December 1, 2005
Mr. John Macneil
Ringland Way, Newport,
South Wales NP18 2TA, UK
I am pleased to confirm our offer of employment to you (the Employee) for the position of Chief Technical Officer for
Aviza Technology, Inc. (the Company). Please review the details below and contact
me if you have any questions or concerns.
The start date of this position would be subject to the close of the
merger between Aviza Technology, Inc. and Trikon Technologies, Inc. (the
Merger) and effective immediately
The company shall employ the Employee and the Employee shall serve the
Company as Chief Technology Officer of the Company. This position will have the status of
Executive Vice President.
The Employee will report to the Chief Executive Officer and shall be a
member of the Board of Directors of the Company (the Board)
as per the terms outlined in the Merger Agreement and the Shareholders
Agreement between the Company and Trikon.
The Employee will be appointed to the Board for the term specified in
The Employee will be employed by the Company in the UK and be subject
to the employment law and conditions of employment pursuant in the UK.
2. DURATION OF
EMPLOYMENT AND PERIOD OF NOTICE:
The employment, in this position, shall be from the date of closing of
the Merger. Employment shall continue
thereafter until terminated by either party giving to the other not less than
six (6) calendar months previous notice in writing (subject always to
clause 10 hereinafter). The Company
reserves the right to make a payment in lieu of notice should it wish to do so,
or require the Employee to remain away from work during the notice period. Any payment in lieu of notice made under this
clause shall be equivalent to the value of basic salary and all other
contractual benefits (but, for the avoidance of doubt, excluding any right to
stock options) which the Employee would have been entitled to during the
notional notice period (or any unexpired period of notice if relevant). The Company may, at its sole discretion, pay
any payment in lieu of notice in either (i) a single lump sum payment or (ii) substantially
equal monthly installments over the six (6)- month period commencing on the
Employees termination date, such that the payment in lieu of notice is fully
paid on the six (6)- month
anniversary of the Employees termination date. If the Employee is required by the Company to
remain away from work during the notice period he shall not be entitled to work
on his own behalf or on behalf of any other person, firm or company during that
previous employment with Trikon Technologies, Inc. shall be counted
towards the Employees period of continuous employment. This period of continuous employment
therefore commenced on February 1, 1996.
The Employees employment with the Company shall terminate on the
sixty-fifth birthday of the Employee without any need for prior notice.
3. DUTIES OF
3.1 Whilst he is engaged by the Company
under this Agreement, the Employee shall use his best endeavours to promote the
interests of the Company and each Group Company (as defined below) for the time
being and shall devote so much of his time and attention and abilities as is
reasonably necessary for the proper performance of his duties hereunder and to
ensure satisfactory operation of the business of the Company and the Group
3.2 The duties of the Employee hereunder
shall extend worldwide, and will require reasonable levels of travel abroad.
3.3 For the duration of this Agreement,
the Employee shall not be concerned with any other business enterprise without
the prior written consent of the Board, save that this restriction shall not
apply to the holding by the Employee (or his nominees) for investment purposes
only of not more than 3% of the issued shares or securities of any company
whose shares or other capital are listed on or dealt on or under the rules of
an exchange which is designated as a recognised stock exchange pursuant to section 841(1) of
the Income & Corporation Taxes Act 1988 or an exchange which is a recognised
investment exchange or a recognised overseas investment exchange pursuant to
sections 285 or 292 of the Financial Services & Markets Act 2000.
3.4 The Employee shall not (except in
the proper course of his duties or unless ordered to do so by a Court of
competent jurisdiction) divulge any information concerning the business,
transactions, secrets or affairs of the Company or of any of its subsidiaries
or associated companies either during or after his employment with the
Company. During his employment with the
Company he shall use his best endeavours to prevent the disclosure of such
information by third parties and shall not in any way use or attempt to use
such knowledge or information which may injure or cause loss directly or
indirectly to the Company or any subsidiary or associated company of the
Company (each of the Company and any subsidiary or associated company referred
to as a Group Company) or use his personal
knowledge of or influence over any Group Company so as to take personal
advantage of their trade or business connections.
3.5 All notes and memoranda of any trade
secrets or any other information concerning the business of any Group Company
which shall be made or
by the Employee during the course of his employment hereunder or which may
already be in his possession shall be surrendered by the Employee to someone
duly authorised at any time during the course of his employment.
3.6 The Employee will at all times
comply with all lawful resolutions, regulations and directions from time to
time made by the Board.
