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EXHIBIT 10.36
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into this 29th day of May, 2000, by
and between SPEEDFAM-IPEC, INC., an Illinois corporation (hereinafter referred
to as the "Company") and Giovanni Nocerino (hereinafter referred to as the
"Executive").
W I T N E S S E T H:
WHEREAS, the Company desires to retain the services of the Executive in
the capacities set forth herein, and the Executive desires to be employed by the
Company in such capacities:
NOW THEREFORE, in consideration of the promises and mutual covenants
herein contained, the Company and the Executive hereby agree as follows:
1. Employment. The Company hereby employs the Executive and
the Executive hereby accepts employment with the Company upon the terms
and conditions hereinafter set forth and subject to the policies as
published in the Company's Employee Handbook, Annual Incentive
Compensation Plan, and the 1995 Stock Option Plan, each as from time to
time amended.
2. Term. Subject to the provisions for extension hereinafter
set forth in Section 3 and for earlier termination hereinafter set
forth in Section 12 of this Agreement, the term of employment hereunder
shall commence on the date hereof and end on May 31, 2001.
3. Automatic Extension. The term of employment of the
Executive hereunder shall automatically continue for additional one (1)
year terms upon the same terms and conditions contained herein (except
for the guaranteed minimum incentive compensation bonus (Section 4.3),
and grant of 250,000 stock options (Section 4.7), each of which apply
solely to the initial term) unless either the Company or the Executive
shall notify the other at least thirty (30) days prior to the
expiration of the initial term or any renewal term of its or his
intention to terminate this Agreement as of the end of its then current
term.
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4. Compensation. The Company agrees to provide the Executive
with the following compensation for all services rendered under this
Agreement:
4.1. Salary. During the term hereof, the Company
shall pay to the Executive a Base Annual Salary of TWO HUNDRED
EIGHTY THOUSAND DOLLARS ($280,000.00), payable in accordance
with the standard payroll practices of the Company (including
any salary-reduction contributions to plans or programs
maintained by the Company). Further, the Base Annual Salary of
the Executive shall be reviewed annually by the Company and
increased as appropriate, although the amount may be decreased
after the first year, but only incident to, and consistent
with (on a percentage basis), a general reduction in base
salaries of Company's executives resulting from poor company
performance.
4.2. Annual Incentive Opportunity. During the term of
this Agreement, the Executive shall participate in the annual
incentive plan maintained by the Company for its executives.
For Fiscal Year 2001, The Executive's annual bonus shall be
targeted at Three Hundred Thousand Dollars ($300,000); 50%
($150,000) to be based on MBO and 50% to be based on Shipping
Targets, with a range of up to 200% for performance in excess
of plan.
4.2.1 MBO. This component of the bonus plan
includes New Hire Penetration (3 of the 6
targeted accounts) for 40% of the MBO
portion, Margin Objectives (20% of MBO),
Expense Control (20% of MBO), Parts and
Service Profitability (20% of MBO). The
Margin, Expense and Parts & Service
Profitability portions will have payout
scales around the target, from zero payout
at 80% of target met up to 200% payout with
120% of targets met for each category.
4.2.2 Shipping Target. The Shipping Target
component of the plan is based on a sliding
scale with a target of shipments at $400M.
4.3. Minimum Incentive Bonus. Solely for Fiscal Year
2001, the Company shall pay the Executive a guaranteed bonus
in the minimum amount of One Hundred Thousand Dollars
($100,000.00), payable after May 31, 2001.
4.4. Long-term Incentive Opportunity. During the term
of this Agreement, the Executive shall participate in any
long-term incentive plan
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maintained by the Company, including, but not limited to,
stock options, performance shares, restricted stock and
long-term cash incentive plans, in a manner consistent with
other executives of the Company, as reasonably determined by
the Board of Directors of the Company.
4.5. Relocation and Commuting Benefits. The Company
will pay all reasonable and ordinary costs of relocating from
Pleasanton, California, to the Phoenix area, usable within two
(2) years of Executive's employment date. This includes costs
associated with house-hunting trips, normal selling costs for
the home in Pleasanton, normal buying costs of the home in the
Phoenix area, and a payment of the equivalent of one (1)
month's salary for miscellaneous relocation expenses. The
Company agrees to pay commuting costs, temporary housing costs
and a car lease for up to two (2) years or until residence has
been established in the Phoenix area, whichever occurs sooner.
