EXHIBIT 10b
-----------
----------
AMENDED KEY EMPLOYEE AGREEMENT
----------
To: ▇▇. ▇▇▇▇▇▇▇ ▇. Post As of July 1, 1996
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The undersigned, Applied Science and Technology, Inc., a Delaware
corporation, as well as its successors and assigns(hereinafter collectively
referred to as the "Company"), hereby agree with you as follows:
l. Position and Responsibilities.
1.1 You shall serve as Chairman of the Board and President of the
Company (or in such other executive capacity as shall be designated by the Board
of Directors and reasonably acceptable to you) and shall perform the duties
customarily associated with such capacity from time to time and at such place or
places as the Company shall designate are appropriate and necessary in
connection with such employment; provided, however, that you shall not be
required to relocate your place of employment beyond a 20 mile radius from
Woburn, Massachusetts without your prior written consent.
1.2 You will, to the best of your ability, devote your full time and
best efforts to the performance of your duties hereunder and the business and
affairs of the Company. You agree to perform such executive duties as may be
assigned to you by or on authority of the Company's Board of Directors from time
to time. After receipt of notice of termination of your employment hereunder,
you shall continue to be available to the Company on a part-time basis to assist
in any necessary transition.
1.3 You will duly, punctually and faithfully perform and observe any
and all rules and regulations which the Company may now or shall hereafter
establish governing the conduct of its business.
1.4 You will report directly to the Company's Board of Directors.
2. Term of Employment.
2.1 The initial term of this Agreement shall be for the period of
years set forth on Exhibit "A" annexed hereto commencing with the date hereof.
Thereafter, this Agreement shall be automatically renewed for successive periods
of one year, unless you or the Company shall give the other party not less than
three (3) months written notice of non-renewal. Your employment with the Company
may be terminated at any time as provided in Section 2.2 . If the Company gives
you notice of non-renewal, the Company shall be obligated to pay to you as
Severance Benefits an amount set forth in Sections 7 and 8 of Exhibit "A"
hereto, plus payment in full of any amounts otherwise due you, less applicable
taxes and other required withholdings and any amounts you may owe to the
Company.
2.2 The Company shall have the right, on written notice to you, to
terminate your employment:
(a) immediately at any time for "Cause" (as defined herein
subject to your right of cure and right to dispute as provided in
Section 2.3 herein); or
(b) at any time, upon not less than seven (7) days written
notice, without "Cause" provided the Company shall be obligated to pay
to you as Severance Benefits an amount equal to the sums set forth in
Exhibit "A," plus any sums then due to you, less (i) applicable taxes
and other required withholdings, and (ii) any amounts you may owe to
the Company. Payments under this Section 2.2 (b) shall not be due or
payable if you are terminated at any time for "Cause" or if you
voluntarily resign from your employment.
2.3 For purposes of Section 2.2 (except as provided in Section 8(c)
of Exhibit "A"), the term "Cause" shall mean (a) gross negligence in the
performance of assigned duties; (b) refusal to perform or discharge the duties
or responsibilities assigned by the Board of Directors of Applied Science and
Technology, Inc. provided the same are not illegal, unethical or inconsistent
with the position of Chief Executive Officer of a corporation and the failure to
correct such refusal and perform such duties or responsibilities within two
weeks (14 calendar days) after written notice of such failure; (c) conviction of
a felony involving moral turpitude; (d) willful or prolonged absence from work
not excused by disability; and (e) falseness of any warranty or representation
by you herein or the breach of your obligations under this Agreement or your
duties as an employee of the Company to the material detriment of the Company.
2.4 In the event of the Involuntary Termination of your employment
with the Company at any time, the Company hereby irrevocably agrees to provide
you with Severance Benefits as defined in Section 7 of Exhibit "A" hereto or
payments in the event of a "Change in Control" as defined in Section 8 of
Exhibit "B". In this regard, the phrase "Involuntary Termination" shall mean any
termination of your employment by the Company other than for "cause," as defined
in Section 2.3, any notice by the Company not to renew this Agreement pursuant
to Section 2.1, or any termination of your employment by you due to any of the
following circumstances: (a) a reduction in your Base Salary or Company-paid
benefits, (b) a reduction in your eligibility for any Company bonus or other
benefit program, (c) a material or substantial change in your title, position,
authority or duties, or (d) a change of your principal place of employment from
Woburn, Massachusetts to another location beyond 20 miles of Woburn,
Massachusetts.
3. Compensation You shall receive the compensation and benefits set
forth on Exhibit A hereto ("Compensation") for all services to be rendered by
you hereunder and for your
-2-
transfer of property rights pursuant to an agreement relating to proprietary
information and inventions of even date herewith attached hereto as Exhibit C
between you and the Company (the "Proprietary Information and Inventions
Agreement"). Such Compensation shall be subject to temporary or permanent
reduction by the Board of Directors if the Board shall determine that economic
conditions so warrant.
