Exhibit 10.2
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT entered into as of June 1, 2001 is by and
between Aspect SemiQuip International, Inc., an Arizona corporation (the
"Company"), and Xxxxxxx Xxxxx, an individual residing at 0000 Xxxx Xxxxxx Xxxx,
Xxxxxxx, Xxxxxxx 00000 ("Employee").
RECITALS:
A. Employee has agreed to serve as the President and Chief Executive
Officer of the Company;
B. The Board of Directors of the Company considers sound and vital
management to be essential and desires to have the benefits of
Employee's knowledge, experience, and service; and
C. Employee desires to be employed by the Company and the Company
desires to retain Employee as its President and Chief Executive
Officer on the terms and conditions set forth herein.
AGREEMENTS:
The parties hereto, in consideration of the covenants and agreements set
forth herein and other good and valuable consideration, agree as follows:
1. Definitions. The purposes of this Agreement, the following terms
shall have the meaning indicated thereof:
1.1 Board means the Board of Directors of the Company or any
successor.
1.2 Change In Control Event mean (i) a merger, consolidation or
any exchange of shares of capital stock of the Company
whereby more than fifty percent (50%) of the total combined
voting power of the Shareholders is sold, transferred or
exchanged to any person or entity other than an affiliate of
the Shareholders; (ii) a sale of all or substantially all the
assets of the Company; or (iii) the adoption of a plan of
dissolution or liquidation.
1.3 Change In Control Termination means any termination of
Employee by the Company within ninety (90) days prior to or
one (1) year after the closing of any Change In Control Event
other than a Termination for Cause.
1.4 Company means Aspect SemiQuip International, Inc. or any
successor entity.
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1.5 Compensation means the total amount included in Employee's
gross income for federal income tax purposes in connection
with his employment hereunder for payments or benefits
received under the provisions of Section 2.3.1, 2.3.2, and
2.3.3 hereof.
1.6 Effective date means June 1, 2001.
1.7 Gross Sales Revenue means the total revenue generated by the
Company through fees charged for services rendered or products
sold or any other revenue received by the Company in the
course of business as shown on the Company's audited year-end
financial statements.
1.8 Pre-Tax Net Profits shall mean annual gross revenues less
expenses, not including any bonuses or other case compensation
above the standard salaries paid to employees or consultants
which require the approval of the Board, amortization of debt
service, any depreciation as reported in the Company's audited
year-end financial statements.
1.9 Shareholders shall mean Employee and Xxxxx Xxxxxx as of the
Effective Date.
1.10 Termination For Cause means the termination of employment of
Employee by the Board because of Employee's personal
dishonesty, willful misconduct, breach of fiduciary duty
involving personal profit, intentional failure to perform
stated duties, willful violation of any material law, rule or
regulation resulting in the Company's detriment or reflecting
upon the Company's integrity (other than traffic infractions
or similar minor offenses) or a material breach by the
Employee of the terms of this Agreement and failure to cure
such breach within thirty (30) days after receipt of written
notice from the Company specifying the nature of such breach
or to pay compensation to the Company deemed reasonable by the
Company if the breach cannot be cured. For purposes of this
Agreement, Employee's termination of employment shall not be
considered to be a Termination for Cause unless and until
there shall have been delivered to the Employee a copy of a
resolution, duly adopted by the affirmative vote of not less
than sixty-six (66%) of the entire membership of the Board,
excluding the vote of Employee, at a meeting called and held
for that purpose after reasonable notice to Employee and an
opportunity for him, together with his counsel, to be heard,
finding that, in the good faith opinion of the Board, Employee
is guilty of misconduct of the type described in this Section
1.10, and specifying the particulars
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thereof in detail which determination shall be subject to a
complete and de novo review as to reasonableness and good
faith.
1.11 Total and Permanent Disability means an injury or illness of
the Employee that prevents the performance of customary duties
and which is expected to be a long continued and indefinite
duration and that has caused Employee's absence from service
for at least one hundred eighty (180) days.
2. Employment. The Company hereby retains and employs Employee to serve
in the capacity of President and Chief Executive Officer. Employee
accepts such employment on the terms and conditions set forth
herein.
2.1 Term. The term of this Agreement shall commence on the
Effective Date and shall end, unless previously terminated in
accordance with the provisions of Section 3 hereof, at the
close of business on the day before the first anniversary of
the Effective Date hereof. Notwithstanding the above, should
either party fail to give written notice of an election to
terminate this Agreement at least 60 days prior to the first
anniversary date hereof, this Agreement shall automatically be
renewed for an additional one year period. Such annual
renewals shall thereafter automatically take place unless
either party has given written notice at least 60 days prior
to the next anniversary date.
