EMPLOYMENT AGREEMENT
EXHIBIT
10.6
This Employment Agreement (the
“Agreement”), made and entered into this 13th day
of May, 2002 (the “Effective Date”), by and between NEXX Systems, LLC, a
Delaware limited liability company with its principal offices located at 00
Xxxxxxxxxx Xxx, Xxxxxxxxxx, XX 00000 (“NEXX”), and Xxxxxx Xxxxxxx (the
“Employee”), an individual residing at 00 Xxxxx Xxxx, Xxxxxxxxx, XX
00000. As used herein, the term “Company” shall mean and refer to (i)
NEXX prior to the consummation of the Merger Transaction (as defined below) and
(ii) AWT from and after the consummation thereof.
WHEREAS, the Employee currently works
for All Wet Technologies, Inc. (“AWT”);
WHEREAS,
NEXX and AWT are currently negotiating a merger agreement between the companies
(the “Merger Agreement”), pursuant to which NEXX would be merged with and into a
wholly-owned subsidiary of AWT (the “Merger Transaction”);
WHEREAS, the Company wishes to employ
the Employee in connection with the development of a product line for
photo-resist and metal deposition tools (the “Product Line”);
WHEREAS, the Employee possesses the
skills necessary to fulfill that need; and
WHEREAS, the Employee and the Company
desire to enter into a formal Employment Agreement to assure the harmonious
performance of the affairs of the Company.
NOW, THEREFORE, in consideration of the
mutual promises, terms, provisions, and conditions contained herein, the parties
hereto agree as follows:
1.
Employment.
The Company hereby agrees to employ the
Employee and the Employee agrees to report to the President and Board of
Directors of the Company. In addition to the Employee’s initial role
in connection with the development of the Product Line, the Employee agrees to
perform such other services for the Company as may be assigned from time to time
by the President and/or the Board of Directors of the Company. The
Employee accepts such employment upon the terms and conditions hereinafter set
forth, and further agrees to perform to the best of his ability the duties
associated with such position as determined by the President and the Board of
Directors of the Company (the “Board”). The Employee shall devote his
full business time and attention to his duties hereunder.
2.
Term of
Employment.
The term of the Employee’s employment
under this Agreement will commence on the Effective Date. Subject to
the provisions of Sections 10 and 11 of this Agreement, the term of the
Employee’s employment hereunder shall be for a three (3) year period commencing
on the Effective Date (the “Initial Term”). The Initial Term shall be
automatically extended for successive one (1) year periods (each an “Additional
Term”) unless the Company or the Employee gives the other notice of
non-extension at least sixty (60) days before the end of the Initial Term or the
then-current Additional Term. The Initial Term and any Additional
Terms together shall be referred to as the “Term.” The last day of
the Term shall be referred to as the “Expiration Date,” irrespective of any
earlier termination in accordance with the terms of this Agreement.
3.
Compensation and
Benefits.
a. Salary. As
compensation for services to be rendered pursuant to this
Agreement, the Company agrees to pay the Employee a base salary (the
“Salary”) at an annual rate of (i) commencing on the Effective Date and
continuing for the remainder of the first year of the Initial Term, ONE HUNDRED
AND SEVENTY FIVE THOUSAND DOLLARS ($175,000). Thereafter, and during
any Additional Term, the Board, in its discretion, may
determine
appropriate increases to the Employee’s Salary, provided, however,
that in no event shall the Employee’s Salary be diminished below the initial
rate or any increased rate without the mutual consent of the Employee and the
Company. The Salary shall be payable in such installments as is the
standard payroll practice of the Company.
b.
