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Exhibit
10.1
Executive Employment
Agreement
This Executive Employment
Agreement (the “Agreement”), dated June 11, 2008
is between C REDENCE S YSTEMS C
ORPORATION (the “Company”) and R
ANCE H ALE
(“Executive”).
| I. |
POSITION AND RESPONSIBILITIES |
A. Position.
Executive is employed by the Company to render services to the
Company in the position of Senior Vice President, Manufacturing
Operations. Executive shall perform such duties and
responsibilities as are normally related to such position in
accordance with the standards of the industry and any additional
duties now or hereafter assigned to Executive by the Company.
Executive shall abide by the rules, regulations, and practices as
adopted or modified from time to time in the Company’s sole
discretion.
B. Other
Activities. Except upon the prior written consent of the
Company, Executive will not, during the term of this Agreement,
(i) accept any other employment, or (ii) engage, directly
or indirectly, in any other business activity (whether or not
pursued for pecuniary advantage) that might interfere with
Executive’s duties and responsibilities hereunder or create a
conflict of interest with the Company.
C. No Conflict.
Executive represents and warrants that his execution of this
Agreement, his employment with the Company, and the performance of
his proposed duties under this Agreement shall not violate any
obligations he may have to any other employer, person or entity,
including any obligations with respect to proprietary or
confidential information of any other person or entity.
| II. |
COMPENSATION AND BENEFITS |
A. Base Salary. In
consideration of the services to be rendered under this Agreement,
the Company shall pay Executive an annual base salary of Two
Hundred Seventy-seven Thousand Dollars ($277,014) (“Base
Salary”). The Base Salary shall be paid in accordance with
the Company’s regularly established payroll practice.
Executive’s Base Salary will be reviewed from time to time in
accordance with the established procedures of the Company for
adjusting salaries for similarly situated employees and may be
adjusted in the sole discretion of the Company.
B. Bonus.
Executive shall be eligible for an annual target incentive bonus
equal to Sixty Percent (60%) of his then-current Base Salary
(“Target Bonus”), based on Executive’s
achievement of performance objectives determined by the
Company.
C. Benefits.
Executive shall be eligible to participate in the benefits made
generally available by the Company to similarly-situated
executives, in accordance with the benefit plans established by the
Company, and as may be amended from time to time in the
Company’s sole discretion.
D. Expenses.
The Company shall reimburse Executive for reasonable business
expenses incurred in the performance of Executive’s duties
hereunder in accordance with the Company’s expense
reimbursement guidelines.
| III. |
AT-WILL EMPLOYMENT; TERMINATION BY COMPANY |
A. At-Will
Termination by Company. Executive’s employment with the
Company shall be “at-will” at all times. The Company
may terminate Executive’s employment with the Company at any
time, without any advance notice, for any reason or no reason at
all, notwithstanding anything to the contrary contained in or
arising from any statements, policies or practices of the Company
relating to the employment, discipline or termination of its
employees. Upon and after such termination, all obligations of the
Company under this Agreement shall cease, except as otherwise
provided herein
B. Terminations of
Employment. For all purposes under this Agreement,
“termination” shall mean a “separation from
service” as that term is defined in Code
Section 409A(a)(2)(A)(i) of the Internal Revenue Code of 1986,
as amended (the “Code”) and Treas. Regs.
Section 1.409A-1(h), and as amplified by any other official
guidance, and other forms of the word “termination” as
used herein, such as “terminate” and
“terminated”, shall be construed accordingly. The
payment of any amounts to Executive following his termination of
employment shall be delayed to the extent necessary to comply with
Section 409A(a)(2)(B)(i) of the Code (relating to payments
made to certain “specified employees” of certain
publicly-traded companies) and in such event, any such amount to
which Executive would otherwise be entitled during the six
(6) month period immediately following his termination of
employment will be paid on the first business day following the
expiration of such six (6) month period.
