Exhibit 10.12
THIS AGREEMENT, made and entered into as of April 1, 1999, between
Asyst Technologies, Inc., a California corporation, with its principal office
located at 00000 Xxxx Xxxx, Xxxxxxx, XX 00000 (together with its successors and
assigns permitted under this Agreement) ("Asyst"), and Xxxxx Xxxxxx ("Xxxxxx").
W I T N E S S E T H
WHEREAS, Asyst has determined that it is in the best interests of
Asyst and its stockholders to enter into an employment and compensation
agreement setting forth the obligations and duties of both Asyst and Xxxxxx
(this "Agreement"); and
WHEREAS, Asyst wishes to assure itself of the services of Xxxxxx for
the period hereinafter provided, and Xxxxxx is willing to be employed by Asyst
for said period, upon the terms and conditions provided in this Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the receipt of
which is mutually acknowledged, Asyst and Xxxxxx (individually a "Party" and
together the "Parties") agree as follows:
1. DEFINITIONS.
(a) "Base Salary" shall mean the annual salary provided for in Section
3 below, as adjusted from time to time by the Board.
(b) "Beneficiary" shall mean the person or persons named by Xxxxxx
pursuant to Section 22 below or, in the event that no such person is named and
survives Xxxxxx, his estate.
(c) "Board" shall mean the Board of Directors of Asyst.
(d) "Cause" shall mean:
(i) Xxxxxx'x conviction of a felony,
(ii) repeated and willful actions by Xxxxxx that are committed
in bad faith and that result in material and demonstrable economic harm to
Asyst, or
(iii) a material breach by Xxxxxx of the provisions of Sections
9 or 10 below to the demonstrable and material detriment of Asyst; provided that
in no event shall Xxxxxx'x failure to perform the duties associated with his
position caused by his mental or physical disability constitute Cause for his
termination.
(e) "Change in Control" shall mean:
(i) an acquisition by an individual, an entity or a group
(excluding Asyst or an employee benefit plan of Asyst or a corporation
controlled by Asyst's stockholders) of 30 percent or more of Asyst's common
stock or voting securities;
(ii) a change in the composition of the Board occurring within
a rolling two-year period, as a result of which fewer than a majority of the
directors are Incumbent Directors ("Incumbent Directors" shall mean directors
who either (x) are members of the Board as of the date first above written or
(y) are elected, or nominated for election, to the Board with the affirmative
votes of at least a majority of the Incumbent Directors at the time of such
election or nomination, but shall not include an individual not otherwise an
Incumbent Director whose election or nomination
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is in connection with an actual or threatened proxy contest relating to the
election of directors to the Board;
(iii) consummation of a complete liquidation or dissolution of
Asyst or a merger, consolidation or sale of all or substantially all of Asyst's
assets (collectively, a "Business Combination") other than a Business
Combination (x) in which the stockholders of Asyst receive 50 percent or more of
the stock resulting from the Business Combination, (y) at least a majority of
the board of directors of the resulting corporation were Incumbent Directors and
(z) after which no individual, entity or group (excluding any corporation
resulting from the Business Combination or any employee benefit plan of such
corporation or of Asyst) owns 30 percent or more of stock of the resulting
corporation, who did not own such stock immediately before the Business
Combination.
(f) "Compensation Committee" or "Committee" shall mean the
Compensation Committee of the Board.
(g) "Disability" shall mean the illness or other mental or physical
disability of Xxxxxx, as determined by a physician acceptable to Asyst and
Xxxxxx, resulting in his failure (i) to perform substantially his material
duties under this Agreement for a period of six or more consecutive months or an
aggregate of nine months in any 12-month period and (ii) to return to the
performance of his duties within 30 days after receiving written notice of
termination.
(h) "Fiscal Year" shall mean the 12-month period beginning on April 1
and ending on the next subsequent March 31.