Bonus.
i. One-time Signing
Bonus. Upon the consummation of the Merger Transaction,
the Employee shall be entitled to a one-time signing bonus amounting to Two
Hundred and Fifty Thousand Dollars ($250,000) (the “Signing Bonus”) which shall
accrue as a legal obligation of the Company at the Effective Time, as that term
is defined in the Merger Agreement. The Signing Bonus is payable as
follows: (i) One Hundred Fifty Thousand Dollars ($150,000), payable
in cash at the Effective Time, and (ii) One Hundred Thousand Dollars ($100,000),
payable on the twelve (12) month anniversary of the Effective Date, pursuant to
the terms of a Promissory Note, a copy of which is attached hereto as
Exhibit
A.
ii. Employee Bonus
Plan. The Employee shall be entitled to participate
in the
Company’s employee bonus plan in accordance with the terms of such
plan. The Company shall have the discretion to determine the amount
of any bonus paid to the Employee. However, the Employee will be
eligible to receive a maximum bonus under such plan not to exceed 30% of his
annual Salary for the year to which any bonus relates. The Employee’s
bonus eligibility will be linked directly to the profitability of the Company’s
“Stratus” (Wet processing products) product line.
c.
Equity.
i. Stock
Options. Upon the closing of the Merger Transaction and
during
the course of the Employee’s employment with the Company, the Employee will be
eligible to receive stock options pursuant to the Company’s prospective 2002
Employee, Director, and Consultant Stock Option Plan (or any successor plan) in
such amounts and pursuant to vesting schedules as may be determined from time to
time by the Company’s Board of Directors, in its discretion, taking into
account, among other factors, the Employee’s performance and the Company’s
performance.
ii. Restricted
Stock. Contemporaneously with the closing of the
Merger Transaction (the “Merger Closing Date”), the Employee and the Company
shall enter into the Company’s standard form of Stock Restriction Agreement,
pursuant to which (A) the Employee shall grant to the Company the right to
repurchase up to 100% of the outstanding shares of AWT capital stock (the
“Employee Restricted Stock”) owned by the Employee immediately prior to the
Merger Closing Date (less any of such shares that are subject to a general
indemnity escrow pursuant to the Merger Agreement) at a per share price equal to
one one-hundredth of one cent ($0.0001), (B) such repurchase right shall lapse
as to one-third of the shares of Employee Restricted Stock on each of the first
three anniversaries of the Merger Closing Date and (C) the Employee shall
deliver the Employee Restricted Stock to the Company to be held in escrow
pursuant to such Stock Restriction Agreement.
d. Benefits.
(i) Employee Benefit Plans
Generally. The Employee shall be entitled to participate in all employee
benefit plans which the Company provides or may establish from time to time for
the benefit of its Employee employees, including without limitation group life,
medical, dental, surgical and other health insurance, short and long-term
disability, 401(k) and similar plans.
(ii) Vacation. The
Employee shall be entitled to 21 days of vacation time for each twelve (12)
month period during the Term, which may be taken at such time(s) as the Employee
may elect, subject to the needs of the Company’s business. The
Employee shall also be entitled to all paid holidays that the Company provides
to its employees, as well as all religious holidays that he
observes. The Employee shall not have the right to carry-over any
vacation days earned during any one year period to a subsequent year and
therefore, any such unused vacation days shall be forfeited by the
Employee.
2
(iii) Life
Insurance. The Company agrees to take all reasonable action to
purchase and maintain, with the cooperation of the Employee, a life insurance
policy in the name of the Employee and in the amount of $1,000,000, during the
term of this Agreement; provided, that, the Employee’s application for such
insurance is approved and underwritten with standard terms and conditions and
with standard premiums.
e. Expenses. The
Company shall pay or reimburse the Employee for all reasonable out-of-pocket
expenses actually incurred by the Employee during the Term in performing
services hereunder, including without limitation, those expenses associated with
travel, entertainment and other business expenses, provided that the Employee
provides receipts and proof for such expenses in accordance with the Company’s
policies.
4. Confidentiality, Disclosure
of Information.
