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Exhibit 10.15
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into this 2nd day of June, 1998, by and
between SPEEDFAM INTERNATIONAL, INC., an Illinois corporation (hereinafter
referred to as the "Company") and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (hereinafter referred to as the
"Employee").
W I T N E S S E T H:
WHEREAS, the Company desires to retain the services of the Employee in the
capacities set forth herein, and the Employee 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 Employee hereby agree as follows:
1. Employment. The Company hereby employs the Employee and the
Employee 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, as from time to time amended.
2. Term. Subject to the provisions 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 the day
preceding the first anniversary of the date hereof.
3. Automatic Extension. The term of employment of the Employee
hereunder shall automatically continue for additional one (1) year terms
upon the same terms and conditions contained herein unless either the
Company or the Employee 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.
4. Compensation. The Company agrees to provide the Employee
with the following compensation for all services rendered under this
Agreement:
4.1. Salary. During the term hereof, the Company shall pay to
the Employee a Base Annual Salary of FIVE HUNDRED SEVENTY THREE
THOUSAND FIVE HUNDRED DOLLARS ($573,500), 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 Employee shall
be reviewed annually by the Company and adjusted as appropriate.
4.2. Annual Incentive Opportunity. During the term of this
Agreement, the Employee shall participate in the annual incentive
plan maintained by the Company for its executives.
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4.3. Long-term Incentive Opportunity. During the term of this
Agreement, the Employee 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 determined by the Board.
4.4. Other Benefits. To the extent the Employee is eligible
under the appropriate laws, the Employee 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 Employee shall also receive an
allowance of THIRTEEN THOUSAND SEVEN HUNDRED FIFTY-FOUR DOLLARS
($13,754) annually for automobile expenses.
5. Duties. The Employee shall, subject to election and removal by
the Board of the Company in their sole discretion, serve as PRESIDENT AND
CHIEF EXECUTIVE OFFICER of the Company. As such, the Employee's duties and
responsibilities shall include, but shall not be limited to, overseeing
all corporate functions and directing the organization to assure the
attainment of agreed upon sales and profit goals and maximum return on
invested capital. Subject to the approval of the Board of the Company, the
President/Chief Executive Officer is responsible for the formulation of
current and long range plans and objectives, and represents the
organization with its customers and the business and non-business
communities. The Employee shall also be responsible for the performance of
such other duties and responsibilities as may be prescribed from time to
time by the Board of the Company.
6. Extent of Service. The Employee shall devote the Employee'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 the Company, with such
approval not unreasonably being withheld.
7. Working Facilities. The Employee shall be furnished with office
space, furnishings, secretarial support and such other facilities and
services which are reasonably necessary for the performance of the
Employee's duties.
8. Expenses. The Company will reimburse the Employee for all
reasonable business expenses which are incurred by the Employee in the
promoting of the interests of the Company upon presentation by the
Employee from time to time (at least monthly) of an itemized account of
such expenses containing such detail as may reasonably be required by the
Board of Directors of the Company.
9. Vacation. The Employee shall be entitled to paid vacation in
accordance with Company policy as set forth in the Company's Employee
Handbook. All vacation
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time shall be taken by the Employee at such times as shall be mutually
agreed upon by the Employee and the Board of Directors of the Company.
10. Disability. If, as a result of sickness or other disability, the
Employee is not able to perform the Employee'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 Employee 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
Employee participates, provided the Employee 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 Employee on Disability Leave of Absence. During
such period, the Company shall, for the remainder of the contract
term, or until the Employee 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 Employee participates, provided the Employee remains eligible to
participate thereunder. Further, the Company shall pay to the
Employee, two-thirds (2/3) of the Employee's Base Annual Salary,
reduced by any payments for which the Employee is eligible from any
disability insurance programs maintained by the Company.
11. Death. If the Employee dies during the term of this Agreement,
the Company shall pay to the Employee's Beneficiary (or if there is no
named Beneficiary, the estate of the Employee), the compensation as set
forth in Section 4 of this Agreement, for the period up to the date of the
Employee's death. 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 Employee's death.
12. Termination of Employment.
12.1. Termination for Cause. The Company may terminate the
Employee's employment under this Section of the Agreement for Cause.
Cause shall be defined as:
12.1.1. The Employee's Material Breach of this Agreement,
which breach is not cured within ten (10) business days after
written notice from the Company specifying such breach has
been delivered to the Employee;
12.1.2. Commission by the Employee of any materially
fraudulent, dishonest or other act of misconduct in the
performance of the
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Employee's duties hereunder, other than at the specific
direction of the Board; or,
12.1.3. Arrest for any felony or crime involving moral
turpitude.
12.1.4. Following a Termination for Cause, the Company shall
pay to the Employee 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, during a
period of two (2) years following a Change of Control, the
employment of the Employee is terminated by the Company for any
reason other than Cause, or if the Employee is subject to
Constructive Termination, benefits shall be payable under this
Section 12.2.
12.2.1. The Employee 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 two (2) times
the sum of (i) the Employee's highest Base Annual Salary
during the Employee's employment with the Company and (ii) the
Employee's highest target annual incentive award opportunity.
12.2.2. All unvested stock options awarded to the Employee
pursuant to the Company's stock option plans shall immediately
vest in full to the Employee; 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. The
Company may elect to terminate the employment of the Employee for
any reason other than Cause or following a Change of Control, upon
written notice to the Employee, accompanied by payment in a lump sum
of:
12.3.1. All compensation accrued up to the date of
termination;
12.3.2. An amount equal to one (1) times the Employee's Base
Annual Salary of record on the date of termination.