(i) "Good Reason" shall mean, without Xxxxxx'x prior written consent
or his acquiescence:
(i) reduction in his then current Base Salary,
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(ii) Asyst's failure to pay Xxxxxx any amounts otherwise
vested and due hereunder or under any plan or policy of Asyst,
(iii) diminution of his titles, position, authorities or
responsibilities, including not serving on the Board,
(iv) assignment to Xxxxxx of duties incompatible with his
position of Chief Executive Officer,
(v) diminution, reduction or other adverse change in the
bonus or incentive compensation opportunities available to Xxxxxx (with respect
to the level of bonus or incentive compensation opportunities, the applicable
performance criteria and otherwise the manner in which bonuses and incentive
compensation are determined, in the aggregate), from those available as of the
date hereof,
(vi) termination of Xxxxxx'x employment, for any reason other
than Cause, death, Disability or voluntary termination, within six months after
a Change in Control,
(vii) imposition of a requirement that Xxxxxx report other than
directly to the full Board,
(viii) a material breach of the Agreement by Asyst that is not
cured within 10 business days after written notification by Xxxxxx of such
breach,
(ix) notification of Xxxxxx by Asyst that the Term will not be
renewed, or
(x) relocation of Asyst's principal place of business to a
location more than 30 miles from the location first above described.
(j) "Spouse" shall mean, during the Term of Employment, the woman who
as of any relevant date is legally married to Xxxxxx.
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(k) "Term of Employment" or "Term" shall mean the period specified in
Section 2(b) below.
2. TERM OF EMPLOYMENT, POSITIONS AND DUTIES.
(a) Employment of Xxxxxx. Asyst hereby employs Xxxxxx, and Xxxxxx
hereby accepts employment with Asyst, in the positions and with the duties and
responsibilities set forth below and upon such other terms and conditions as are
hereinafter stated.
(b) Term of Employment. The Term of Employment shall commence on the
date first above written and shall terminate on the third anniversary of such
date, provided that at the end of each day after the date hereof, unless either
Party gives written notice to the other that it or he does not want the Term to
continue, the Term shall thereafter automatically extend for an additional
period of one day (with the result that, in the absence of such notice, the Term
shall be three years in length), unless sooner terminated as provided by Section
8 below.
(c) Title and Duties.
(i) Until the date of termination of his employment
hereunder, Xxxxxx shall be employed as Chief Executive Officer, reporting to the
full Board. In his capacity as Chief Executive Officer, Xxxxxx shall have the
customary powers, responsibilities and authorities of chief executive officers
of corporations of the size, type and nature of Asyst, including without
limitation complete authority to hire and fire the other employees of Asyst.
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(ii) During the Term, Asyst shall use its best efforts to
secure the election of Xxxxxx to the Board and to the chairmanship thereof.
During the Term, if the Board forms an executive or similar committee, Xxxxxx
shall serve thereon.
(d) Time and Effort. Xxxxxx agrees to devote his best efforts and
abilities, and such of his business time and attention as he deems necessary, to
the affairs of Asyst in order to carry out his duties and responsibilities under
this Agreement, except that nothing shall preclude Xxxxxx from (i) serving on
the boards of a reasonable number of trade associations, charitable
organizations and/or businesses not in competition with Asyst, (ii) engaging in
charitable activities and community affairs and (iii) managing his personal
investments and affairs; provided, however, that, such activities do not
materially interfere with the proper performance of his duties and
responsibilities specified in Section 2(c) above.
3. BASE SALARY.
Xxxxxx shall receive from Asyst an initial Base Salary, payable in
accordance with the regular payroll practices of Asyst, of a minimum of
$325,000. During the Term, the Committee shall review the Base Salary for
increase no less often than annually as of the beginning of each Fiscal Year,
beginning April 1, 1999. Any amount to which Xxxxxx'x Base Salary is increased
shall not thereafter be reduced, and the term "Base Salary" as used in this
Agreement shall refer to his Base Salary as so increased.
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4. BONUSES.
(a) Annual Bonus. Xxxxxx shall be eligible to receive an annual bonus
for each Fiscal Year or portion thereof during the Term in accordance with
Asyst's Executive Bonus Plan, provided that (i) award opportunities (with
respect to their level, applicable performance criteria and the manner in which
bonuses are determined) in the aggregate shall not be less than those in effect
as of the date hereof and (ii) any performance targets thereunder established
after such date shall be reasonable.
(b) Xxxxxx shall be entitled to participate in Asyst's Long-Term
Incentive Compensation Plan (the "LTIP"), a copy of which is attached hereto as
Attachment I, and receive awards thereunder in accordance with its terms,
provided that (i) award opportunities (with respect to their level, applicable
performance criteria and the manner in which LTIP awards are determined) in the
aggregate shall not be less than those in effect as of the date hereof and (ii)
any performance targets thereunder established after such date shall be
reasonable.
