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
Date of Report (Date of earliest event reported): April 29, 2014
LTX-Credence Corporation
(Exact Name of Registrant as Specified in its Charter)
Massachusetts | 000-10761 | 04-2594045 | ||
(State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
825 University Avenue, Norwood, MA | 02062 | |
(Address of Principal Executive Offices) | (Zip Code) |
Registrants telephone number, including area code: 781-461-1000
(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 ( see General Instruction A.2. below):
¨ | 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 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
(e)
Executive Employment Agreements
On April 29, 2014, LTX-Credence Corporation (the Company) entered into executive employment agreements (each, an Executive Employment Agreement) with each of David G. Tacelli, the Companys Chief Executive Officer, and Mark J. Gallenberger, the Companys Chief Operating Officer and Chief Financial Officer.
Mr. Tacellis Executive Employment Agreement (the Tacelli Executive Employment Agreement) provides for a base salary of $600,000 per annum, subject to adjustment from time to time in the Companys sole discretion. Mr. Gallenbergers Executive Employment Agreement (the Gallenberger Executive Employment Agreement), which superseded the retention agreement, dated as of July 20, 2008, between Mr. Gallenberger and the Company, provides for a base salary of $410,000 per annum, subject to adjustment from time to time in the Companys sole discretion. Under the terms of the Executive Employment Agreements, each of Mr. Tacelli and Mr. Gallenberger are also entitled to (i) an annual target incentive bonus, initially equal to 50% of the executives annualized base salary, subject to the terms and conditions of the Companys annual bonus plan applicable to executives, (ii) participate in any equity or other long-term compensation programs established from time to time by the Company for its executive officers, and (iii) certain benefits and expense reimbursements in accordance with Company policies.
In addition, the Executive Employment Agreements provide that, if the executives employment is terminated by the Company without cause, or if the executive terminates his employment with the Company for good reason, the executive will be entitled to the following severance benefits, subject to the executive executing and not revoking a Company provided severance and release agreement:
| during the 12-month period commencing on the termination date, the Company will continue to pay the executive, in accordance with the Companys regularly established payroll procedures and practices, the executives then-current base salary; |
| on the later of the termination date or the date that is 15 days following the end of the fiscal quarter in which the termination date occurs, the Company will pay the executive a lump sum payment in an amount equal to a pro rata portion of the executives target incentive bonus (based on the target bonus percentage in effect as of the termination date); |
| on the later of the termination date or the date that is 15 days following the end of the fiscal quarter in which the termination date occurs, the Company will pay the executive a lump sum payment in an amount equal to the executives target incentive bonus (based on the target bonus percentage in effect as of the termination date); |
| solely for purposes of satisfying time based vesting conditions for any then outstanding equity awards, as of the termination date, the executive will be deemed to have been employed by the Company until the date that is 12 months following the termination date, such that the vesting of all such equity awards scheduled to vest during such 12-month period will accelerate and become exercisable or realizable as of the termination date; and |
| provided the executive is eligible for and elects to continue receiving group medical insurance pursuant to the federal COBRA laws, and provided the executive continues to pay the share of the premium that the executive paid as of the termination date, for a period of 12 months following the executives termination date, the Company will pay the remainder of the insurance premium for the executives coverage. |
In the event the executive become entitled to severance or benefits under the executives change of control agreement with the Company, the executive will no longer be entitled to the severance benefits under the terms of the executives Executive Employment Agreement.
Pursuant to the terms of the Executive Employment Agreements, each executive has also agreed to obligations with respect to confidentiality, ownership of intellectual property, non-competition and non-solicitation.
The foregoing description of the Executive Employment Agreements does not purport to be complete and is qualified in its entirety by reference to the Tacelli Executive Employment Agreement, which is filed as Exhibit 10.1 hereto and hereby incorporated by reference, and the Gallenberger Executive Employment Agreement, which is filed as Exhibit 10.2 hereto and hereby incorporated by reference.
Addendum to Employment Agreement
On April 29, 2014, the Company also entered into an addendum (the Addendum) to the employment agreement, dated December 19, 2011 (the Ronde Employment Agreement), between the Company and Pascal Ronde, the Companys Senior Vice President, Sale and Global Customer Team. The Addendum, among other things, provides that in the event Mr. Ronde is terminated by the Company, except in the case of gross or wilful misconduct, Mr. Ronde shall be entitled to receive the following, subject to Mr. Ronde executing and not revoking a Company provided settlement agreement:
| a termination indemnity equal to one year of Mr. Rondes gross base salary, inclusive of any amount of dismissal or retirement indemnity that Mr. Ronde may otherwise be entitled to under any applicable collective bargaining agreement; |
| a pro rata portion of Mr. Rondes target annual incentive bonus (based on the target bonus percentage in effect as of the termination date); and |
| an amount equal to Mr. Rondes target annual incentive bonus (based on the target bonus percentage in effect as of the termination date). |
Except as modified by the Addendum, the Ronde Employment Agreement remains in full force and effect.
The foregoing description of the Addendum does not purport to be complete and is qualified in its entirety by reference to Addendum, which is filed as Exhibit 10.3 hereto and hereby incorporated by reference, and the Ronde Employment Agreement, which is filed as Exhibit 10.4 hereto and hereby incorporated by reference.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
See Exhibit Index attached hereto.
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.
LTX-CREDENCE CORPORATION | ||||||
Date: May 2, 2014 | By: |
/s/ Mark J. Gallenberger |
||||
Mark J. Gallenberger Senior Vice President, Chief Operating Officer and Chief Financial Officer |
EXHIBIT INDEX
Exhibit
|
Description |
|
10.1 | Executive Employment Agreement, dated April 29, 2014, between the Company and David G. Tacelli | |
10.2 | Executive Employment Agreement, dated April 29, 2014, between the Company and Mark J. Gallenberger | |
10.3 | Addendum to Employment Agreement, dated April 29, 2014, between the Company and Pascal Ronde | |
10.4 | Employment Agreement, dated December 19, 2011, between the Company and Pascal Ronde |
Exhibit 10.1
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (this Agreement) is made and entered into by and between LTX-Credence corporation (LTXC or Company), and David G. Tacelli (Employee), effective as of April 29, 2014 (the Effective Date).
RECITALS:
WHEREAS, Employee is currently employed by Company, and the Board of Directors of Company (the Board of Directors) has determined that it is in the best interests of LTXC and its shareholders to ensure that LTXC will have the continued dedication of Employee, and, in order to accomplish this objective, the Board of Directors has caused Company to enter into this Agreement; and
WHEREAS, effective as of the Effective Date, Company desires to continue to employ Employee pursuant to the terms of this Agreement; and Employee desires to be employed pursuant to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual covenants and obligations hereinafter set forth, Company and Employee hereby agree as follows:
1. Employment Term. The term of this Agreement (the Term) will commence on the Effective Date and continue until terminated by either party in accordance with this Agreement.
2. Titles and Duties.
2.1 Employee shall initially serve Company as its chief executive officer, and will report to the Companys Board of Directors or any authorized committee(s) thereof. Company shall be entitled to change Employees title and reporting structure as needed to accommodate Companys needs. Employee shall devote his entire professional work time, efforts, and loyalties to Companys business and shall not continue nor undertake self-employment, nor employment for any other employer, (to include, but not limited to, serving as a consultant), or serve as an officer, agent or director of any corporation, partnership or other entity other than Company or other than a civic, charitable or other public service organization, except as Company may, in its discretion, approve in advance in writing. Employee further agrees to participate in no other activities during his employment that may conflict with the best interests of Company.
2.2 Employee agrees to follow such policies and procedures as Company may impose from time to time including, without limitation, LTXCs Business Conduct Policy, a current copy of which is available to Employee via Companys intranet.
2.3 In addition to the duties set forth in this Agreement, Employee agrees to perform such other duties as Company, acting through the Board of Directors, may reasonably require.
2.4 Employees primary work location shall be Norwood, Massachusetts. Reasonable travel may be required in the conduct of Employees duties.
Page 1
3. Compensation .
3.1 Base Compensation . During the Term of this Agreement, Employee will receive a monthly base salary in the gross amount of $50,000 (equivalent to $600,000 per annum) (Base Compensation). Employees Base Compensation will be paid in installments in accordance with Companys standard payroll practices and subject to all applicable payroll deductions and other withholdings. Employees Base Compensation may be adjusted from time to time and in the sole discretion of Company.
