**Exhibit 10.50**

 

# **EMPLOYMENT AGREEMENT**

 

                ThisEmployment Agreement (the “Agreement”) is entered into as of January 27, 2003,by and among **METRON TECHNOLOGY N.V.,** a limited liability company organizedunder the laws of the Netherlands (“MTNV”), **METRON TECHNOLOGY DISTRIBUTIONCORPORATION**, a California corporation (“Employer”), and **DOUGLAS J.McCUTCHEON** (“Executive”), a California resident.

 

## **RECITALS**

 

Executive currently isemployed as Employer’s Interim Chief Financial Officer in the classification ofa temporary full-time employee;

 

Employer desires to employExecutive as a regular full-time employee on the terms and conditions set forthherein;

 

                Executivedesires to accept such regular full-time employment with Employer pursuant tothe terms and conditions of this Agreement; and

 

                MTNVintends to confirm the appointment of Executive as a Managing Director A;

 

                **NOW,THEREFORE,** in consideration of the mutual convenants and agreementscontained herein, the parties hereto agree as follows:

 

**1.****                                     ****EFFECTIVE TIME; EMPLOYMENT ANDSERVICE**

 

**1.1          EffectiveTime**.  This Agreement is to beeffective as of January 27, 2003 (the “Effective Time”) and shall continue ineffect until Executive’s employment terminates pursuant to the provisions ofSection 3 herein.

 

**1.2           Employmentwith Employer.**  Employeragrees that, as of the Effective Time, it will employ Executive as its **Senior VicePresident and Chief Financial Officer** or in such other capacity asdetermined by Employer’s Officers to whom the Executive reports or Employer’sSupervisory Board of Directors, as a regular full-time employee.  MTNV agrees that it has elected Executive asa member of the Board of Directors of Employer.

 

**1.3          Appointmentwith MTNV. **In view ofExecutive’s employment with Employer, and his intended appointment as a Class A(or similar description) Managing Director by resolution of the General Meetingof Shareholders of MTNV, the parties now wish to confirm the terms andconditions of his service as a Managing Director as provided herein.  The term of Executive’s appointment as aManaging Director of MTNV shall be determined by the General Meeting ofShareholders of MTNV.  To the extentpermitted under Dutch corporate law, as Managing Director of MTNV, Executiveshall perform such duties and responsibilities as may be determined from timeto time by MTNV’s General Meeting of Shareholders or MTNV’s Supervisory Board(the “MTNV Supervisory Board”), as the case may be.

 

**1.4                          Executive’sResponsibilities for Employer.**  During the term of this Agreement, Executive shall have suchresponsibilities as may be assigned to him by Employer’s Officers to whom theExecutive reports, or Employer’s Supervisory or Managing Board ofDirectors.  Executive’s duties shall beperformed at Employer’s Burlingame, California office or at such other locationas Employer and Executive mutually agree; provided, however, that, in theperformance of his duties, Executive shall be 

 

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required to travel at suchtimes and to such places as Employer or MTNV may reasonably request from time totime.

 

**1.5           ExclusiveServices. **Executiveagrees to devote his full time, attention and energy to performing his dutiesand responsibilities to Employer and MTNV. Executive further agrees that he will not engage in any businessactivity in competition with Employer or MTNV nor make preparations to do so,and agrees not to engage in any outside employment or consulting, other than asalready disclosed to Employer in writing, without written authorization fromMTNV’s Supervisory Board.  Theforegoing, however, shall not preclude Executive from engaging in the followingactivities, provided that they do not unreasonably interfere or conflict withExecutive’s responsibilities to Employer and MTNV:  (1) engaging in appropriate civic, charitable or religious activities;(2) devoting a reasonable amount of time to private investments; (3) serving onthe boards of directors of nonprofit entities; or (4) serving on the Board ofDirectors of a for-profit entity with the prior written consent of Employer’sChief Executive Officer (“CEO”).

 

**2.****                                     ****COMPENSATION, BENEFITS ANDPERQUISITES**

 

**2.1  Base Salary.**  During the period this Agreement is ineffect, Employer shall pay Executive an annual base salary of **$225,000**less standard deductions and withholdings. MTNV, acting through the MTNV Supervisory Board or its CompensationCommittee, as the case may be, shall review Executive’s base salary at leastannually and may in its sole discretion increase (but not decrease, unless suchdecrease is done on an equitable pro-rata basis for all of Employer’sexecutives, including its CEO) such salary to reflect performance, appropriateindustry data and other factors. Employer and MTNV shall not be obligated to provide any such salaryincreases, *except that,* if thesalaries of all Directors of the Managing Board is increased due to Employer’sreturn to profitability and to compensate for the previous salary decrease often percent (10%), Executive will be eligible for such one-time salary increaseat the same time and by the same percentage as the other Directors of theManaging Board.  Salary levels generallyare reviewed on or about March 1 of each calendar year.  Executive will not be eligible for considerationof a salary increase during a general salary review cycle, should such reviewcycle occur within six (6) months following the Effective Time.

 

**2.2****      ****      Bonuses.**

 

**(a)        **Executive shallbe entitled to participate in the annual incentive compensation plans forMTNV’s senior management pursuant to the terms of these plans.  Generally, any such compensation shall bepaid out of a pool funded by a percentage of the annual pretax income of MTNVcalculated before income taxes and performance incentive compensation.  MTNV shall have the sole discretion tochange or eliminate its annual incentive compensation plans, to determine theamount placed into the pool, to determine whether Executive is entitled to anycompensation under these plans, and to determine the amount of any suchcompensation.

 

**(b)        **In addition,any compensation pursuant to Section 2.2(a) shall be considered earned as ofthe last day of Employer’s fiscal year provided that Executive has remainedemployed on a full-time basis by Employer through that date.  Notwithstanding the foregoing, if Executiveis terminated without Cause (as defined in Section 3.4(a) herein), or resignsfor Good Reason (as defined in Section 3.4(b) herein) during the term of thisAgreement, for the fiscal year in which his employment terminates, Employershall pay Executive the bonus to which he would otherwise have been entitledhad he been employed as of the last day of such fiscal year multiplied by afraction, the numerator of which is the number of days elapsed in the fiscalyear up to and including the date of his termination of employment, and the denominatorof which is 365.

