EXHIBIT 10.45
[ASYST LOGO]
April 5,2004
ASYST TECHNOLOGIES, INC.
CHANGE-IN-CONTROL AGREEMENT
THIS CHANGE-IN-CONTROL AGREEMENT (this "Agreement"), made and entered into
as of April 5, 2004 and between Asyst Technologies, Inc., a California
corporation ("Asyst"), and Xxxxxx Xxxxxxx, Xx. (the "Executive").
WHEREAS, Asyst considers it essential to its best interests to xxxxxx the
continued employment of key management personnel and recognizes the distraction
and disruption that the possibility of a Change in Control (as defined in
Section 1(e) below) may raise to the detriment of Asyst and its stockholders;
and
WHEREAS, Asyst has determined to take appropriate steps to reinforce and
encourage the continued attention and dedication of key management personnel to
their assigned duties in the face of a possible Change in Control;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, Asyst and the Executive hereby agree as follows:
1. DEFINITIONS.
(a) "BASE SALARY" shall mean the annual salary of the Executive at
the time of termination of his employment within the application of this
Agreement.
(b) "BENEFICIARY" shall mean (i) the person or persons named by the
Executive, by notice to Asyst, to receive any compensation or benefit payable
under this Agreement or (ii) in the event of his death, if no such person is
named and survives the Executive, his estate.
(c) "BOARD" shall mean the Board of Directors of Asyst.
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(d) "CAUSE" shall mean:
(i) the Executive's conviction in a court of law of, or guilty
plea or no contest plea to, a felony charge;
(ii) willful, substantial and continued failure by the
Executive to perform the duties of his position after receiving notice of the
same;
(iii) willful engagement by the Executive in conduct that is
demonstrably materially and financially injurious to Asyst; or
(iv) gross negligence resulting in material economic harm to
Asyst.
(e) "CHANGE IN CONTROL" shall mean the occurrence of any of the
following:
(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 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 of this Agreement 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 is in connection with an actual or
threatened proxy contest (relating to the election of directors to the Board));
or
(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
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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 the stock of the resulting corporation, who did not own such stock
immediately before the Business Combination.
(f) "DISABILITY" shall mean the illness or other mental or physical
disability of the Executive, as determined by a physician acceptable to Asyst
and the Executive, resulting in his failure (i) to perform substantially the
material duties of his position 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;
(g) "GOOD REASON" shall mean, without the Executive's prior written
consent or his acquiescence:
(i) assignment to the Executive of duties incompatible with
his position, failure to maintain him in this position and its reporting
relationship or a substantial diminution in the nature of his authority or
responsibilities;
(ii) reduction in his then current Base Salary or in the bonus
or incentive compensation opportunities or benefits coverage available during
the term of this Agreement, except pursuant to an across-the-board reduction
similarly affecting all senior executives of Asyst;
(iii) termination of the Executive's employment, for any
reason other than Cause, death, Disability or voluntary termination, within two
years following a Change in Control;
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(iv) within two years following a Change in Control,
relocation of the Executive's principal place of business to a location more
than 30 miles from the location of such office on the date of this Agreement; or
(v) Asyst's failure to pay the Executive any material amounts
otherwise vested and due him hereunder or under any plan, program or policy of
Asyst.
2. TERM OF AGREEMENT.
This Agreement shall be effective immediately upon its execution by
Asyst and the Executive (the "Effective Date") and shall remain in effect until
the earliest to occur of (a) termination of the Executive's employment with
Asyst following a Change in Control (i) by reason of death or Disability, (ii)
by Asyst for Cause or (iii) by the Executive other than for Good Reason; (b) two
years after the date of a Change in Control; or (c) two years after the
Effective Date, provided that a Change in Control has not occurred within such
two-year period.
3. ENTITLEMENT UPON TERMINATION BY ASYST WITHOUT CAUSE OR BY THE EXECUTIVE
FOR GOOD REASON WITHIN TWO YEARS FOLLOWING A CHANGE IN CONTROL.
In the event of termination of the Executive's employment within two years
following a Change in Control (a) by Asyst without Cause or (b) by the Executive
for Good Reason, he shall be entitled to the following:
(a) GENERAL ENTITLEMENT:
(i) his Base Salary through the date of termination;
(ii) payment in lieu of any unused vacation, in accordance
with Asyst's vacation policy and applicable laws;
(iii) any annual or discretionary bonus earned but not yet
paid to him for any calendar year prior to the year in which his termination
occurs;
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(iv) any compensation under any deferred compensation plan of
Asyst or deferred compensation agreement with Asyst then in effect;
(v) any other compensation or benefits, including without
limitation any benefits under long-term incentive compensation plans, any
benefits under equity grants and awards and employee benefits under plans that
have vested through the date of termination or to which he may then be entitled
in accordance with the applicable terms of each grant, award or plan; and
(vi) reimbursement of any business expenses incurred by the
Executive through the date of termination but not yet paid to him.