The Employee recognizes and
acknowledges that he will have access to Confidential Information (as defined
below) relating to the business or interests of the Company or of persons with
whom the Company may have business relationships. Except as permitted
herein, the Employee will not during the Term, or at any time following the
Term, disclose or permit to be known to any other person or entity (except as
required by applicable law or in connection with the performance of the
Employee’s duties and responsibilities hereunder), or use for the Employee’s
personal benefit or gain, any Confidential Information of the
Company. The term “Confidential Information” includes, without
limitation, information relating to the Company’s business affairs, proprietary
technology, trade secrets, processes, plans, products, source codes, sources of
supply and material, operating or other cost-data, research and development
data, know-how, market studies and forecasts, competitive analyses, pricing
policies, price lists or data relating to pricing of the Company’s products or
services, training materials, supplier information, operating procedures,
employee lists, employment agreements, personnel policies, the substance of
agreements with customers, suppliers and others, marketing arrangements, and
customer lists, customer proposals, and information relating to business
operations and strategic plans of third parties with which the Company has or
may be assessing commercial arrangements, any of which information is not
generally known to the public or to actual or potential competitors of the
Company (other than through a breach of this Agreement). Therefore,
the Employee will not, without the prior written consent of the Board, disclose
such Confidential Information or use the same. This obligation shall
continue until such Confidential Information becomes publicly available, other
than pursuant to a breach of this Section 4 by the Employee, regardless of
whether the Employee continues to be employed by the Company. It is
further agreed and understood by and between the parties to this Agreement that
all information and records relating to the Company, as hereinabove described,
shall be the exclusive property of the Company and, upon termination of
Employee’s employment with the Company, all documents, records, reports,
writings and other similar documents containing Confidential Information,
including copies thereof, then in the Employee’s possession or control shall be
returned to and left with the Company.
5.
Inventions Discovered by
Employee.
The
Employee represents that the attached Exhibit B contains a
complete list of all inventions made, conceived or first reduced to practice by
the Employee, under the Employee’s direction or jointly with others prior to the
Employee’s employment with the Company (“Prior Inventions”) and which are not
assigned to the Company hereunder. If disclosure of any such Prior
Invention would cause me to violate any prior confidentiality agreement, the
Employee understands that the Employee shall not to list such Prior Inventions
in Exhibit B
but shall only disclose a cursory name for each such invention, a listing of the
party(ies) to whom it belongs and the fact that full disclosure as to such
invention has not been made for that reason. A space is provided on
Exhibit B for
such purpose. If there is no such Exhibit B attached
hereto, the Employee represents that there are no such Prior
Inventions. If, in the course of the Employee’s employment with the
Company, the Employee incorporate a Prior Invention into a Company product,
process or machine, the Company is hereby granted and shall have a nonexclusive,
royalty-free, irrevocable, perpetual, worldwide license (with rights to
sublicense through multiple tiers of sublicensees) to make, have made, modify,
use and sell such Prior Invention. Notwithstanding the foregoing, the
Employee agrees that the Employee will not incorporate, or permit to be
incorporated, Prior Inventions in any Inventions of the Company without the
Company’s prior written consent.
The Employee shall promptly disclose to
the Company any invention, improvement, discovery, process, formula, design,
method or other intellectual property, whether or not patentable, whether or not
copyrightable (collectively, “Inventions”), that relates to any line of business
in which the Company engages and is made,
3
conceived
or first reduced to practice by the Employee, either alone or jointly with
others, while performing services hereunder (or, if based on or related to any
Confidential Information, made by the Employee within two (2) years after the
termination of such employment) which (a) pertain to any line of business
activity of the Company, whether then conducted or then being planned by the
Company, (b) are aided by the use of time, material or facilities of the
Company, whether or not during working hours or on the Company premises, or (c)
relate to any of the Employee’s work during the period of the Employee’s
employment with the Company, whether or not during normal working
hours. The Employee hereby assigns to the Company all of the
Employee’s right, title and interest in and to any such
Inventions. During and after the Term, the Employee shall execute any
documents necessary to perfect the assignment of such Inventions to the Company
and to enable the Company to apply for, obtain and enforce patents, trademarks
and copyrights in any and all countries on such Inventions, including, without
limitation, the execution of any instruments and the giving of evidence and
testimony, without further compensation beyond the Employee’s agreed
compensation during the course of the Employee’s employment. Without
limiting the foregoing, the Employee further acknowledges that all original
works of authorship by the Employee, whether alone or jointly with others
related to the Employee’s employment with the Company and which are protectable
by copyright are “works made for hire” within the meaning of the United States
Copyright Act, 17 U.S.C. § 101, as amended, the copyright of which shall be
owned solely, completely and exclusively by the Company. If any
Invention is considered to be work not included in the categories of work
covered by the United States Copyright Act, 17 U.S.C. § 101, as amended,
such work shall be owned solely by, or hereby assigned or transferred
completely, exclusively to, the Company. The Employee hereby
irrevocably designates counsel to the Company as the Employee’s agent and
attorney-in-fact to execute and file any such document and to do all lawful acts
necessary to apply for and obtain patents and copyrights and to enforce the
Company’s rights under this Section. This Section 5 shall survive the
termination of this Agreement.
