UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
August 6, 2007
Date of Report (date of earliest event reported)
Nanometrics Incorporated
(Exact name of Registrant as specified in charter)
Delaware | 0-13470 | 94-2276314 | ||
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(I. R. S. Employer Identification No.) |
1550 Buckeye Drive, Milpitas, California 95035
(Address of principal executive offices)
Registrants telephone number, including area code: (408) 545-6000
N/A
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01 Entry into a Material Definitive Agreement.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Appointment of Dr. Stultz
On August 6, 2007, Nanometrics Incorporated announced that Timothy J. Stultz, Ph.D. will join the company as its President and Chief Executive Officer. Dr. Stultz is expected to join us in late-August, and is to succeed Bruce C. Rhine, who will become Chairman of the Board of Directors. Our founder, Vincent J. Coates, will become Vice Chairman of Board. Dr. Stultz will become a director of Nanometrics effective as of his start of employment with us. The terms of Dr. Stultzs employment are set out in the offer letter to Dr. Stultz which is attached as Exhibit 10.1, and in the executive severance agreement and relocation agreement attached as Exhibits 10.2 and 10.3, respectively.
Dr. Stultz will be paid an annual base salary of $377,000 and will receive a signing bonus of $100,000 after completion of one months service to the company. Additionally, we will grant Dr. Stultz an option for 200,000 shares of common stock and an award of 50,000 restricted stock units from within our 2005 Equity Incentive Plan. The shares subject to the option will vest over a three-year period from the date of grant, with one-third of the total number vesting on the first anniversary of the date of grant, and 1/36 th of the total number vesting ratably on a monthly basis thereafter. The restricted stock units will vest over a three-year period from the date of grant, with one-third of the total number vesting on each annual anniversary of the date of grant.
We have also included in Dr. Stultzs package payment of relocation expenses, eligibility for bonus payments, and certain severance and change of control benefits, including cash and equity award acceleration, all as set forth in more detail in the attached agreements. Also, we intend to enter into our standard form of indemnification agreement with Dr. Stultz on substantially the same terms as those entered into with our other executive officers.
Since June 2003, Dr. Stultz, 59, has served as the President and Chief Executive Officer and a member of the board of directors of Imago Scientific Instruments Corporation, a supplier of proprietary 3-D atom probe microscopes to the research materials and microelectronics industries. Prior to Imago, Dr. Stultz served as President and Chief Executive Officer for ThauMDx, a developer of diagnostic systems and technologies for the analysis of biomolecules, drugs and chemicals. Dr. Stultz received his B.S., M.S. and Ph.D. in Materials Science and Engineering from Stanford University.
Incentive Cash Award Program
Our Board of Directors has indicated that the operative performance metric for the incentive cash award program previously disclosed in a Current Report on Form 8-K filed with the Securities and Exchange Commission on May 31, 2007 is quarterly operating profitability, not quarterly earnings before income taxes, as previously disclosed.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
Exhibit No. |
Description |
|
10.1 |
Offer Letter to Timothy Stultz | |
10.2 |
Executive Severance Agreement with Timothy Stultz | |
10.3 |
Relocation Agreement with Timothy Stultz | |
99.1 |
Press release issued by Nanometrics Incorporated dated August 6, 2007 |
Signature
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Dated: August 8, 2007 | NANOMETRICS INCORPORATED | |||
/s/ Quentin B. Wright |
||||
Quentin B. Wright Interim Chief Financial Officer |
INDEX TO EXHIBITS
Exhibit No. |
Description |
|
10.1 |
Offer Letter to Timothy Stultz | |
10.2 |
Executive Severance Agreement with Timothy Stultz | |
10.3 |
Relocation Agreement with Timothy Stultz | |
99.1 |
Press release issued by Nanometrics Incorporated dated August 6, 2007 |
Exhibit 10.1
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Nanometrics Incorporated | Tel: 408.435.9600 | ||||
1550 Buckeye Drive | Fax: 408.232.5910 | |||||
Milpitas, CA 95035 | www.nanometrics.com |
July 17, 2007
Dear Tim:
I am pleased to offer you the position of President and Chief Executive Officer of Nanometrics Incorporated (the Company ) on a full-time basis. In addition, should you accept this offer, you will be appointed as a member of the Companys Board of Directors.
