Exhibit 10.1


 


December 1, 2005


 


Jerauld J. Cutini


c/o Aviza Technology, Inc.


440 Kings Village Road


Scotts
Valley, California 95066


 


Re:                             Employment Agreement


 


Dear Jerauld:


 


Aviza
Technology, Inc. (the “Company”) is pleased to offer you the
position of President and Chief Executive Officer.  This letter (the “Agreement”) sets
forth, among other things, the terms of your employment with the Company.


 


1.                                      DUTIES. 
Your employment shall commence hereunder effective as of the Effective
Time (as such term is defined in that certain Agreement and Plan of Merger,
dated as of March 14, 2005, by and among New Athletics, Inc., Aviza
Technology, Inc., Trikon Technologies, Inc., Baseball Acquisition
Corp. I and Baseball Acquisition Corp. II, as amended (the “Merger Agreement”))
(the “Effective Date”).  You shall
be employed as the President and Chief Executive Officer, and shall perform the
duties customarily associated with this position.  You shall report to the Company’s Board of
Directors (the “Board”) and shall perform your services on a full-time
basis from the Company’s headquarters, subject to any required business
travel.  You shall devote your full
working time and attention to the business affairs of the Company.


 


2.                                      BASE SALARY.  You shall receive an
annual base salary of $400,000 for all hours worked to be paid in accordance
with the Company’s customary payroll procedures, less payroll deductions and
withholdings.


 


3.                                      STOCK OPTIONS.  As soon as practicable following the
Effective Time, the Board shall grant you an option (the “Stock Option”)
to purchase Three Hundred Thousand (300,000) shares of the Company’s common
stock, par value $0.0001 per share (“Common Stock”).  The Stock Option shall have a per-share
exercise price equal to the fair market value of the Common Stock as of the
date of grant, which shall be the closing price of the Common Stock on the
Nasdaq National Market on the trading day immediately preceding the date of
grant.  The vesting of the Stock Option
shall commence on the Effective Date.  Assuming
your continued employment with the Company, the Stock Option shall vest and
become exercisable in substantially equal monthly installments over the four-
(4)-year period commencing on the Effective Date, such that the Stock Option is
fully vested and exercisable on the fourth (4th) anniversary of the
Effective Date, provided that you remain a service provider of the Company
continuously through such date.  The
Stock Option shall be an “incentive stock option” within the meaning of Section 422
of the Internal Revenue Code of 1986, as amended (the “Code”), to the
maximum extent permitted under applicable law and except as set forth herein
shall be subject to the terms and conditions of the Company’s stock option plan
and form of stock option agreement used in connection with grants thereunder.


 

















 


4.                                      BENEFITS.  You shall
be eligible to participate in any or all of the employee benefit plans or
programs the Company generally makes available to similarly situated employees,
pursuant to the terms and conditions of such plans.


 


5.                                      EXPENSES.  You
shall be entitled to reimbursement for all ordinary and reasonable
out-of-pocket business expenses which you reasonably incur in furtherance of
the Company’s business and in accordance with the Company’s standard policies.


 


6.                                      COMPANY POLICIES.  As an employee of the Company, you will be expected to abide by all of
the Company’s policies and procedures.


 


7.                                      OUTSIDE ACTIVITIES.  While employed by the Company, you shall not engage in any business activity in competition with the Company nor
make preparations to do so.


 


8.                                      AT-WILL EMPLOYMENT.  As an employee of the Company, you may terminate your employment at any
time with or without notice and for any reason or no reason.  Similarly, the Company may terminate your
employment at any time with or without notice and for any reason or no reason,
with or without cause, subject to the provisions of Section 9 below.  Your at-will employment relationship with the
Company cannot be changed except in writing signed by a duly appointed
representative of the Board.