(b) CHANGE-IN-CONTROL ENTITLEMENT:
(i) two times the sum of (A) his Base Salary, at the rate in
effect immediately before such termination, and (B) the average of his annual
bonuses for the three years prior to the year in which termination occurs, such
amount to be paid to the Executive in a cash lump sum within 30 business days
after termination;
(ii) continuing coverage under the life, disability, accident,
health, dental and vision insurance programs covering senior executives of Asyst
generally, as from time to time in effect, to the extent permitted under COBRA
coverage or the terms of other such programs for the two-year period from such
termination or, if earlier, until he becomes eligible for substantially similar
coverage under the employee welfare plans of a new employer; and
(iii) immediate and unconditional vesting of any unvested
stock options and stock grants previously awarded to the Executive and, for the
one-year period following termination, the right to exercise any stock options
held by him.
(c) DETERMINATION OF AMOUNT OF PAYMENT. In the event that any
payments or other benefits received or to be received by the Executive pursuant
to this Agreement
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("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 3(c), be subject to the excise tax imposed by Section
4999 of the Code (the "Excise Tax"), then, in accordance with this Section 3(c),
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 the Executive's receipt of Payments
that are greater than the net amount that he would receive hereunder (after
application of the Excise Tax) if no reduction were made.
The amount of required reduction, if any, shall be the smallest
amount so that the Executive's net proceeds with respect to the Payments (after
taking into account payment of any Excise Tax) shall be maximized, as determined
by him. The Executive's determination of any required reduction pursuant to this
Section 3(c) shall be conclusive and binding upon Asyst. Asyst shall reduce
Payments in accordance with this Section 3(c) only upon written notice from the
Executive 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 the following paragraph shall apply.
Notwithstanding any reduction described in the immediately preceding
paragraph (or in the absence of any such reduction), if the IRS determines that
the Executive is liable for the Excise Tax as a result of the receipt of
Payments, then he 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 the Executive's 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
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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 paragraph,
the Executive shall pay the Excise Tax.
(d) RELEASE. Asyst may require, as a condition of receiving the
foregoing Change-in-Control payment under subsection (b) or (c) above, that the
Executive execute a general release substantially in the form annexed hereto as
Exhibit A, which upon execution shall be deemed incorporated herein by reference
as a material part of this Agreement.
4. NO MITIGATION.
Asyst agrees that if the Executive's employment with Asyst
terminates, he shall not be obligated to seek other employment or to attempt to
reduce any amount payable to him under this Agreement. Further, no amount of any
payment hereunder shall be reduced by any compensation earned by the Executive
as the result of employment by a subsequent employer or otherwise.
5. NOTICES.
Any notice or other communication required or permitted under this
Agreement shall be in writing and shall be deemed to have been duly given when
delivered by hand, electronic transmission (with a copy following by hand or by
overnight courier), by registered or certified mail, postage prepaid, return
receipt requested or by overnight courier addressed to the other party. All
notices shall be addressed as follows, or to such other address or addresses as
may be substituted by notice in writing:
To Asyst: To the Executive:
Asyst Technologies, Inc Xx. Xxxxxx Xxxxxxx, Xx.
Xxxxx Xxxxxxxx 48761 Kato Road
VP, General Counsel & Secretary Xxxxxxx, XX 00000
00000 Xxxx Xxxx
Xxxxxxx, XX 00000
Fax:(000)000-0000
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6. GENERAL PROVISIONS.
(a) AMENDMENTS. No provision of this Agreement may be amended,
modified or waived unless such amendment, modification or waiver shall be agreed
to in writing and signed by the Executive and by the Compensation Committee of
the Board.
(b) SEVERABILITY. If any provision of this Agreement shall be
determined to be invalid or unenforceable by a court of competent jurisdiction,
the remaining provisions of this Agreement shall be unaffected thereby and shall
remain in full force and effect to the fullest extent permitted by law.
(c) PARTIAL INVALIDITY. If any provision of this Agreement is held
by a court of competent jurisdiction to be invalid, void or unenforceable, the
remaining provisions shall nevertheless continue in full force without being
impaired or invalidated in any way.
(d) GOVERNING LAW. This Agreement shall be construed, interpreted
and governed in accordance with the laws of the State of California, without
reference to rules relating to conflicts of law.
(e) INCONSISTENCIES. The terms of this Agreement supersede any
inconsistent prior promises, policies, representations, understandings,
arrangements or agreements between the parties, whether by employment contract
or otherwise.
(f) SURVIVAL. Notwithstanding the termination of the term of this
Agreement, the duties and obligations of Asyst, if any, following the
termination of the Executive's employment following a Change in Control shall
survive indefinitely.
(g) WITHHOLDING. Asyst may deduct and withhold from any payments
hereunder the amount that Asyst, in its reasonable judgment, is required to
deduct and withhold for any federal, state or local income or employment taxes.
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(h) NO OTHER COMPENSATION; EMPLOYEE AT WILL. Except as provided in
Section 3 above, no amount or benefit shall be payable to the Executive under
this Agreement in respect of termination of his employment within two years
following a Change in Control. This Agreement shall not be construed as creating
an express or implied contract of employment and, except as otherwise agreed in
writing between the Executive and Asyst, the Executive is and shall remain an
"employee at will" and shall not have any right to be retained in the employ of
Asyst.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the day and year first above written.
ASYST TECHNOLOGIES, INC.
Dated: April 5, 2004 By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Its: VP, General Counsel & Secretary
EXECUTIVE
Dated: Apr. 10, 2004 /s/ Xxxxxx X. Xxxxxxx Xx.
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Xxxxxx Xxxxxxx, Xx.
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