EMPLOYMENT AGREEMENT
AGREEMENT, effective as of July 1, 1997, by and between FEI Company,
an Oregon corporation ("Employer"), and Xxxxxxx X. Xxxxxxx, an individual
("Employee").
IN CONSIDERATION OF the mutual covenants herein contained, and other
good and valuable consideration, the parties hereto agree as follows:
1. Employment.
Employer hereby agrees to employ Employee, and Employee agrees to
serve, as Chief Financial Officer of Employer during the Period of Employment as
defined in Section 2.
2. Period of Employment.
(a) Duration Under Normal Circumstances.
The "Period of Employment" shall be the period commencing on the date
hereof and ending on June 30, 2002 .
(b) Termination Events.
Notwithstanding anything in this Section 2 to the contrary, the Period
of Employment shall terminate upon the earliest to occur of the following:
(i) the retirement of Employee under the terms of Employer's 401(k)
plan; and
(ii) the Disability (as defined in Section 8) of Employee and the
expiration of the 30-day period referred to in the definition of Disability
without the actions referred to therein being taken by Employee;
(iii) the death of Employee;
(iv) the 90th day after service of notice by Employee to Employer, in
accordance with the provisions of Section 11, that Employee elects to
terminate the
Period of Employment (with or without Good Reason) (a "voluntary
termination by Employee"); and
(v) the 90th day after service of notice by Employer to Employee, in
accordance with the provisions of Section 11, that Employer elects to
terminate the Period of Employment (a "voluntary termination by Employer"),
other than a termination by Employer with Cause; and
(vi) promptly upon service of notice by Employer to Employee, in
accordance with the provisions of Section 11, that Employer elects to
terminate the Period of Employment with Cause.
3. Duties During the Period of Employment.
Employee shall devote his full business time, attention and best
efforts to the affairs of Employer and its subsidiaries during the Period of
Employment and shall have such duties, responsibilities and authority as shall
be assigned to him from time to time by the Chief Executive officer or the Board
of Directors of Employer, which duties, responsibilities and authority shall be
commensurate in all material respects with those held, exercised and assigned as
of the date of this Agreement. It is expressly acknowledged and agreed that
Employee may be requested to assume the position of president or senior officer
of any subsidiary of Employer or any position of corporate officer of Employer,
provided that the responsibilities and authority assigned to such position are
commensurate in all material respects with those assigned to, or held and
exercised by, Employee as of the date of this Agreement, and provided further
that, in the event of a transfer of Employee to the employ of a subsidiary of
Employer, such subsidiary expressly assumes all of Employer's obligations under
this Agreement, mutatis mutandis. Employee may engage in other activities, such
as activities involving charitable, educational, religious and similar types of
organizations (all of which are deemed to benefit Employer), speaking
engagements, and similar type activities, and may serve on the board of
directors of other corporations approved by the Chief Executive Officer of
Employer, in each case to the extent that such other activities do not
materially
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detract from or limit the performance of his duties under this Agreement, or
inhibit or conflict in any material way with the business of Employer and its
subsidiaries.
4. Location of Employment.
During the Period of Employment, Employer may only require Employee to
be based in or within 50 miles of Hillsboro, Oregon, except that Employer may
require Employee to be based more than 50 miles from Hillsboro, Oregon in
connection with the relocation of the executive office of Employer in which
Employee is employed; provided, however, that Employer shall pay to, or
reimburse Employee for, on an after-tax basis, all reasonable expenses of
relocation of Employee and Employee's immediate family living with Employee at
the time of such relocation, incurred and substantiated by Employee in
connection with any such relocation.
5. Current Cash Compensation.
Employer will pay to Employee during the Period of Employment a base
annual salary of not less than $180,000 (or such greater amount as may have been
approved by the Board of Directors in its sole discretion), payable in
substantially equal monthly installments during each calendar year, or portion
thereof, of the Period of Employment; provided, however, that Employer agrees to
review such base annual salary annually and in light of such review may, in the
sole discretion of the Board of Directors of Employer, increase such salary,
taking into account such factors as it deems pertinent.
6. Employee Benefits.
(a) Vacation and Sick Leave.
Employee shall be entitled to four (4) weeks paid annual vacation, all
paid Employer holidays and reasonable sick leave.