The elements of our offer are as follows:
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You will render such business and professional services in the performance of your duties, consistent with your position within the Company, as shall reasonably be assigned to you by the Companys Board of Directors (the Board). |
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Your initial base salary in this position will be an annual salary of $377,000, earned and payable at the bi-weekly rate of $14,500 in accordance with our standard payroll schedule and procedures and subject to all applicable tax withholdings. |
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Your relocation expenses will be reimbursed in accordance with the Relocation Letter set forth as Addendum A to this offer letter. In addition, as part of the relocation benefits being provided to you, we will provide you with a living allowance of $8,000 per month for up to 12 months, provided you remain employed by us through each relevant date such allowance is paid. The total living allowance and temporary housing allowance provided in the Relocation Policy shall not exceed $8,000 per month. |
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You will receive a one-time lump sum cash bonus payment of $100,000, less applicable withholdings, upon your completion of one month of service with us and provided that you remain an employee in good standing with the Company at such time. |
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The Company will either provide you with an automobile allowance of $1,200 per month or the use of a Company-leased car of equivalent value, in each case provided you remain employed by us through each relevant date such allowance is paid. |
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Subject to approval by the Board or the Compensation Committee of the Board (the Committee), you will be granted (i) a non-qualified stock option to purchase an aggregate of 200,000 shares of Company common stock (the Option) and (ii) 50,000 restricted stock units (the RSU). Both equity awards will be granted under our 2005 Equity Incentive Plan, and pursuant to standard agreements thereunder. The Option shall vest over a three-year period from the date of grant, with one-third |
of the total number of shares underlying the Option vesting on the first anniversary of the date of grant, and 1/36 th of the total number of shares underlying each equity award vesting ratably on a monthly basis thereafter, subject to your continued employment with the Company through each such date. The Option shall have a seven-year maximum term and shall have an exercise price per share equal to one hundred percent (100%) of the fair market value of a share of Company common stock on the date of grant. The RSU shall vest over a three-year period from the date of grant, with one-third of the total number of shares underlying the RSU vesting on each annual anniversary of the date of grant, subject to your continued employment with the Company through each such date. |
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You will be eligible to receive severance payments and benefits under certain conditions, pursuant to the terms and conditions of the Executive Severance Agreement set forth as Addendum B to this offer letter. |
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You will be eligible to participate in the Companys excellent benefit programs, as they may be in place from time to time, which currently include health, dental, vision, life and long term disability insurance coverage. The Company also offers you a supplemental reimbursement policy, Execucare, to reimburse certain out of pocket insurance expenses. We will pay a portion of the cost of your insurance coverage and a portion for your dependents, all in accordance with the terms and conditions of the applicable benefit programs as they may be in place from time to time. The Company reserves the right to cancel or change the benefit plans and programs it offers to its employees at any time. |
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You will be covered by the Indemnification Agreement provided to the Companys executive officers. |
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You will also be eligible for a performance bonus payable for the achievement of performance goals mutually agreed upon between you and the Committee or the Board. The performance bonus will be guaranteed to be at least $50,000 per quarter for the first four quarters of your employment and $25,000 per quarter for the following two quarters of your employment. Your bonus for the first quarter of your employment, including the amount of the minimum guaranteed bonus, will be pro-rated to your start date with such pro-rated amount to be calculated by multiplying $50,000 (or, if greater, the amount of the earned performance bonus) by a fraction with a numerator equal to the number of days between your start date and the last date of the first quarter and a denominator equal to 365. You must be an employee in good standing on the last day of each relevant quarter in order to be eligible to receive your bonus. Earned bonus amounts will be paid out within thirty (30) days of the date the performance goals are deemed achieved. |
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All payments made pursuant to this offer letter will be subject to withholding of applicable taxes. |
The Company envisions that your initial focus as President and CEO of the Company will be:
1. | Completion of the integration of the two companies acquired by Nanometrics in 2006. |
2. | Understanding the costs and mission of the Korean manufacturing subsidiary and determining its value to the corporation with appropriate action plan to maximize value from this operation. |
3. | Improve cash flow. |
4. | Work to develop consistent business practices across all entities and eliminate redundant and excess legal entities and offices. |
5. | Recruit a permanent CFO. |
This offer of employment is contingent upon:
(1) | Completion of the Nanometrics Employment Application |
(2) | Signing of the Nanometrics Employee Patent & Confidential Information Agreement |
(3) | Satisfactory completion of a criminal and/or educational background check as well as a Directors and Officers Questionnaire. |
(4) | Providing verification of your eligibility for employment in the United States. Your continued employment is conditioned upon your maintaining authorization to work in the United States. |
Nanometrics is an at-will employer and your employment with the Company is at-will, which means that either you or the Company has the right to terminate employment at any time, with or without advance notice, and with or without cause, for any reason. You understand and agree that neither your job performance nor promotions, commendations, bonuses or the like from the Company give rise to or in any way serve as the basis for modification, amendment, or extension, by implication or otherwise, of your employment with the Company.
