1
Exhibit 10.19
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into this 13th day of July, 1999, by and
between SPEEDFAM-IPEC, INC., an Illinois corporation (hereinafter referred to as
the "Company") and J, XXXXXXX XXXXXX (hereinafter referred to as the
"Executive").
WITNESSETH:
WHEREAS, the Company desires to retain the services of the Executive in
the capacities set forth herein, and the Executive desires to be employed by the
Company in such capacities:
NOW THEREFORE, in consideration of the promises and mutual covenants
herein contained, the Company and the Executive hereby agree as follows:
1. Employment. The Company hereby employs the Executive and the
Executive hereby accepts employment with the Company upon the terms and
conditions hereinafter set forth and subject to the policies as published in the
Company's Employee Handbook, Annual Incentive Compensation Plan, and the 1995
Stock Option Plan, each as from time to time amended.
2. Term. Subject to the provisions for extension hereinafter set forth
in Section 3 and for earlier termination hereinafter set forth in Section 12 of
this Agreement, the term of employment hereunder shall commence on the date
hereof and end on May 31, 2000.
3. Automatic Extension. The term of employment of the Executive
hereunder shall automatically continue for additional one (1) year terms upon
the same terms and conditions contained herein (except for the guaranteed
minimum incentive compensation bonus (Section 4.3), certain severance payments
(Section 4.8), and grant of 120,000 stock options (Section 4.7), each of which
apply solely to the initial term) unless either the Company or the Executive
shall notify the other at least thirty (30) days prior to the expiration of the
initial term or any renewal term of its or his intention to terminate this
Agreement as of the end of its then current term.
2
4. Compensation. The Company agrees to provide the Executive with the
following compensation for all services rendered under this Agreement:
4.1. Salary. During the term hereof, the Company shall pay to
the Executive a Base Annual Salary of TWO HUNDRED THOUSAND DOLLARS
($200,000.00), payable in accordance with the standard payroll
practices of the Company (including any salary-reduction contributions
to plans or programs maintained by the Company). Further, the Base
Annual Salary of the Executive shall be reviewed annually by the
Company and increased as appropriate, although the amount may be
decreased after the first year, but only incident to, and consistent
with (on a percentage basis), a general reduction in base salaries of
Company's executives resulting from poor company performance.
4.2. Annual Incentive Opportunity. During the term of this
Agreement, the Executive shall participate in the annual incentive plan
maintained by the Company for its executives. The Executive's annual
bonus under the incentive compensation plan shall be targeted at fifty
percent (50%) of the Executive's Base Annual Salary (with a maximum
bonus of one hundred percent (100%) of the Executive's Base Annual
Salary), subject to satisfaction of annual milestones reasonably
established by the Compensation Committee of the Board of Directors of
the Company.
4.3. Minimum Incentive Bonus. Solely for the anniversary year
ending twelve (12) months after Executive's employment date hereunder,
the Company shall pay the Executive a guaranteed bonus under the
incentive plan in the minimum amount of One Hundred Thousand Dollars
($100,000.00), payable upon the Executive's completion of one (1) full
year of service, it being agreed, however, that the Executive's target
bonus for the fiscal year ending May 3 1, 2001, will be prorated for
the fiscal year beginning with the one (1) year anniversary date
through May 31, 2001.
4.4. Long-term Incentive Opportunity. During the term of this
Agreement, the Executive shall participate in any long-term incentive
plan maintained by the Company, including, but not limited to, stock
options, performance shares, restricted stock and long-term cash
incentive plans, in a manner consistent with other executives of the
Company, as reasonably determined by the Board of Directors of the
Company.
-2-
3
4.5. Relocation and Commuting Benefits. The Company will pay
all reasonable and ordinary costs of relocating from San Jose,
California, to the Phoenix area. This includes costs associated with
house-hunting trips, normal selling costs for the home in San Xxxx,
normal buying costs of the home in the Phoenix area, and a payment of
the equivalent of one (1) month's salary for miscellaneous relocation
expenses. The Company agrees to provide a bridge loan at an interest
rate of seven percent (7%) if necessary to facilitate the real estate
transactions for a period of no more than six (6) months. The Company
agrees to pay either rent or a house payment (PITI) in the Phoenix area
until such time as the Executive's house in San Xxxx is sold or six
months, whichever occurs sooner. To the extent that any
relocation/commuting benefits are taxable to Executive, the Company
will pay a full gross-up (except to the extent that such expenditures
by Executive may be deducted on Executive's personal income tax) so
that the amounts paid by the Company, net of Executive's taxes, fully
cover the relevant expenses.