6. Non-Competition and
Non-Solicitation.
The Employee acknowledges that the
Company invests substantial time, money and resources in the development and
retention of its Inventions, Confidential Information (including trade secrets)
customers, accounts and business partners, and further acknowledges that during
the course of the Employee’s employment, the Employee will have access to the
Company’s Inventions and Confidential Information (including trade secrets), and
will be introduced to existing and prospective customers, accounts and business
partners of the Company. The Employee acknowledges and agrees that
any and all “goodwill” associated with any existing or prospective customer,
account or business partner belongs exclusively to the Company including, but
not limited to, any goodwill created as a result of direct or indirect contacts
or relationships between the Employee and any existing or prospective customers,
accounts or business partners. The parties to this Agreement
expressly acknowledge and agree that the Employee possesses skills that are
special, unique or extraordinary, and that the value of the Company depends, in
substantial part, upon the Employee’s use of such skills on the Company’s
behalf.
In recognition of this, the Employee
covenants and agrees that:
(a) During
the Employee’s employment with the Company, and for a period of one (1) year
commencing on the termination of the Employee’s employment by the Company or the
Employee, the Employee may not, without the prior written consent of the Board,
(whether as an employee, agent, servant, owner, partner, consultant, independent
contractor or representative, stockholder or in any other capacity whatsoever)
perform any work for, or conduct any business with, any entity or person
(including the Employee) which is engaged in the research, development,
production, manufacture or marketing of equipment or processes in direct
competition with the Company or any other line of business engaged in or under
demonstrable development by the Company during the Employee’s employment or at
the time of termination thereof (such entity or person being hereinafter
referred to as a "Prohibited Enterprise"). The Employee hereby
represents that he is not engaged in any of the foregoing capacities for any
Prohibited Enterprise. The parties agree that, given the specific and
global nature of the Company’s business, any geographical limitations on this
non-competition agreement are inappropriate.
(b) During
the Employee’s employment with the Company and for a period of one (1) year
commencing on the termination of the Employee’s employment with the Company, the
Employee may not, directly or indirectly, entice, solicit or encourage any
Company employee to leave the employ of the Company or any independent
contractor to sever the independent contractor’s engagement with the Company,
nor may the Employee, directly or indirectly, be involved in the recruitment or
hiring of any Company employee or any independent contractor who is then-engaged
by the Company on behalf of the Employee or any person or entity other than the
Company, absent prior written consent to do so from the Board.
4
(c) During
the Employee’s employment with the Company and for a period of one (1) year
commencing on the termination of the Employee’s employment with the Company, the
Employee may not, directly or indirectly, entice, solicit or encourage any
customer or business partner, or any prospective customer or business partner,
of the Company to cease doing business with the Company, reduce the level of
business it conducts with the Company or commence doing business with any other
entity.