2.2 Duties and Responsibilities. Employee's position shall be
President and Chief Executive Officer of the Company. The
President and Chief Executive Officer of the Company, subject
to the control of the Board, shall in general supervise and
control all business and affairs of the Company. He shall bear
ultimate responsibility for the success or failure to the
business of the Company and the operating profits or losses.
Employee shall serve in such other executive capacities and
have such additional titles and authorities with respect to
the Company and its subsidiaries as the Board may from time to
time reasonably prescribe. During the term of this Agreement,
Employee shall devote substantially his entire work time,
attention, and energies to the business of the Company and its
subsidiaries. Subject to the provisions of Section 4 hereof,
Employee may serve as a director or member of any other
corporation or entity so long as any such service does not
cause any conflict of interest with the Company.
2.3. Compensation.
2.3.1 Base Salary. Subject to the further provisions of this
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Agreement, the Company agrees to pay to Employee an annual
base salary of One Hundred Fifty Thousand Dollars
($150,000.00), payable no less frequently than in accordance
with the regular payroll practices of the Company, with such
increases as shall be made from time to time in accordance
with the Company's regular salary administrative practices as
applied to Company officers. The base salary of Employee shall
not be decreased at any time during the term of this Agreement
from the amount in effect from time to time, unless the Board
of Directors elects to decrease the same in connection with a
decrease in compensation for all or substantially all of the
Company's executive officers.
2.3.2 Bonus Plans. For each year during the term of this
Agreement, Employee shall be eligible to participate in any
Bonus Plans adopted by the Board for the benefit of the
Company's executives.
2.3.3 Benefits and Benefit Plans. Employee shall be entitled
to participate in any benefits plans that are now or may
hereafter become applicable to the Company's executives, and
any other benefits which are commensurate with the duties and
responsibilities to be performed by the Employee under this
Agreement; including, but not limited to, reimbursement for
reasonable business expenses accounted for in accordance with
applicable governmental regulations; life, long-term
disability and accident insurance plans; employee saving and
investment plans; and medical, dental and hospitalization
insurance plans; without any material reduction in such
benefits as in effect on the Effective Date hereof.
2.3.4 Participation in Retirement and Benefit Plans. The
Employee shall be entitled to participate in any retirement,
pension, thrift or other retirement or employee plan that the
Company has adopted or may adopt for the benefit of its senior
executives.
3. Termination. Employee's employment under this Agreement shall terminate
upon the occurrence of any one of the following events:
3.1 Total and Permanent Disability. In the event Employee suffers Total
and Permanent Disability, the Company may terminate Employee's
employment. Should employment be terminated on or before July 1 of
any year when this Agreement is in effect, Employee shall not be
entitled to receive any bonus payable under any plan adopted by the
Board as described in Section 2.3.2 for the year in which the
termination occurs. Should employment terminate at any time after
June 30, Employee shall
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be entitled to receive the full amount of any bonuses to be paid for
the year in which termination occurs. The date of any bonus payment,
however, shall not be accelerated but shall be paid at the time set
forth in Section 2.3.2. Upon termination by reason of Total and
Permanent Disability, the Company shall pay to Employee such
benefits as may be provided to officers of the Company under any
Company provided disability insurance or similar policy or under any
Company adopted disability plan and in the absence of any such
policy or plan shall continue to pay to Employee for a period of not
less than four (4) years the Compensation then in effect as of the
effective date of Employee's termination. Employee agrees, in the
event of any dispute under this Section as to the existence of
Total and Permanent Disability, to submit to a physical examination
by a licensed physician selected by the Company, the cost of such
examination to be paid by the Company, and the decision as to
Employee's disability shall be conclusive and binding upon the
Company and Employee. Nothing contained herein shall be construed to
affect Employee's rights under any disability insurance or similar
policy, whether maintained by the Company, Employee or another
party.
3.2 Death. In the event of the death of Employee this Agreement shall
terminate and, all obligations of the Company hereunder shall be
extinguished as of the date of Employee's death, except that
Employee's estate or beneficiaries shall have the right to receive
payment of four years of salary paid in equal monthly installments
over the succeeding two year period; and in the event Employee dies
on or before July 1 of any year when this Agreement is in effect,
Employee shall be entitled to receive the full amount of bonuses, if
any, to be paid for the year in which death occurs. The date of any
bonus payment, however, shall not be accelerated but shall be paid
at the time set forth in Section 2.3.2. Nothing contained herein
shall be construed to affect any rights of Employee's estate under
any life insurance or similar policy, whether owned by the Company,
the Employee or any third party.
3.3 Termination for Cause. The Company may effect a Termination for
Cause of Employee. The Company shall have no further obligation to
pay Compensation hereunder after the date of Termination for Cause
and any accrued but unpaid bonus payable under any plan adopted by
the Board as described in Section 2.3.2 shall be immediately
forfeited.