To the extent that any relocation/commuting benefits are
taxable to Executive, the Company will pay a full gross-up
(except to the extent that such expenditures by Executive may
be deducted on Executive's personal income tax) so that the
amounts paid by the Company, net of Executive's taxes, fully
cover the relevant expenses.
4.5.1 Company shall not be responsible for
any loss in equity incurred in the sale of the
Executive's Pleasanton, California, residence.
4.6. Other Benefits. To the extent that the Executive
is eligible under appropriate laws and regulations, the
Executive shall be entitled to participate in and receive
benefits under any and all pension, profit-sharing, health,
disability and insurance plans, if any, which the Company may
maintain. The Executive shall not receive automobile benefits
or allowances, except as provided in paragraph 4.5.
4.7. Equity Incentive. The Company shall grant the
Executive options to purchase 250,000 shares of common stock
of the Company. With respect to such options:
4.7.1. The exercise price for such options
shall be as of the Executive's employment date. The
options will be non-qualified options, subject to all
terms and conditions of the Company's 1995 Stock
Option Plan. Except as set forth otherwise in the
Stock Option Plan and herein, the options granted
hereunder shall vest ratably (in 3 equal
installments)
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and annually as of the end of each of the next 3
fiscal years ended May 31, with the first year's
vesting to occur on May 31, 2001. Subject to the
Stock Option Plan and this Agreement, vested options
may be exercised for ten years from the date of
grant. In the event of the death of the Executive,
vested options may be exercised for one year from the
date of death. In all other events, vested options
must be exercised within 90 days of termination.
Subject to the obligation of the Executive under the
Company's 1995 Stock Plan, the Company will cooperate
in any same day exercise and sale (or if same is not
available, a cashless exercise) associated with such
options.
4.7.2. Upon termination of the Executive's
employment, option vesting will cease; provided,
however, that if any termination severance payment is
due in connection therewith pursuant to Section 12.3,
the Executive will receive an additional one year of
vesting as of the date of termination. Payment of all
amounts and benefits hereunder and additional vesting
of stock shall be subject to compliance with the
provisions of this Agreement and specifically the
restrictive covenants set forth in Section 13 hereof.
5. Duties. The Executive shall, subject to the right of the
Company in its sole discretion to terminate Executive's employment
pursuant to Section 12.3 and thereby terminate his employment and/or
officer position, serve as Executive Vice President of the Company. As
such, the Executive's duties and responsibilities shall include, but
shall not be limited to, overseeing all functions relating to Sales,
Marketing, and Field Service operations. The Executive shall also be
responsible for the performance of such other duties and
responsibilities as may be prescribed from time to time by the Chief
Executive Officer and/or the Board of Directors of the Company.
6. Extent of Service. The Executive shall devote the
Executive's full business time, attention, and energies to the business
of the Company and its Affiliates and shall not, during the term of
this Agreement, be engaged in any other business activity, whether or
not such activity is pursued for gain, profit, or other pecuniary
advantage, unless written approval is first secured from the Board of
Directors of the Company, with such approval not unreasonably being
withheld.
7. Working Facilities. The Executive shall be furnished with
office space, furnishings, secretarial support and such other
facilities and services which are reasonably necessary for the
performance of the Executive's duties.
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8. Expenses. The Company will reimburse the Executive for
all reasonable business expenses which are incurred by the Executive in
the promoting of the interests of the Company. In addition, the Company
shall indemnify the Executive as an officer, director and employee to
the maximum extent permitted under law and the Company's corporate
documents.
9. Vacation. The Executive shall be entitled to paid
vacation in accordance with Company policy. All vacation time shall be
taken by the Executive at such times as shall be mutually agreed upon
by the Executive and the Chief Executive Officer of the Company.
10. Disability. If, as a result of sickness or other
disability, the Executive is not able to perform the Executive's
duties, this Section 10 shall apply as follows:
10.1. For the first ninety (90) consecutive days of
sickness or other disability the Company shall continue to pay
the Executive full Base Annual Salary (reduced by any payments
from any short-term disability plan which may be maintained by
the Company), and shall continue to pay premiums on then
existing group life, health, disability and other insurance
plans with respect to which the Executive participates,
provided the Executive remains eligible to participate
thereunder.
