1
EXHIBIT 10.34
SEPARATION AND CONSULTING AGREEMENT
CONSULTING AGREEMENT, dated as of October 1, 2000, between Silicon
Valley Group, Inc. a Delaware corporation (the "Company"), and Xxxxxxx X.
Xxxxxxxxx (the "Consultant").
WHEREAS, the Consultant is employed by the Company, as Chief Operating
Officer of the Company;
WHEREAS, the Consultant and the Company have entered into an Amended and
Restated Employment Agreement dated as of June 7, 1999 (the "Prior Agreement");
WHEREAS, the Company, ASM Lithography Holding N.V., a Netherlands public
company ("ASML"), XXXX Holding, Inc., a Delaware corporation and wholly-owned
subsidiary of ASML ("Holding") and XXXX (Merger), Inc., a Delaware corporation
and wholly-owned subsidiary of Holding ("Merger Sub"), have entered into an
Agreement and Plan of Merger, dated as of October 1, 2000 (the "Merger
Agreement"), pursuant to which, among other things, Merger Sub will be merged
with and into the Company as of the Effective Time (as defined in the Merger
Agreement), with the Company as the surviving corporation (the "Merger");
WHEREAS, the Company desires to induce the Consultant to act as a
consultant to the Company in order to assist it in effectuating an orderly and
efficient transition in respect of the Merger and the transactions contemplated
by the Merger Agreement and to prevent the Consultant from engaging in
activities which are competitive with the business of the Company, as defined in
this Agreement, and the Consultant desires to act as a consultant to the Company
and is, in consideration of the benefits to him of this Agreement, willing to
restrict his ability to compete with the business of the Company during the Term
of this Agreement as defined herein.
NOW THEREFORE, in order to effect the foregoing, the Company and the
Consultant wish to enter into a consulting agreement upon the terms and subject
to the conditions set forth below. Accordingly, in consideration of the promises
and the respective covenants and agreements of the parties herein contained, and
intending to be legally bound hereby, the parties hereto agree as follows:
1. Consulting Term and Services to be Provided. The Company
hereby agrees to engage the Consultant, and the Consultant hereby agrees to
perform services for the Company, on the terms and conditions set forth herein.
2
2. Term. The Term of this Agreement (the "Term") shall commence
as of the date on which the Effective Time occurs (the "Effective Date") and
terminate on the third anniversary thereof. This Agreement shall automatically
terminate and become null and void and of no force or effect if the Merger
Agreement is terminated prior to the consummation of the Merger.
3. Prior Agreement; Termination of Employment. The Consultant
agrees to continue to be employed by the Company in accordance with the terms
and conditions of the Prior Agreement until the Effective Date (the "Employment
Termination Date"). As of the Employment Termination Date, the Consultant shall
cease to be employed by the Company. The parties understand and agree that the
Consultant's termination pursuant to this Agreement is an involuntary
termination without cause and results from the change in the control of the
Company effected by the Merger. Payments made pursuant to this Agreement are
made in lieu of all cash obligations existing under the Prior Agreement as well
as in consideration of the covenants and conditions set forth herein. Consultant
shall remain entitled to exercise vested and unvested stock options pursuant to
the terms set forth in sections 6(a)(iii) and 6(b) of the Prior Agreement.
Consultant hereby agrees to irrevocably forego receipt of the cash payments set
forth in sections 6(a)(i) and 6(a)(ii) of the Prior Agreement.
Upon payment or provision to the Consultant of all amounts and benefits
in accordance with this provision, the Prior Agreement shall be deemed
terminated in accordance with Section 9 thereof.
4. Duties. Beginning on the Employment Termination Date and from
time to time until the expiration of the Term (the "Consulting Period"), the
Consultant shall perform such services as the Board of Directors of the Company
shall request to assist the Company in effecting an orderly and efficient
transition in respect of the Merger and the transactions contemplated by the
Merger Agreement. The Consultant shall in no event be required to provide
consulting services hereunder in excess of 20 hours during any calendar month
during the Consulting Period. Any request for the performance of consulting
services shall be ineffective unless it is received by the Consultant reasonably
in advance of the date such services are to be performed.