5. EQUITY OPPORTUNITY.
(a) (a) General. Throughout the Term, Xxxxxx shall be eligible to
receive grants of options to purchase shares of Asyst's stock and awards of
shares of Asyst's stock, either or both as determined by the Compensation
Committee, under and in accordance with the terms of applicable plans of Asyst
and related option agreements.
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(b) Registration Rights. Asyst expressly acknowledges that Xxxxxx has
been granted options under Asyst's 1993 Stock Option Plan. Asyst shall use its
best efforts to file, and cause to be effective under the Securities Act of
1933, as amended, a registration statement on Form S-8 (or a comparable form)
with respect to the shares (or other units) of (i) equity issued as provided for
or referenced by this Section 5, (ii) if applicable, equity issuable upon
exercise of rights so provided for or referenced and (iii) any other equity
awarded or granted to Xxxxxx under any of Asyst's other incentive, stock option
or compensation plans. Asyst will also ensure that each grant provided for under
this Section 5 or such other plans shall meet the requirements of Rule 16b-3 for
exception under the Securities Exchange Act of 1934, as amended.
6. EXPENSE REIMBURSEMENT.
During the Term, Xxxxxx shall be entitled to prompt reimbursement by
Asyst for all reasonable out-of-pocket expenses incurred by him in performing
services under this Agreement, upon his submission of any accounts and records
as may be reasonably required by Asyst.
7. EMPLOYEE BENEFIT PLANS.
(a) General. Xxxxxx shall be eligible to participate in all of
Asyst's life insurance, short- and long-term disability, health insurance,
savings/retirement, stock option and other equity-based plans and similar
benefits that may be available to other Asyst senior executives generally,
including any plans that supplement the foregoing types of plans, whether funded
or unfunded.
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(b) Disability Benefit.
(i) During the Term Asyst shall provide Xxxxxx with long-term
disability insurance through a combination of group plans sponsored by Asyst and
individual policies obtained by Asyst for the benefit of Xxxxxx.
(ii) To the extent that individual policies are obtained for
Xxxxxx, he shall be the owner of such policies and shall pay the premiums
thereon. Asyst shall reimburse Xxxxxx for any premiums that he pays.
8. TERMINATION OF EMPLOYMENT.
The Parties may terminate this Agreement by mutual agreement at any
time.
(a) General. Notwithstanding anything to the contrary herein, in the
event of termination of Xxxxxx'x employment under this Agreement, he, his
dependents or his Beneficiary, as may be the case, shall be entitled to receive
(in addition to payments and benefits under Sections 8(b) through 8(g) below, as
applicable):
(i) any Base Salary or other benefits earned and accrued
under this Agreement prior to the date of termination,
(ii) benefits under the equity grants and awards described in
Section 5 above and employee benefits plans described in Section 7 above, in
accordance with the applicable terms and conditions of each grant, award or
plan, and
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(iii) reimbursement in accordance with this Agreement of any
business expenses incurred by Xxxxxx but not yet paid to him.
(b) Termination Due to Death. In the event that Xxxxxx'x employment
is terminated due to his death, his Beneficiary shall be entitled to:
(i) Xxxxxx'x Base Salary, at the rate in effect on the date
of his death, through the end of the month in which his death occurs,
(ii) any annual bonus awarded but not yet paid to Xxxxxx, and
(iii) a prorated annual bonus for the year in which his death
occurs.
(c) Termination Due to Disability. In the event of Disability, Asyst
or Xxxxxx may terminate Xxxxxx'x employment. If Xxxxxx'x employment is
terminated due to Disability, he shall be entitled to:
(i) his Base Salary through the date of termination of his
employment,
(ii) any annual bonus awarded but not yet paid to him,
(iii) a prorated annual bonus for the year in which he is
terminated for Disability, and
(iv) long-term disability payments, payable at least monthly,
beginning six months after his termination of employment due to Disability and
continuing until the earliest to occur of (A) termination of his Disability,
(B) his death or (C) his attainment of age 65, in the amount of $2,500 per
month, reduced by any long-term disability payments he receives from any
disability plan sponsored by Asyst or any individual policy obtained by Asyst
for Xxxxxx'x benefit.