3.2 Annual Bonus . For each fiscal year after the Effective Date, Employee will be eligible to receive an annual bonus (Annual Bonus) pursuant to Companys annual cash incentive plan applicable to executives (or any successor thereto) (the Annual Bonus Plan), as approved and updated each year by the Compensation Committee of the Board of Directors (the Compensation Committee). Employees target Annual Bonus under the Annual Bonus Plan shall be determined by the Compensation Committee and shall be commensurate with the target annual bonus opportunity available to other similarly situated executives of Company generally (the Target Annual Bonus). Employees Target Annual Bonus initially shall be 50% of Employees annualized Base Compensation. The actual amount of Employees Annual Bonus shall be determined by the Compensation Committee. The payment of any such Annual Bonus shall be subject to all the terms and conditions of the applicable Annual Bonus Plan. Except as set forth in Sections 7.2(b) and (c), Employee must be an active employee of Company in good standing, as determined by LTXC in its sole discretion, on the date the Annual Bonus is distributed in order to be eligible for and to earn any Annual Bonus, as the Annual Bonus also serves as an incentive to remain employed by Company. Any Annual Bonus earned will be paid in accordance with LTXCs customary timing and payroll practices for such payments.
3.3 Long-Term Compensation . For each fiscal year after the Effective Date, Employee shall be eligible to participate in any equity and/or other long-term compensation programs established by Company from time to time for executive officers. Employees target annual equity award opportunity shall be determined by the Compensation Committee.
4. Benefits . Employee may participate in all benefit programs that Company establishes and makes available to its employees, provided that Employee is eligible under (and subject to all provisions of) the plan documents governing those programs. Benefits are subject to change at any time in Companys sole discretion.
5. Reimbursement of Business Expenses . Company will reimburse Employee for all reasonable business expenses, conditioned upon Employees submission of written documentation in support of claimed reimbursement of such expenses, and consistent with Exhibit A to this Agreement and Companys expense reimbursement policies in effect from time to time.
6. Paid Time Off . Employee shall be entitled to paid time off each calendar year consistent with Companys vacation and other paid time off policies in effect from time to time. Employee shall also be entitled to the same standard paid holidays given by Company to employees generally.
Page 2
7. Termination of Employment and Severance Benefits.
7.1 Employees employment with Company is at will, meaning that either party can terminate Employees employment at any time and for any reason or for no reason.
7.2 Without modifying the at-will nature of Employees employment with Company, if Employees employment is terminated by Company without Cause, or if Employee resigns his employment with Company for Good Reason (with Cause, and Good Reason having the meanings assigned to them below), Employee will be entitled to receive the following severance benefits, subject to Employees proper execution of and failure to timely revoke a severance and release agreement in the form provided by Company (the Release Agreement) and in accordance with Exhibit A to this Agreement:
(a) commencing on the Payment Date (as defined below) and continuing for a period of twelve (12) months thereafter, Company shall continue to pay Employee, in accordance with its regularly established payroll procedures and practices, Employees then-current Base Compensation, even though Employee will no longer be employed by Company during that time;
(b) on the later of the Payment Date and the 15 th day following the end of the fiscal quarter in which Employees employment terminates, Company will pay Employee in a lump sum a pro rata portion of Employees Target Annual Bonus in an amount as follows: Employees Target Annual Bonus times a fraction, the numerator of which is the number of calendar days Employee was an employee during the relevant fiscal year, and the denominator of which is 365;
(c) on the later of the Payment Date and the 15 th day following the end of the fiscal quarter in which Employees employment terminates, Company will pay Employee in a lump sum an amount equal to Employees Target Annual Bonus;
(d) Solely for the purpose of satisfying time based vesting conditions for then outstanding equity awards, Employee will be deemed to have been employed by the Company until the date that is twelve (12) months following the date of Employees termination, such that the vesting of all equity awards scheduled to vest during such time period will accelerate and become exercisable or realizable as of the Payment Date; and
(e) provided Employee is eligible for and elects to continue receiving group medical insurance pursuant to the federal COBRA law, 29 U.S.C. § 1161 et. seq., and provided Employee continues to pay the share of the premium for such coverage that Employee paid as of his termination date, for a period of 12 months following Employees termination date (unless Employee ceases being eligible, such as through becoming covered by another employer), Company will pay the remainder of the insurance premium for Employees coverage (and Employee will be able to continue coverage for a longer period, if eligible, at Employees full expense).
No severance benefits under clauses (a), (b), (c), or (d) of this Section 7.2 shall be paid under this Agreement unless Employee first executes and does not revoke the Release Agreement within 60 days following the date of termination, which provides for a release of any and all claims that Employee has or might have against Company and the other parties specified therein. The severance benefits shall be paid or commence on the first payroll period following the date the
Page 3
Release Agreement becomes effective (the Payment Date). Notwithstanding the foregoing, if the 60 th day following the date of termination occurs in the calendar year following the calendar year of the termination, then the Payment Date shall be no earlier than January 1 of such subsequent calendar year.
7.3 For purposes of this Agreement, the following terms will have the following definitions:
(a) Cause shall mean a finding by the Board of Directors that Employee:
(i) failed to perform assigned duties diligently or effectively or was negligent in the performance of such duties;
(ii) breached this Agreement or any other agreement or material company policy applicable to Employee;
(iii) engaged in misconduct, fraud, or embezzlement;
(iv) engaged in any conduct that is harmful to the business, interests or reputation of LTXC or any of its affiliates or subsidiaries; or
(v) was convicted of, or pleaded guilty or nolo contendere to, any misdemeanor related to Employees employment, or to a felony.
(b) Good Reason shall mean any of the following, provided that Employee must provide written notice to Company within 90 days following the occurrence of the event that Employee believes gives rise to Good Reason, with 30 days for Company to cure the event and, if not then cured, Employee must actually terminate his employment for such reason within 30 days after Companys deadline for curing the event has passed:
(i) A material diminution in Employees Base Compensation unless such diminution was applied consistently to other similarly situated employees; or
(ii) A change in the primary work location of Employee of more than one hundred (100) miles from the current location as a condition of your continuing employment.
7.4 This Agreement shall terminate automatically upon Employees death or Disability, with Disability meaning any medically determinable physical or mental impairment that has lasted or can be expected to last for a continuous period of not less than 12 months that renders Employee unable to perform his duties pursuant to this Agreement with reasonable accommodation. Upon a termination for death or Disability, Employee or Employees survivors shall be entitled to receive the benefits described in Sections 7.2(b), (c), and (e), but none of the other benefits payable pursuant to that section.
7.5 To the extent Employee becomes entitled to severance or benefits under the Change-of-Control Agreement (as defined in Section 14 of this Agreement) if a Change of Control (as defined in the Change-of-Control Agreement) occurs, Employee shall not be entitled to any severance or benefits under this Agreement. Solely for purposes of Section 6(a) of the
Page 4
Change-of-Control Agreement, if the applicable Change of Control constitutes a change in control event within the meaning of Treasury Regulation Section 1.409A-3(i)(5)(i), any compensation or benefits due to Employee under Section 6(a) of the Change-of-Control Agreement shall be paid in accordance with the terms of the Change-of-Control Agreement as then in effect; and if the applicable Change of Control does not constitute such a change in control event, any compensation or benefits due to Employee under Section 6(a) of the Change-of-Control Agreement shall be paid to Employee in equal monthly installments commencing on the Payment Date and continuing for a period of 24 months thereafter in accordance with Companys regularly established payroll procedures and practices, notwithstanding the terms of the Change-of-Control Agreement as then in effect.
8. Confidentiality .
8.1 Employee acknowledges that by association with LTXC and its direct and indirect subsidiaries and affiliates, Employee will have access to LTXCs confidential and proprietary information and trade secrets. Employee acknowledges that LTXCs business and future success depends on preservation of its trade secrets and other confidential, proprietary information. The trade secrets and confidential proprietary information include, but are not limited to, the following: customer lists, relationships with and names of customers, contracts with customers, market surveys and plans, business development plans, marketing strategies, products, processes, services, source codes, suppliers and related matters, and also includes information relating to research, development, inventions, manufacturing, purchasing, accounting, engineering, and potential patents and/or copyrights (hereinafter referred to as Confidential Information). For the duration of his employment and indefinitely thereafter, Employee agrees to keep such information confidential, and to use it only to benefit LTXCs business and not to communicate the same, directly or indirectly, or use LTXCs Confidential Information or trade secrets to the benefit of any person, firm, corporation or any entity other than LTXC and its direct or indirect subsidiaries and affiliates.
8.2 Employee agrees that Employee shall not disclose to, or use except in the performance of Employees duties under this Agreement, any proprietary, trade secret or Confidential Information that belongs to any other party or Company. Employee will not disclose any Confidential Information to any person or entity other than employees of Company or use the same for any purposes (other than in the performance of his duties as an employee of Company) without written approval by an officer of Company, either during or after his employment with Company, unless and until such Confidential Information has become public knowledge without fault by Employee.
