Exhibit 10.10
AXCELIS TECHNOLOGIES, INC.
INDEPENDENT CONSULTANT AGREEMENT
This Agreement is entered into effective this 9th day of
June, 2003 by and between Axcelis Technologies, Inc., a
Delaware corporation with its principal office at 00
Xxxxxx Xxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000 ("Axcelis")
and Xxxxxxx X. Xxxxxxx, with an address at 0 Xxxxxxxx Xxx,
Xxxxxxx, Xxxxxxxxxxxxx ("Consultant").
In consideration of the mutual covenants and promises
contained herein, Axcelis and Consultant agree as follows:
1. Performance of Services. Consultant agrees to provide to
Axcelis the services generally described in Schedule 1 (the
"Services"). Consultant shall supply all necessary supplies
and materials and shall be solely responsible for requesting
any information necessary from Axcelis for the performance of
the Services. Consultant shall not employ any subcontractors
for any of the Services without the prior written approval of
Axcelis, and Consultant shall remain responsible for the
performance of any such subcontractors. Consultant shall
perform the Services in accordance with the professional
standards of skill, care, and diligence.
2. Time. Consultant agrees to adhere to the time commitments
set forth in Schedule 1 or as otherwise mutually agreed upon.
Consultant shall perform the Services as expeditiously as is
consistent with the standards of professional skill and care
required hereby. Consultant shall perform the Services in
coordination with the operations of Axcelis and with any party
engaged by Axcelis in connection with the Services being
performed.
3. Payment.
3.1. Fees. For the Services provided by Consultant under
this Agreement, Axcelis agrees to compensate Consultant
according to Schedule 2.
3.2. Reimbursable Expenses. Axcelis shall compensate
Consultant for reasonable expenses actually incurred by
Consultant to the extent provided in Schedule 1 ("Reimbursable
Expenses"). Consultant agrees that if such expenses are for
travel, Consultant shall either (i) use Axcelis' travel partner
or (ii) limit its travel expenses such that Consultant's expenses
do not exceed those quoted by Axcelis' travel partner (as per the
Axcelis Travel Policy for Independent Contractors and Temporary
Workers). Consultant agrees to use reasonable efforts to minimize
Reimbursable Expenses.
4. [Intentionally Omitted]
5. Inventions.
5.1. Definition and Disclosure. As used in this Agreement,
"Inventions" shall mean any and all ideas, concepts, discoveries,
inventions, developments, trade secrets, methods, data, information,
improvements, materials, Work Product (as defined in Section 5.4
below), and know-how that are conceived, devised, invented,
developed or reduced to practice or tangible medium (whether or
not protectible under state, federal or foreign patent, copyright,
trade secrecy or similar laws), by Consultant, under Consultant's
direction or jointly with others during any period that Consultant
is engaged by Axcelis, which relate, directly or indirectly, to the
business of Axcelis and arise out of Consultant's performance of this
Agreement. Consultant agrees promptly to disclose all Inventions
to Axcelis.
5.2. Assignment of Rights. Consultant covenants and agrees that
all right, title and interest in any Inventions shall remain the
sole and exclusive property of Corporation and shall be a work made
for hire. Consultant hereby assigns and agrees to assign to Axcelis
all of Consultant's right, title and interest in and to the Inventions
and any and all related patent rights, copyrights, and other
intellectual property rights and applications and registrations
therefor. During and after Consultant's engagement by Axcelis,
Consultant shall cooperate with Axcelis, at Axcelis' expense, in
obtaining protection for the Inventions and Consultant shall execute
all documents which Axcelis shall reasonably request in order to
perfect Axcelis' rights in the Inventions. Consultant hereby appoints
Axcelis as Consultant's attorney to execute and deliver any such
documents on Consultant's behalf in the event Consultant should fail
or refuse to do so within a reasonable period following Axcelis'
request.
5.3. No Conflict. Consultant represents and warrants that
the assignment of Inventions to Axcelis or Axcelis' use of such
Inventions shall not violate the copyright, patent, trademark,
trade secret, or other right of any person or entity and no
additional permissions, clearances, assignments, or licenses are
necessary in order for Axcelis to own, use, and commercialize the
Work Product (as defined below) and other Inventions.
