EXHIBIT 10.3
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT, dated as of February 29, 2000, is by and
between Christine B. Whitman (the "Employee") and Veeco Instruments Inc., a
Delaware corporation (the "Company").
The Company and the Employee hereby agree as follows:
1. Employment. The Company hereby employs the Employee, and the Employee
hereby accepts employment by the Company, upon the terms and conditions
hereinafter set forth.
2. Term. Subject to the provisions for earlier termination as herein
provided, the employment of the Employee hereunder will be for the period
commencing at the Effective Time of the Agreement and Plan of Merger (the
"Merger Agreement") among CVC, Inc., a Delaware corporation, Veeco Acquisition
Corporation, and the Company, dated February 29, 2000 (the "Effective Date") and
ending on the third anniversary of such date. Effective on the first anniversary
of the date hereof and on each successive anniversary date thereafter, the term
shall automatically be extended by an additional one year unless, no later than
90 days prior to any such anniversary date, either the Company or the Employee
gives written notice to the other that the term will not be extended, in which
case the Employee's employment hereunder shall terminate upon the expiration of
the then-current term. The period of the Employee's employment under this
Agreement, as it may be terminated or extended from time to time as provided
herein, is referred to hereafter as the "Employment Period."
3. Duties and Responsibilities. The Employee will be employed by the
Company in the positions set forth on Annex A, a copy of which is attached
hereto and the terms of which are incorporated herein by reference. The Employee
will faithfully perform the duties and responsibilities of each such office, as
they may be assigned from time to time by the Chief Executive Officer of the
Company as specified on Annex A. In addition, during the Employment Period, the
Company will make best efforts to ensure the Employee is a member of the Board.
4. Time to Be Devoted to Employment. Except for vacation in accordance
with the Company's policy in effect from time to time and absences due to
temporary illness, the Employee shall devote full time, attention and energy
during the Employment Period to the business of the Company. During the
Employment Period, the Employee will not be engaged in any other business
activity which, in the reasonable judgment of the Board or its designee,
conflicts with the duties of the Employee hereunder, whether or not such
activity is pursued for gain, profit or other pecuniary advantage.
5. Compensation; Reimbursement.
(a) Base Salary. The Company will pay to the Employee an annual base
salary of not less than the amount specified as the Initial Base Salary on
Annex A, payable in accordance with the Company's normal payroll policy. The
Employee's base salary shall be reviewed annually by the Compensation Committee
of the Board (the "Committee") and shall be subject to increase at the option
and sole discretion of the Committee.
(b) Bonus. The Employee shall be eligible to receive, at the sole
discretion of the Committee, an annual cash bonus, with a maximum target as
specified on Annex A, based on the Company's annual business plan as approved by
the Board.
(c) Benefits; Stock Options. In addition to the salary and cash
bonus referred to above, the Employee shall be entitled during the Employment
Period to participate in such employee benefit plans or programs of the Company,
and shall be entitled to such other fringe benefits, as are from time to time
made available by the Company generally to employees of the Employee's position,
tenure, salary, and other qualifications. Without limiting the generality of the
foregoing, the Employee shall be eligible for such awards, if any, under the
Company's stock option plan as shall be granted to the Employee by the Committee
or other appropriate designee of the Board
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acting in its sole discretion. During the Employment Period, the Company will
lease an automobile for the Employee comparable to the automobile leased by CVC,
Inc. for the Employee at the time of the execution of the Merger Agreement.
Except to the extent provided herein, the Employee acknowledges and agrees that
the Company does not guarantee the adoption or continuance of any particular
employee benefit plan or program or other fringe benefit during the Employment
Period, and participation by the Employee in any such plan or program shall be
subject to the rules and regulations applicable thereto.
(d) Expenses. The Company will reimburse the Employee, in accordance
with the practices in effect from time to time for other officers or staff
personnel of the Company, for all reasonable and necessary traveling expenses
and other disbursements incurred by the Employee for or on behalf of the Company
in the performance of the Employee's duties hereunder, upon presentation by the
Employee to the Company of appropriate vouchers or documentation. Such expenses
shall include, without limitation, reasonable expenses to maintain an apartment
in any city in which the Employee is required to spend more than 30 days in any
calendar year.