(d) Termination by Asyst for Cause. Asyst may terminate Xxxxxx'x
employment hereunder for Cause only upon written notice to Xxxxxx no less than
30 days prior to any intended
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termination, which notice shall specify the grounds for such termination in
reasonable detail; provided that, notwithstanding anything to the contrary in
this Agreement, Asyst may only terminate Xxxxxx for Cause if he shall have
failed to cure the grounds for such termination prior to the intended
termination date. Further, Cause shall in no event be deemed to exist except
upon a finding reflected in a resolution approved by a majority (excluding
Xxxxxx) of the members of the Board (whose finding shall not be binding upon any
court, arbitrator or other decision-maker ruling on this Agreement) at a meeting
of which Xxxxxx shall have been given proper notice and at which Xxxxxx (and his
counsel) shall have a reasonable opportunity to present his case. In the event
that Xxxxxx'x employment is terminated for Cause, he shall only be entitled to:
(i) his Base Salary through the date of termination of his
employment for Cause, and
(ii) any annual bonus awarded but not yet paid to him.
(e) Termination without Cause or by Xxxxxx for Good Reason.
(i) Termination without Cause shall mean termination of
Xxxxxx'x employment other than (A) due to death, Disability, Cause or voluntary
termination or (B) by mutual agreement of Xxxxxx and Asyst. Asyst shall provide
Xxxxxx 30 days' prior written notice of termination by it without Cause.
(ii) In the event of termination of Xxxxxx'x employment
without Cause or of termination by Xxxxxx of his employment for Good Reason, he
shall be entitled to receive, within 30 business days after termination, a lump-
sum cash payment comprising the present value of:
(A) an amount equal to 36 months of his then Base
Salary, plus
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(B) an amount equal to three times:
(1) if the termination occurs in 1998, the prior
year's bonus;
(2) if the termination occurs in 1999, (I) the sum
of (x) two times the prior year's bonus plus (y) the bonus for the year two
years prior to the year of termination, (II) divided by three;
(3) if the termination occurs in 2000 or
thereafter, (I) the sum of (x) three times the prior year's bonus plus (y) two
times the bonus for the year two years prior to the year of termination plus (z)
the bonus earned for the year three years prior to the year of termination, (II)
divided by six.
Present value shall be determined by using the interest
rate in effect for U.S. Treasury issues of three-year duration on the date of
Xxxxxx'x termination of employment.
(iii) In the event of termination of Xxxxxx'x employment
without Cause or of termination by Xxxxxx of his employment for Good Reason, he
shall also be entitled, at no cost to him, to continued participation for 18
months in the medical, and life insurance plans described in Section 7(a) above
in which he is participating at the time of termination, to the extent that any
of these plans provides for such continued participation. Continued
participation in the medical plan shall constitute satisfaction of Asyst's COBRA
obligation.
If Xxxxxx is precluded from continued participation in
any of the above plans, he shall, for the 18 months following either such
termination of employment, be entitled to receive the after-tax economic
equivalent of the benefits provided under the plan in which he is ineligible to
participate. The economic equivalent of any benefit foregone shall be deemed to
be the
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lowest cost that Xxxxxx would incur in obtaining any such equivalent benefit
himself on an individual basis.
(iv) In the event of termination of Xxxxxx'x employment
without Cause or of termination by Xxxxxx of his employment for Good Reason,
Asyst will use its best efforts, promptly and at Xxxxxx'x request, to assist and
enable him to dispose of any shares of Asyst stock that he then owns.
(v) Prior written consent by Xxxxxx to any of the events
described in Section 1(i) above shall be deemed a waiver by Xxxxxx of his right
to terminate for Good Reason under this Section 8(e) solely by reason of the
events set forth in such waiver.
(f) Voluntary Termination by Xxxxxx or Notice that He Does Not Want
the Term to Renew.
(i) Xxxxxx shall have the right, upon 60 days' written notice
to Asyst, voluntarily to terminate his employment without Good Reason, in which
event his entitlements shall be the same as if Asyst had terminated his
employment for Cause, as provided in Section 8(d) above.
(ii) In the event that Xxxxxx notifies Asyst that he does not
want the Term to renew as provided in Section 2(b) above, the Board, at its
option, within 60 days after such notice, may deem it a voluntary termination of
employment by Xxxxxx and, in such event, the provisions of clause (i) above
shall apply.
