XXXXX INCORPORATED
FOUNDER-EXECUTIVE EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made effective as of
June 14, 1999 by and between XXXXX, Inc., a Delaware corporation ("XXXXX"), and
Xxxxx X. Xxxxxxx, an individual and XXXXX founder ("Xxxxxxx"). An executive
position may be occupied by Xxxxxxx in XXXXX, one or more of its divisions or
any of its wholly owned subsidiaries ("Subsidiary"). This agreement is also
binding for any Subsidiary to which Xxxxxxx is assigned. Because of the familial
relationship between Xxxxxxx and the current CEO, certain critical factors
regarding Xxxxxxx'x performance, performance reviews and remuneration will be
ratified by the Board of Directors of XXXXX ("Board").
Xxxxxxx and XXXXX wish to provide mutual promises and assurances that
will define the nature and terms and conditions of their relationship.
Therefore, in consideration of the mutual promises, acknowledgments and
representations herein, the parties agree as follows:
1. EMPLOYMENT AND DUTIES. Xxxxxxx will work exclusively and on a
full-time basis for XXXXX and shall devote his best efforts to accomplishing the
goals and objectives mutually established with XXXXX'x Chief Executive Officer
("CEO"). Xxxxxxx'x primary title shall be Vice President and Chief Legal and
Administrative Officer. Xxxxxxx may also have titles and executive
responsibilities for one or more XXXXX divisions or subsidiaries. Initially, he
will also serve as President of the XXXXX subsidiary, VSM Corporation in Tempe,
Arizona.
2. TERM. Employment under this Agreement shall commence on the
effective date and shall continue for a period of five (5) years, unless earlier
terminated as set forth in Section 5 below. Thereafter, this Agreement shall
automatically renew for additional three (3)-year terms unless either party
gives the other written notice of non-renewal at least one (1) year prior to the
expiration of the initial term or any renewal term.
3. COMPENSATION.
(a) BASE SALARY. XXXXX agrees to pay Xxxxxxx a base salary, before
deducting all applicable withholdings, at the rate of $135,000 per year, which
shall be payable in accordance with XXXXX'x standard payroll policies as they
may be revised from time to time. XXXXX shall consider increases in the annual
rate of pay to be effective on Xxxxxxx'x anniversary date of each year.
(b) INCENTIVE BONUS. Xxxxxxx shall be entitled to participate in a
bonus plan for XXXXX Executives. By meeting specific objectives established with
the CEO, Xxxxxxx may earn, in addition to his base salary, an incentive bonus of
up to 40% of Xxxxxxx'x base salary per year based one-half on Xxxxxxx'x
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individual performance (as mutually agreed upon with the CEO) and one half on
the Executive staff's achieving its planned and budgeted operating income goals
for the company. This incentive bonus will be paid on an annual basis not later
than the end of the third fiscal month of each following fiscal year.
(c) AUTO ALLOWANCE. Xxxxxxx is entitled to an automobile allowance of
$650 per month (after withholding), paid on the last day of the month as a
payroll item. Payment of Auto Allowance shall begin on condition of cash
availability.
4. BENEFITS. In addition to the compensation described above, while
Xxxxxxx is employed, XXXXX shall provide Xxxxxxx the benefits described in this
section. All benefits shall terminate upon expiration or termination of this
Agreement and unused benefits shall have no cash value and shall not be
compensated to Xxxxxxx upon termination or expiration of this agreement.
(a) HEALTH AND MEDICAL INSURANCE. XXXXX shall pay for and provide
Xxxxxxx and his family with the same type of health, medical, dental and vision
insurance as is provided from time to time to all of XXXXX'x Founder Executives.
(b) LIFE AND DISABILITY INSURANCE. XXXXX will purchase a term life
insurance policy (with aviation riders) for Xxxxxxx in an amount equal to three
(3) times Xxxxxxx'x annual income provided Xxxxxxx meets all the usual and
customary qualifying criteria established by Xxxxxxx'x life insurance provider.
