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Exhibit 99.A.2
Consulting Agreement
CONSULTING AGREEMENT ("Agreement"), dated November 19, 1998 and
effective as of the Effective Time (defined below), by and between INTEGRATED
PROCESS EQUIPMENT CORP., a Delaware corporation (the "Company"), XXXXXX X.
XXXXXXX ("HCB"), XXXXXX XXXXXXX, XX. ("HBJr.") and XXXXX XXXXXXX ("DB"); HCB,
HBJr. and DB are sometimes referred to collectively as the "Consultants" and
individually as a "Consultant".
Witnesseth:
WHEREAS, the Company, HCB, HBJr. and DB were parties to a Consulting
Agreement dated August 31, 1993 which was terminated on February 10, 1998.
WHEREAS, HCB is currently a member of the Board of Directors of the
Company and the Company receives the benefit of his advice as a Director.
WHEREAS, HCB is a controlling shareholder of several companies
currently providing services, machinery and parts to the Company.
WHEREAS, the Company now desires to retain the Consultants as advisors
and consultants to perform the services described below after the merger
("Merger") contemplated by the Agreement and Plan of Merger ("Merger Agreement")
dated November 19, 1998 between the Company, SPEEDFAM INTERNATIONAL, INC.
("SpeedFam") and SPEEDFAM, INC.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the Consultants, jointly and severally, hereby agree with the Company as
follows:
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1. The Company hereby retains the Consultants during the term hereof to
perform such services as the Company may reasonably require of the Consultants
as advisors and consultants in the day-to-day operations of the Company's
business, including providing advice regarding cost reductions and increased
efficiencies with respect to parts and subassemblies, and the Consultants hereby
agree to render such services (the "Consulting"). The Consultants shall perform
the Consulting when requested by the Company from time to time for up to 130
days in the aggregate during each calendar year this Agreement is in effect
(pro-rated for any partial year included in the term hereof).
2. The Consulting shall include conferences and discussions with
management of the Company and such other services as the Company may reasonably
require, it being understood that, so long as the number of days set forth in
Section 1 hereof are satisfied, the Consulting may be provided by the
Consultants at times consistent with their other business activities and plans
for travel and other activities. The Consulting may be rendered in person or by
telephone, telecopy or other means of communications as the parties may mutually
agree and nothing herein shall require the Consultants to travel for the
purposes of rendering the Consulting.
3. The term of this Agreement shall commence on the Effective Time (as
such term is defined in the Merger Agreement) of the Merger and shall continue
for a period of four years. This Agreement shall be void and of no effect unless
the Merger shall be completed.
4. For all services to be rendered by the Consultants to the Company
pursuant to this Agreement, the Company agrees to pay to HCB (in accordance with
its payroll practices in effect from time to time, but not less frequently than
monthly), as agent for the Consultants, and the Consultants agree to accept,
consulting fees at the rate of $200,000 per annum in the aggregate, to
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be divided among the Consultants in accordance with their determination of the
proportions of the Consulting provided by each of them during the relevant
period. The Company shall have no liability or obligation in the event of a
dispute among the Consultants as to how any consulting fees are to be divided
among them, it being understood that the Company's sole obligation in respect
thereof will be to make payment to HCB in accordance with the immediately
preceding sentence. If any of the Consultants shall be required by the Company
to travel or otherwise incur out-of-pocket expenses in the performance of his
duties hereunder, the Company shall reimburse such Consultant for reasonable
expenses incurred in connection therewith upon the submission to the Company of
invoices or other satisfactory evidence thereof. In the event of the death of
HCB during the term of this agreement, the Company shall pay the aggregate
consulting fee in equal shares to HBJr. and DB, or if HCB and either HBJr. or DB
shall die during the term of this Agreement, then the aggregate consulting fees
shall be paid solely to the survivor of them. In the event of the death of all
of the Consultants during the term of this Agreement, then no further consulting
fees shall be paid hereunder. The only breach of this Agreement which shall be
grounds for nonpayment hereunder shall be a breach by a Consultant of Section 5
or Section 6 hereof.