5.4. Work Product. Without limiting the generality of the
foregoing, Consultant further agrees that all right, title, and
interest in and to any works of authorship or copyrightable materials
resulting from the performance of the Services under this Agreement
and all copies thereof, in whatever media (the "Work Product") shall
be in Axcelis and shall be "works made for hire" within the meaning
of the Copyright Law of the United States and may be used by Axcelis
(or such parties as Axcelis may designate) thereafter in such manner
and for such purposes as Axcelis (or such parties as Axcelis may
designate) may deem advisable, without further employment of or
additional compensation to Consultant. To the extent that the Work
Product does not qualify for work made for hire status, Consultant
hereby assigns and agrees to assign the entire worldwide, perpetual
copyright in and to the Work Product to Axcelis pursuant to Section
5.2.
6. Confidentiality.
6.1. Definition. Consultant understands that Axcelis
continually obtains and develops valuable proprietary and
confidential information concerning its scientific, technical,
or business affairs (the "Confidential Information") which may
become known to Consultant in connection with Consultant's
engagement by Axcelis. By way of illustration, but not limitation,
Confidential Information includes Inventions and may include trade
secrets, technical information, know-how, research and development
activities of Axcelis, product and marketing plans, customer and
supplier information and information disclosed to Axcelis or to
Consultant by third parties of a proprietary or confidential nature
or under an obligation of confidence. Confidential Information may
be contained in various media, including without limitation, patent
applications, research data and observations, computer programs in
object and/or source code, technical specifications, laboratory
notebooks, supplier and customer lists, internal financial data and
other documents and records of Axcelis.
6.2. Proprietary Rights. Consultant acknowledges that all
Confidential Information, either in writing and labeled or
identified as confidential or proprietary or identified orally
prior to disclosure by Axcelis as confidential or proprietary,
is and shall remain the exclusive property of Axcelis or the third
party providing such information to Consultant or Axcelis.
Consultant agrees that Consultant shall not, during the term of
Consultant's engagement by Axcelis and thereafter, publish,
disclose or otherwise make available to any third party, other
than employees of Axcelis, any Confidential Information except
as expressly authorized in writing by Axcelis. Consultant agrees
that Consultant shall use such Confidential Information only in
the performance of Consultant's duties for Axcelis and in accordance
with any Axcelis policies with respect to the protection of
Confidential Information. Consultant agrees not to use such
Confidential Information for Consultant's own benefit or for the
benefit of any other person or business entity.
6.3. Precautions. Consultant agrees to exercise all reasonable
precautions to protect the integrity and confidentiality of
Confidential Information in Consultant's possession and not to
remove any materials containing Confidential Information from
Axcelis' premises except to the extent necessary to Consultant's
performance of the Services. Upon the termination of Consultant's
engagement hereunder, or at any time upon Axcelis' request,
Consultant shall return immediately to Axcelis any and all materials
containing any Confidential Information then in Consultant's
possession or under Consultant's control.
6.4. Exceptions. Confidential Information shall not include
information which (a) is or becomes generally known within Axcelis'
industry through no fault of Consultant; (b) was known to Consultant
at the time it was disclosed as evidenced by Consultant's written
records at the time of disclosure; (c) is lawfully and in good faith
made available to Consultant by a third party who did not derive it
from Axcelis and who imposes no obligation of confidence on
Consultant; or (d) is required to be disclosed by law or by a
governmental authority or by order of a court of competent
jurisdiction, provided that such disclosure is subject to all
applicable governmental or judicial protection available for
like material and reasonable advance notice is given to Axcelis.
7. Exclusivity; Non-Solicitation.
7.1. Exclusivity and Non-Compete. Consultant shall not, during
the term of this Agreement, and for a period of one (1) year
thereafter, organize or serve in any capacity (whether as an officer,
director, employee, consultant or otherwise) any person, firm,
corporation or other entity which is in direct competition with
Axcelis or which may otherwise give rise to a conflict of interest
or appearance of a conflict of interest with Consultant's
performance of the Services, without the prior written consent
of Axcelis.
7.2. Non-Solicitation. Consultant agrees that during the term
of this Agreement and for a period of one (1) year thereafter,
Consultant shall not induce or attempt to induce any of Axcelis'
employees or independent contractors to terminate their employment
or contractual relationships with Axcelis, or solicit, divert or
take away, or attempt to divert or take away the business or
patronage of any of the clients, customers or accounts, or
prospective clients, customers or accounts of Axcelis which
were contracted, solicited or served by Axcelis during the
period in which Consultant was performing the Services for Axcelis.
8. Third Party Agreements and Rights.
8.1. No Conflict with Other Contracts. Consultant represents
that Consultant's performance under this Agreement does not and
shall not breach any fiduciary or other duty or any covenant,
agreement or understanding (including, without limitation, any
agreement relating to assignment of inventions, proprietary
information, knowledge or data) to which Consultant is a party
or by the terms of which Consultant may be bound.