(g) Change In Control. In the event of termination of Xxxxxx'x
employment within six months following a Change in Control without Cause or for
Good Reason, he shall be entitled to the payments and benefits provided under
clauses (ii), (iii) and (iv) of Section 8(e) in addition to those provided under
Section 8(a).
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9. CONFIDENTIAL INFORMATION.
(a) General.
(i) Xxxxxx understands and hereby acknowledges that as a
result of his employment with Asyst he will necessarily become informed of and
have access to certain valuable and confidential information of Asyst and any of
its subsidiaries, joint ventures and affiliates, including, without limitation,
inventions, trade secrets, technical information, computer software and
programs, know-how and plans ("Confidential Information"), and that any such
Confidential Information, even though it may be developed or otherwise acquired
by Xxxxxx, is the exclusive property of Asyst to be held by him in trust solely
for Asyst's benefit.
(ii) Accordingly, Xxxxxx hereby agrees that, during and
subsequent to the Term, he shall not, and shall not cause others to, use,
reveal, report, publish, transfer or otherwise disclose to any person,
corporation or other entity any Confidential Information without the prior
written consent of Asyst, except to (x) responsible officers and employees of
Asyst or (y) responsible persons who are in a contractual or fiduciary
relationship with Asyst or who need such information for purposes in the
interest of Asyst. Notwithstanding, the foregoing, the prohibitions of this
clause (ii) shall not apply to any Confidential Information that becomes of
general public knowledge other than from Xxxxxx or is required to be divulged by
court order or administrative process.
(b) Return of Documents. Upon termination of his employment with
Asyst for any reason whatsoever, Xxxxxx shall promptly deliver to Asyst all
plans, drawings, manuals, letters, notes, notebooks, reports, computer programs
and copies thereof and all other materials, including without
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limitation those of a secret or confidential nature, relating to Asyst's
business that are then in his possession or control, except that in any event
Xxxxxx may retain his rolodex.
10. NONSOLICITATION.
(a) During Xxxxxx'x employment hereunder and for a period of 12
months thereafter, Xxxxxx shall not:
(i) without prior written authorization of Asyst, solicit any
of its employees to terminate their employment, or otherwise interfere with or
cease their relationship, with Asyst, or
(ii) intentionally and directly divert or take away from
Asyst, or attempt to divert or take away, the business or patronage of any of
the clients, customers, co-venturers, licensees or accounts, if any, of Asyst
that were contacted, solicited or served by Xxxxxx during his employment with
Asyst.
(b) Notwithstanding anything to the contrary in this Section 10, its
provisions shall not apply if (i) Asyst terminates Xxxxxx'x employment without
Cause or (ii) Xxxxxx terminates his employment for Good Reason, each as provided
in Section 8(e) above.
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11. WITHHOLDING TAXES.
All payments to Xxxxxx or his Beneficiary shall be subject to
withholding on account of federal, state and local taxes as required by law
12. NO DUTY TO MITIGATE.
Xxxxxx shall not be required to mitigate damages or the amount of any
payment provided for under this Agreement by seeking other employment or
otherwise, nor will any payments hereunder be subject to offset in the event
Xxxxxx does mitigate.
13. PARACHUTES.
(a) Reductions in Payment. In the event that any payments or other
benefits received or to be received by Xxxxxx pursuant to this Agreement
("Payments") would (i) constitute a "parachute payment" within the meaning of
Section 280G of the Internal Revenue Code of 1986, as amended (the "Code) and
(ii) but for this Section 13, be subject to the excise tax imposed by Section
4999 of the Code (the "Excise Tax"), then, in accordance with this Section 13,
such Payments shall be reduced to the maximum amount that would result in no
portion of the payments being subject to the Excise Tax, but only if and to the
extent that such a reduction would result in Xxxxxx'x receipt of Payments that
are greater than the net amount that Xxxxxx would receive hereunder (after
application of the Excise Tax) if no reduction is made. The amount of required
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reduction, if any, shall be the smallest amount so that Xxxxxx'x net proceeds
with respect to the Payments (after taking into account payment of any Excise
Tax) shall be maximized, as determined by Xxxxxx. Xxxxxx'x determination of any
required reduction pursuant to this Section 13(a) shall be conclusive and
binding upon Asyst. Asyst shall reduce Payments in accordance with this Section
13(a) only upon written notice from Xxxxxx indicating the amount of such
reduction, if any. If the Internal Revenue Service (the "IRS") determines that a
Payment is subject to the Excise Tax, then Section 13(b) shall apply.
