EXHIBIT 4E
Amendment to Xxxxxx Xxxxxxxxx Agreement
This Amendment is made as of this 19th day of January, 1999, by and
between Aseco Corporation, a Delaware corporation (the "Company"), and Xxxxxxxxx
X. Xxxxxx ("Xxxxxx").
RECITALS
WHEREAS, the parties hereto have entered into a Severance Agreement
dated as of December 30, 1996, as amended August 11, 1998 (the "Original
Agreement"); and
WHEREAS, the parties hereto desire to amend the Original
Agreement as set forth below;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Definitions.
Capitalized terms used herein and not otherwise defined shall have the
meaning ascribed to such terms in the Original Agreement.
"Merger" shall mean the merger or consolidation of the Company with
another entity in which the stockholders of the Company immediately prior to
such merger or consolidation hold less than 50% of the outstanding voting stock
of the surviving or resulting corporation immediately following such
transaction.
"Parent Corporation" means a corporation that is party to an Agreement
effecting a Merger of the Company and a wholly-owned subsidiary of such
corporation.
2. Severance Following a Change in Control. Section 3 of the Original
Agreement is amended such that it shall supersede the prior Section 3 and read
in full as follows:
"3. Severance Following a Change in Control.
Except as provided in the last sentence of this Section 3, in
the event Xxxxxx'x employment by the Company is terminated for
any reason whatsoever, including voluntary resignation by
Xxxxxx, within twenty-four
1
months following a Change in Control, the Company shall pay
Xxxxxx within twenty-four (24) hours after the Termination
Date a lump sum amount of $250,000; provided, however, that if
such Change in Control is a Merger, Xxxxxx shall receive
$250,000 worth of the Parent Corporation's common stock,
subject to the provisions of the merger agreement by which the
Merger is effected and which are hereby incorporated by
reference. The Company, or in the event of a Merger, the
Parent, shall also continue to provide during the Benefit
Period life and health insurance coverage to Xxxxxx, with
benefits substantially comparable to those provided to
executive officers of the Company generally immediately prior
to such termination. Notwithstanding the foregoing, the
Company shall have the right, in lieu of providing such
coverage during any Ineligibility Period, to pay Xxxxxx an
amount equal to 200% of the amount it would have cost the
Company to provide such coverage during any Ineligibility
Period, assuming Xxxxxx were eligible for coverage under the
Company's group insurance policies and assuming further no
increase in premium costs under such policies after the
commencement of the Ineligibility Period. Notwithstanding
anything to the contrary contained in this Agreement, Xxxxxx
shall not be entitled to any severance benefits pursuant to
Section 2 or this Section 3 if Xxxxxx'x employment by the
Company is terminated by the Company for Cause."
3. Vesting of Stock. Section 4 of the Original Agreement is amended
such that it shall supersede the prior Section 4 and read in full as follows:
"4. Vesting of Stock. Upon a Change in Control, the vesting of
all stock options held by Xxxxxx and exercisable to purchase
common stock of the Company shall be accelerated so that all
such options shall be immediately exercisable in full,
provided, however, that Xxxxxx shall exercise such options
within 18 months after the effective date of any Merger and in
accordance with the provisions of the merger agreement by
which the Merger is effected."
4. The Original Agreement is hereby supplemented by adding a new Section 6 that
shall read in its entirety as follows:
"6. Consulting Services.
6.1 In the event of a Merger, the Parent Corporation
shall engage Xxxxxx as a consultant to the Parent Corporation
for a term of three (3) months following the effective date of
the Merger in
2
consideration for the payment of $50,000, payable to Xxxxxx
within twenty-four (24) hours after the Termination Date by
the Parent Corporation in shares of the Parent Corporation
Common Stock, subject to the provisions of the merger
agreement by which the Merger is effected and which are
incorporated herein by reference. During such term, Xxxxxx
shall advise the Parent Corporation as to such specific areas
regarding the operation of the business of the Parent
Corporation as from time to time the Parent Corporation
reasonably requests, provided, however, that Xxxxxx may
decline to render advice with regard to any matter Xxxxxx
reasonably concludes is outside of or beyond his area of
expertise or for any other reasonable reason. Xxxxxx shall not
be obligated to render consulting services hereunder for more
than five (5) hours per month during the term of his
engagement as a consultant. Xxxxxx shall not (i) be required
to devote any specific amount of time to the business of the
Parent Corporation or (ii) be required to attend any meeting
in connection with the business of the Parent Corporation,
except as Xxxxxx may agree in his discretion.
6.2 Xxxxxx'x relation to the Parent Corporation in
his capacity as a consultant shall be that of an independent
consultant and contractor, and not as an employee, agent,
officer, director or manager of the Parent Corporation."
5. The Original Agreement is hereby supplemented by adding a new
Section 7 that shall read in its entirety as follows:
"7. Non-Competition and Non-Solicitation. In the event of a
Merger and in consideration for the Parent Corporation's
payment of $100,000 worth of the Parent Corporation common
stock payable to Xxxxxx within twenty-four (24) hours after
the Termination Date, subject to the provisions of the merger
agreement by which the Merger is effected, Xxxxxx agrees that
during the Restricted Period (as defined below) Xxxxxx will
not directly or indirectly:
(a) as an individual proprietor, partner, stockholder,
officer, employee, director, joint venturer, investor, lender,
consultant, or in any other capacity whatsoever (other than as
a holder of not more than one percent of the combined voting
power of the outstanding stock of a publicly held company),
develop, design, produce, market, sell or render (or assist
any other person in developing, designing, producing,
marketing, selling or
3
rendering) products or services related to the test handler,
wafer handling or wafer inspection semiconductor capital
equipment markets anywhere in the world;
(b) solicit, divert or take away, or attempt to divert or to
take away, the business or patronage of any of the customers
of the Company with whom the Company had a relationship during
the period of Xxxxxx'x employment by the Company; or
(c) recruit, solicit or hire any employee of the Company, or
induce or attempt to induce any employee of the Company to
terminate his/her employment with, or otherwise cease his/her
relationship with, the Company.
By accepting this consideration Xxxxxx further agrees that the
restrictions contained in this Section 7 are necessary for the
protection of the business and goodwill of the Company and are
considered by Xxxxxx to be reasonable for such purpose and
that any breach of this Section 7 by Xxxxxx is likely to cause
the Company substantial and irrevocable damage and, therefore,
in the event of any such breach, in addition to such other
remedies which may be available to it, the Company shall be
entitled to specific performance and other injunctive relief.
For purposes of this Section 7, the term "Restricted Period"
means the period during which Xxxxxx serves as an employee,
officer, director or consultant of the Company and for 30
months after the termination of Xxxxxx'x employment to the
Company; provided, however, that if Xxxxxx breaches the
provisions of clauses (a)-(c) above, the Restricted Period
will continue until 30 months have elapsed without any
violation of such provisions."
6. No Other Changes. All of the provisions of the Original Agreement
shall remain in full force and effect.
4
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first written above.
ASECO CORPORATION
By:___________________________
Title:________________________
______________________________
Xxxxxxxxx X. Xxxxxx
5