8.3 Upon termination of this Agreement, regardless of how termination is effected, or whenever requested by Company, Employee shall immediately return to Company all of Companys property, including, but not limited to, all documents, records, notebooks, and similar repositories containing information provided to or developed by Employee during the term of his employment under the terms of this Agreement, including copies thereof, then in Employees possession or work area, whether prepared by Employee or others.
9. Ownership of Employees Ideas, Inventions, Developments or Improvements . All ideas, inventions, and other developments or improvements conceived of or reduced to practice by Employee, alone or with others, during the term of this Agreement, whether or not during working hours, that are within the scope of Companys business operations or that relate to any of Companys work or projects, shall be the exclusive property of Company. Employee agrees
Page 5
to assist Company, at Companys expense, to obtain patents and/or copyrights on any such ideas, inventions, developments or improvements and agrees to execute all documents necessary to obtain such patents or copyrights in the name of Company. Further, all right, title and interest of every kind or nature, whether now known or unknown, in and to any intellectual property, including, but not limited to, any inventions, patents, trademarks, service marks, copyrights, ideas, creations, and properties invented, created, written, developed, furnished, produced or disclosed to Employee, in the course of rendering services to Company under and pursuant to this Agreement shall be and remain the sole and exclusive property of Company for any and all purposes and uses, and Employee shall have no right, title or interest of any kind or nature in or to such property, or in or to any results and/or proceeds from such property.
10. Solicitation . Employee agrees that, in addition to any other limitation, during Employees employment and for a period of twelve (12) months after the termination of this Agreement, Employee will not, on behalf of himself or on behalf of any other person, firm, corporation, or other entity directly or indirectly solicit, induce or influence any person, firm or entity which has a business relationship with Company or any of its subsidiaries, to discontinue or reduce or modify the extent of such relationship with Company or any of its subsidiaries.
11. Noncompetition . Employee acknowledges that, in the course of Employees employment with Company and its affiliates (including its predecessor and any successor entities), Employee has become familiar, or will become familiar, with Companys and its affiliates trade secrets and with other confidential information, knowledge or data concerning Company, its affiliates and its predecessors, and that Employees services have been and will be of special, unique and extraordinary value to Company and its affiliates. Therefore, Employee agrees that, while employed and for a period of twelve (12) months following his termination of employment with LTXC for any reason (the Noncompetition Period), Employee shall not, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, director consultant, independent contractor or otherwise, and whether or not for compensation) or render services in any capacity to a Competing Business (as defined below), in any country in which Company or any of its affiliates conducts business. For purposes of this Agreement, a Competing Business shall mean any person, firm, corporation or other entity, in whatever form, engaged in any business in which Company or any of its affiliates engage, including the design, manufacture, sale, and/or servicing of automatic test equipment. Nothing herein shall prohibit Employee from being a passive owner of not more than 1% of the outstanding equity interest in any entity which is publicly traded, so long as Employee has no active participation in the business of such entity. Each of Employee and Company intends that this non-competition provision shall be deemed to be a series of separate covenants, one for each and every county of each and every state of the United States of America and for each and every jurisdiction within any other country where this provision is intended to be effective.
12. Certain Remedies.
12.1 The harm to Company from any breach of Employees obligations under or related to this Agreement may be difficult to determine and may be wholly or partially irreparable. Thus, Company may enforce such obligations by seeking an injunction in addition to seeking other appropriate relief. In addition to any other remedies provided herein, if any bond from Company is required in connection with such enforcement, the parties agree that a reasonable value of such bond shall be $5,000.
Page 6
12.2 Employee acknowledges that the restrictive covenants contained in this Agreement are reasonable in relation to his position and the nature of Companys business and that compliance with such covenants after his employment ends will not prevent him from pursuing his livelihood. Nevertheless, should any court or arbitrator find that any provision of these covenants is unreasonable in any respect, the parties agree that the covenants shall be interpreted, limited, and enforced to the maximum extent which the court or arbitrator deems legally enforceable.
13. Notices . Unless otherwise provided herein, any notice, request, certificate, or instrument required or permitted under this Agreement shall be in writing and shall be deemed given upon personal delivery to the party to be notified, one business day after deposit with an overnight courier, prepaid, or three business days after deposit thereof in the mail, by registered or certified mail, addressed to the party to receive notice at the address set forth above, postage prepaid. Either party may change its address by written notice to the other party.
If to Employee: | David G. Tacelli | |
[Address] | ||
[Address] | ||
If to Company: | LTX-Credence Company | |
825 University Avenue | ||
Norwood, MA 02062-2645 | ||
Attn: Chief Financial Officer | ||
with a copy to: | ||
LTX-Credence Company | ||
825 University Avenue | ||
Norwood, MA 02062-2645 | ||
Attn: General Counsel |
14. Entire Agreement . This Agreement constitutes the entire agreement between the parties and contains all the agreements between them with respect to the employment relationship between Company and Employee. It also supersedes any and all other agreements or contracts, either oral or written, between the parties with respect to the subject matter hereof, other than the March 2, 1998 Change-of-Control Employment Agreement, as modified by the June 20, 2008 Waiver Letter and as amended on October 8, 2008 (the Change-of-Control Agreement), which remains in full force and effect, except as specifically modified by Section 7 of this Agreement.
15. Modification . Except as otherwise specifically provided, the terms and conditions of this Agreement may be amended at any time by mutual agreement of the parties; provided, however, that before any amendment shall be valid or effective, it shall have been reduced to writing and signed by Employee and an authorized representative of Company.
16. Attorney Fees . If any suit or action is instituted to interpret or enforce the provisions of this Agreement, to rescind this Agreement, or otherwise with respect to the subject matter of this Agreement, the party prevailing on an issue will be entitled to recover with respect to such issue,
Page 7
in addition to costs, reasonable attorney fees incurred in the preparation, prosecution, or defense of such arbitration, suit, or action as determined by the arbitrator or trial court and, if any appeal is taken from such decision, reasonable attorney fees as determined on appeal.
17. No Waiver. The failure of any party hereto to exercise any right, power, or remedy provided under this Agreement or otherwise available in respect hereof at law or in equity, or to insist upon compliance by any other party hereto with its obligations, shall not be a waiver by such party of its right to exercise any such or other right, power, or remedy or to demand compliance.
18. Severability . In the event that any section or provision of this Agreement shall be held to be illegal or unenforceable, such section or provision shall be severed from this Agreement and the entire Agreement shall not fail as a result, but shall otherwise remain in full force and effect.
19. Binding Effect; Assignment . This Agreement shall inure to the benefit, and shall be binding upon, the parties hereto and their respective successors, assigns, heirs, and legal representatives, including any entity with which Company may merge or consolidate. In that this Agreement is a personal services contract, it shall not be assigned by Employee. This Agreement shall be assignable, without the consent of Employee, by Company only to an acquirer of all or substantially all of the assets of Company.
20. Applicable Law . This Agreement shall be construed and enforced under and in accordance with the laws of the state and nation of Employees primary work location.
21. Section 409A . It is the intention of the parties to this Agreement that the terms of this Agreement comply with, or be exempt from, Section 409A of the Code and the guidance issued thereunder (Section 409A) and that no payment or entitlement pursuant to this Agreement will give rise to any adverse tax consequences to Employee or Company with regard to Section 409A. This Agreement shall be interpreted, construed and administered to that end and consistent with that objective.
22. Counterparts . This Agreement may be signed in two counterparts, each of which shall be deemed an original and both of which shall together constitute one agreement.
23. Acknowledgement . EMPLOYEE REPRESENTS AND AGREES THAT HE HAS HAD AN OPPORTUNITY TO FULLY DISCUSS AND REVIEW THE TERMS OF THIS AGREEMENT WITH AN ATTORNEY AND IS NOT RELYING ON ANY REPRESENTATION, PROMISE, OR INDUCEMENT MADE BY COMPANY THAT IS NOT EXPRESSLY SET FORTH IN THIS AGREEMENT. EMPLOYEE FURTHER REPRESENTS AND AGREES THAT HE HAS CAREFULLY READ THIS AGREEMENT, UNDERSTANDS THE CONTENTS OF THIS AGREEMENT, FREELY AND VOLUNTARILY ASSENTS TO ALL OF THE TERMS AND CONDITIONS AND THIS AGREEMENT, AND EXECUTES THIS AGREEMENT OF HIS OWN FREE ACT AND WILL.
[signature page follows]
Page 8
IN WITNESS WHEREOF, Company has caused this Agreement to be signed by its duly authorized representative, and Employee has hereunder set his name as of the date of this Agreement.