 

**(c)        **In the event ofExecutive’s death or Disability (as such term is defined in Section 3.4(c)herein) during the term of this Agreement, for the fiscal year in which hisdeath or Disability occurs, Employer 

 

 

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shall pay Executive’s estate(in the event of Executive’s death) or the Executive (in case of hisDisability) the bonus to which he would otherwise have been entitled had hebeen employed as of the last day of such fiscal year multiplied by a fraction,the numerator of which is the number of days elapsed in the fiscal year up toand including the date of his death, or, in the case of Disability, the lastday of active employment, and the denominator of which is 365.

 

**(d)        **If Executive isawarded any such compensation, it will be paid in one lump sum as soon aspracticable after the annual audit of Employer’s financial statements arecomplete and Employer has completed the necessary calculations of the amounts,if any, which are due.  Any suchcompensation shall be subject to standard withholdings.

 

**2.3  Stock Option Grants.**  Employer agrees to recommend to the StockOption Committee that Executive be granted a non-qualified stock option topurchase one hundred thousand (100,000) shares of MTNV’s common stock.  In addition, Employer agrees to recommend tothe Stock Option Committee that Executive be granted a stock option in June2003 to purchase an additional fifty thousand (50,000) shares of MTNV’s commonstock.  If granted, the June 2003 optiongrant will qualify as incentive stock options (“ISOs”) to the extent ISO grantsare available, subject to applicable legal limitations.  Any granted options will be governed by theterms of the applicable stock option plan and stock option agreements, whichstock option agreements will specify a per share purchase price equal to theclosing market price of the stock on the business day prior to grant and afour-year vesting period contingent upon Executive’s continuous service toEmployer.

 

**2.4  Vacations. **Executive shall accrue threeweeks of annual vacation with full pay in accordance with the policiesapplicable to executive employees of Employer who are located in the UnitedStates.  Executive may accrue up to amaximum of 30 days vacation, at which point further accrual stops until accruedvacation is used, unless otherwise agreed to in writing between Executive andEmployer.

 

**2.5  EmployeeBenefits.**  Executiveshall be entitled to participate in Employer’s benefits and perquisites inaccordance with Employer’s policies and the terms, conditions and limitationsof Employer’s benefit plans which it now or in the future makes generallyavailable to all of its executives. Executive shall pay any contributions which are generally required ofits executives to receive any such benefits. Such perquisites may include, but are not necessarily limited to, use ofand reimbursement for cellular/car phone, professional organizational dues andprofessional developmental seminars.  Itis anticipated that the MTNV Supervisory Board will annually review Executive’sbenefits package and may, in its discretion, increase (but not decrease unlesssuch decrease is done on an equitable pro rata basis for Employer’s executivesincluding its CEO) such perquisites.

 

**2.6  Expenses. **During the term of his employmenthereunder, Executive shall be entitled to receive prompt reimbursement fromEmployer or MTNV (in accordance with their policies and procedures forexecutive employees and on submission of written documentation of such expensessuitable to Employer or MTNV) for all reasonable travel and other expensesincurred by Executive in connection with his services hereunder.

 

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**2.7. Indemnification.**

 

                (a)           Except to the extent modified belowin Section 2.7(b), Employer, with regard to Executive’s performance of serviceson behalf of Employer as an employee, officer, director, or agent, and MTNV asan employee, officer, director, or agent, with regard to Executive’sperformance of services on behalf of MTNV, agree, to the extent authorized orpermitted by MTNV’s charter documents and applicable law, to fully indemnifyExecutive and to hold him harmless from and against all claims, damages,judgments, losses, liabilities, fees and expenses incurred by him or threatenedagainst him in connection with his performance of services hereunder and tomake advances to him for the payment of legal fees, witness fees, expenses andcosts related thereto.  MTNV andEmployer also agree to pay any damages, judgments, fines and amounts paid insettlement and any other amounts that Executive becomes legally obligated topay because of any claim or claims made against or by Executive in connectionwith any threatened, pending or completed action, suit or proceeding to whichEmployee is entitled to indemnification pursuant to the terms of this Section2.7(a), provided, however, Employee shall not settle any such proceedingwithout the express written consent of the Supervisory Board of MTNV.  MTNV and Employer agree to use their bestefforts to include Executive in the coverage of any errors and omissions and/ordirectors and officers insurance policies, if any, obtained by MTNV or Employerfor officers and directors of MTNV and Employer, respectively.

 

                (b)           The indemnification provisions ofSection 2.7(a) shall not apply with respect to the obligations of MTNV orEmployer to indemnify Executive in the following events:

 

•                  To the extent that Executiveis indemnified pursuant to any insurance purchased and maintained by or onbehalf of MTNV and/or Employer pursuant to the provisions of Section 2.7(a) ofthis Agreement and any resulting obligations are actually paid on behalf of orreimbursed to Executive pursuant to such insurance;

 

•                  On account of Executive’sacts or omissions that involve intentional misconduct or would constitute Causeunder Section 3.4(a) herein;

 

•                  On account of violations ofthe provisions of Section 4 of this Agreement;

 

•                  On account of acts oromissions of Executive that Executive believed or reasonably should have knownat the time of the act or omission to be contrary to the best interests of MTNVand Employer or its shareholders or that involve the absence of good faith onthe part of Executive;

 

•                  With respect to anytransaction from which Executive derived an improper personal benefit;

 

•                  On account of acts oromissions that show a reckless disregard by Executive for his duties to MTNV orEmployer or their shareholders in circumstances in which Executive was aware,or should have been aware, in the ordinary course of performing an officer’sduties, of a risk of serious injury to MTNV, Employer or their shareholders;

 

•                  On account of acts oromissions that constitute an unexcused pattern of inattention that amounts toan abdication of Executive’s duties to MTNV, Employer or their shareholders;

 

•                  On account of acts oromissions that constitute a violation of Section 16 of the Securities andExchange Act of 1934; or

•                  If indemnification isunlawful.

