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EXHIBIT 10.30
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into as of the 10th day of
December, 1999, by and between FSI International, Inc., a Minnesota corporation
(hereinafter "FSI"), and Xxxxxx X. Xxxxxxxx who has agreed to accept employment
in Minnesota with FSI as Chief Executive Officer and President (hereinafter
"Employee").
DEFINITIONS
Specific terms used in this Agreement have the following
meanings:
"Base Annual Salary" shall mean the highest annual rate of the
Employee's base salary with the Company during the 12 (twelve)
months preceding the date of termination of the Employee's
employment with the Company and its Subsidiaries (without
reduction for any salary reduction or other deferral
contribution to any employee benefit plan sponsored by the
Company).
"Cause" shall mean and be limited to, (i) willful and gross
neglect of duties by the Employee or (ii) an act or acts
committed by the Employee constituting a felony under United
States federal or applicable state law and substantially
detrimental to the Company or any Subsidiary or the reputation
of the Company or any Subsidiary, so long as Employee is given
written notice thereof and fails to promptly cure (if such
"Cause" can be cured) and subsequently there is a
determination by a resolution duly adopted by the affirmative
vote of not less than two-thirds of the entire membership of
the Board at a meeting thereof called and held for such
purpose (after reasonable notice is provided to the Employee
and the Employee is given an opportunity to be heard before
the Board) finding that in the good faith opinion of the Board
the Employee is guilty of the conduct described above in (i)
or (ii).
"Company" means, separately and collectively, FSI and any
entity in which FSI has an ownership interest, directly or
indirectly, of at least 20% (twenty percent) of the
outstanding shares of such entity.
"Competing Product"
(a) for the period you are an Employee of the
Company means any product or service that
competes with or will compete with any
product, product line, or service that is
sold, marketed, produced, distributed,
leased, or under development by the Company
with respect to which Employee performed
services of any kind or nature during the 24
(twenty-four) month period ending on the
date of the conduct at issue;
(b) for the period after Employee's employment
with the Company, has ended, any product or
service that competes with or will compete
with any product, product line, or service
that is sold, marketed, produced,
distributed, leased, or under development by
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the Company with respect to which Employee
performed services of any kind or nature
during the 24 (twenty-four) month period
ending on the date Employee's employment
with the Company ends.
"Confidential Information" means certain proprietary
information maintained in confidence by the Company as
intellectual property, trade secrets, or otherwise, including
but not limited to information relating to (i) the Company's
finances, processes, products, services, research, and
development, and (ii) its manufacturing, purchasing,
accounting, engineering, designing, marketing, merchandising,
selling, distributing, leasing, and servicing systems and
techniques; it also includes plans or proposals with regard to
any of the foregoing, whether implemented or not. All
information originated by Employee, or disclosed to Employee,
or to which Employee otherwise gains access, during the period
of Employee's employment with FSI that the Employee has reason
to believe is Confidential Information, or that is
characterized or treated by the Company as being Confidential
Information, or that would be of economic value to a third
party, shall be presumed to be Confidential Information.
"Customer" means any firm, person, corporation, or other
entity
(i) to whom or to which the Company has sold,
distributed, or leased its products or
services, or
(ii) whom or which the Company has solicited for
sales, distribution, or leasing of its
products or services,
whether directly or indirectly, and whether by or through
employees of the Company or of affiliated sales organizations.
"Customer Information" means information relating to
Customers' operations, processes, products, and research and
development and to Customers' manufacturing, purchasing, and
engineering systems and techniques.
"Restricted Country" means any nation or country in which the
Company had Customers, had business operations, or otherwise
did business, directly or indirectly, in the 24 (twenty-four)
month period ending on the effective date of the termination
of Employee's employment with FSI.
Terms not specifically defined will be interpreted in light of
the context in which they appear.
AGREEMENT:
In consideration of his/her employment by FSI, and the wages,
salary, and employee benefits to be provided to Employee in compensation for
his/her services, Employee hereby agrees as follows:
1. Employee acknowledges and agrees:
(a) That during the course of his/her employment
with FSI, Employee may have access to Confidential Information; that the Company
has developed and established
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and will continue to develop and establish a valuable and extensive trade in its
products and services; and that the Company would suffer great loss and
irreparable injury if Employee were to disclose any of the Confidential
Information, or use it in the solicitation of the customers of the Company or
use it to compete with the Company.