4.1 The remuneration of the Employee
during the continuance of his employment hereunder shall be an annual salary of
£170,000 per annum which shall accrue from day to day and shall be payable in
arrears by equal monthly installments (i.e. £14,167) x 12 months) on the 28th
day of every month.
4.2 A grant of stock options will be
made to the Executive commensurate with his position, subject to the approval
of the Board and the shareholders. At
this time the amount of these options is yet to be determined.
4.3 Employee performance in this
position will be reviewed on an annual basis.
4.4 The salary payable under 4.1 above
shall be reviewed by the Company during the annual employee review cycle which
coincides with the Company fiscal year.
Such remuneration shall be inclusive of any remuneration to which the
Employee shall be entitled for the responsibilities assigned with the
Company. Such remuneration shall be
inclusive of any remuneration to which the Employee shall be entitled as
Director of the Company or any Group Company.
5. REIMBURSEMENT OF
The Company shall reimburse the Employee all travel, hotel and any
other out-of-pocket expenses reasonably and properly incurred by him
exclusively in connection with the performance of his duties hereunder. As the Employee will be required to liaise
directly with overseas subsidiaries, the Company will pay all reasonable home
6. PROVISION OF A
To assist the Employee to carry out his duties hereunder the Company
will provide, license and insure a suitable four or five door motor car for the
Employee during the currency of his Agreement, costing the Company a lease cost
of no more than £1000 per month, based on a four year, 100,000 mile lease
agreement. The Company shall pay all
running expenses, maintenance and outgoings insofar as the Employee in the
performance of his duties reasonably incurs them. This car will at all times remain the
property of the Company. The Employee
shall be entitled to use the car reasonably for his private purpose without
payment and the Company will bear the cost of fuel for such use.
Alternatively, the Employee may choose to have a car allowance of £1000
per month instead of a company car. If
the Employee chooses this option he should drive a four or five door car
suitable for carrying out his duties. In
this case insurance, running
expenses and maintenance will be the responsibility of the
Employee. The company will bear the cost
of all business and reasonable private fuel.
7. PENSION AND OTHER
will pay the reasonable premiums to provide the Employee with life assurance
cover equal to 4 times his basic annual salary, subject to acceptance by the
relevant insurer and the terms and conditions of such insurance from time to
The Company will make pension contributions on behalf of the Employee
to the Group Personal Pension Plan. The
Company will make 1.5 times the percentage contribution made by the Employee,
up to a maximum annual Company contribution of a sum equal to 15% of the
Employees basic annual salary. For
example, if the Employee contributes 6%, the Company will contribute 9%.
The Company will pay for the Employee, his partner, and dependent
children, to be enrolled in the company private healthcare insurance plan
subject to the rules of the insurance plan from time to time.
The Employee shall be entitled to 25 working days paid holiday in each
calendar year (in addition to UK public holidays) to be taken at such time or
times as may be agreed between the Company and the Employee. Holiday entitlement accrues pro rata
throughout the holiday year.
9. INVENTIONS AND
9.1 For the purposes of this Clause, Intellectual Property Rights means any and all existing and
future intellectual or industrial property rights (whether registered or
unregistered) including, without prejudice to the generality of the foregoing,
all existing and future patents, copyrights, design rights, database rights,
trade marks, semi-conductor topography rights, plant varieties rights, internet
rights/domain names, know-how, confidential information and any and all
applications for any of the foregoing and any and all rights to apply for any
of the foregoing.
9.2 In the course of carrying out his
duties for the Company or any Group Company, the Employee may either alone or
in conjunction with others, generate or assist in the generation of documents,
materials, designs, drawings, processes, formulae, computer coding,
methodologies, confidential information and other works which relate to the
business of the Company or any Group Company or which are capable of being used
or adapted for use therein or in connection therewith (Works)
and the Employee agrees that in respect of any such Works and all Intellectual
Property Rights in relation thereto, the Employee is obliged to further the
interests of the Company and each Group Company.
9.3 The Employee will immediately
disclose to the Company all Works and all related Intellectual Property
Rights. Both the Works and the related
Intellectual Property Rights will (subject to sections 39 to 43 Patents Act
belong to and be the absolute property of the Company or any other person the Company
9.4 The Employee will immediately on
request by the Company (whether during or after the termination of the
employment) and at the expense of the Company:
9.4.1 apply or join with the Company in
applying for any Intellectual Property Rights or other protection or
registration (Protection) in the United Kingdom
and in any other part of the world for, or in relation to, any Works;
9.4.2 execute all instruments and do all
things necessary for vesting the Works or Protection when obtained and all
right, title and interest to and in the same absolutely and as sole beneficial
owner in the Company or other person as the Company may nominate; and
9.4.3 sign and execute any documents and
do any acts reasonably required by the Company in connection with any
proceedings in respect of any applications and any publication or application
for revocation of any Protection.
