EMPLOYMENT AGREEMENT
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This Agreement is made and entered into as of the ___ day of January,
1997, by and between EMI ACQUISITION, INC., a Delaware corporation ("Employer")
and wholly owned subsidiary of Cerprobe Corporation, a Delaware corporation
("Cerprobe"), and WILLIAM E. MAYER ("Employee").
RECITALS
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A. Employer is engaged in refurbishing and adding new features to
automatic wafer probing equipment for use in the semiconductor industry (the
"Prober Business").
B. Employer desires to employ Employee, and Employee desires to accept
such employment, on the terms and conditions set forth in this Agreement.
AGREEMENT
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NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual covenants set forth in this Agreement, the parties agree as follows:
1. Employment. Employer hereby employs Employee and Employee
hereby accepts such employment, to perform such duties and services for and on
behalf of Employer as may, from time to time, be determined by the Board of
Directors or President of Employer, as applicable, and are consistent with
Sections 1(a), 1(b) and 1(c) hereof. Subject to Sections 1(a), 1(b) and 1(c)
hereof, Employee shall devote Employee's full and undivided business time,
attention and efforts to Employer's business and to the performance of
Employee's duties under this Agreement, and shall fully and faithfully perform
all duties assigned to Employee under this Agreement, consistent with Employee's
position hereunder, to the best of Employee's abilities.
(a) Initially. Following the execution and delivery
of this Agreement, for a period of time not to exceed six (6) months, Employee
shall (i) serve as President of Employer and shall perform such duties and
responsibilities as are consistent with that of President, and consistent with
the duties and responsibilities performed by Employee while President of Silicon
Valley Test & Repair, Inc., a California corporation; (ii) assist Employer with
finding, hiring and educating a new President of Employer; and (iii) work a
minimum of forty (40) hours per week, at least twenty-four (24) hours of which
must be at Employer's principal place of business.
(b) Thereafter. Once a new President has been hired
and educated, Employee shall (i) have the title of, and perform such duties and
responsibilities as are consistent with that of, Vice President of Strategic
Technology Development; and (ii) work full time, only (24) hours of which must
be at Employer's principal place of business, and the remaining time Employee
shall be on call.
(c) Santa Clara County. Employer agrees that Employee
will be based in Santa Clara County, California, and that a majority of
Employee's work may be done in Santa Clara County, California. Employee
understands and agrees, however, that Employee's duties and responsibilities may
require Employee to travel from time to time, and Employee agrees to do so.
2. Compensation. Employee shall be entitled to receive a per
annum salary of Two Hundred Thousand Dollars ($200,000) ("Salary") as full
compensation for all the services rendered by Employee during the term of
Employee's employment hereunder. Employee shall be entitled to receive the
Salary in 26 equal payments; payments to be made every two weeks (less all
applicable deductions for all taxes, including federal, state, and FICA;
insurance; pension plans; etc.).
3. Other Benefits. In addition to Employee's Salary, during
the term of Employee's employment hereunder, Employee shall be entitled to the
benefits set forth below in this Section 3. As used in this Agreement,
"Comparable Level Employees" means the principal officers of Employer.
(a) Pension Plans. Participation in such pension,
profit sharing and deferred compensation plans and programs, if any, as may be
provided from time to time to other Comparable Level Employees.
(b) Medical and Dental Benefits. Participation in
such group medical, accident and dental plans, if any, as may be provided from
time to time to other Comparable Level Employees.
(c) Life and Disability Insurance. Life and
disability insurance, if any, as may be provided from time to time to other
Comparable Level Employees. Employer will pay the disability insurance premium
for Employee.
(d) Vacation. Receive three (3) weeks paid vacation
during each calendar year. Vacation shall be taken at such times as determined
by Employee and approved by Employer. Up to two (2) weeks' vacation time that is
not used in a particular year may be carried forward into the next calendar
year, and only five (5) weeks' vacation may be taken in any one calendar year.
Employee must take any vacation time that is not allowed to be carried forward
or the unused vacation time will be lost, unless Employer otherwise agrees or
Employer did not approve the vacation time requested by Employee.