 

**(c)           Continuationof Indemnity.**  MTNV’s andEmployer’s indemnity obligations contained herein shall continue during theperiod Employee is a director, officer, employee or other agent of MTNV 

 

 

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or the Employer, respectively (or is or wasserving at the request of MTNV or the Employer, respectively (or is or wasserving at the request of MTNV or Employer as a director, officer, employee orother agent of another corporation, partnership, joint venture, trust, employeebenefit plan or other enterprise)) and shall survive the termination ofExecutive’s employment with Employer and continue thereafter so long as Executiveshall be subject to any possible claim or threatened, pending or completedaction, suit or proceeding, by reason of the fact that Executive was serving inthe capacity referred to herein and to the extent he would otherwise beentitled to indemnification pursuant to Section 2.7(a).

 

**(d)           Expenses.**  Upon request, MTNV or Employer may advance,prior to the final disposition of any proceeding covered by this Section 2.7(excluding any proceedings instituted by Executive or Employer under Sections5.9 and 5.10 herein), such advance not to be unreasonably withheld or delayed,all reasonable expenses incurred by Executive in connection with suchproceeding upon receipt of an undertaking by or on behalf of Executive to repaysaid amounts if it shall be determined ultimately that Executive is notentitled to be indemnified under the provisions of this Agreement, applicablelaw, MTNV’s Articles of Association or Employer’s Charter Documents, orotherwise.

 

**3.             TERMINATIONOF EXECUTIVE’S EMPLOYMENT**

 

**3.1          Terminationof Employment.**  Executive’semployment by Employer under this Agreement is at-will and may be terminated byEmployer or Executive at any time, with or without Cause.  Executive’s appointment as a ManagingDirector of MTNV may be terminated by the General Meeting of Shareholders ofMTNV as permitted by the Articles of Association of MTNV and Netherlandslaw.  Executive agrees to give ninety(90) days’ written notice if he intends to resign without Good Reason.

 

**3.2          SeveranceBenefits Upon Termination By Employer Without Cause, Upon Resignation ByExecutive for Good Reason or Disability**.  If this Agreement is:  (1)terminated by Employer without Cause; or (2) terminated by the Executive forGood Reason; or (3) terminated by Employer as a result of Executive’s Disability;and if Executive first provides the Company with a signed and effective generalrelease of all known and unknown claims, a form of which is set forth inExhibit A (or in any other form required by Employer or MTNV), Employer shallprovide Executive with the following severance benefits only:

 

                **(a)**           Continuation of Executive’s finalbase salary for a period of twelve (12) months after Executive’s terminationdate.  These payments will be made onthe Company’s standard payroll dates and will be subject to required deductionsand withholdings.  To the extent, ifany, Executive receives disability insurance benefits during this salarycontinuation period, Executive agrees to tender such payments to Employer;

 

                **(b)          **To the extent permitted byfederal COBRA law and by Employer’s current group health insurance policies,Executive will be eligible to continue his health insurance benefits after hisemployment terminates.  Provided thatExecutive timely elects continued coverage under COBRA, Employer will pay thecost of continuing such benefits for a period of twelve (12) months afterExecutive’s termination date.  ShouldExecutive become eligible for such health care benefits through anotheremployer, any such payments under this provision shall immediately cease.  Executive agrees to notify Employerimmediately if he becomes eligible for such benefits; and

 

                **(c)**           Executive also shall be entitled toreceive the pro-rata bonus as specified in Sections 2.2(b) and 2.2(c) herein,as applicable.

 

**3.3          NoSeverance Benefits If Terminated By Employer For Cause, Upon Resignation ByEmployee Without Good Reason, Or Upon Death**.  If Executive’s employment is terminated for Cause by Employer, orif Executive resigns without Good Reason, or if this Agreement is terminated byExecutive’s death, Executive shall not be entitled to receive any severancebenefits whatsoever, provided, 

 

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however, that in the event of Employee’sdeath, his estate shall be entitled to the pro-rata bonus as specified inSection 2.2(c) herein.

 

**3.4****      ****Definitions.**

 

**(a)           Definitionof “Cause.”**  Forpurposes of this Section 3, “Cause” shall mean the following:  (i) Indictment or conviction of, or a pleaof nolo contendere to, any felony or any misdemeanor involving moral turpitude;(ii) commission of an act of fraud, theft or embezzlement of property of MTNVor any of its subsidiaries or commission of similar acts involving dishonestyor moral turpitude that are materially injurious to MTNV or any of itssubsidiaries; (iii) Executive’s failure to devote substantially all of hisworking time and efforts during normal business hours to the business of MTNVand its subsidiaries except as otherwise permitted by this Agreement, orExecutive’s failure to comply with the covenants contained in Sections 4.1 or4.2 of this Agreement; (iv) knowingly providing materially misleadinginformation concerning MTNV or any of its subsidiaries to MTNV, the MTNVManaging Board or Supervisory Board, its General Meeting of Shareholders, anyshareholder holding 10% or more of MTNV stock, any governmental body orregulatory agency or to any lender or other financing source or proposedfinancing source of MTNV or its subsidiaries; or (v) any other failure byExecutive to substantially perform his material duties as an employee of Employerunder this Agreement or as a Managing Director of MTNV (excludingnonperformance resulting from Executive’s Disability) which failure is notcured within thirty (30) days after written notice from the MTNV Supervisory orManaging Board, in the case of Executive’s duties to MTNV, or from theEmployer, in the case of Executive’s duties to Employer, specifying the act(s)of nonperformance or within such longer period (but no longer than sixty (60)days in any event) as is reasonably required to cure such nonperformance.

 

**                (b)           Definitionof “Good Reason.” **“Good Reason” shall mean:  (i) amaterial change in the responsibilities, authority, title or office ofExecutive resulting in the substantial diminution of his position; (ii) exceptfor decreases made on an equitable pro rata basis for Employer’s executiveslocated in the United States, a diminution in Employee’s annual base salarybelow the amount stated in Section 2.1 or as same may be increased from time totime; (iii) except for changes made on an equitable pro rata basis forEmployer’s executives located in the United States, the failure by Employer tocontinue to provide Executive with benefits substantially similar to thoseenjoyed by executives of Employer located in the United States; (iv) Employer’srequiring of Executive to be based anywhere other than a location which iswithin a 75-mile radius of the Company’s existing office in Burlingame,California; or (v) any other material breach by Employer of this Agreement;excluding for all of these purposes an isolated, insubstantial or inadvertentaction not taken in bad faith which is remedied by Employer promptly afternotice thereof is given by Executive.