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(b) Regular Reimbursed Business Expenses.
Employer shall reimburse Employee for all expenses and disbursements
reasonably incurred at Employer's request or consistent with Employer's
policies, and substantiated by Employee, in the performance of his duties during
the Period of Employment.
(c) Employee Benefit Plans or Arrangements.
In addition to the cash compensation provided for in Section 5 hereof,
Employee, subject to meeting eligibility requirements and to the provisions of
this Agreement, shall be entitled to participate without discrimination or
duplication in all employee (including executive) benefit plans of Employer, as
presently in effect or as they may be modified or added to by Employer from time
to time, to the extent such plans are available to other similarly situated
executives or employees of Employer, including, without limitation, plans
providing retirement benefits, medical and other health insurance, life
insurance, disability insurance, and accidental death or dismemberment
insurance.
(d) Employer's Incentive Compensation Plans.
In addition to the cash compensation provided for in Section 5 hereof
and the employee benefits of Employer provided for in paragraph (c) of this
Section 6, Employee, subject to meeting eligibility requirements and to the
provisions of this Agreement, shall be entitled to participate in all incentive
compensation plans of Employer, as presently in effect or as they may be
modified or added to by Employer from time to time, to the extent such plans are
available to similarly situated executives or employees of Employer, including,
without limitation, the 1995 Stock Incentive Plan and the 1995 Supplemental
Stock Incentive Plan (as the same may be modified, replaced, or added to by
Employer from time to time), and other performance share plans, management
incentive plans, deferred compensation plans, and supplemental retirement plans.
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7. Termination.
(a) Death, or Retirement or Disability.
If the Period of Employment terminates pursuant to paragraph (b) of
Section 2 as a result of (1) the death of Employee, (2) the retirement of
Employee under the terms of Employer's 401(k) plan or (3) the Disability of the
Employee, Employee (or Employee's estate) will be entitled to receive only:
(i) the base salary otherwise payable under Section 5 through the end
of the month in which Employee's employment is terminated, together with
salary, compensation or benefits which have been earned or become payable
as of the date of termination but which have not yet been paid to Employee;
(ii) such other awards or bonuses as the Board of Directors may in its
sole discretion determine, including, without limitation, such extension of
the period of exercise for stock options of the Employee that are
outstanding and exercisable under the Employer's stock incentive plans as
the Chief Executive Officer may recommend to the Board for its approval;
(iii) during the 12-month period following the termination of
Employee's employment as a result of the death of Employee, maintenance in
effect for the continued benefit of Employee's dependents of all insured
and self-insured employee medical and dental benefit plans in which
Employee was participating immediately prior to termination provided that
such continued participation is possible under the general terms and
conditions of such plans (and any applicable funding media) and Employee's
dependents continue to pay an amount equal to the Employee's regular
contribution for such participation; and
(iv) such other benefits, if any, as shall be determined to be
applicable in accordance with Employer's plans and practices as in effect
on the date of termination.
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(b) Voluntary Termination by Employee without Good Reason.
If the Period of Employment terminates pursuant to paragraph (b) of
Section 2 as a result of a voluntary termination by Employee without Good
Reason, Employee will be entitled to receive only:
(i) the base salary otherwise payable under Section 5 through the day
on which Employee's employment is terminated, together with salary,
compensation or benefits which have been earned or become payable as of the
date of termination but which have not yet been paid to Employee;
(ii) to the extent possible, the opportunity to convert group and
individual life and disability insurance policies of Employer then in
effect for Employee to individual policies of Employee upon the same terms
as similarly situated employees of Employer may apply for such conversions;
and
(iii) such other benefits, if any, as shall be determined to be
applicable in accordance with Employer's plans and practices in effect on
the date of termination.
(c) Voluntary Termination by Employee with Good Reason, or by
Employer without Cause.
