Exhibit (e)
CONSULTING AGREEMENT
CONSULTING AGREEMENT (the "Agreement") dated as of October 10, 1997, by and
between XXXXXXXX SEMICONDUCTOR LABORATORIES, INC., an Arizona corporation (the
"Company") and XXXXXXXX SEMICONDUCTOR INVESTMENTS, INC., an Arizona corporation
("Consultant").
WHEREAS, the Company has entered into that certain Agreement and Plan of
Merger (the "Merger Agreement") dated May 17, 1997 as amended by a First
Amendment thereto dated June 6, 1997 and a Second Amendment thereto dated July
30, 1997 among the Company, XXXXXXXX SEMICONDUCTOR LABORATORIES MARKETING AND
SALES, INC., an Arizona corporation; ADVANCED TECHNOLOGY MATERIALS, INC., a
Delaware corporation; ATMI, INC. (f/k/a ATMI HOLDINGS, INC.), a Delaware
corporation; and XXXX ACQUISITION CORPORATION, a Delaware corporation ("Buyer
Sub"), whereby the Company will be acquired by the Buyer by the Merger of the
Buyer Sub with and into the Company upon the terms set forth therein; and
WHEREAS, the Merger Agreement calls for the Company to enter into a
Consulting Agreement with Xxxxxxx X. Xxxxxxxx ("Xxxxxxxx"); and
WHEREAS, Consultant has an exclusive arrangement with Xxxxxxxx regarding
his consulting services; and
WHEREAS, the Company and Consultant desire to enter into a consulting
arrangement on the terms set forth below. All capitalized terms not otherwise
defined in this Agreement shall have the meaning ascribed to each such term in
the Merger Agreement.
NOW, THEREFORE, the Company and Consultant agree as follows:
1. Termination of Employment Relationship. As of the Effective Date,
Consultant and the Company hereby agree that the employment of Xxxxxxxx by LSL
shall terminate and LSL's obligations under any employment agreement shall cease
at such time.
2. Retention as Consultant. The Company hereby retains Consultant as an
independent consultant for the three (3) year period ("Consulting Term") from
the Effective Time (the "Expiration Date"), or such earlier date on which this
Agreement is terminated as provided in Section 7, below. Consultant shall retain
the services of Xxxxxxxx to provide consulting services hereunder to the Company
throughout the term of this Agreement, unless the Company shall provide its
prior written consent given in its sole discretion, to Consultant regarding the
retention of the services of another expert in epitaxial processing of silicon
wafers to provide consulting services to the Company.
3. Consulting Services. Consultant shall perform those consulting
services and work on such projects as Consultant and the Company may from time
to time mutually agree. Consultant's relationship with the Company shall be that
of an independent contractor and not that of an employee of the Company or any
affiliate and, except as otherwise provided herein, Consultant shall not be
eligible for any employee benefits offered by the Company, and the Company shall
neither make nor be liable for any deductions from Consultant's fees paid
hereunder for taxes, insurance, bonds or any other subscriptions of any kind.
The Company and Consultant hereby agree that all consulting services to be
performed under this Agreement shall be personal services of Xxxxxxxx.
During each of the three twelve-month periods of the Consulting Term,
Consultant shall render consulting services as mutually agreed by Consultant and
the Company.
4. Performance of Consulting Services. The nature of the consulting
services to be performed and the time and place of performance of such services
shall be at Mesa, Arizona, or as mutually agreed to by the Company and
Consultant. The Company agrees to provide Consultant such secretarial services
and office facilities as Consultant requires in rendering consulting services
hereunder. Consultant shall not be required to relocate in order to perform the
services required hereunder.
5. Consideration. In consideration of the consulting services to be
provided by Consultant hereunder, the Company agrees to pay Consultant, for
each year during the Consulting Term, a per diem of Two Thousand Eight Hundred
Eighty Dollars ($2,880.00) for a mutually agreed number of days per twelve-month
period under this Agreement, but in no event shall the total fee payable to
Consultant hereunder total less than Two Hundred Fifty Thousand Dollars
($250,000.00) for the first twelve-month period. No minimum shall be applicable
after the first twelve-month period. On or before the 10th day of each month,
Consultant shall submit an invoice for the prior month, indicating total hours
worked. The Company shall pay such invoice within 15 days of its receipt
thereof.
In addition, the Company agrees to take such action as may be necessary to
permit Consultant to become a participating employer in the Company's health
insurance or similar benefit program, but only for the benefit of Xxxxxxx X.
Xxxxxxxx and his dependents.
6. Expenses. Consultant's reasonable expenses incurred in connection with
the perform ance of consulting services hereunder will be paid by the Company
or, if Consultant has paid such expenses, reimbursed by the Company upon receipt
of documentation of such expenses in accordance with the Company's standard
policies and procedures; provided that Consultant shall obtain preapproval from
the Company for any expenditures in excess of One Thousand Dollars ($1,000), and
the Company shall not be liable for reimbursement for such expenses where
Consultant did not obtain preapproval for such expenditures.