 

**(c)         Definition of “Disability.”**  “Disability” shall have the same meaningprovided in Section 22(e)(3) of the Internal Revenue Code of 1986, as amended,except for that section’s reference to “12 months,” which time period shallinstead be ninety (90) days.

 

**3.5          Merger,Transfer of Assets or Dissolution.**  This Agreement shall not be terminated by a voluntary orinvoluntary dissolution of Employer or MTNV, or the transfer of all orsubstantially all the stock or assets of Employer or MTNV, or the merger ofEmployer or MTNV with or into another entity.

 

**4.****             ****CONFIDENTIALITY AND TRADE SECRETS**

 

**4.1          ProprietaryInformation and Inventions Agreement.**  Executive agrees to abide by all of Employer’s policies andprocedures and further agrees to continue to abide by the terms of the EmployeeProprietary Information and Inventions Agreement signed by Executive on January1, 2003, a copy of which is attached hereto as Exhibit B.

 

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**4.2          NonsolicitationObligations.**  Executiveagrees that during his employment and for two (2) years following thetermination of his employment, he will not, either directly or through others,solicit, attempt to solicit, or induce any employee, consultant or independentcontractor of Employer or MTNV to terminate his or her relationship with theseentities in order to become an employee, consultant or independent contractorto or for any other person or business entity. Executive also agrees that in order to protect MTNV and Employer’sconfidential and proprietary information, for two (2) years following thetermination of his employment, he will not, either directly or through others,render services to, contract with, or attempt to solicit business from anyprincipal, customer or prospective customer of Employer or MTNV for products orservices offered by Employer or MTNV at the time of Executive’s termination ofemployment.

 

**4.3          Scope ofRestrictions.**  If thescope of the restrictions in this section are determined by a court ofcompetent jurisdiction to be too broad to permit enforcement of suchrestrictions to their full extent, then such restrictions shall be construed orrewritten (“Blue-lined”) so as to be enforceable to the maximum extentpermitted by law, and Executive hereby consents, to the extent he may lawfullydo so, to the judicial modification of the scope of such restrictions in anyproceeding brought to enforce them.

 

**5.****             ****MISCELLANEOUS**

 

**5.1          Amendment.** This Agreement may be amended only in writing signed by each of theparties.

 

**5.2          EntireAgreement.**  ThisAgreement, including its attachments, contains the entire agreement between theparties with respect to its subject matter and supersedes all prior agreementsand understandings, oral or written, between the parties, including but notlimited to the offer letter agreement between Executive and Employer datedJanuary 1, 2003 and the consulting agreement between Executive and Employerdated September 20, 2002 (the “Consulting Agreement”).  Executive further agrees that he has notearned and will not be eligible to receive any bonus payments under theConsulting Agreement.

 

**5.3          NoAssignment by Executive.** Executive acknowledges that the services to be rendered by him areunique and personal.  Accordingly,Executive may not delegate or assign any of his obligations under thisAgreement.

 

**5.4          Successorsand Assigns.**  Subject toSection 5.3, the provisions of this Agreement shall be binding upon and inureto the benefit of the parties hereto, any successor to or assign of Employer orMTNV, and upon Executive’s heirs and the personal representative of Executiveor Executive’s estate.

 

**5.5          Notices.**  Any notice or other communication requiredor permitted hereunder shall be sufficient if given in writing, (i) byhand-delivery, (ii) by express courier, (iii) by first class mail, certified orregistered with return receipt requested or (iv) by facsimile transmission withwritten confirmation sent the same day by first class mail, certified orregistered with return receipt requested, which shall be addressed as follows(or to such other address as a party may specify by notice duly given inaccordance with this Section 5.5):

 

 

If to Employer:

 
| Metron Technology  Distribution Corporation                          |
|----------------------------------------------------------------------|
| 1350 Old Bayshore Highway,  Suite 210                                |
| Burlingame,  California  94010                                  |
| Telephone:  (650) 401-4600                                      |
| Facsimile:  (650) 373-1135                                      |
| Attention:  Edward Segal, Chairman and Chief Executive  Officer |

 

 

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                Ifto MTNV:

 
| Metron Technology N.V.                                           |   |   |
|------------------------------------------------------------------|--------|--------|
| c/o Mr. Joel Elftmann,  Chairman, Supervisory Board of Directors |   |   |
| 6963 Kenmare Drive                                               |   |   |
| Bloomington,  Minnesota   55438                        |

 

 

 

                Ifto Executive:

 
| Mr. Douglas J. McCutcheon                     |   |   |
|-----------------------------------------------|--------|--------|
| 1335 Elsona Drive                             |   |   |
| Sunnyvale, California    94087 |

 

 

Any notice so sent shall be deemedeffectively made on the day of actual delivery to the recipient (if by hand orexpress courier), on the fifth business day following mailing (if by airmail)or on the next business day following transmission (if by telefax with writtenconfirmation).

 

**5.6          Waiver ofBreach.**  Any waiver by either party ofcompliance with any provision of this Agreement by the other party shall notoperate or be construed as a waiver of any other provision of this Agreement,or of any subsequent breach by such party of a provision of thisAgreement.  No waiver by MTNV shall bevalid unless in writing and signed by the Chairman of the MTNV SupervisoryBoard.

 

**5.7          Severability.**  If any one or more of the provisions (orportions thereof) of this Agreement shall for any reason be held by a finaldetermination of a court of competent jurisdiction to be invalid, illegal, orunenforceable in any respect, such invalidity, illegality or unenforceabilityshall not affect any other provisions (or portions of the provisions) of thisAgreement, and the invalid, illegal or unenforceable provisions shall be deemedreplaced by a provision that is valid, legal and enforceable and that comesclosest to expressing the intention of the parties hereto.