COMPANY | EMPLOYEE | |||||
/s/ Mark Gallenberger |
/s/ David G. Tacelli 4/29/14 |
|||||
By: | Mark Gallenberger | David G. Tacelli | ||||
Title: | SVP, COO and CFO |
Page 9
Exhibit A
Payments Subject to Section 409A
1. Subject to this Exhibit A, any severance benefits that may be due under the Agreement shall begin only upon the date of Employees separation from service (determined as set forth below) which occurs on or after the termination of Employees employment. The following rules shall apply with respect to distribution of the severance benefits, if any, to be provided to Employee under the Agreement, as applicable:
(a) It is intended that each installment of the severance benefits due under the Agreement shall be treated as a separate payment for purposes of Section 409A. Neither Company nor Employee shall have the right to accelerate or defer the delivery of any such payments except to the extent specifically permitted or required by Section 409A.
(b) If, as of the date of Employees separation from service from Company, Employee is not a specified employee (within the meaning of Section 409A), then each installment of the severance benefits shall be made on the dates and terms set forth in the Agreement.
(c) If, as of the date of Employees separation from service from Company, Employee is a specified employee (within the meaning of Section 409A), then:
(i) Each installment of the severance benefits due under the Agreement that, in accordance with the dates and terms set forth herein, will in all circumstances, regardless of when Employees separation from service occurs, be paid within the short-term deferral period (as defined under Section 409A) shall be treated as a short-term deferral within the meaning of Treasury Regulation Section 1.409A-1(b)(4) to the maximum extent permissible under Section 409A and shall be paid on the dates and terms set forth in the Agreement; and
(ii) Each installment of the severance benefits due under the Agreement that is not described in this Exhibit A, Section 1(c)(i) and that would, absent this subsection, be paid within the six-month period following Employees separation from service from Company shall not be paid until the date that is six months and one day after such separation from service (or, if earlier, Employees death), with any such installments that are required to be delayed being accumulated during the six-month period and paid in a lump sum on the date that is six months and one day following Employees separation from service and any subsequent installments, if any, being paid in accordance with the dates and terms set forth herein; provided, however, that the preceding provisions of this sentence shall not apply to any installment of payments if and to the maximum extent that that such installment is deemed to be paid under a separation pay plan that does not provide for a deferral of compensation by reason of the application of Treasury Regulation 1.409A-1(b)(9)(iii) (relating to separation pay upon an involuntary separation from service). Any installments that qualify for the exception under Treasury Regulation Section 1.409A-1(b)(9)(iii) must be paid no later than the last day of Employees second taxable year following the taxable year in which the separation from service occurs.
Exhibit A - Page 1
2. The determination of whether and when Employees separation from service from Company has occurred shall be made and in a manner consistent with, and based on the presumptions set forth in, Treasury Regulation Section 1.409A-1(h). Solely for purposes of this Exhibit A, Section 2, Company shall include all persons with whom Company would be considered a single employer under Section 414(b) and 414(c) of the Code.
3. All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A to the extent that such reimbursements or in-kind benefits are subject to Section 409A, including, where applicable, the requirements that (i) any reimbursement is for expenses incurred during Employees lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement in any other calendar year, (iii) the reimbursement of an eligible expense will be made on or before the last day of the calendar year following the year in which the expense is incurred and (iv) the right to reimbursement is not subject to set off or liquidation or exchange for any other benefit.
4. Company makes no representation or warranty and shall have no liability to Employee or to any other person if any of the provisions of the Agreement (including this Exhibit) are determined to constitute deferred compensation subject to Section 409A but that do not satisfy an exemption from, or the conditions of, that section.
Exhibit A - Page 2
Exhibit 10.2
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (this Agreement) is made and entered into by and between LTX-Credence corporation (LTXC or Company), and Mark J. Gallenberger (Employee), effective as of April 29, 2014 (the Effective Date).
RECITALS:
WHEREAS, Employee is currently employed by Company, and the Board of Directors of Company (the Board of Directors) has determined that it is in the best interests of LTXC and its shareholders to ensure that LTXC will have the continued dedication of Employee, and, in order to accomplish this objective, the Board of Directors has caused Company to enter into this Agreement; and
WHEREAS, effective as of the Effective Date, Company desires to continue to employ Employee pursuant to the terms of this Agreement; and Employee desires to be employed pursuant to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual covenants and obligations hereinafter set forth, Company and Employee hereby agree as follows:
1. Employment Term. The term of this Agreement (the Term) will commence on the Effective Date and continue until terminated by either party in accordance with this Agreement.
2. Titles and Duties.
2.1 Employee shall initially serve the Company as its chief operating officer and chief financial officer, and will report to LTXCs chief executive officer (the CEO). Company shall be entitled to change Employees title and reporting structure as needed to accommodate Companys needs. Except for any preexisting roles as a director for any corporation other than the Company as of the Effective Date, Employee shall devote his entire professional work time, efforts, and loyalties to Companys business and shall not continue nor undertake self-employment, nor employment for any other employer, (to include, but not limited to, serving as a consultant), or serve as an officer, agent or director of any corporation, partnership or other entity other than Company or other than a civic, charitable or other public service organization, except as Company may, in its discretion, approve in advance in writing. Employee further agrees to participate in no other activities during his employment that may conflict with the best interests of Company.
2.2 Employee agrees to follow such policies and procedures as Company may impose from time to time including, without limitation, LTXCs Business Conduct Policy, a current copy of which is available to Employee via Companys intranet.
2.3 In addition to the duties set forth in this Agreement, Employee agrees to perform such other duties as Company, acting through the CEO or Board of Directors, may reasonably require.
2.4 Employees primary work location shall be Norwood, Massachusetts. Reasonable travel may be required in the conduct of Employees duties.
Page 1
3. Compensation .
3.1 Base Compensation . During the Term of this Agreement, Employee will receive a monthly base salary in the gross amount of $34,166.67 (equivalent to $410,000 per annum) (Base Compensation). Employees Base Compensation will be paid in installments in accordance with Companys standard payroll practices and subject to all applicable payroll deductions and other withholdings. Employees Base Compensation may be adjusted from time to time and in the sole discretion of Company.
3.2 Annual Bonus . For each fiscal year after the Effective Date, Employee will be eligible to receive an annual bonus (Annual Bonus) pursuant to Companys annual cash incentive plan applicable to executives (or any successor thereto) (the Annual Bonus Plan), as approved and updated each year by the Compensation Committee of the Board of Directors (the Compensation Committee). Employees target Annual Bonus under the Annual Bonus Plan shall be determined by the Compensation Committee and shall be commensurate with the target annual bonus opportunity available to other similarly situated executives of Company generally (the Target Annual Bonus). Employees Target Annual Bonus initially shall be 50% of Employees annualized Base Compensation. The actual amount of Employees Annual Bonus shall be determined by the Compensation Committee. The payment of any such Annual Bonus shall be subject to all the terms and conditions of the applicable Annual Bonus Plan. Except as set forth in Sections 7.2(b) and (c), Employee must be an active employee of Company in good standing, as determined by LTXC in its sole discretion, on the date the Annual Bonus is distributed in order to be eligible for and to earn any Annual Bonus, as the Annual Bonus also serves as an incentive to remain employed by Company. Any Annual Bonus earned will be paid in accordance with LTXCs customary timing and payroll practices for such payments.
3.3 Long-Term Compensation . For each fiscal year after the Effective Date, Employee shall be eligible to participate in any equity and/or other long-term compensation programs established by Company from time to time for executive officers. Employees target annual equity award opportunity shall be determined by the Compensation Committee.
4. Benefits . Employee may participate in all benefit programs that Company establishes and makes available to its employees, provided that Employee is eligible under (and subject to all provisions of) the plan documents governing those programs. Benefits are subject to change at any time in Companys sole discretion.
5. Reimbursement of Business Expenses . Company will reimburse Employee for all reasonable business expenses, conditioned upon Employees submission of written documentation in support of claimed reimbursement of such expenses, and consistent with Exhibit A to this Agreement and Companys expense reimbursement policies in effect from time to time.
6. Paid Time Off . Employee shall be entitled to paid time off each calendar year consistent with Companys vacation and other paid time off policies in effect from time to time. Employee shall also be entitled to the same standard paid holidays given by Company to employees generally.
Page 2
7. Termination of Employment and Severance Benefits.
7.1 Employees employment with Company is at will, meaning that either party can terminate Employees employment at any time and for any reason or for no reason.
