EMPLOYMENT AGREEMENT
AGREEMENT, made as of August 19, 1997, between SIGHT SYSTEMS, INC., a
California corporation with an office at 0000 Xxx Xxxxxx Xxxx, Xxxxx 000,
Xxxxxxx Xxxx, Xxxxxxxxxx 00000-0000 (the "Company" or "SSI"), and XXXXX XXXXX,
residing at 0000 Xxxxxx Xxx Xxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000 ("Employee").
W I T N E S S E T H:
WHEREAS, SSI is engaged in the business of designing and manufacturing
high accuracy production vision systems performing numerous alignment and
measurement applications; and
WHEREAS, the Company, Employee and certain other specified entities and
individuals have entered into an Acquisition Agreement (the "Acquisition
Agreement"), dated as of August 19, 1997, with Zygo Corporation ("Zygo"),
pursuant to which Zygo is acquiring all the outstanding capital stock of the
Company for an aggregate of 287,400 shares of Zygo common stock (the
"Acquisition"); and
WHEREAS, prior to the consummation of the Acquisition Agreement, the
Shareholder was an employee and a principal shareholder of SSI and, as such,
possesses confidential and proprietary information regarding SSI; and
WHEREAS, as a principal stockholder of the Company, Employee will receive
a significant number of shares of Zygo common stock upon the consummation of the
Acquisition; and
WHEREAS, the execution and delivery of this Agreement, including without
limitation the provisions of Section 9 hereof, is a condition of Zygo's
consummation of the Acquisition and of Employee's agreement to sell his shares
of common stock of SSI to Zygo, all pursuant to the Acquisition Agreement; and
WHEREAS, the Company desires that Employee be employed by the Company, and
Employee desires to be so employed by the Company upon the terms and conditions
herein set forth.
NOW, THEREFORE, in consideration of the premises and of the mutual
promises, representations and covenants herein contained, the parties hereto
agree as follows:
1. EMPLOYMENT.
The Company hereby employs Employee and Employee hereby accepts such
employment, subject to the terms and conditions herein set forth. Employee shall
hold the position of President of SSI, a business unit initially being operated
in the form of a subsidiary of Zygo Corporation ("Zygo"). Employee will not be
required to relocate outside of a 25 mile radius from his current place of
employment in order to satisfy the terms and conditions of employment herein set
forth.
2. TERM.
The initial term of employment under this Agreement shall begin on August
19, 1997 (the "Employment Date") and shall continue for a period of three (3)
years from that date, subject to prior termination in accordance with the terms
hereof. Thereafter, this Agreement shall automatically be renewed for successive
one year terms unless either party shall give the other sixty (60) days' prior
written notice of its or his intent not to renew this Agreement. The initial
term together with all such additional one-year period(s) of employment, if any,
are collectively referred to herein as the "term" of this Agreement.
3. COMPENSATION.
As compensation for the employment services to be rendered by Employee
hereunder, the Company agrees to pay, or cause to be paid, to Employee, and
Employee agrees to accept, an annual salary of $120,000 or such higher amount as
the President of Zygo may determine from time to time, subject to such payroll
deductions as are required by law and deductions for applicable employee
contributions to the normal benefit programs of the Company. The annual salary
provided for hereunder shall be payable in equal installments commencing at the
Employment Date, in accordance with the Company's practice. In addition,
Employee shall be entitled to additional incentive compensation from time to
time. Such compensation will be based on the Company's overall performance and
will be awarded at the discretion of the President of Zygo with the approval of
the Board of Directors of the Company or Zygo.
On August 19, 1997, Employee shall receive a grant of options to purchase
10,000 shares of Common Stock of Zygo with an exercise price equal to the fair
market value on the date of grant, vesting in four equal annual installments and
otherwise in accordance with the terms of Zygo's Amended and Restated
Non-Qualified Stock Option Plan.
4. EXPENSES.
The Company shall pay or reimburse Employee, upon presentment of suitable
vouchers, for all reasonable business and travel expenses which may be incurred
or paid by Employee in connection with his employment hereunder. Employee shall
comply
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with restrictions and shall keep records in compliance with the Company's
policy and procedure related to travel and entertainment expenses.