 

**5.8          GoverningLaw.**  This Agreement shall beinterpreted and enforced in accordance with the laws of the State ofCalifornia, without giving effect to conflict of law principles.  Executive hereby expressly agrees that theintention of the parties is that Executive will remain a resident of Californiaand will perform all or substantially all of his services as an employee ofEmployer hereunder and as a Managing Director of MTNV in and from the UnitedStates and not The Netherlands. Accordingly, the parties hereby expressly exclude application ofNetherlands law to this Agreement (unless provided otherwise herein), includingin particular but without limitation all Netherlands laws regarding employment,termination of employment and employee benefits.  Executive hereby irrevocably consents to such exclusion andwaives any and all claims or causes of action that he might otherwise assertagainst MTNV, its subsidiaries, officers, directors and shareholders based on,or arising out of, any provision of Netherlands law.

 

**5.9          DisputeResolution.**  Unlessotherwise prohibited by law, all disputes, claims, and causes of action(including but not limited to any claims of statutory discrimination of anytype), in law or equity, arising from or relating to this Agreement or its enforcement,performance, breach, or interpretation, or to Executive’s employment withEmployer or service with MTNV, or the termination of that employment orservice, shall be resolved solely and exclusively by final, binding andconfidential arbitration through Judicial Arbitration & MediationServices/Endispute, Inc. (“JAMS”) under the then existing JAMS employmentarbitration rules.  Employer shall beresponsible for paying any and all fees and costs necessary to initiate sucharbitration proceedings, subject to final apportionment by the Arbitrator.  Executive understands and agrees that thisprovision waives his right to a jury or court trial or to administrativeproceedings with respect to these claims. This arbitration shall be held in the San 

 

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Francisco Bay area.  Nothing in this section is intended to prevent either party fromobtaining injunctive relief in court to prevent irreparable harm pending theconclusion of any such arbitration.

 

**5.10        Attorneys’Fees.**  In the event of litigation orarbitration between Executive and Employer arising under Section 5.9 herein,the prevailing party shall be entitled to reimbursement from the non-prevailingparty for its reasonable attorneys’ fees and costs of suit to the fullestextent permitted by law, in addition to such other relief as may be granted.

 

**5.11        Headings.**  The headings of articles and sections hereinare included solely for convenience and reference and shall not control themeaning or interpretation of any of the provisions of this Agreement.

 

**5.12        Counterparts.**  This Agreement may be executed by either ofthe parties hereto in counterparts, each of which shall be deemed to be anoriginal, but all such counterparts shall constitute a single instrument.

 

 

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IN WITNESS WHEREOF, the parties have executedthis Agreement effective as of the date set forth above.

 
|   |   |   |   |   |   | METRON TECHNOLOGY N.V.                      |
|--------|--------|--------|--------|--------|--------|---------------------------------------------|
|   |   |   |   |   |   |                                        |   |
|   |   |   |   |   |   | By:                                         | /s/ Joel Elftmann |
|   |   |   |   |   |   |                                        | Joel Elftmann |
|   |   |   |   |   |   |                                        | Chairman of the Supervisory Board |
|   |   |   |   |   |   |                                        |   |
|   |   |   |   |   |   |                                        |   |
|   |   |   |   |   |   |                                        |   |
|   |   |   |   |   |   | METRON TECHNOLOGY DISTRIBUTION  CORPORATION |
|   |   |   |   |   |   |                                        |   |
|   |   |   |   |   |   | By:                                         | /s/ EDWARD D. SEGAL |
|   |   |   |   |   |   |                                        | Edward D. Segal |
|   |   |   |   |   |   |                                        | Chairman and Chief Executive Officer |
|   |   |   |   |   |   |                                        |   |
|   |   |   |   |   |   |                                        |   |
|   |   |   |   |   |   |                                        |   |
|   |   |   |   |   |   | EXECUTIVE                                   |
|   |   |   |   |   |   |                                        |   |
|   |   |   |   |   |   | /s/  DOUGLAS J. McCUTCHEON             |
|   |   |   |   |   |   | Douglas J. McCutcheon                       |
|   |   |   |   |   |   |                                        |   |

 

 

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**EXHIBIT A**

 

**RELEASE AGREEMENT**

 

 

** **

**Ihereby hereby generally and completely release Metron Technology DistributionCorporation (the “Company”), Metron Technology N.V. (“MTNV”), and its and theirdirectors, officers, employees, shareholders, partners, agents, attorneys,predecessors, successors, parent and subsidiary entities, insurers, affiliates,and assigns from any and all claims, liabilities and obligations, both knownand unknown, that arise out of or are in any way related to events, acts, conduct,or omissions occurring at any time prior to and including the date I sign thisRelease Agreement (“Release”).  Thisgeneral release includes, but is not limited to: (a) all claims arising out ofor in any way related to my employment with the Company or MTNV or thetermination of that employment; (b) all claims related to my compensation orbenefits from the Company or MTNV, including salary, bonuses, commissions,vacation pay, expense reimbursements, severance pay, fringe benefits, stock,stock options, or any other ownership interests in the Company or MTNV;(c) all claims for breach of contract, wrongful termination, and breach ofthe implied covenant of good faith and fair dealing; (d) all tort claims,including claims for fraud, defamation, emotional distress, and discharge inviolation of public policy; and (e) all federal, state, and local statutoryclaims, including claims for discrimination, harassment, retaliation,attorneys’ fees, or other claims arising under the federal Civil Rights Act of 1964(as amended), the federal Americans with Disabilities Act of 1990, the federalAge Discrimination in Employment Act of 1967 (as amended) (“ADEA”), the laws ofThe Netherlands, and the California Fair Employment and Housing Act (asamended).**

 

**                I acknowledge that I am knowingly and voluntarilywaiving and releasing any rights I may have under the ADEA, as amended.  I also acknowledge that the considerationgiven for the waiver and release in the preceding paragraph hereof is inaddition to anything of value to which I was already entitled.  I further acknowledge that I have beenadvised by this writing, as required by the ADEA, that:  (a) my waiver and release do not apply to anyrights or claims that may arise after the date I sign this Release; (b) I havebeen advised hereby that I have the right to consult with an attorney prior tosigning this Release (although I may choose not to do so); (c) I havetwenty-one (21) days to consider this Release (although I may choose tovoluntarily sign it earlier); (d) I have seven (7) days following the date thatI sign this Release to revoke the Release by providing written notice ofrevocation to the Company; and (e) this Release shall not be effective untilthe date upon which the revocation period has expired, which shall be theeighth day after the date that I sign this Release, provided that the Companyhas also signed the Release by that date (“Effective Date”).**

 

                Ingiving this Release, which includes claims which may be unknown to me atpresent, I acknowledge that I have read and understand Section 1542 of theCalifornia Civil Code which reads as folows: **“Ageneral release does not extend to claims which the creditor does not know orsuspect to exist in his favor at the time of executing the release, which if knownby him must have materially affected his settlement with the debtor.”**  I hereby herebyexpressly waive and relinquish all rights and benefits under that section andany law or legal principle of similar effect in any jurisdiction with respectto my release of claims herein, including but not limited to unknown andunsuspected claims.