12.4. Benefit Payments. Following the termination of the
Employee's employment for any reason, the Company shall pay to the
Employee, under the terms of the Company's benefit plans, an amount
equal to the vested benefits of the Employee in any pension or other
benefit plan as of the termination date. If elected by the Employee,
the Company shall, instead of direct payment to the Employer,
transfer such funds to such other benefit plans as designated by the
Employee.
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13. Restrictive Covenants.
13.1. Employee 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 Employee further
understands that, as a result, certain of the Company's personnel,
including the Employee, acquire information with respect to customer
goodwill, trade secrets and Confidential Information, which, of
itself and apart from the Employee's abilities, could be of great
value to a competitor of the Company, potential competitors of the
Company, and to others.
13.2. The Employee further understands that employment with the
Company is conditioned upon the Company's being able to place
complete trust and confidence in the Employee and to rely on the
Employee'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 Employee during the term of employment
hereunder. The Employee 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 Employee (or continue the
employment of the Employee with appropriate compensation reviews) to
repose trust and confidence in the Employee, and to make
Confidential Information available to the Employee, the Employee
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 Employee will promptly
disclose and assign to the Company, without the right to any form of
compensation therefore, every invention that the Employee,
individually or jointly with others, during the term of the
Employee's employment with the Company 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,
Technology, process, or device dealt in, used or under development
or manufacture by the Company for itself or others or that results
from or may be suggested by any work the Employee may do for the
Company or at the Company's request. The Employee 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 in each country in which the Company may desire to
secure patent or copyright protection. The Employee will promptly
execute all proper documents presented to the Employee for signature
by the Company to enable
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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 Employee will give
such true information and testimony as may be requested of the
Employee 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 Employee to
the Company pursuant to Section 13.4 above.
13.6. The Employee 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 Employee'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;
or;
13.6.2. The Invention results from any work performed by the
Employee for the Company.
13.7. The Employee 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 Employee by the Company or an Affiliate, or
any of its clients, or created, prepared or secured through the
efforts of the Employee, 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 Employee agrees to deliver all such materials, including all
copies thereof, to the Company upon termination of the Employee'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
permission of the Company, the Employee shall never, during or
following the Employee's employment with the Company, directly or
indirectly, sell, use, disclose, lecture
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upon, or publish data of 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 Employee's employment with the
Company and for a period of two (2) years after the termination
thereof, the Employee agrees that the Employee will not:
13.9.1. Own or have any interest in, directly or indirectly,
except through stock traded on a national stock exchange where
the Employee 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 Confidential Information
acquired by the Employee 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 Employee, the Employee 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 Employee understands that if there is a breach by the
Employee 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 Employee
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.
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14. Definitions.
14.1. "Affiliate" means any entity in which the Company, or any
entity which 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
Employee's salary, based on the most recent pay period.
14.3. "Board" means the Board of Directors of the Company.
14.4. "Change in Duties" means:
14.4.1. A significant reduction in the nature or scope of
the Employee's authority or duties from those immediately
prior to the date on which a Change of Control occurs;
14.4.2. A material reduction in the Employee's Base
Annual Salary;
14.4.3. Exclusion from any incentive or benefit program from
which the Employee was previously eligible, and which other
executives with comparable duties participate in;
14.4.4. A change in location of the Employee'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, at least seventy
percent (70%) 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
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employee benefit plan whose beneficiaries are employees of the
Company or any of its subsidiaries) of the beneficial
ownership (as defined in Rule 13d-3 of the Exchange Act, in
effect as of the date hereof) of forty percent (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 employee 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 International, Inc., an
Illinois corporation.
14.8. "Confidential Information" means any and all Technology
and/or information which:
14.8.1. Is provided to the Employee by the Company;
14.8.2. Is created, developed, or otherwise generated
by or on behalf of the Company;
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.
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14.8.5. Notwithstanding the foregoing provisions of this
Section 14.8, Confidential Information shall not include such
information which the Employee 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 Employee; or
14.8.5.3. Is in the Employee'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 Employee 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 negligent failure to
perform the Employee's duties as set forth in this Agreement.
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.
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15. Miscellaneous.
15.1. This Agreement supersedes all prior agreements and
understandings by and between the Employee 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 Employee represents and warrants to the Company that
the Employee is not a party to or bound by, and the employment of
the Employee by the Company or the Employee'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 Employee 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
Employee and an appropriate officer of the Company, pursuant to
expressed authority of the Board.
15.4. The Employee 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 Employee's breach or violation of any of
the provisions of this Agreement.
15.5. The Company agrees to indemnify the Employee against, and
to hold the Employee harmless from, any and all claims, lawsuits,
losses, damages, expenses, costs and liabilities, including, without
limitation, court costs and attorney's fees, which the Employee 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 Employee hereby agrees that if the Employee 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
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Agreement by the Employee or to enjoin the Employee 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:
If to the Company: SpeedFam International, Inc.
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chairman of the Board
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Confirm: ▇▇▇-▇▇▇-▇▇▇▇
If to the Employee: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Confirm: (▇▇▇) ▇▇▇-▇▇▇▇
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 Employee and their respective
heirs, personal representatives, successors and assigns.
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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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
SPEEDFAM INTERNATIONAL, INC. an Illinois
Corporation
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title CHAIRMAN
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Employee
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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