6. Death; Disability. If the Employee dies or is incapacitated or disabled
by accident, sickness or otherwise, so as to render the Employee mentally or
physically incapable of performing the services required to be performed by the
Employee under this Agreement for a period that would entitle the Employee to
qualify for long-term disability benefits under the Company's then-current
long-term disability insurance program or, in the absence of such a program, for
a period of 90 consecutive days or longer (such condition being herein referred
to as a "Disability"), then (i) in the case of the Employee's death, the
Employee's employment shall be deemed to terminate on the date of the Employee's
death or (ii) in the case of a Disability, the Company, at its option, may
terminate the employment of the Employee under this Agreement immediately upon
giving the Employee notice to that effect. Disability shall be determined by the
Board or the Board's designee. In the case of a Disability, until the Company
shall have terminated the Employee's employment hereunder in accordance with the
foregoing, the Employee shall be entitled to receive compensation provided for
herein notwithstanding any such physical or mental disability.
7. Termination for Cause. The Company may, with the approval of a majority
of the Board, terminate the employment of the Employee hereunder at any time
during the Employment Period for "cause" (such termination being hereinafter
called a "Termination for Cause") by giving the Employee notice of such
termination, upon the giving of which such termination will take effect
immediately. For purposes of this Agreement, "cause" means (i) the Employee's
willful and substantial misconduct, (ii) the Employee's repeated, after written
notice from the Company, neglect of duties or failure to act which can
reasonably be expected to affect materially and adversely the business or
affairs of the Company or any subsidiary or affiliate thereof, (iii) the
Employee's material breach of any of the agreements contained in Section 13,
14, 15 or 16 hereof, (iv) the commission by the Employee of any material
fraudulent act with respect to the business and affairs of the Company or any
subsidiary or affiliate thereof or (v) the Employee's conviction of (or plea of
nolo contendere to) a crime constituting a felony.
8. Termination Without Cause. The Company may terminate the employment of
the Employee hereunder at any time without "cause" (such termination being
hereinafter called a "Termination Without Cause") by giving the Employee notice
of such termination, upon the giving of which such termination will take effect
on the date specified on such notice which shall not be later than 30 days from
the date such notice is given.
9. Good Reason. For purposes of this Agreement, termination for "Good
Reason" shall mean termination by the Employee of her employment with the
Company hereunder based on:
(i) any diminution in the Employee's position, title,
responsibilities, authority or reporting responsibilities;
(ii) the Employee is not at any time during the Employment
Period a member of the Board;
(iii) any person other than the Employee succeeds Edward H.
Braun as Chief Executive Officer of the Company; or
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(iv) the breach by the Company of any of its material
obligations under this Agreement.
10. Voluntary Termination. Any termination of the employment of the
Employee hereunder, otherwise than as a result of death or Disability, a
Termination for Cause, a Termination Without Cause or a termination for Good
Reason will be deemed to be a "Voluntary Termination." A Voluntary Termination
will be deemed to be effective immediately upon such termination or, at the
Company's option, up to 30 days following a notice of voluntary termination
given by the Employee.
11. Effect of Termination of Employment.
(a) Termination for Cause, Voluntary Termination. Upon a Termination
for Cause or a Voluntary Termination, neither the Employee nor the Employee's
beneficiaries or estate will have any further rights or claims against the
Company under this Agreement except the right to receive (i) the unpaid portion
of the base salary provided for in Section 5(a) hereof, computed on a pro rata
basis to the date of termination, (ii) payment of her previously accrued but
unpaid rights that are then payable in accordance with the terms of any
incentive compensation, stock option, retirement, employee welfare or other
employee benefit plans or programs of the Company in which the Executive is then
participating in accordance with Sections 5(b) and 5(c) hereof and (iii)
reimbursement for any expenses for which the Employee shall not have theretofore
been reimbursed as provided in Section 5(d) hereof.
(b) Termination Without Cause; Termination for Good Reason. Upon a
Termination Without Cause or a termination for Good Reason, (i) the Employee
shall be entitled to receive the same payments and other rights as provided for
in Section 11(a) hereof, (ii) the Employee shall be entitled to receive a
severance payment in the form of a cash lump sum, paid within 15 days of the
date of termination, with the amount of such payment to be the aggregate amount
of the Employee's base salary as in effect immediately prior to such termination
payable over the period of months specified in Annex A, (iii) any options held
by the Employee as of such effective date to purchase shares of the Company's
stock that were not vested and exercisable as of such date of termination shall
become immediately and fully vested and exercisable as of such date of
termination and (iv) the Employee shall retain the right to exercise any options
to purchase shares of the Company's stock until the earlier of (a) 12 months
following the date of such termination or (b) the expiration of the original
full term of each such option.