9.5 The Employee hereby irrevocably and
unconditionally waives all rights under Chapter IV Copyright, Designs and
Patents Act 1988 and any other moral rights which the Employee may have in any
Works in whatever part of the world such rights may be enforceable including:
9.5.1 the right conferred by section 77
of that Act to be identified as the author of any such Works; and
9.5.2 the right conferred by section 80
of that Act not to have any such Works subjected to derogatory treatment.
9.6 The Employee irrevocably appoints
the Company to be his attorney and in his name and on his behalf to execute any
such act and to sign all deeds and documents and generally to use his name for
the purpose of giving to the Company the full benefit of this Clause. The Employee agrees that, with respect to any
third parties, a certificate signed by any duly authorised
officer of the Company that any act or deed or document falls within the
authority hereby conferred shall be conclusive evidence that this is the case.
9.7 Nothing in this Clause shall be
construed as restricting the Employees rights or those of the Company under
sections 39 to 43 Patents Act 1977.
9.8 For the duration of this Agreement,
other technology including inventions not within the definition of Works
devised or discovered by the Employee which related to the business of the
Company or to any other business which might conveniently or otherwise be
carried on in conjunction with the Companys present or known or expected
future business shall be offered to the Company by the Employee and if the
Company accepts the same the
shall be entitled to such reasonable compensation as the Board may decide.
9.9 For the duration of this Agreement,
in the case of any other technology belonging to or possessed by the Employee,
the Company shall have a right of first refusal of the same. Should the Company refuse to take up rights
the Employee shall not offer such rights to any other person on more favourable
terms than were offered to the Company.
10.1 Employees employment may be
terminated forthwith by the Company without prior notice or payment in lieu
(except of paragraph 10.1.4 hereof) if the Employee shall at any time: -
10.1.1 commit any serious or after due
warning any persistent breach of any of the provisions herein contained;
10.1.2 be guilty of any gross misconduct or
serious willful neglect in the discharge of his duties hereunder or in
connection with the business of the Company or any Group Company;
10.1.3 become bankrupt or make any
arrangement or composition with his creditors; or
10.1.4 be convicted of any criminal offence
triable on indictment (other than a motoring offence not resulting in
imprisonment) which, in the reasonable opinion of the Board, materially affects
the Employees position as an employee of the Company (bearing in mind the
nature of his duties and the capacity in which he is employed).
10.2 Any termination of the Employees
employment hereunder shall be without prejudice to any other rights of the
10.3 Upon termination of the employment,
the Employee will immediately return to the Company anything belonging to the
Company or any Group Company or any of their clients.
In the event of this Agreement being terminated by reason of the
liquidation of the Company for the purposes of amalgamation or reconstruction
and the Employee being offered employment with any concern or undertaking
resulting from such reconstruction or amalgamation on terms or conditions not
less favourable than the terms of this Agreement then the Employee shall have
no claim against the Company in respect of such termination.
12. RESTRICTION ON
12.1 In the course of the Employees
employment with the Company, the Employee will be exposed to confidential
information and will acquire other proprietary knowledge relating to the
Companys and Group Companies
and planned operations. Therefore,
subject to the terms of paragraph 12.2, the Employee will not during the period
of his employment with the Company and for a period of six months after the
termination of his employment, either directly, or indirectly through any other
person, firm or other organization:
12.1.1 solicit business which is of the
same or similar nature as the business with which the Employee was involved at
any time during the last year of his employment with the Company (the Business)
from any person, firm or other organization which at any time during the last
year of his employment with the Company was a customer or client of the Company
or a Group Company with whom the Employee was actively involved during that
time and the Employee will not approach any client or customer for that purpose
or authorise or approve the taking of such actions by any other person. For the purposes of this restriction, the
expression client or customer shall include all persons from whom the Company
or a Group Company has received inquiries for the provision of goods or
services where such inquiries have not been concluded;
12.1.2 employ or engage or otherwise
solicit, entice or induce any employee of the Company or a Group Company who
has a function that is not purely administrative to become employed or engaged
by him or any other person, firm or other organisation and the Employee will
not approach any such employee for such purpose or authorise or approve the
taking of such actions by any other person; and
12.1.3 within the United Kingdom be
employed or engaged or otherwise interested in a business which is the same as
or similar to the Business.
12.2 The restrictions contained in
paragraph 12.1(a) to (c) will not apply if:
12.2.1 the Employee has received the prior
written consent of the Company to his activities; or
12.2.2 the Employee will not be in
competition with the Business in carrying out those activities.