5. Place of Performance. The Consultant shall perform his duties
and conduct his business at such locations as are reasonably acceptable to him
and the Company. Such locations shall include the Consultant's place of
residence.
6. Independent Contractor. During the Consulting Period, the
Consultant shall be an independent contractor and not an employee of the Company
2
3
and is not entitled to the benefits provided by the Company and/or its
respective affiliates to its employees, including but not limited to group
insurance and coverage under any tax-qualified retirement plan. Accordingly, the
Consultant shall be responsible for payment of all taxes for remuneration
received under this Agreement, including Federal, State and local income tax
(collectively, "Income Taxes"), Social Security tax, Unemployment Insurance tax,
Medicare/Medicaid tax, Disability Insurance tax and any other payroll tax
(collectively, "Payroll Taxes") and excise tax, and any interest or penalties
imposed upon such taxes, and any business license fees as required.
7. Compensation.
(a) Payment. As consideration for each of the conditions
and covenants set forth herein, including, especially, sections 4 and 9 herein,
the Company shall pay Consultant all of the amounts set forth below:
(i) Three million, six hundred thirty-seven
thousand, nine hundred eighty dollars ($3,637,980.00) payable on the Effective
Date; seven hundred seventy-nine thousand, five hundred seventy dollars
($779,570.00) payable on the first anniversary of the Effective Date; and seven
hundred seventy-nine thousand, five hundred seventy dollars ($779,570.00)
payable on the second anniversary of the Effective Date, and
(ii) Twenty thousand dollars ($20,000) per
month, payable on the first day of each month following the Effective Date
during the Term.
In the event that Consultant materially breaches the
non-compete provisions of section 9 herein, Consultant shall be required to
repay the Company an amount equal to the sum of the aggregate amounts set forth
in section 7(a)(i) above multiplied by a fraction, the numerator of which is the
number of days from the date of such breach until the lapse of three years
following the Effective Date, and the denominator of which is 1095.
(b) Business Expenses. The Company shall reimburse the
Consultant for all reasonable business expenses incurred by him in connection
with his performance of consulting services hereunder upon submission by the
Consultant of receipts and other documentation in accordance with the Company's
normal reimbursement procedures.
8. Compensation in Event of Termination; Survival. Upon
termination of the Consultant's engagement for any reason prior to the
expiration of
3
4
the Term, this Agreement shall terminate and the Company shall have no further
obligation to the Consultant except as set forth in Section 3, Section 7(a)(i)
and Section 8 of this Agreement; provided, however, that the provisions set
forth in Section 9 hereof shall remain in full force and effect after the
termination of the Consultant's engagement.
(a) In the event the Consultant's engagement as a
consultant hereunder is terminated by the Company for Cause (as defined below)
or by the Consultant other than for Good Reason (as defined below), the
Consultant (or his executor, administrator, legal representative or legatee, as
applicable) shall be entitled to payment of any earned but unpaid portion of the
payments set forth in Section 7(a)(i) and Section 7(a)(ii) of this Agreement
through the date of such termination. For purposes of this Agreement, the
Company shall have "Cause" to terminate the Consultant's service as a consultant
hereunder upon the occurrence of any of the following events: (a) the conviction
of the Consultant for the commission of a felony; (b) the willful and continuing
failure by the Consultant to substantially perform his duties as a consultant
hereunder (other than such failure resulting from the Consultant's incapacity
due to physical or mental illness) that has not been fully cured within ten (10)
days following the date on which demand for substantial performance is delivered
by the Company in writing, specifically identifying the manner in which the
Company believes the Consultant has not substantially performed his duties; or
(c) the willful misconduct by the Consultant (including, but not limited to,
breach by the Consultant of any material term of this Agreement) that is
demonstrably and materially injurious to the Company or its subsidiaries,
whether monetarily or otherwise. For purposes of this Section 8(a), no act or
failure to act on the Consultant's part shall be considered "willful" unless
done or failed to be done by the Consultant in bad faith and without reasonable
belief that the Consultant's action or omission was in the best interest of the
Company. For purposes of this Agreement, the Consultant shall have "Good Reason"
to terminate his service as a consultant hereunder upon a breach by the Company
of any material term of this Agreement which is not cured with ten (10) days
following written notice of such breach by the Consultant.