(c) Death; Disability. In the event the Employee's employment is
terminated hereunder on account of death or Disability, (i) the Employee shall
be entitled to receive the same payments and other rights as provided for in
Section 11(a) hereof, (ii) the Employee shall be entitled to receive a severance
payment in the form a cash lump sum, paid within 15 days of the date of
termination, with the amount of such payment to be the aggregate amount of the
Employee's base salary as in effect immediately prior to such termination
payable over 12 months.
12. Change in Control Provisions.
(a) Effect of Change in Control. In the event of a Change in Control
during the Employment Period, all options held by the Employee to purchase
shares of the Company's stock that are not then vested and exercisable in
accordance with the terms of such options or the terms of any Company stock
option plan shall become immediately and fully vested and exercisable as of the
effective date of the Change in Control; provided, however, that no such vesting
shall occur if provision has been made in writing in connection with such
transaction for (a) the continuation of such plan and/or the assumption of such
options by a successor corporation (or a parent or subsidiary thereof) or (b)
the substitution for such options of new options covering the stock of a
successor corporation (or a parent or subsidiary thereof), with appropriate
adjustments as to the number and kinds of shares and exercise prices. In the
event of any such continuation, assumption or substitution, such plan and/or
such options shall continue in the manner and under the terms so provided.
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(b) Definition of Change in Control. For purposes of this Agreement,
a "Change in Control" shall be deemed to have occurred upon:
(i) an acquisition subsequent to the date hereof by any
person, entity or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")) (a "Person"), of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of 30% or more of either (A) the
then outstanding shares of common stock of the Company ("Common Stock") or
(B) the combined voting power of the then outstanding voting securities of
the Company entitled to vote generally in the election of directors (the
"Outstanding Company Voting Securities"); excluding, however, the
following: (1) any acquisition directly from the Company, other than an
acquisition by virtue of the exercise of a conversion privilege unless the
security being so converted was itself acquired directly from the Company,
(2) any acquisition by the Company and (3) any acquisition by an employee
benefit plan (or related trust) sponsored or maintained by the Company;
(ii) a change in the composition of the Board such that during
any period of two consecutive years, individuals who at the beginning of
such period constitute the Board, and any new director (other than a
director designated by a person who has entered into an agreement with the
Company to effect a transaction described in clause (i), (iii) or (iv) of
this paragraph) whose election by the Board or nomination for election by
the Company's stockholders was approved by a vote of at least two-thirds
of the directors then still in office who either were directors at the
beginning of the period or whose election or nomination for election was
previously so approved, cease for any reason to constitute at least a
majority of the members thereof;
(iii) the approval by the stockholders of the Company of a
merger, consolidation, reorganization or similar corporate transaction,
whether or not the Company is the surviving corporation in such
transaction, in which outstanding shares of Common Stock are converted
into (A) shares of stock of another company, other than a conversion into
shares of voting common stock of the successor corporation (or a holding
company thereof) representing 80% of the voting power of all capital stock
thereof outstanding immediately after the merger or consolidation or (B)
other securities (of either the Company or another company) or cash or
other property;
(iv) the approval by the stockholders of the Company of (A)
the sale or other disposition of all or substantially all of the assets of
the Company or (B) a complete liquidation or dissolution of the Company;
or
(v) the adoption by the Board of a resolution to the effect
that any person has acquired effective control of the business and affairs
of the Company.
13. Nondisclosure of Information. The Employee will not, at any time
during or after the Employment Period, disclose to any person, firm, corporation
or other business entity, except as required by law, any non-public information
concerning the business, products, clients or affairs of the Company or any
subsidiary or affiliate thereof for any reason or purpose whatsoever, nor will
the Employee make use of any of such non-public information for personal
purposes or for the benefit of any person, firm, corporation or other business
entity except the Company or any subsidiary or affiliate thereof.