(e) Reimbursement. Reimbursement within 30 days of
the submittal of an approved expense report, for all ordinary and necessary
out-of-pocket business expenses incurred by Employee in connection with the
business of Employer and Employee's duties under this Agreement. The term
"business expenses" shall include any item of expense that is reasonable,
ordinary or necessary in relation to Employee's duties hereunder. To obtain
reimbursement, Employee shall submit to Employer receipts, bills or sales slips
for the expenses incurred.
(f) Other Benefits. Such other fringe benefits as
Employer may make generally available on a nondiscriminatory basis to all other
employees of Employer.
4. Term of Employment.
(a) Employment Term. The term of Employee's
employment hereunder shall commence on the date hereof, and shall terminate on
December 31, 1999, unless earlier terminated in accordance with the terms of
this Agreement.
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(b) Termination. Notwithstanding anything contained
in this Agreement to the contrary, Employee's employment hereunder is entirely
at will, and may be terminated by Employer with or without cause, subject only
to the payment obligations of Employer as hereafter set forth.
(i) In the event Employer terminates
Employee's employment hereunder for Cause (as hereafter defined), Employee's
employment hereunder shall immediately terminate on the effective date of such
termination as established by Employer, and Employee shall only receive Salary
and any other benefits under this Agreement prorated through the effective date
of Employee's termination.
(ii) In the event Employer terminates
Employee's employment hereunder without Cause, then for the remaining term of
this Agreement, as severance pay and as total compensation and restitution for
such termination, Employee shall receive for the remaining term of this
Agreement: (A) Employee's Salary which shall be paid at the times it would be
paid if Employee was still employed by Employer under this Agreement, subject to
the same deductions and withholdings, and (B) either, at Employer's discretion,
(1) the same medical benefits as Employee would be entitled to receive if
Employee was still employed by Employer under this Agreement or (2) the COBRA
amount necessary for Employee to maintain such medical benefits; provided,
however, that if Employee accepts employment during the remaining term of the
Agreement and as part of that employment Employee receives medical benefits
similar to those Employee received immediately prior to such termination, then
Employer's obligations under this Section 4(b)(ii)(B) shall terminate early on
the date Employee begins receiving such medical benefits from his new employer.
(c) Cause. For purposes of this Agreement, "Cause"
means: (i) "Total and Permanent Incapacity" (as hereinafter defined) of
Employee; (ii) the failure or inability (not as a consequence of any illness,
accident or other disability, as confirmed by competent medical evidence) of
Employee to perform Employee's duties hereunder in a manner reasonably
satisfactory to Employer's Board of Directors, provided the decision of the
Board of Directors is not arbitrary or capricious, and is not made in bad faith
and further that the failure or inability is not as a consequence of any
illness, accident or other disability as confirmed by competent medical
evidence; (iii) "Serious Misconduct" (as hereinafter defined) of Employee; or
(iv) the breach of any of the terms or conditions contained in this Agreement.
For purposes of this Agreement, "Total and Permanent
Incapacity" means such physical or mental condition of Employee, including
alcoholism, which renders Employee incapable of performing Employee's duties
hereunder for more than 90 days. In the event Employee is a Qualified Individual
with a Disability, as defined in the American with Disabilities Act, Employer
shall not terminate Employee's employment hereunder if Employee is able to
perform the essential functions of Employee's job with or without reasonable
accommodation from Employer.
For purposes of this Agreement, "Serious Misconduct"
means embezzlement or misappropriation of corporate funds; the furnishing of any
information, reports, documents or certificates by Employee to Employer which
Employee knew or believed to be false or misleading; dishonesty of any kind in
relations with Employer or its customers; activities harmful to the
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reputation of Employer (other than as a consequence of good faith decisions made
by Employee in the normal performance of Employee's duties hereunder); the
conviction of or the plea by Employee to any criminal felony offense or any
criminal offense regarding dishonesty or moral turpitude; or the refusal to
perform the duties assigned to Employee pursuant to this Agreement (unless such
duties shall be unlawful).