(b) In the event the Consultant's engagement as a
consultant hereunder is terminated by the Company other than for Cause or by the
Consultant for Good Reason, the Consultant (or his executor, administrator,
legal representative or legatee, as applicable) shall be entitled to receive a
lump sum payment from the Company of an amount equal to the payments that
otherwise would have been paid to the Consultant during the remainder of the
Consulting Period under Section 7(a) hereof had his engagement not been
terminated, which payment shall be made within ten (10) business days following
the effective date of such termination.
4
5
9. Additional Covenants.
(a) During the Term, the Consultant shall not engage in
Competition (as defined below); provided, however, that it shall not be a
violation of this Section 9(a) for the Consultant: (i) to become the registered
or beneficial owner of two percent of any class of the capital stock of a
competing corporation registered under the Securities Exchange Act of 1934,
provided that the Consultant does not actively participate in the business of
such corporation during the Term, or (ii) to make passive investments in venture
capital or mutual funds. For purposes of this Agreement, "Competition" by the
Consultant shall mean the Consultant's engaging in, or otherwise directly or
indirectly being employed by or acting as a consultant or lender to, or being a
director, officer, employee, principal, agent, stockholder, member, owner or
partner of, or permitting his name to be used in connection with the activities
of any other business or organization anywhere in the United States which is
engaged in the business of:
- Advanced optical lithography;
- Advanced photo-resist processing; or
- Thermal oxidation and diffusion furnaces, including batch and
single-wafer applications
for equipment used in the manufacture of semiconductor devices.
(b) The Consultant and the Company acknowledge that the
noncompetition provision contained in Section 9(a) above is reasonable and
necessary, in view of the nature of the Company, its business and his knowledge
thereof, in order to protect the legitimate interests of the Company.
(c) The Consultant agrees that during the Term, he shall
not (i) solicit any employee of the Company or any of its affiliates to leave
the employ of the Company or any of its affiliates or to accept any other
employment or position, or (ii) assist any other person in hiring any such
employee, provided, however, this provision shall not apply to any unsolicited
contact by an employee of the Company or contact which is otherwise initiated by
the employee.
(d) The Consultant agrees that any information received
by the Consultant during any furtherance of the Consultant's obligations under
this Agreement, which concerns the affairs of the Company will be treated by the
Consultant in full confidence and will not be revealed to any other individual,
partnership, company or other organization except as may be required by law, as
directed by any regulatory authority or by order of any court.
5
6
(e) If any court or arbitrator determines that any
covenant contained in this Agreement, or any part thereof, is unenforceable for
any reason, the duration and/or scope of such provision shall be reduced so that
such provision becomes enforceable and, in its reduced form, such provision
shall then be enforceable and shall be enforced.
10. Limitation on Payments.
(a) In the event that the payments and other benefits
provided for in this Agreement or otherwise payable to the Consultant (i)
constitute "parachute payments" within the meaning of Section 280G of the
Internal Revenue Code of 1986, as amended (the "Code") and (ii) but for this
Section would be subject to the excise tax imposed by Section 4999 of the Code,
then the Consultant's payments and other benefits under this Agreement shall be
payable either (i) in full, or (ii) as to such lesser amount which would result
in no portion of payments and other benefits being subject to excise tax under
Section 4999 of the Code, whichever of the foregoing amounts, taking into
account the applicable federal, state and local income taxes and the excise tax
imposed by Section 4999, results in the receipt by the Consultant on an
after-tax basis, of the greatest amount of payments and other benefits under
this Agreement, notwithstanding that all or some portion of such payment and
other benefits may be taxable under Section 4999 of the Code.