8.2. Third Party Proprietary Rights. Consultant understands
and acknowledges that Axcelis does not desire to acquire from
Consultant any trade secrets, know-how, or confidential
information Consultant may have acquired from third parties.
Consultant therefore agrees that Consultant will not improperly
use or disclose any proprietary information or trade secrets of
any person or entity with whom Consultant owes a duty to keep
such information in confidence.
9. Termination of Agreement.
9.1. Term. This Agreement shall expire on September 5, 2003,
unless expressly renewed by the parties. After such date,
Consultant agrees to make his Services available to Axcelis on a
month -to-month basis at Axcelis' option, unless Consultant gives
Axcelis 30 days prior notice of Consultant's unavailability to
continue to provide such Services. The date of September 5, 2003
or any later expiration date agreed to by the parties is referred
to herein as the "Expiration Date."
9.2. By Axcelis. Axcelis may terminate this Agreement prior
to the Expiration Date as follows:
(a) without cause, on 30 days' prior written notice; or
(b) immediately, by written notice to Consultant, if Consultant
fails to perform or observe any of the terms, covenants,
obligations or conditions of this Agreement.
9.3. By Consultant. Consultant may terminate this Agreement
prior to its Expiration Date as follows:
(a) without cause, on 30 days' prior written notice, or
(b) upon 10 days written notice to Axcelis, if Axcelis fails to
make payments required under Section 3 above and Schedule 2.
9.4. Effect of Termination. In the event of termination by
Axcelis prior to the Expiration Date, without cause, Axcelis
shall promptly make the payments set forth on Schedule 2 as if
the Consultant provided Services through the Expiration Date.
The Success Fee, as described on Schedule 2, shall be paid when
due. In the event of termination, Consultant shall promptly
deliver to Axcelis all equipment and supplies belonging to Axcelis
and all documents, work papers, studies, calculations, computer
programs, data, drawings, plans, specifications and other tangible
work product or materials pertaining to the Inventions and/or the
Services performed under this Agreement to the time of termination.
Any termination of this Agreement shall not affect or impair the
right of Axcelis to recover damages occasioned by any default of
Consultant or to set off such damages against amounts otherwise
owed to Consultant. Any termination of this Agreement shall not
affect or impair the right of Consultant to recover any payment
due under this Agreement. Sections 5, 6, and 7, this Section 9.4
and Section 10 shall continue in full force and effect not
withstanding the expiration or termination of this Agreement
for any reason.
10. Miscellaneous.
10.1. Full Power and Authority. Each party represents and
warrants that it has full power and authority to undertake
the obligations set forth in this Agreement and that it has
not entered into any other agreements that would render it
incapable of satisfactorily performing its obligations hereunder.
10.2. Compliance with Law. Consultant shall perform the
Services hereunder in compliance with all applicable federal,
state and municipal laws, regulations, codes, ordinances and
orders, and any permit conditions in effect as of the time of
such performance.
10.3. Consultant's Accounting Records. Consultant shall keep
records pertaining to the Services performed and Reimbursable
Expenses employing sound bookkeeping practices and in accordance
with generally accepted accounting principles. All records
pertaining to the Services performed and Reimbursable Expenses
shall be available to Axcelis or its authorized representatives
for review and audit during normal business hours upon reasonably
prior written notice to Consultant.
10.4. Non-Assignable. The Services are personal to Consultant
and Consultant shall not assign, sublicense, or transfer any of
its obligations, responsibilities, rights or interests (including,
without limitation, its right to receive any moneys due hereunder)
under this Agreement without the written consent of Axcelis.
The Services may not be assumed by or assigned by a trustee in
bankruptcy. Any assignment, subletting, or transfer by Consultant
in violation of this Section 10.4 shall be void and without force
or effect.
10.5. Entire Agreement. This Agreement represents the entire and
integrated agreement between Axcelis and Consultant with respect
to the subject matter hereof and supersedes all prior negotiations,
representations or agreements, either written or oral. This
Agreement may be amended only by written instrument signed by
both Axcelis and Consultant.
10.6. Limitation of Liability. No officer, director, member,
employee, or other principal, agent or representative (whether
disclosed or undisclosed) of Axcelis shall be personally liable
to Consultant hereunder, for Axcelis' payment obligations or
otherwise. Consultant hereby agrees to look solely to the assets
of Axcelis for the satisfaction of any liability of Axcelis hereunder.