In addition to any disability income available from the Arizona Worker's
Compensation Fund, XXXXX shall also purchase a long-term disability insurance
policy for Xxxxxxx that will provide a disability benefit to Xxxxxxx equal to
one-half of Xxxxxxx'x annual income. Xxxxxxx shall be subject to all exclusions,
limitations and restrictions contained in the life and disability policies
provided and XXXXX shall not be a guarantor of any benefits available under
these policies.
(c) PAID TIME OFF. Xxxxxxx shall have three weeks annual vacation. If
Xxxxxxx is unable, due to the demands of his position, take vacation, the
vacation shall accrue into the next year. Xxxxxxx may accrue unused vacation up
to 27 weeks. Additional time off for illness or personal business may be taken
up to two weeks without the approval of the CEO. Personal business and illness
time off shall not accrue from year to year.
(d) EXPENSE REIMBURSEMENT. XXXXX shall, upon receipt of appropriate
documentation, reimburse Xxxxxxx for his reasonable travel, lodging and other
ordinary and necessary business expenses consistent with XXXXX'x policies as in
effect from time to time.
(e) 401k PROGRAM. Xxxxxxx will be eligible to participate in XXXXX'x
401K retirement program under the same terms as those applicable to all XXXXX
Executives.
5. TERMINATION. XXXXX may terminate this Agreement at any time in the
manner provided herein. Xxxxxxx may terminate this Agreement at any time upon
delivery of thirty days' written notice. Termination of this Agreement shall
terminate completely Xxxxxxx'x employment with XXXXX.
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(a) NOTICE OF NON-RENEWAL. Notice of non-renewal shall be given in
writing at least one-year prior to expiration of the then current term, in which
case, this Agreement shall not be automatically renewed and shall terminate upon
expiration of the then current term. Upon termination under this term, Xxxxxxx
shall receive one year's severance pay and other benefits upon termination.
(b) FOR CAUSE. XXXXX may terminate this Agreement for cause upon
written notice to Xxxxxxx stating the facts constituting such cause. If Xxxxxxx
is terminated for cause, XXXXX shall be obligated to pay Xxxxxxx'x base salary
at the current rate due him through the date of termination. For purposes of
this section, "cause" shall include: (1) neglect of duties as established by
mutual consent (2) the appropriation or attempted appropriation of a material
business opportunity of XXXXX, including attempting to secure or securing any
personal profit in connection with any transaction entered into on behalf of
XXXXX; (3) the misappropriation or attempted misappropriation of any of XXXXX'x
funds or property; (4) the conviction of, the indictment for (or its procedural
equivalent), or the entering of a guilty plea or plea of no contest with respect
to, a felony, or any other crime with respect to which imprisonment is a
possible punishment.
(c) WITHOUT CAUSE. XXXXX may terminate this Agreement at any time
without cause, by giving 120 days' written notice to Xxxxxxx. Within seventy-two
hours of termination without cause, XXXXX shall pay to Xxxxxxx the base salary
due him through the date of termination plus the amount remaining under the term
of this agreement plus an additional three years' salary. XXXXX shall provide
paid medical insurance for Xxxxxxx and his family and other benefits for a
period of three (3) years after termination without cause. If Xxxxxxx is
terminated without cause, XXXXX will also vest all non-vested options and shares
in the company due Xxxxxxx and Xxxxxxx'x shares and options shall have
"piggyback" registration rights in any subsequent public offering for a period
of ten (10) years
(d) DISABILITY. If during the term of this Agreement, Xxxxxxx fails
to perform his duties hereunder because of illness or other incapacity for a
period of 300 consecutive days, XXXXX shall have the right to terminate this
Agreement without further obligation hereunder except for any amounts payable
pursuant to disability plans generally applicable to XXXXX'x Executives.
(e) DEATH. If Xxxxxxx dies during the term of this Agreement, this
Agreement shall terminate immediately, and Xxxxxxx'x beneficiaries shall be
entitled to receive the base salary and benefits due Xxxxxxx through the term of
the agreement, and any other death benefits generally applicable to Executives.