7.2 Without modifying the at-will nature of Employees employment with Company, if Employees employment is terminated by Company without Cause, or if Employee resigns his employment with Company for Good Reason (with Cause, and Good Reason having the meanings assigned to them below), Employee will be entitled to receive the following severance benefits, subject to Employees proper execution of and failure to timely revoke a severance and release agreement in the form provided by Company (the Release Agreement) and in accordance with Exhibit A to this Agreement:
(a) commencing on the Payment Date (as defined below) and continuing for a period of twelve (12) months thereafter, Company shall continue to pay Employee, in accordance with its regularly established payroll procedures and practices, Employees then-current Base Compensation, even though Employee will no longer be employed by Company during that time;
(b) on the later of the Payment Date and the 15th day following the end of the fiscal quarter in which Employees employment terminates, Company will pay Employee in a lump sum a pro rata portion of Employees Target Annual Bonus in an amount as follows: Employees Target Annual Bonus times a fraction, the numerator of which is the number of calendar days Employee was an employee during the relevant fiscal year, and the denominator of which is 365;
(c) on the later of the Payment Date and the 15 th day following the end of the fiscal quarter in which Employees employment terminates, Company will pay Employee in a lump sum an amount equal to Employees Target Annual Bonus;
(d) Solely for the purpose of satisfying time based vesting conditions for then outstanding equity awards, Employee will be deemed to have been employed by the Company until the date that is twelve (12) months following the date of Employees termination, such that the vesting of all equity awards scheduled to vest during such time period will accelerate and become exercisable or realizable as of the Payment Date; and
(e) provided Employee is eligible for and elects to continue receiving group medical insurance pursuant to the federal COBRA law, 29 U.S.C. § 1161 et. seq., and provided Employee continues to pay the share of the premium for such coverage that Employee paid as of his termination date, for a period of 12 months following Employees termination date (unless Employee ceases being eligible, such as through becoming covered by another employer), Company will pay the remainder of the insurance premium for Employees coverage (and Employee will be able to continue coverage for a longer period, if eligible, at Employees full expense).
No severance benefits under clauses (a), (b), (c) , or (d) of this Section 7.2 shall be paid under this Agreement unless Employee first executes and does not revoke the Release Agreement within 60 days following the date of termination, which provides for a release of any and all claims that Employee has or might have against Company and the other parties specified therein. The severance benefits shall be paid or commence on the first payroll period following
Page 3
the date the Release Agreement becomes effective (the Payment Date). Notwithstanding the foregoing, if the 60 th day following the date of termination occurs in the calendar year following the calendar year of the termination, then the Payment Date shall be no earlier than January 1 of such subsequent calendar year.
7.3 For purposes of this Agreement, the following terms will have the following definitions:
(a) Cause shall mean a finding by the CEO or the Board of Directors that Employee:
(i) failed to perform assigned duties diligently or effectively or was negligent in the performance of such duties;
(ii) breached this Agreement or any other agreement or material company policy applicable to Employee;
(iii) engaged in misconduct, fraud, or embezzlement;
(iv) engaged in any conduct that is harmful to the business, interests or reputation of LTXC or any of its affiliates or subsidiaries; or
(v) was convicted of, or pleaded guilty or nolo contendere to, any misdemeanor related to Employees employment, or to a felony.
(b) Good Reason shall mean any of the following, provided that Employee must provide written notice to Company within 90 days following the occurrence of the event that Employee believes gives rise to Good Reason, with 30 days for Company to cure the event and, if not then cured, Employee must actually terminate his employment for such reason within 30 days after Companys deadline for curing the event has passed:
(i) A material diminution in Employees Base Compensation unless such diminution was applied consistently to other similarly situated employees; or
(ii) A change in the primary work location of Employee of more than one hundred (100) miles from the current location as a condition of your continuing employment.
7.4 This Agreement shall terminate automatically upon Employees death or Disability, with Disability meaning any medically determinable physical or mental impairment that has lasted or can be expected to last for a continuous period of not less than 12 months that renders Employee unable to perform his duties pursuant to this Agreement with reasonable accommodation. Upon a termination for death or Disability, Employee or Employees survivors shall be entitled to receive the benefits described in Sections 7.2(b), (c), and (e), but none of the other benefits payable pursuant to that section.
7.5 To the extent Employee becomes entitled to severance or benefits under the Change-of-Control Agreement (as defined in Section 14 of this Agreement) if a Change of Control (as defined in the Change-of-Control Agreement) occurs, Employee shall not be entitled
Page 4
to any severance or benefits under this Agreement. Solely for purposes of Section 6(a) of the Change-of-Control Agreement, if the applicable Change of Control constitutes a change in control event within the meaning of Treasury Regulation Section 1.409A-3(i)(5)(i), any compensation or benefits due to Employee under Section 6(a) of the Change-of-Control Agreement shall be paid in accordance with the terms of the Change-of-Control Agreement as then in effect; and if the applicable Change of Control does not constitute such a change in control event, any compensation or benefits due to Employee under Section 6(a) of the Change-of-Control Agreement shall be paid to Employee in equal monthly installments commencing on the Payment Date and continuing for a period of 24 months thereafter in accordance with Companys regularly established payroll procedures and practices, notwithstanding the terms of the Change-of-Control Agreement as then in effect.
8. Confidentiality .
8.1 Employee acknowledges that by association with LTXC and its direct and indirect subsidiaries and affiliates, Employee will have access to LTXCs confidential and proprietary information and trade secrets. Employee acknowledges that LTXCs business and future success depends on preservation of its trade secrets and other confidential, proprietary information. The trade secrets and confidential proprietary information include, but are not limited to, the following: customer lists, relationships with and names of customers, contracts with customers, market surveys and plans, business development plans, marketing strategies, products, processes, services, source codes, suppliers and related matters, and also includes information relating to research, development, inventions, manufacturing, purchasing, accounting, engineering, and potential patents and/or copyrights (hereinafter referred to as Confidential Information). For the duration of his employment and indefinitely thereafter, Employee agrees to keep such information confidential, and to use it only to benefit LTXCs business and not to communicate the same, directly or indirectly, or use LTXCs Confidential Information or trade secrets to the benefit of any person, firm, corporation or any entity other than LTXC and its direct or indirect subsidiaries and affiliates.
8.2 Employee agrees that Employee shall not disclose to, or use except in the performance of Employees duties under this Agreement, any proprietary, trade secret or Confidential Information that belongs to any other party or Company. Employee will not disclose any Confidential Information to any person or entity other than employees of Company or use the same for any purposes (other than in the performance of his duties as an employee of Company) without written approval by an officer of Company, either during or after his employment with Company, unless and until such Confidential Information has become public knowledge without fault by Employee.
8.3 Upon termination of this Agreement, regardless of how termination is effected, or whenever requested by Company, Employee shall immediately return to Company all of Companys property, including, but not limited to, all documents, records, notebooks, and similar repositories containing information provided to or developed by Employee during the term of his employment under the terms of this Agreement, including copies thereof, then in Employees possession or work area, whether prepared by Employee or others.
9. Ownership of Employees Ideas, Inventions, Developments or Improvements . All ideas, inventions, and other developments or improvements conceived of or reduced to practice by Employee, alone or with others, during the term of this Agreement, whether or not during working hours, that are within the scope of Companys business operations or that relate to any
Page 5
of Companys work or projects, shall be the exclusive property of Company. Employee agrees to assist Company, at Companys expense, to obtain patents and/or copyrights on any such ideas, inventions, developments or improvements and agrees to execute all documents necessary to obtain such patents or copyrights in the name of Company. Further, all right, title and interest of every kind or nature, whether now known or unknown, in and to any intellectual property, including, but not limited to, any inventions, patents, trademarks, service marks, copyrights, ideas, creations, and properties invented, created, written, developed, furnished, produced or disclosed to Employee, in the course of rendering services to Company under and pursuant to this Agreement shall be and remain the sole and exclusive property of Company for any and all purposes and uses, and Employee shall have no right, title or interest of any kind or nature in or to such property, or in or to any results and/or proceeds from such property.
10. Solicitation . Employee agrees that, in addition to any other limitation, during Employees employment and for a period of twelve (12) months after the termination of this Agreement, Employee will not, on behalf of himself or on behalf of any other person, firm, corporation, or other entity directly or indirectly solicit, induce or influence any person, firm or entity which has a business relationship with Company or any of its subsidiaries, to discontinue or reduce or modify the extent of such relationship with Company or any of its subsidiaries.
11. Noncompetition . Employee acknowledges that, in the course of Employees employment with Company and its affiliates (including its predecessor and any successor entities), Employee has become familiar, or will become familiar, with Companys and its affiliates trade secrets and with other confidential information, knowledge or data concerning Company, its affiliates and its predecessors, and that Employees services have been and will be of special, unique and extraordinary value to Company and its affiliates. Therefore, Employee agrees that, while employed and for a period of twelve (12) months following his termination of employment with LTXC for any reason (the Noncompetition Period), Employee shall not, directly or indirectly, own, manage, operate, control, be employed by (whether as an employee, director consultant, independent contractor or otherwise, and whether or not for compensation) or render services in any capacity to a Competing Business (as defined below), in any country in which Company or any of its affiliates conducts business. For purposes of this Agreement, a Competing Business shall mean any person, firm, corporation or other entity, in whatever form, engaged in any business in which Company or any of its affiliates engage, including the design, manufacture, sale, and/or servicing of automatic test equipment. Nothing herein shall prohibit Employee from being a passive owner of not more than 1% of the outstanding equity interest in any entity which is publicly traded, so long as Employee has no active participation in the business of such entity. Each of Employee and Company intends that this non-competition provision shall be deemed to be a series of separate covenants, one for each and every county of each and every state of the United States of America and for each and every jurisdiction within any other country where this provision is intended to be effective.