4.5.1 Company shall not be responsible for any loss
in equity incurred in the sale of the Executive's San Jose,
California, residence.
4.6. Other Benefits. To the extent that the Executive is
eligible under appropriate laws and regulations, the Executive shall be
entitled to participate in and receive benefits under any and all
pension, profit-sharing, health, disability and insurance plans, if
any, which the Company may maintain. The Executive shall not receive
automobile benefits or allowances.
4.7. Equity Incentive. The Company shall grant the Executive
options to purchase 120,000 shares of common stock of the Company. With
respect to such options:
4.7.1. The exercise price for such options shall be
the Executive's choice of the Company's per share market price
at the close of business of one (1) of the following events:
1) the date the Executive signs acceptance of the Summary of
Terms to Employment Agreement; or, 2) the date the Executive
signs this Employment Agreement; or, 3) on Executive's
employment date. The options will be non-qualified options,
subject to all terms and conditions of the Company's 1995
Stock Option Plan. Except as set forth otherwise in the Stock
Option Plan and herein, the options granted hereunder shall
vest ratably (in 5 equal installments) and annually
-3-
4
as of the end of each of the next 5 fiscal years ended May 31,
with the first year's vesting to occur on May 31, 2000.
Subject to the Stock Option Plan and this Agreement, vested
options may be exercised for ten years from the date of grant.
In the event of the death of the Executive, vested options may
be exercised for one year from the date of death., In all
other events, vested options must be exercised within 90 days
of termination. Subject to the obligation of the Executive
under the Company's 1995 Stock Plan, the Company will
cooperate in any same day exercise and sale (or if same is not
available, a cashless exercise) associated with such options.
4.7.2. Upon termination of the Executive's
employment, option vesting will cease; provided, however, that
if any termination severance payment is due in connection
therewith pursuant to Section 12.3, the Executive will receive
an additional one year of vesting as of the date of
termination. Payment of all amounts and benefits hereunder and
additional vesting of stock shall be subject to compliance
with the provisions of this Agreement and specifically the
restrictive covenants set forth in Section 13 hereof.
5. Duties. The Executive shall, subject to the right of the Company in
its sole discretion to terminate Executive's employment pursuant to Section 12.3
and thereby terminate his employment and/or officer position, serve as Chief
Financial Officer of the Company. As such, the Executive's duties and
responsibilities shall include, but shall not be limited to, overseeing all
functions relating to Accounting, Finance, Treasury, Investor Relations, Legal
and MIS. The Executive shall also be responsible for the performance of such
other duties and responsibilities as may be prescribed from time to time by the
Chief Executive Officer and/or the Board of Directors of the Company.
6. Extent of Service. The Executive shall devote the Executive's full
business time, attention, and energies to the business of the Company and its
Affiliates and shall not, during the term of this Agreement, be engaged in any
other business activity, whether or not such activity is pursued for gain,
profit, or other pecuniary advantage, unless written approval is first secured
from the Board of Directors of the Company, with such approval not unreasonably
being withheld.
7. Working Facilities. The Executive shall be furnished with office
space, furnishings, secretarial support and such other facilities and services
which are reasonably necessary for the performance of the Executive's duties.
-4-
5
8. Expenses. The Company will reimburse the Executive for all
reasonable business expenses which are incurred by the Executive in the
promoting of the interests of the Company. In addition, the Company shall
indemnify the Executive as an officer, director and employee to the maximum
extent permitted under law and the Company's corporate documents.
9. Vacation. The Executive shall be entitled to paid vacation in
accordance with Company policy. All vacation time shall be taken by the
Executive at such times as shall be mutually agreed upon by the Executive and
the Chief Executive Officer of the Company.