5. INSURANCE AND OTHER BENEFITS.
(a) Employee shall be entitled to such vacations and to participate
in and receive any other health and welfare (including insurance) benefits
customarily provided by the Company for its employees generally, all as
determined from time to time by the Board of Directors of the Company or Zygo or
appropriate committee thereof; provided that the health and welfare benefits in
the aggregate, provided to Employee, are at least substantially comparable to
the benefits provided by the Company to Employee prior to the date hereof, all
of which benefits Employee represents are set forth in Schedule 5(a) attached
hereto. The Company currently intends to initially afford Employee the same
health and welfare benefits as are set forth in said Schedule 5(a); i.e., those
benefits provided by the Company to Employee prior to the date hereof. Unused
annual vacations may be carried over to the extent permitted by Company policy.
(b) Employee acknowledges and agrees that notwithstanding anything
to the contrary contained in any health or welfare benefit plan maintained by
Zygo, except as may be otherwise agreed to by Employee and Zygo, Employee shall
not be entitled to participate in any of Zygo's employee benefit plans by virtue
of his being employed by the Company or by Zygo (if and when applicable).
6. DUTIES.
(a) Employee shall perform such duties and functions as the
President, Chief Executive Officer or Chief Operating Officer of Zygo and the
Board of Directors of the Company or Zygo shall from time to time determine and
Employee shall comply in the performance of his duties with the policies of, and
be subject to, the direction of such officers and such Boards of Directors.
(b) Employee agrees to devote his entire working time, attention and
energies to the performance of the business of the Company and of any of its
subsidiaries or affiliates by which he may be employed; and Employee shall not,
directly or indirectly, alone or as a member of any partnership or other
organization, or as an officer, director or employee of any other corporation,
partnership or other organization, be actively engaged in or concerned with any
other duties or pursuits which interfere with the performance of his duties
hereunder, or which, even if non-interfering, may be inimical, or contrary, to
the best interests of the Company, except those duties or pursuits specifically
authorized by the Board of Directors of the Company or Zygo.
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7. TERMINATION OF EMPLOYMENT; EFFECT OF TERMINATION.
(a) Employee's employment hereunder may be terminated at any time
upon written notice from the Company to Employee,
(i) upon the determination by the President, Chief Executive
Officer or Chief Operating Officer of Zygo or the Board of Directors
of the Company or Zygo that Employee's performance of his duties has
not been fully satisfactory for any reason which would not
constitute justifiable cause (as hereinafter defined) upon five (5)
days' prior written notice to Employee; or
(ii) immediately upon determination by the Board of Directors
of the Company or Zygo that justifiable cause exists for such
termination.
(b) Employee's employment shall terminate upon:
(i) the death of the Employee; or
(ii) the "disability" of Employee (as hereinafter defined
pursuant to subsection (d) herein).
(c) For the purposes of this Agreement, the term "disability" shall
mean the inability of Employee, due to illness, accident or any other physical
or mental incapacity, to perform his duties in a normal manner for a period of
three (3) consecutive months or for a total of four (4) months (whether or not
consecutive) in any twelve (12) month period during the term of this Agreement.
(d) For the purposes hereof, the term "justifiable cause" shall mean
and be limited to: any repeated failure or refusal by Employee to perform, or
willful neglect by Employee of, any of his duties pursuant to this Agreement;
Employee's conviction (which, through lapse of time or otherwise, is not subject
to appeal) of any crime or offense involving money or other property of the
Company, Zygo or any of their respective subsidiaries or affiliates or which
constitutes a felony in the jurisdiction involved; Employee's performance of any
act or his failure to act, for which if he were prosecuted and convicted, a
crime or offense involving money or property of the Company, Zygo or any of
their respective subsidiaries or affiliates, or which constitutes a felony in
the jurisdiction involved, would have occurred; any disclosure by Employee to
any person, firm or corporation other than the Company, Zygo, any of their
respective subsidiaries or affiliates and its and their directors, officers and
employees, of any confidential information or trade secret of the Company, Zygo
or any of their respective subsidiaries or affiliates or any other breach by
Employee of any of the provisions of Section 9, 10 or 11 hereof; any attempt by
Employee to secure any personal profit in connection with the business of the
Company, Zygo or any of their respective subsidiaries or affiliates; or the
engaging by Employee in any business or activities other than the business of
the Company, Zygo and their respective
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subsidiaries or affiliates which interferes with the performance of his
duties hereunder. Upon termination of Employee's employment by the Company
for justifiable cause, this Agreement shall terminate immediately and
Employee shall not be entitled to any amounts or benefits hereunder other
than such portion of Employee's annual salary and reimbursement of expenses
pursuant to Section 4 hereof as has been accrued through the date of his
termination of employment.