If the Period of Employment terminates pursuant to paragraph (b) of
Section 2 as a result of a voluntary termination by Employee with Good Reason
(as hereinafter defined), or a voluntary termination by Employer without Cause
(as hereinafter defined), then Employee will be entitled to receive:
(i) the base salary otherwise payable under Section 5 through the end
of the month in which Employee's employment is terminated, together with
salary, compensation or benefits which have been earned or become payable
as of the date of termination but which have not yet been paid to the
Employee;
(ii) a lump-sum severance payment in an amount equal to one and
one-half times the base annual salary at the rate in effect under Section 5
on the date of termination; provided that the payment made pursuant to this
paragraph (ii) shall be
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repaid by Employee in the event Employee violates in any material respect
the provisions of Section 9 hereof;
(iii) maintenance in effect for the continued benefit of Employee and
his spouse and his dependents for a period terminating on the earlier of
(A) the earlier of the Final Day of Period of Employment and the date on
which Employee retires under the terms of Employer's 401(k) plan, and (B)
the commencement of equivalent benefits from a new employer of:
(A) all insured and self-insured medical and dental benefit plan
in which Employee was participating immediately prior to termination,
provided that Employee's continued participation if possible under the
general terms and conditions of such plans (and any applicable funding
media) and Employee continues to pay an amount equal to Employee's
regular contribution for such participation; and
(B) the group and individual life and disability insurance
policies of Employer then in effect for Employee;
provided, however, that if Employer so elects, or if such continued
participation is not possible under the general terms and conditions of
such plans or under such policies, Employer shall, in lieu of the
foregoing, arrange to have issued for the benefit of Employee and
Employee's dependents individual policies of insurance providing benefits
substantially similar (on an after-tax basis) to those described in this
paragraph (iii), or, if such insurance is not available at a reasonable
cost to Employer, Employer shall otherwise provide Employee and Employee's
dependents equivalent benefits (on an after-tax basis); provided further
that, in no event shall Employee be required to pay any premiums or other
charges in an amount greater than that which Employee would have paid in
order to participate in Employer's plans and policies;
(iv) for a period terminating on the earlier of the Final Day of
Period of Employment and the date on which Employee reaches age 65,
Employer shall provide Employee with benefits equivalent to the additional
benefits Employee would have received under the employee pension and
retirement benefit plans maintained by the
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Employer and supplemental or excess executive retirement plans, or
executive plans of deferred compensation whether or not qualified for
federal income tax purposes in which Employee was participating immediately
prior to termination and assuming an annual rate of Salary equal to the
rate applicable to the Employee immediately prior to termination is in
effect, as if Employee had received credit under such plans for service
with Employer during such period following Employee's termination, with
such benefits payable by Employer at the same times and in the same manner
as such benefits would have been received by Employee under such plans; and
(v) such other awards or bonuses as the Board of Directors may in its
sole discretion determine, including, without limitation, any extension of
the period of exercise for stock options of the Employee then outstanding
and exercisable under the Employer's stock incentive plans that may be
approved by the Board of Directors.
(d) Termination by Employer with Cause.
If the Period of Employment terminates pursuant to paragraph (b) of
Section 2 as a result of a termination by Employer with Cause, Employee will be
entitled to receive only:
(i) the base salary otherwise payable under Section 5 through the day
on which Employee's employment is terminated, together with salary,
compensation or benefits which have been earned or become payable as of the
date of termination but which have not yet been paid to Employee; and
(ii) such other benefits, if any, as shall be determined to be
applicable under the circumstances in accordance with Employer's plans and
practices in effect on the date of termination.
(e) Date of Payment.
Except as otherwise provided herein, all cash payments and lump-sum
awards required to be made pursuant to the provisions of paragraphs (a) through
(e) of this Section 7 shall be made no later than the thirtieth day following
the date of Employee's termination.
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(f) Exclusive Remedy.
Employee shall have no claim for damages or other remedies, at law, in
equity or otherwise, by reason of any breach of this Agreement by Employer, or
of termination of this Agreement by reason thereof, other than as set forth in
this Section 7.
(g) Release of Claims.
Employer shall have the right to require Employee to execute a limited
release with respect to claims that could be brought by Employee hereunder as a
condition to Employee's receipt of any payments pursuant to Section 7(c) hereof.