 


9.                                      SEVERANCE BENEFITS.


 


(a)                                  Termination By the Company
Without Cause or Constructive Termination.   If the Company terminates your employment
without Cause (as defined below), or if there is a Constructive Termination (as
defined below), in each case, at any time prior to the occurrence of a Change
in Control (as defined below) or more than twelve (12) months following the
occurrence of a Change in Control, and if you provide the Company with a signed
general release of all claims and do not revoke such release, the form of which
shall be reasonably acceptable to the Company, the Company shall provide you
with the following severance benefits:  (i) a
cash payment in an amount equal to twelve (12) months of your then current base
salary (the “Cash Payment”), which Cash Payment shall be payable in
substantially equal monthly installments over the twelve- (12)-month period commencing on your termination date,
such that the Cash Payment is fully paid on the twelve- (12)-month anniversary
of your termination date (such date, the “Severance Period Termination Date”);
(ii) in the event that you elect to receive continued health benefits
pursuant to the Consolidated Omnibus Reconciliation Act (“COBRA”), the
Company shall pay the cost of
your applicable COBRA premiums until the earlier of:  (x) the Severance Period Termination Date or (y)
the date you are first covered under any comparable group health plan and (iii) on
your date of termination, (x) you shall immediately become 100% vested with
respect to any options to purchase Common Stock that you then hold with respect
to which you would otherwise have become vested on or prior to the Severance
Period Termination Date (assuming your continued employment with the Company
through the Severance Period Termination Date) and (y) any restrictions with
respect to restricted shares or restricted share units of Common Stock that you
then hold that would otherwise lapse on or prior to the Severance Period
Termination Date (assuming your continued


 


2

















 


employment with the Company through the
Severance Period Termination Date) shall immediately lapse.


 


You understand and agree that you shall not
be entitled to any other severance pay, severance benefits, or any other
compensation or benefits other than as set forth in this paragraph in the event
of such a termination, other than as required under applicable law.  You and the Company hereby understand
and agree that during the period that the severance benefits referred to in
this paragraph are payable to you, you shall not be an employee of the Company
for any purpose, including, without limitation, for the purpose of determining
the Company’s payroll tax and withholding obligations.


 


(b)                                  Termination By the Company with
Cause or Other Termination By You.  If the Company terminates your
employment with the Company with Cause, or if you voluntarily terminate your
employment with the Company (other than pursuant to a Constructive Termination)
on or within twelve (12) months after a Change in Control, you shall not be
entitled to any severance pay, severance benefits or any compensation or
benefits from the Company whatsoever, other than as required under applicable
law.


 


(c)                                  Termination Following Change
in Control.  If the Company terminates your employment with
the Company without Cause (as defined below), or if there is a Constructive
Termination (as defined below), in each case, at any time on or within twelve
(12) months after a Change in Control, and if you provide the Company with a
signed general release of all claims and do not revoke such release, the form
of which shall be reasonably acceptable to the Company, the Company shall
provide you with the following severance benefits:  (i) the Cash Payment, which Cash Payment
shall be payable in substantially equal monthly installments over the twelve- (12)-month period commencing
on your termination date, such that the Cash Payment is fully paid on the
Severance Period Termination Date; (ii) in the event that you elect
to receive continued health benefits pursuant to COBRA, the Company shall
pay the cost of your applicable COBRA
premiums until the earlier of:  (x) the Severance Period Termination Date or (y)
the date you are first covered under any comparable group health plan and (iii) on
your date of termination, you shall immediately become 100% vested with respect
to any options to purchase Common Stock that you then hold and/or any
restrictions with respect to restricted shares or restricted share units of
Common Stock that you then hold shall immediately lapse; provided, however, that if the Company terminates your
employment following the effective date of a Change in Control described in
clause (e)(2) below but you accept employment with the Company’s successor
or acquiror within thirty (30) days after the effective date of the Change in
Control on terms and conditions not less favorable to you than those contained
in this Agreement, you shall not be entitled to any severance benefits under
this clause (c); and provided  further,
that if your employment is thereafter terminated by the successor or acquiror
without Cause, or if there is a Constructive Termination, at any time within twelve
(12) months following the occurrence of the Change in Control, you shall be
entitled to the severance benefits described above in this clause (c).


 


You understand and agree that you shall not
be entitled to any other severance pay, severance benefits or any other
compensation or benefits other than as set forth in this paragraph in the


 


3

















 


event of such a termination, other than as
required under applicable law.  You
and the Company hereby understand and agree that during the period that the
severance benefits referred to in this paragraph are payable to you, you shall
not be an employee of the Company for any purpose, including, without
limitation, for the purpose of determining the Company’s payroll tax and
withholding obligations.