7. Termination. This Agreement shall be subject to termination as
follows:
(a) Consultant may terminate this Agreement at any time after one (1)
year from the Effective Time upon thirty (30) days' written notice to the
Company;
(b) The Company may terminate this Agreement only for "cause" which,
for
purposes of this Agreement, shall mean (i) the continued failure by Consultant
or Xxxxxxxx to perform his duties with the Company (other than any such failure
resulting from his incapacity due to death or physical or mental incapacity),
after a written demand for substantial performance is delivered to Consultant or
Xxxxxxxx by the Company that identifies the manner in which the Company believes
that Consultant or Xxxxxxxx has not substantially performed his duties and
provides for a 30-day cure period, (ii) engaging by Consultant or Xxxxxxxx in
misconduct which is materially injurious to the Company, monetarily or
otherwise, after a written warning and a 30-day cure period, (iii) Consultant's
or Lawrence's final conviction for fraud or of any felony, or (iv) Consultant's
or Lawrence's use of illegal drugs and/or abuse of alcohol. Notwithstanding the
foregoing, Consultant shall not be deemed to have been terminated for cause
under clause (i) or (ii) unless and until there shall have been delivered to
Consultant a copy of a Notice of Termination from the Board of Directors of the
Company after reasonable notice to Consultant and an opportunity for Consultant
to be heard before the Board finding that, in the good faith opinion of the
Board, Consultant was guilty of conduct set forth above and specifying the
particulars thereof in detail.
(c) This Agreement, and the Company's obligations hereunder, shall
terminate immediately upon Consultant's or Lawrence's disability. For purposes
of this Agreement, the term "disability" shall be defined as a physical or
mental impairment of any type that prevents Consultant or Xxxxxxxx from
performing the essential functions of his employment under this Agreement for a
total period of ninety (90) days in any twelve (12) consecutive month period, as
reasonably determined by the Company.
(d) This Agreement shall terminate upon the death of Consultant or
Xxxxxxxx.
8. Effect of Termination. Upon termination of this Agreement pursuant to
Section 7 hereof, Sections 8, 9, and 10 shall survive, and Consultant shall be
entitled to receive all fees and expenses payable under Section 5 through the
date of termination of this Agreement.
9. Indemnification. The Company agrees to defend, indemnify and hold
Consultant and Consultant's estate harmless from and against all losses,
liabilities, damages, claims, demands, actions, and proceedings, and all costs
and expenses in connection therewith, including reasonable attorneys' fees,
arising out of or connected with the performance of Consultant's services under
this Agreement, except as may arise from Consultant's willful misconduct or
negligent acts or omissions.
10. Additional Instruments. The parties hereto shall execute any further
or additional instruments and they will perform any acts which may be reasonably
necessary or appropriate in order to effectuate and carry out the purposes of
this Agreement.
11. Execution in Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original but all of
which shall constitute one and the same agreement.
12. Modification and Amendments. No provision of this Agreement may be
modified or amended except by a writing executed by the party sought to be
charged with such modification or amendment.
13. Notices. All notices, claims, demands and other communications
hereunder shall be in writing and shall be deemed given if delivered personally
or by telecopy or mailed by registered or certified mail (postage prepaid,
return receipt requested) to the respective parties at the following addresses
(or at such other address for a party as shall be specified by like notice):
If to Consultant, to:
Xxxxxxxx Semiconductor Investments, Inc.
000 Xxx Xxxxxxx Xxxxx Xxxx.
Xxxx, Xxxxxxxxxx 00000
Facsimile Number: (000) 000-0000
with a copy to:
Polese, Pietzsch, Xxxxxxxx & Xxxxx, P.A.
0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx; Xxxxxxx X. Xxxxxx
Facsimile Number: (000) 000-0000
If to the Company, to:
Xxxxxxxx Semiconductor Laboratories, Inc.
c/o Advance Technology Materials, Inc.
0 Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx & Xxxxxxx, LLP
Xxx Xxxxxxxx Xxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
14. Entire Agreement; Assignment. This Agreement constitutes the entire
agreement and supersedes all other prior agreements and understandings, both
written and oral, among the parties or any of them, with respect to the subject
matter hereof, and shall not be assigned by operation of law or otherwise.
15. Binding Agreement. This Agreement shall inure to the benefit of and
shall be binding upon the Company and Consultant, and their respective
successors and assigns.
16. Severability.
16.1 Severable. The provisions of this Agreement are severable and, in
the event that any provision hereof shall be found by any court to be
unenforceable, in whole or in part, the remainder of this Agreement shall
nonetheless remain enforceable and binding upon the Company and Consultant.
16.2 Enforcement. To the extent that any provision hereof is deemed
unenforceable by virtue of its scope in terms of area, business activity
prohibited and/or length of time, but could be enforceable by reducing the
scope of area, business activity prohibited or length of time, Consultant and
the Company agree that same shall be enforced to the fullest extent
permissible under the laws and public policies applied in the jurisdiction in
which enforcement is sought, and that the Company shall have the right, in
its sole discretion, to modify such invalid or unenforceable written
provision to the extent required to be valid and enforceable. Consultant
agrees to be bound by any promise or covenant imposing the maximum duty
permitted by law which is subsumed within the terms of any provision hereof,
as though it were separately articulated in and made a part of this
Agreement, that may result from striking or modifying any of the provisions
hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement the date first
written above.
CONSULTANT: XXXXXXXX SEMICONDUCTOR INVESTMENTS, INC.,
an Arizona corporation
By /s/ XXXXXXX X. XXXXXXXX
Xxxxxxx X. Xxxxxxxx, President
THE COMPANY: XXXXXXXX SEMICONDUCTOR LABORATORIES, INC.,
an Arizona corporation
By /s/ XXXXXXX X. XXXXXXXX
Its President, CEO
