Exhibit 4.2
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement"), made this 27th day of October,
2003, is entered into between Besi USA Inc., a Delaware corporation, with its
principal place of business at Besi Die Handling at 00 Xxxxxx Xxxxxx,
Xxxxxxxxxxx, XX 00000 (the "Company"), and Xxxx Xxxxxxx, an individual residing
at Xxxxxxxxxxx(xxxx)x 00, 0000 Xxxxxxxxxxx, Xxxxxxxxxxx (the "Employee").
The Company desires to employ the Employee, and the Employee desires to
be employed by the Company. In consideration of the mutual covenants and
promises contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the parties hereto,
the parties agree as follows:
1. Term of Employment. The Company hereby agrees to employ the
Employee, and the Employee hereby accepts employment with the Company, upon the
terms set forth in this Agreement, for the period commencing on the date of this
Agreement first set forth above (the "Commencement Date"), and ending on October
27, 2007 (such period as it may be extended, the "Employment Period"); provided,
however, that commencing October 27, 2007 and each January 1 thereafter, the
term shall extend for one additional calendar year unless, not later than 60
days prior to January 1 of any such year, either party elects not to extend the
Agreement by giving written notice to the other party; and further provided that
such Employment Period may be sooner terminated in accordance with the
provisions of Section 4.
2. Title; Capacity. The Employee shall serve as Managing Director
of Besi Die Handling or in such other position as the Company or its Board of
Directors (the "Board") and the Employee may mutually agree. The Employee shall
be based at the Company's headquarters in Londonderry, New Hampshire or at such
place or places as may be reasonably designated by the Board; provided, however,
that should the Employee be based outside the Counties of Hillsborough,
Rockingham or Merrimack in the State of New Hampshire, and should the Employee
reasonably determine that such relocation requires him to move his personal
residence, all reasonable moving expenses incurred by the Employee relating to
the relocation of the Employee's personal effects to his new residence shall be
borne by the Company. The Employee shall undertake such travelling both within
the United States and abroad and in such manner and on such occasions as may
reasonably be necessary for the effective discharge of his duties under this
Agreement. The Employee shall be subject to the supervision of, and shall have
such authority as is reasonably delegated to him by the Board of Directors of
the Company.
The Employee hereby accepts such employment and agrees to undertake the
duties and responsibilities inherent in such position and such other duties and
responsibilities as the Board or its designee shall from time to time reasonably
assign to him. The Employee agrees to devote his entire business time, attention
and energies to the business and interests of the Company during the Employment
Period. The Employee agrees to abide by the rules, regulations, instructions,
personnel practices and policies of the Company and any changes therein which
may be adopted from time to time by the Company and delivered or otherwise made
known to the Employee. Prior to the date hereof, the Company has delivered to
the Employee copies of all such rules and policies committed to writing as of
the date of this Agreement.
3. Compensation and Benefits.
3.1. Salary. The Company shall pay to the Employee, at
such times as the Company pays its employees in general, an annualized base
salary of Two Hundred Forty Thousand Dollars (US$ 240,000.00). The base salary
may be increased from time to time during the Employment Period, but may only be
decreased during the Employment Period by mutual agreement of the Board and the
Employee. The Employee shall be entitled to such bonuses, if any, as from time
to time are approved by the Board.
3.2. Fringe Benefits. The Employee shall be entitled to
participate in all benefit programs, if any, that the Company establishes and
makes generally available to other executive employees of the Company, subject
to the general eligibility requirements of such programs, including the BE
Semiconductor Industries N.V. cash incentive compensation plans and the BE
Semiconductor Industries N.V. Stock Option Plan. The Employee shall be entitled
to five (5) weeks paid vacation per year, to be taken at such times as may be
approved by the Board or its designee. All unused vacation in any year shall be
forfeited and shall not carry over to any other year, provided, however, that if
any portion of vacation benefit is unused as the result of valid Company
business reasons not in the Employee's control, such unused vacation may be
carried over from year to year.
3.3. Continuation of Health Insurance. If the Employee's
employment with the Company is terminated pursuant to Section 4.1 or 4.5, the
Company shall pay directly to its insurer the full cost of the Employee's health
insurance coverage for the remainder of the period during which the severance
payments, if any, are being paid to the Employee.
3.4. Reimbursement of Expenses. The Company shall
reimburse the Employee for all reasonable travel, entertainment and other
expenses incurred or paid by the Employee in connection with, or related to, the
performance of his duties, responsibilities or services under this Agreement,
upon presentation by the Employee of documentation, expense statements, vouchers
and/or such other supporting information as the Company may request; provided,
however, that the amount available for such travel, entertainment and other
expenses may reasonably be fixed in advance by the Board.