 

 

 

 

 

                Theparties hereto have caused this Release Agreement to be executed on the datesset forth below.

 

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|                                         |
|----------------------------------------------|
| METRON TECHNOLOGY  DISTRIBUTION CORPORATION: |
|                                         |
| By:                                          |   |
| Edward D. Segal                              |
| Chairman and Chief Executive Officer         |
|                                         |
| Date:                                        |   |
|                                         |
| EXECUTIVE                                    |
|                                         |
|                                         |
| Douglas J. McCutcheon                        |
|                                         |
| Date:                                        |   |
|                                              |  |  |

 

 

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**EXHIBIT B**

 

**EMPLOYEE PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT**

 

**Metron Technology Distribution Corporation**

**EMPLOYEE PROPRIETARY INFORMATIONAND INVENTIONS AGREEMENT**

In consideration of myemployment or continued employment by **Metron TechnologyDistribution Corporation** (the “**Company**”), and the compensation now andhereafter paid to me, I hereby agree as follows:

**1.             Nondisclosure.**

**1.1          Recognitionof Company’s Rights; Nondisclosure.**  At all times during my employment and thereafter, I will hold instrictest confidence and will not disclose, use, lecture upon or publish any ofthe Company’s Proprietary Information (defined below), except as suchdisclosure, use or publication may be required in connection with my work forthe Company, or unless an officer of the Company expressly authorizes such inwriting.  I will obtain Company’swritten approval before publishing or submitting for publication any material(written, verbal, or otherwise) that relates to my work at Company and/orincorporates any Proprietary Information. I hereby assign to the Company any rights I may have or acquire in suchProprietary Information and recognize that all Proprietary Information shall bethe sole property of the Company and its assigns.

**1.2          ProprietaryInformation.**  The term“**ProprietaryInformation**” shall mean any and all confidential and/or proprietaryknowledge, data or information of the Company. By way of illustration but not limitation, “**Proprietary Information**”includes (a) trade secrets, inventions, mask works, ideas, processes, formulas,source and object codes, data, programs, other works of authorship, know-how,improvements, discoveries, developments, designs and techniques (hereinaftercollectively referred to as “**Inventions**”); and (b) information regardingplans for research, development, new products, marketing and selling, businessplans, budgets and unpublished financial statements, licenses, prices andcosts, suppliers and customers; and (c) information regarding the skills andcompensation of other employees of the Company.  Notwithstanding the foregoing, it is understood that, at alltimes, I am free to use information which is generally known in the trade orindustry, which is not gained as a result of a breach of this Agreement, and myown skill, knowledge, know-how and experience to whatever extent and inwhichever way I wish.

**1.3          Third Party Information. **I understand, inaddition, that the Company has received and in the future will receive fromthird parties confidential or proprietary information (“**Third Party Information**”)subject to a duty on the Company’s part to maintain the confidentiality of suchinformation and to use it only for certain limited purposes.  During the term of my employment andthereafter, I will hold Third Party Information in the strictest confidence andwill not disclose to anyone (other than Company personnel who need to know suchinformation in connection with their work for the Company) or use, except inconnection with my work for the Company, Third Party Information unlessexpressly authorized by an officer of the Company in writing.

**1.4          NoImproper Use of Information of Prior Employers and Others.**  During my employment by the Company I willnot improperly use or disclose any confidential information or trade secrets,if any, of any former employer or any other person to whom I have an obligationof confidentiality, and I will not bring onto the premises of the Company anyunpublished documents or any property belonging to any former employer or anyother person to whom I have an obligation of confidentiality unless consentedto in writing by that former employer or person.  I will use in the performance of my duties only information whichis generally known and used by persons with training and experience comparableto my own, which is common knowledge in the industry or otherwise legally inthe public domain, or which is otherwise provided or developed by the Company.

**2.             Assignment Of Inventions**.

**2.1          ProprietaryRights.**  The term “**ProprietaryRights**” shall mean all trade secret, patent, copyright, mask workand other intellectual property rights throughout the world.

**2.2          PriorInventions.** Inventions, if any, patented or unpatented, which I made prior to thecommencement of my employment with the Company are excluded from the scope ofthis Agreement.  To preclude anypossible uncertainty, I have set forth on *Exhibit B*(Previous Inventions) attachedhereto a complete list of all Inventions that I have, alone or jointly withothers, conceived, developed or reduced to practice or caused to be conceived,developed or reduced to practice prior to the commencement of my employmentwith the Company, that I consider to be my property or the property of thirdparties and that I wish to have excluded from the scope of this

 

1

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Agreement (collectively referred to as “**Prior Inventions**”).  If disclosure of any such Prior Inventionwould cause me to violate any prior confidentiality agreement, I understandthat I am not to list such Prior Inventions in *Exhibit B* but am only todisclose a cursory name for each such invention, a listing of the party(ies) towhom it belongs and the fact that full disclosure as to such inventions has notbeen made for that reason. A space is provided on *Exhibit B* for suchpurpose.  If no such disclosure isattached, I represent that there are no Prior Inventions.  If, in the course of my employment with theCompany, I incorporate a Prior Invention into a Company product, process ormachine, the Company is hereby granted and shall have a nonexclusive,royalty-free, irrevocable, perpetual, worldwide license (with rights tosublicense through multiple tiers of sublicensees) to make, have made, modify,use and sell such Prior Invention. Notwithstanding the foregoing, I agree that I will not incorporate, orpermit to be incorporated, Prior Inventions in any Company Inventions withoutthe Company’s prior written consent.