14. Company Right to Inventions. The Employee will promptly disclose,
grant and assign to the Company, for its sole use and benefit, any and all
inventions, improvements, technical information and suggestions relating in any
way to the business of the Company which the Employee may develop or acquire
during the Employment Period (whether or not during usual working hours),
together with all patent applications, letters patent, copyrights and reissues
thereof that may at any time be granted for or upon any such invention,
improvement or technical information. In connection therewith:
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(i) the Employee shall, without charge, but at the expense of
the Company, promptly at all times hereafter execute and deliver such
applications, assignments, descriptions and other instruments as may be
necessary or proper in the opinion of the Company to vest title to any
such inventions, improvements, technical information, patent applications,
patents, copyrights or reissues thereof in the Company and to enable it to
obtain and maintain the entire right and title thereto throughout the
world; and
(ii) the Employee shall render to the Company, at its expense
(including a reasonable payment for the time involved in case the Employee
is not then in its employ), all such assistance as it may require in the
prosecution of applications for said patents, copyrights or reissues
thereof, in the prosecution or defense of interferences which may be
declared involving any said applications, patents or copyrights and in any
litigation in which the Company may be involved relating to any such
patents, inventions, improvements or technical information.
15. Non-Competition.
(a) The Employee hereby agrees that for the duration of the
Employee's employment with the Company, the Employee will not, without the
consent of the Company, directly or indirectly, engage or invest in, own,
manage, operate, finance, control or participate in the ownership, management,
operation, financing or control of, be employed by, associated with, or in any
manner connected with, lend the Employee's name to, lend the Employee's credit
to or render services or advice to, any business whose products or activities
compete in whole or in part with the former, current or currently contemplated
products or activities of the Company or any of its subsidiaries, in any country
in which the Company or any of its subsidiaries conducts business; provided,
however, that the Employee may purchase or otherwise acquire up to (but not more
than) one percent of any class of securities of any enterprise (but without
otherwise participating in the activities of such enterprise) if such securities
are listed on any national or regional securities exchange or have been
registered under Section 12(g) of the Securities Exchange Act of 1934, as
amended. The Employee agrees that this covenant is reasonable with respect to
its duration, geographical area, and scope.
(b) The Employee hereby agrees that for a period of two (2) years
following the termination of the Employee's employment with the Company, the
Employee will not, directly or indirectly, engage or invest in, own, manage,
operate, finance, control or participate in the ownership, management,
operation, financing, or control of, be employed by, associated with, or in any
manner connected with, lend the Employee's name to, lend the Employee's credit
to or render services or advice to, any business whose products or activities
compete in whole or in part with the former, current or currently contemplated
products or activities of the Company or any of its subsidiaries, in any state
of the United States or in any other country in which the Company or any of its
subsidiaries sells products or conducts business; provided, however, that the
Employee may purchase or otherwise acquire up to (but not more than) one percent
of any class of securities of any enterprise (but without otherwise
participating in the activities of such enterprise) if such securities are
listed on any national or regional securities exchange or have been registered
under Section 12(g) of the Securities Exchange Act of 1934, as amended. The
Employee agrees that this covenant is reasonable with respect to its duration,
geographical area, and scope.
(c) In the event of a breach by the Employee of any covenant set
forth in this Section 15, the term of such covenant will be extended by the
period of the duration of such breach.
(d) For a period of two (2) years following the termination of the
Employee's employment with the Company, the Employee will, within ten days after
accepting any employment, advise the Company of the identity of any employer of
the Employee. The Company may serve notice upon each such employer that the
Employee is bound by this Agreement and furnish each such employer with a copy
of this Agreement or relevant portions hereof.
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16. Non-Solicitation.
(a) Employee hereby agrees that, for the duration of Employee's
employment with the Company and for a period of two (2) years following the
termination of Employee's employment with the Company:
(i) Employee will not, directly or indirectly, either for
itself or any other person: (A) induce or attempt to induce any employee
of the Company or any of its subsidiaries to leave the employ of the
Company or such subsidiary, (B) in any way interfere with the relationship
between the Company and its subsidiaries and any employee of the Company
or any of its subsidiaries, (C) employ, or otherwise engage as an
employee, independent contractor or otherwise, any current or former
employee of the Company or any of its subsidiaries, other than such former
employees who have not worked for the Company or any of its subsidiaries
for more than one year or (D) induce or attempt to induce any customer,
supplier, licensee or business relation of the Company or any of its
subsidiaries to cease doing business with the Company or such subsidiary,
or in any way interfere with the relationship between the Company and its
subsidiaries and any customer, supplier, licensee or business relation of
the Company or any of its subsidiaries; and
(ii) Employee will not, directly or indirectly, either for
herself or any other person, solicit the business of any person known to
Employee to be a customer of the Company or any of its subsidiaries,
whether or not Employee had personal contact with such person, with
respect to products or activities which compete in whole or in part with
the former, current or currently contemplated products or activities of
the Company and its subsidiaries or the products or activities of the
Company and its subsidiaries in existence or contemplated at the time of
termination of Employee's employment.