4. Employment Termination. The employment of the Employee by the
Company pursuant to this Agreement shall terminate upon the occurrence of any of
the following:
4.1. At the election of the Company, at any time without
Cause (as defined below) and for any reason, immediately upon written notice to
the Employee;
4.2. At the election of the Company, for Cause,
immediately upon written notice to the Employee;
4.3. At the election of the Employee, upon not less than
60 days prior written notice of termination;
4.4. The death of the Employee;
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4.5. The total disability of the Employee (meaning the
inability of the Employee to perform the majority of his basic duties of his
position due to injury or illness) which continues for any period of ninety (90)
or more consecutive days within the Employment Period.
For purposes of this Agreement, "Cause" shall mean (A) theft or
embezzlement of Company property, (B) willful misconduct of the Employee in
intentional disregard for the best business interests of the Company, (C)
willful failure by the Employee to perform his or her responsibilities to the
Company (including, without limitation, a material breach by the Employee of any
provision of any employment, consulting, advisory, nondisclosure,
non-competition or other similar written agreement between the Employee and the
Company), or (D) the conviction of the Employee of, or the entry of a pleading
of guilty or nolo contendere by the Employee to, any crime involving moral
turpitude, embezzlement, theft or other conversion of property, or to a felony.
The Employee shall be considered to have been discharged for "Cause" if the
Company determines, within 30 days after the Employee's resignation, that
discharge for cause was warranted.
5. Effect of Termination.
5.1. Termination by the Company or at the Election of the
Employee. If the Employee's employment is terminated by the Company pursuant to
Section 4.1, 4.4 or 4.5, the Company shall pay the Employee severance in an
amount equal to the Employee's annual base salary for a period of six (6)
months. Said severance payment shall be payable in equal monthly installments
during the applicable period; provided, however, that if the Employee's
employment is terminated pursuant to Sections 4.2 or 4.3, the Company shall pay
the Employee the compensation and benefits which would otherwise be payable to
him through the last day of his actual employment by the Company.
5.2. Survival. The provisions of Sections 5, 6 and 7 shall
survive the termination of this Agreement.
6. Non-Compete and Non-Solicitation.
6.1. Acknowledgment. The Employee recognizes that his
willingness to enter into the restrictive covenants contained in this Section 6
was a critical condition precedent to the willingness of the Company to enter
into and perform under this Agreement. The Employee also acknowledges that the
restrictions contained in this Section 6 will not materially or unreasonably
interfere with the Employee's ability to earn a living.
6.2. Non-Compete and Non-Solicitation.
(a) During the period commencing on the
Commencement Date and ending on the first anniversary of the termination of the
Employee's employment with the Company, the Employee shall not knowingly,
directly or indirectly, as an individual proprietor, partner, stockholder (other
than ownership of not more than 5% of any publicly traded corporation), officer,
employee, director, consultant, joint venturer, investor, agent, distributor,
dealer, representative, lender, or in any other capacity whatsoever:
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(i) design, develop, manufacture, market,
sell, perform or offer anywhere in the world any material, product, component or
service which is competitive with any material, product, component or service
developed (or under development), manufactured, marketed, sold or offered by the
Company; or
(ii) engage anywhere in the world in any
business competitive with the Company.
(b) During the period commencing on the
Commencement Date and ending on the first anniversary of the termination of the
Employee's employment with the Company, the Employee shall not knowingly,
directly or indirectly:
(i) recruit or solicit any employee (as an
employee, consultant or independent contractor) of the Company who on the date
hereof or at any time after the date hereof is an employee of the Company,
except that the Employee shall not be prohibited from hiring any individuals
whose employment the Company has terminated and who the Employee has not induced
or attempted to induce to terminate their employment with the Company, or
otherwise cease their relationship with, the Company, or
(ii) solicit, divert or take away, or
attempt to divert or to take away, the business or patronage of any of the
clients, customers, dealers, distributors, representatives or accounts, or
prospective clients, customers, dealers, distributors, representatives or
accounts, of the Company which were contacted, solicited or served by employees
of the Company while the Employee was employed by the Company.
6.3. Non-Violation. It is specifically agreed that during
the period specified in Sections 6.2(a) and 6.2(b), during which the agreements
and covenants of the Employee made in such Sections shall be effective, shall be
computed by excluding from such computation any time during which the Employee
is in violation of any provision of such Sections.
6.4. Severability. The Employee agrees that the duration
and scope of the non-competition provision set forth in this Section 6 are
reasonable. In the event that any court of competent jurisdiction determines
that the duration or the geographic scope, or both, of the non-competition and
non-solicitation provisions set forth in this Section 6 are unreasonable and
that such provisions are to that extent unenforceable, the parties hereto agree
that the provisions shall remain in full force and effect for the greatest time
period and in the greatest area that would not render them unenforceable. The
parties intend that these non-competition and non-solicitation provisions shall
be deemed to be a series of separate covenants, one for each and every county of
each and every state of the United States of America and each and every
political subdivision of each and every country outside the United States of
America where this provision is intended to be effective.