7. Non-Disparagement.
Excepting statements made in good faith
for purposes of advancing the interests of the Company, the Employee hereby
agrees that during the course of the Employee’s employment with the Company and
at all times thereafter, the Employee will not make any statement that is
professionally or personally disparaging about, or adverse to, the interests of
the Company, any of its officers, directors, shareholders or employees
including, but not limited to, any statement that disparages any person,
product, service, finances, financial condition, capabilities or other aspect of
the business of the Company or any of its officers, directors, shareholders or
employees. The Employee further agrees that during the course of the
Employee’s employment with the Company and at all times thereafter, the Employee
will not engage in any conduct that is intended to or has the result of
inflicting harm upon the professional or personal reputation of the Company or
any of its officers, director, shareholders or employees. Upon the
termination of the Employee’s employment hereunder, the Company agrees to advise
its officers and directors not to make any statement that is professionally or
personally disparaging about, or adverse to, the Employee or engage in any
conduct that is intended to or has the result of inflicting harm upon the
professional or personal reputation of the Employee.
8. Provisions Necessary and
Reasonable.
(a) The
Employee agrees that (i) the provisions of Sections 4, 5, 6 and 7 of this
Agreement are necessary and reasonable to protect the Company’s Confidential
Information, Inventions, and goodwill; (ii) any and all specific temporal,
geographic and substantive provisions set forth in Section 6 of this Agreement
are reasonable and necessary to protect the Company’s business interests; and
(iii) in the event of any breach of any of the covenants set forth herein, the
Company would suffer substantial irreparable harm and would not have an adequate
remedy at law for such breach. In recognition of the foregoing, the
Employee agrees that in the event of a breach or threatened breach of any of
these covenants, in addition to such other remedies as the Company may have at
law, without posting any bond or security, the Company shall be entitled to seek
and obtain equitable relief, in the form of specific performance, and/or
temporary, preliminary or permanent injunctive relief, or any other equitable
remedy which then may be available. The seeking of such injunction or
order shall not affect the Company’s right to seek and obtain damages or other
equitable relief on account of any such actual or threatened
breach.
(b) If
any of the covenants contained in Sections 4, 5, 6 and 7 hereof, or any part
thereof, are hereafter construed to be invalid or unenforceable, the same shall
not affect the remainder of the covenant or covenants, which shall be given full
effect without regard to the invalid portions.
(c) If
any of the covenants contained in Sections 4, 5, 6 and 7 hereof, or any part
thereof, are held to be unenforceable by a court of competent jurisdiction
because of the temporal or geographic scope of such provision or the area
covered thereby, the parties agree that the court making such determination
shall have the power to reduce the duration and/or geographic area of such
provision and, in its reduced form, such provision shall be
enforceable.
9. Representations Regarding
Prior Work and Legal Obligations.
(a) The
Employee represents that the Employee has no agreement or other legal obligation
with any prior employer or any other person or entity that restricts the
Employee’s ability to continue employment with, or to perform any function for,
the Company, as described in this Agreement.
5
(b) The
Employee acknowledges that he has not and will not misappropriate any Invention
that the Employee played any part in creating while working for any former
employer.
(c) The
Employee acknowledges that the Company is basing important business decisions on
these representations, and affirms that all of the statements included herein
are true.
10. Termination and
Severance.
Notwithstanding the provisions of
Section 2 of this Agreement, the Employee’s employment hereunder may terminate
under the following circumstances:
(a) Termination by the Company
Without Cause. The Employee’s employment hereunder may be
terminated, without Cause (as defined below) by the Company upon seven (7) days
written notice to the Employee; provided, however,
that if the Company terminates the Employee’s employment without Cause, the
Company shall (i) continue to pay the Employee’s Salary for a period of six (6)
months or until such time as the Employee obtains substitute employment at not
less than 75% of the Employee’s Salary hereunder as of the time of termination,
whichever occurs first; (ii) provide the Employee with health insurance coverage
for a period of six (6) months that is the same or substantially similar to that
provided to the Employee while employed by the Company at substantially the same
cost to the Employee; (iii) pay the Employee, within five (5) days of
termination, for all accrued but unused vacation time earned through the date of
termination; (iv) pay, within five (5) days of termination, the Employee the pro
rata portion of his annual Bonus earned through the termination date; (v) pay
within five (5) days of termination all other accrued wages or bonuses including
the balance due on the Promissory Note; (vi) take all necessary and reasonable
action, in the ordinary course of business, to pay any other accrued employee
benefits to the Employee, in accordance with the Company’s Employee Benefit
Plans and as required under applicable state and federal laws; (vii) forfeit the
Company’s repurchase rights to all Employee Restricted Stock under Section
3(c)(ii) and upon termination, Employee will become fully vested in such
Employee Restricted Stock; provided, further,
that notwithstanding anything to the contrary set forth in this Section 10(a) of
the Agreement, the Company and the Employee hereby acknowledge and agree that if
the Merger Transaction does not occur as contemplated by the Merger Agreement,
the Company shall have the right to terminate the Employee hereunder without
cause and without any obligation to make any payment required under this Section
10(a)(i) – (vii), upon seven (7) days written notice to the
Employee.