12.3 At any time after such termination,
the Employee will not
12.3.1 disclose or make use of the Companys
trade secrets or information concerning the business, transactions or affairs
or other confidential information of the Company or Group Company or
12.3.2 hold himself out to the detriment of
the Company as having had any connection or association with the Company.
12.4 If the Company suspends any of the
Employees duties under clause 2 during any period after notice of termination
has been given by the Company or the Employee, the aggregate of the period of
the suspension and the period after the end of the Employees employment with
the Company during which the
in this clause 12 shall apply shall not exceed 6 months and, if the aggregate
of the two periods would exceed 6 months, the period after the end of the
Employees employment during which the restrictions shall apply shall be
12.5 The restrictions in this paragraph
12 are separate and severable restrictions and are considered by the parties to
be reasonable in all the circumstances.
It is agreed that if any such restrictions by themselves, or taken
together, shall be adjudged to go beyond what is reasonable in all the
circumstances for the protection of the legitimate interests of the Company but
would be adjudged reasonable if part or parts of the wording were deleted, the
relevant restriction or restrictions shall apply with such deletion(s) as may
be necessary to make it or them valid and effective.
13. DIRECTORSHIP OF
COMPANY AND SUBSIDIARIES:
13.1 Upon the termination of employment
for whatever reason, the Employee agrees to resign as a Director of the Company
and any Group Company.
14. PRIOR AGREEMENTS:
This Agreement supersedes any subsisting agreement relating to the
employment by the Company of the Employee.
15. MEDICAL EXAMINATION:
The Employee may be required to attend and undergo at the Companys
expense an annual medical examination with the Companys medical advisor and
the Employee will be entitled to be shown the full results of such medical
16. SICK PAY:
If the Employee is absent from work by reason of sickness or injury, he
shall be paid Statutory Sick pay. The
Employees entitlement to pay in addition to Statutory Sick pay is subject to
any sick pay policy in force from time to time, or the Companys discretion.
17. DISPUTES PROCEDURE:
The procedure for the settlement of any grievance of the Employee
relating to his employment is in the first instance, for the Employee to raise
and submit such grievance either orally or in writing to the Chairman of the
Board. If such grievance is not resolved
to the satisfaction of the Employee within a reasonable time after such
submission the Employee may ask for the matter to be passed for consideration
to the full Board and the Employee shall be entitled to submit such grievance
either orally or in writing to the Board or shareholders.
18. REDUNDANCY AND RESIGNATION
period of the first fifteen (15) months of employment, beginning on the date of
the close of the Merger (the Initial Period),
if the Employee is made redundant by the Company, he will be entitled to
receive a redundancy payment equal
to twelve (12)
months salary. After the Initial Period
has expired, if the Employee is made redundant by the Company he will be
entitled to receive a redundancy payment equal to six (6) months salary.
For the final
three (3) months of the Initial Period, the Employee will be entitled to
resign his position with the Company and receive a termination payment equal to
twelve (12) months salary.
may, at its sole discretion, pay any redundancy payments or termination
payments under this Clause 18 either (i) in a single lump sum payment or (ii) in
substantially equal monthly installments over the six (6)- month period
commencing on the Employees termination date, such that the payment is fully
paid on the six (6)- month anniversary of the Employees termination date.
The terms of
this Clause 18 do not affect the rights and obligations of the parties pursuant
to Clause 2 above.
19. TERMINATION OF
The termination of the Employees employment with the Company for any
reason or reasons whatsoever shall not affect any of the provisions hereof as
are expressed to operate or have effect hereafter.
AS WITNESS the hands of the parties hereto the
day and year first above written.
In accordance with Employment Rights Act 1996, the following terms of
the Employees employment apply on the date of this Agreement:
Title see Clause 1.
of Commencement of Employment see Clause 2.
of commencement of continuous period of employment for purpose of Clause
2. As in (b) above
see Clause 4
of Work there are no fixed hours of work see Clause 3.
of Work Newport, South Wales, or such other place of work on either a
temporary or permanent basis as agreed between the parties.
see Clause 8
and grievance procedure see Clause 16.
There are no specific disciplinary rules applicable to the
Employee. If the Employee is
dissatisfied with any disciplinary decision he should seek satisfaction in
accordance with the grievance procedure laid down in Clause 17.
/s/ Jerauld J. Cutini
/s/ John Macneil
Jerauld J. Cutini
For and on behalf of
Aviza Technology, Inc.
April 4, 2006
April 4, 2006