C. Separation
Benefits. Except in situations where the employment of
Executive is terminated For Cause, By Death or By Disability (as
defined in Section IV below), in the event that the Company
terminates Executive’s employment at any time, Executive will
be eligible to receive the following benefits (collectively,
“Separation Benefits”):
1. an amount equal to
(i) One Hundred Percent (100%) of Executive’s
then-current Base Salary, plus (ii) One Hundred Percent
(100%) of Executive’s annual Target Bonus, with payments
to commence within ninety (90) days following
Executive’s termination of employment and to be payable in
substantially equal monthly installments over the twelve
(12) month period following the date of such termination
(“Salary Continuation Period”);
2. continued vesting
of Executive’s stock options until the earlier of
(a) the end of the Salary Continuation Period or (b) the
date Executive begins other employment, and a period of twelve
(12) months thereafter to exercise such vested options;
provided, however, that the continued vesting and exercisability of
Executive’s options shall not extend beyond the earlier of
the original maximum term of the option or 10 years from the date
of grant of such stock option; and
3. if Executive elects
to continue his medical coverage under the Consolidated Omnibus
Reconciliation Act (“COBRA”), the Company shall pay the
premiums for
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Executive’s COBRA
coverage until the earlier of (a) the end of the Salary
Continuation Period or (b) the date Executive becomes covered
under another employer’s health plan.
Notwithstanding the foregoing, if
Executive begins other employment during the Salary Continuation
Period, all vesting of Executive’s stock options shall cease.
Executive shall not be eligible to participate in the
Company’s deferred compensation, cash or deferred arrangement
under Code Section 401(k), or employee stock purchase plans
during the Salary Continuation Period.
Executive’s eligibility for the
foregoing Separation Benefits is conditioned on (a) Executive
remaining available during the Salary Continuation Period to
consult with the Company regarding matters for which he previously
had responsibility as a Company executive; (b) Executive
having first signed a release agreement in the form attached as
Exhibit A and within the time limits prescribed under such
release agreement, and (c) Executive’s agreement not to
compete with the Company, or its successors or assigns, during the
Salary Continuation Period. If Executive engages in any business
activity competitive with the Company or its successors or assigns
during the Salary Continuation Period, all Separation Benefits
immediately shall cease.
| IV. |
OTHER TERMINATIONS BY COMPANY |
A. Termination for
Cause. For purposes of this Agreement, “For Cause”
shall mean: (i) Executive commits a crime involving
dishonesty, breach of trust, or physical harm to any person;
(ii) Executive willfully engages in conduct that is in bad
faith and materially injurious to the Company, including but not
limited to, misappropriation of trade secrets, fraud or
embezzlement; (iii) Executive commits a material breach of
this Agreement, which breach is not cured within twenty days after
written notice to Executive from the Company; (iv) Executive
willfully refuses to implement or follow a lawful policy or
directive of the Company, which breach is not cured within twenty
days after written notice to Executive from the Company; or
(v) Executive engages in misfeasance or malfeasance
demonstrated by a pattern of failure to perform job duties
diligently and professionally. The Company may terminate
Executive’s employment For Cause at any time, without any
advance notice. The Company shall pay to Executive all compensation
to which Executive is entitled up through the date of termination,
subject to any other rights or remedies of the Company under law;
and thereafter all obligations of the Company under this Agreement
shall cease.
B. By Death.
Executive’s employment shall terminate automatically upon
Executive’s death. The Company shall pay to Executive’s
beneficiaries or estate, as appropriate, any compensation then due
and owing. Thereafter all obligations of the Company under this
Agreement shall cease. Nothing in this Section shall affect any
entitlement of Executive’s heirs or devisees to the benefits
of any life insurance plan or other applicable benefits.
C. By
Disability. If Executive becomes eligible for the
Company’s long term disability benefits or if, in the sole
opinion of the Company, Executive is unable to carry out the
responsibilities and functions of the position held by Executive by
reason of any physical or mental impairment for more than ninety
consecutive days or more than one hundred and twenty
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days in any twelve-month period, then,
to the extent permitted by law, the Company may terminate
Executive’s employment. The Company shall pay to Executive
all compensation to which Executive is entitled up through the date
of termination, and thereafter all obligations of the Company under
this Agreement shall cease.
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