4. Other Activities During Employment.
4.1 Except for any outside employments and directorships currently
held by you as listed on Exhibit B hereto, and except with the prior written
consent of the Company's Board of Directors, you will not during the term of
this Agreement undertake or engage in any other employment, occupation or
business enterprise other than one in which you are an inactive investor.
4.2 You hereby agree that, except as disclosed on Exhibit B hereto,
during your employment hereunder, you will not, directly or indirectly, engage
(a) individually, (b) as an officer, (c) as a director, (d) as an employee, (e)
as a consultant, (f) as an advisor, (g) as an agent (whether a salesperson or
otherwise), (h) as a broker, or (i) as a partner, coventurer, stockholder or
other proprietor owning directly or indirectly more than five percent (5%)
interest in any firm, corporation, partnership, trust, association, or other
organization 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 (such firm, corporation, partnership, trust,
association, or other organization being hereinafter referred to as a
"Prohibited Enterprise"). Except as may be shown on Exhibit B hereto, you hereby
represent that you are not engaged in any of the foregoing capacities (a)
through (i) in any Prohibited Enterprise.
5. Former Employers.
5.1 You represent and warrant that your employment by the Company
will not conflict with and will not be constrained by any prior or current
employment, consulting agreement or relationship whether oral or written. You
represent and warrant that you do not possess confidential information arising
out of any such employment, consulting agreement or relationship which, in your
best judgment, would be utilized in connection with your employment by the
Company in the absence of Section 5.2.
5.2 If, in spite of the second sentence of Section 5.1, you should
find that confidential information belonging to any other person or entity might
be usable in connection with the Company's business, you will not intentionally
disclose to the Company or use on behalf of the Company any confidential
information belonging to any of your former employers; but during your
employment by the Company you will use in the performance of your duties all
information which is generally known and used by persons with training and
experience comparable to your own all information which is common knowledge in
the industry or otherwise legally in the public domain. 6. Proprietary
Information and Inventions. You agree to execute, deliver and be bound by the
provisions of the Proprietary Information and Inventions Agreement.
-3-
7. Post-Employment Activities.
7.1 For a period of two (2) years after the termination or
expiration, for any reason, of your employment with the Company hereunder,
absent the Company's prior written approval, you will not directly or indirectly
engage in activities similar or reasonably related to those in which you shall
have engaged hereunder during the two years immediately preceding termination or
expiration for, nor render services similar or reasonably related to those which
you shall have rendered hereunder during such two years to, any person or entity
whether now existing or hereafter established which directly competes with (or
proposes or plans to directly compete with) the Company ("Direct Competitor") in
any line of business engaged in or under development by the Company. Nor shall
you entice, induce or encourage any of the Company's other employees to engage
in any activity which, were it done by you, would violate any provision of the
Proprietary Information and Inventions Agreement or this Section 7. As used in
this Section 7.1, the term "any line of business engaged in or under development
by the Company" shall be applied as at the date of termination of your
employment, or, if later, as at the date of termination of any post-employment
consultation.
7.2 For a period of two (2) years after the termination of your
employment with the Company, the provisions of Section 4.2 shall be applicable
to you and you shall comply therewith. As applied to such two (2) year
post-employment period, the term "any other line of business engaged in or under
development by the Company," as used in Section 4.2, shall be applied as at the
date of termination of your employment with the Company or, if later, as at the
date of termination of any post-employment consultation with the Company.
7.3 No provision of this Agreement shall be construed to preclude
you from performing the same services which the Company hereby retains you to
perform for any person or entity which is not a Direct Competitor of the Company
upon the expiration or termination of your employment (or any post-employment
consultation) so long as you do not thereby violate any term of the Proprietary
Information and Inventions Agreement.
8. Remedies. Your obligations under the Proprietary Information and
Inventions Agreement and the provisions of Sections 6,7,8 and 9 of this
Agreement (as modified by Section 10, if applicable) shall survive the
expiration or termination of your employment (whether through your resignation
or otherwise) with the Company. You acknowledge that a remedy at law for any
breach or threatened breach by you of the provisions of the Proprietary
Information and Inventions Agreement or Section 7 would be inadequate and you
therefore agree that the Company shall be entitled to such injunctive relief in
case of any such breach or threatened breach.
The Company's obligations and those of any successors or assignees of
the Company
-4-
under this Agreement, including but not limited to the severance provisions and
other compensation and benefits due to you pursuant to Exhibit "A" hereto, will
be a condition of and are to remain those of any successor or assignee. The
Company acknowledges that a remedy at law for any breach or threatened breach by
the Company, its directors or agents of any of the provisions of Exhibit "A"
hereto or of this Agreement generally, or of any extension of this Agreement,
would be inadequate and the Company therefore agrees that you shall be entitled
to injunctive relief in case of any such breach or threatened breach. In the
event of any dispute pursuant to this Agreement, the prevailing party in any
litigation or arbitration shall be entitled to prompt reimbursement of
reasonable legal fees and related expenses incurred in connection with such
dispute.