10. Disability. If, as a result of sickness or other disability, the
Executive is not able to perform the Executive's duties, this Section 10 shall
apply as follows:
10.1. For the first ninety (90) consecutive days of sickness
or other disability the Company shall continue to pay the Executive
full Base Annual Salary (reduced by any payments from any short-term
disability plan which may be maintained by the Company), and shall
continue to pay premiums on then existing group life, health,
disability and other insurance plans with respect to which the
Executive participates, provided the Executive remains eligible to
participate thereunder.
10.2. If the disability or other sickness continues past
ninety (90) consecutive days, the Company, in its sole discretion, may
elect to place the Executive on Disability Leave of Absence. During
such period, the Company shall, for the remainder of the contract term,
or until the Executive returns from such Disability Leave of Absence,
continue to pay premiums on then existing group life, health,
disability and other insurance plans with respect to which the
Executive participates, provided the Executive remains eligible to
participate thereunder. Further, the Company shall pay to the
Executive, two-thirds (2/3) of the Executive's Base Annual Salary,
reduced by any payments for which the Executive is eligible from any
disability insurance programs maintained by the Company.
11. Death. If the Executive dies during the term of this Agreement, the
Company shall pay to the Executive's Beneficiary (or if there is no named
Beneficiary, the estate of the Executive), the compensation as set forth in
Section 4 of this Agreement, for the period up to the date of the Executive's
death, and the Executive's annual
-5-
6
incentive award prorated through the date of death, payable at fiscal year end
if and to the same extent bonuses are paid for that fiscal year to other
executives generally. In no event shall the Company be obligated to pay to any
person any other compensation with respect to any period following the date of
the Executive's death.
12. Termination of Employment.
12.1. Termination for Cause. The Company may terminate the
Executive's employment under this Section of the Agreement for Cause.
Cause shall be defined as:
12.1.1. The Executive's Material Breach of this
Agreement based on the Executive's willful or grossly
negligent failure to perform his duties hereunder, which
breach is not cured within ten (10) business days after
written notice from the Company specifying such breach has
been delivered to the Executive;
12.1.2. Commission by the Executive of any materially
fraudulent or dishonest act in the performance of the
Executive's duties hereunder, other than at the specific
direction of the Board; or,
12.1.3. Arrest (unless the charges are dropped within
45 days) for any felony or crime involving moral turpitude.
Executive agrees that following any such arrest and during the
subsequent 45-day period he may, at the direction of the Board
of Directors, be placed on unpaid leave of absence.
12.1.4. Following a Termination for Cause, the
Company shall pay to the Executive the Base Annual Salary
provided in Section 4.1 accrued up to the date of termination.
In no event shall the Company be obligated to pay any other
compensation with respect to any period before or after the
date of such termination.
12.2. Termination Following a Change of Control. If in
anticipation of and within 90 days of, or during a period of one (1)
year following, a Change of Control (as hereinafter defined), the
employment of the Executive is terminated by the Company for any reason
other than Cause, or if the Executive is subject to
-6-
7
Constructive Termination (as hereinafter defined), benefits shall be
payable under this Section 12.2.
12.2.1. The Executive shall receive all Base Annual
Salary accrued up to the date of termination and, within
thirty (30) days of termination, a single payment equal to the
sum of (i) two (2) times the sum of the Executive's then
current Base Annual Salary and (ii) the Executive's pro-rated
target annual incentive award opportunity through date of
termination.
12.2.2. All unvested stock options awarded to the
Executive pursuant to the Company's stock option plans shall
immediately vest in full to the Executive; provided that such
stock options shall be exercisable only within ninety (90)
days from such vesting.
12.3. Other Termination at the Election of the Company. Except
as otherwise provided in Section 4.8, the Company may elect to
terminate the employment of the Executive for any reason other than
Cause or following a Change of Control, or to not renew the term of the
Agreement, upon written notice to the Executive, accompanied by payment
in a lump sum (except pursuant to Sections 12.3.2 and 12.3.3) of:
12.3.1. All compensation accrued up to the date of
termination; plus
12.3.2. An amount equal to one (1) times the
Executive's Base Annual Salary of record on the date of
termination payable pro rata monthly over the one year
following termination; plus
12.3.3. The Executive's target annual incentive
award, pro-rated through the date of termination and payable
at fiscal year end if and to the same extent bonuses are paid
for that fiscal year to other executives generally.