8. Definitions.
For purposes of this Agreement, the following capitalized terms shall
have the meanings set forth below:
"Cause" shall mean (i) the willful engaging by Employee in conduct
which is not authorized by the Board of Directors of Employer or within the
normal course of Employee's business decisions and is known by Employee to be
materially detrimental to the best interests of Employer or any of its
subsidiaries, (ii) the willful engaging by Employee in conduct which Employee
knows is, or has substantial reason to believe to be, illegal to the extent of a
felony violation, or the equivalent seriousness under laws other than those of
the United States, and which has effects on Employer or Employee materially
injurious to Employer, (iii) the engaging by Employee in any willful and
conscious act of serious dishonesty, in each case which the Board of Directors
of Employer reasonably determines affects adversely, or could in the future
affect adversely, the value, reliability or performance of Employee to Employer
in a material manner; (iv) the willful and continued failure by Employee to
perform substantially his duties to Employer under this Agreement (including any
sustained and unexcused absence of Employee from the performance of his duties
under this Agreement, which absence has not been certified in writing as due to
physical or mental illness in accordance with the procedures set forth in this
Section 8 under "Disability"), after a written demand for substantial
performance has been delivered to Employee by the Board of Directors
specifically identifying the manner in which Employee has failed to
substantially perform his
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duties and after such Employee has had a reasonable opportunity to cease such
failure to perform, or (v) the sustained and unexcused absence of Employee from
the performance of his duties under this Agreement for a period of 180 days or
more within any period of 365 consecutive days, regardless of the reason for
such absence, unless Employee demonstrates that such absence is due to
Disability. For purposes of this paragraph, no act, or failure to act, on
Employee's part shall be considered "willful" unless done, or omitted to be
done, in bad faith and without reasonable belief that such action or omission
was in, or not opposed to, the best interests of Employer. Any act, or failure
to act, based upon authority given pursuant to a resolution duly adopted by the
Board of Directors of Employer or based upon the advice of counsel for Employer
shall be conclusively presumed to be done, or omitted to be done, in good faith
and in the best interests of Employer. Notwithstanding the foregoing, there
shall not be deemed to be a termination by Employer with Cause unless and until
there shall have been delivered to Employee a copy of a resolution duly adopted
by the affirmative vote of a majority of the entire membership of the Board of
Directors of Employer at a meeting of such Board held after reasonable notice to
Employee and at which Employee has an opportunity, together with his counsel, to
be heard before such Board, finding that, in the good faith opinion of such
Board, Employee was guilty of the conduct set forth above and specifying the
particulars thereof in detail.
"Disability" shall mean the absence of Employee from his duties with
Employer on a full-time basis for one hundred eighty (180) days within any
period of three hundred and sixty-five (365) consecutive days as a result of
Employee's incapacity due to physical or mental illness as certified in writing
by a physician selected by Employee and reasonably acceptable to Employer (it
being understood that such physician shall be deemed to be reasonably acceptable
to Employer if, within a period of fifteen (15) days after Employee notifies
Employer of the name of such physician, Employer does not object to the use of
such physician), unless within thirty (30) days after written notice to Employee
by Employer, in accordance with the provisions of Section 12, that Employee's
employment is being terminated by reason of such absence, Employee shall have
returned to the full performance of Employee's duties.
"Final Day of Period of Employment" shall mean the final day of the
Period of Employment under Section 2(a) as in effect on the date of termination.
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Voluntary termination by Employee with "Good Reason" shall mean a
voluntary termination by Employee resulting from the Employer (i) reducing
Employee's base annual salary as in effect immediately prior to such reduction
or reducing in a material respect Employee's opportunity to earn incentive
compensation as provided in Section 6(d) of this Agreement; (ii) effecting a
change in the position of Employee which does not represent a promotion from
Employee's position provided for herein; (iii) assigning Employee duties or
responsibilities which are materially inconsistent with Employee's position
provided for herein; (iv) removing Employee from or failing to reappoint or
reelect Employee to such position, except in connection with a termination as a
result of death, Disability, voluntary termination by Employee, retirement by
Employee or termination by Employer with Cause; or (v) otherwise materially
breaching its obligations under this Agreement, in each case after notice in
writing from Employee to Employer and a period of 30 days after such notice
during which Employer fails to correct such conduct; provided, however, that it
is expressly acknowledged and agreed that a transfer of Employee (a) to the
position of another corporate officer of Employer, or to any subsidiary of
Employer in the capacity of president or senior officer of such subsidiary or
(b) from the position of president or senior officer of any subsidiary of
Employer to a position of corporate officer of Employer (in each case as
contemplated by the second sentence of Section 3 of this Agreement) shall not by
itself constitute "Good Reason" within the meaning of clauses (ii), (iii), (iv)
or (v) of this paragraph, provided that, in the case of any transfer to a
subsidiary of Employer, such subsidiary expressly assumes all of Employer's
obligations under this Agreement, mutatis mutandis.