3.4 Voluntary. Should Employee voluntarily terminate his employment
prior to the termination of this Agreement, the Company shall have
no further obligation to pay compensation and any accrued but unpaid
bonus described in Section 2.3.2 shall be forfeited in full.
3.5 Change In Control Termination. Upon the occurrence of any Change In
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Control Termination, Employee shall receive a lump sum payment of
four times his annual base salary in effect on the date of
termination of his employment. In the event of a Change In Control
Termination on or before July 1, Employee shall not be entitled to
receive any bonus payable under any plan adopted by the Board as
described in Section 2.3.2 for the year in which the Change In
Control Termination occurs. In the event of a Change In Control
Termination which occurs after June 30, Employee shall be entitled
to received the full amount of any bonuses to be paid for the year
in which the Change In Control Termination occurs. The date of the
bonus payment, however, shall not be accelerated but shall be paid
at the time set forth in Section 2.3.2.
3.6 Termination without Cause. In the event the Board terminates
Employee for any reason other than those otherwise contained in this
Section 3, Employee shall be entitled to receive the same payments
and benefits as described in Section 3.2.
4 Confidentiality.
4.1 Confidential Information. Employee acknowledges that he has and will
have access to trade secrets and confidential business information
of the Company and its affiliates and subsidiaries throughout the
term of this Agreement and that any such trade secret or
confidential information, regardless of whether Employee alone or
with others developed any such trade secret or confidential
information, shall be and shall remain the property of the Company
or its affiliates or subsidiaries. During the term of this Agreement
and after termination of employment, Employee shall not either
voluntarily or involuntarily, on either his own account, as a member
of a firm, or on behalf of another employee or otherwise, directly
or indirectly use or reveal to any person, partnership, corporation
or association any trade secret or confidential information of the
Company or any of its subsidiaries or affiliates. Such trade secrets
shall include, but shall not be limited to, business plans,
marketing plans, or programs, any non-public financial information,
including but not limited to, financial information, forecasts and
statistics relating to markets, contracts, customer lists,
compensation arrangements and business opportunities, inventions,
formulas, processes, technical plans, drawings, diagrams, flow
charts, programs, methods and practices, price lists and supplier
lists. The terms "trade secrets" shall not include information
generally available to the public or a governmental agency. Employee
will not make available to any person, partnership, corporation or
association, or retain after termination of employment, any Employer
policy manuals, printed materials or computer disc containing
information related to the Company or to any affiliate of the
Company.
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4.2 Injunctive Relief. Employee acknowledges that the restrictions
contained in the Section 4 are a reasonable and necessary protection
of the immediate interests of the Company and its affiliates and
subsidiaries and that any violation of these restrictions would
cause substantial injury to the Company. In the event of a breach or
threatened breach by Employee of these restrictions, the Company
shall be entitled to apply to any court of competent jurisdiction
for any injunction, without the necessity of posting a bond,
restraining Employee from such breach or threatened breach;
provided, however, that the right to apply for any injunction shall
not be construed as prohibiting the Company from pursuing any other
available remedies for such breach or threatened breach.
4.3 Non Competition. Upon termination of this Agreement for any reason,
Employee shall be bound by the terms and provisions of the
Confidentiality and Non Compete Agreement attached hereto as Exhibit
A.
5. Binding Effect; Assignment. This Agreement shall be binding upon and inure
to the benefits of the Employee, the Company and their respective heirs,
executors, administrators, successors and assigns; provided, however, that
Employee may not assign his rights hereunder without the prior written
consent of the Company and may not assign his obligations hereunder. The
Company may assign either its rights or obligations hereunder to any of
its subsidiaries or affiliated corporation or to any successor to
substantially all of the assets or business of the Company.
6. Modification, Waiver or Amendment. The provisions of this Agreement may
not be modified, amended or waived except by a written instrument executed
by the Company and Employee. The waiver of any provision of this Agreement
by either party shall not constitute a waiver of any subsequent
occurrences or transactions unless the waiver, by its terms, constitutes a
continuing waiver.