(b) Termination by the Company
for Cause. The Company may terminate this Agreement for Cause
at any time, upon written notice to the Employee setting forth in reasonable
detail the nature of such Cause which notice shall be effective immediately
unless a later date is stated in such notice. For purposes of this
Agreement, the Company shall have “Cause” to terminate Employee’s employment
hereunder upon (i) any act or omission that consists of the Employee’s material
breach of the terms of this Agreement; (ii) the Employee’s material failure to
perform the Employee’s duties hereunder after written notice by the Company
detailing the nature of such failure the expiration of a twenty (20) day period
in which to cure such failure; (iii) the Employee’s conviction for
any felony involving moral turpitude or that relates to Company business or
assets; or (iv) any act or omission which constitutes a “for cause” termination
under applicable law. Upon the giving of written notice of
termination for Cause of the Employee’s employment, the Company shall have no
further obligation or liability to the Employee other than for compensation
earned under this Agreement to the date of termination, which shall include any
accrued but unused vacation time. In addition, upon a termination
under this Section 10(b), the Company shall take all necessary and reasonable
action, in the ordinary course of business, to pay any other accrued employee
benefits to the Employee, in accordance with the Company’s Employee Benefit
Plans and as required under applicable state and federal laws.
(c) Death. In
the event of the Employee’s death during the Term of this Agreement, the
Employee’s employment hereunder shall immediately and automatically terminate,
and the Company shall have no further obligation or duty to the Employee other
than for compensation earned under this Agreement to the date of termination
(which shall include any accrued but unused vacation time). In
addition, upon a termination under this Section 10(c), the Company shall take
all necessary and reasonable action, in the ordinary course of business, to pay
any other accrued employee benefits to the Employee, in accordance with the
Company’s Employee Benefit Plans and as required under applicable state and
federal laws.
6
(d) Disability. The
Company may terminate the Employee’s employment hereunder, upon written notice
to the Employee, in the event that the Employee becomes disabled during the
Employee’s employment under this Agreement through any illness, injury,
accident, or condition of either a physical or psychological nature and, as a
result, is, with or without reasonable accommodation, unable to perform the
essential functions and services contemplated hereunder for (a) a period of
ninety (90) consecutive days, or (b) for shorter periods aggregating one hundred
twenty (120) days during any twelve (12) month period during the
Term. Any such termination shall become effective upon mailing or
hand delivery of notice that the Company has elected its right to terminate
under this subsection 10(d), and the Company’s obligations to the Employee under
such circumstances shall be limited to compensation earned under this Agreement
to the date of termination, which shall include any accrued but unused vacation
time. In addition, upon a termination under this Section 10(d), the
Company shall take all necessary and reasonable action, in the ordinary course
of business, to pay any other accrued employee benefits to the Employee, in
accordance with the Company’s Employee Benefit Plans and as required under
applicable state and federal laws. Upon the Company’s termination of
the Employee’s employment under this Section 10(d), the Company’s repurchase
rights to the Employee Restricted Stock under Section 3(c)(ii) shall be
partially forfeited and upon such termination, the Employee Restricted Stock
will be vested through the next anniversary of the Effective Date, following
such termination.