12.4. Benefit Payments. Following the termination of the
Executive's employment for any reason, the Company shall pay to the
Executive, under the terms of the Company's benefit plans, an amount
equal to the vested benefits of the Executive in any pension or other
benefit plan as of the termination date. If elected by the Executive,
the Company shall, instead of direct payment to the
-7-
8
-
Employer, transfer such funds to such other benefit plans as designated
by the Executive.
13. Restrictive Covenants.
13.1. Executive understands that the Company's business
involves the design, improvement, development, testing, manufacturing,
marketing and sale of products, and that this business requires
substantial investments in capital and substantial commitments of time
and effort by the Company's employees. The Executive further
understands that, as a result, certain of the Company's personnel,
including the Executive, acquire information with respect to customer
goodwill, trade secrets and Confidential Information (as hereinafter
defined), which, of itself and apart from the Executive's abilities,
could be of great value to a competitor of the Company, potential
competitors of the Company, and to others.
13.2. The Executive further understands that employment with
the Company is conditioned upon the Company's being able to place
complete trust and confidence in the Executive and to rely on the
Executive's doing everything possible to avoid the disclosure or use of
Confidential Information to persons, corporations, organizations and
others outside the Company, which may become known to, or subject to
the control of the Executive during the term of employment hereunder.
The Executive also understands that competition in the manufacture,
sale, and development of products is not local in nature or scope, but
involves various corporations, organizations and others located within
the United States and throughout the world.
13.3. In recognition of these circumstances and for the
purpose of inducing the Company to employ the Executive (or continue
the employment of the Executive with appropriate compensation reviews),
to repose trust and confidence in the Executive, and to make
Confidential Information available to the Executive, the Executive
agrees that the following restrictive covenants are necessary and
proper for the protection of the Company.
13.4. Subject to Section 13.6 below, the Executive will
promptly disclose and assign to the Company, without the right to any
form of compensation therefore, every invention that the Executive,
individually or jointly with others, during the term of the Executive's
employment with the Company
-8-
9
and for a period of one (1) year following termination of such
employment for any reason, may discover, invent, conceive or originate,
relating in any way to the present or contemplated scope of the
Company's business with regard to any of its clients, customers or
vendors or to any Product (as hereinafter defined), Technology (as
hereinafter defined), process, or device dealt in, used or under
development or manufacture by the Company for itself or others that
results from or may be suggested by any work the Executive may do for
the Company or at the Company's request and (in respect to the period
of one (1) year following termination of such Executive) which involves
Confidential Information. The Executive will fully cooperate with the
Company in applying for and securing in the name of the Company or its
designee patents or copyrights with respect to said Inventions (as
hereinafter defined) in each country in which the Company may desire to
secure patent or copyright protection. The Executive will promptly
execute all proper documents presented to the Executive for signature
by the Company to enable the Company or its designee to secure such
patent or copyright protection and to transfer legal title therein,
together with any patents or copyrights that may be issued thereon or
in connection therewith, to the Company or its designee. The Executive
will give such true information and testimony as may be requested of
the Executive by the Company relative to any of said Inventions.
13.5. Subject to Section 13.6 below, the Company shall have
the exclusive right to use in its business, and to make, use and sell
products, processes, and/or services arising out of any Invention,
whether or not patentable, which is assignable by the Executive to the
Company pursuant to Section 13.4 above.
13.6. The Executive is hereby notified that Sections 13.4 and
13.5 above do not apply to an Invention for which no equipment,
supplies, facility, technology, confidential information, or trade
secret information of the Company was used and which was developed
entirely on the Executive's own time, unless:
13.6.1. The Invention was related:
13.6.1.1. To the business of the Company; or
13.6.1.2. To the Company's actual or demonstrably
anticipated research or development;
-9-
10
or;
13.6.2. The Invention results from any work performed
by the Executive for the Company.
13.7. The Executive agrees that all financial data, customer
lists, plans, contracts, agreements, literature, manuals, catalogues,
brochures, books, records, computer files or applications, maps,
correspondence, and other materials furnished or made available to the
Executive by the Company or an Affiliate (as hereinafter defined), or
any of its clients, or created, prepared or secured through the efforts
of the Executive, relating to the business conducted by the Company or
an Affiliate, whether or not containing any Confidential Information,
are and shall remain the property of the Company, and the Executive
agrees to deliver all such materials, including all copies thereof, to
the Company upon termination of the Executive's employment hereunder,
or at any other time at the Company's request.
