performance of manufacturing
operations company wide. The Employee shall also be responsible for the
performance of such other duties and responsibilities as may be prescribed
from time to time by the President/CEO of the Company.
6. Extent of Service. The Employee shall devote the Employee'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 President/CEO of the Company, with such
approval not unreasonably being withheld. Notwithstanding the foregoing,
the Employee may be a passive investor in any business or firm not in
direct competition with the products and services of the Company.
7. Working Facilities. The Employee shall be furnished with office
space, furnishings, secretarial support and such other facilities and
services which are reasonably necessary for the performance of the
Employee's duties.
8. Expenses. The Company will reimburse the Employee for all
reasonable business expenses which are incurred by the Employee in the
promoting of the interests of the Company upon presentation by the
Employee from time to time (at least monthly) of an itemized account of
such expenses containing such detail as may reasonably be required by the
President/CEO of the Company.
9. Vacation. The Employee shall be entitled to paid vacation in
accordance with Company policy as set forth in the Company's Employee
Handbook. All vacation
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time shall be taken by the Employee at such times as shall be mutually and
reasonably agreed upon by the Employee and the President/CEO of the
Company.
10. Termination of Employment.
10.1. Termination for Cause. The Company may terminate the
Employee's employment under this Section of the Agreement for Cause.
Cause shall be defined as:
10.1.1. The Employee's Material Breach of this Agreement,
which breach is not cured within ten (10) business days after
written notice from the Company specifying such breach has
been delivered to the Employee;
10.1.2. Commission by the Employee of any materially
fraudulent, dishonest or other act of misconduct in the
performance of the Employee's duties hereunder, other than at
the specific direction of the President/CEO or the Board of
Directors; or
10.1.3. Arrest for any felony or crime involving moral
turpitude.
Following a Termination for Cause, the Company shall pay to the
Employee the Base Annual Salary as 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.
10.2. Other Termination at the Election of the Company. The
Company may elect to terminate the employment of the Employee, other
than by the giving of notice of intention to terminate this
Agreement pursuant to Section 3, for any reason other than Cause,
upon written notice to the Employee, accompanied by payment in a
lump sum of:
10.2.1. All compensation accrued up to the date of
termination;
10.2.2. An amount equal to one (1) times the Employee's
Base Annual Salary of record on the date of termination; and
10.2.3. An amount equal to the Bonus Employee would have
been entitled to under Section 4.2 if Employee had continued
employment with the Company to the end of its fiscal year,
prorated for such part of the Company's fiscal year during
which Employee was employed by the Company hereunder.
10.3. Voluntary Termination following Change in Duties. Upon the
voluntary termination of employment by the Employee within thirty
(30) days of a Change in Duties, benefits shall be payable under
this Section 10.3.
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10.3.1. The Employee shall receive all compensation
accrued up to the date of termination;
10.3.2. The Employee shall receive an amount equal to one
(1) times the Employee's Base Annual Salary of record on the
date of termination; and
10.3.3. The Employee shall receive an amount equal to the
Bonus Employee would have been entitled to under Section 4.2
if Employee had continued employment with the Company to the
end of its fiscal year, prorated for such part of the
Company's fiscal year during which Employee was employed by
the Company hereunder.
10.4. Benefit Payments. Following the termination of the
Employee's employment for any reason, the Company shall pay to the
Employee, under the terms of the Company's benefit plans, an amount
equal to the vested benefits of the Employee in any pension, or
other benefit plan as of the termination date. If elected by the
Employee, the Company shall, instead of payment to the Employee,
transfer such funds to such other benefit plans as designated by the
Employee.
11. Restrictive Covenants.
11.1. The Employee 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
Employee further understands that, as a result, certain of the
Company's personnel, including the Employee, acquire information
with respect to customer goodwill, trade secrets and Confidential
Information, which, of itself and apart from the Employee's
abilities, could be of great value to a competitor of the Company,
potential competitors of the Company, and to others.
11.2. The Employee further understands that employment with the
Company is conditioned upon the Company's being able to place
complete trust and confidence in the Employee and to rely on the
Employee'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 Employee during the term of employment
hereunder. The Employee 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.
11.3. In recognition of these circumstances and for the purpose
of inducing the Company to employ the Employee (or continue the
employment of
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the Employee with appropriate compensation reviews) to repose trust
and confidence in the Employee, and to make Confidential Information
available to the Employee, the Employee agrees that the following
restrictive covenants are necessary and proper for the protection of
the Company.
11.4. Subject to Section 11.6 below, the Employee will promptly
disclose and assign to the Company, without the right to any form of
compensation therefor, every invention that the Employee,
individually or jointly with others, during the term of the
Employee'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,
Technology, process, or device dealt in, used or under development
or manufacture by the Company for itself or others or that results
from or may be suggested by any work the Employee may do for the
Company or at the Company's request. The Employee 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 in each country in which the Company may desire to
secure patent or copyright protection. The Employee will promptly
execute all proper documents presented to the Employee for signature
by the Company to enable the Company or its designee to secure such
patent or copyright protection and to transfer 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
Employee will give such true information and testimony as may be
requested of the Employee by the Company relative to any of said
Inventions.