|
11.
|
Change of
Control.
|
|
(a)
|
In
the event of a Change of Control (as defined herein), and if, subsequent
to such Change of Control,
|
(i) the
Employee’s job duties, job location and/or compensation (including his base
Salary, and Bonus), are not substantially similar to those performed and/or
enjoyed by the Employee prior to such Change of Control, and the Employee
terminates this Agreement by giving at least thirty (30) days prior written
notice to the Company; or
(ii) the
Company terminates this Agreement without Cause (as defined in Section 10
above),
then the
Company must provide the Employee with the following:
(a) the
Employee’s base Salary through the date of termination at the rate in effect on
the date of the Change of Control, plus any accrued but unused vacation
time;
(b)
severance pay in the amount of the Employee’s annual base Salary for six (6)
months at the rate in effect on the date of the Change of Control;
(c)
health insurance coverage for a one (1) year period following the date of
termination that is the same or substantially similar to that provided to the
Employee while employed by the Company at substantially the same cost to the
Employee;
(d)
immediate vesting of all of the Employee Restricted Stock, to the extent not
already vested, such that the Company’s repurchase rights under Section 3(c)(ii)
shall be forfeited;
(e) an
acceleration of vesting equal to one year for the stock options awarded to the
Employee, which shall become immediately exercisable and which shall remain
exercisable for the periods specified in the underlying stock option agreement;
and
(f) the
unpaid balance under the Promissory Note.
For purposes of this Section 11(a), the
Employee’s job location shall be deemed “substantially similar” so long as the
Employee’s job location is located within a fifty (50) mile radius of the
Company’s current offices located at 00 Xxxxxxxxxx Xxx, Xxxxxxxxxx,
Xxxxxxxxxxxxx 00000.
7
(b) As
used herein, a “Change of Control” shall be deemed to occur at any time
following the consummation of the Merger Transaction, if:
the
shareholders of the Company approve, other than the Merger Transaction, (A) any
consolidation or merger of the Company (x) where the shareholders of the
Company, immediately prior to the consolidation or merger, would not,
immediately after the consolidation or merger, beneficially own, directly or
indirectly, shares representing in the aggregate more than fifty percent (50%)
of the combined voting power of all the outstanding securities of the
corporation issuing cash or securities in the consolidation or merger (or of its
ultimate parent corporation, if any), or (y) where the members of the
Board, immediately prior to the consolidation or merger, would not, immediately
after the consolidation or merger, constitute more than fifty percent (50%) of
the Board of the Company issuing cash or securities in the consolidation or
merger (or of its ultimate parent corporation, if any), (B) any sale,
lease, exchange or other transfer (in one transaction or a series of
transactions contemplated or arranged by any party as a single plan) of all or
substantially all of the assets of the Company or (C) any plan or proposal
for the liquidation or dissolution of the Company.
12. Miscellaneous.
(a) Assignment. The
Employee acknowledges and agrees that the rights and obligations of the Company
under this Agreement may be assigned by the Company to any affiliates or
successors in interest, including, but not limited to a prospective assignment
of this Agreement by the Company to AWT or its successor, in connection with the
Merger Transaction. The Employee further
acknowledges and agrees that this Agreement is personal to the Employee and that
the Employee may not assign any rights or obligations hereunder.
(b) Withholding. All
payments required to be made by the Company to the Employee under this Agreement
shall be subject to withholding taxes, social security and other payroll
deductions in accordance with the Company’s policies applicable to employees at
the Employee’s level.
(c) Entire
Agreement. This Agreement sets forth the entire agreement
between the parties and supersedes any prior communications, agreements and
understandings, whether written or oral.
(d) Seal and Governing
Law. This Agreement shall take effect as an instrument under
seal and shall be governed by, and construed in accordance with, the laws of the
State of Massachusetts, without regard to the conflicts of law principles
thereof.
(e) Amendments. Any
attempted modification of this Agreement will not be effective unless signed by
a specifically authorized officer of the Company and the Employee.