(b) That during the course of his/her employment
with FSI, Employee may have access to Customer Information; that Customer
Information obtained by Employee during the course of his/her employment with
FSI is a valuable asset of FSI; and that the Company would suffer great loss and
irreparable injury if Employee were to use Customer Information in the
solicitation of Customers of the Company or to otherwise compete with the
Company.
2. (a) Employee during his/her employment with FSI
and at all times thereafter shall maintain in strictest confidence and shall
not, without FSI's express advance written consent, directly or indirectly
(whether through written or printed materials, electronic media, or oral
communications, and whether Employee's source of information is written or
printed materials, electronic media, oral communications, or his/her own
memory),
(i) copy, or
(ii) transmit, publish, communicate, or otherwise disclose
or make available, or permit or cause to be
transmitted, published, communicated or otherwise
disclosed or made available, to any other firm,
person, corporation or other entity, or
(iii) use as owner, director, officer, manager, trustee,
partner, employee, independent contractor, agent, or
consultant in any business venture or other
enterprise or endeavor, any Confidential Information
or Customer Information.
(b) An exception to the provisions of paragraph
2(a), above, is that in the scope and course of his/her employment with FSI,
Employee may, in furtherance of the Company's business interests, communicate
Confidential Information or Customer Information to other responsible Company
personnel, Customers, and other persons or entities with whom or which the
Company has dealings, who have a need to know such information.
3. During Employee's employment under this Agreement and
for a period of one (1) year following termination of Employee's employment
hereunder, whether voluntary or involuntary:
(a) Employee will inform any new employer, prior
to accepting employment, of the existence of this Agreement and provide such
employer with a copy of this Agreement.
(b)(i) Except for ownership of 1% or less of the
shares of any company listed on a national or regional stock exchange, Employee
will not own any shares of stock or other ownership interest, either directly or
indirectly, or serve as a director, officer, manager, trustee, partner,
employee, independent contractor, agent, or consultant, or otherwise become
active or involved in the management, operation, or representation of a business
or other
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enterprise that is engaged in or about to engage in selling, marketing,
producing, distributing, leasing, designing, or developing a Competing Product
in any Restricted Country.
(ii) It is provided, however, that Employee may
accept employment with a business organization that is engaged or about to
engage in selling, marketing, producing, distributing, leasing, or developing a
Competing Product in a Restricted Country if (i) such business organization is
diversified to the extent that it has significant operations other than that
portion of the business organization that is engaged or about to engage in
selling, marketing, producing, distributing, leasing, or developing a Competing
Product; (ii) during the entire one year period following termination of
employment with FSI, such Employee will be rendering services to that portion of
the business organization that is not engaged or about to engage in selling,
marketing, producing, distributing, leasing, or developing a Competing Product;
and (iii) prior to acceptance of employment by Employee with such business
organization, separate written assurances satisfactory to FSI shall be received
and accepted by FSI from both the Employee and the business organization, in
each case stating that during the entire one year period following termination
of employment with FSI Employee will not be rendering services to any portion of
the business organization that, directly or indirectly, is engaged or about to
engage in selling, marketing, producing, distributing, leasing, designing, or
developing a Competing Product.
(c) Employee will not, on behalf of
himself/herself or any other person or entity, directly or indirectly sell,
distribute, or lease a Competing Product to, or solicit sales, distribution, or
leasing of a Competing Product to, any Customer with whom Employee communicated,
whether in person, through written or printed materials, or by telephone,
electronic mail, or other form of electronic transmission, during the 24
(twenty-four) month period ending on the effective date of the termination of
Employee's employment with FSI. This paragraph 3(c) shall not be interpreted to
limit or restrict in any way the commitments of Employee set forth in paragraph
3(b), above.