12. Certain Remedies.
12.1 The harm to Company from any breach of Employees obligations under or related to this Agreement may be difficult to determine and may be wholly or partially irreparable. Thus, Company may enforce such obligations by seeking an injunction in addition to seeking other appropriate relief. In addition to any other remedies provided herein, if any bond from Company is required in connection with such enforcement, the parties agree that a reasonable value of such bond shall be $5,000.
Page 6
12.2 Employee acknowledges that the restrictive covenants contained in this Agreement are reasonable in relation to his position and the nature of Companys business and that compliance with such covenants after his employment ends will not prevent him from pursuing his livelihood. Nevertheless, should any court or arbitrator find that any provision of these covenants is unreasonable in any respect, the parties agree that the covenants shall be interpreted, limited, and enforced to the maximum extent which the court or arbitrator deems legally enforceable.
13. Notices . Unless otherwise provided herein, any notice, request, certificate, or instrument required or permitted under this Agreement shall be in writing and shall be deemed given upon personal delivery to the party to be notified, one business day after deposit with an overnight courier, prepaid, or three business days after deposit thereof in the mail, by registered or certified mail, addressed to the party to receive notice at the address set forth above, postage prepaid. Either party may change its address by written notice to the other party.
If to Employee: | Mark J. Gallenberger | |
[Address] | ||
[Address] | ||
If to Company: | LTX-Credence Company | |
825 University Avenue | ||
Norwood, MA 02062-2645 | ||
Attn: Chief Executive Officer | ||
with a copy to: | ||
LTX-Credence Company | ||
825 University Avenue | ||
Norwood, MA 02062-2645 | ||
Attn: General Counsel |
14. Entire Agreement . This Agreement constitutes the entire agreement between the parties and contains all the agreements between them with respect to the employment relationship between Company and Employee. It also supersedes any and all other agreements or contracts, either oral or written, between the parties with respect to the subject matter hereof (including the Retention Agreement dated July 29, 2008), other than the October 3, 2000 Change-of-Control Employment Agreement, as modified by the June 20, 2008 Waiver Letter and as amended on October 8, 2008 (the Change-of-Control Agreement), which remains in full force and effect, except as specifically modified by Section 7 of this Agreement.
15. Modification . Except as otherwise specifically provided, the terms and conditions of this Agreement may be amended at any time by mutual agreement of the parties; provided, however, that before any amendment shall be valid or effective, it shall have been reduced to writing and signed by Employee and an authorized representative of Company.
16. Attorney Fees . If any suit or action is instituted to interpret or enforce the provisions of this Agreement, to rescind this Agreement, or otherwise with respect to the subject matter of this
Page 7
Agreement, the party prevailing on an issue will be entitled to recover with respect to such issue, in addition to costs, reasonable attorney fees incurred in the preparation, prosecution, or defense of such arbitration, suit, or action as determined by the arbitrator or trial court and, if any appeal is taken from such decision, reasonable attorney fees as determined on appeal.
17. No Waiver. The failure of any party hereto to exercise any right, power, or remedy provided under this Agreement or otherwise available in respect hereof at law or in equity, or to insist upon compliance by any other party hereto with its obligations, shall not be a waiver by such party of its right to exercise any such or other right, power, or remedy or to demand compliance.
18. Severability . In the event that any section or provision of this Agreement shall be held to be illegal or unenforceable, such section or provision shall be severed from this Agreement and the entire Agreement shall not fail as a result, but shall otherwise remain in full force and effect.
19. Binding Effect; Assignment . This Agreement shall inure to the benefit, and shall be binding upon, the parties hereto and their respective successors, assigns, heirs, and legal representatives, including any entity with which Company may merge or consolidate. In that this Agreement is a personal services contract, it shall not be assigned by Employee. This Agreement shall be assignable, without the consent of Employee, by Company only to an acquirer of all or substantially all of the assets of Company.
20. Applicable Law . This Agreement shall be construed and enforced under and in accordance with the laws of the state and nation of Employees primary work location.
21. Section 409A . It is the intention of the parties to this Agreement that the terms of this Agreement comply with, or be exempt from, Section 409A of the Code and the guidance issued thereunder (Section 409A) and that no payment or entitlement pursuant to this Agreement will give rise to any adverse tax consequences to Employee or Company with regard to Section 409A. This Agreement shall be interpreted, construed and administered to that end and consistent with that objective.
22. Counterparts . This Agreement may be signed in two counterparts, each of which shall be deemed an original and both of which shall together constitute one agreement.
23. Acknowledgement . EMPLOYEE REPRESENTS AND AGREES THAT HE HAS HAD AN OPPORTUNITY TO FULLY DISCUSS AND REVIEW THE TERMS OF THIS AGREEMENT WITH AN ATTORNEY AND IS NOT RELYING ON ANY REPRESENTATION, PROMISE, OR INDUCEMENT MADE BY COMPANY THAT IS NOT EXPRESSLY SET FORTH IN THIS AGREEMENT. EMPLOYEE FURTHER REPRESENTS AND AGREES THAT HE HAS CAREFULLY READ THIS AGREEMENT, UNDERSTANDS THE CONTENTS OF THIS AGREEMENT, FREELY AND VOLUNTARILY ASSENTS TO ALL OF THE TERMS AND CONDITIONS AND THIS AGREEMENT, AND EXECUTES THIS AGREEMENT OF HIS OWN FREE ACT AND WILL.
[signature page follows]
Page 8
IN WITNESS WHEREOF, Company has caused this Agreement to be signed by its duly authorized representative, and Employee has hereunder set his name as of the date of this Agreement.
COMPANY |
EMPLOYEE | |||||
/s/ David G. Tacelli 4/29/2014 |
/s/ Mark J. Gallenberger |
|||||
By: | David G. Tacelli | Mark J. Gallenberger | ||||
Title: | President and Chief Executive Officer |
Page 9
Exhibit A
Payments Subject to Section 409A
1. Subject to this Exhibit A, any severance benefits that may be due under the Agreement shall begin only upon the date of Employees separation from service (determined as set forth below) which occurs on or after the termination of Employees employment. The following rules shall apply with respect to distribution of the severance benefits, if any, to be provided to Employee under the Agreement, as applicable:
(a) It is intended that each installment of the severance benefits due under the Agreement shall be treated as a separate payment for purposes of Section 409A. Neither Company nor Employee shall have the right to accelerate or defer the delivery of any such payments except to the extent specifically permitted or required by Section 409A.
(b) If, as of the date of Employees separation from service from Company, Employee is not a specified employee (within the meaning of Section 409A), then each installment of the severance benefits shall be made on the dates and terms set forth in the Agreement.
(c) If, as of the date of Employees separation from service from Company, Employee is a specified employee (within the meaning of Section 409A), then:
(i) Each installment of the severance benefits due under the Agreement that, in accordance with the dates and terms set forth herein, will in all circumstances, regardless of when Employees separation from service occurs, be paid within the short-term deferral period (as defined under Section 409A) shall be treated as a short-term deferral within the meaning of Treasury Regulation Section 1.409A-1(b)(4) to the maximum extent permissible under Section 409A and shall be paid on the dates and terms set forth in the Agreement; and
(ii) Each installment of the severance benefits due under the Agreement that is not described in this Exhibit A, Section 1(c)(i) and that would, absent this subsection, be paid within the six-month period following Employees separation from service from Company shall not be paid until the date that is six months and one day after such separation from service (or, if earlier, Employees death), with any such installments that are required to be delayed being accumulated during the six-month period and paid in a lump sum on the date that is six months and one day following Employees separation from service and any subsequent installments, if any, being paid in accordance with the dates and terms set forth herein; provided, however, that the preceding provisions of this sentence shall not apply to any installment of payments if and to the maximum extent that that such installment is deemed to be paid under a separation pay plan that does not provide for a deferral of compensation by reason of the application of Treasury Regulation 1.409A-1(b)(9)(iii) (relating to separation pay upon an involuntary separation from service). Any installments that qualify for the exception under Treasury Regulation Section 1.409A-1(b)(9)(iii) must be paid no later than the last day of Employees second taxable year following the taxable year in which the separation from service occurs.
Exhibit A - Page 1
2. The determination of whether and when Employees separation from service from Company has occurred shall be made and in a manner consistent with, and based on the presumptions set forth in, Treasury Regulation Section 1.409A-1(h). Solely for purposes of this Exhibit A, Section 2, Company shall include all persons with whom Company would be considered a single employer under Section 414(b) and 414(c) of the Code.