(e) If Employee shall die during the term of his employment
hereunder, this Agreement shall terminate immediately. In such event, the estate
of Employee shall thereupon be entitled to receive such portion of Employee's
annual salary and reimbursement of expenses pursuant to Section 4 hereof as has
been accrued through the date of his death.
(f) Upon Employee's "disability," the Company shall have the right
to terminate Employee's employment. Notwithstanding any inability to perform his
duties, Employee shall be entitled to receive his compensation as provided
herein until the termination of his employment for disability. Any termination
pursuant to this subsection (f) shall be effective on the date thirty (30) days
after which Employee shall have received written notice of the Company's
election to terminate. Notwithstanding anything to the contrary contained
herein, during any period that Employee fails to perform his duties hereunder as
a result of his disability (but prior to receiving the notice of termination
specified in this Section 7(f), (i) Employee shall continue to receive his full
salary at the rate then in effect and all benefits provided in Section 5 hereof,
provided that payments made to Employee pursuant to this Section 7(f) shall be
reduced by the sum of the amounts, if any, payable to Employee at or prior to
the time of any such payment under any disability benefit plan or program of, or
provided by, the Company or Zygo, and (ii) the Company shall have the right to
hire any other individual or individuals to perform such duties and functions as
the Company shall desire, including those duties heretofore performed by
Employee.
(g) Notwithstanding any provision to the contrary contained herein,
in the event that Employee's employment is terminated by the Company at any time
for any reason other than justifiable cause, disability or death, the parties
hereto agree that damages to Employee shall be difficult to ascertain in any
such event, but in order to limit the liability of the Company and Zygo in any
such event, Employee shall be entitled to receive as liquidated damages and not
as a penalty, and the Company shall pay to Employee, Employee's salary (payable
in such amount and in such manner as set forth in Section 3 herein) from and
after the date of such termination for a period ending six (6) months after the
date of termination which amount shall be in lieu of any and all other payments
due and owing to Employee under the terms of this Agreement or otherwise.
8. REPRESENTATIONS AND AGREEMENTS OF EMPLOYEE.
(a) Employee represents and warrants that he is free to enter into
this Agreement and to perform the duties required hereunder, and that there are
no
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employment contracts or understandings, restrictive covenants or other
restrictions, whether written or oral, preventing the performance of his duties
hereunder, except for the existing employment agreement between Employee and the
Company, which existing agreement is superseded in its entirety by this
Agreement. Employee further represents and warrants that he is in full
compliance with all existing agreements between himself and the Company or Zygo.
(b) Employee agrees to submit to a medical examination and to
cooperate and supply such other information and documents as may be required by
any insurance company in connection with the Employees' inclusion in any
insurance or fringe benefit plan or program as the Company shall determine from
time to time to obtain, or in connection with, in the Company's sole discretion,
the Company's or Zygo's obtaining life insurance for its benefit on the life of
Employee.