7. Arbitration. Any disputes related to or arising out of this Agreement or
otherwise relating to Employee's employment with the Company shall be
subject to mandatory binding arbitration before a single arbitrator in
accordance with the rules of the American Arbitration Association ("AAA"),
except that the Company may, in place of or in additional to arbitration,
elect to pursue court remedies for any breach of Section 4 of this
Agreement. The arbitrator shall be selected in accordance with the AAA's
rules for selecting a single arbitrator provided that, if AAA rules call
for selecting an arbitrator by making strikes against a list of
candidates, in the event that there is an odd number of candidates
Employee shall have the first strike and in the event that there is an
even number of candidates that Company shall have the first strike. Except
to the extend contrary to this Agreement or the Company's written policies
regarding arbitration with Employee, the procedural rules that shall
govern the arbitration shall be the rules of the AAA, or in the event that
a particular procedural issue is not governed by the foregoing, the
Arizona Rules of Civil Procedure shall apply except that discovery may be
conducted only upon agreement of the parties or order of the
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arbitrator upon good cause shown, and in issuing discovery orders, the
arbitrator shall consider that the parties have chosen arbitration to
provide for the efficient and inexpensive resolution of disputes. The
forum for the arbitration shall be Phoenix, Arizona. The applicable
substantive law shall be the law chosen to apply to disputes provided by
this Agreement. A party may initiate arbitration under this Section by
making a demand for arbitration and shall serve with that demand a
detailed statement setting forth with particularity the factual and legal
basis for each claim asserted. In the event that the party initiating
arbitration fails to serve on the opposing party the detailed statement of
claims required by this Section, the opposing party shall be entitled to
move to dismiss the arbitration, and upon such motion, such claims shall
be dismissed. Upon the issuance of a decision, the arbitrator shall issue
written findings of fact and conclusions of law. The decision of the
arbitrator shall be in accordance with the express terms and conditions of
this Agreement. Each party shall pay its own attorneys' fees and costs and
shall share the arbitration fees provided that the nonprevailing party
shall reimburse the prevailing party for all reasonable attorneys' fees
and costs, including the arbitration fees, incurred in connection with the
arbitration. Arbitration proceeding and any information related thereto
shall be kept confidential. THE PARTIES ACKNOWLEDGE THAT THEIR AGREEMENT
TO ARBITRATE UNDER THIS SECTION MEANS THAT TRIAL BY JURY OR APPEAL WILL
NOT BE AVAILABLE FOR ANY DISPUTES RELATED TO OR ARISING OUT OF THIS
AGREEMENT OR OTHERWISE RELATING TO EMPLOYEE'S EMPLOYMENT WITH THE COMPANY
INCLUDING WITHOUT LIMITATION DISPUTES INVOLVING ALLEGED EMPLOYMENT
DISCRIMINATION, HARASSMENT, WRONGFUL TERMINATION, AND ANY OTHER CLAIMS
ARISING OUT OF FEDERAL OR STATE STATUTES, COMMON LAW OR PUBLIC POLICY,
EXCEPT THAT THIS SECTION DOES NOT RESTRICT THE RIGHT TO PURSUE COURT
REMEDIES FOR ANY BREACH OF SECTION 4 OF THIS AGREEMENT.
8. No Mitigation. Any compensation earned by Employee from another employer
or from employment not in violation of the provisions of Section 2.2 or
Section 4 hereof, shall not reduce any payment to which Employee is
entitled under the terms of this Agreement.
9. Miscellaneous.
9.1 Entire Agreement. This Agreement rescinds and supersedes any other
agreement and contains the entire understanding between the parties
relative to the employment of Employee, there being no terms,
conditions, warranties, or representations other than those
contained or referred to herein, and no amendment hereto shall be
valid unless made in writing and signed by both of the parties
hereto.
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9.2 Governing Law. This Agreement shall be interpreted and construed in
accordance with the laws of the State of Arizona without regard to
conflicts of law principles as applied to residents of Arizona.
9.3 Severability. In the event that any provisions herein shall be
legally unenforceable, the remaining provisions nevertheless shall
be carried into effect.
9.4 Attorneys' Fees. In the event of any litigation between the parties
hereto arising out of the terms, conditions and obligations
expressed in this Agreement, the prevailing party in such litigation
shall be entitled to recover reasonable attorneys' fees incurred in
connection therewith.
9.5 Notices. All notices required or permitted to be given hereunder
shall be deemed given if in writing and delivered personally or sent
by telex, telegram, telecopy, or forwarded by prepaid registered or
certified mail (return receipt requested) to the party or parties at
the following addresses (are at such other addresses as shall be
specified by like notices), and any notice, however given, shall be
effective when received:
To Employee:
Xxxxxxx X. Xxxxx
0000 Xxxx Xxxxxx Xxxx
Xxxxxxx, XX 00000
To the Company:
Aspect SemiQuip International, Inc.
000 Xxxx Xxxxxx Xxxx
Xxxxxxxx, XX 00000
9.6 Waiver. The waiver by any party 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 of the same provision or any other
provision of this Agreement.
9.7 Counterparts. This Agreement may be executed in one or more
counter-parts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
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9.8 Headings. The subject headings to the sections in this Agreement are
included for purposes of convenience only and shall not affect the
construction or interpretation of any of its provisions.
9.9 Survivorship. The provisions of Section 3.1, 4.1, 4.2, 7 and 8 shall
continue and shall survive the termination of the Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on June 29,
2001, to be effective as of the date first hereinabove written.
ASPECT SEMIQUIP INTERNATIONAL, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------
Its: ________________________
EMPLOYEE
/s/ Xxxxxxx X. Xxxxx
-----------------------------
Xxxxxxx X. Xxxxx
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