 

**2.3          Assignmentof Inventions.** Subject to Sections 2.4, and 2.6, I herebyassign and agree to assign in the future (when any such Inventions orProprietary Rights are first reduced to practice or first fixed in a tangiblemedium, as applicable) to the Company all my right, title and interest in andto any and all Inventions (and all Proprietary Rights with respect thereto)whether or not patentable or registrable under copyright or similar statutes,made or conceived or reduced to practice or learned by me, either alone orjointly with others, during the period of my employment with the Company.  Inventions assigned to the Company, or to athird party as directed by the Company pursuant to this Section 2, arehereinafter referred to as “**Company Inventions**.”

**2.4          NonassignableInventions.**  ThisAgreement does not apply to an Invention which qualifies fully as anonassignable Invention under Section 2870 of the California Labor Code(hereinafter “**Section 2870**”).  I havereviewed the notification on *Exhibit A* (Limited ExclusionNotification) and agree that my signature acknowledges receipt of thenotification.

**2.5          Obligationto Keep Company Informed.** During the period of my employment and for six (6) months aftertermination of my employment with the Company, I will promptly disclose to theCompany fully and in writing all Inventions authored, conceived or reduced topractice by me, either alone or jointly with others.  In addition, I will promptly disclose to the Company all patentapplications filed by me or on my behalf within a year after termination ofemployment.  At the time of each suchdisclosure, I will advise the Company in writing of any Inventions that Ibelieve fully qualify for protection under Section 2870; and I will at thattime provide to the Company in writing all evidence necessary to substantiatethat belief.  The Company will keep inconfidence and will not use for any purpose or disclose to third partieswithout my consent any confidential information disclosed in writing to the Companypursuant to this Agreement relating to Inventions that qualify fully forprotection under the provisions of Section 2870.  I will preserve the confidentiality of any Invention that doesnot fully qualify for protection under Section 2870.

**2.6          Governmentor Third Party.**  Ialso agree to assign all my right, title and interest in and to any particularCompany Invention to a third party, including without limitation the UnitedStates, as directed by the Company.

**2.7          Worksfor Hire.**  Iacknowledge that all original works of authorship which are made by me (solelyor jointly with others) within the scope of my employment and which areprotectable by copyright are “works made for hire,” pursuant to United StatesCopyright Act (17 U.S.C., Section 101).

**2.8          Enforcementof Proprietary Rights.** I will assist the Company in every proper way to obtain, and from timeto time enforce, United States and foreign Proprietary Rights relating toCompany Inventions in any and all countries. To that end I will execute, verify and deliver such documents andperform such other acts (including appearances as a witness) as the Company mayreasonably request for use in applying for, obtaining, perfecting, evidencing,sustaining and enforcing such Proprietary Rights and the assignmentthereof.  In addition, I will execute,verify and deliver assignments of such Proprietary Rights to the Company or itsdesignee.  My obligation to assist theCompany with respect to Proprietary Rights relating to such Company Inventionsin any and all countries shall continue beyond the termination of myemployment, but the Company shall compensate me at a reasonable rate after mytermination for the time actually spent by me at the Company’s request on suchassistance.

In the event the Company is unable for anyreason, after reasonable effort, to secure my signature on any document neededin connection with the actions specified in the preceding paragraph, I herebyirrevocably designate and appoint the Company and its duly authorized officersand agents as my agent and attorney in fact, which appointment is coupled withan interest, to act for and in my behalf to execute, verify and file any suchdocuments and to do all other lawfully permitted acts to further the purposesof the preceding paragraph with the same legal force and effect as if executedby me.  I hereby waive and quitclaim tothe

 

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Company any and all claims, of any naturewhatsoever, which I now or may hereafter have for infringement of anyProprietary Rights assigned hereunder to the Company.

**3.             Records.**  Iagree to keep and maintain adequate and current records (in the form of notes,sketches, drawings and in any other form that may be required by the Company)of all Proprietary Information developed by me and all Inventions made by meduring the period of my employment at the Company, which records shall beavailable to and remain the sole property of the Company at all times.

**4.             Additional Activities.**  I agree that during the period of my employment by the Company Iwill not, without the Company’s express written consent, engage in anyemployment or business activity which is competitive with, or would otherwiseconflict with, my employment by the Company. I agree further that for the period of my employment by the Company andfor one (l) year after the date of termination of my employment by the CompanyI will not, either directly or through others, solicit or attempt to solicitany employee, independent contractor or consultant of the company to terminatehis or her relationship with the Company in order to become an employee,consultant or independent contractor to or for any other person or entity.

**5.             No Conflicting Obligation.**  I represent that my performance of all the terms of thisAgreement and as an employee of the Company does not and will not breach anyagreement to keep in confidence information acquired by me in confidence or intrust prior to my employment by the Company. I have not entered into, and I agree I will not enter into, anyagreement either written or oral in conflict herewith.

**6.             Return Of Company Documents.** When I leave the employ of the Company, I will deliver to theCompany any and all drawings, notes, memoranda, specifications, devices,formulas, and documents, together with all copies thereof, and any othermaterial containing or disclosing any Company Inventions, Third PartyInformation or Proprietary Information of the Company.  I further agree that any property situatedon the Company’s premises and owned by the Company, including disks and otherstorage media, filing cabinets or other work areas, is subject to inspection byCompany personnel at any time with or without notice.  Prior to leaving, I will cooperate with the Company in completingand signing the Company’s termination statement.

**7.             Legal And Equitable Remedies.**  Because my services are personal and unique and because I mayhave access to and become acquainted with the Proprietary Information of theCompany, the Company shall have the right to enforce this Agreement and any ofits provisions by injunction, specific performance or other equitable relief,without bond and without prejudice to any other rights and remedies that theCompany may have for a breach of this Agreement.

**8.             Notices.  **Any notices required orpermitted hereunder shall be given to the appropriate party at the addressspecified below or at such other address as the party shall specify inwriting.  Such notice shall be deemedgiven upon personal delivery to the appropriate address or if sent by certifiedor registered mail, three (3) days after the date of mailing.

**9.             Notification Of New Employer.**  In the event that I leave the employ of the Company, I herebyconsent to the notification of my new employer of my rights and obligationsunder this Agreement.