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(f) ACQUISITION, MERGER OR TAKEOVER. In the event that XXXXX is
acquired, merged or taken over by another company, Xxxxxxx'x stock and options
shall immediately vest and this agreement shall automatically renew for five
years.
6. NONDISCLOSURE OF PROPRIETARY INFORMATION. XXXXX, including in part
Xxxxxxx'x direction and leadership, invents, develops, manufactures and markets
processes and products that involve experimental or inventive work. XXXXX'x
success depends upon the protection of these processes and products by patent or
by secrecy. Xxxxxxx will substantially contribute to and have access to much of
XXXXX'x "Proprietary Information." It is mutually agreed that XXXXX and Xxxxxxx
will keep such information secret:
(a) "PROPRIETARY INFORMATION" SHALL MEAN: (i) any and all methods,
inventions, improvements, information, data or discoveries, whether or not
patentable, that are secret, proprietary, confidential or generally undisclosed,
(including information originated or provided by Xxxxxxx) in any area of
knowledge, including information concerning trade secrets, processes, software,
products, patents, inventions, formulae, apparatus, techniques, technical data,
improvements, specifications, servicing, attributes and relative attributes
relating to any of XXXXX'x equipment, devices, processes or products; and (ii)
the identities of XXXXX'x customers and potential customers ("Customers")
including Customers Xxxxxxx successfully cultivates or maintains during his
Engagement using XXXXX'x products, name or infrastructure; the identities of
contact persons at Customers; the preferences, likes, dislikes and technical and
other requirements of Customers and contact persons with respect to product
types, pricing, sales calls, timing, sales terms, rental terms, lease, terms,
service plans, and other marketing terms and techniques; XXXXX'x business
methods, practices, strategies, forecasts, know-how, pricing, and marketing
plans and techniques; the identity of key accounts; the identity of potential
key accounts; and the identities of XXXXX'x key customer representatives and
Executives. Proprietary Information shall not be deemed to include (i)
information that was known to Xxxxxxx on a non-confidential basis prior to the
Engagement with XXXXX of this Agreement or (ii) information that is or hereafter
becomes known to the general public without a breach or fault on the part of
Xxxxxxx.
(b) Xxxxxxx acknowledges that XXXXX has exclusive property rights to
certain Proprietary Information and Xxxxxxx hereby assigns all rights he might
possess in certain Proprietary Information to XXXXX. Except as required in the
performance of the duties of his employment with XXXXX, Xxxxxxx will not at any
time during or after the term of his Engagement, without the prior written
consent of XXXXX, directly or indirectly use, communicate, disclose,
disseminate, lecture upon, publish articles or otherwise put in the public
domain, any Proprietary Information or any other information of a secret,
proprietary, confidential or general undisclosed nature relating to XXXXX, its
products, Customers, processes or services, including information relating to
testing, research, development, manufacturing, marketing or selling.
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(c) All documents, records, notebooks, notes, memoranda, data bases,
and similar repositories containing Proprietary Information made or compiled by
Xxxxxxx at any time during his term of employment, including any and all copies
thereof, are and shall be the property of XXXXX, shall be held by him in trust
solely for the benefit of XXXXX, and shall be delivered to XXXXX by him on the
termination of his employment or at any other time upon the request of XXXXX.
(d) Xxxxxxx agrees to certify in writing at or before final
termination of the employment that Xxxxxxx no longer has in Xxxxxxx'x
possession, custody or control any copies of any business documents generated at
or relating to XXXXX nor XXXXX'x Proprietary Information, whether in hard copy,
on a computer's hard drive, on disks or in any other form or media.
(e) All pertinent information regarding XXXXX'x business disclosed
to, learned by or developed by Xxxxxxx during the course of the employment shall
be presumed to be Proprietary Information.
(f) Xxxxxxx agrees to provide notification, at the start of any new
engagement or employment, to all subsequent Employers or contracting parties who
are involved in any way in the semiconductor industry or are otherwise XXXXX'x
competitors, of the terms and conditions of this Agreement, along with a copy of
this Agreement.