In no event shall Axcelis be liable to Consultant for indirect,
incidental, special, reliance, exemplary, or consequential damages.
10.7. No Inadvertent Waivers. No waiver of any portion of this
Agreement shall be effective unless in writing. The failure of
Axcelis at any time to require performance by Consultant of any
provision shall in no way affect the right of Axcelis to enforce
that or any other provision of this Agreement. No waiver of any
breach of this Agreement shall constitute a waiver of any subsequent
breach of the same or any other provision of this Agreement.
10.8. Governing Law. This Agreement and the rights and obligations
of the parties shall be governed and construed in accordance with the
laws of the Commonwealth of Massachusetts. Any action brought pursuant
to or in connection with this Agreement shall be brought only in the
state or federal courts within the Commonwealth of Massachusetts
without regard to its conflict of laws provisions. In any such action,
Consultant submits to the personal jurisdiction of the courts of the
Commonwealth of Massachusetts, waives any objections to venue of such
courts, and agrees to accept service of process by any means
reasonably calculated to give effective notice of the action.
10.9. Severablility. The provisions of this Agreement are severable
and if any of the provisions hereof are held to be invalid, illegal
or unenforceable, in whole or in part, the remaining provisions of
this Agreement shall remain binding and enforceable by and between
the parties.
10.10. Section Headings. Section headings are for convenience only
and shall not be considered in the interpretation of this Agreement.
10.11. Independent Contractor. Consultant shall at all times be an
independent contractor and not an employee of Axcelis, and nothing
herein shall be construed to create a partnership, joint venture, or
agency relationship between the parties hereto. Neither party shall
have any authority to enter into agreements of any kind on behalf of
the other party and shall not have the power or authority to bind or
obligate the other party in any manner to any third party. Each party
agrees not to represent itself as a partner, joint venturer, agent,
employee, or general representative of the other party or to make any
representations on the other party's behalf. Consultant shall have
sole responsibility for payment, on behalf of itself and any
subconsultants or employees, of all federal, state, and local taxes
or contributions imposed or required under unemployment insurance,
social security and income tax laws and for the filing of all required
tax forms with respect to any amounts paid by Axcelis to Consultant
hereunder. Consultant shall not be entitled to any benefits, coverages,
or other privileges, including, without limitation, unemployment, medical,
pension, or other employee welfare benefits and payments provided to
employees of Axcelis.
IN WITNESS WHEREOF, the parties hereto have executed
and delivered this Agreement as of the date first above written.
AXCELIS TECHNOLOGIES, INC.
By: /s/ Xxxx X. Puma_______________
Xxxx X. Puma, Chief Executive Officer
CONSULTANT
/s/ Xxxxxxx X. Bassett______________
Xxxxxxx X. Xxxxxxx
Schedule 1
Services
To provide consulting services as an interim Chief Financial
Officer reporting to the Chief Executive Officer. As such
Consultant is responsible for managing all financial operations
and strategy, investor relations and business development of
the company. As the corporation's top financial officer, this
position is responsible for assisting the Audit Committee of
the Board of Directors in managing the company's external
auditors and internal audit processes. In addition, the
Consultant will oversee:
* SEC reporting
* Tax planning
* Treasury function
* Relationships with analysts and investors
* Credit relationships
* Business development transactions.
Time Commitments
The Consultant will provide full time services
(approximately 40 hours a week).
Reimbursable Expenses
Axcelis shall pay or promptly, no later than 30 days
upon the receiving of the related expense statement
submitted by Consultant, reimburse Consultant for all
reasonable travel, long-distance telephone, entertainment
and other business expenses paid or incurred by Consultant
in connection with the performance of Consultant's duties
hereunder (as long as the requirements of Section 3.2 of
the Agreement are met), upon presentation of expense
statements, vouchers or other evidence of expenses providing
the reasonable detail required by the Corporation.
Schedule 2
Compensation and Billing Procedures
In consideration of the Services described in Schedule 1,
Consultant shall be paid at the weekly rate of US$5,750,
payable every two (2) weeks in arrears. The bi-weekly
payment shall be US$11,500, and shall be paid by check or
wire transfer to a bank account designated by Consultant.
Upon Axcelis' engagement of a permanent Chief Financial
Officer (other than the Consultant) during the term of
this Agreement (including any renewal term) or within
30 days thereafter, Axcelis shall make a lump sum payment
to Consultant in the amount of US$23,000 (the "Success Fee"),
which shall be paid by check or wire transfer to a bank
account designated by Consultant.