13.8. Other than as expressly directed by the Company and in
the performance of duties to the Company or with the expressed written
permission of the Company, the Executive shall never, during or
following the Executive's employment with the Company, directly or
indirectly, sell, use, disclose, lecture upon, or publish data or
information containing or relating to any Confidential information or
Technology of the Company or its Affiliates or any Invention assignable
to the Company pursuant to the terms of Section 13.4 above.
13.9. During the term of the Executive's employment with the
Company and for a period of two (2) years after the termination
thereof, unless a court finds that a two-year restriction is
unenforceable, in which case a period of restriction shall be one (1)
year, the Executive agrees that the Executive shall not:
13.9.1. Own or have any interest in, directly or
indirectly, except through stock traded on a national stock
exchange where the Executive owns less than one percent (1%)
of the total issued and outstanding shares of such stock, or
act as an officer, director, agent, employee, or consultant
of, or assist in any way or in any capacity, any person, firm,
association, partnership, corporation or other entity which
sells or provides products or services in direct competition
with the products or services of the Company or its Affiliates
anywhere within the world where any
-10-
11
Confidential Information acquired by the Executive would
reasonably be considered advantageous to such other competing
entity, or
13.9.2. Directly or indirectly entice, induce or in
any manner influence any person who is, or shall be, in the
service of the Company or its Affiliates to leave such service
for the purpose of engaging in business or being employed by
or associated with any person, firm, association, partnership,
corporation or other entity which sells or provides products
or services in competition with the Company or its Affiliates
anywhere in the world.
If any court shall finally hold that the time, territory or
any other provision of this Section 13.9 constitutes an
unreasonable restriction against the Executive, the Executive
agrees that the provisions hereof shall not be rendered null
and void, but shall apply as to such time, territory, and
other extent as such court may determine to be a reasonable
restriction under the circumstances involved.
13.10. The Executive understands that if there is a breach by
the Executive of any duty to the Company with respect to any
Confidential Information or Invention, the Company may suffer
irreparable injury and may not have adequate remedy at law. As a
result, the Executive agrees that if a breach of this Agreement occurs,
the Company may, in addition to any other remedies available to it,
bring an action or actions for injunction, specific performance, or
both, and have entered into a temporary restraining order, preliminary
or permanent injunction, or other action compelling specific
performance.
14. Definitions.
14.1. "Affiliate" means any entity in which the Company, or
any entity that owns, directly or indirectly, a majority ownership
interest in the Company, owns, directly or indirectly, at least a
twenty percent (20%) interest in such entity.
14.2. "Base Annual Salary" means the annualized value of the
Executive's salary, based on the most recent pay period.
14.3. "Board" means the Board of Directors of the Company.
-11-
12
14.4. "Change in Duties" means:
14.4.1. A significant reduction in the nature or
scope of the Executive's authority or duties from those
immediately prior to the date on which a Change of Control
occurs;
14.4.2. A reduction in the Executive's Base Annual
Salary, other than as provided in Section 4.1;
14.4.3. Exclusion from any incentive or benefit
program from which the Executive was previously eligible, and
which other executives with comparable duties participate in;
or
14.4.4. A change in location of the Executive's
principal place of employment by more than fifty (50) miles.