10.2. If the disability or other sickness continues
past ninety (90) consecutive days, the Company, in its sole
discretion, may elect to place the Executive on Disability
Leave of Absence. During such period, the Company shall, for
the remainder of the contract term, or until the Executive
returns from such Disability Leave of Absence, continue to pay
premiums on then existing group life, health, disability and
other insurance plans with respect to which the Executive
participates, provided the Executive remains eligible to
participate thereunder. Further, the Company shall pay to the
Executive, two-thirds (2/3) of the Executive's Base Annual
Salary, reduced by any payments for which the Executive is
eligible from any disability insurance programs maintained by
the Company.
11. Death. If the Executive dies during the term of this
Agreement, the Company shall pay to the Executive's Beneficiary (or if
there is no named Beneficiary, the estate of the Executive), the
compensation as set forth in Section 4 of this Agreement, for the
period up to the date of the Executive's death, and the Executive's
annual
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incentive award prorated through the date of death, payable at fiscal
year end if and to the same extent bonuses are paid for that fiscal
year to other executives generally. In no event shall the Company be
obligated to pay to any person any other compensation with respect to
any period following the date of the Executive's death.
12. Termination of Employment.
12.1. Termination for Cause. The Company may terminate
the Executive's employment under this Section of the Agreement
for Cause. Cause shall be defined as:
12.1.1. The Executive's Material Breach of this
Agreement based on the Executive's willful or grossly
negligent failure to perform his duties hereunder,
which breach is not cured within ten (10) business
days after written notice from the Company specifying
such breach has been delivered to the Executive;
12.1.2. Commission by the Executive of any
fraudulent or dishonest act in the performance of the
Executive's duties hereunder; or,
12.1.3. Arrest (unless the charges are dropped
within 45 days) for any felony or crime involving
moral turpitude. Executive agrees that as soon as
practical following any such arrest he shall provide
notice of the arrest and during the subsequent 45-day
period he may, at the direction of the Board of
Directors, be placed on unpaid leave of absence.
12.1.4. Following a Termination for Cause, the
Company shall pay to the Executive the Base Annual
Salary provided in Section 4.1 accrued up to the date
of termination. In no event shall the Company be
obligated to pay any other compensation with respect
to any period before or after the date of such
termination.
12.2. Termination Following a Change of Control. If in
anticipation of and within 90 days of, or during a period of
one (1) year following, a Change of Control (as hereinafter
defined), the employment of the Executive is terminated by the
Company for any reason other than Cause, or if the Executive
is subject to Constructive Termination (as hereinafter
defined), benefits shall be payable under this Section 12.2.
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12.2.1. The Executive shall receive all Base
Annual Salary accrued up to the date of termination
and, within thirty (30) days of termination, a single
payment equal to the sum of (i) two (2) times the sum
of the Executive's then current Base Annual Salary
and (ii) the Executive's pro-rated target annual
incentive award opportunity through date of
termination.
12.2.2. All unvested stock options awarded to
the Executive pursuant to the Company's stock option
plans shall immediately vest in full to the
Executive; provided that such stock options shall be
exercisable only within ninety (90) days from such
vesting.
12.3. Other Termination at the Election of the
Company. Except as otherwise provided in Section 4.8, the
Company may elect to terminate the employment of the Executive
for any reason other than Cause or following a Change of
Control, or to not renew the term of the Agreement, upon
written notice to the Executive, accompanied by payment in a
lump sum (except pursuant to Sections 12.3.2 and 12.3.3) of:
12.3.1. All compensation accrued up to the date
of termination; plus
12.3.2. An amount equal to one (1) times the
Executive's Base Annual Salary of record on the date
of termination payable pro rata monthly over the one
year following termination; plus
12.3.3. The Executive's target annual incentive
award, pro-rated through the date of termination and
payable at fiscal year end if and to the same extent
bonuses are paid for that fiscal year to other
executives generally.