3. All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A to the extent that such reimbursements or in-kind benefits are subject to Section 409A, including, where applicable, the requirements that (i) any reimbursement is for expenses incurred during Employees lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement in any other calendar year, (iii) the reimbursement of an eligible expense will be made on or before the last day of the calendar year following the year in which the expense is incurred and (iv) the right to reimbursement is not subject to set off or liquidation or exchange for any other benefit.
4. Company makes no representation or warranty and shall have no liability to Employee or to any other person if any of the provisions of the Agreement (including this Exhibit) are determined to constitute deferred compensation subject to Section 409A but that do not satisfy an exemption from, or the conditions of, that section.
Exhibit A - Page 2
Exhibit 10.3
Addendum to the employment agreement
BETWEEN THE UNDERSIGNED:
LTX-Credence France
A limited liability corporation, with a share capital of 200,000 euros,
the registered office of which is located at 60 rue des Berges, Miniparc Polytec, Bâtiment Tramontane, 38000 Grenoble, registered with the Commercial Registry of Grenoble under the number 323 859 074.
Represented for the purposes hereof by Mr David Tacelli, duly empowered.
Hereinafter referred to as the Company ,
On the one hand ,
AND
Mr. Pascal RONDE ,
Residing at [__________],
[__________],
Hereinafter referred to as the Employee ,
On the second hand ,
Together referred to as the Parties .
WHEREAS:
The Employee has been hired by the Company under an indefinite-term employment agreement dated December 19, 2011 to perform the duties of Vice President, Global Field Operations, with the executive status.
The Company proposed to the Employee the position of Senior Vice President, Global Customer Team, which the latter has accepted under terms and conditions defined in this addendum.
The Parties agree that the Employee will keep the seniority acquired within the Company as from his hiring date, i.e. January 16, 2012.
THE PARTIES HAVE THEREFORE AGREED AS FOLLOWS:
ARTICLE 1 JOB TITLE, FUNCTIONS AND DUTIES
1.1. The Employee is employed by the Company in the capacity of Senior Vice President, Sales and Global Customer Team, with the executive status, position III C, coefficient 240.
In the frame of the duties assigned to him, the Employee will in particular be in charge of:
| Global sales |
| Global business development |
| Global applications support |
| Global Field Service, including P&L responsibility; |
and such other duties or tasks within the Employees functions and qualifications without same being considered a modification of his Employment Agreement.
From a legal standpoint, the employee shall be under the hierarchical supervision of the President of the Company, currently Mr. Michael Goldbach.
2
However, from an operational standpoint, the Employee shall report to David Tacelli, Chief Executive Officer and President of LTX-Credence Corporation, or to any other Manager designated by the Company for this purpose.
The Employee shall perform his duties to the best of his ability and shall abide by all policies and procedures of the group, as amended on a regular basis.
ARTICLE 2 DURATION OF AGREEMENT
This Addendum will be in force, for an indefinite duration, as of the date hereof.
ARTICLE 3 TERMINATION OF THE EMPLOYMENT CONTRACT
| In case of termination or suspension of the Employment Agreement dated December 19, 2011 for whatsoever reason (resignation, dismissal, retirement, long term sick leave, etc.), the Employee shall return to the Company upon his leaving any documents or equipment belonging to the Company. |
| Moreover, if Employees employment is terminated by the Company except in the case of gross or wilful misconduct, the Employee shall be entitled to receive the following, all subject to Employee entering into a settlement agreement with the Company: |
(A) a termination indemnity equal to one (1) year of gross base salary as stipulated in Article 4 of the Employment Agreement entered into on December 19, 2011, which indemnity shall be inclusive of the dismissal or retirement indemnity which might be due in accordance with the applicable Collective Bargaining Agreement; .
(B) a pro rata portion of Employees targeted annual bonus (referenced in Section 4.2 of the Employment Agreement entered into on December 19, 2011) depending on his presence over the year of his effective departure; and
(C) a gross amount equal to Employees targeted annual bonus.
3
ARTICLE 4 PREVIOUS AGREEMENT
This addendum is amending the Articles 1, 3, and 17 of the Employees Employment Agreement signed on December 19, 2011.
The other provisions of the Employees Employment Agreement which are not otherwise modified by the present addendum remain in force and applicable.
ARTICLE 5 GOVERNING LAW COMPETENT COURT
This addendum is governed by French law, both with respect to its performance and its termination. Any dispute relating hereto shall be subject to the exclusive jurisdiction of the French courts.
ARTICLE 6 LANGUAGE
The definitive version of this addendum that binds the Parties is the French language version, the English version being provided for information purposes only. In the event of a contradiction between the two versions, the French version shall prevail.
In duplicate.
At
On 26/04/2014
Bon Pour Accord | Bon Pour Accord | |||
/S/ David G. Tacelli 4/29/2014 |
/s/ Pascal Ronde |
|||
For the Company, | The Employee, | |||
David Tacelli,* | Pascal Rondé * | |||
Duly empowered |
(*) | Signature to be preceded by the hand-written words Bon pour accord ( Valid for an agreement ) |
4
Exhibit 10.4
Employment Agreement
BETWEEN THE UNDERSIGNED
LTX-Credence France
A limited liability corporation, with a share capital of 200,000 euros,
the registered office of which is located at 60 rue des Berges, Miniparc Polytec, Bâtiment Tramontane, 38000 Grenoble, registered with the Commercial Registry of Grenoble under the number 323 859 074.
Represented for the purposes hereof by Mr David Tacelli, duly empowered.
Hereafter referred to as the Company,
OF THE FIRST PART,
AND
Mr. Pascal Ronde ,
Residing at [__________],
[__________],
Hereafter referred to as the Employee,
OF THE SECOND PART.
IT HAS BEEN AGREED AS FOLLOWS:
The Company hereby employs the Employee, who accepts, under the general conditions provided by the National Collective Bargaining Agreement of Metallurgy, Engineers and Executives, and under the specific conditions defined hereinafter, subject to the results of the pre-hiring medical exam.
ARTICLE 1 - JOB DESCRIPTION
The Employee is employed by the Company in the capacity of Vice President, Global Field Operations, with Executive status, position III C, coefficient 240.
In the frame of the duties assigned to him, the Employee will in particular be in charge of:
| Global sales |
| Global business development |
| Global applications; |
and such other duties or tasks within the Employees functions and qualifications without same being considered a modification of his Employment Agreement.
From a legal standpoint, the employee shall be under the hierarchical supervision of the President of the Company, currently Mr. Michael Goldbach.
However, from an operational standpoint, the Employee shall report to David Tacelli, Chief Executive Officer and President of LTX-Credence Corporation, or to any other Manager designated by the Company for this purpose.
The Employee shall perform his duties to the best of his ability and shall abide by all policies and procedures of the group, as amended on a regular basis.
ARTICLE 2 - FREEDOM OF EMPLOYMENT
The Employee formally declares that he is not bound to any other company, that he has left his previous employer free from all obligations and that he is not presently subject to any non-competition clause whatsoever.
Any false statement in this respect would subject the Employee to liability for damages, in particular pursuant to Article L. 1237-3 of the French Labor Code.
2
ARTICLE 3 - DURATION OF AGREEMENT
This Employment Agreement is entered into for an indefinite duration as from January 16, 2012.
The first four (4) months of actual work shall be considered a trial period, which may be renewed once for three (3) months with the Employee prior written approval, during which either of the parties may terminate the Employment Agreement without indemnities, subject to the notice period provided by the Collective Bargaining Agreement or legal provisions.
After the expiration of this trial period, and except in case of gross misconduct, willful misconduct or force majeure, the party who wishes to terminate the Employment Agreement must notify the other party by registered letter with return receipt requested, subject to the notice period provided by the Collective Bargaining Agreement or legal provisions.
ARTICLE 4 - REMUNERATION
4.1 | The Employee shall be paid, in remuneration for his activity, an annual gross base salary of two hundred and seventy thousand Euros ( 270,000) , which shall be paid to him in twelve (12) monthly installments in accordance with the Companys normal procedures. |
4.2 | The Employee, at the discretion of the Company, may also receive an annual bonus, the amount and granting of which will be contingent upon achievement of objectives, which will be calculated according to the modalities defined in the LTX-Credence Corporation Executive Bonus Plan which will be communicated shortly to the Employee. |
It is expressly agreed between the parties that the Company can unilaterally modify the Employees targets for each new fiscal year provided that the Employee is informed of his new targets when they are determined in accordance with the groups procedure.