11.5. Subject to Section 11.6 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 Employee to
the Company pursuant to Section 11.4 above.
11.6. The Employee is hereby notified that Sections 11.4 and
11.5 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 Employee's own time, unless:
11.6.1. The Invention was related:
11.6.1.1. To the business of the Company; or
11.6.1.2. To the Company's actual or demonstrably
anticipated research or development; or
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11.6.2. The Invention results from any work performed by the
Employee for the Company.
11.7. The Employee 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 Employee by the Company or an Affiliate, or
any of its clients, or created, prepared or secured through the
efforts of the Employee, 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 Employee agrees to deliver all such materials, including all
copies thereof, to the Company upon termination of the Employee's
employment hereunder, or at any other time at the Company's request.
11.8. 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 Employee shall never, during or
following the Employee's 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 11.4
above.
11.9. During the term of the Employee's employment with the
Company and for a period of two (2) years after the termination
thereof, the Employee agrees that the Employee will not:
11.9.1. Own or have any interest, directly or indirectly,
in, except through stock traded on a national stock exchange
where the Employee 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 Employee would reasonably be considered
advantageous to such other competing entity, or
11.9.2. 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 direct competition with the products or
services of the Company or its Affiliates anywhere in the
world.
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If any court shall finally hold that the time, territory or
any other provision of this Section 11.9 constitutes an
unreasonable restriction against the Employee, the Employee
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.
11.10. The Employee understands that if there is a breach by the
Employee 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 Employee
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.
12. Definitions.
12.1. "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 and for which Employee
has performed services or from which Employee has received
Confidential Information.
12.2. "Base Annual Salary" means the annualized value of the
Employee's salary, based on the most recent pay period.
12.3. "Board" means the Board of Directors of the Company.
12.4. "Change in Duties" means:
12.4.1. A significant reduction in the nature or scope of
the Employee's authority or duties;
12.4.2. A material reduction in the Employee's Base
Annual Salary; or
12.4.3. Exclusion from any incentive or benefit program from
which the Employee was previously eligible, and which other
executives with comparable duties participate in;
12.5. "Code" means the Internal Revenue Code of 1986, as
from time to time amended.
12.6. "Company" means SpeedFam-IPEC, Inc., an Illinois
corporation.
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12.7. "Confidential Information" means any and all
Technology and/or information which:
(a) Is provided to the Employee by the Company;
(b) Is created, developed, or otherwise generated by or
on behalf of the Company;
(c) Concerns or relates to any aspect of the
Company's business; or
(d) Is, for any reason, identified by the Company as
confidential.
(e) Notwithstanding the foregoing provisions of this
Section 12.7, Confidential Information shall not include such
information which the Employee can show,
clearly and convincingly:
(i) Is publicly and openly known and in the
public domain;
(ii) Becomes publicly and openly known and in the
public domain through no fault of the Employee; or
(iii) Is in the Employee'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.
12.8. "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.
12.9. "Material Breach" means a willful or negligent failure to
perform the Employee's duties as set forth in this Agreement.
12.10. "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 tools or any free-abrasive
machining, lapping, polishing and grinding).
12.11. "Technology" means prototypes, models, concepts,
inventions, circuit designs, drawings, hardware, technological
developments and
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improvements, 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.
13. Miscellaneous.
13.1. This Agreement supersedes all prior agreements and
understandings by and between the Employee 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, Non-Disclosure
Agreement and/or Employment Agreement 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.
13.2. The Employee represents and warrants to the Company that
the Employee is not a party to or bound by, and the employment of
the Employee by the Company or the Employee'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 Employee and any other person, partnership, corporation,
joint venture, association or other entity.
13.3. No modification or amendment of, or waiver under, this
Agreement shall be valid unless signed in writing and signed by the
Employee and an appropriate officer of the Company, pursuant to
expressed authority of the President.
13.4. The Employee 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 Employee's breach or violation of any of
the provisions of this Agreement.
13.5. The Employee hereby agrees that if the Employee 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 Employee
or to enjoin the Employee from engaging in any activity in violation
hereof.
13.6. The Company agrees to indemnify the Employee against, and
to hold the Employee 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 Employee 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.
13.7. 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.
13.8. 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-IPEC, Inc.
000 Xxxxx 00xx Xxxxxx
Xxxxxxxx, XX 00000-0000
Xxxxxx Xxxxxx of America
Attention: President/CEO
Facsimile: 000-000-0000
Confirm: 000-000-0000
If to the Employee: Xx. Xxxxx Xxxxxxx
00000 X. Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
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 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.
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13.9. This Agreement shall inure to the benefit of and be
binding upon the Company and the Employee and their respective
heirs, personal representatives, successors and assigns.
13.10. Except as provided under Section 11.10 of this Agreement,
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. The
Company shall pay all reasonable costs of such arbitration.
13.11. This Agreement may be signed in multiple counterparts
which when taken together shall constitute the entire Agreement.
13.12. 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-IPEC, INC., an Illinois
Corporation
By /s/ Xxxxxxx X. Xxxxxxx
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Title: President/CEO
Employee
/s/ Xxxxx X. Xxxxxxx
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