EXHIBIT 10.23
EMPLOYMENT AGREEMENT
AGREEMENT made as of the 31st day of May, 1998, by and between
Phase Shift Technology, Inc., an Arizona corporation having its
principal offices at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇ ("PST"), and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, an individual having his
principal residence at the address set forth on the signature page
hereof (the "Executive").
WITNESSETH:
WHEREAS, Theta Acquisition Corp., an Arizona corporation
("Subsidiary") is a wholly owned subsidiary of ADE Corporation, a
Massachusetts corporation ("ADE") (references to "ADE" will include
ADE Corporation and its subsidiaries, unless the context requires
otherwise).
WHEREAS, on the date hereof Subsidiary is merging with and into
PST and as a result of such merger (the "Merger") PST will become a
wholly owned subsidiary of ADE;
WHEREAS, the Executive prior to the Merger was a key employee of
PST and wishes to continue similar employment with PST following the
Merger, and PST wishes to employ the Executive following the Merger,
all on the terms and conditions provided below;
NOW THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. Employment Period. PST hereby agrees to employ the Executive,
and the Executive hereby agrees to remain in the employ of PST for the
Employment Period. Unless sooner terminated pursuant to Section 4,
the Employment Period will be the period beginning on the date of this
Agreement and ending on the third anniversary of such date.
2. Position and Duties.
(a) During the Employment Period, the Executive will serve
as President of PST and as such he shall report to the Board of
Directors of PST. He shall have such responsibilities as would
normally inhere in such position except insofar as such
responsibilities may be changed by the Board of Directors. He shall
also be a Director of PST.
(b) Excluding periods of vacation and sick leave to which
the Executive is entitled, the Executive agrees to devote
substantially all of his attention and time during normal business
hours to the business and affairs of PST and to use his best efforts
to perform faithfully and diligently such responsibilities.
3. Compensation and Benefits.
(a) Salary. The Executive will receive an annual salary
("Salary"), which shall not be subject to reduction, to be established
from time to time by the Board of Directors of PST
during the Employment Period. The initial Salary amount shall be
$180,000.00. The Salary shall be paid at such times and in such
amounts as is consistent with the customary payroll practices of ADE
for its similarly situated executives.
(b) Incentive, Savings and Retirement Plans. In addition to
the Salary payable as hereinabove provided, the Executive shall be
entitled to participate, during the Employment Period, in all savings
and retirement plans and programs of ADE and all short and long-term
incentive plans and programs applicable to other similarly situated
executives of ADE.
(c) Benefit Plans. During the Employment Period the Executive
shall be eligible to participate in employee benefit plans of ADE made
available from time to time to similarly situated executives of ADE,
including cash bonus incentives, health and disability insurance,
401(k) and employee stock option plans. The parties agree to
negotiate in good faith subsequent to the execution of this Agreement
to reach a mutually satisfactory disability insurance arrangement for
the Executive. The number of stock options (if any) to be granted to
the Executive as of the date of this Agreement, the plan pursuant to
which they are to be granted, the effective date of grant, and the
exercise price therefor are set forth in Schedule A hereto.
(d) Vacation. During the Employment Period, the Executive
shall be entitled to paid vacation in accordance with the policies of
ADE as in effect from time to time during the Employment Period with
respect to other similarly situated executives of ADE.
4. Termination.
(a) Death or Disability. This Agreement will terminate
automatically upon the Executive's death. PST may terminate this
Agreement upon the Executive's Disability (as defined below) by giving
to the Executive written notice of its intention to terminate the
Executive's employment. In such case, the Executive's employment with
PST will terminate effective 30 days after receipt of such notice (the
"Disability Effective Date"), unless the Executive has previously
returned to full-time performance of the Executive's duties. For
purposes of this Agreement, "Disability" means a physical or mental
disability that significantly impairs the Executive's performance of
his duties and which continues for at least 180 days.
(b) Cause. PST may terminate the Executive's employment for
"Cause." For purposes of this Agreement, "Cause" means (i) the
Executive's willful and continued failure or refusal to perform in any
material respect his responsibilities hereunder or any lawful
directive of the Board of Directors in keeping with Executive's title
and position with PST (other than any such failure resulting from
incapacity due to physical or mental illness), (ii) the Executive's
willful conduct which is materially injurious to the ADE, or (iii) the
Executive's conviction of a felony.
(c) Notice of Termination. Any termination by PST for Cause
will be effected by a Notice of Termination to the Executive given in
accordance with Section 8 (b) of this Agreement. For purposes of this
Agreement, a "Notice of Termination" means a written notice which
(i) indicates the specific termination provision in this Agreement
relied upon and (ii) sets
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forth in reasonable detail the facts and circumstances which provide a
basis for termination of the Executive's employment under the
provision so indicated.
(d) Date of Termination. "Date of Termination" means the date
of the Executive's death, the Disability Effective Date, or the date
of the Executive's receipt of an effective Notice of Termination, as
the case may be.
5. Obligations of PST upon Termination.
(a) Cause. If the Executive's employment is terminated for
Cause, PST will pay the Executive his full Salary through the Date of
Termination at the rate in effect at the time Notice of Termination is
given and will have no further obligations to the Executive under this
Agreement.
(b) Other Reasons. If, during the Employment Period, PST
terminates the Executive's employment for any reason other than for
death, Cause, or Disability, PST shall pay to the Executive, as
severance pay in lieu of any further salary payments for periods
subsequent to the Date of Termination, a monthly severance payment
determined as follows: the sum of (i) the Salary in effect immediately
prior to the Date of Termination and (ii) the amount of any bonus paid
to the Executive pursuant to any bonus plan of ADE with respect to the
year preceding that in which the termination occurs will be divided by
twelve. Such payment will continue to be made for the number of
months remaining in the Employment Period.