9. NON-COMPETITION.
(a) Employee agrees that during his employment by the Company (which
shall be deemed to include the period in which Employee is receiving any
severance payments set forth in Section 7(g) hereto) and for a period of three
(3) years after the later to occur of the termination or expiration of
Employee's employment with the Company (or Zygo as the case may be) (the
"Non-Competitive Period"), Employee shall not, directly or indirectly, as owner,
partner, joint venturer, stockholder, employee, broker, agent, principal,
trustee, corporate officer, director, licensor, or in any capacity whatsoever
engage in, become financially interested in, be employed by, render any
consultation or business advice with respect to, or have any connection with,
any business engaged in the research, development, testing, design, manufacture,
sale, lease, marketing, utilization or exploitation of any products or services
which are designed for the same purpose as, are similar to, or are otherwise
competitive with, products or services of the Company, Zygo or any of their
respective subsidiaries or affiliates which are being sold or provided or
proposed to be provided at the time of termination or expiration of Employee's
employment, in any geographic area where, at the time of the termination or
expiration of his employment hereunder, the business of the Company, Zygo or any
of their respective subsidiaries or affiliates was being conducted or was
proposed to be conducted in any manner whatsoever; provided, however, that
Employee may own any securities of any corporation which is engaged in such
business and is publicly owned and traded but in an amount not to exceed at any
one time one percent (1%) of any class of stock or securities of such
corporation. In addition, Employee shall not, directly or indirectly, during the
Non-Competitive Period, request or cause contracting parties, suppliers or
customers with whom the Company, Zygo or any of their respective subsidiaries or
affiliates has a business relationship to cancel or terminate any such business
relationship with the Company, Zygo or any of their respective subsidiaries or
affiliates or solicit, interfere with or entice from the Company, Zygo or any of
their respective subsidiaries or affiliates any employee (or former employee) of
the Company, Zygo or any of their respective subsidiaries or affiliates. In
addition, the Company and Employee hereby agree, acknowledging such agreement to
be in their respective best interests, that, at the option of the Company,
Employee shall
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enter into a consulting agreement following the termination or expiration of his
employment with the Company (or Zygo, as the case may be), pursuant to which
Employee will devote an equivalent of 33% of his full-time employment hours, at
a time and place to be mutually agreed upon by Employee and the Company, to
performing consulting services for the Company for a period of up to three (3)
years, in consideration for which the Company will pay to Employee 33% of
Employee's salary (at the rate then in effect); provided, however, that the
foregoing requirement to provide consulting services shall in no way interfere
with Employee's ability to accept and perform any employment or services, on a
full- or part-time basis, which are not competitive with the business of the
Company, Zygo or any of their respective subsidiaries or affiliates as set forth
in the first sentence of this Section 9(a). Notwithstanding the foregoing, in
the event Employee's employment hereunder is terminated by the Company for
justifiable cause pursuant to Section 7(a), the Non-Competitive Period shall
continue through the expiration of the scheduled term of this Agreement as
provided in Section 2 hereof and for a period of two (2) years thereafter.
(b) If any portion of the restrictions set forth in this Section 9
should, for any reason whatsoever, be declared invalid by a court of competent
jurisdiction, the validity or enforceability of the remainder of such
restrictions shall not thereby be adversely affected.
(c) Employee acknowledges that the Company and/or Zygo conducts
business on a world-wide basis, that its sales and marketing prospects are for
continued expansion into world markets and that, therefore, the territorial and
time limitations set forth in this Section 9 are reasonable and properly
required for the adequate protection of the business of the Company, Zygo and
their respective subsidiaries. In the event any such territorial or time
limitation is deemed to be unreasonable by a court of competent jurisdiction,
Employee agrees to the reduction of the territorial or time limitation to the
area or period which such court deems reasonable.
(d) The existence of any claim or cause of action by Employee
against the Company, Zygo or any of their respective subsidiaries or affiliates
shall not constitute a defense to the enforcement by the Company, Zygo or any
such subsidiary or affiliate of the foregoing restrictive covenants, but such
claim or cause of action shall be litigated separately.
10. INVENTIONS AND DISCOVERIES.
(a) Employee shall promptly and fully disclose to Zygo, and with all
necessary detail for a complete understanding of the same, all developments,
know-how, discoveries, inventions, improvements, concepts, ideas, writings,
formulae, processes and methods (whether copyrightable, patentable or otherwise)
made, received, conceived, acquired or written during working hours, or
otherwise, by Employee (whether or not at the request or upon the suggestion of
Zygo) during the period of his employment with the Company, Zygo or any of their
respective subsidiaries or affiliates, solely or jointly with others, in all
instances in or relating to any activities of the Company, Zygo
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or their respective subsidiaries or affiliates known to him as a consequence of
his employment hereunder (collectively the "Subject Matter").