9. Assignment. This Agreement and the rights and obligations of the
parties hereto shall bind and inure to the benefit of any successor or
successors of the Company by reorganization, merger or consolidation and any
assignee of all or substantially all of its business and properties, but, except
as to any such successor or assignee of the Company, neither this Agreement nor
any rights or benefits hereunder may be assigned by the Company or by you,
except by operation of law.
10. Interpretation. IT IS THE INTENT OF THE PARTIES THAT in case any
one or more of the provisions contained in this Agreement shall, for any reason,
be held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect the other provisions of this
Agreement, and this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein. MOREOVER, IT IS THE
INTENT OF THE PARTIES THAT in case any one or more of the provisions contained
in this Agreement shall for any reason be held to be excessively broad as to
duration, geographical scope, activity or subject, such provision shall be
construed by limiting and reducing it as determined by a court of competent
jurisdiction, so as to be enforceable to the extent compatible with applicable
law.
11. Notices. Any notice which the Company is required to or may desire
to give you shall be given by personal delivery or registered or certified mail,
return receipt requested, addressed to you at your address of record with the
Company, or at such other place as you may from time to time designate in
writing. Any notice which you are required or may desire to give to the Company
hereunder shall be given by personal delivery or by registered or certified
mail, return receipt requested, addressed to the Company at its principal
office, or at such other office as the Company may from time to time designate
in writing. The date of personal delivery or the date of mailing any notice
under this Section 11 shall be deemed to be the date of delivery thereof.
12. Waivers. If either party should waive any breach of any provision
of this Agreement, such party shall not thereby be deemed to have waived any
preceding or succeeding breach of the same or any other provision of this
Agreement.
-5-
13. Complete Agreement; Amendments. The foregoing including Exhibits A,
B and C hereto, is the entire agreement of the parties with respect to the
subject matter hereof, superseding any previous oral or written communications,
representations, understandings, or agreements with the Company or any officer
or representative thereof. Any amendment to this Agreement or waiver by the
Company of any right hereunder shall be effective only if evidenced by a written
instrument executed by the parties hereto, upon authorization of the Company's
Board of Directors.
14. Headings. The headings of the Sections hereof are inserted for
convenience only and shall not be deemed to constitute a part hereof nor to
affect the meaning of this Agreement.
15. Counterparts. This Agreement may be signed in two counterparts,
each of which shall be deemed an original and both of which shall together
constitute one agreement.
16. Governing Law. This Agreement shall be governed by and construed
under Massachusetts law.
17. Arbitration of Disputes. Subject to the rights of the parties to
seek injunctive relief as described herein, any controversy or claim arising out
of, or relating to, any provision of this Agreement shall be settled by binding
arbitration in accordance with the laws of the Commonwealth of Massachusetts by
three arbitrators, one of whom shall be appointed by the Company, one of whom
shall be appointed by you, and the third arbitrator who shall be appointed by
the first two arbitrators. If the first two arbitrators cannot agree on the
appointment of a third arbitrator, then the third arbitrator shall be appointed
by the American Arbitration Association in the City of Boston. Such arbitration
shall be conducted in the City of Boston in accordance with the rules of the
American Arbitration Association, except with respect to the selection of
arbitrators, which shall be as provided in this Section. Judgment on the award
rendered by the arbitrators may be entered in any court having jurisdiction
thereof and shall not be appealable. The prevailing party in such arbitration
proceeding shall be entitled to reimbursement by the other party of all
reasonable legal fees and other costs incurred by the prevailing party in
connection with such proceeding, including any legal fees and costs incurred in
connection with the enforcement of any award.
[THIS SPACE INTENTIONALLY LEFT BLANK]
-6-
If you are in agreement with the foregoing, please sign your name below
and also at the bottom of the Proprietary Information and Inventions Agreement,
whereupon this Agreement shall become binding in accordance with its terms.
Please then return this Agreement to the Company. (You may retain for your
records the accompanying counterpart of this Agreement enclosed herewith).
Very truly yours,
APPLIED SCIENCE AND
TECHNOLOGY, INC.
By:
-----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President
Accepted and Agreed:
---------------------------------
▇▇▇▇▇▇▇ ▇. Post, Ph.D.
-7-
EXHIBIT A
EMPLOYMENT TERM, COMPENSATION AND BENEFITS
OF ▇▇▇▇▇▇▇ ▇. POST, Ph.D.
l. Term. The term of the Agreement to which this Exhibit A is annexed and
incorporated shall be for a period from the date of this Agreement
through December 31, 1999.
2. Compensation.
(a) Base Salary. Your Base Salary shall be $170,000.00 per
annum through June 28, 1997, payable in accordance with the Company's
payroll policies. For Fiscal 1998 and 1999, Base Salary shall be as
established by the Board of Directors but in any event in an amount no
less than $170,000.00.
(b) Bonus. You shall be entitled to such bonuses as the Board
of Directors may determine.