(f) Waiver of
Breach. The parties agree that a breach of any provision of
this Agreement may only be waived on behalf of the Employee by the Employee in
writing or, on behalf of the Company, in writing signed by a specifically
authorized officer of the Company. The waiver by the Employee or the
Company of a breach of any provision of this Agreement shall not operate or be
construed as a waiver of any subsequent breach.
(g) Severability. If
any provision of this Agreement should, for any reason, be held invalid or
unenforceable in any respect by a court of competent jurisdiction, then the
remainder of this Agreement, and the application of such provision in
circumstances other than those as to which it is so declared invalid or
unenforceable, shall not be affected thereby, and each such provision of this
Agreement shall be valid and enforceable to the fullest extent permitted by
law.
(h) Notices. Any
notices, requests, demands and other communications provided for by this
Agreement shall be in writing and shall be effective when delivered by private
messenger, private overnight mail service, or facsimile as follows (or to such
other address as either party shall designate by notice in writing to the other
in accordance herewith):
8
If to the
Company: NEXX
Systems, LLC
00 Xxxxxxxxxx Xxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Post,
President
With a copy
to: Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx,
Esq.
If to
Employee: Xx.
Xxxxxx Xxxxxxx
00 Xxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
With a copy
to: Semmes,
Xxxxx & Xxxxxx, P.C.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxxxxx X. Xxxxxx,
Esq.
(i) Survival. The
Employee and the Company agree that certain provisions of this Agreement shall
survive the expiration or termination of this Agreement and the termination of
the Employee’s employment with the Company. Such provisions shall be
limited to those within this Agreement which, by their express and implied
terms, obligate either party to perform beyond the termination of the Employee’s
employment or termination of this Agreement.
(j) Disclosure and
Confidentiality. The Employee agrees that the Company may
provide, in its discretion, a copy of the covenants contained in this Agreement
to any business or enterprise which the Company may directly or indirectly own,
manage, operate, finance, join, control or in which the Company participates in
the ownership, management, operation, financing or control, or with which the
Company may be connected or may become connected as an officer, director,
Employee, partner, principal, agent, representative, consultant or
otherwise. The Employee also agrees that the Company may disclose a
copy of this Agreement if legally- required to do so, and in connection with a
partnering transaction, financing, or public offering. The Employee
further agrees not to disclose the existence or terms of this Agreement to any
person other than the Employee’s immediate family and legal, financial or
accounting consultants and to the Board of Directors and stockholders of AWT
prior to the Effective Time (as defined in the Merger Agreement).
(k) Reassignment. The
Employee acknowledges and agrees that should the Employee transfer between or
among any affiliates of the Company, wherever situated, or otherwise become
employed by any Company affiliate, or be promoted or reassigned to functions
other than the Employee’s present functions, all terms of this Agreement shall
continue to apply with full force. This subsection 12(k) shall in no
way limit the Employee’s rights under subsection 10(c).
(l) Rights of Other
Individuals. This Agreement confers rights solely on the
Employee and the Company. This Agreement is not a benefit plan and
confers no rights on any individual or entity other than the
undersigned.
(m) Headings. The
parties acknowledge that the headings in this Agreement are for convenience of
reference only and shall not control or affect the meaning or construction of
this Agreement.
(n) Counterparts. This
Agreement may be signed in counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party
hereto shall have received counterparts hereof signed by the other party
hereto.
[THE
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
9
IN
WITNESS WHEREOF, the undersigned have duly executed this Agreement as of the
day and
year set forth below.
| EMPLOYEE | NEXX SYSTEMS, LLC | |||
|
By:
/s/ Xxxxxx Xxxxxxx
|
By:
/s/ Xxxxxxx X. Post
|
|||
|
Xxxxxx Xxxxxxx
|
Name:
Xxxxxxx X. Post
|
|||
|
|
Title:
President
|
|||
| Dated: May10, 2002 | Dated: May 13, 2002 |
10
EXHIBIT
A
Promissory Note
($100,000)
11
EXHIBIT
B
List of Employee’s
Inventions
12
