April 17, 1998
Xx. Xxxxxx Xxxxxxx
00000 Xxxxxxxxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Dear Xx. Xxxxxxx:
This letter is to confirm our mutual understanding with respect to the
terms and conditions under which you will provide consulting services to MEMC
Electronic Materials, Inc. ("MEMC") for the period commencing July 1, 1998, and
ending September 30, 1998, inclusive, which period may be extended by mutual
agreement. Unless the context clearly indicates otherwise, all of your
obligations and duties under this agreement will be for the benefit of both MEMC
and any MEMC Affiliate for which you are rendering services. As used in this
letter agreement, the term "MEMC Affiliate" means any entity which is controlled
by, under common control with, or controls MEMC.
1. The services ("Services") which you will provide shall consist of
consulting with members of MEMC management on issues regarding the joint
venture agreements and Board of Directors' activities for Taisil, PHC,
Kulim, and MCL and/or other business issues relating to Asia as requested.
The MEMC Coordinator shall be Xxxxxx X. Xxxxxxxx or such other person whom
MEMC designates in writing.
2. It is understood that the fee for your Services will consist of a lump-sum
payment of $57,680 payable July 1, 1998 ("Lump-Sum Fee"). MEMC shall be
authorized to deduct from any sums otherwise due you hereunder any amounts
which by law MEMC may be required to withhold from such sums; provided,
however, that MEMC does not assume nor shall be deemed to assume hereby
(unless instructed or ordered by appropriate governmental authority) any of
your responsibilities as a self-employed individual to pay any federal,
state or local income or earnings taxes or self-employment taxes, all of
which shall remain your sole obligation.
In addition, an MEMC laptop computer shall be provided to you for the
duration of this agreement.
3. MEMC will reimburse you for reasonable and necessary expenses you incur in
connection with your Services, including: (a) business travel expenses when
travel is required and pre-approved by the MEMC Coordinator; (b) costs of
room and board for you while you are located more than 100 miles from your
home; and (c) special items agreed to by the MEMC Coordinator in advance of
being incurred.
4. You will submit monthly a detailed invoice for Services rendered setting
forth the days worked and services performed and itemizing any reimbursable
expenses. Your invoices shall be submitted to the MEMC Coordinator. To the
extent approved by the MEMC Coordinator, payment shall be made by MEMC
within ten (10) days after the receipt of your invoice. Unless it is
otherwise agreed in writing by the parties, payments to you will be made
solely in U.S. Dollars, sent to the address specified in your invoice, or
deposited in a United States bank account specified by you.
5. This agreement shall automatically terminate in the event of your death,
your incapacity or inability (as determined by MEMC) to perform your duties
hereunder or if you refuse to accept an assignment offered to you. MEMC
terminate this agreement upon thirty (30) days written notice. In addition,
MEMC may terminate this agreement on written notice if you breach any of
the provisions of this agreement. In the event of the termination of this
agreement for any reason, MEMC shall only be liable for the Lump-Sum Fee
and reimbursable expenses incurred prior to the effective termination date.
6. In providing the Services, you shall disclose to MEMC only such information
as you are legally free to disclose. MEMC shall have the right, without
further payment over and above that set forth in Paragraph 2 above, forever
to use freely any and all information disclosed by you to MEMC. In
addition, you shall not disclose or divulge to MEMC any proprietary,
confidential or trade secret information of third parties.
7. It is recognized that, in providing the Services to MEMC hereunder, you
will or may acquire or develop certain confidential information and data
("Information") concerning the plans, profits, programs, plants, processes,
products, costs, equipment, operations, customers, raw materials or
suppliers of, or belonging to, MEMC. Therefore, you shall treat the
Information as MEMC's confidential property and shall not, except for the
limited purpose of providing Services hereunder, use or disclose such
Information to third parties, without in each instance securing the prior
written consent of MEMC. All notes, memoranda, records, tapes, print-outs,
and other documents (including, but not limited to, all drafts, copies and
excerpts thereof) embodying or referring to the Information shall be the
property of MEMC and shall be delivered to MEMC upon the completion or
termination of Services hereunder or at MEMC's request. The above
obligations shall survive completion or termination of Services hereunder.
8. Nothing contained herein shall prevent you from using or disclosing
Information which you can prove (a) has become part of the public domain
other than by your acts or omissions, (b) has been furnished or made known
to you by third parties (other than those acting on behalf of MEMC) as a
matter of legal right and without restriction on disclosure or use, or (c)
was in your possession prior to disclosure by MEMC and was not acquired by
you directly or indirectly from MEMC. It is further understood and agreed
that specific Information shall not be deemed to be available to the public
or in your prior possession merely because it is embraced by more general
information available to the public or in your prior possession, and that
the existence of MEMC's particular interests and plans in the electronic
materials business are recognized as a type of such specific information.