(b) Employee hereby assigns and transfers, and agrees to assign and
transfer, to Zygo, all his rights, title and interest in and to the Subject
Matter, and Employee further agrees to deliver to Zygo any and all drawings,
notes, specifications and data relating to the Subject Matter, and to execute,
acknowledge and deliver all such further papers, including applications for
copyrights or patents, as may be necessary to obtain copyrights and patents for
any thereof in any and all countries and to vest title thereto to Zygo. Employee
shall assist Zygo in obtaining such copyrights or patents during the term of
this Agreement, and any time thereafter on reasonable notice, and Employee
agrees to testify in any prosecution or litigation involving any of the Subject
Matter (provided that if such testimony occurs after termination of this
Agreement, Employee shall be reasonably compensated for his time and reimbursed
for any out-of-pocket expense).
11. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION.
(a) Employee shall not, during the term of this Agreement or at any
time following termination or expiration of this Agreement, directly or
indirectly, disclose or permit to be known (other than as is required in the
regular course of his duties or required by law (in which case Employee shall
give Zygo prior written notice of such required disclosure) or with the prior
written consent of the President of Zygo), to any person, firm or corporation,
any confidential information acquired by Employee during the course of, or as an
incident to, his employment hereunder, relating to the Company, Zygo or any of
their respective subsidiaries or affiliates, the directors of the Company, Zygo
or any of their respective subsidiaries or affiliates, any client of the
Company, Zygo or any of their respective subsidiaries or affiliates, or any
corporation, partnership or other entity owned or controlled, directly or
indirectly, by any of the foregoing, or in which any of the foregoing has a
beneficial interest, including, but not limited to, the business affairs of each
of the foregoing. Such confidential information shall include, but shall not be
limited to, proprietary technology, trade secrets, patented processes, research
and development data, know-how, market studies and forecasts, competitive
analyses, pricing policies, employee lists, personnel policies, the substance of
agreements with customers, suppliers and others, marketing or dealership
arrangements, servicing and training programs and arrangements, customer lists
and any other documents embodying such confidential information. This
confidentiality obligation shall not apply to any confidential information which
thereafter becomes publicly available other than pursuant to a breach of this
Section 11(a), directly or indirectly, by Employee.
(b) All information and documents relating to the Company, Zygo and
their respective subsidiaries or affiliates as hereinabove described (or other
business affairs) shall be the exclusive property of the Company or Zygo, as the
case may be, and Employee shall use commercially reasonable best efforts to
prevent any publication or disclosure thereof. Upon termination of Employee's
employment with the Company,
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all documents, records, reports, writings and other similar documents containing
confidential information, including copies thereof, then in Employee's
possession or control shall be returned and left with the Company.
(c) Employee will execute the form of "Sight Systems, Inc.
Non-Disclosure and Non-Solicitation Agreement" in the form of Exhibit A hereto,
all the terms and provisions of which are incorporated herein as if fully set
forth herein.
12. RIGHT TO INJUNCTION.
Employee recognizes that the services to be rendered by him hereunder are
of a special, unique, unusual, extraordinary and intellectual character
involving skill of the highest order and giving them peculiar value the loss of
which cannot be adequately compensated for in damages. In the event of a breach
of this Agreement by Employee, the Company shall be entitled to injunctive
relief or any other legal or equitable remedies. Employee agrees that the
Company may recover by appropriate action the amount of the actual damage caused
the Company by any failure, refusal or neglect of Employee to perform his
agreements, representations and warranties herein contained. The remedies
provided in this Agreement shall be deemed cumulative and the exercise of one
shall not preclude the exercise of any other remedy at law or in equity for the
same event or any other event.
13. AMENDMENT OR ALTERATION.
No amendment or alteration of the terms of this Agreement shall be valid
unless made in writing and signed by both of the parties hereto.
14. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of California,
applicable to agreements made and to be performed therein.