 


(d)                                        Death or Disability.  If your employment with the Company terminates as a result of your
death or permanent disability (as determined by the Board in good faith) you
and your estate or beneficiaries shall not be entitled to any severance pay,
severance benefits or any compensation or benefits from the Company whatsoever,
other than as required under the terms of the Company’s then existing insurance
and retirement plans and applicable law.


 


(e)                                  Definitions.


 


(1)                                 Cause.  For
purposes of this Agreement, the term “Cause” means:  (i) theft, dishonesty or falsification
of any employment or Company records; (ii) malicious or reckless
disclosure of the Company’s confidential or proprietary information; (iii) commission
of any immoral or illegal act or any gross or willful misconduct, where the
Company reasonably determines that such act or misconduct has (A) seriously
undermined the ability of the Company’s management to entrust you with
important matters or otherwise work effectively with you, (B) contributed
to the Company’s loss of significant revenues or business opportunities, or (C) significantly
and detrimentally effected the business or reputation of the Company or any of
its subsidiaries; and/or (iv) your breach of this Agreement or the failure
or refusal by you to work diligently to perform tasks or to work toward the
achievement of goals reasonably requested by the Board, provided such breach, failure or refusal continues after the
receipt of reasonable notice in writing of such failure or refusal and an
opportunity to correct the problem.  “Cause”
shall not mean a physical or mental disability.


 


(2)                                 Change in Control.  For
purposes of this Agreement, the term “Change in Control” means the
consummation of any of the following transactions:


 


a.                                       the closing of a business combination (such
as a merger or consolidation) of the Company with any other corporation or
other type of business entity (such as a limited liability company), in each
case, other than the Mergers (as such term is defined in the Merger Agreement),
which would result in the voting securities of the Company outstanding
immediately prior thereto not continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) at least fifty percent (50%) of the total voting power represented by
the voting securities of the Company or such controlling surviving entity
outstanding immediately after such business combination;


 


b.                                       the sale, lease, exchange or other transfer
or disposition by the Company of all or substantially all (more than seventy
percent (70%)) of the Company’s assets by value;


 


4

















 


c.                                       the
individuals who, immediately following the Effective Time (as such term is
defined in the Merger Agreement), are members of the Board (the “Incumbent
Board”), cease for any reason to constitute at least a majority of the
members of the Board; provided,  however, that if the election, or
nomination for election, by the holders of Common Stock, of any new director
was approved by a vote of at least a majority of the Incumbent Board, such new
director shall, for purposes of this Agreement, be considered as a member of
the Incumbent Board; and  provided  further,
that no individual shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of an actual or threatened
solicitation of proxies or consents by or on behalf of a person other than the
Board (a “Proxy Contest”) including by reason of any agreement intended
to avoid or settle any Proxy Contest; or


 


d.                                       an acquisition of any voting securities of
the Company by any “person” (as the term “person” is used for purposes of Section 13(d) or
Section 14(d) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”)), other than an affiliate of VantagePoint Venture
Partners, immediately after which such
person has “beneficial ownership” (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of fifty percent (50%) or more of the
combined voting power of the Company’s then outstanding voting securities.


 


Notwithstanding the
foregoing, in no event shall a transaction a primary purpose of which is
to finance the Company with cash (as determined by the Board in its sole
discretion), such as a transaction in which a series of preferred stock is sold
by the Company to one or more investors for cash, for example, constitute a
Change in Control for purposes of this Agreement.


 


(3)                                 Constructive Termination.  For
purposes of this Agreement, the term “Constructive Termination” means
your resignation within sixty (60) days of one or more of the following events
which remains uncured thirty (30) days after your delivery of written notice
thereof:


 


a.                                       the delegation to you of duties or the
reduction of your duties, either of which substantially reduces the nature,
responsibility, or character of your position immediately prior to such
delegation or reduction;


 


b.                                       a material reduction by the Company in your
base salary in effect immediately prior to such reduction;


 


c.                                       a material reduction by the Company in the
kind or level of employee benefits or fringe benefits to which you were
entitled prior to such reduction; or the taking of any action by the Company
that would adversely affect your participation in any plan, program or policy
generally applicable to employees of equivalent seniority; or


 


d.                                       the Company’s requiring you to relocate your
office to a place more than fifty (50) miles from the Company’s present
headquarters location (except that required travel on the Company’s business to
an extent substantially consistent with your present business travel
obligations shall not be considered a relocation).