5. HCB will not, during the term of this Agreement, and for a period of
two years after termination thereof, directly or indirectly manage, operate,
consult for, join, control or participate or become interested in or be
connected with as an employee, partner, officer, director, stockholder,
consultant or investor, any corporation, partnership, or other business entity
other than the Company or its affiliates (which term for all purposes of this
Agreement includes, without limitation, SpeedFam and its affiliates) which shall
provide products or services in competition with the semiconductor or memory
disk business conducted by the Company or its affiliates. Nothing herein shall
prohibit HCB from owning, solely for investment purposes, publicly-traded
securities of any
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company which operates a business otherwise covered by this Section 5, provided
that such ownership constitutes less than one percent (1%) of the issued and
outstanding equity or debt securities, as the case may be, of said company. The
provisions of this Section 5 shall remain in effect despite the earlier
termination of this Agreement for any reason whatsoever.
6. The Consultants acknowledge that, as a result of their consulting
services to the Company and its affiliates, they have and shall acquire
confidential information which could be of great value to a competitor or
potential competitor of the Company or its affiliates. The Consultants further
acknowledge that their engagement by the Company to deliver consulting services
is conditioned upon the Company's ability to place complete trust and confidence
in the Consultants to do everything possible to avoid disclosure or use by
persons, corporations, organizations and others of its Confidential Information
which may become known to the Consultants. For the purposes of this Agreement,
"Confidential Information" means information (1) disclosed to or known by the
Consultants as a consequence of or through his engagement by the Company, (2)
not generally known to persons, corporations, organizations and others outside
the Company or its affiliates and (3) which relates to the Company's and its
affiliates' development, testing engineering, manufacturing, marketing or
finances (including, without limitation, any processes, formulas, know how,
manufacturing practices, sales statistics and projections, customer date and
marketing strategies and plans). It is agreed that all information originating
from either the Company or any of its affiliates relating to its business shall
be confidential and the sole and exclusive property of the Company and its
affiliates. Confidential Information shall not be disclosed to others without
the consent of the Company or its affiliates. This obligation of confidentiality
extends five years beyond the termination of this Agreement.
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7. Any breach or threatened breach by a Consultant of any provision of
Sections 5 and 6 of this Agreement shall cause the Company irreparable harm
which cannot be remedied solely by damages. In the event of a breach or
threatened breach by a Consultant of any of the provisions of Sections 5 or 6,
the Company shall be entitled to injunctive relief restraining such Consultant
and any business, firm, partnership, individual, corporation or entity
participating in such breach or attempted breach. Nothing herein shall be
construed as prohibiting the Company from pursuing any other remedies available
at law or in equity for such breach or threatened breach, including, without
limitation, the recovery of damages.
8. If any provision of this Agreement is determined by the Company to
be reasonably likely to interfere with SpeedFam's ability to account for the
Merger as a pooling of interests, then the parties hereto agree to renegotiate
such provision, in good faith, to the extent required to permit pooling of
interests.
9. This Agreement shall be binding upon and inure to the benefit of the
Consultants (as their interests may appear), the Company and their respective
successors (including, without limitation, SpeedFam and its affiliates) and
assigns. The Consultants may not delegate their obligations hereunder to any
other party.
10. This Agreement shall be governed by and construed in accordance
with the laws of the State of Arizona applicable to agreements made and to be
performed in that state.
11. This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts shall each be
deemed to be an original but all such counterparts shall together constitute one
and the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the day and year first above written.
INTEGRATED PROCESS EQUIPMENT CORP.
By: /s/ Xxxxxxx Xxxxxx
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Title: Chairman of the Board
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxxx, Xx.
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Xxxxxx Xxxxxxx, Xx.
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