**10.          General Provisions.**

**10.1        GoverningLaw; Consent to Personal Jurisdiction.**  This Agreement will be governed by andconstrued according to the laws of the State of California, as such laws areapplied to agreements entered into and to be performed entirely withinCalifornia between California residents. I hereby expressly consent to the personal jurisdiction of the state andfederal courts located in Santa Clara County, California for any lawsuit filedthere against me by Company arising from or related to this Agreement.

**10.2        Severability.**  In case any one or more of the provisionscontained in this Agreement shall, for any reason, be held to be invalid,illegal or unenforceable in any respect, such invalidity, illegality or unenforceabilityshall not affect the other provisions of this Agreement, and this Agreementshall be construed as if such invalid, illegal or unenforceable provision hadnever been contained herein.  Ifmoreover, any one or more of the provisions contained in this Agreement shallfor any reason be held to be excessively broad as to duration, geographicalscope, activity or subject, it shall be construed by limiting and reducing it,so as to be enforceable to the extent compatible with the applicable law as itshall then appear.

**10.3        Successorsand Assigns.**  ThisAgreement will be binding upon my heirs, executors, administrators and otherlegal representatives and will be for the benefit of the Company, itssuccessors, and its assigns.

**10.4        Survival.**  The provisions of this Agreement shallsurvive the termination of my employment and the assignment of this Agreementby the Company to any successor in interest or other assignee.

 

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**10.5        Employment.**I agree and understand that nothing in this Agreement shall confer any rightwith respect to continuation of employment by the Company, nor shall itinterfere in any way with my right or the Company’s right to terminate myemployment at any time, with or without cause.

**10.6        Waiver.**No waiver by the Company of any breach of this Agreement shall be a waiver ofany preceding or succeeding breach.  Nowaiver by the Company of any right under this Agreement shall be construed as awaiver of any other right.  The Companyshall not be required to give notice to enforce strict adherence to all termsof this Agreement.

**10.7        EntireAgreement.**  Theobligations pursuant to Sections 1 and 2 of this Agreement shall apply to anytime during which I was previously employed, or am in the future employed, bythe Company as a consultant if no other agreement governs nondisclosure andassignment of inventions during such period. This Agreement is the final, complete and exclusive agreement of theparties with respect to the subject matter hereof and supersedes and merges allprior discussions between us.  Nomodification of or amendment to this Agreement, nor any waiver of any rightsunder this Agreement, will be effective unless in writing and signed by theparty to be charged.  Any subsequentchange or changes in my duties, salary or compensation will not affect thevalidity or scope of this Agreement.

This Agreement shall be effective as of thefirst day of my employment with the Company, namely:January 1, 2003.

 

**I have read this agreement carefullyand understand its terms.  I havecompletely filled out Exhibit B to this agreement.**

 

Dated: January 1, 2003

 
| /s/  DOUGLAS J. McCUTCHEON                 |                      |
|-------------------------------------------------|---------------------------|
| **(Signature)**                                 |                      |
|                                            |                      |
| Douglas J. McCutcheon                           |                      |
| **(Printed Name)**                              |                      |
|                                            |                      |
| **Accepted And Agreed To:**                     |                      |
|                                            |                      |
| **Metron TEchnology Distribution  corporation** |                      |
|                                            |                      |
| By:                                             | /s/  EDWARD D. SEGAL |   |
|                                            |                      |
| Title:                                          | Edward D. Segal           |   |
|                                            |                      |
| (Address)                                       |                      |
|                                            |                      |
|                                            |                      |
| Dated: February 12,  2003                       |                      |
|                                                 |                           |  |  |

** **

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**Exhibit A**

** **

**LIMITED EXCLUSION NOTIFICATION**

 

**This Is ToNotify**you in accordance with Section 2872 of the California Labor Code thatthe foregoing Agreement between you and the Company does not require you toassign or offer to assign to the Company any invention that you developedentirely on your own time without using the Company’s equipment, supplies,facilities or trade secret information except for those inventions that either:

 

**1.            **Relate at the time ofconception or reduction to practice of the invention to the Company’s business,or actual or demonstrably anticipated research or development of the Company;or

 

**2.            **Result from any workperformed by you for the Company.

 

To the extent a provision inthe foregoing Agreement purports to require you to assign an inventionotherwise excluded from the preceding paragraph, the provision is against thepublic policy of this state and is unenforceable.

 

This limited exclusion doesnot apply to any patent or invention covered by a contract between the Companyand the United States or any of its agencies requiring full title to suchpatent or invention to be in the United States.

 

**I Acknowledge Receipt** of a copy of thisnotification.

 
| By:                       | /s/  DOUGLAS J. McCUTCHEON |
|--------------------------------|---------------------------------|
| **(Printed Name Of Employee)** |
|                           |
| Date:                          | January 1, 2003                 |
|                                |                                 |  |

**WitnessedBy:**

** **
|   /s/  PEGGY ACKERBERG      |
|---------------------------------------|
| **(Printed  Name Of Representative)** |

 

A-1

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**Exhibit B**

** **

**TO:                         MetronTechnology Distribution Corporation**

**FROM:                  Douglas J.McCutcheon**

**DATE:                    January 7,2003**

**SUBJECT:            PreviousInventions**

**1.**             Exceptas listed in Section 2 below, the following is a complete list of allinventions or improvements relevant to the subject matter of my employment byMetron Technology Distribution Corporation (the “**Company**”) that have been madeor conceived or first reduced to practice by me alone or jointly with othersprior to my engagement by the Company:

 

ý  No inventions or improvements.

 

o  See below:
|   |
|--------|
|   |
|   |

 

o            Additional sheets attached.

 

**2.**             Dueto a prior confidentiality agreement, I cannot complete the disclosure underSection 1 above with respect to inventions or improvements generally listedbelow, the proprietary rights and duty of confidentiality with respect to whichI owe to the following party(ies):

 
|   |   | **Invention or Improvement** |   | **Party(ies)** |   | **Relationship** |
|--------|--------|------------------------------|--------|----------------|--------|------------------|
|   |   |                         |   |           |   |             |
| **1.** |   |                         |   |           |   |             |
| **2.** |   |                         |   |           |   |             |
| **3.** |   |                         |   |           |   |             |

** **

o            Additional sheets attached.

** **

B-1

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