We ask that, if you have not already done so, you disclose to the Company any and all agreements relating to your prior employment that may affect your eligibility to be employed by the Company or limit the manner in which you may be employed. It is the Companys understanding that any such agreements will not prevent you from performing the duties of your position and you represent that such is the case. Moreover, you agree that, during the term of your employment with the Company, you will perform your duties faithfully and to the best of your ability and will devote your full business efforts and time to the Company. For the duration of the period of your employment, you agree not to engage in any other employment, occupation, consulting or other business activity for any direct or indirect remuneration without the prior approval of the Board, nor will you engage in any other activities that conflict with your obligations to the Company; provided, however, that you may remain on the Imago Board of Directors. Similarly, you agree not to bring any third party confidential information to the Company, including that of your former employer, and that in performing your duties for the Company you will not in any way utilize any such information.
This offer letter, along with its attachments and addenda, the Executive Severance Agreement between you and the Company dated on or about the date herewith and any agreements relating to proprietary rights between you and the Company, constitute the full and complete statement of the parties understanding, supersede any other communication, whether verbal or written, regarding your employment and the letter can only be modified by a written statement signed by you and an officer of the Company (or authorized delegate). This offer letter shall be governed by and construed in accordance with the laws of the State of California (with the exception of its conflict of laws provisions). In the event that any provision hereof becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, this Agreement will continue in full force and effect without said provision. The offer is valid until July 19, 2007.
Please acknowledge your acceptance of this offer by signing below. The entire Nanometrics staff looks forward to you joining us and becoming a key person with our growing team.
Sincerely, | ||
Bruce C. Rhine | ||
Chief Executive Officer | ||
Agreed to and accepted: | ||
Signature: |
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Printed Name: | Timothy J. Stultz | |
Date: July , 2007 |
Available Start Date |
Exhibit 10.2
RELOCATION AGREEMENT
This Relocation Agreement is made by and between Nanometrics Incorporated, a Delaware corporation (Company) and Timothy Stultz (Employee).
The Company agrees to reimburse Employee for reasonable expenses relating to his relocation from Verona, Wisconsin to the San Francisco Bay Area, subject to the following terms and conditions: Refer to the attached Addendum A for details of this agreement.
Nanometrics Incorporated | Employee | |||||||
By: |
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By: |
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[Name & Title] | Timothy Stultz | |||||||
Date: | , 2007 | Date: | , 2007 |
ADDENDUM A
1. | To be reimbursed under this relocation agreement, Employee must submit all original receipts, along with an expense report for relocation expenses incurred, to the Company within 60 days of Employees first day of work at Nanometrics. |
2. | The company will reimburse the employee for two house hunting trips. The Company will reimburse Employee for airline tickets (coach class), car rental, hotel and all other normal expenses up to three (3) days so that Employee may survey the area with a real estate agent. |
3. | The Company will reimburse Employee for the normal and reasonable expenses associated with the actual shipment of personal goods via ground transportation, which can include shipment of one vehicle. |
4. | The Company will reimburse Employee for storage of relocated personal goods in the San Francisco Bay Area for six months. |
5. | The Company will reimburse Employee up to (12) months rent until a permanent home is located, in an amount not to exceed $8,000.00 per month. |
6. | If Employee voluntarily terminates employment with the Company within one (1) year of relocation, Employee agrees to repay the Company all reimbursed relocation expenses on a 12- month prorated basis. Employee agrees that he will owe the Company 1/12 of the relocation expenses that he is provided reimbursement for if he resigns his employment prior to the one year anniversary of his start date, for every month short of 12 months. For example, if employee resigns in his first year of employment five months after beginning his employment he will be obligated to repay the Company 7/12 of the reimbursement expenses provided by the Company. |
7. | If Employee is terminated by the Company within one (1) year of relocation date, for any reason other than for Cause (as defined in Employees Executive Severance Agreement), the Company will reimburse Employee for actual shipment of personal goods via ground transportation back to his original location, in an amount not to exceed original moving expenses within 180 days of termination. |
8. | This relocation agreement should not be construed to create or imply the creation of a contract of employment for a specified term between Nanometrics and Employee, nor should it be construed as a guarantee of employment for a specific period of time. In all circumstances, employment at Nanometrics is at-will, which means that either the Employee or the Company can terminate the employment relationship at any time, with or without cause and with or without prior notice. |
9. | This relocation agreement represents the entire understanding and agreement of the parties hereto with respect to the terms contained herein. All other terms and condition of Employees employment with the Company remain in full force and effect. |
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10. | This relocation agreement will be governed by the laws of the State of California without giving effect to any choice of law rules or principles that may result in the application of the laws of any jurisdiction other than California. Employee hereby expressly consents to the personal jurisdiction of the state and federal courts located in California for any lawsuit filed against him by the Company. |
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Exhibit 10.3
EXECUTIVE SEVERANCE AGREEMENT
BETWEEN
TIMOTHY STULTZ
AND
NANOMETRICS INCORPORATED
This Executive Severance Agreement (the Severance Agreement) is made and entered into this th day of July 2007 by and between Timothy Stultz (Mr. Stultz) and Nanometrics Incorporated (the Company), a Delaware corporation.