(c) Stock Option Grants. In addition to other stock options
now held by you, you shall be entitled to receive additional stock
option grants as determined by the Board of Directors.
3. Vacation. You shall be entitled to all legal and religious holidays,
and four weeks paid vacation per annum. Any unused vacation may be
accrued or cashed in based on your then current Base Salary.
4. Insurance and Benefits. You shall be eligible for participation in any
health, dental and other group insurance plans which may be established
by the Company or which the Company is required to maintain by law.
5. Retirement Plan. You will be eligible to participate in the Company's
401(k) Plan.
6. Other Benefits. You shall be entitled to benefits otherwise available
to all employees.
7. Severance Benefits.
(a) When provided for in this Agreement, you shall be entitled to
"Severance Benefits". When used in this Agreement, the term Severance Benefits
shall mean a total amount equal to (i) your then current annual Base Salary,
plus (ii) your Bonus earned for the Company's most recent fiscal year. This
total amount shall be paid to you in twelve (12) equal monthly installments
commencing within ten (10) days after the date of your termination of active
employment with the Company.
A-1
(b) In addition, the term "Severance Benefits" shall include the
continuation for you and your family, during the Severance Period, as defined
below, of all of the other benefits which are provided or available to you on
the last day of your actual service with the Company, including your continued
accrual and the vesting under the terms of any pension or 401(k) plan then
sponsored by the Company to the maximum extent permitted by law. For purposes of
this Agreement, the term "Severance Period" means the period of twelve (12)
months beginning on the last day of your active service with the Company.
(c) The lump sum payment referred to above will be in addition to, and
not in substitution for, any accrued and unpaid salary, vacation, pension,
retirement or other benefits, unreimbursed expenses or other payments to which
you may be otherwise entitled.
(d) In the event of your death while you are employed by the Company,
your then current Base Salary shall continue to be paid to your legal
representative for a period of 120 days following the date of your death; and
for a period of three (3) years following your death, the Company shall continue
to provide to your spouse the health insurance coverage described above. If you
die during the Severance Period, all cash amounts which would have been payable
to you under this Exhibit "A", unless otherwise provided for herein, shall be
paid in accordance with the terms of this Agreement to your estate.
(e) You shall not be required to mitigate the amount of any payment the
Company becomes obligated to make to you in connection with this Agreement, by
seeking other employment or otherwise.
8. Change in Control.
(a) For purposes of this Agreement, "Change in Control" means and shall
be deemed to occur if any of the following occurs:
(i) the acquisition, after September 30, 1994, by an individual,
entity or group [within the meaning of Section 13(d)(3) or 14(d)(2) of
the Securities Exchange Act of 1934 as amended (the "Exchange Act")] of
beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 20% or more of either (A) the outstanding
shares of common stock, par value $ .01 per share, of the Company (the
"Common Stock"), or (B) the combined voting power of the voting
securities of the Company entitled to vote generally in the election of
directors (the "Voting Securities"); or (ii) Individuals who, on
January 1, 1997, constituted the Board of Directors of the Company (the
"Incumbent Board") cease for any reason to constitute at least a
majority of the Board of Directors of the Company; provided, however,
that any individual becoming a director subsequent to January 1, 1997
whose election, or nomination for election by the Company's
shareholders, was approved by a vote of at least a majority of the
directors then
A-2
serving and comprising the Incumbent Board shall be considered as
though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of either an actual or
threatened election contest (as such terms are used in Rule 14a-11 of
Regulation 14A promulgated under the Exchange Act) or other actual or
threatened solicitation of proxies or consents; or (iii) Approval by
the Board of Directors or the shareholders of the Company of a (A)
tender offer to acquire any of the Common Stock or voting securities,
(B) reorganization, (C) merger or (D) consolidation, other than a
reorganization, merger or consolidation with respect to which all or
substantially all of the individuals and entities who were the
beneficial owners, immediately prior to such reorganization, merger or
consolidation, of the Common Stock and voting securities beneficially
own, directly or indirectly, immediately after such reorganization,
merger or consolidation, more than 80% of the then outstanding common
stock and voting securities (entitled to vote generally in the election
of directors) of the Company resulting from such reorganization, merger
or consolidation in substantially the same proportions as their
respective ownership, immediately prior to such reorganization, merger
or consolidation, of the Common Stock and the voting securities; or
(iv) Approval by the Board of Directors or the shareholders of the
Company of (A) a complete or substantial liquidation or dissolution of
the Company, or (B) the sale or other disposition of all or
substantially all of the assets of the Company, excluding a
reorganization of the Corporation under the corporate laws of a state
or province other than Delaware.
(b) In the event of a Change in Control during the term of this
Agreement or any extension hereof and provided you remain employed by the
Company for a period of 12 months, you will receive, at the one-year anniversary
of the Change of Control, a supplemental amount in a lump sum equal to 150% of
your current Base Salary and Bonuses paid during the preceding fiscal year, and
the fair market value of all other benefits then payable, irrespective of
whether you thereafter actually terminate employment with the Company.