Employer agrees to act in a commercially reasonable
fashion in terminating for Cause, and shall give Employee notice of any failure
by Employee to conform his conduct to the requirements of this Agreement and an
appropriate amount of time to cure such failure, the exact amount of time to be
determined by Employer in a commercially reasonable fashion, based upon the type
of failure involved. Employer and Employee acknowledge and agree that some
failures (which failures Employer and Employee are not defining other than as
those failures Employer determines, in a "commercially reasonable fashion,"
qualify) will not require any notice to be given, and Employee may be terminated
immediately for "Cause" in those situations.
Notwithstanding anything contained in this Agreement
to the contrary, Employee may resign and terminate Employee's employment
hereunder, with or without cause, subject to the requirement that Employee shall
provide Employer with not less than 45 days' prior written notice. In such
event, Employee shall not receive any Salary or any other benefits under this
Agreement after the effective date of Employee's resignation.
(d) Death. In the event of the death of Employee
during the term of this Agreement, this Agreement and Employee's employment
hereunder shall terminate as of the date of the death of Employee, and
Employee's estate or personal representative shall be entitled to receive Salary
and other fringe benefits prorated for the period of Employee's employment to
the date of death, payable within 60 days after the date of death.
(e) Suspension. Employer shall have the right to
suspend Employee with full pay and benefits for any period of time the Board of
Directors of Employer deems, in its sole discretion, necessary or appropriate to
investigate Employee's conduct in connection with Section 4(c) hereof.
5. Noncompetition. During the period of Employee's employment
hereunder, and for a period of eighteen (18) months from and after the date of
expiration or earlier termination of Employee's employment hereunder (or such
lesser period to the maximum extent permitted by applicable law), neither
Employee nor any person or entity controlled (directly or indirectly) by
Employee, whether as employer, employee, proprietor, partner, stockholder (other
than the holder of less than 5% of the stock of a corporation the securities of
which are traded on a national securities exchange or in the over-the-counter
market), director, officer, consultant, agent or otherwise, shall within the
Restricted Territory (as defined below) engage or cause others to engage in the
Business unless first authorized in writing by Employer, which authorization may
be withheld in the sole and absolute discretion of Employer. For purposes of
this Agreement, the term "Restricted Territory" shall mean the United States of
America, and all other countries in which Employer conducts the Business on the
date hereof. If Employee violates Employee's obligations contained in this
Section 5, then the time periods hereunder shall be extended by the period of
time equal to that period beginning when the activities constituting such
violation commenced and ending when the activities constituting such violation
terminated.
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6. Nonsolicitation. During the period of Employee's employment
hereunder, and for a period of eighteen (18) months from and after the date of
expiration or earlier termination of Employee's employment hereunder (or such
lesser period to the maximum extent permitted by applicable law), neither
Employee nor any person or entity controlled (directly or indirectly) by
Employee whether as employer, employee, proprietor, partner, stockholder (other
than the holder of less than 5% of the stock of a corporation the securities of
which are traded on a national securities exchange or in the over-the-counter
market), director, officer, consultant, agent or otherwise, shall solicit (a) in
respect of the Business, any person or other entity that is, or was within the
previous 12 month period immediately prior to the date of expiration or earlier
termination of Employee's employment hereunder, a customer or supplier of
Employer, or (b) any person who, on such date, is an employee of Employer, for
employment, or as an independent contractor with any person or entity, unless
first authorized in writing by Employer, which authorization may be withheld in
Employer's sole and absolute discretion. If Employee violates Employee's
obligations contained in this Section 6, then the time periods hereunder shall
be extended by a period of time equal to that period beginning when the
activities constituting such violation commenced and ending when the activities
constituting such violation terminated.
7. Trade Secrets and Other Confidential Information. From and
after the date hereof, Employee shall not communicate or divulge to, or use for
the benefit of, any person, firm or corporation other than Employer and/or
Employer's subsidiaries, and its or their agents and representatives, any of the
trade secrets, methods, formulas, business and/or marketing plans, processes or
any other proprietary or confidential information with respect to Employer
and/or Employer's subsidiaries, its or their business, financial condition,
business operations or methods, or business prospects. The preceding sentence
shall not apply to information which (a) is, was or becomes generally known or
available to the public or the industry other than as a result of a disclosure
by Employee in violation of this Agreement, or (b) is required to be disclosed
by law. Employee shall advise Employer, in writing, of any request, including a
subpoena or similar legal inquiry, to disclose any such confidential
information, such that Employer and/or Employer's subsidiaries can seek
appropriate legal relief.