WHEREAS, Mr. Stultz has been hired by the Company as its new President and Chief Executive Officer effective August , 2007, and
WHEREAS, the Company wishes to allow Mr. Stultz to focus his attention upon his new duties by providing him with a degree of financial security and income protection in the event of an involuntary termination without Cause (as defined herein) or a resignation for Good Reason (as defined herein), including in connection with a Change of Control (as defined herein) of the Company.
NOW, THEREFORE, the parties hereby agree as follows:
1. This Severance Agreement is intended solely to set out the parties understanding with respect to the involuntary separation without Cause or the resignation for Good Reason, including in connection with a Change of Control, of Mr. Stultz and is not intended to constitute a contract of employment for any period of time. Mr. Stultz understands that he is, and following the execution of this Severance Agreement, remains an, at-will employee of the Company and may be terminated at any time with or without cause or notice.
2. In the event Mr. Stultzs employment with the Company terminates for any reason, Mr. Stultz will be entitled to any (a) unpaid base salary accrued up to the effective date of termination; (b) pay for accrued but unused vacation; (c) benefits or compensation as provided under the terms of any employee benefit and compensation agreements or plans applicable to Mr. Stultz (d) unreimbursed business expenses required to be reimbursed to Mr. Stultz; and (e) rights to indemnification Mr. Stultz may have under the Companys Certificate of Incorporation, Bylaws or separate indemnification agreement, as applicable In addition, depending on the reason for termination, Mr. Stultz may be entitled to the amounts and benefits specified in Sections 3, 4, 5 or 6 of this Severance Agreement. Upon the termination of Mr. Stultzs employment with the Company for any reason, unless otherwise requested by the Companys Board of Directors, Mr. Stultz will be deemed to have resigned from the Board (and all other positions held at the Company and its
affiliates, including, without limitation, any boards of subsidiaries) voluntarily, without any further required action by Mr. Stultz, as of the end of the Mr. Stultzs employment and Mr. Stultz, at the Boards request, will execute any documents necessary to reflect his resignation.
3. In the event that Mr. Stultzs employment with the Company is terminated by the Company without Cause or Mr. Stultz resigns for Good Reason during the period beginning on Mr. Stultzs hire date and concluding one year later, the Company agrees, subject to Sections 7 through 11 of this Severance Agreement, as a separation payment, (i) to pay to Mr. Stultz his annual salary (as in effect immediately prior to such separation from employment), bonuses that have been earned or accrued, on the Companys normal paydays and (ii) to reimburse Mr. Stultz for his premium payments under the Consolidated Omnibus Budget Reconciliation Act (COBRA), in each case for a period of one (1) year from date of separation from employment. If Mr. Stultzs separation is for Cause, he shall be due no separation payment.
4. In the event that Mr. Stultzs employment with the Company is terminated by the Company without Cause or Mr. Stultz resigns for Good Reason during the period beginning one year and one day after Mr. Stultzs hire date until two years from Mr. Stultz hire date, the Company agrees, subject to Sections 7 through 11 of this Severance Agreement, as a separation payment, (i) to pay to Mr. Stultz his annual salary (as in effect immediately prior to such separation from employment), bonuses that have been earned or accrued, on the Companys normal paydays and (ii) to reimburse Mr. Stultz for his premium payments under COBRA, in each case for a period of nine (9) months from the date of his separation from employment. If Mr. Stultzs separation is for Cause, he shall be due no separation payment.