12.4. Benefit Payments. Following the termination of
the Executive's employment for any reason, the Company shall
pay to the Executive, under the terms of the Company's benefit
plans, an amount equal to the vested benefits of the Executive
in any pension or other benefit plan as of the termination
date. If elected by the Executive, the Company shall, instead
of direct payment to the Employer, transfer such funds to such
other benefit plans as designated by the Executive.
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13. Restrictive Covenants.
13.1. Executive understands that the Company's
business involves the design, improvement, development,
testing, manufacturing, marketing and sale of products, and
that this business requires substantial investments in capital
and substantial commitments of time and effort by the
Company's employees. The Executive further understands that,
as a result, certain of the Company's personnel, including the
Executive, acquire information with respect to customer
goodwill, trade secrets and Confidential Information (as
hereinafter defined), which, of itself and apart from the
Executive's abilities, could be of great value to a competitor
of the Company, potential competitors of the Company, and to
others.
13.2. The Executive further understands that
employment with the Company is conditioned upon the Company's
being able to place complete trust and confidence in the
Executive and to rely on the Executive's doing everything
possible to avoid the disclosure or use of Confidential
Information to persons, corporations, organizations and others
outside the Company, which may become known to, or subject to
the control of the Executive during the term of employment
hereunder. The Executive also understands that competition in
the manufacture, sale, and development of products is not
local in nature or scope, but involves various corporations,
organizations and others located within the United States and
throughout the world.
13.3. In recognition of these circumstances and for
the purpose of inducing the Company to employ the Executive
(or continue the employment of the Executive with appropriate
compensation reviews), to repose trust and confidence in the
Executive, and to make Confidential Information available to
the Executive, the Executive agrees that the following
restrictive covenants are necessary and proper for the
protection of the Company.
13.4. Subject to Section 13.6 below, the Executive
will promptly disclose and assign to the Company, without the
right to any form of compensation therefore, every invention
that the Executive, individually or jointly with others,
during the term of the Executive's employment with the Company
and for a period of one (1) year following termination of such
employment for any reason, may discover, invent, conceive or
originate, relating in any way to the present or contemplated
scope of the Company's business with regard to any of its
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clients, customers or vendors or to any Product (as
hereinafter defined), Technology (as hereinafter defined),
process, or device dealt in, used or under development or
manufacture by the Company for itself or others that results
from or may be suggested by any work the Executive may do for
the Company or at the Company's request and (in respect to the
period of one (1) year following termination of such
Executive) which involves Confidential Information. The
Executive will fully cooperate with the Company in applying
for and securing in the name of the Company or its designee
patents or copyrights with respect to said Inventions (as
hereinafter defined) in each country in which the Company may
desire to secure patent or copyright protection. The Executive
will promptly execute all proper documents presented to the
Executive for signature by the Company to enable the Company
or its designee to secure such patent or copyright protection
and to transfer legal title therein, together with any patents
or copyrights that may be issued thereon or in connection
therewith, to the Company or its designee. The Executive will
give such true information and testimony as may be requested
of the Executive by the Company relative to any of said
Inventions.
13.5. Subject to Section 13.6 below, the Company shall
have the exclusive right to use in its business, and to make,
use and sell products, processes, and/or services arising out
of any Invention, whether or not patentable, which is
assignable by the Executive to the Company pursuant to Section
13.4 above.
13.6. The Executive is hereby notified that Sections
13.4 and 13.5 above do not apply to an Invention for which no
equipment, supplies, facility, technology, confidential
information, or trade secret information of the Company was
used and which was developed entirely on the Executive's own
time, unless:
13.6.1. The Invention was related:
13.6.1.1. To the business of the
Company; or
13.6.1.2. To the Company's actual or
demonstrably anticipated research or
development;
or;
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13.6.2. The Invention results from any
work performed by the Executive for the
Company.
13.7. The Executive agrees that all financial data,
customer lists, plans, contracts, agreements, literature,
manuals, catalogues, brochures, books, records, computer files
or applications, maps, correspondence, and other materials
furnished or made available to the Executive by the Company or
an Affiliate (as hereinafter defined), or any of its clients,
or created, prepared or secured through the efforts of the
Executive, relating to the business conducted by the Company
or an Affiliate, whether or not containing any Confidential
Information, are and shall remain the property of the Company,
and the Executive agrees to deliver all such materials,
including all copies thereof, to the Company upon termination
of the Executive's employment hereunder, or at any other time
at the Company's request.