8. Return of Employer Property. Immediately upon the
expiration or earlier termination of this Agreement and if Employee is no longer
employed by Employer, Employee shall return to Employer any and all property of
Employer, including, but not limited to, all documents, agreements, schedules,
statements, customer lists, supplier lists, plans, designs, parts and equipment,
that is in the possession or control (direct or indirect) of Employee.
9. Survival/Remedies/Severability. Employee specifically
acknowledges that (a) Employer currently has operating facilities located in the
Restricted Territory; (b) Employer receives much of its business from and
throughout the Restricted Territory; (c) Employer has plans to expand its
operations throughout the Restricted Territory; and (d) the geographic
restrictions contained in Section 5 hereof, and the length of time restrictions
in Sections 5, 6 and 7 hereof are each necessary and reasonable and were
negotiated with Employer. The restrictions and obligations set forth in Sections
5, 6, 7 and 8 hereof shall survive the expiration or earlier termination of this
Agreement. The parties hereby acknowledge and agree that the restrictions and
obligations set forth in Sections 5, 6, 7 and 8 hereof are reasonable and
necessary, and that any violation thereof would result in substantial and
irreparable injury to Employer, and that Employer may not have an adequate
remedy at law with respect to any such violation. Accordingly, Employee agrees
that, in
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the event of any actual or threatened violation thereof, Employer shall have the
right and privilege to obtain, in addition to any other remedies that may be
available, equitable relief, including temporary and permanent injunctive
relief, to cease or prevent any actual or threatened violation of any provision
hereof. Each and every provision set forth in Sections 5, 6, 7 and 8 hereof is
independent and severable from the others, and no restriction will be rendered
unenforceable by virtue of the fact that, for any reason, any other or others of
them may be unenforceable in whole or in part. If any provision in Sections 5,
6, 7 or 8 hereof is unenforceable for any reason whatsoever, that provision will
be appropriately limited and reformed to the maximum extent provided by
applicable law. If the scope of any restriction contained herein is too broad to
permit enforcement to its full extent, then such restriction shall be enforced
to the maximum extent permitted by law so as to be judged reasonable and
enforceable, and the parties agree that such scope may be modified by an
arbitrator or judge in any proceeding to enforce this Agreement. This includes,
without limitation, altering or enforcing only portions of the limits on
activity restrictions, the geographic scope, and the duration of the
restrictions unless to do so would be contrary to law or public policy.
10. Inventions.
(a) Assignment. Employee agrees that any and all
inventions, including any improvements, innovations and discoveries
(collectively "Inventions") that Employee conceives, develops or reduces to
practice, and all copyrightable materials and trademarks (collectively "Works")
that Employee prepares alone or with others during Employee's term of employment
under this Agreement: (i) that relate to Employer's and/or Employer's
subsidiaries actual or foreseeable business; (ii) that Employee works on during
Employee's working hours for Employer and/or Employer's subsidiaries; or (iii)
for which Employee uses Employer facilities or materials, will be and remain the
sole and exclusive property of Employer. Employee hereby irrevocably assigns
Employee's entire right, title and interest in and to each of Employee's
Inventions and Works to Employer and/or Employer's subsidiaries, free of any
compensation beyond Employee's compensation as an employee of Employer. Employee
agrees to assist in the preparation of applications for patent or other legal
protection of Inventions and Works in all countries of the world, and will
reasonably cooperate with Employer in defending the validity or enforceability
of such protection. Employee further agrees to execute all documents Employer
may from time to time request to perfect the assignment of the Inventions or
Works throughout the world.
(b) Assignment after Expiration or Termination.
Employee agrees that any Inventions or Works that Employee asserts are
conceived, developed or reduced to practice by Employee, alone or with others,
within six months immediately following the expiration or earlier termination of
Employee's employment hereunder that relate to the actual or foreseeable
business of Employer and/or Employer's subsidiaries, will be presumed to have
been made during the term of Employee's employment and will be the sole property
of Employer, unless Employee presents sufficient evidence to Employer to
satisfactorily rebut the presumption.
