EXHIBIT 10.17
EMPLOYMENT AGREEMENT
This
Employment Agreement, dated as of May 28, 2004, is entered into
between Tegal Corporation (the “Company”) and Andy
Clarke (“Employee”).
WHEREAS , Employee is the founder and a major shareholder
of, and is currently employed by, First Derivative Systems, Inc.
(“FDSI”); and
WHEREAS , the Company has acquired substantially all of the
operating assets (including its goodwill) and certain liabilities
of FDSI pursuant to that certain Asset Acquisition Agreement by and
between the Company and FDSI dated as of April 28, 2004;
and
WHEREAS , in his capacity as a selling shareholder, Employee
has agreed as a condition precedent to the closing of the
transaction contemplated by that certain Asset Acquisition
Agreement (the “Closing”) that Employee will enter into
this Employment Agreement; and
WHEREAS , the Company would not be willing to purchase the
operating assets and goodwill of FDSI without Employee’s
agreement to the non-compete provisions of Section 4 of this
Agreement; and
WHEREAS , the Company desires to employ and retain the
services of Employee, and Employee wishes to become employed by the
Company, on the terms set forth in this Agreement;
NOW, THEREFORE , in consideration of the promises and the
mutual covenants set forth in this Agreement, the Company and
Employee agree as follows:
1. Term of
Employment . Subject to the termination provisions
hereinafter set forth, the Company will employ the Employee, and
the Employee accepts employment with the Company, for a period of
two years (the “Term”) commencing as of the
Closing.
2. Duties
. The Employee will serve as Director of PVD Development
reporting to the Chief Executive Officer of the Company, or to any
other person as the Chief Executive Officer may thereafter
designate. The Employee will discharge such duties and
responsibilities as are customary for such position or are
prescribed from time to time by the Company. The Employee will
devote his full time and attention to the affairs of the Company
and will not enter the employ of or serve as a consultant to, or in
any way perform any services for, with or without compensation, any
other person, business or organization without the prior approval
of the Company. In no event may any such service be inconsistent
with, or prevent Employee from carrying out, his duties under this
Agreement, as determined at the sole discretion of the
Company.
3. Maintaining
Confidential Information/Property Rights . Employee agrees
to sign and abide by Company policies regarding Confidential &
Proprietary Information and Intellectual Property/Property Rights,
as attached hereto.
4. Non-Competition;
Non-Solicitation . During the Term, and for a period of one
(1) years after the termination of Employee’s employment with
the Company for any reason, or for three (3) years after the
Closing, Employee shall not, directly or indirectly:
(a) own,
manage, operate, advise, consult, join, control or participate in
the ownership, management, operation or control of, be employed by,
perform services for, or be connected in any manner with, any
enterprise which is engaged in providing any PVD (physical vapor
deposition) systems (or their equivalents) to any semiconductor,
thin film head, mems or other device manufacturers anywhere in the
world; provided , however , that such restriction
shall not apply to Employee’s ownership of any passive
investment representing an interest of less than five percent (5%)
of an outstanding class of publicly traded securities;
or
(b)
recruit, encourage or solicit any person who was an employee or
contractor of the Company or any entity affiliated with the Company
(the “Affiliated Entity”) to leave the Company’s
or Affiliated Entity’s employ or service for any reason, or
interfere in any material manner with employment or service
relationships at the time existing between the Company or
Affiliated Entity and the subject employee or contractor (except as
may be required in any bona fide termination decision during the
Term regarding any Company or Affiliated Entity employee) in order
to induce such employee or contractor of the Company to accept
other employment or a consulting agreement with any other person or
entity.
Employee acknowledges that the
services that he shall provide to the Company under this Agreement
are unique and that irreparable harm shall be suffered by the
Company in the event of the breach by Employee of any of his
obligations under this Section 4, and that the Company shall be
entitled, in addition to its other rights and remedies, whether
legal or equitable, to enforce such oblig