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EMPLOYMENT AGREEMENT
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This Employment Agreement, dated December 31, 1996, by and between Integrated
Measurement Systems, Inc., an Oregon corporation (hereinafter referred to as
the "Company"), and Xxxxx X. Xxxxxxx (hereinafter referred to as "Employee").
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WITNESSETH
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WHEREAS, the Company wishes to employ Employee and Employee is desirous of being
so employed;
NOW, THEREFORE, in consideration of the premises and the mutual covenants and
agreements herein contained, the parties hereto agree as follows:
1. The Company hereby employs Employee and Employee hereby accepts employment
by the Company for the period beginning on December 31, 1996 (the "Employment
Date"). The Company shall continue to employ Employee for such time as the
Company is in need of, or desirous of, the services of Employee. It is
distinctly understood between the parties hereto that the duration of
employment is unspecified and rests solely in the discretion of the Company.
2. Employee shall perform such duties and functions and hold such positions as
the Board of Directors of the Company shall from time to time determine and in
the performance of his duties, comply with the policies of and be subject to
the reasonable direction of the Board of Directors of the Company. Employee's
initial title and functions shall be General Manager, Test Software Division.
If requested by the Board of Directors of the Company, Employee shall serve as
an employee of one or more subsidiaries of the Company (hereinafter sometimes
termed, collectively, "subsidiary" or "subsidiaries") and shall, in the
performance of such duties, comply with the policies of the Board of Directors
of any subsidiary.
3. As compensation for the services to be rendered by Employee hereunder,
including all services as an officer of the Company or of any subsidiary of
the Company, the Company agrees to pay or cause to be paid to Employee, during
the period of Employee's employment pursuant to paragraph 1 hereof, an annual
salary of $130,000 payable twice monthly. The salary paid to Employee shall
be reviewed yearly by the Board which shall take into account the productivity
of the Company, available resources, the performance of Employee, the cost of
living and other factors deemed relevant; however, the Board shall have no
obligation to make any adjustments in the salary of the Employee.
4. Employee's primary duties shall be performed at the Company's offices in
Washington County, Oregon, or in such other location as the Board of Directors
reasonably designates.
5. 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 by
which he may be employed; and Employee shall not, directly or indirectly, alone
or as a member of any partnership, 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 not interfering, may be inimical to or
contrary to the best interest of the Company.
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6. Employee agrees that the "Propietary Information and Inventions Agreement"
annexed hereto and made a part hereof as Exhibit "A" to the Agreement and the
"Policy Statement on Conflicts of Interest" annexed hereto and made a part
hereof as Exhibit "B", shall both be deemed to be a part of this Employment
Agreement.
Employee further agrees that the termination or cessation of his employment or
the expiration of this Employment Agreement shall not release him from any
obligations contained in Exhibit "A". Employee shall at no time be entitled to
any additional compensation for the services required by this paragraph or by
Exhibits "A" or "B" but shall be reimbursed for his reasonable expenses in
connection with securing patent protection and other similar rights for the
Company in connection with Exhibit "A".
7. NONCOMPETITION. In consideration for and as an inducement to the Company's
agreement to employ Employee hereunder, Employee agrees that:
(a) He will not, so long as he is an employee or officer of the Company or any
subsidiary, directly or indirectly, as owner, partner, joint venturer,
stockholder, employee, broker, agent, principal, trustee, corporate officer,
director, or licensor, or in any capacity whatsoever engage in, become
financially interested in, be employed by, or have any connection with, any
business engaged in the research, development, testing, design, manufacture,
sale, lease, marketing, utilization, or exploitation of custom logic test
systems and such other products as the Company may develop and other
competitive products with those of the Company or the application thereof and
products based thereon which are (x) logically equivalent to or, (y)
substantially identical to or (z) an emulation of any equipment, technology,
or the application thereof or products based thereon designed, marketed,
announced, leased, or sold by the Company or any of its subsidiaries, in any
geographic area where, during the time of his employment, the business of the
Company or any of its subsidiaries is being or had been conducted in any
manner whatsoever; provided, however, that the Employee may own any
securities of any corporation or partnership 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 aggregate partnership
interests) or securities of such company.