14.5. "Change of Control" shall be deemed to have occurred
upon:
14.5.1. A business combination, including a merger or
consolidation, of the Company as a result of which the
shareholders of the Company prior to the combination do not
continue to own, directly or indirectly, more than fifty-one
percent (51%) of the equity of the combined entity;
14.5.2. A sale, transfer, or other disposition in one
or more transactions (other than in transactions in the
ordinary course of business or in the nature of a financing)
of the assets or earning power aggregating more than
forty-five percent (45%) of the assets or operating revenues
of the Company to any person or affiliated or associated group
of persons (as defined by Rule 12b-2 of the Exchange Act in
effect as of the date hereof);
14.5.3. The liquidation of the Company;
14.5.4. One or more transactions which result in the
acquisition by any person or associated group of persons
(other than the Company, any Executive benefit plan whose
beneficiaries are Executives of the Company or any of its
subsidiaries) of the beneficial ownership (as defined in Rule
l3d-3 of the Exchange Act, in effect as of the date hereof) of
forty percent
-12-
13
(40%) or more of the Common Stock of the Company or securities
representing forty percent (40%) or more of the combined
voting power of the voting securities of the Company, provided
such affiliated persons owned less than forty percent (40%)
prior to such transaction or transactions; or
14.5.5. The election or appointment, within a twelve
(12) month period, of any person or affiliated or associated
group, or its or their nominees, to the Board of Directors of
the Company, such that such persons or nominees, when elected
or appointed, constitute a majority of the Board of Directors
of the Company and whose appointment or election was not
approved by a majority of those persons who were directors at
the beginning of such period or whose election or appointment
was made at the request of an Acquiring Person. An "Acquiring
Person" is any person who, or which, together with all
affiliates or associates of such person, is the beneficial
owner of twenty percent (20%) or more of the Common Stock of
the Company then outstanding, except that an Acquiring Person
does not include the Company or any Executive benefit plan of
the Company or any of its subsidiaries or any person holding
Common Stock of the Company for or pursuant to such plan. For
the purpose of determining who is an Acquiring Person, the
percentage of the outstanding shares of the Common Stock of
which a person is a beneficial owner shall be calculated in
accordance with Rule 13d-e of the Exchange Act.
14.6. "Code" means the Internal Revenue Code of 1986, as from
time to time amended.
14.7. "Company" means SpeedFam-IPEC, Inc., an Illinois
corporation.
14.8. "Confidential Information" means any and all Technology
and/or information which:
14.8.1. Is provided to the Executive by the Company;
14.8.2. Is created, developed, or otherwise generated
by or on behalf of the Company;
-13-
14
14.8.3. Concerns or relates to any aspect of the
Company's business; or
14.8.4. Is, for any reason, identified by the Company
as confidential.
14.8.5. Notwithstanding the foregoing provisions of
this Section 14.8, Confidential Information shall not include
such information that the Executive can show, clearly and
convincingly:
14.8.5.1. Is publicly and openly known and in the
public domain;
14.8.5.2. Becomes publicly and openly known and in
the public domain through no fault of the Executive; or
14.8.5.3. Is in the Executive's possession and
documented prior to this Agreement, lawfully obtained from a
source other than from the Company, and not subject to any
obligation of confidentiality or restricted use.
14.9. "Constructive Termination" means the voluntary
termination of employment by the Executive following a Change in Duties
following a Change of Control.
14.10. "Exchange Act" means the Securities Exchange Act of
1934, as from time to time amended.
14.11. "Invention" means any new or useful art, discovery, or
improvement (including any technologies, tests, programs, products,
concepts, ideas, apparatus, equipment, machinery, processes, methods,
formulae, designs or techniques), whether or not related to a Product
and whether or not patentable, and all the know-how related thereto.
14.12. "Material Breach" means a willful or grossly negligent
failure to perform the Executive's duties as set forth in this
Agreement.
-14-
15
14.13. "Product" means any product or service which is, or may
in the reasonable future be, manufactured, sold, designed, developed,
considered by, or of interest to the Company or an Affiliate
(including, but not limited to, any product or service involving CMP
planarization technology, such as CMP-V tools or any free-abrasive
machining, lapping, polishing and grinding).
14.14. "Technology" means prototypes, models, concepts,
inventions, circuit designs, drawings, hardware, technological
developments and improvements, methods, techniques, systems,
documentation, data, works of authorship, products, and related
information whether or not patentable, copyrightable, and whether or
not presently used or used in the future.
14.15. "Voting Securities" mean any securities which
ordinarily possess the power to vote in the election of directors
without the happening of any precondition or contingency.
15. Miscellaneous.
15.1. This Agreement supersedes all prior agreements and
understandings by and between the Executive and the Company and any of
its Affiliates or their respective directors, officers, shareholders,
employees, attorneys, agents, or representatives, including any
Severance Agreement, Employment Letter, Employment Terms,
Non-Disclosure Agreement And/Or Employment Agreement (including change
of control provisions) and constitutes the entire agreement between the
parties, respecting the subject matter hereof and there are no
representations, warranties or other commitments other than those
expressed herein.