(c) In the event of your actual termination of employment
contemporaneous with or following a Change in Control, except (x) because of
your death, (y) by the Company for Cause or Disability (as each is hereinafter
defined) or (z) by you other than for Good Reason (as hereinafter defined): (i)
you shall be entitled to receive, in lieu of the sums described in this Section
7, an amount equal to 299% of Severance Benefits due determined as if payable
under Section 7 above, to be paid in accordance with the terms of this
Agreement; and (ii) the following additional provisions shall apply (which
provisions shall supersede any other provisions of the Agreement, including but
not limited to Section 2 of the Agreement, to the extent such provisions are
inconsistent with the following provisions):
(1) Disability. For purposes of this Section 8(c), termination by
the Company of your employment based on "Disability" shall mean termination
because of your absence from
A-3
your duties with the Company on a full time basis for one hundred eighty (180)
consecutive days as a result of your incapacity due to physical or mental
illness, unless within thirty (30) days after Notice of Termination (as
hereinafter defined) is given to you following such absence, you shall have
returned to the full time performance of your duties.
(2) Cause. For purposes of this Section 8(c), termination by the
Company of your employment for "Cause" shall mean termination or for cause as
defined in Sections 2.2(a), (c) or (d).
(3) Good Reason. Termination by you of your employment for "Good
Reason" shall mean termination based on:
(A) a determination by you, in your reasonable judgment, that
there has been a material adverse change in your status or position(s) as an
executive officer of the Company as in effect immediately prior to the Change in
Control, including, without limitation, a material adverse change in your status
or position as a result of a diminution in your duties or responsibilities
(other than, if applicable, any such change directly attributable to the fact
that the Company is no longer publicly owned) or the assignment to you of any
duties or responsibilities which are inconsistent with such status or
position(s), or any removal of you from, or any failure to reappoint or reelect
you to, such position(s) (except in connection with the termination of your
employment for Cause or Disability or as a result of your death or by you other
than for Good Reason);
(B) a reduction by the Company in your Base Salary as in effect
immediately prior to the Change in Control;
(C) the failure by the Company to continue in effect any Plan
(as hereinafter defined) in which you are participating at the time of the
Change in Control of the company (or Plans providing you with at least
substantially similar benefits) other than as a result of the normal expiration
of any such Plan in accordance with its terms as in effect at the time of the
Change in Control, or the taking of any action, or the failure to act, by the
Company which would adversely affect your continued participation in any of such
Plans on at least as favorable a basis to you as is the case on the date of the
Change in Control or which would materially reduce your benefits in the future
under any of such Plans or deprive you of any material benefit enjoyed by you at
the time of the Change in Control;
(D) the failure by the Company to provide and credit you with
the number of paid vacation days to which you are then entitled in accordance
with the Company's normal vacation policy as in effect immediately prior to the
Change in Control;
(E) the Company's requiring you to be based at any office that
is greater than ten miles from where your office is located immediately prior to
the Change in Control except for required travel on the Company's business to an
extent substantially consistent
A-4
with the business travel obligations which you undertook on behalf of the
Company prior to the Change in Control;
(F) the failure by the Company to obtain from any Successor (as
hereinafter defined) the assent to this Agreement contemplated by Section
8(c)(7) hereof;
(G) any purported termination by the Company of your employment
which is not effected pursuant to a Notice of Termination satisfying the
requirements of Section (8)(c)(4) below (and, if applicable, Section 8(c)(2)
above); and for purposes of this Agreement, no such purported termination shall
be effective; or
(H) any refusal by the Company to continue to allow you to
attend to matters or engage in activities not directly related to the business
of the Company which, prior to the Change in Control, you were permitted by the
Board to attend to or engage in.
For purposes of this Agreement, "Plan" shall mean any compensation plan
or any employee benefit plan such as a thrift, pension, profit sharing, medical,
disability, accident, life insurance plan or a relocation plan or policy or any
other plan, program or policy of the Company intended to benefit employees.
(4) Notice of Termination. Any purported termination by the Company
or by you following a Change in Control shall be communicated by written notice
to the other party hereto which indicates the specific termination provision in
this Agreement relied upon (the "Notice of Termination").
(5) Date of Termination. "Date of Termination" following a Change
in Control shall mean (A) if your employment is to be terminated for Disability,
thirty (30) days after Notice of Termination is given (provided that you shall
not have returned to the performance of your duties on a full-time basis during
such thirty (30) day period), (B) if your employment is to be terminated by the
Company for any reason other than death or Disability or by you pursuant to
Sections 8(c)(3)(F) or 8(c)(7) hereof or for any other Good Reason, the date
specified in the Notice of Termination, or (C) if your employment is terminated
on account of your death, the day after your death. In the case of termination
of your employment by the Company for Cause pursuant to Subsection 8(c)(2)
hereof, if you have not previously expressly agreed in writing to the
termination, then within thirty (30) days after receipt by you of the Notice of
Termination with respect thereto, you may notify the Company that a dispute
exists concerning the Termination, in which event the Date of Termination shall
be the date set either by mutual written agreement of the parties or by such
court having the matter before it. During the pendency of any such dispute, the
Company will continue to pay you your full compensation in effect just prior to
the time the Notice of Termination is given and until the dispute is resolved.