(b) If Employee terminates his employment with the Company or if the Company
terminates the Employee's employment, the Employee agrees that he shall at the
option of the Company for two (2) additional years have the duty of advising and
consulting on a part-time basis with the Company and its subsidiaries in
response to request for such services, provided the Company notifies the
Employee in writing within sixty (60) days after the termination of his
employment that such services are desired, and in such event the restrictions
contained in subparagraph 7(a) above shall be extended for such two additional
years. The Company agrees that (1) such services shall be performed within the
United States of America; (2) the Employee shall not be required to devote such
of his time to such services as will interfere with the Employee obtaining
principal employment by others, and (3) the Employee shall not be required to
perform such services during usual vacation periods and reasonable periods of
illness or other incapacitation. The Company shall pay the Employee for such
services compensation at the annual rate of twenty-five percent (25%) of the
salary payable to the Employee immediately prior to termination of his
employment. Such compensation shall be payable in twenty-four (24) equal
monthly installments. The Company shall, however, pay to the Employee
compensation at the full annual rate of salary payable to the Employee
immediately prior to termination of his employment commencing on the date of
such termination and ending on the later of the expiration of the Company's
option hereunder in the event it is not exercised (being sixty (60) days after
such termination) or sixty (60) days after notification to the Employee of the
Company's exercise of such option before the provisions of subparagraph 7(c)
here of become operative.
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(c) If after conscientious effort (which the Company may ask the Employee to
establish to its reasonable satisfaction), during any period in which the
Employee is retained as a consultant by the Company and consequently subject to
the restrictions of subparagraph (a) of this paragraph 7, the Employee is unable
primarily due to such restrictions to obtain a comparable position (taking into
account the particular assigned duties and responsibilities of his employment
with the Company) which, together with any termination payments or consulting
fees then being paid to the Employee by the Company, shall be as remunerative
as his monthly remuneration with the Company when his employment terminated
(hereinafter his "remuneration"), then, the Company shall pay to the Employee
monthly, as an additional consulting fee or otherwise, a sum (the "Guarantee")
such that his then monthly remuneration shall be equal to not less than his
remuneration at the time of his termination. The Employee shall notify the
Company in writing within fifteen (15) days after any calendar month as to which
he seeks the Guarantee hereunder. The Employee must establish the amount of
such Guarantee sought to the Company's reasonable satisfaction, whereupon the
Company shall promptly (and, in any event, within fifteen (15) days of receipt
of his notification) pay to him the amount of the Guarantee so established.
(d) In case any one or more of the terms contained in subparagraphs (a), (b) or
(c) of this paragraph 7 shall for any reason be held invalid, illegal, or
unenforceable, such invalidity, illegality, or unenforceability shall not affect
any other terms herein, but such term shall be deemed deleted, and such
deletion shall not affect the validity of the other terms of this paragraph 7.
In addition, if any one or more of the terms contained in subparagraph (a), (b)
or (c) of this paragraph 7 shall for any reason be held to be excessively broad
with regard to time, duration, geographic scope or activity, that term shall be
construed in a manner to enable it to be enforced to the extent compatible with
applicable law.
8. The Company's obligation to issue warrants, options, or other securities to
Employee under any existing or future plan or agreement is conditioned upon (1)
his continued employment with the Company pursuant to this agreement at each
such issuance date, and (2) no termination of his employment pursuant to
paragraph 1 hereof having occurred. For the purpose of this paragraph 8, if
Employee is advising or consulting with the Company and its subsidiaries, such
activity shall not be deemed employment so as to entitle Employee to the
issuance of warrants, options, or other securities or so as to prevent issued,
but unexercised warrants, options, or other securities from lapsing.