(b) In the event of a breach by Employee of any covenant set forth
in this Section 16, the term of such covenant will be extended by the period of
the duration of such breach.
17. Enforcement. It is the desire and intent of the parties hereto that
the provisions of this Agreement be enforceable to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, to the extent that a restriction
contained in this Agreement is more restrictive than permitted by the laws of
any jurisdiction where this Agreement may be subject to review and
interpretation, the terms of such restriction, for the purpose only of the
operation of such restriction in such jurisdiction, will be the maximum
restriction allowed by the laws of such jurisdiction and such restriction will
be deemed to have been revised accordingly herein.
18. Remedies; Survival.
(a) A breach of the obligations imposed on Employee in Sections 13,
14, 15, and 16 hereof may not be one which is capable of being easily measured
by monetary damages. Consequently, Employee specifically agrees that Sections
13, 14, 15, and 16 may be enforced by injunctive relief. Further, Employee
specifically agrees that, in addition to such injunctive relief, and not in lieu
of it, the Company may also bring suit for damages incurred by the Company as a
result of a breach of Employee's obligations under Sections 13, 14, 15, and 16.
(b) Notwithstanding anything contained in this Agreement to the
contrary, the provisions of Sections 13, 14, 15, and 16 hereof will survive the
expiration or other termination of this Agreement until, by their terms, such
provisions are no longer operative.
19. Notices. Notices and other communications hereunder will be in writing
and will be delivered personally or sent by air courier or first class certified
or registered mail, return receipt requested and postage prepaid, addressed as
follows:
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if to the Employee: as specified in Annex A
and if to the Company: Veeco Instruments Inc.
Terminal Drive
Plainview, New York 11803
Attention: Chief Executive Officer
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement will be deemed to have been given on the
date of delivery, if personally delivered; on the business day after the date
when sent, if sent by air courier; and on the third business day after the date
when sent, if sent by mail, in each case addressed to such party as provided in
this Section 19 or in accordance with the latest unrevoked direction from such
party.
20. Binding Agreement; Benefit. The provisions of this Agreement will be
binding upon, and will inure to the benefit of, the respective heirs, legal
representatives and successors of the parties hereto.
21. Governing Law. This Agreement will be governed by, and construed and
enforced in accordance with, the laws of the State of New York, without
reference to conflict of law principles.
22. Waiver of Breach. The waiver by either party of a breach of any
provision of this Agreement by the other party must be in writing and will not
operate or be construed as a waiver of any subsequent breach by such other
party.
23. Entire Agreement; Amendments. This Agreement will be effective at the
Effective Time of the Merger Agreement (the "Effective Time") and, in case the
Effective Time does not occur, this Agreement will be of no force or effect.
This Agreement (including Annex A) contains the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior
agreements or understandings among the parties with respect thereof. This
Agreement will not affect the employment agreement between the Employee and CVC,
Inc., dated December 15, 1997 (the "Employment Agreement") prior to the
Effective Time, but will supercede the Employment Agreement following the
Effective Time. This Agreement may be amended only by an agreement in writing
signed by the parties hereto.
24. Headings. The section headings contained in this Agreement are for
reference purposes only and will not affect in any way the meaning or
interpretation of this Agreement.
25. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction will not invalidate or render unenforceable such provision in any
other jurisdiction.
26. Assignment. This Agreement is personal in its nature and the parties
hereto shall not, without the consent of the other, assign or transfer this
Agreement or any rights or obligations hereunder; provided, that the provisions
hereof (including, without limitation, Sections 13, 14, 15, and 16) will inure
to the benefit of, and be binding upon, each successor of the Company, whether
by merger, consolidation, transfer of all or substantially all of its assets or
otherwise.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
EMPLOYEE VEECO INSTRUMENTS INC.
/s/ Christine B. Whitman /s/ Edward H. Braun
- ------------------------- ----------------------------------
By: Edward H. Braun
Title: President, Chairman and CEO
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