6. Noncompetition. The Executive shall be subject to the terms
of the Noncompetition Agreement of even date herewith between the
Executive and ADE.
7. Confidential Information and Inventions.
(a) The Executive agrees that Confidential Information (as
defined below) of ADE, is the property of ADE to be held by him in
trust and solely for ADE's benefit, and shall not be used for the
benefit of the Executive or disclosed by the Executive to others
either during or after his employment without ADE's prior written
consent unless such disclosure is required to be disclosed pursuant to
any law, regulation or ruling of any governmental body or authority or
court order in which case Executive shall give to ADE as much advance
notice of the date, time, place, nature and manner of the required
disclosure as is possible in the circumstances.
"Confidential Information" means any Company proprietary
information, technical data, trade secrets or know-how, including, but
not limited to, research and development information, product plans,
products, services, customer lists and customers (including, but not
limited to, customers of ADE on whom the Executive called or with whom
the Executive became acquainted during the term of the Executive's
employment), supplies, personnel, markets, software, product
development information, hardware configuration information, marketing
information, costs, pricing information, finances or other business
information disclosed to the Executive by ADE either directly or
indirectly in writing, electronically transmitted, orally or by
drawings or inspection of parts or equipment. "Confidential
Information" does not include
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general industry or other information to the extent that such
information is publicly available or is otherwise in the public domain
(other than through breach of this Agreement).
(b) The Executive agrees further to give to ADE, both
during the period of his employment by ADE and subsequent thereto, all
assistance ADE reasonably requires in order to protect Confidential
Information.
(c) The Executive agrees further that any improvements or
inventions, original works of authorship, developments and trade
secrets made by him either alone or with others, during his employment
by ADE or made thereafter as a result of any invention conceived or
work done during his employment by ADE so far as the same relate to
ADE's business, products, processes and developments, and all his
right, title and interest in and to the same shall be deemed as made
and held by him in a fiduciary capacity and solely for the benefit of
ADE, shall not be disclosed to others without its written consent and
shall be the sole and exclusive property of ADE.
(d) The Executive agrees to disclose promptly and fully to
ADE and to its attorneys all said improvements, inventions, original
works of authorship, developments and trade secrets and shall upon its
request surrender to it all tangible evidence of said improvements,
inventions, original works or authorship, developments and trade
secrets.
(e) The Executive, when requested so to do either during or
after said employment, agrees
(i) to assign and convey to ADE his entire right, title and
interest in and to said improvements, inventions, original
works or authorship, developments and trade secrets;
(ii) to assist ADE and its agents in preparing applications
for patents, copyrights or other intellectual property
rights, United States and foreign, covering the same;
(iii) to sign and deliver all said applications and
assignments of the same to ADE; and
(iv) generally, to give all information and testimony, sign
all papers and do all things which may be needed or
requested by ADE, to the end that ADE may obtain, extend,
reissue, maintain and enforce United States and foreign
patents, copyrights and other intellectual property rights
covering said improvements and inventions.
(f) ADE agrees to bear all expenses which it causes to be
incurred in obtaining, extending, reissuing, maintaining and enforcing
said patents, copyrights or other intellectual property rights, and in
vesting and perfecting title thereto in ADE, and agrees further to pay
the Executive for any time which it may require of him therefor
subsequent to the termination of his employment, such payment to be at
a reasonable hourly rate to be negotiated by the parties at the time.
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(g) The Executive represents and warrants that
(i) He has not entered into and will not enter into any
agreement which is inconsistent herewith; and
(ii) His employment by ADE is not incompatible with any previous
employment.
8. Successors.
(a) This Agreement is personal to the Executive and may not
be assigned by the Executive without the prior written consent of PST.
(b) This Agreement will inure to the benefit of and be
binding upon PST and its successors. Any successor to PST will, by an
agreement in form and substance satisfactory to the Executive,
expressly assume and agree to perform this Agreement in the same
manner and to the same extent as PST would have been required to
perform.
9. Miscellaneous.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts, without
reference to principles of conflict of laws. The captions of this
Agreement are not part of the provisions hereof and shall have no
force or effect. This Agreement may not be amended otherwise than by
a written agreement executed by the parties hereto.
(b) All notices and other communications hereunder shall be
in writing and shall be given by hand delivery to the other party or
by certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Executive:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
c/o Phase Shift Technology, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
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If to PST:
▇▇▇▇▇▇ ▇. ▇▇▇▇, Chairman
Phase Shift Technology, Inc.
c/o ADE Corporation
▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
or to such other address as either party furnishes to the other in
writing in accordance herewith. Notices and other communications will
be effective when actually received by the addressee.
(b) The invalidity or unenforceability of any provision of
this Agreement will not affect the validity or enforceability of any
other provision of this Agreement.
(c) PST may withhold from any amounts payable under this
Agreement such Federal, state, or local taxes as required to be
withheld pursuant to any applicable law or regulation.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Executive and PST have executed this
Agreement as of the day and year first above written.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Address: c/o Phase Shift Technology, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
PHASE SHIFT TECHNOLOGY, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chairman
ADE Corporation agrees to provide benefits
in accordance with Section 3 hereof:
ADE CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President and
Chief Executive Officer
Schedule A
Information Regarding Stock Options to Be Granted
Number of Underlying Shares of
ADE Common Stock: None
Name of Plan: N/A
Date of Grant: N/A
Exercise Price: N/A