9. It is agreed that the entire right, title and interest in and to all
copyrightable works, including all copyright interests therein, created or
authored by you (a) during the period of time you are providing services to
MEMC or within one year of the completion or termination thereof and which
are directly related to any assignment or project with respect to which
MEMC has utilized your services hereunder, and/or (b) as a result of
Information received from MEMC, shall be the sole and exclusive property of
MEMC. You shall, upon request by and without expense to MEMC, promptly
execute any and all applications, assignments or other instruments which
MEMC shall reasonably deem necessary or useful to acquire or register the
copyright interest therein.
10. You shall make no warranties or representations of any kind with respect to
MEMC or any of its products, nor shall you be authorized to execute any
contracts or consummate any sale of any of MEMC's products, unless in each
instance you shall have received prior written authorization from MEMC to
so act in its behalf. You shall have no right to use the name "MEMC" or
"MEMC Electronic Materials, Inc." by way of display on any real or personal
property, nor shall you have the right to use any trademark of MEMC, other
than on forms of literature furnished to you by MEMC, without first
obtaining MEMC's prior written consent, and you shall not acquire any
rights in any such name. You agree to hold MEMC harmless, and to indemnify
MEMC, from and against any expenses (including, but not limited to,
reasonable attorneys' fees and expenses) or losses incurred by MEMC in
connection with any misrepresentation of your authority or the making of
any unauthorized warranties or representations with respect to MEMC of its
products.
11. You agree that you will not, without MEMC's prior written consent, for your
own account or as an officer, member, employee, consultant, representative
or advisor to any other person, corporation, partnership or organization,
during the term of this agreement and during the period ending one year
following the termination of this agreement, for any reason, engage in or
contribute your knowledge to the development, research (including market as
well as technical research) or sales relating to any compound, product,
equipment, process or material that is or was involved in, or is
competitive with, any work or services performed pursuant to this
agreement.
12. In performing Services hereunder, your status shall be that of an
independent contractor and not that of an employee or part-time employee of
MEMC. Accordingly, you will not be entitled to receive with respect to any
of your Services hereunder any of the benefits applicable to employees of
MEMC or accrue any benefits for such Services under any of the benefit
plans of MEMC.
13. You shall not (by operation of law or otherwise) assign rights or delegate
your performance hereunder without the prior written consent of MEMC, and
any attempted assignment or delegation without such consent shall be void.
MEMC may assign its rights and obligations in whole or in part to any other
MEMC Affiliate. Subject to the foregoing, this letter shall be binding upon
and inure to the benefit of the parties hereto and, except as regards
personal services, shall be binding upon and inure to the benefit of the
successors, assigns, personal representatives, executors and administrators
of the parties hereto.
14. With regard to any access by you to MEMC's facilities, you shall comply
with the security and safety rules and regulations of that facility.
15. The validity, interpretation and performance of this agreement and any
dispute connected herewith shall be governed and construed in accordance
with the laws of the State of Missouri, except its choice of law rules, and
all disputes or controversies shall be litigated in the courts of the State
of Missouri.
16. All provisions of this letter are severable and any provision which may be
prohibited by law shall be ineffective to the extent of such prohibition
without invalidating the remaining provisions.
17. This letter constitutes the full understanding of the parties, a complete
allocation of risks between them and a complete and exclusive statement of
the terms and conditions of their agreement relating to the subject matter
hereof and supersedes any and all prior agreements, whether written or
oral, that may exist between the parties with respect thereto. Except as
otherwise specifically provided in this letter, no conditions, usage of
trade, course of dealing or performance, understanding or agreement
purporting to modify, vary, explain or supplement the terms or conditions
of this letter shall be binding unless hereafter made in writing and signed
by the party to be bound, and no modification shall be effected by the
acknowledgment or acceptance of documents or forms containing terms or
conditions at variance with or in addition to those set forth in this
letter. No waiver by any party with respect to any breach or default or of
any right or remedy and no course of dealing, shall be deemed to constitute
a continuing waiver of any other breach or default or of any other right or
remedy, unless such waiver be expressed in writing signed by the party to
be bound. Failure of a party to exercise any right shall not be deemed a
waiver of such right or rights in the future.
If the foregoing terms and conditions are acceptable to you, please indicate
your acceptance and agreement by executing this letter in duplicate at the place
indicated below and returning one copy to MEMC. The other copy is for your
files.
Very truly yours,
MEMC Electronic Materials, Inc.
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------
Xxxxxx X. Xxxxxxxx
Title: Corporate Vice President, Human Resources
ACCEPTED AND AGREED TO AS OF
THE DATE FIRST ABOVE WRITTEN:
/s/ Xxxxxx Xxxxxxx
----------------------------
Xx. Xxxxxx Xxxxxxx