9. Non-Competition and Non-Disclosure; Employee Cooperation.
(a) Without the consent in writing of the Board of Directors of
Employer, upon termination of Employee's employment for any reason, Employee
will not for a period of eighteen months thereafter, acting alone or in
conjunction with others, directly or indirectly (i) engage (either as owner,
partner, stockholder, employer, employee, director, consultant or agent) in any
business in which he has been directly engaged, or has supervised as an
executive, during the last two years prior to such termination and which is
directly in
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competition with a business conducted by Employer or any of its subsidiaries;
(ii) induce any customers of Employer or any of its subsidiaries with whom
Employee has had contacts or relationships, directly or indirectly, during and
within the scope of his employment with Employer or any of its subsidiaries, to
curtail or cancel their business with such companies or any of them; (iii)
solicit or canvas business from any person who was a customer of Employer or any
of its subsidiaries at or during the eighteen-month period immediately preceding
termination of Employee's employment; or (iv) induce, or attempt to influence,
any Employee of Employer or any of its subsidiaries to terminate his employment;
provided, however, that the limitation of subparagraph (i) shall not apply if
Employee's employment is terminated as a result of a voluntary termination by
Employee with Good Reason or a termination by Employer without Cause. The
provisions of subparagraphs (i), (ii), (iii) and (iv) above are separate and
distinct commitments independent of each of the other subparagraphs. It is
agreed that the ownership of not more than 1/2 of 1% of the equity securities of
any company having securities listed on an exchange or regularly traded in the
over-the-counter market shall not, of itself, be deemed inconsistent with clause
(i) of this paragraph (a).
(b) Employee shall not, at any time during the Period of Employment or
following Employee's termination of employment for any reason whatsoever,
disclose, use, transfer or sell, except in the course of employment with
Employer, any confidential or proprietary information of Employer and its
subsidiaries so long as such information has not otherwise been publicly
disclosed by Employer or is not otherwise in the public domain, except as
required by law or pursuant to legal process.
(c) Employee agrees to cooperate with Employer, by making himself
available to testify on behalf of Employer or any subsidiary or affiliate of
Employer, in any action, suit or proceeding, whether civil, criminal,
administrative or investigative, and to assist Employer, or any subsidiary or
affiliate of Employer in any such action, suit or proceeding, by providing
information and meeting and consulting with the Board of Directors of Employer
or its representatives or counsel, or representatives or counsel of Employer, or
any subsidiary or affiliate of Employer, as requested by such Board of
Directors, representatives or counsel. Employer agrees to reimburse the
Employee, on an after-tax basis, for all expenses actually incurred in
connection with his provision of testimony or assistance.
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10. Governing Law; Modification and Severability; Disputes;
Arbitration.
(a) This Agreement is governed by and is to be construed and enforced
in accordance with the laws of the State of New York.
(b) If any portion of this Agreement is at any time deemed to be in
conflict with any applicable statute, rule, regulation, ordinance or principle
of law, such portion shall be deemed to be modified or altered to the extent
necessary to conform thereto or, if that is not possible, to be omitted from
this Agreement; and the invalidity of any such portion shall not affect the
force, effect and validity of the remaining portion hereof.
(c) Except as provided in this Section 10(c), any controversy or claim
arising out of or relating to this Agreement, or the breach thereof, shall be
settled by arbitration administered by the American Arbitration Association in
accordance with its Commercial Arbitration Rules, and judgment on the award
rendered by the arbitrators may be entered in any court having jurisdiction
thereof.
The arbitrators shall have the authority to award such remedies or
relief that a court of the State of New York could order or grant in an action
governed by New York law, including, without limitation, specific performance of
any obligation created under this Agreement, the issuance of an injunction, or
the imposition of sanctions for abuse or frustration of the arbitration process,
but shall not be empowered to award punitive damages. The arbitration
proceedings shall be conducted in Portland, Oregon or, in the event that the
executive office of Employer has been relocated, in such other major city as is
most proximate to such relocated executive office.