5. In the event that Mr. Stultzs employment with the Company is terminated by the Company without Cause or Mr. Stultz resigns for Good Reason during the period beginning two years and one day from Mr. Stultz hire date or thereafter, the Company agrees, subject to Sections 7 through 11 of this Severance Agreement, as a separation payment, (i) to pay to Mr. Stultz his annual salary (as in effect immediately prior to such separation from employment), bonuses that have been earned or accrued, on the Companys normal paydays and (ii) to reimburse Mr. Stultz for his premium payments under COBRA, in each case for a period of six (6) months from the date of his separation from employment. If Mr. Stultzs separation is for Cause, he shall be due no separation payment.
6. In the event that Mr. Stultzs employment with the Company is terminated by the Company without Cause or Mr. Stultz resigns for Good Reason from all of his employment positions with the Company and its subsidiaries, in each case within twelve (12) months following a Change of Control, the Company agrees, subject to Sections 7 through 11 of this Severance Agreement, as a separation payment and in lieu of any payments and benefits that otherwise might be due him pursuant to Sections 3, 4 or 5 of this Severance Agreement, (i) to pay to Mr. Stultz his annual salary (as in effect immediately prior to such separation from employment), bonuses that have been earned or accrued, on the Companys normal paydays; (ii) to reimburse Mr. Stultz for his premium payments under COBRA, in each case for a period of one (1) year from the date of his separation from employment; and (iii) one hundred percent (100%) of the unvested shares subject to Mr. Stultzs then outstanding equity awards will immediately vest and, if applicable, become exercisable. If Mr. Stultzs separation is for Cause or he relinquishes his positions voluntarily without Good Reason, he shall be due no separation payment.
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7. Notwithstanding anything in this Severance Agreement to the contrary, reimbursement for premiums paid under COBRA pursuant to this Severance Agreement shall be paid only if Mr. Stultz validly elects to continue coverage under COBRA and shall be reimbursed only until the earlier of (i) the termination date set forth in Section 3, 4, 5 or 6 of this Severance Agreement, as applicable; (ii) the date upon which Mr. Stultz and Mr. Stultzs eligible dependents become otherwise covered under similar plans; (iii) the date upon which Mr. Stultz and Mr. Stultzs eligible dependents cease to be eligible for coverage under COBRA.
8. Notwithstanding anything to the contrary in this Severance Agreement, if Mr. Stultz is a specified employee within the meaning of Section 409A of the Code and any final regulations and guidance promulgated thereunder (Section 409A) at the time of Mr. Stultzs separation from employment, then any severance payments payable pursuant to this Severance Agreement and any other severance payments or separation benefits which may be considered deferred compensation under Section 409A (together, the Deferred Compensation Separation Benefits) otherwise due to Mr. Stultz on or within the six (6) month period following Mr. Stultzs separation from employment will accrue during such six (6) month period and will become payable in a lump sum payment on the date six (6) months and one (1) day following the date of Mr. Stultzs separation from employment. All subsequent payments, if any, will be payable in accordance with the payment schedule applicable to each payment or benefit. It is the intent of this Severance Agreement to comply with the requirements of Section 409A so that none of the severance payments and benefits to be provided hereunder will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply.
9. The severance payments and benefits provided herein shall be conditioned on the following:
(a) The receipt of any severance or other benefits pursuant to this Severance Agreement will be subject to (i) Mr. Stultz signing and not revoking a release of claims in a form acceptable to the Company; (ii) Mr. Stultzs promptly resigning from all positions with the Company as requested; and (iii) Mr. Stultz continuing to comply with the terms of any Confidential Information Agreement by which he is then bound. No severance or other benefits will be paid or provided until the release agreement becomes effective.
(b) During the period of Mr. Stultzs employment with the Company and the Continuance Period (as defined herein), Mr. Stultz will not knowingly and materially disparage, criticize, or otherwise make any derogatory statements regarding the Company or any officer, director or agent of the Company nor will the Company knowingly and materially disparage, criticize, or otherwise make any derogatory statements regarding Mr. Stultz. Notwithstanding the foregoing, nothing contained in this Severance Agreement will be deemed to restrict Mr. Stultz, the Company or any of the Companys current or former officers and/or directors from providing information to any governmental or regulatory agency (or in any way limit the content of any such information) to the extent they are requested or required to provide such information pursuant to applicable law or regulation.