9. The parties hereto agree that failure to comply with paragraph 7 Exhibits
"A" and "B" of this Agreement cannot reasonably be adequately compensated in
damages in an action at law, and breach of these provisions of this Agreement
will cause the Company irreparable damage. Therefore, in addition to the other
remedies which may be available to it, in law or in equity, the Company shall be
entitled to injunctive relief without bond or other security with respect to the
breach of either paragraph 7, Exhibit "A", or Exhibit "B", or any one or more of
them.
10. Employee represents and warrants that on December 31, 1996, he is free to
be employed by the Company upon the terms contained in the Agreement and that
on December 31, 1996, there is no employment contract or restrictive covenants
preventing full performance of his duties hereunder.
11. This Employment Agreement shall be binding upon the legal representatives,
heirs, distributes, successors, and assigns of the parties hereto. It contains
the entire agreement of the parties, and may not be changed orally, but only by
a writing signed by the party against whom enforcement of any such a change is
sought. It is agreed that a waiver by either party of a breach of any provision
of this Employment Agreement shall not operate or be construed as a waiver of
any subsequent breach by that same party. Any notice required by this Agreement
shall be sent to the other party at the address set forth
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at the beginning of this Agreement, or to such other address as a party
supplies to the other party in writing. This Employmeny Agreement shall be
governed by the laws of the State of Oregon applicable to agreements made and
to be performed therein.
This Employment Agreement supersedes all prior understandings and agreements
between the parties relating to the subject matter encompassed herein.
12. The termination of Employee's employment hereunder shall not affect the
enforceability of paragraph 6, paragraph 7, paragraph 8, paragraph 9, and
Exhibits "A" and "B" hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the day and year first above written.
INTEGRATED MEASUREMENT SYSTEMS, INC.
By /s/ Xxxx Xxxxxx
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/s/ Xxxxx X. Xxxxxxx, Employee
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SCHEDULE A
The following is a list of all inventions, discoveries or improvements
relating to the Company's business which have been made by Employee prior to
his/her employment with the Company.
EMPLOYEE'S INITIALS (ONE LINE ONLY)
DLB None
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As listed below:
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ACKNOWLEDGED
INTEGRATED MEASUREMENT SYSTEMS, INC.
BY: /s/ Xxxx Xxxxxx
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DATED: 1-7-97
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EXHIBIT A
PROPRIETARY INFORMATION AND EMPLOYEE
INVENTIONS AGREEMENT
IT IS AGREED BETWEEN INTEGRATED MEASUREMENT SYSTEMS, INC., an Oregon
corporation (hereinafter the "Company"), and Xxxxx X. Xxxxxxx
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(hereinafter "Employee"), as follows:
1. EMPLOYMENT.
The Company has hired Employee to work in the position of GENERAL MANAGER,
TEST SOFTWARE DIVISION. Employee acknowledges that, as a part of his/her
employment, he/she is expected to create inventions and/or ideas of value to
the Company.
2. CONFIDENTIAL INFORMATION OF OTHERS.
Employee does not have in his/her possession any confidential information or
documents belonging to others, and will not use, disclose to the Company, or
induce the Company to use, any such information or documents during his/her
employment. Employee represents that his/her employment will not require
him/her to violate any obligation to or confidence with another.
3. DEFINITION OF PROPRIETARY INFORMATION.
As used herein, the term "Proprietary Information" refers to any and all
information of a confidential, proprietary or secret nature which is or may
be either applicable to, or related in any way to (i) the business, present
or future, of the Company, (ii) the research and development or
investigations of the Company, or (iii) the business of any customer of the
Company. Proprietary Information includes, for example and without
limitation, trade secrets, processes, formulas, data, algorithms, source
code, object code, know-how, improvements, inventions, techniques, marketing
plans and strategies, and information concerning customers or vendors.