(b) If a reduction in the payments and other benefits
that would otherwise be paid or provided to the Consultant under the terms of
this Agreement is necessary to comply with the provisions of Section 10(a), the
Consultant shall be entitled to select which payments or other benefits will be
reduced and the manner and method of any such reduction of such payments or
other benefits, except that the Consultant shall not be entitled to reduce the
number of options that would vest under Section 6(a)(iii) and 6(b) of the Prior
Agreement, so long as the requirements of Section 10(a) are met. Within thirty
(30) days after the amount of any required reduction in payments and benefits is
finally determined in accordance with the provisions of Section 10(c), the
Consultant shall notify the Company in writing regarding which payments or other
benefits are to be reduced. If no notification is given by the Consultant, the
Company will determine which amounts to reduce. If, as a result of any reduction
required by Section 10(a), amounts previously paid to the Consultant exceed the
amount to which the Consultant is entitled, the Consultant will promptly return
the excess amount to the Company.
(c) Unless the Company and the Consultant otherwise
agree in writing, any determination required under this Section shall be made in
writing by
6
7
the Company's independent public accountants (the "Accountants"), whose
determination shall be conclusive and binding upon the Consultant and the
Company for all purposes. For purposes of making the calculations required by
this Section, the Accountants may make reasonable assumptions and approximations
concerning applicable taxes and may rely on reasonable, good faith
interpretations concerning the application of Sections 280G and 4999 of the
Code. The Company and the Consultant shall furnish to the Accountants such
information and documents as the Accountants may reasonable request in order to
make a determination under this Section. The Company shall bear all costs the
Accountants may reasonably incur in connection with any calculations
contemplated by this Section.
(d) The Consultant shall, (i) upon the filing of any tax
returns reflecting any remunerations paid under this Agreement, promptly provide
the Company with evidence that is reasonably satisfactory to the Company that
all Income Taxes, excise taxes and Payroll Taxes (collectively, "Indemnified
Taxes") related to such payments have been paid in full, including any interest
and penalties imposed thereon and (ii) indemnify and hold harmless the Company,
ASML and any of their affiliates against such Indemnified Taxes, and any
interest and penalties imposed in respect of such Indemnified Taxes, whether
imposed in the first instance against the Consultant or the Company, ASML or any
of their affiliates, as the case may be, and in such event, the Company shall
have the right to withhold any remaining payments required to be made under this
Agreement as partial security for the foregoing indemnification obligation.
11. Compliance with Law. In the performance of the services
herein contemplated, the Consultant is an independent contractor with the
authority to control the details of his work. However, the services of the
Consultant are subject to the approval of the Company and shall be subject to
the Company's general right of supervision to secure the satisfactory
performance thereof. The Consultant agrees to comply with all federal, state and
municipal laws, rules and regulations, as well as all policies and procedures of
the Company, that are now or may in the future become applicable to the
Consultant in connection with his services to the Company, provided, however,
such noncompliance shall not represent a breach of this Agreement to the extent
such noncompliance is not materially injurious to the Company and its
affiliates, taken as a whole.
12. Successors; Binding Agreement.
(a) The Company shall require any successor to all or
substantially all of the business or assets of the Company to expressly assume
and
7
8
agree to perform this Agreement in the same manner and to the same extent that
the Company would be required to perform it if no such succession had taken
place.
(b) This Agreement and all rights of the Consultant
hereunder shall inure to the benefit of and be enforceable by the Consultant's
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. This Agreement is personal to and may not
be assigned by the Consultant.
(c) The parties agree that ASML shall be a third party
beneficiary to the Company under this Agreement.
13. Notice. For the purposes of this Agreement, notices, demands
and all other communications provided for herein shall be in writing and shall
be deemed to have been duly given when delivered or (unless otherwise specified)
mailed by United States certified mail, return receipt requested, postage
prepaid, addressed as follows:
If to the Consultant:
Xxxxxxx X. Xxxxxxxxx
c/o Xxxxxx X. Xxxxxx, Esq.