15. CONSENT TO JURISDICTION.
Each party hereto hereby irrevocably submits to the exclusive
jurisdiction of the courts of the State of Connecticut, including the
jurisdiction of the United States District Courts therein, and agrees not to
assert by way of motion, as a defense or otherwise, in any such suit, action or
proceeding, any claim that he or it is not subject to the jurisdiction of the
above-named courts, that the suit, action or proceeding is brought in an
inconvenient forum, that the venue of the suit, action or proceeding is improper
or that this Agreement may not be enforced in or by such courts. Employee agrees
that all actions and proceedings to be instituted hereunder by Employee or his
successors or assigns arising out of or related to this Agreement or the
transactions contemplated hereby shall be commenced only in the courts having a
situs in Connecticut.
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16. SEVERABILITY.
The holding of any provision of this Agreement to be invalid or
unenforceable by a court of competent jurisdiction shall not affect any other
provision of this Agreement, which shall remain in full force and effect.
17. NOTICES.
Any notices required or permitted to be given hereunder shall be
sufficient if in writing, and if delivered by hand, or sent by certified mail,
return receipt requested, to the addresses set forth above or such other address
as either party may from time to time designate in writing to the other, and
shall be deemed given as of the date of the delivery or mailing.
18. WAIVER OR BREACH.
It is agreed that a waiver by either party of a breach of any provision of
this Agreement shall not operate, or be construed, as a waiver of any subsequent
breach by that same party.
19. ENTIRE AGREEMENT AND BINDING EFFECT.
This Agreement, together with the Acquisition Agreement and all agreements
and exhibits referred to herein and therein, contains the entire agreement of
the parties with respect to the subject matter hereof and shall be binding upon
and inure to the benefit of the parties hereto and their respective legal
representatives, heirs, distributors, successors and assigns. Notwithstanding
the foregoing, all prior agreements between Employee and the Company relating to
the confidentiality of information, trade secrets and patents shall not be
affected by this Agreement.
20. SURVIVAL.
The termination of Employee's employment hereunder shall not affect the
enforceability of Sections 7, 8(a), 9, 10, 11, 12, 14 and 15 hereof.
21. NON-ASSIGNABILITY.
This Agreement is entered into in consideration of the personal qualities
of Employee and may not be, nor may any right or interest hereunder be, assigned
by him without the prior written consent of the Company. It is expressly
understood and agreed that this Agreement, and the rights accruing and
obligations owed to the Company hereunder, and the obligations to be performed
by the Company hereunder, may be assigned by the Company at any time without the
consent of Employee to Zygo or any of the Company's successors or assigns. In
the event that this Agreement is assigned by the Company to Zygo pursuant to
this Section 21, all references in this
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Agreement to "Company" shall refer to Zygo except that the references thereto
contained in Section 5(a) hereof shall refer to SSI, a business unit of Zygo.
22. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original but all of which together shall constitute one
and the same instrument.
23. FURTHER ASSURANCES.
The parties agree to execute and deliver all such further documents,
agreements and instruments and take such other and further action as may be
necessary or appropriate to carry out the purposes and intent of this Agreement.
24. HEADINGS.
The Section headings appearing in this Agreement are for the purposes of
easy reference and shall not be considered a part of this Agreement or in any
way modify, demand or affect its provisions.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
SIGHT SYSTEMS, INC.
By: /s/ XXXX X. XXXXXX
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Chairman of Board
/s/ XXXXX XXXXX
------------------------------------
Xxxxx Xxxxx
AGREED TO:
ZYGO CORPORATION
By: /s/ XXXX X. XXXXXX
------------------------------------
Name: Xxxx X. Xxxxxx
Title: President
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EXHIBIT A
SIGHT SYSTEMS, INC.
NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT
AGREEMENT, dated as of August 19, 1997, by and between SIGHT
SYSTEMS, INC., a California corporation (the "Company"), and Xxxxx Xxxxx (the
"Employee")
W I T N E S S E T H:
In consideration of the Company's employment of the Employee and in
consideration of the covenants contained herein, the parties hereby agree as
follows:
1. The Employee agrees that he will not directly or indirectly disclose or
use at any time any knowledge, information or material relating to any,
business, customer, machine, design, apparatus or system of the Company,
Zygo Corporation, a Delaware corporation and the owner of all the
outstanding capital stock of the Company ("Zygo"), or any of their
respective subsidiaries or affiliates, or any of the methods of conducting
any part of their respective business or the like which may become known
to the Employee by reason of his employment or otherwise except as may be
reasonably necessary to the performance of his assigned duties as an
employee of the Company.