11. Miscellaneous.
(a) Notices. All notices required or permitted to be
given hereunder shall be in writing and shall be deemed given when delivered in
person, or three business days after being
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placed in the hands of a courier service (e.g., DHL or Federal Express) prepaid
or faxed provided that a confirming copy is delivered forthwith as herein
provided, addressed as follows:
If to Employer:
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Silicon Valley Test & Repair, Inc.
328 Martin Avenue
Santa Clara, California 95050
Attention: President
FAX: (408) 748-0926
with a copy to:
C. Zane Close
Cerprobe Corporation
600 South Rockford Drive
Tempe, Arizona 85281
FAX: (602) 967-4636
If to Employee:
William E. Mayer
6519 Old Meadow Court
San Jose, California 95135
FAX: (408) 270-6957
with copies to:
Richard G. Burt, Esq.
Ten Almaden Boulevard, 11th Floor
San Jose, California 95113
FAX: (408) 286-7342
Martin Snitow, Esq.
5300 Stevens Creek Boulevard
Suite 300
San Jose, California 95129
FAX: (408) 985-7595
and/or to such other respective addresses and/or addressees as may be designated
by notice given in accordance with the provisions of this Section.
(b) Entire Agreement. This Agreement constitutes the
entire agreement between the parties and shall be binding upon and inure to the
benefit of the parties hereto and their respective legal representatives,
successors and permitted assigns. Except as set forth herein, the provisions of
this Agreement supersede any and all other agreements or understandings, whether
oral or written, between Employer and Employee, with respect to Employee's
employment by
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Employer. Any amendments, or alternative or supplementary provisions to this
Agreement must be made in writing and duly executed by an authorized
representative or agent of each of the parties hereto.
(c) Non-Waiver. The failure in any one or more
instances of a party to insist upon performance of any of the terms, covenants
or conditions of this Agreement, to exercise any right or privilege in this
Agreement conferred, or the waiver by said party of any breach of any of the
terms, covenants or conditions of this Agreement, shall not be construed as a
subsequent waiver of any such terms, covenants, conditions, rights or
privileges, but the same shall continue and remain in full force and effect as
if no such forbearance or waiver had occurred. No waiver shall be effective
unless it is in writing and signed by an authorized representative of the
waiving party. A breach of any representation, warranty or covenant shall not be
affected by the fact that a more general or more specific representation,
warranty or covenant was not also breached.
(d) Attorneys' Fees. If any action is brought to
enforce this Agreement or to collect damages as a result of a breach of any its
provisions, the prevailing party shall also be entitled to collect its
reasonable attorneys' fees and costs incurred in such action, which costs can
include the reasonable costs of investigation, expert witnesses and the costs in
enforcing or collecting any judgment rendered, all as determined and awarded by
the Court.
(e) Counterparts. This Agreement may be executed in
multiple count- erparts, each of which shall be deemed to be an original, and
all such counterparts shall constitute but one instrument.
(f) APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED
AND CONTROLLED AS TO VALIDITY, ENFORCEMENT, INTERPRETATION, CONSTRUCTION, EFFECT
AND IN ALL OTHER RESPECTS BY THE INTERNAL LAWS OF THE STATE OF CALIFORNIA
APPLICABLE TO CONTRACTS MADE IN THAT STATE.
(g) Construction. The parties hereto acknowledge and
agree that each party has participated in the drafting of this Agreement and
that this document has been reviewed by the respective legal counsel for the
parties hereto and that the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be applied
to the interpretation of this Agreement. No inference in favor of, or against,
any party shall be drawn from the fact that one party has drafted any portion
hereof.
EMPLOYEE ACKNOWLEDGES THAT HE HAS READ AND THAT HE UNDERSTANDS
THIS AGREEMENT, THAT HE WAS GIVEN A REASONABLE OPPORTUNITY TO REVIEW THIS
AGREEMENT AND DISCUSS IT WITH THE ADVISORS OF HIS CHOICE, AND THAT HE
UNDERSTANDS THIS AGREEMENT IS A CONDITION OF HIS NEW OR CONTINUED EMPLOYMENT BY
EMPLOYER.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
EMPLOYER: EMPLOYEE:
EMI Acquisition, Inc.
By:
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Name: William E. Mayer
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Its:
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