13.8. Other than as expressly directed by the Company
and in the performance of duties to the Company or with the
expressed written permission of the Company, the Executive
shall never, during or following the Executive's employment
with the Company, directly or indirectly, sell, use, disclose,
lecture upon, or publish data or information containing or
relating to any Confidential Information or Technology of the
Company or its Affiliates or any Invention assignable to the
Company pursuant to the terms of Section 13.4 above.
13.9. During the term of the Executive's employment
with the Company and for a period of two (2) years after the
termination thereof, unless a court finds that a two-year
restriction is unenforceable, in which case a period of
restriction shall be one (1) year, the Executive agrees that
the Executive shall not:
13.9.1. Own or have any interest in, directly
or indirectly, except through stock traded on a
national stock exchange where the Executive owns less
than one percent (1%) of the total issued and
outstanding shares of such stock, or act as an
officer, director, agent, employee, or consultant of,
or assist in any way or in any capacity, any person,
firm, association, partnership, corporation or other
entity which sells or provides products or services
in direct competition with the products or services
of the Company or its Affiliates anywhere within the
world where any Confidential Information acquired by
the Executive would reasonably be considered
advantageous to such other competing entity, or
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13.9.2. Directly or indirectly entice, induce
or in any manner influence any person who is, or
shall be, in the service of the Company or its
Affiliates to leave such service for the purpose of
engaging in business or being employed by or
associated with any person, firm, association,
partnership, corporation or other entity which sells
or provides products or services in competition with
the Company or its Affiliates anywhere in the world.
If any court shall finally hold that the time, territory or
any other provision of this Section 13.9 constitutes an
unreasonable restriction against the Executive, the Executive
agrees that the provisions hereof shall not be rendered null
and void, but shall apply as to such time, territory, and
other extent as such court may determine to be a reasonable
restriction under the circumstances involved.
13.10. The Executive understands that if there is a
breach by the Executive of any duty to the Company with
respect to any Confidential Information or Invention, the
Company may suffer irreparable injury and may not have
adequate remedy at law. As a result, the Executive agrees that
if a breach of this Agreement occurs, the Company may, in
addition to any other remedies available to it, bring an
action or actions for injunction, specific performance, or
both, and have entered into a temporary restraining order,
preliminary or permanent injunction, or other action
compelling specific performance.
14. Definitions.
14.1. "Affiliate" means any entity in which the
Company, or any entity that owns, directly or indirectly, a
majority ownership interest in the Company, owns, directly or
indirectly, at least a twenty percent (20%) interest in such
entity.
14.2. "Base Annual Salary" means the annualized value
of the Executive's salary, based on the most recent pay
period.
14.3. "Board" means the Board of Directors of the
Company.
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14.4. "Change in Duties" means:
14.4.1. A significant reduction in the nature
or scope of the Executive's authority or duties from
those immediately prior to the date on which a Change
of Control occurs;
14.4.2. A reduction in the Executive's Base
Annual Salary, other than as provided in Section 4.1;
14.4.3. Exclusion from any incentive or benefit
program from which the Executive was previously
eligible, and which other executives with comparable
duties participate in; or
14.4.4. A change in location of the Executive's
principal place of employment by more than fifty (50)
miles.
