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Search Employment Agreement by:
Exhibit 10.21
EMPLOYMENT AGREEMENT
This Employment Agreement (the “Agreement”) is made and entered into effective as of October 21, 2004 by and between Bill N. Alexander, Jr., (the “Employee”) and Cymer, Inc., a Nevada corporation (the “Company”).
RECITALS
A.
The Company may from time to time need to
address the possibility of an acquisition transaction or change of control
event. The Board of Directors of the Company (the “Board”)
recognizes that such events can be a distraction to the Employee and can cause
the Employee to consider alternative employment opportunities. The Board
has determined that it is in the best interests of the Company and its
stockholders to assure that the Company will have the continued dedication and
objectivity of the Employee, notwithstanding the possibility, threat or
occurrence of a Change of Control (as defined below) of the Company, although
no such Change of Control is now contemplated.
B.
The Board believes that it is in the best
interests of the Company and its stockholders to provide the Employee with an
incentive to continue his employment and to motivate the Employee to maximize
the value of the Company upon a Change of Control for the benefit of its
stockholders.
C.
The Board believes that it is imperative
to provide the Employee with certain benefits upon a Change of Control and,
under certain circumstances, upon termination of the Employee’s
employment in connection with a Change of Control, which benefits are intended
to provide the Employee with financial security and provide sufficient
incentive and encouragement to the Employee to remain with the Company
notwithstanding the possibility of a Change of Control.
D.
To accomplish the foregoing objectives,
the Board has directed the Company, upon execution of this Agreement by the
Employee, to agree to the terms provided herein.
E.
Certain capitalized terms used in this
Agreement are defined in Section 7 below.
AGREEMENT
In consideration of the mutual covenants herein contained, and in consideration of the continuing employment of the Employee by the Company, the parties agree as follows:
1.
Duties and Scope of Employment. The Company shall employ the Employee in the
position of Senior Executive Vice President as such position has been defined
in terms of
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responsibilities and compensation as of the effective date of this Agreement; provided, however, that the Board shall have the right, at any time prior to the occurrence of a Change of Control, to revise such responsibilities and compensation as the Board in its discretion may deem necessary or appropriate. The Employee shall comply with and be bound by the Company’s operating policies, procedures and practices from time to time in effect during his employment. During the term of the Employee’s employment with the Company, the Employee shall continue to devote his full time, skill and attention to his duties and responsibilities, and shall perform them faithfully, diligently and competently, and the Employee shall use his best efforts to further the business of the Company and its affiliated entities.
2.
Base Compensation. The Company shall pay the Employee as
compensation for his services a base salary at the annualized rate of
$240,000.00 (“Base Compensation”). Such salary shall be paid
periodically in accordance with normal Company payroll practices. The
Board or the Compensation Committee of the Board shall review the base salary of
the Employee according to normal Company practice, but no less frequently than
annually, and may in its discretion increase but not decrease the base salary
below the amount specified in this agreement.
3.
Annual Incentive. Beginning with the Company’s current fiscal
year and for each fiscal year thereafter during the term of this Agreement, the
Employee shall be eligible to receive an annual bonus under the Company’s
annual incentive plan (the “Annual Incentive”) based upon
performance targets approved by the Compensation Committee of the Board (the
“Target Incentive”) in its sole discretion. The Annual
Incentive payable hereunder shall be payable in accordance with the
Company’s normal practices and policies.
4.
Employee Benefits. The Employee shall be eligible to participate
in the employee benefit plans and executive compensation programs
maintained by the Company applicable to other key executives of the Company,
including (without limitation) retirement plans, savings or profit-sharing
plans, stock option, incentive or other bonus plans, life, disability, health,
accident and other insurance programs, paid vacations, and similar plans or
programs, subject in each case to the generally applicable terms and conditions
of the applicable plan or program in question and to the sole determination of
the Board or any committee administering such plan or program.
5.
Employment Relationship. The Company and the Employee acknowledge that
the Employee’s employment is and shall continue to be at-will, as defined
under applicable law. If the Employee’s employment terminates for
any reason, the Employee shall not be entitled to any payments, benefits,
damages, awards or compensation other than as provided by this Agreement, or as
may otherwise be available in accordance with any Company plan or policy
approved by the Board.
6.
Termination Benefits.
(a)
Subject to Sections 8 and 9 below, in
the event the Employee’s employment terminates as a result of an
Involuntary Termination other than for Cause upon or within eighteen (18)
months after a Change of Control, then the Employee shall be entitled to
receive severance and other benefits as follows:
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(i)
Pay Continuation. The Employee shall be entitled to monthly payments
equal to the Employee’s monthly Base Compensation as in effect
immediately prior to the Change of Control plus one-twelfth (1/12) of the
average of the annual bonus amount paid to the Employee with respect to the
three previous calendar years. Such monthly amounts shall be paid
according to the normal payroll practice of the Company for 12 months following
the date of termination (the “Termination Period”).
(ii)
Annual Incentive. The Employee shall be entitled to receive a percentage
of the Employee’s Target Incentive for the calendar year in which such
termination occurs. Such percentage shall equal a fraction, the numerator of
which shall be the number of days in such calendar year up to and including the
date of such termination and the denominator of which shall be the number of
days in such calendar year. Such amount shall be payable according to the
normal practice of the Company with respect to the payment of bonuses.
(iii) Options. The
unvested portion of any stock option(s) held by the Employee under the
Company’s stock option plans shall vest and become exercisable in full
upon the date of such termination. Employee shall have one year from the date
of such termination to exercise any vested options.
(iv) Medical Benefits. The Company shall reimburse the Employee for the cost of the
Employee’s group health, vision and dental plan coverage in effect until
the end of the Termination Period. The Employee may use this payment, as
well as any other payment made under this Section 6, for such continuation
coverage or for any other purpose. To the extent the Employee pays the
cost of such coverage, and the cost of such coverage is not deductible as a
medical expense by the Employee, the Company shall “gross-up” the
amount of such reimbursement for all taxes payable by the Employee on the
amount of such reimbursement and the amount of such gross-up.
(b)
In the event the Employee voluntarily
resigns his employment with the Company within the 30-day period beginning one
year after a Change of Control, the Employee shall receive the severance and
other benefits set forth in Sections 6(a)(i)-(iv) above.
7.
Definition of Terms. The following terms referred to in this
Agreement shall have the following meanings:
(a)
Cause. “Cause” shall mean any of the
following: (i) any act of personal dishonesty taken by the Employee in
connection with his responsibilities as an employee and intended to result in
substantial personal enrichment of the Employee, (ii) conviction of a felony
that is injurious to the Company, (iii) a willful act by the Employee which
constitutes gross misconduct and which is injurious to the Company, or (iv)
continued violations by the Employee of the Employee’s obligations under
Section 1 of this Agreement after there has been delivered to the Employee a
written demand for performance from the Company which describes the basis for
the Company’s belief that the Employee has not substantially performed
his duties.