7. INVENTIONS.
(a) For purposes of this section, the term "Inventions" shall mean
discoveries, concepts, and ideas, whether patentable or not, including
improvements, know-how, data, processes, methods, formulae, and techniques,
concerning XXXXX activities, business and products that Xxxxxxx makes, discovers
or conceives either solely or jointly with others during employment by XXXXX
and, if based on or related to Proprietary Information, at any time after
termination of such employment. All Inventions shall be solely the property of
XXXXX and Xxxxxxx agrees to perform the requirements of this Section with
respect thereto without the payment by XXXXX of any royalty or any consideration
other than as provided in this Agreement.
(b) Xxxxxxx shall apply, at XXXXX'x request, support and expense, for
United States and foreign letters patent in Xxxxxxx'x name (or jointly if the
patent has several authors).
(c) Xxxxxxx hereby assigns to XXXXX all rights to Inventions, and to
applications for United States and/or foreign letters patent and to United
States and/or foreign letters patent granted upon Inventions generated under
this agreement and during the term of Xxxxxxx'x employment.
(d) Xxxxxxx shall acknowledge and deliver promptly to XXXXX without
charge to XXXXX but at its expense such written instruments (including
applications and assignments) and do such other acts, such as giving testimony
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in support of Xxxxxxx'x inventorship, as may be necessary in the opinion of
XXXXX to obtain, maintain, extend, reissue and enforce United States and/or
foreign letters patent relating to the Inventions and to vest the entire right
and title thereto in XXXXX or its nominee.
(e) Xxxxxxx'x obligation to assist XXXXX in obtaining and enforcing
patents for Inventions in any and all countries shall continue beyond employment
but XXXXX shall compensate Xxxxxxx at a reasonable rate for time actually spent
at XXXXX'x request on such assistance. If XXXXX is unable for any reason
whatsoever to secure Xxxxxxx'x signature to any lawful and necessary document
required to apply for or execute any patent application with respect to any
Inventions, including renewals, extensions, continuations, division or
continuations in part thereof, Xxxxxxx hereby irrevocably designates and
appoints XXXXX and its duly authorized officers and agents, as his agents and
attorneys-in-fact to act for and in his behalf and instead of Xxxxxxx, to
execute and file any application and to do all other lawful permitted acts to
further the prosecution and issuance of patents with the same legal force and
effect as if executed by Xxxxxxx.
(f) As a matter of record Xxxxxxx has identified on Exhibit A
attached hereto all inventions or improvements relevant to the activity of XXXXX
which have been made or conceived or first reduced to practice by Xxxxxxx alone
or jointly with others prior to his Engagement by XXXXX, that he desires to
remove from the operation of this and Xxxxxxx covenants that such list is
complete. If there is no such list or if no Exhibit A is attached, Xxxxxxx
represents that he has made no such inventions and improvements at the time of
signing this Agreement.
8. NON-SOLICITATION OF CUSTOMERS OR EMPLOYEES OF XXXXX.
(a) For a period of one year after termination of this Agreement,
Xxxxxxx agrees not to solicit or call on any third party or entity, any customer
or potential customer of XXXXX whom Xxxxxxx solicited or called on during the
one year period immediately prior to the termination of his employment, or such
customers or potential customers with which he became acquainted or of which he
learned during his last year of employment unless the products or service
represented do not compete with any of the products or services manufactured,
assembled, distributed, offered or sold by XXXXX.
(b) During the term of this Agreement and for a period of one year
after termination this Agreement, Xxxxxxx will not solicit any of XXXXX'x
Employees for a competing business or otherwise induce or attempt to induce such
Employees to terminate their employment with XXXXX.
9. EXCLUSIVE ENGAGEMENT. During the period of this Agreement, Xxxxxxx
shall not, without the Board's express written consent, engage in any
employment, consulting activity or business other than for XXXXX. Activity as a
passive investor in or outside director for another business enterprise shall
not be considered a violation of this section for so long as such business
enterprise is not competing or conducting business with XXXXX and so long as
such activities do not adversely impact the performance of Xxxxxxx'x duties to
XXXXX.
