Exhibit 10.1
Certain identified information has been excluded from this exhibit because it is both not material and is the type that the registrant treats as private or confidential.
EMPLOYMENT AGREEMENT
This Employment Agreement (“Agreement”) is entered into by and between Onto Innovation, Inc., a Delaware corporation (“Company”) and Michael P. Plisinski (“Executive”) and is effective on September 15, 2023 (“Effective Date”).
WHEREAS, Executive and the Company are parties to a November 5, 2015 Employment Agreement (“Prior Employment Agreement”) setting forth certain terms and conditions in connection with Executive’s employment as the Company’s Chief Executive Officer;
WHEREAS, the Prior Employment Agreement will be terminated and of no further force or effect as of the Effective Date, except as specifically provided herein.
WHEREAS, the Company wishes to continue to employ Executive as its Chief Executive Officer on the terms and conditions set forth herein; and
WHEREAS, Executive desires to continue to serve the Company as its Chief Executive Officer on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the Company’s continued employment of Executive and the mutual covenants and agreements set forth herein, the Company and Executive hereby enter into this Agreement.
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Executive shall be eligible for his first Equity Grant in the Company’s Fiscal Year 2024. Once granted and any applicable agreements are completed, the Executive’s Restricted Share Unit Award will be governed by the terms of the Onto Innovation 2020 Stock Plan, the Grant, and any applicable award agreement, and not the terms of this Employment Agreement.
(d) Benefits and Other Entitlements. During the Employment Term, the Company shall provide Executive with the right to participate in Company-sponsored employee benefit plans, programs and perquisites for which Executive is eligible, on the same basis (including co-payments, deductibles and premium sharing) as such benefits, programs and perquisites (if any) are generally available to other similarly situated employees of the Company. The Company may amend, modify or rescind any employee benefit plans, programs or perquisites and change employee contribution amounts or benefit costs without notice at its discretion, so long as any such amendment, modification, rescission or change applies to all similarly situated employees. Notwithstanding the foregoing, Executive’s benefits shall include reimbursement for tax preparation and an annual airline club membership. For the purposes of this subsection (d) and subsection (f) below of this Section 4, “similarly situated employees” shall mean principal executive officers or principal financial officers of the Company.
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To be treated as resigning for Good Reason, Executive must provide written notice to the Company effective within sixty (60) days after the first occurrence of such event, notifying the Company of the “Good Reason;” provide the Company with at least thirty (30) days to correct the purported Good Reason; and actually resign effective within sixty (60) days after the earlier of the date the Company provides written notice that it will not correct the Good Reason or the end of the cure period.
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For purposes of this definition, persons will be considered to be acting as a group if they are owners of a corporation that enters into a merger, consolidation, purchase or acquisition of stock, or similar business transaction with Company.
In addition, to the extent required for compliance with Section 409A, in no event will a Change in Control be deemed to have occurred if such transaction is not also a “change in the ownership or effective control of” the Company or a “change in the ownership of a substantial portion of the assets of” the Company, as determined under Treasury Regulations Section 1.409A-3(i)(5).
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To the extent not vested pursuant to clause (A), (B) or (C) above, all New Equity Awards of Executive outstanding at the time of the termination of employment due to death or Disability under this Section 7 shall terminate as of the Termination Date due to death or Disability, except only as may otherwise be provided in any applicable Company equity incentive award agreement granted to Executive.
For purposes of this Agreement, “Competitive Business” with the Company means (1) any activity which involves the sale, distribution, design and/or manufacturing of precision film thickness measurement instruments, defect and yield metrology tools, advanced packaging lithography equipment or data analysis systems for use in the semiconductor manufacturing industry; and (2) any other business in which the Company is engaged during the Employment Term or proposed to engage under plans being developed during the Employment Term, in each case, under clause (1) or (2) above, within any geographical area in which the Company engages in business. Executive acknowledges and agrees that, in his role as Chief Executive Officer, he will have a material presence or influence in any geographical area in which the Company engages in business.
The Company may elect to enforce the provisions of this Section 8(a) or waive them at its sole discretion. If the Company elects to waive the provisions of this Section 8(a), the Company will provide Executive written notice of such waiver on or before the last day of Executive’s employment with the Company pursuant to an involuntary termination, or within one (1) week after the Company’s receipt of written notice from Executive of Executive’s resignation. If the Company does not elect to waive the provisions of this Section 8(a), and the Executive is not entitled to Compensation following Termination of Employment under Section 6 of this Agreement, then, in lieu of garden leave, Company and Executive have mutually agreed that a one-time payment of $343,446 (“mutually-agreed consideration”) will be made on the next regular payroll date following termination of his employment and is subject to all applicable withholdings.
For avoidance of doubt, the Company’s failure to timely waive the provisions of this Section 8(a) shall be construed as its election to enforce the provisions of this Section. For avoidance of any further doubt, if the Company elects to waive the provisions of this Section 8(a), or the Company is otherwise prohibited by law or a court from enforcing the provisions of this Section, Executive will not be subject to the restrictions in this Section nor will he be entitled to the Mutually-agreed Consideration.
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To The Company:
16 Jonspin Road
Wilmington, MA 01887
Attention: Chairman, Board of Directors
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With copy to:
Office of General Counsel
16 Jonspin Road
Wilmington, MA 01887
To Executive: at the last address shown on the records of the Company maintained by the Company’s Human Resources Department with a copy to:
[Address redacted]
With a copy to:
Gennari Aronson, LLP
250 First Avenue, Suite 200
Needham, Massachusetts 02494
Attention: Neil Aronson, Esq.
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[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date set forth above.
EXECUTIVE: THE COMPANY:
/s/ Michael P. Plisinski________ By: _/s/ May Su__________________
Michael P. Plisinski Name: May Su
Title: Chairperson of the Compensation Committee