6.5. Specific Performance. The restrictions contained in
this Section 6 are necessary for the protection of the business and goodwill of
the Company and are considered by the Employee to be reasonable for such
purpose. The Employee agrees that any breach of this Section 6 will cause the
Company substantial and irrevocable damage and therefore, in the event
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of any such breach, in addition to such other remedies which may be available,
the Company shall have the right to seek specific performance and injunctive
relief.
6.6. Definitions. For purposes of this Section 6 and
Section 7 below, the "Company" refers both to the Company, and to BE
Semiconductor Industries N.V. ("BESI") and those of its direct or indirect
subsidiaries that are listed as Exhibit 8 to the most current Form 20-F filed by
BESI and such other direct or indirect subsidiaries as the Company or BESI may
identify in writing to the Employee or which are otherwise known to the
Employee.
7. Proprietary Information and Developments.
7.1. Proprietary Information.
(a) The Employee agrees that all information and
know-how, whether or not in writing, of a private, secret or confidential nature
concerning the Company's business or financial affairs (collectively,
"Proprietary Information") is and shall be the exclusive property of the
Company. By way of illustration, but not limitation, Proprietary Information
shall include inventions, products, processes, methods, techniques, formulas,
compositions, compounds, projects, developments, plans, research data, clinical
data, financial data, personnel data, computer programs, customer and supplier
lists. Except in the ordinary course of business and subject to standard
agreements of non-disclosure binding the recipient of Proprietary Information to
maintain the confidentiality of such Proprietary Information, the Employee will
not knowingly disclose any Proprietary Information to others outside the Company
or use the same for any unauthorized purposes without written approval by the
President and/or Chief Executive Officer of BESI either during or after his
employment, unless and until such Proprietary Information has become public
knowledge without fault by the Employee.
(b) The Employee agrees that all files, letters,
memoranda, reports, records, data, sketches, drawings, notebooks, program
listings, or other written, photographic, or other tangible material containing
Proprietary Information, whether created by the Employee or others, which shall
come into his custody or possession, shall be and are the exclusive property of
the Company to be used by the Employee only in the performance of his duties for
the Company. All such materials or copies thereof and all tangible property of
the Company in the custody or possession of the Employee shall be delivered to
the Company, upon the earlier of (i) a request by the Company or (ii) as soon as
practicable following termination of the Employment Period. After such delivery,
the Employee shall not retain any such materials or copies thereof or any such
tangible property.
(c) The Employee agrees that his obligation not
knowingly to disclose or use information, know-how and records of the types set
forth in paragraphs (a) and (b) above, also extends to such types of
information, know-how, records and tangible property of customers of the Company
or suppliers to the Company or other third parties who may have disclosed or
entrusted the same to the Company or to the Employee in the course of the
Company's business.
7.2. Developments.
(a) The Employee will make full and prompt
disclosure to the Company of all inventions, improvements, discoveries, methods,
developments, software, and
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works of authorship, whether patentable or not, which relate in any way to the
present or planned business or research and development of the Company as may
exist at any time during the Employment Period and which are created, made,
conceived or reduced to practice by the Employee or under his direction or
jointly with others during his employment by the Company, whether or not during
normal working hours or on the premises of the Company (all of which are
collectively referred to in this Agreement as "Developments").
(b) The Employee agrees to assign and does hereby
assign to the Company (or any person or entity designated by the Company) all
his right, title and interest in and to all Developments and all related
patents, patent applications, copyrights and copyright applications. However,
this Section 7.2(b) shall not apply to Developments which do not relate to the
present or planned business or research and development of the Company and which
are made and conceived by the Employee not during normal working hours, not on
the Company's premises and not using the Company's tools, devices, equipment or
Proprietary Information. The Employee understands that, to the extent this
Agreement shall be construed in accordance with the laws of any state which
precludes a requirement in an employee agreement to assign certain classes of
inventions made by an employee, this paragraph 7.2(b) shall be interpreted not
to apply to any invention which a court rules and/or the Company agrees falls
within such classes. The Employee also hereby waives all claims to moral rights
in any Developments, other than Developments which do not relate to the present
or planned business or research and development of the Company as may exist at
any time during the Employment Period and which are made and conceived by the
Employee not during normal working hours, not on the Company's premises and not
using the Company's tools, devices, equipment or Proprietary Information.