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(c) Mr. Stultz acknowledges that the nature of the Companys business is such that if Mr. Stultz were to become employed by, or substantially involved in, the business of a competitor of the Company during the twelve (12) months following the termination of Mr. Stultzs employment with the Company, it would be very difficult for Mr. Stultz not to rely on or use the Companys trade secrets and confidential information. Thus, to avoid the inevitable disclosure of the Companys trade secrets and confidential information, Mr. Stultz agrees and acknowledges that Mr. Stultzs right to receive the separation payments set forth in Sections 3, 4 and 5 of this Severance Agreement (to the extent Mr. Stultz is otherwise entitled to such payments) shall be conditioned upon Mr. Stultz not directly or indirectly engaging in (whether as an employee, consultant, agent, proprietor, principal, partner, stockholder, corporate officer, director or otherwise), nor having any ownership interested in or participating in the financing, operation, management or control of, any person, firm, corporation or business that competes with Company or is a customer of the Company. Upon any breach of this section, all severance payments pursuant to this Severance Agreement shall immediately cease.
(d) Until the date one (1) year after the termination of Mr. Stultzs employment with the Company for any reason, Mr. Stultz agrees and acknowledges that Mr. Stultzs right to receive the separation payments set forth in Sections 3, 4 and 5 of this Severance Agreement (to the extent Mr. Stultz is otherwise entitled to such payments) shall be conditioned upon Mr. Stultz not either directly or indirectly soliciting, inducing, attempting to hire, recruiting, encouraging, taking away, hiring any employee of the Company or causing an employee to leave his or her employment either for Mr. Stultz or for any other entity or person.
10. All payments made pursuant to this Severance Agreement will be subject to standard deductions and the withholding of applicable taxes.
11. In the event that the severance and other benefits provided for in this Severance Agreement or otherwise payable to Mr. Stultz (i) constitute parachute payments within the meaning of Section 280G of the Code and (ii) but for this Section, would be subject to the excise tax imposed by Section 4999 of the Code, then Mr. Stultzs separation payments under this Severance Agreement will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such severance 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 of the Code, results in the receipt by Mr. Stultz on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Unless the Company and Mr. Stultz otherwise agree in writing, any determination required under this Section will be made in writing by the independent public accountants who are primarily used by the Company (the Accountants), whose determination will be conclusive and binding upon Mr. Stultz 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
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applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Mr. Stultz will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section.
12. The following capitalized terms shall the meanings set forth herein:
(a) Cause . For purposes of this Severance Agreement, Cause means (i) Mr. Stultzs willful gross misconduct; (ii) Mr. Stultzs unjustifiable neglect of his duties (as determined in the good faith judgment of the Board); (iii) Mr. Stultzs acting in any manner that has a direct, substantial and adverse effect on the Company or its reputation, (iv) Mr. Stultzs repeated material failure or repeated refusal to comply with reasonable written policies, standards and regulations established by the Company from time to time which failure, if curable, is not cured to the reasonable satisfaction of the Board during the thirty (30) day period following written notice of such failure from the Company; (v) any tortious act, unlawful act or malfeasance which causes or reasonably could cause (for example, if it became publicly known) material harm to the Companys standing, condition or reputation; (vi) any material breach by Mr. Stultz of the provisions of any confidential information agreement with the Company or other material improper disclosure of the Companys confidential or proprietary information, (vii) Mr. Stultzs theft, dishonesty, or falsification of any Company records; (viii) Mr. Stultz being found liable in any Securities and Exchange Commission or other civil or criminal securities law action or entering any cease and desist order with respect to such action (regardless of whether or not Mr. Stultz admits or denies liability); or (ix) Mr. Stultz (A) obstructing or impeding; (B) endeavoring to influence, obstruct or impede, or (C) failing to materially cooperate with, any investigation authorized by the Board or any governmental or self-regulatory entity (an Investigation). However, Mr. Stultzs failure to waive attorney-client privilege relating to communications with Mr. Stultzs own attorney in connection with an Investigation will not constitute Cause
(b) Change of Control . For purposes of this Severance Agreement, Change of Control means the occurrence of any of the following:
(i) Any person (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended) becomes the beneficial owner (as defined in Rule 13d-3 under said Act), directly or indirectly, of securities of the Company representing 50% or more of the total voting power represented by, or 50% or more of the fair value of, the Companys then outstanding voting securities; or
(ii) Any action or event occurring within a two-year period, as a result of which less than a majority of the directors are Incumbent Directors. Incumbent Directors will mean directors who either (A) are directors of the Company as of the date hereof, or (B) are elected, or nominated for election, to the Board with the affirmative votes of a majority of the Incumbent Directors at the time of such election or nomination (but will not include an individual whose election or nomination is in connection with an actual or threatened proxy contest relating to the election of directors to the Company); or
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(iii) The consummation of a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving or resulting entity, including any parent holding company) at least fifty percent (50%) of the total voting power represented by the voting securities of the Company or such surviving or resulting entity outstanding immediately after such merger or consolidation; or
(iv) The consummation of the sale, lease or other disposition by the Company of all or substantially all the Companys assets.