However, if such court issues a final and non-appealable order finding that the
Company had Cause to terminate you, then you must return all compensation paid
to you after the Date of Termination specified in the Notice of Termination
previously received by you.
A-5
(6) Compensation Upon Termination or During Disability; Other
Agreements.
(A) During any period following a Change in Control of the Company
that you fail to perform your duties as a result of incapacity due to physical
or mental illness, you shall continue to receive your Base Salary at the rate
then in effect and any benefits or awards under any Plan shall continue to
accrue during such period, to the extent not inconsistent with such Plans, until
and unless your employment is terminated pursuant to and in accordance with this
Section 8(c). Thereafter, your benefits shall be determined in accordance with
the Plans then in effect.
(B) If your employment is terminated for Cause following a Change
in Control of the Company, the Company shall pay to you your Base Salary through
the Date of Termination at the rate in effect just prior to the time a Notice of
Termination is given plus any benefits or awards (including both the cash and
stock components) which pursuant to the terms of any Plans have been earned or
become payable, but which have not yet been paid to you. Thereupon the Company
shall have no further obligations to you under this Agreement.
(7) Successors, Binding Agreement.
(A) The Company will seek, by written request at least five (5)
business days prior to the time a Person becomes a Successor (as hereinafter
defined), to have such Person, by agreement in form and substance satisfactory
to you, assent to the fulfillment of the Company's obligations under this
Agreement. Failure of such Person to furnish such assent by the later of (i)
three (3) business days prior to the time such Person becomes a Successor or
(ii) two (2) business days after such Person receives a written request to so
assent shall constitute Good Reason for termination by you of your employment if
a Change in Control of the Company occurs or has occurred. For purposes of this
Agreement, "Successor" shall mean any person that succeeds to, or has the
practical ability to control (either immediately or with the passage of time),
the Company's business directly, by merger or consolidation, or indirectly, by
purchase of the Company's securities eligible to vote for the election of
directors, or otherwise.
(B) This Agreement shall inure to the benefit of and be enforceable
by your personal legal representatives, executors, administrators, successors,
heirs, distributees, devisees and legatees. If you should die while any amount
would still be payable to you hereunder if you had continued to live, all such
amounts, unless otherwise provided herein, shall be paid in accordance with the
terms of this Agreement to your devisee, legatee or other designee or, if no
such designee exists, to your estate.
(C) For purposes of this Section 8, the "Company" shall include any
subsidiaries of the Company and any corporation or other entity which is the
surviving or continuing entity in respect of any merger, consolidation or form
of business combination in which the Company ceases to exist; provided, however,
for purposes of determining whether a Change
A-6
in Control has occurred herein, the term "Company" shall refer to Applied
Science and Technology, Inc. or its Successor(s).
(8) Fees and Expenses; Mitigation.
(A) The Company shall reimburse you, on a current basis, for all
reasonable legal fees and related expenses incurred by you in connection with
the Agreement following a Change in Control of the Company, including without
limitation, (i) all such fees and expenses, if any, incurred in contesting or
disputing any termination of your employment or (ii) your seeking to obtain or
enforce any right or benefit provided by this Agreement, in each case,
regardless of whether or not your claim is upheld by a court of competent
jurisdiction; provided, however, you shall be required to repay any such amounts
to the Company to the extent that a court issues a final and non-appealable
order setting forth the determination that the position taken by you was
frivolous or advanced by you in bad faith.
(B) You shall not be required to mitigate the amount of any payment
the Company becomes obligated to make to you in connection with this Agreement,
by seeking other employment or otherwise.
(9) Taxes. All payments to be made to you under this Agreement will
be subject to required withholding of federal, state and local income and
employment taxes.