(c) The Employee agrees to cooperate with the
Company, at the Company's expense, both during and after his employment with the
Company, with respect to the procurement, maintenance and enforcement of
copyrights and patents (both in the United States and foreign countries)
relating to Developments. The Employee shall sign all papers, including, without
limitation, copyright applications, patent applications, declarations, oaths,
formal assignments, assignment of priority rights, and powers of attorney, which
the Company may deem necessary or desirable in order to protect its rights and
interests in any Development. The Employee further agrees that if the Company is
unable, after reasonable effort, to secure the signature of the Employee on any
such papers, any executive officer of the Company shall be entitled to execute
any such papers as the agent and the attorney-in-fact of the Employee, and the
Employee hereby irrevocably designates and appoints each executive officer of
the Company as well as the Chief Executive Officer of BESI as his agent and
attorney-in-fact to execute any such papers on his behalf, and to take any and
all actions as the Company may deem necessary or desirable in order to protect
its rights and interests in any Development, under the conditions described in
this Section 7.2(c).
7.3. Other Agreements. Except for any agreements between
the Employee and the Company relating to the Employee's previous employment with
the Company and any confidentiality agreements between the Employee and a
business partner of the Company entered into by the Employee while previously
employed by the Company, the Employee hereby represents that he is not bound by
the terms of any agreement with any previous employer or other party to refrain
from using or disclosing any trade secret or confidential or proprietary
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information in the course of his employment with the Company or to refrain from
competing, directly or indirectly, with the business of such previous employer
or any other party. The Employee further represents that his performance of all
the terms of this Agreement and as an employee of the Company does not and will
not breach any agreement to keep in confidence proprietary information,
knowledge or data acquired by him in confidence or in trust prior to his
employment with the Company.
8. Notices. All notices required or permitted under this
Agreement shall be in writing and shall be deemed effective upon personal
delivery or upon deposit in the United States Post Office, by registered or
certified mail, postage prepaid, addressed to the other party at the address
shown above, or at such other address or addresses as either party shall
designate to the other in accordance with this Section 8.
9. Pronouns. Whenever the context may require, any pronouns used
in this Agreement shall include the corresponding masculine, feminine or neuter
forms, and the singular forms of nouns and pronouns shall include the plural,
and vice versa.
10. Entire Agreement. This Agreement constitutes the entire
agreement between the parties and supersedes all prior agreements and
understandings, whether written or oral, relating to the subject matter of this
Agreement.
11. Amendment. This Agreement may be amended or modified only by a
written instrument executed by all of the parties hereto.
12. Arbitration. Except as otherwise expressly provided for
herein, any disputes between the Company and the Employee arising under this
Agreement shall be settled and finally determined by arbitration in accordance
with the rules and procedures of the American Arbitration Association, subject
to the provisions of this Section 12. Any arbitration pursuant to this Section
12 shall be conducted by a single arbitrator selected in accordance with the
Commercial Arbitration Rules of the American Arbitration Association. The
Company and the Employee shall in the first instance bear equally the fees of
the arbitrator, provided, however, the arbitrator shall be permitted to award
costs and/or attorney's fees as he or she may deem just. The arbitrator may
proceed to a resolution notwithstanding the failure of a party to participate in
the proceedings. The location of any such arbitration shall be at a site
mutually agreeable to the parties within Manchester, New Hampshire. The parties
shall instruct the arbitrator to structure the arbitration in a manner so as to
result in a final determination by the arbitrator on a date no later than 3
months following the date of the event giving rise to the arbitration. A
judgment upon the award rendered in any such arbitration shall be final and
binding upon the parties and may be entered in any court having jurisdiction
thereof. Notwithstanding the foregoing, nothing in this Section 12 shall be
construed as limiting, expanding or otherwise affecting in any way the right of
a party to seek injunctive relief with respect to any actual or threatened
breach of this Agreement from a court of competent jurisdiction.
13. Governing Law. This Agreement and all issues relating to this
Agreement and the transactions contemplated hereby shall be governed by,
enforced under and construed in accordance with the laws of the State of New
Hampshire.
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14. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of all of the parties hereto and their respective
successors and assigns, including any corporation with which, or into which, the
Company may be merged or which may succeed to its respective assets or business;
provided, however, that the obligations of the Employee are personal and shall
not be assigned by him.
15. Miscellaneous.
15.1. No delay or omission by a party in exercising any
right under this Agreement shall operate as a waiver of that or any other right.
A waiver or consent given by a party on any one occasion shall be effective only
in that instance and shall not be construed as a bar or waiver of any right on
any other occasion.
15.2. The captions of the sections of this Agreement are
for convenience of reference only and in no way define, limit or affect the
scope or substance of any section of this Agreement.
15.3. In case any provision of this Agreement shall be
invalid, illegal or otherwise unenforceable, the validity, legality and
enforceability of the remaining provisions shall in no way be affected or
impaired thereby.
15.4. This Agreement shall become effective immediately
upon the Closing (as such term is defined in the Stock Purchase Agreement) and
shall be of no force and effect if the Stock Purchase Agreement is terminated in
accordance with its terms.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year set forth above.
Besi USA Inc.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman
EMPLOYEE
/s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
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