(c) Code . For purposes of this Severance Agreement, Code means the Internal Revenue Code of 1986, as amended.
(d) Continuance Period . For purposes of this Severance Agreement, Continuance Period will mean the period of time beginning on the date of the termination of Mr. Stultzs employment and ending on the date on which Mr. Stultz is no longer entitled to receive severance payments under this Severance Agreement.
(e) Good Reason . For purposes of this Severance Agreement, Good Reason means the occurrence of one or more of the following events without his written consent: (i) a reduction of Mr. Stultz base salary in any one year; (ii) the relocation of Mr. Stultz to a facility that is more than fifty (50) miles from his current location; (iii) the failure of the Company to obtain assumption of this Severance Agreement by any successor; and (iv) the willful breach by the Company of any material element of the then current employment agreement or a material provision of this Severance Agreement
13. This Severance Agreement will be binding upon and inure to the benefit of (a) the heirs, executors and legal representatives of Mr. Stultz upon Mr. Stultzs death and (b) any successor of the Company. Any such successor of the Company will be deemed substituted for the Company under the terms of this Severance Agreement for all purposes. For this purpose, successor means any person, firm, corporation or other business entity which at any time, whether by purchase, merger or otherwise, directly or indirectly acquires all or substantially all of the assets or business of the Company. None of the rights of Mr. Stultz to receive any form of compensation payable pursuant to this Severance Agreement may be assigned or transferred except by will or the laws of descent and distribution. Any other attempted assignment, transfer, conveyance or other disposition of Mr. Stultzs right to compensation or other benefits will be null and void.
14. This Severance Agreement constitutes the entire agreement between the parties pertaining to the separation of Mr. Stultz from employment with the Company and its subsidiaries, is intended to apply to the exclusion of all other remedies in the event of such separation and supersedes all prior or contemporaneous agreements whether written or oral. The Company and Mr. Stultz agree to work together in good faith to consider amendments to this Severance Agreement and to take such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition under Section 409A prior to actual payment to Mr. Stultz. No waiver, alteration, or modification of any of the provisions of this Severance Agreement will be binding unless in writing and signed by duly authorized representatives of the parties hereto.
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15. In the event that any provision hereof becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, this Severance Agreement will continue in full force and effect without said provision.
16. This Severance Agreement shall be governed by and construed in accordance with the laws of the State of California (with the exception of its conflict of laws provisions).
17. In the event of disagreement, the parties agree to attempt to work out their differences in good faith. In the event the parties are unable to so work out their differences, any controversy or claim arising out of or relating to this Severance Agreement, or the breach thereof, shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The parties agree that such arbitration shall be held in Santa Clara County, California and that the Company shall reimburse Mr. Stultzs reasonable costs and attorneys fees.
18. Mr. Stultz acknowledges and agrees that Mr. Stultz is executing this Severance Agreement voluntarily and without any duress or undue influence by the Company or anyone else. Mr. Stultz further acknowledges and agrees that he has carefully read this Severance Agreement and that he has asked any questions needed for him to understand the terms, consequences and binding effect of this Severance Agreement and fully understand it, including that he is waiving his right to a jury trial. Finally, Mr. Stultz agrees that he has been provided an opportunity to seek the advice of an attorney of his choice before signing this Severance Agreement.
19. This Severance Agreement may be executed in counterparts, and each counterpart will have the same force and effect as an original and will constitute an effective, binding agreement on the part of each of the undersigned.
20. All notices, requests, demands and other communications called for hereunder will be in writing and will be deemed given (a) on the date of delivery if delivered personally, (b) one (1) day after being sent overnight by a well established commercial overnight service, or (c) four (4) days after being mailed by registered or certified mail, return receipt requested, prepaid and addressed to the parties or their successors at the following addresses, or at such other addresses as the parties may later designate in writing:
If to the Company:
Attn : Chairman of the Compensation Committee
c/o Corporate Secretary
Nanometrics Incorporated
1550 Buckeye Drive
Milpitas, CA 95035
If to Executive:
at the last residential address known by the Company.