14.5. "Change of Control" shall be deemed to
have occurred upon:
14.5.1. A business combination, including a
merger or consolidation, of the Company as a result
of which the shareholders of the Company prior to the
combination do not continue to own, directly or
indirectly, more than fifty-one percent (51%) of the
equity of the combined entity;
14.5.2. A sale, transfer, or other disposition
in one or more transactions (other than in
transactions in the ordinary course of business or in
the nature of a financing) of the assets or earning
power aggregating more than forty-five percent (45%)
of the assets or operating revenues of the Company to
any person or affiliated or associated group of
persons (as defined by Rule 12b-2 of the Exchange Act
in effect as of the date hereof);
14.5.3. The liquidation of the Company;
14.5.4. One or more transactions which result
in the acquisition by any person or associated group
of persons (other than the Company, any Executive
benefit plan whose beneficiaries are Executives of
the Company or any of its subsidiaries) of the
beneficial ownership (as defined in Rule 13d-3 of the
Exchange Act, in effect as of the date hereof) of
forty percent
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(40%) or more of the Common Stock of the Company or
securities representing forty percent (40%) or more
of the combined voting power of the voting securities
of the Company, provided such affiliated persons
owned less than forty percent (40%) prior to such
transaction or transactions; or
14.5.5. The election or appointment, within a
twelve (12) month period, of any person or affiliated
or associated group, or its or their nominees, to the
Board of Directors of the Company, such that such
persons or nominees, when elected or appointed,
constitute a majority of the Board of Directors of
the Company and whose appointment or election was not
approved by a majority of those persons who were
directors at the beginning of such period or whose
election or appointment was made at the request of an
Acquiring Person. An "Acquiring Person" is any person
who, or which, together with all affiliates or
associates of such person, is the beneficial owner of
twenty percent (20%) or more of the Common Stock of
the Company then outstanding, except that an
Acquiring Person does not include the Company or any
Executive benefit plan of the Company or any of its
subsidiaries or any person holding Common Stock of
the Company for or pursuant to such plan. For the
purpose of determining who is an Acquiring Person,
the percentage of the outstanding shares of the
Common Stock of which a person is a beneficial owner
shall be calculated in accordance with Rule 13d-e of
the Exchange Act.
14.6. "Code" means the Internal Revenue Code of 1986,
as from time to time amended.
14.7. "Company" means SpeedFam-IPEC, Inc., an
Illinois corporation.
14.8. "Confidential Information" means any and all
Technology and/or information which:
14.8.1. Is provided to the Executive by the
Company;
14.8.2. Is created, developed, or otherwise
generated by or on behalf of the Company;
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14.8.3. Concerns or relates to any aspect of
the Company's business; or
14.8.4. Is, for any reason, identified by the
Company as confidential.
14.8.5. Notwithstanding the foregoing
provisions of this Section 14.8, Confidential
Information shall not include such information that
the Executive can show, clearly and convincingly:
14.8.5.1. Is publicly and openly known
and in the public domain;
14.8.5.2. Becomes publicly and openly
known and in the public domain through no
fault of the Executive; or
14.8.5.3. Is in the Executive's
possession and documented prior to this
Agreement, lawfully obtained from a source
other than from the Company, and not subject
to any obligation of confidentiality or
restricted use.
14.9. "Constructive Termination" means the voluntary
termination of employment by the Executive following a Change
in Duties following a Change of Control.
14.10. "Exchange Act" means the Securities Exchange
Act of 1934, as from time to time amended.
14.11. "Invention" means any new or useful art,
discovery, or improvement (including any technologies, tests,
programs, products, concepts, ideas, apparatus, equipment,
machinery, processes, methods, formulae, designs or
techniques), whether or not related to a Product and whether
or not patentable, and all the know-how related thereto.
14.12. "Material Breach" means a willful or grossly
negligent failure to perform the Executive's duties as set
forth in this Agreement.
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14.13. "Product" means any product or service which is,
or may in the reasonable future be, manufactured, sold,
designed, developed, considered by, or of interest to the
Company or an Affiliate (including, but not limited to, any
product or service involving CMP planarization technology,
such as CMP-V tools or any free-abrasive machining, lapping,
polishing and grinding).
14.14. "Technology" means prototypes, models, concepts,
inventions, circuit designs, drawings, hardware, technological
developments and improvements, methods, techniques, systems,
documentation, data, works of authorship, products, and
related information whether or not patentable, copyrightable,
and whether or not presently used or used in the future.
14.15. "Voting Securities" mean any securities which
ordinarily possess the power to vote in the election of
directors without the happening of any precondition or
contingency.
15. Miscellaneous.
15.1. This Agreement supersedes all prior agreements
and understandings by and between the Executive and the
Company and any of its Affiliates or their respective
directors, officers, shareholders, employees, attorneys,
agents, or representatives, including any Severance Agreement,
Employment Letter, Employment Terms, Non-Disclosure Agreement
and/or Employment Agreement (including change of control
provisions) and constitutes the entire agreement between the
parties, respecting the subject matter hereof, and there are
no representations, warranties or other commitments other than
those expressed herein.