4. PROPRIETARY INFORMATION TO BE KEPT IN CONFIDENCE.
Employee acknowledges that the Proprietary Information is a special, valuable
and unique asset of the Company, and Employee agrees at all times during the
period of his/her employment and thereafter he/she will not directly or
indirectly use the Proprietary Information other than in the course of
performing duties as an employee of the Company, nor will Employee directly
or indirectly disclose any Proprietary Information or anything relating
thereto to any person or entity, except in the course of performing his/her
duties as an employee of the Company and with the consent of the Company.
Employee will abide by the Company's policies and regulations, as established
from time to time, for the protection of its Proprietary Information.
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5. OTHER EMPLOYMENT.
Employee agrees that during the period of his/her employment by the Company,
he/she will not, without the Company's prior written consent, directly or
indirectly engage in any employment, consulting, or activity other than for
the Company relating to any line of business in which the Company is now or
at such time is engaged, or which would otherwise conflict with his/her
employment obligations to the Company.
6. RETURN OF MATERIALS AT TERMINATION.
In the event of any termination of his/her employment, whether or not for
cause and whatever the reason, Employee will promptly deliver to the Company
all documents, data, records and other information pertaining to his/her
employment, and Employee shall not take with him/her any documents or data,
or any reproduction or excerpt of any documents or data, containing or
pertaining to any Proprietary Information.
7. DISCLOSURE TO COMPANY; INVENTIONS AS SOLE PROPERTY OF COMPANY.
Employee agrees to promptly disclose in writing to the Company any and all
inventions, discoveries, improvements, trade secrets, formulas, techniques,
processes, manuscripts, writings and know-how, whether or not patentable and
whether or not reduced to practice, conceived or learned by the Employee
during the period of his/her employment, either alone or jointly with others
which relate to or result from the actual or anticipated business, work,
research or investigations of the Company, or which result, to any extent,
from use of the Company's premises or property (the work being hereinafter
collectively referred to as the "Inventions").
Employee hereby agrees to assign to the Company all of his/her entire right
and interest in and to all the Inventions. Within 30 days following the
Company's receipt of Employee's written disclosure of an Invention, Employee
shall assign to the Company or any other entity designated by it all domestic
and foreign rights pertaining to such Invention, and assist the Company in
every way (at the Company's expense) to obtain and from time to time enforce
patents or copyrights on such Invention in any and all countries. To that
end, by way of illustration but not limitation, Employee will testify in any
suit or other proceeding involving any of the Inventions, execute
all documents which the Company reasonably determines to be necessary or
convenient for use in applying for and obtaining patents or
copyrights thereon and enforcing same, and execute all necessary assignments
thereof to the Company or persons designated by it. Employee's obligation to
assist the Company in obtaining and enforcing patents or copyrights for the
Inventions shall continue beyond the termination of his/her employment, but
the Company shall compensate Employee at a reasonable rate after such
termination for the time actually spent by Employee at the Company's request
on such assistance.
8. LIST OF PRIOR INVENTIONS.
All inventions, if any, which Employee made prior to his/her employment by
the Company are excluded from the scope of this Agreement. As a matter of
record, Employee has set forth on Schedule A attached hereto a complete
list of all inventions, discoveries, or improvements relating to the
Company's business which have been made by Employee prior to his/her
employment with the Company. Employee represents and convenants that such
list is complete.
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9. INJUNCTION.
Employee agrees that it would be difficult to measure damage to the Company from
any breach by Employee of the promises set forth in Paragraphs 4, 5, and 6
herein, and that injury to the Company from any such breach would be
impossible to calculate, and that money damages would therefore be an
inadequate remedy for any such breach. Accordingly, Employee agrees that if
he/she shall breach any provision of Paragraphs 4, 5, or 6 or any of them,
the Company shall be entitled, in addition to all other remedies it may have,
to injunction or other appropriate orders to restrain any such breach by
Employee without showing or proving any actual damage sustained by the
Company.