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Executed as of the date first above written.
NANOMETRICS INCORPORATED |
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By: |
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Bruce C. Rhine | ||
Chief Executive Officer |
AGREED TO AND ACCEPTED: |
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Timothy J. Stultz |
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Exhibit 99.1
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Nanometrics Incorporated | Tel: 408.545.6000 | ||||
1550 Buckeye Drive | Fax: 408.232.5910 | |||||
Milpitas, CA 95035 | www.nanometrics.com |
News Release
Investor Relations Contact: |
Company Contact: | |||||
Claire McAdams |
Dan Choy | |||||
Headgate Partners LLC |
Nanometrics Incorporated | |||||
530.274.0551, 530.274.0531 fax |
408.545.6000, 408.232.5910 fax | |||||
email: claire@headgatepartners.com |
email: dchoy@nanometrics.com |
Nanometrics Names Timothy J. Stultz Chief Executive Officer
Bruce C. Rhine Becomes Chairman of the Board
MILPITAS, California, August 6, 2007 Nanometrics Incorporated (Nasdaq: NANO), a leading supplier of advanced metrology equipment to the semiconductor industry, announced today that Timothy J. Stultz, Ph.D. will join the company as its president and chief executive officer (CEO), succeeding Bruce C. Rhine, who will become chairman of the Board of Directors. Founder Vincent J. Coates will become vice chairman of the Board. Dr. Stultz will also be appointed to the companys Board, effective as of his start date, which is expected to be late August 2007.
This announcement follows Nanometrics March 2007 announcement that it had initiated a CEO search. Dr. Stultz brings to Nanometrics twenty-four years of experience in the semiconductor manufacturing industry.
Dr. Stultz, 59, will join Nanometrics from Imago Scientific Instruments, where he has served as president, CEO and a director since June 2003. During his tenure, Dr. Stultz transitioned Imago from a development stage company into a world-class commercial supplier of its proprietary 3-D atom probe technology. Prior to Imago, Dr. Stultz served as president and chief executive officer for ThauMDx, a leading developer of diagnostic systems and technologies for the analysis of biomolecules, drugs and chemicals. From 1994 to 1999, Dr. Stultz served as a vice president and general manager with Veeco Instruments, during which time he led the growth of Veecos metrology business. Dr. Stultz also was the founder and CEO of Peak Systems, Inc., a pioneer in the rapid thermal processing segment of the semiconductor capital equipment industry.
Tim brings to Nanometrics a wealth of experience in building growth companies within the semiconductor capital equipment industry, and in the metrology sector in particular, commented Mr. Rhine. We are thrilled that Tim has decided to join the Nanometrics team and lead the company into its next phase of growth. Tim understands how to implement business processes to focus on profitability, cash flow and predictability.
Mr. Rhine, who has served as a member of Nanometrics Board of Directors since July 2006, assumed the CEO role in March of 2007. A significant stockholder of the company, Mr. Rhine brings twenty-three years of experience in the semiconductor equipment industry to his role as chairman of the Board of Directors.
Bruce has provided strong leadership for Nanometrics in the last several months, turning the company in the right direction, added founder Vincent J. Coates. I couldnt be more pleased with the work Bruce has done and the selection of Tim Stultz as our new CEO. Bruce has guided Nanometrics through some of the most challenging tasks we have faced as a company, turning around a troubled business integration and finding the right CEO to lead Nanometrics into the future. I look forward to working with Tim as CEO, and continuing working closely with Bruce as he assumes the role of chairman.
I am honored and excited to have the opportunity to lead one of the industrys most respected and innovative metrology companies, said Dr. Stultz. Nanometrics has faced a number of challenges in integrating and consolidating its operations worldwide, but the company has the promise to become a true leader in this industry. I look forward to working with this team as we focus on growth and profitability. We have made it our collective goal to deliver value to our customers, our stockholders and our employees.
About Nanometrics
Nanometrics is a leader in the design, manufacture and marketing of high-performance process control metrology systems used in semiconductor manufacturing. Nanometrics standalone and integrated metrology systems measure various thin film properties, critical dimensions, overlay control and optical, electrical and material properties, including the structural composition of silicon and compound semiconductor devices, during various steps of the manufacturing process. These systems enable semiconductor manufacturers to improve yields, increase productivity and lower their manufacturing costs. The Company maintains its headquarters in Milpitas, California, with sales and service offices worldwide. Nanometrics is traded on NASDAQ Global Market under the symbol NANO. Nanometrics website is http://www.nanometrics.com .
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