15.2. The Executive represents and warrants to the Company
that the Executive is not a party to or bound by, and the employment of
the Executive by the Company or the Executive's disclosure of any
information to the Company or its use of such information will not
violate or breach any employment, retainer, consulting, license,
non-competition, non-disclosure, trade secrets or other agreement
between the Executive and any other person, partnership, corporation,
joint venture, association or other entity.
15.3. No modification or amendment of, or waiver under, this
Agreement shall be valid unless signed in writing and signed by the
Executive and
-15-
16
an appropriate officer of the Company, pursuant to expressed authority
of the Board of Directors of the Company.
15.4. The Executive agrees to indemnify the Company and its
Affiliates against, and to hold the Company and its Affiliates harmless
from, any and all claims, lawsuits, losses, damages, expenses, costs
and liabilities, including, without limitation, court costs and
attorney's fees, which the Company or any of its Affiliates may sustain
as a result of, or in connection with, either directly or indirectly,
the Executive's breach or violation of any of the provisions of this
Agreement.
15.5. The Company agrees to indemnify the Executive against,
and to hold the Executive harmless from, any and all claims, lawsuits,
losses, damages, expenses, costs and liabilities, including, without
limitation, court costs and attorney's fees, which the Executive may
sustain as a result of, or in connection with, either directly or
indirectly, the breach or violation by the Company or its Affiliates of
any of the provisions of this Agreement or any applicable law or
regulations.
15.6. The Executive hereby agrees that if the Executive
violates any provision of this Agreement, the Company will be entitled,
if it so elects, to institute and prosecute proceedings at law or in
equity to obtain damages with respect to such violation or to enforce
the specific performance of this Agreement by the Executive or to
enjoin the Executive from engaging in any activity in violation hereof.
15.7. The waiver by either party to this Agreement of a breach
of any provision of this Agreement by the other shall not operate or be
construed as a waiver of any subsequent breach.
15.8. Any communication which may be required under this
Agreement shall be deemed to have been properly given when delivered
personally at the address set forth below for the intended party during
normal business hours, when sent by facsimile or other electronic
transmission to the respective facsimile transmission numbers of the
parties set forth below with telephone confirmation of receipt, or when
sent by U.S. registered or certified mail, return receipt requested,
postage prepaid as follows:
-16-
17
If to the Company: SpeedFam-IPEC, Inc.
000 X. 00xx Xxxxxx
Xxxxxxxx, XX 00000-0000
Attention: Chief Executive Officer
Facsimile: 000-000-0000
Confirm: 000-000-0000
If to the Executive: J. Xxxxxxx Xxxxxx
0000 Xxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Confirm: 000-000-0000
Notices shall be given to such other addressee or address, or both, or
by way of such other facsimile transmission number, as a particular
party may from time to time request by written notice to the other
party to the Agreement. Each notice, request, demand, approval or other
communication which is sent in accordance with this Section shall be
deemed to be delivered, given and received for all purposes of this
Agreement as of two (2) business days after the date of deposit thereof
for mailing in a duly constituted U.S. post office or branch thereof,
one (1) business day after deposit with a recognized overnight courier
service or upon written confirmation of receipt of any facsimile
transmission. Notice given to a party hereto by any other method shall
only be deemed to be delivered, given and received when actually
received in writing by such party.
15.9. This Agreement shall inure to the benefit of and be
binding upon the Company and the Executive and their respective heirs,
personal representatives, successors and assigns.
15.10. All claims, disputes and other matters in question
arising out of, or relating to this Agreement, or the breach thereof,
shall be decided by arbitration, pursuant to the rules established by
the American Arbitration Association for the arbitration of such
disputes, and such arbitration shall occur in Chandler, Arizona.
15.11. This Agreement may be signed in multiple counterparts
which when taken together shall constitute the entire Agreement.
15.12. This Agreement shall be governed and construed in
accordance with the laws of the State of Arizona.
-17-
18
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
SPEEDFAM-IPEC, INC. an Illinois
Corporation
By /s/ Xxxxxxx Xxxxxxx
--------------------------------
Xxxxxxx Xxxxxxx, Chief Executive
Officer
Executive
By /s/ J. Xxxxxxx Xxxxxx
--------------------------------
J. Xxxxxxx Xxxxxx
-18-