10. GENERAL.
(a) To the extent that any of the agreements set forth herein, or any word,
phrase, clause, or sentence thereof shall be found to be illegal or
unenforceable for any reason, such agreement, word, clause, phrase or sentence
shall be modified or deleted in such a manner so as to make the agreement as
modified legal and enforceable under applicable laws, and the balance of the
agreements or parts thereof shall not be affected thereby, the balance being
construed as severable and independent.
(b) This Agreement shall be binding upon Employee and his/her heirs, executors,
assigns, and administrators and shall inure to the benefit of the Company, its
successors and assigns and any Subsidiary.
(c) This Agreement shall be governed by the laws of the State of Oregon, which
state shall have jurisdiction of the subject matter hereof.
(d) This Agreement may be signed in two counterparts, each of which shall be
deemed an original and which together shall constitute one instrument.
(e) The use of the singular in this agreement includes the plural, as
appropriate.
(f) This Agreement represents the entire agreement between Employee and the
Company with respect to the subject matter hereof, superseding all previous oral
or written communications, representations or agreements. This agreement may be
modified only by a duly authorized and executed writing.
INTEGRATED MEASUREMENT SYSTEMS, INC.:
By: /s/ Xxxx Xxxxxx
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Title: Director, H R
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Date: 1-7-97
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EMPLOYEE:
Print Name: Xxxxx X. Xxxxxxx CAUTION TO EMPLOYEE:
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THIS AGREEMENT AFFECTS IMPORTANT
Signature: /s/ Xxxxx X. Xxxxxxx RIGHTS. DO NOT SIGN UNLESS YOU
---------------------- HAVE READ IT CAREFULLY AND ARE
SATISFIED THAT YOU UNDERSTAND
Date: 12-23-96 IT COMPLETELY.
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EXHIBIT B
INTEGRATED MEASUREMENT SYSTEMS, INC.
(THE "COMPANY")
POLICY STATEMENT ON CONFLICTS OF INTEREST
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It is generally accepted as good business practice that employees disclose in
detail any outside activities or interests which potentially may conflict or
even appear to conflict with the Company's best interest. Accordingly, it is
the policy of the Company to require such disclosure.
While it is not possible to describe, or even anticipate all the circumstances
and situations that might involve or even appear to involve conflict of
interest, the following enumeration's of some such activities are given for
illustration and without limitation:
1. Being connected directly or indirectly with any business (as owner, partner,
officer, director, participant, licensee, consultant, shareholder, or as the
recipient of wages, salary, bonus, fees, commissions, or other compensation of
value) which sells, provides materials, supplies, equipment, facilities, or
services to the Company or which is in direct or indirect competition with, or
which is a customer of the Company. (Shares of stock in listed companies
acquired as a part of a normal investment program may be excluded).
2. Giving or accepting gifts, entertainment, or any other personal favor or
preferment to or from anyone with whom the Company has or is likely to have any
business dealings, including an employee, prospective employee, customer,
competitor, or vendor which go beyond common courtesies usually associated with
accepted business practice.
3. Disclosing directly or indirectly any confidential information acquired by
him or her in the course of his or her official duties or using such information
to further his or her personal interests to the Company's disadvantage.
4. Acquiring directly or indirectly through ownership or lease, property, real
estate, or facilities in which the Company has an active or potential interest.
5. Speculating or commercially dealing in the products (first quality, used,
obsolete, or scrap) sold by the Company or in any used property (machinery,
equipment, facilities, furniture, and fixtures) of the Company.
I have read the Company's Policy Statement on Conflicts of Interest and affirm
that to the best of my knowledge and belief, I am involved in no such situation
with might create or appear to create a conflict of interest, except as
explained fully and completely below.
I further agree to report immediately any circumstances or situations arising in
the future that might involve me or appear to involve me in a conflict of
interest.
NAME: /s/ Xxxxx X. Xxxxxxx DATE: 12/23/96
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