4.3 | All the elements of remuneration cited above shall be subject to deduction of the Employee share of social security, supplemental retirement, invalidity and death, and unemployment insurance contributions, and C.S.G. and C.R.D.S. |
4.4 | It is expressly agreed that any premium or bonus that may be granted by the Company shall not be part of the remuneration and shall always remain a revocable grant. |
3
ARTICLE 5 - PLACE OF WORK
The Employees principal place of work shall be at the registered office of the Company.
The parties expressly agree that the place of performance of the Employees job duties may be changed requiring the Employee to work elsewhere in France in accordance with the needs of the Company, which change may not be considered as a modification of the Employment Agreement. The Employee expressly accepts such provision.
In addition, it is expressly understood and agreed that the Employee will have to frequently travel in the framework of the duties assigned to him, in France and abroad.
ARTICLE 6 - WORKING TIME
It is expressly understood and agreed that the Employees remuneration, as defined in Article 4 above, which was agreed upon in light of both the special nature of the functions assigned to the Employee and the importance of his responsibilities, will remain independent of the time that the Employee, who benefits from the largest autonomy in the organization of his work time, will devote to the performance of his functions.
In light of both his remuneration and the importance of his responsibilities, the Employee shall be considered as a managing executive (cadre dirigeant) in accordance with the provisions of article L. 3111-2 of the French Labor code and therefore he will not be governed by most of the mandatory provisions on working hours.
4
ARTICLE 7 - BUSINESS EXPENSES
Travel expenses, hotel expenses, etc., as well as all other professional expenses shall be reimbursed to the Employee, in conformity with the Companys expense reimbursement policy in force at the time the expenses have been made .
ARTICLE 8 - COMPANY VEHICLE
In accordance with the car policy currently in effect within the Company, the Employee will be granted a gross monthly car allowance of nine hundred Euros ( 900) in order to cover his automobile expenses, which are related to the use of his personal vehicle for professional reasons. The Employee undertakes to subscribe to an insurance policy and to regularly pay the premiums so that the Companys liability shall never be incurred on the basis of the Employees use of his personal vehicle.
In the event that the Company wishes to abandon the current policy of providing a car allowance, it hereby reserves the right to adopt the system of either the granting of a company car or the reimbursement of automobile expenses on the basis of the automobile expense rates established by the tax administration depending on the actual category of personal vehicle used.
ARTICLE 9 - PAID VACATION
The Employee shall be entitled to paid vacation as provided by law, the period of which shall be determined by agreement with the Management, taking business requirements into account.
All earned and accrued vacation shall be taken no later than the year following the reference year in which it is accrued, except with the Companys written permission.
ARTICLE 10 SICKNESS
In case of incapacity to work due to sickness or accident, the Employee shall advise the Company as of the first working day of absence. In addition, the Employee shall be obliged to justify his incapacity by submitting a medical certificate to the Company, at the latest within 48 hours of his absence.
5
ARTICLE 11 NON COMPETITION
In the event this Agreement is terminated by either of the parties, for any reason whatsoever, the Employee expressly undertakes not to enter the service of another firm manufacturing or selling products or services that could compete with those of the Company, to create in France for himself a firm of the same type or to participate directly or indirectly therein in any capacity.
For this purpose, the Employee undertakes, in particular, for any product or service that might compete with the Companys products or services, not to visit or contact the Companys clients or to deal with any individual or company that was a client of the Company and with whom the Employee was in contact at any time during the duration of his Employment Agreement.
It is expressly agreed that this clause is limited to (i) a period of one (1) year as from the date of the Employees actual departure from the Company and (ii) to the companies Teradyne and Advantest anywhere in the world including any entity within both groups and which activity is the same as that of the LTX-Credence group.
During this period of non-competition, the Employee will receive a monthly gross indemnity corresponding to 5/10 ths or 6/10 ths as the case may be, of the gross base monthly salary, calculated on the average of the twelve (12) months preceding the termination of his Agreement, it being understood that this indemnity will be subject to social security contributions.
It is agreed that, in any case, the Company shall be entitled to reduce the duration of the period of application of this non-competition clause, or to waive this clause, provided however that it informs the Employee thereof by registered letter with return receipt requested within the eight (8) days following the notification of the termination of the Employment Agreement.
6
Given the extreme sensitiveness of the know-how and technical and commercial information to which the Employee has access in the framework of his functions and the extremely competitive nature of the Companys activities, the parties expressly agree on the necessity of this non-compete obligation in order to protect the Companys legitimate interests.
Moreover, the Employee understands that, in light of his training, this provision does not hinder his capacity to find a new position.
ARTICLE 12 EXCLUSIVITY
The Employee undertakes to devote all his work time and effort for the exclusive benefit of the Company and he may therefore not exercise any other professional activity throughout the duration of this Employment Agreement without the prior written express approval of a legal representative of the Company.
ARTICLE 13 - CONFIDENTIALITY
The Employee shall not, directly or indirectly, either during the period of his employment or after the termination of his Employment Agreement, give, procure or supply, in any manner whatsoever, to any person, firm, association or company, the name or address of any client of the Company, or any trade secret or confidential information concerning the business of the Company, its customers, and its personnel, except with the written authorization of a representative of the Company.
ARTICLE 14 - NON-SOLICITATION UNDERTAKING
The Employee undertakes, for a period of one (1) year as from the date of his actual departure from the Company:
| not to propose to any person who was, at the time of the Employee actual departure or during the twelve (12) months preceding his departure, an employee of the Company, or to attempt by any means, directly or indirectly, to persuade or incite this person to accept another employment or to leave the Company; |
| not to hire any person who was an employee of the Company, at the time of the Employee actual departure or during the twelve (12) months preceding this departure, or to have him hired by a third party with whom the Employee has business relations. |
7
ARTICLE 15 - PENALTY CLAUSE
Any violation of the provisions stipulated in articles 11 (non-competition) 12 (exclusivity), 13 (confidentiality) and 14 (non-solicitation) above shall be sanctioned by the payment of an indemnity at least equal to the remuneration received by the Employee during the last six (6) months of the existence of this Employment Agreement, although the Company reserves the right to prove a greater prejudice and to obtain the cessation of the violation and due compensation by all legal means.
ARTICLE 16 INTELLECTUAL PROPERTY/INVENTIONS
In accordance with the provisions of Article L. 611-7 of the French Code of Intellectual Property, if, while performing his duties, which include an inventive mission, or as part of a study or research specifically entrusted to him by the Company, the Employee produces a patentable or non-patentable invention or creates any drawings, models, methods, programs, formulae or processes relating to the activities, projects or research of the Company and which may be protected by law, all intellectual and/or industrial property rights resulting therefrom shall belong to the Company as of right.
The Employee further acknowledges that for all the other inventions, created either (i) in the performance of his duties, or (ii) in the field of activity of the Company, or (iii) by using knowledge or technologies or specific methods of the Company or information provided by the Company, the Company is entitled to have assigned the ownership of, or obtain a license to, all or parts of the rights in the patent protecting the invention.
However, if the Employee produces an invention or creates any of the items referred to above without any help from the Company, such invention or item being unrelated to the activities, projects or research of the Company, the resulting intellectual and/or industrial property rights shall belong to the Employee.
8
In accordance with the provisions of Articles R. 611-1 and seq. of the Intellectual Property Code, the Employee must promptly inform the Company of any invention made during his Employment Agreement.
ARTICLE 17 - TERMINATION OF THE EMPLOYMENT CONTRACT
| In case of termination or suspension of this Employment Agreement for whatsoever reason (resignation, dismissal, retirement, sick leave, etc.), the Employee shall return to the Company upon his leaving the Company any documents or equipment belonging to the Company. |
| Moreover, if Employees employment is terminated by the Company except in the case of gross or wilful misconduct, the Employee shall be entitled to receive a termination indemnity equal to one (1) year of gross base salary as stipulated in Article 4 of the present Agreement which indemnity shall be inclusive of the dismissal or retirement indemnity which might be due in accordance with the applicable Collective Bargaining Agreement. The payment of such indemnity is subject to the Employee entering into a settlement agreement with the Company |
ARTICLE 18 - GOVERNING LAW - COMPETENT COURTS
This Employment Agreement is governed by French law, both with respect to its performance and its termination. Any dispute relating hereto shall be subject to the exclusive jurisdiction of the French courts.
ARTICLE 19 - LANGUAGE
The definitive version of this Agreement that binds the parties is the French language version, the English version being provided for information purposes only. In the event of a contradiction between the two versions, the French version shall prevail.
9
Signed in duplicate | ||||
In Lissieu | ||||
On December 19, 2011 | ||||
Read and approved, valid for an employment contract. | ||||
/s/ David G. Tacelli |
/s/ Pascal Ronde |
|||
For the Company, | Pascal Rondé | |||
David Tacelli | ||||
Duly empowered |
(Each page must be initialized and on the last page the above signatures must be preceded by the following handwritten words:
read and approved, valid for an employment contract )
10