 


5

















 


10.                               RETURN OF MATERIALS.  At the termination of your relationship with the Company, you shall
promptly return to the Company, and shall
not take with you or use, all items of
any nature that belong to the Company, and all materials (in any form, format,
or medium) containing or relating to the Company’s business.


 


11.                               ENTIRE AGREEMENT.  This Agreement constitutes the complete, final and exclusive embodiment
of the entire agreement between you and the Company with respect to the terms
and conditions of your employment specified herein.  If you enter into this Agreement you are
doing so voluntarily, and without reliance upon any promise, warranty or
representation, written or oral, other than those expressly contained
herein.  This Agreement supersedes any
other such promises, warranties, representations or agreements.  This Agreement may not be amended or modified
except by a written instrument signed by you and an authorized representative
of the Board.


 


12.                               SEVERABILITY. 
Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this
Agreement is held to be invalid, illegal or unenforceable in any respect under
any applicable law or rule in any jurisdiction, such invalidity,
illegality or unenforceability shall not affect any other provision of this Agreement, but such invalid,
illegal or unenforceable provision shall be reformed, construed and enforced so as to render it valid, legal,
and enforceable consistent with the intent of the parties insofar as possible.


 


13.                               BINDING NATURE.  This Agreement shall be
binding upon and inure to the benefit of the personal representatives and
successors of the respective parties hereto.


 


14.                               GOVERNING LAW.  This Agreement shall be governed
in all respects by the laws of the State of California without regard to conflict
of law principles that would result in the application of any law other than
the law of the State of California.


 


15.                               CODE SECTION 409A.  This Agreement shall be interpreted,
construed and administered in a manner that satisfies the requirements of Section 409A
of the Code, and any payment scheduled to be made hereunder that would
otherwise violate Section 409A of the Code shall be accelerated (if
possible in compliance with 409A) or delayed (if acceleration is not possible
in compliance with 409A) to the extent necessary for this Agreement and such
payment to comply with Section 409A of the Code


 


16.                               DISPUTE
RESOLUTION.  To ensure the timely and
economical resolution of disputes that arise in connection with your employment
with the Company, you and the Company agree that any and all disputes, claims,
or causes of action arising from or relating to the enforcement, breach,
performance or interpretation of this Agreement, your employment, or the
termination of your employment, shall be resolved to the fullest extent
permitted by law by final, binding and confidential arbitration, by a single
arbitrator, in San Francisco, California, conducted by Judicial Arbitration and
Mediation Services, Inc. (“JAMS”) under the applicable JAMS
employment rules.  By agreeing
to this arbitration procedure, both you and the Company waive the right to
resolve any such dispute through a trial by jury or judge or administrative
proceeding.  The arbitrator
shall:  (a) have the authority to
compel adequate discovery for the


 


6

















 


resolution of the dispute and
to award such relief as would otherwise be permitted by law and (b) issue
a written arbitration decision, to include the arbitrator’s essential findings
and conclusions and a statement of the award. 
The arbitrator shall be authorized to award any or all remedies that you
or the Company would be entitled to seek in a court of law.  The Company shall pay all JAMS arbitration
fees in excess of the amount of court fees that would be required if the
dispute were decided in a court of law. 
Nothing in this Agreement is intended to prevent either you or the
Company from obtaining injunctive relief in court to prevent irreparable harm
pending the conclusion of any such arbitration. 
Notwithstanding the foregoing, you and the Company each have the right
to resolve any issue or dispute over intellectual property rights by Court
action instead of arbitration.


 


(Signature
page follows)


 


7

















 


If you choose
to accept this Agreement under the terms described above, please sign below and
return this letter to me.


 


We look forward to your
favorable reply, and to a productive and enjoyable work relationship.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  Aviza Technology, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Patrick C. O’Connor

  	
   

  
	
   

  	
  By: Patrick C. O’Connor

  
	
   

  	
  Its:  Executive Vice President and Chief
  Financial

  
	
   

  	
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  Accepted and Agreed to by:

  	
   

  
	
   

  
	
   

  
	
  /s/ Jerauld J. Cutini

  	
   

  	
  April 4, 2006

  	
   

  
	
  Jerauld J. Cutini

  	
  Date

  
						



 


8