(d) Notwithstanding any other provision of this Agreement, in the
event that any payment of benefit received or to be received by you as a result
of or in connection with a Change in Control, whether pursuant to the terms of
this Agreement or any other plan, arrangement or agreement with the Company (all
such payment and benefits being hereinafter called the "Total Payments") would
subject you to the excise tax (the "Excise Tax") imposed under Section 4999 of
the Internal Revenue Code of 1986, as amended (the "Code"), then, to the extent
necessary to eliminate any such imposition of the Excise Tax (after taking into
account any reduction in the Total Payments in accordance with the provisions of
any other plan, arrangement or agreement, if any), (a) any non-cash severance
payments otherwise payable to you shall first be reduced (if necessary, to
zero), and (b) any cash severance payment otherwise payable to you shall next be
reduced. For purposes of the immediately preceding sentence, (i) no portion of
the Total Payments the receipt or enjoyment of which you shall have effectively
waived in writing shall be taken into account, (ii) no portion of the Total
Payment shall be taken into account which in the opinion of
nationally-recognized tax counsel or certified public accountants (in each case
as selected by you) does not constitute a "parachute payment" within the meaning
of Section 280G of the Code, including, without limitation, by reason of Section
280G(b)(2) or (b)(4)(A) of the Code, (iii) any payments to you shall be reduced
only to the extent necessary so that the Total Payments [other than those
referred to in clauses (i) and (ii)] in their entirety constitute reasonable
compensation for services actually rendered within the meaning of section
280G(4)(B) of the Code or are otherwise not subject to disallowance as
deductions, in the opinion of the tax counsel or the accountants referred to in
clause (ii); and (iv) the value of any
A-7
non-cash benefit or any deferred payment or benefit included in the Total
Payments shall be determined by such accountants in accordance with the
requirements of section 280G(d)(3) and (4) of the Code (and such determination
shall be reviewed by such tax counsel).
A-8
EXHIBIT B
OUTSIDE EMPLOYMENTS AND DIRECTORSHIPS OF
▇▇▇▇▇▇▇ ▇. POST, Ph.D.
None
B-1
EXHIBIT C
--------------------------------------------------------------------------------
PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
--------------------------------------------------------------------------------
To: Applied Science and Technology, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
As of July 1, 1996
The undersigned, in consideration of and as a condition of my
employment or continued employment by you and/or by companies which you own,
control, or are affiliated with or their successors in business (collectively,
the "Company"), hereby agrees as follows:
1. Confidentiality. I agree to keep confidential, except as the Company
may otherwise consent in writing, and, except for the Company's benefit, not to
disclose or make any use of at any time either during or subsequent to my
employment, any Inventions (as hereinafter defined), trade secrets, confidential
information, knowledge, data or other information of the Company relating to
products, processes, know-how, designs, formulas, test data, customer lists,
business plans, marketing plans and strategies, pricing strategies, or other
subject matter pertaining to any business of the Company or any of its
affiliates, which I may produce, obtain, or otherwise acquire during the course
of my employment, except as herein provided. I further agree not to deliver,
reproduce or in any way allow any such trade secrets, confidential information,
knowledge, data or other information, or any documentation relating thereto, to
be delivered to or used by any third parties without specific direction or
consent of a duly authorized representative of the Company.
2. Conflicting Employment; Return of Confidential Material. I agree
that during my employment with the Company I will not engage in any other
employment, occupation, consulting or other activity relating to the business in
which the Company is now or may hereafter become engaged, or which would
otherwise conflict with my obligations to the Company. In the event my
employment with the Company terminates for any reason whatsoever, I agree to
promptly surrender and deliver to the Company all records, materials, equipment,
drawings, documents and data of which I may obtain or produce during the course
of my employment, and I will not take
C-1
with me any description containing or pertaining to any confidential
information, knowledge or data of the Company which I may produce or obtain
during the course of my employment.
3. Assignment of Inventions.
3.1 I hereby acknowledge and agree that the Company is the owner of
all Inventions. In order to protect the Company's rights to such Inventions, by
executing this Agreement I hereby irrevocably assign to the Company all my
right, title and interest in and to all Inventions to the Company.
3.2 For purposes of this Agreement, "Inventions" shall mean all
discoveries, processes, designs, technologies, devices, or improvements in any
of the foregoing or other ideas, whether or not patentable and whether or not
reduced to practice, made or conceived by me (whether solely or jointly with
others) during the period of my employment with the Company which relate in any
manner to the actual or demonstrably anticipated business, work, or research and
development of the Company, or result from or are suggested by any task assigned
to me or any work performed by me for or on behalf of the Company.
3.3 Any discovery, process, design, technology, device, or
improvement in any of the foregoing or other ideas, whether or not patentable
and whether or not reduced to practice, made or conceived by me (whether solely
or jointly with others) which I develop entirely on my own time not using any of
the Company's equipment, supplies, facilities, or trade secret information
("Personal Invention") is excluded from this Agreement provided such Personal
Invention (a) does not relate to the actual or demonstrably anticipated
business, research and development of the Company, and (b) does not result,
directly or indirectly, from any work performed by me for the Company.
4. Disclosure of Inventions. I agree that in connection with any
Invention, I will promptly disclose such Invention to my immediate superior at
the Company in order to permit the Company to enforce its property rights to
such Invention in accordance with this Agreement. My disclosure shall be
received in confidence by the Company.
5. Patents and Copyrights; Execution of Documents.
5.1 Upon request, I agree to assist the Company or its nominee (at
its expense) during and at any time subsequent to my employment in every
reasonable way to obtain for its own benefit patents and copyrights for
Inventions in any and all countries. Such patents and copyrights shall be and
remain the sole and exclusive property of the Company or its nominee. I agree to
perform such lawful acts as the Company deems to be necessary to allow it to
exercise all right, title and interest in and to such patents and copyrights.