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10. NON-COMPETE. The parties acknowledge that Xxxxxxx has acquired or
will acquire much knowledge and information concerning XXXXX'x business and
Customers as the result of Xxxxxxx'x status as founder and Executive employee.
The parties further acknowledge that the scope of business in which XXXXX is
engaged is worldwide and very competitive, that such business is one in which
few companies can compete successfully, and that competition by Xxxxxxx in that
business would injure XXXXX severely. Accordingly, Xxxxxxx agrees that during
his employment and for a period of one year following the end of the employment,
Xxxxxxx will not take any of the following actions within 1,500 miles of
Xxxxxxx'x principal office location, or, in the event Xxxxxxx had an assigned
territory, in the territory or territories Xxxxxxx worked in on behalf of XXXXX:
(a) Directly or indirectly, sell or attempt to sell products or
services for or on behalf of any business that manufactures, assembles,
distributes, offers or sells any products or services that compete with any
services or products then manufactured, assembled, distributed, offered or sold
by XXXXX;
(b) Persuade or attempt to persuade any potential customer or client
to which XXXXX has made a proposal or sale, or with which XXXXX has been having
discussions, not to transact business with XXXXX, or instead to transact
business with Xxxxxxx, another person or organization;
(c) Solicit the business of any company that has been a customer or
client of XXXXX at any time during Xxxxxxx'x employment, provided, however, if
Xxxxxxx becomes employed by or represents a business that exclusively sells
products or services that do not compete with products or services then marketed
or intended to be marketed by XXXXX, such contact shall be permissible.
11. COMPLIANCE WITH LAW AND AMENDMENT BY COURT: If there is any
conflict between any provision of this Agreement and any statue, law, regulation
or judicial precedent, the latter shall prevail, but the provisions of this
Agreement thus affected shall be curtailed and limited only to the extent
necessary to bring it within the requirements of the law. If any part of this
Agreement shall be held by a court of proper jurisdiction to be indefinite,
invalid or otherwise unenforceable, the entire Agreement shall not fail on
account thereof, but: (i) the balance of the Agreement shall continue in full
force and effect unless such construction would clearly be contrary to the
intention of the parties or would result in an unconscionable injustice; and
(ii) the court shall amend the Agreement to the extent necessary to make the
Agreement valid and enforceable.
12. FREEDOM FROM ENGAGEMENT RESTRICTIONS. Xxxxxxx represents and
warrants that Xxxxxxx has not entered into any agreement, whether express,
implied, oral, or written, that poses an impediment to Xxxxxxx'x employment by
XXXXX including Xxxxxxx'x compliance with the terms of this Agreement. In
particular, Xxxxxxx is not subject to a preexisting non-competition agreement,
and no restrictions or limitations exist respecting Xxxxxxx'x ability to perform
fully Xxxxxxx'x obligations to XXXXX.
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13. THIRD PARTY TRADE SECRETS. During Xxxxxxx'x employment, Xxxxxxx
agrees not to copy, refer to, or in any way use information that is proprietary
to any third party (including any previous Employers). Xxxxxxx represents and
warrants that he has not improperly taken any documents, listings, hardware,
software, discs, or any other tangible medium that embodies Proprietary
Information from any third party, and that Xxxxxxx does not intend to copy,
refer to, or in any way use information that is proprietary to any third party
in performing Xxxxxxx'x duties for XXXXX.
14. INJUNCTIVE RELIEF. Xxxxxxx acknowledges that a breach of this
Agreement is likely to result in irreparable and unreasonable harm to XXXXX,
that damages caused by a breach would be extremely difficult to calculate, and
that injunctive relief, as well as damages, would be appropriate.
15. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
Xxxxxxx, his heirs, executors, assigns, and administrators and shall inure to
the benefit of XXXXX, its successors, and assigns.
16. WAIVER. No waiver of any of the provisions of this Agreement shall
be deemed to, or shall constitute a waiver of, any other provisions, whether or
not similar, nor shall any waiver constitute a continuing waiver. No waiver
shall be binding unless executed in writing by the party making the waiver.