Xxxxxxxx & Xxxxxxxxxx, LLP
00 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxx, Xxxxxxxxxx 00000
If to the Company:
Silicon Valley Group, Inc.
x/x XXX Xxxxxxx Xxxxxxxxxxx X.X.
0000 Xx Run
5503 LA Veldhoven
Veldhoven, the Netherlands
Attn.: General Counsel
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
14. Modification; Waiver; Discharge. No provisions of this
Agreement may be modified, waived or discharged unless such waiver, modification
or discharge is agreed to in writing signed by the parties hereto and ASML. No
waiver by a party hereto at any time of any breach by the other party hereto of,
or
8
9
compliance with, any condition or provision of this Agreement to be performed
by such other party shall be deemed a waiver of similar or dissimilar provisions
or conditions at the same or at any prior or subsequent time.
15. Validity. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall remain in
full force and effect.
16. Entire Agreement. This Agreement sets forth the entire
agreement of the parties hereto solely in respect of the services of the
Consultant as a consultant and, except as set forth below, supersedes all prior
agreements, promises, covenants, arrangements, communications, representations
or warranties whether oral or written, by any officer, employee or
representative of any party hereto, and any prior agreement of the parties
hereto solely in respect of the services of the Consultant as a consultant is
hereby terminated. Notwithstanding the foregoing but subject to the provisions
of Section 3 hereof, this Agreement shall not supersede the Prior Agreement
which shall remain in full force and effect in accordance with its terms and
Section 6.14(c) of the Merger Agreement until the Prior Agreement is terminated
in accordance with Section 9 thereof. No agreements or representations, oral or
otherwise, expressed or implied, solely with respect to the services of the
Consultant as a consultant have been made by either party that are not set forth
expressly in this Agreement.
17. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
18. Headings. The headings contained herein are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
19. Governing Law. The validity, interpretation, construction
and performance of this Agreement shall be governed by the laws of the state of
Delaware without regard to principles of conflicts of laws. All disputes arising
out of or in connection with this Agreement shall be solely and exclusively
resolved by a court of competent jurisdiction in the State of Delaware. The
parties hereto hereby consent to the jurisdiction of the courts of the State of
Delaware and the United States District Court of the District of Delaware and
waive any objections or rights as to forum of nonconveniens, lack of personal
jurisdiction or similar grounds with respect to any dispute relating to this
Agreement.
9
10
20. Indemnification. The Indemnification Agreement between the
Company and the Consultant shall remain in full force and effect until the
Termination Date set forth herein. The Company shall further indemnify the
Consultant for any and all losses, claims and liabilities resulting from the
Consultant's performance of services for the Company under this Agreement, which
such indemnification shall include any reasonable expenses, including attorneys
or other professional fees, incurred as the result of any action or
investigation whereby the Consultant is named as a party or is called to testify
or provide information.
10
11
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
and year first above written.
SILICON VALLEY GROUP, INC.
/s/ Xxxxx Xxxxxx
------------------------------------
By: Xxxxx Xxxxxx
Its: Corporate Vice President
CONSULTANT
/s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxxxx
11
12
GUARANTEE
The undersigned, ASM Lithography Holding N.V. ("ASML"), hereby guarantees to the
Consultant the due and prompt payment of all amounts to be paid by the Company
to the Consultant under the Consulting Agreement. The obligation of ASML under
this guarantee is a secondary obligation of ASML and shall be enforceable
against ASML on or after (i) the Consultant first proceeds against the Company
for satisfaction of its obligations under the Consulting Agreement and (ii) the
failure by the Company to satisfy such obligations within sixty days following
such demand. ASML shall have the right to raise any defenses available to the
Company under the Consulting Agreement. This guarantee shall be governed by the
laws of the State of Delaware, without regard to the principles of conflicts of
law thereof.
ASM LITHOGRAPHY HOLDING N.V.
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxx
Title: Executive Vice President
Finance & Chief financial
Officer
12