15.2. The Executive represents and warrants to the
Company that the Executive is not a party to or bound by, and
the employment of the Executive by the Company or the
Executive's disclosure of any information to the Company or
its use of such information will not violate or breach any
employment, retainer, consulting, license, non-competition,
non-disclosure, trade secrets or other agreement between the
Executive and any other person, partnership, corporation,
joint venture, association or other entity.
15.3. No modification or amendment of, or waiver
under, this Agreement shall be valid unless signed in writing
and signed by the Executive and
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an appropriate officer of the Company, pursuant to expressed
authority of the Board of Directors of the Company.
15.4. The Executive agrees to indemnify the Company
and its Affiliates against, and to hold the Company and its
Affiliates harmless from, any and all claims, lawsuits,
losses, damages, expenses, costs and liabilities, including,
without limitation, court costs and attorney's fees, which the
Company or any of its Affiliates may sustain as a result of,
or in connection with, either directly or indirectly, the
Executive's breach or violation of any of the provisions of
this Agreement.
15.5. The Company agrees to indemnify the Executive
against, and to hold the Executive harmless from, any and all
claims, lawsuits, losses, damages, expenses, costs and
liabilities, including, without limitation, court costs and
attorney's fees, which the Executive may sustain as a result
of, or in connection with, either directly or indirectly, the
breach or violation by the Company or its Affiliates of any of
the provisions of this Agreement or any applicable law or
regulations.
15.6. The Executive hereby agrees that if the
Executive violates any provision of this Agreement, the
Company will be entitled, if it so elects, to institute and
prosecute proceedings at law or in equity to obtain damages
with respect to such violation or to enforce the specific
performance of this Agreement by the Executive or to enjoin
the Executive from engaging in any activity in violation
hereof.
15.7. The waiver by either party to this Agreement of
a breach of any provision of this Agreement by the other shall
not operate or be construed as a waiver of any subsequent
breach.
15.8. Any communication which may be required under
this Agreement shall be deemed to have been properly given
when delivered personally at the address set forth below for
the intended party during normal business hours, when sent by
facsimile or other electronic transmission to the respective
facsimile transmission numbers of the parties set forth below
with telephone confirmation of receipt, or when sent by U.S.
registered or certified mail, return receipt requested,
postage prepaid as follows:
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<PAGE> 17
If to the Company: SpeedFam-IPEC, Inc.
305 N. 54th Street
Chandler, AZ 85226-2416
Attention: Chief Executive Officer
Facsimile: 602-705-2122
Confirm: 602-705-2500
If to the Executive: Giovanni Nocerino
3760 Trenery drive
Pleasanton, CA 94588
Notices shall be given to such other addressee or address, or
both, or by way of such other facsimile transmission number,
as a particular party may from time to time request by written
notice to the other party to the Agreement. Each notice,
request, demand, approval or other communication which is sent
in accordance with this Section shall be deemed to be
delivered, given and received for all purposes of this
Agreement as of two (2) business days after the date of
deposit thereof for mailing in a duly constituted U.S. post
office or branch thereof, one (1) business day after deposit
with a recognized overnight courier service or upon written
confirmation of receipt of any facsimile transmission. Notice
given to a party hereto by any other method shall only be
deemed to be delivered, given and received when actually
received in writing by such party.
15.9. This Agreement shall inure to the benefit of and
be binding upon the Company and the Executive and their
respective heirs, personal representatives, successors and
assigns.
15.10. All claims, disputes and other matters in
question arising out of, or relating to this Agreement, or the
breach thereof, shall be decided by arbitration, pursuant to
the Commercial rules established by the American Arbitration
Association for the arbitration of such disputes, and such
arbitration shall occur in Chandler, Arizona.
15.11. This Agreement may be signed in multiple
counterparts which when taken together shall constitute the
entire Agreement.
15.12. This Agreement shall be governed and construed
in accordance with the laws of the State of Arizona.
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<PAGE> 18
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
SPEEDFAM-IPEC, INC. an Illinois Corporation
By /s/ Richard Faubert
_________________________________________
Richard Faubert, Chief
Executive Officer
Executive
/s/ Giovanni Nocerino
_________________________________________
Giovanni Nocerino
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