(b) Repayment. Notwithstanding any reduction described in Section
13(a) (or in the absence of any such reduction), if the IRS determines that
Xxxxxx is liable for the Excise Tax as a result of the receipt of Payments, then
Xxxxxx shall be obligated to pay back to Asyst, within 30 days after final IRS
determination, an amount of the Payments equal to the "Repayment Amount." The
Repayment Amount shall be the smallest such amount, if any, as shall be required
to be paid to Asyst so that Xxxxxx'x net proceeds with respect to the Payments
(after taking into account the payment of the Excise Tax imposed on such
Payments) shall be maximized. Notwithstanding the foregoing, the Repayment
Amount shall be zero if a Repayment Amount of more than zero would not eliminate
the Excise Tax imposed on the Payments. If the Excise Tax is not eliminated
pursuant to this Section 13(b), Xxxxxx shall pay the Excise Tax.
14. INDEMNIFICATION AND LIABILITY INSURANCE.
Nothing herein is intended to limit Asyst's indemnification of Xxxxxx,
and Asyst shall indemnify him to the fullest extent permitted by applicable law
consistent with Asyst's Certificate
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of Incorporation and By-Laws as in effect at the beginning of the Term, with
respect to any action or failure to act on his part while he is an officer,
director or employee of Asyst or any subsidiary or affiliate thereof. Asyst
shall cause Xxxxxx to be covered at all times by directors' and officers'
liability no less favorable than the directors' and officers' liability
insurance maintained by Asyst on the date hereof in terms of coverage and
amounts. Asyst shall continue to indemnify Xxxxxx as provided above and maintain
such liability insurance coverage for him after the Term has ended for any
claims that may be made against him with respect to his service as a director or
officer of Asyst.
15. EFFECT OF AGREEMENT ON OTHER BENEFITS.
The existence of this Agreement shall not prohibit or restrict
Xxxxxx'x entitlement to participate fully in compensation, employee benefit and
other plans of Asyst in which senior executives are eligible to participate.
16. ASSIGNABILITY; BINDING NATURE.
This Agreement shall be binding upon and inure to the benefit of the
Parties and their respective successors, heirs (in the case of Xxxxxx) and
assigns. No rights or obligations of Asyst under this Agreement may be assigned
or transferred by Asyst except pursuant to (a) a merger or consolidation in
which Asyst is not the continuing entity or (b) sale or liquidation of all or
substantially all of the assets of Asyst, provided that the surviving entity or
assignee or transferee is the successor to all or substantially all of the
assets of Asyst and such surviving entity or assignee
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or transferee assumes the liabilities, obligations and duties of Asyst under
this Agreement, either contractually or as a matter of law.
Asyst further agrees that, in the event of a sale of assets or
liquidation as described in the preceding sentence, it shall use its best
efforts to have such assignee or transferee expressly agree to assume the
liabilities, obligations and duties of Asyst hereunder; provided, however, that
notwithstanding such assumption, Asyst shall remain liable and responsible for
fulfillment of the terms and conditions of this Agreement; and provided,
further, that in no event shall such assignment and assumption of this Agreement
adversely affect Xxxxxx'x rights upon a Change in Control, as provided in
Section 8(g). No rights or obligations of Xxxxxx under this Agreement may be
assigned or transferred by him.
17. REPRESENTATIONS.
The Parties respectively represent and warrant that each is fully
authorized and empowered to enter into this Agreement and that the performance
of its or his obligations, as the case may be, under this Agreement will not
violate any agreement between such Party and any other person, firm or
organization. Asyst represents and warrants that this Agreement has been duly
authorized by all necessary corporate action and is valid, binding and
enforceable in accordance with its terms.
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18. ENTIRE AGREEMENT.
Except to the extent otherwise provided herein, this Agreement
contains the entire understanding and agreement between the Parties concerning
the subject matter hereof and supersedes any prior agreements, whether written
or oral, between the Parties concerning the subject matter hereof.