(d) Employee will not, directly or indirectly,
persuade, encourage, or entice, or attempt to persuade, encourage or entice:
employees of the Company to terminate their employment relationship with the
Company; manufacturers or suppliers to adversely alter, or modify, or to
discontinue, their relationship with the Company unless at the written request
of FSI's President or Vice President of Human Resources; or Customers to
discontinue purchasing from the Company.
4. If Employee is terminated by Company other than for
Cause, then Company shall pay Employee his Base Annual Salary for 1 (one) year,
such payments to be made during the Company's normal payroll periods at
Employee's last known address; provided, however, that the Company is not
obligated to pay such benefits if a majority of the Board of Directors
determines after giving Employee notice and an opportunity to be heard that he
has breached (and failed to cure, if such breach can be cured) any of Sections
2, 3, or 5 of the Agreement. Further, Employee shall not be entitled to such
severance payments in the event he voluntarily resigns. Such payments shall be
in lieu of any payments under the Company's Severance Plan and are conditioned
upon Employee's execution of a release in the form attached hereto and the
expiration (without rescission) of the applicable rescission period.
5. Upon termination of his/her employment with FSI, Employee
agrees to deliver promptly to FSI all records, manuals, books, blank forms,
documents, letters, memoranda, notes, notebooks, reports, data, tables,
photographs, videotapes, audio tapes,
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computer disks or other form of computer storage, and calculations or copies
thereof, whether in written or printed materials or electronic media of any kind
or nature, which are the property of the Company or which relate in any way to
the business, products, practices, or techniques of the Company and all other
property, Confidential Information, and Customer Information including, but not
limited to, all documents and electronic media which in whole or in part contain
any Confidential Information or Customer Information, whether or not
constituting intellectual property or trade secrets, which in any of these cases
are in his/her possession or under his/her control. Employee shall be permitted
to retain personal correspondence, documents and items which contain no
Confidential Information or Customer Information; prior to removing any such
personal materials, Employee will review them with a representative designated
by FSI.
6. Employee's employment is at-will. Neither this
Agreement, in whole or in part, nor any action taken hereunder shall be
construed as giving Employee any right to be retained in the employ of FSI for
any particular period of time nor shall it otherwise limit FSI's right to
terminate the employment of Employee at any time, with or without cause or
reason, or the Employee's right to resign.
7. Employee specifically acknowledges and agrees that
the terms and conditions of the above restrictive covenants are reasonable and
necessary for the protection of FSI's business, Confidential Information, and
Customer Information, whether or not characterized as intellectual property or
trade secrets, and to prevent damage or loss to FSI as a result of any action
taken by Employee.
8. Employee hereby acknowledges and agrees that any
breach by Employee of the foregoing provisions may cause FSI irreparable injury
for which there is no adequate remedy at law. Therefore, Employee expressly
agrees that FSI shall be entitled, in addition to any other remedies available,
to injunctive and/or other equitable relief to require specific performance or
prevent a breach under the provisions of this Agreement. Employee further agrees
that any delay by FSI in asserting a right under this Agreement, or any failure
by FSI to assert a right under this Agreement, does not constitute a waiver by
FSI of any right hereunder, and FSI may subsequently assert any or all of its
rights hereunder as if the delay or failure to assert rights had not occurred.
9. In the event that any portion of this Agreement may
be held to be invalid or unenforceable for any reason, it is hereby agreed that
said invalidity or unenforceability shall not affect the other portions of this
Agreement and that the remaining terms and conditions or portions hereof shall
remain in full force and effect and any court of competent jurisdiction may so
modify the objectionable provision as to make it valid, reasonable, and
enforceable.
10. This Agreement shall be binding upon and shall be
enforceable by the parties hereto and their respective successors and assignees.
11. This Agreement shall be governed by the laws of the
State of Minnesota.
12. This Agreement supersedes any previous agreement,
written or oral, between FSI and Employee relating to the same subject matter.
This Agreement may be amended or terminated only by a subsequent agreement in
writing signed by Employee and an officer of FSI.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement the day and year first-above written.
FSI INTERNATIONAL, INC. EMPLOYEE
By: /s/X.X. Xxxxxxxx /s/X.X. Xxxxxxxx
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Xxxx X. Xxxxxxxx Xxxxxx X. Xxxxxxxx
Its: Chairman
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