Notwithstanding the foregoing, any party may bring and pursue an
action in any Federal or State court in the city where the arbitration
proceedings shall be conducted pursuant to the foregoing sentence or in New
York, New York seeking provisional relief, including a temporary restraining
order or preliminary injunction, pending an arbitration proceeding. Any
provisional relief obtained shall be discontinued once the arbitrators have
assumed jurisdiction and ordered such discontinuance.
(d) Any amounts that have become payable pursuant to the terms of this
Agreement or any judgment by a court of law or a decision by arbitrators
pursuant to this
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Section 10 but which are not timely paid shall bear interest at the prime rate
in effect at the time such payment first becomes payable, as quoted by the
Xxxxxx Guaranty Trust Company of New York.
11. Notices.
All notices or other communications hereunder shall be deemed to have
been duly given and made if in writing and if served by personal delivery upon
the party for whom it is intended, if delivered by registered or certified mail,
return receipt requested, or by a national courier service, or if sent by
telecopier, provided that the telecopy is promptly confirmed by telephone
confirmation thereof, to the person at the address set forth below, or such
other address as may be designated in writing hereafter, in the same manner, by
such person:
To Employee:
Xxxxxxx X. Xxxxxxx
----------------------------------
7510 SW Westmoor
----------------------------------
Xxxxxxxx, XX 00000
----------------------------------
----------------------------------
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
----------------------------------
To Employer:
FEI Company
0000 X.X. Xxxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxx 00000-0000
Telephone: 000-000-0000
Telecopy: 000-000-0000
Attn: Chief Executive Officer
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With a copy to:
STOEL RIVES LLP
000 X.X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxx 00000-0000
Telephone: 000-000-0000
Telecopy: 000-000-0000
Attn: Xxxxxxx X. Xxxxxx
12. Withholding.
All payments to be made to Employee under this Agreement will be
subject to required withholding taxes and other deductions.
13. Successors; Binding Agreement.
(a) Any Successor (as hereinafter defined) to Employer shall be bound
by this Agreement. Employer will seek to have any Successor assent to the
fulfillment by Employer of its obligations under this Agreement at Employee's
request. Failure of Employer to obtain such assent within thirty (30) days after
such request shall constitute Good Reason for termination by Employee of
Employee's employment and, upon a voluntary termination by Employee pursuant to
Section 2, shall entitle Employee to the benefits provided in Section 7(c). For
purposes of this Agreement, "Successor" shall mean any person other than Philips
Electronics N.V. and its affiliates that succeeds to, or has the practical
ability to control (either immediately or with the passage of time), Employer's
business directly, by merger or consolidation, or indirectly, by purchase of the
Employer's voting securities, all or substantially all of its assets or
otherwise.
(b) For purposes of this Agreement, "Employer" shall include any
corporation or other entity which is the surviving or continuing entity in
respect of any amalgamation, merger, consolidation, dissolution, asset
acquisition or other form of business combination.
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14. Miscellaneous.
(a) Except to the extent that the terms of this Agreement confer
benefits that are more favorable to Employee than are available under any other
employee benefit or executive compensation plan of Employer in which Employee is
a participant, Employee's rights under any such employee (including executive)
benefit plan or executive compensation plan shall be determined in accordance
with the terms of such plan (as it may be modified or added to by Employer from
time to time).
(b) This Agreement constitutes the entire understanding between
Employer and Employee relating to employment of Employee by Employer and its
subsidiaries and supersedes and cancels all prior agreements and understandings
with respect to the subject matter of this Agreement and such other written
agreements. Employee shall not be entitled to any payment or benefit under this
Agreement which duplicates a payment or benefit received or receivable by
Employee under such prior agreements and understandings.
(c) This Agreement may be amended but only by a subsequent written
agreement of the parties.
(d) This Agreement shall be binding upon and shall inure to the
benefit of Employee, his heirs, executors, administrators and beneficiaries, and
shall be binding upon and inure to the benefit of Employer and its successors
and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the year and day first above written.
FEI COMPANY
By: /s/ XXXXXXX X. WHITWARD
-------------------------------------
(Authorized Officer)
/s/ XXXXXXX X. XXXXXXX
-------------------------------------
Xxxxxxx X. Xxxxxxx
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