2. The Employee agrees to promptly and completely disclose in writing to such
person as the Company may designate all ideas, developments, inventions
and improvements heretofore or hereafter made, developed, perfected,
devised, conceived or acquired by the Employee either solely or jointly
with others during the Employee's employment by the Company and within
ninety (90) days after any termination thereof, whether or not during
regular working hours, relating in any way to the actual or anticipated
business, research, developments or products of the Company; and if so
requested by the Company, to assign, transfer and convey to the Company
all right, title and interest in and to all such ideas, developments,
inventions and improvements.
3. The Employee agrees, at the request and expense of the Company, to make,
execute and deliver any and all papers, documents and instruments,
including applications for patents in any and all countries and reissues
and extensions thereof, and to assist and cooperate (without expense to
the Employee) with the Company or its representative in any controversy or
legal proceedings relating to said ideas, developments, inventions and
improvements, and the patents which may be procured thereon.
4. The Company does not assume any responsibility for the prosecution or
defense of any application for patents in any countries arising from
ideas, developments, inventions and improvements disclosed to the Company
pursuant to this Agreement.
5. The Employee represents and warrants that he/she is free to enter into the
employment arrangements and, if applicable, the employment agreement, to
be entered into with the Company and to perform the duties required of the
Employee in connection with his/her employment by the Company; and that,
except as indicated on Exhibit 1 hereto, there are no employment
agreements, confidentiality agreements, restrictive covenants or other
agreements or restrictions binding on the Employee or to which the
Employee is a party which limit, prohibit or prevent the full performance
by the Employee of his/her employment duties and arrangements with the
Company or which would preclude the Employee from disclosing or otherwise
limit the Employee's right to disclose to the Company any ideas,
inventions, discoveries or other information.
6. The Employee represents and warrants that he/she has not brought and
agrees that he/she will not bring to the Company or use in the performance
of his/her employment responsibilities at the Company any materials,
documents, trade secrets or confidential information of a former employer
or any other person which are of a confidential nature or which are not
generally available to the public. The Employee agrees that he/she has not
and will not disclose to the Company or seek to induce the Company to use
any such confidential information, materials, documents or trade secrets.
7. The Employee agrees that during his/her employment by the Company and
following the termination of such employment, the Employee will not,
directly or indirectly, request or cause any suppliers or customers with
whom the Company, Zygo or any of their respective subsidiaries or
affiliates has a business relationship to cancel or terminate any such
business relationship with the Company, Zygo or any of their respective
subsidiaries or affiliates or solicit, interfere with or entice from the
Company or Zygo any employee or former employee of the Company or Zygo.
8. Neither this Agreement nor any benefits hereunder are assignable by the
Employee, but the terms and provisions hereof shall inure to the benefit
of the Company's successors and assigns.
9. This Agreement is not a contract of employment; it does not give the
Employee any rights to any employment with the Company, and it in no way
abridges, alters, amends or modifies any rights the Company may otherwise
have to terminate its employment of the Employee.
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10. This Agreement, together with the Employment Agreement, dated August 19,
1997, by and between the Employee and the Company and the Stock Purchase
Agreement, dated as of August 19, 1997, by and among the Company, Zygo and
the shareholders of the Company and all agreements and exhibits referred
to therein, contains the entire understanding and agreement of the parties
with respect to the matters herein contained, and no waiver or
modification hereof shall be binding unless in writing and subscribed by
the parties hereto.
11. If any paragraph, clause, or phrase of this Agreement shall, by any
federal, state or other law or by any decision of any court, be declared
or held illegal, void or unenforceable, the remaining portions of this
Agreement shall continue to be valid and in full force and effect.
-3-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
SIGHT SYSTEMS, INC.
By: /s/ XXXX X. XXXXXX
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Chairman of Board
EMPLOYEE
/s/ XXXXX XXXXX
------------------------------------
Xxxxx Xxxxx
AGREED TO:
ZYGO CORPORATION
By: /s/ XXXX X. XXXXXX
------------------------------------
Name: Xxxx X. Xxxxxx
Title: President