17. GOVERNING LAW AND VENUE. Arizona law shall govern the construction
and enforcement of this Agreement and the parties agree that any litigation
pertaining to this Agreement shall be in courts located in Maricopa County,
Arizona, and each of the parties consents to the exclusive jurisdiction of such
courts and waives any objection to jurisdiction or venue of such courts.
18. CONSTRUCTION. The language in all parts of this Agreement shall in
all cases be construed as a whole according to its fair meaning and not strictly
for nor against any party. The Section headings contained in this Agreement are
for reference purposes only and will not affect in any way the meaning or
interpretation of this Agreement. All terms used in one number or gender shall
be construed to include any other number or gender as the context may require.
The parties agree that each party has reviewed this Agreement and has had the
opportunity to have counsel review the same and that any rule of construction to
the effect that ambiguities are to be resolved against the drafting party shall
not apply in the interpretation of this Agreement or any amendment or any
exhibits thereof.
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19. NONDELEGABILITY OF XXXXXXX'X RIGHTS AND XXXXX ASSIGNMENT RIGHTS.
The obligations, rights and benefits of Xxxxxxx hereunder are personal and may
not be delegated, assigned or transferred in any manner whatsoever, nor are such
obligations, rights or benefits subject to involuntary alienation, assignment or
transfer. Upon reasonable notice to Xxxxxxx, XXXXX may transfer Xxxxxxx to an
affiliate of XXXXX, which affiliate shall assume the obligations of XXXXX under
this Agreement. This Agreement shall be assigned automatically to any entity
merging with or acquiring XXXXX or its business.
20. SEVERABILITY. In the event any term or provision of this Agreement
is declared by a court of competent jurisdiction to be invalid or unenforceable
for any reason, this Agreement shall remain in full force and effect, and either
(a) the invalid or unenforceable provision shall be modified to the minimum
extent necessary to make it valid and enforceable or (b) if such a modification
is not possible, this Agreement shall be interpreted as if such invalid or
unenforceable provision were not a part hereof.
21. ATTORNEYS' FEES. Except as otherwise provided herein, in the event
any party hereto institutes an action or other proceeding to enforce any rights
arising out of this Agreement, the party prevailing in such action or other
proceeding shall be paid all reasonable costs and attorneys' fees by the
non-prevailing party, such fees to be set by the court and not by a jury and to
be included in any judgment entered in such proceeding.
22. NOTICES. All notices required or permitted hereunder shall be in
writing and shall be deemed duly given upon receipt if either personally
delivered, sent by certified mail, return receipt requested, or sent by a
nationally-recognized overnight courier service, addressed to the parties as
follows:
If to XXXXX: XXXXX, Inc.
Attention: President/Chief Executive Officer
0000 Xxxx 0xx Xxxxxx
Xxxxx, Xxxxxxx 00000
With a copy to: Xxxxxxx & Xxxxx
Attention: Xxxxx X. Xxxxxx
Xxx Xxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
If to Xxxxxxx: Xxxxx X. Xxxxxxx
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxx Xxxxxx, Xxxxxxx 00000
or to such other address as any party may provide to the other in accordance
with this Section.
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23. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof (I.E., Xxxxxxx'x
employment by XXXXX) and supersedes all prior or contemporaneous understandings
or agreements in regard thereto. No modification or addition to this Agreement
shall be valid unless in writing, specifically referring to this Agreement and
signed by all parties.
IN WITNESS WHEREOF, the parties have executed this Agreement.
EMPLOYER: EXECUTIVE:
XXXXX, Inc., Xxxxx X. Xxxxxxx
A Delaware Corporation
/s/ Xxx Xxxxxxx, Jr. /s/ Xxxxx X. Xxxxxxx
------------------------------------- -------------------------------
Xxx Xxxxxxx Jr. Xxxxx X. Xxxxxxx
Its President/Chief Executive Officer Date: 14 June 99
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Exhibit A
Xxxxxxx Personal Intellectual Property List
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