19. AMENDMENT OR WAIVER.
No provision in this Agreement may be amended unless such amendment is
agreed to in writing and signed by both Xxxxxx and an authorized officer of
Asyst. No waiver by either Party of any breach by the other Party of any
condition or provision contained in this Agreement to be performed by such other
Party shall be deemed a waiver of a similar or dissimilar condition or provision
at the same or any prior or subsequent time. Any waiver must be in writing and
signed by the Party to be charged with the waiver. No delay by either Party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof.
20. SEVERABILITY.
In the event that any provision or portion of this Agreement shall be
determined to be invalid or unenforceable for any reason, in whole or in part,
the remaining provisions of this
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Agreement shall be unaffected thereby and shall remain in full force and effect
to the fullest extent permitted by law.
21. SURVIVAL.
The respective rights and obligations of the Parties under this
Agreement shall survive any termination of Xxxxxx'x employment with Asyst.
22. BENEFICIARIES/REFERENCES.
Xxxxxx shall be entitled to select (and change, to the extent
permitted under any applicable law) a beneficiary or beneficiaries to receive
any compensation or benefit payable under this Agreement following his death by
giving Asyst written notice thereof. In the event of Xxxxxx'x death or of a
judicial determination of his incompetence, reference in this Agreement to
Xxxxxx shall be deemed to refer, as appropriate, to his beneficiary, estate or
other legal representative.
23. GOVERNING LAW/JURISDICTION.
This Agreement shall be governed by and construed and interpreted in
accordance with the laws of California, without reference to principles of
conflict of laws.
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24. RESOLUTION OF DISPUTES; CERTAIN OTHER COSTS.
(a) Arbitration. Any disputes arising under or in connection with
this Agreement shall be resolved by arbitration, to be held in San Francisco,
California, in accordance with the commercial rules and procedures of the
American Arbitration Association.
(b) Judgments. The determination of the arbitrator(s) shall be
conclusive and binding on Asyst (or its affiliates, where applicable) and
Xxxxxx, and judgment may be entered on the arbitration award in any court having
jurisdiction.
(c) Costs of Disputes. Asyst shall pay, at least monthly, all costs
and expenses, including attorneys' fees and disbursements, of Xxxxxx in
connection with any proceeding, whether or not instituted by Asyst or Xxxxxx,
relating to any provision of this Agreement, including but not limited to the
interpretation, enforcement or reasonableness thereof; provided, however, that,
if Xxxxxx instituted the proceeding and the judge or other decision-maker
presiding over the proceeding affirmatively finds that he did so in bad faith,
he shall pay his own costs and expenses and, if applicable, return any amounts
theretofore paid to him or on his behalf under this subsection (c).
(d) Certain Other Costs. Asyst shall pay all reasonable costs and
expenses, including attorneys' fees and disbursements and consultants' fees and
disbursements, that Xxxxxx has incurred in connection with the negotiation and
execution of this Agreement.
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25. NOTICES.
Any notice given to either Party shall be in writing and shall be
deemed to have been given when delivered either personally, by fax, by overnight
delivery service (such as Federal Express) or sent by certified or registered
mail, postage prepaid, return receipt requested, duly addressed to the Party
concerned at the address indicated below or to such changed address as the Party
may subsequently give notice of.
If to Asyst or the Board:
Asyst Technologies, Inc.
00000 Xxxx Xxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. XxXxxxxxxx
Senior Vice President
FAX: (000) 000-0000
With a copy to:
If to Xxxxxx:
Xxxxx Xxxxxx, Ph.D.
Asyst Technologies, Inc.
00000 Xxxx Xxxx
Xxxxxxx, XX 00000
23
26. HEADINGS.
The headings of the sections contained in this Agreement are for
convenience only and shall not be deemed to control or affect the meaning or
construction of any provision of this Agreement.
27. COUNTERPARTS.
This Agreement may be executed in counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
Asyst Technologies, Inc.
Attest: /s/ Xxxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxxxx
---------------------- ---------------------------
Xxxxxxx X. Xxxxxx
Chairman, Compensation Committee
/s/ Xxxxx X. Xxxx /s/ Xxxxxxx X. XxXxxxxxxx
---------------------- ---------------------------
Xxxxxxx X. XxXxxxxxxx
Senior Vice President
Witness: /s/ Xxxxx Xxxxxxx /s/ Xxxxx Xxxxxx
---------------------- -------------------------
Xxxxx Xxxxxx
24