5.2 In connection with this Agreement, I agree to execute,
acknowledge and deliver to the Company or its nominee upon request and at its
expense all documents, including
C-2
assignments of title, patent or copyright applications, assignments of such
applications, assignments of patents or copyrights upon issuance, as the Company
may determine necessary or desirable to protect the Company's or its nominee's
interest in Inventions, and/or to use in obtaining patents or copyrights in any
and all countries and to vest title thereto in the Company or its nominee to any
of the foregoing.
6. Maintenance of Records. I agree to keep and maintain adequate and
current written records of all Inventions made by me (in the form of notes,
sketches, drawings and other records as may be specified by the Company), which
records shall be available to and remain the sole property of the Company at all
times.
7. Prior Inventions. It is understood that all Personal Inventions, if
any, whether patented or unpatented, which I made prior to my employment by the
Company, are excluded from this Agreement. To preclude any possible uncertainty,
I have set forth on Schedule A attached hereto a complete list of all of my
prior Personal Inventions, including numbers of all patents and patent
applications and a brief description of all unpatented Personal Inventions which
are not the property of a previous employer. I represent and covenant that the
list is complete and that, if no items are on the list, I have no such prior
Personal Inventions. I agree to notify the Company in writing before I make any
disclosure or perform any work on behalf of the Company which appears to
threaten or conflict with proprietary rights I claim in any Personal Invention.
In the event of my failure to give such notice, I agree that I will make no
claim against the Company with respect to any such Personal Invention.
8. Other Obligations. I acknowledge that the Company from time to time
may have agreements with other persons or with the U.S. Government or agencies
thereof, which impose obligations or restrictions on the Company regarding
Inventions made during the course of work thereunder or regarding the
confidential nature of such work. I agree to be bound by all such obligations
and restrictions and to take all action necessary to discharge the Company's
obligations.
9. Trade Secrets of Others. I represent that my performance of all the
terms of this Agreement and as an employee of the Company does not and will not
breach any agreement to keep confidential proprietary information, knowledge or
data acquired by me in confidence or in trust prior to my employment with the
Company, and I will not disclose to the Company, or induce the Company to use,
any confidential or proprietary information or material belonging to any
previous employer or others. I agree not to enter into any agreement either
written or oral in conflict herewith.
10. Modification. I agree that any subsequent change or changes in my
employment duties, salary or compensation or, if applicable, in any Employment
Agreement between the Company and me, shall not affect the validity or scope of
this Agreement.
11. Successors and Assigns. This Agreement shall be binding upon my
heirs,
C-3
executors, administrators or other legal representatives and is for the benefit
of the Company, its successors and assigns.
12. Interpretation. IT IS THE INTENT OF THE PARTIES THAT in case any
one or more of the provisions contained in this Agreement shall, for any reason,
be held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect the other provisions of this
Agreement, and this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein. MOREOVER, IT IS THE
INTENT OF THE PARTIES THAT in case any one or more of the provisions contained
in this Agreement shall for any reason be held to be excessively broad as to
duration, geographical scope, activity or subject, such provision shall be
construed by limiting and reducing it in accordance with a judgment of a court
of competent jurisdiction, so as to be enforceable to the extent compatible with
applicable law.
13. Waivers. If either party should waive any breach of any provision
of this Agreement, he or it shall not thereby be deemed to have waived any
preceding or succeeding breach of the same or any other provision of this
Agreement.
14. Complete Agreement, Amendments. I acknowledge receipt of this
Agreement, and agree that with respect to the subject matter thereof it is my
entire agreement with the Company, superseding any previous oral or written
communications, representations, understandings, or agreements with the Company
or any officer or representative thereof. Any amendment to this Agreement or
waiver by either party of any right hereunder shall be effective only if
evidenced by a written instrument executed by the parties hereto, and, in the
case of the Company, upon written authorization of the Company's Board of
Directors.
15. Headings. The headings of the sections hereof are inserted for
convenience only and shall not be deemed to constitute a part hereof nor to
affect the meaning thereof.
16. Counterparts. This Agreement may be signed in two counterparts,
each of which shall be deemed an original and both of which shall together
constitute one agreement.
17. Governing Law. This Agreement shall be governed and construed under
Massachusetts law.
[THIS SPACE INTENTIONALLY LEFT BLANK]
C-4
18. Employment Status. Nothing in this Agreement shall affect in any
manner whatsoever the right or power of the Company to terminate the employment
of the Employee.
EMPLOYEE
----------------------------------------
▇▇▇▇▇▇▇ ▇. Post, Ph.D.
Accepted and Agreed:
APPLIED SCIENCE AND TECHNOLOGY, INC.
By:
-------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President
C-5
SCHEDULE A
LIST OF PRIOR INVENTIONS
Identifying Number of
Title Date Brief Description
----- ---- -----------------
NONE