Delaware
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000-24085
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94-3031310
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(State or other jurisdiction of incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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☐ | 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)) |
(d) | Exhibits |
Exhibit No.
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Description
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Consulting Agreement, dated May 15, 2015, between AXT, Inc. and Davis Zhang.
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AXT, Inc.
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By:
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/s/ Gary L. Fischer
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Gary L. Fischer
Chief Financial Officer and Corporate Secretary
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A. | AXT has retained the services of Zhang to provide advice and counsel for: (1) the strategy and operations of the ten (10) joint ventures associated with AXT (the “Joint Ventures”) and its subsidiaries in China, and; (2) the locating and training of a candidate to assist Dr. Morris Young (“Dr. Young”), in his capacity as the Chief Executive Officer of AXT, in managing the ten (10) Joint Ventures and AXT’s subsidiaries in China; |
B. | In view of his twenty-nine (29) years of employment at and dedication to AXT, this Agreement is offered to Zhang by AXT to help create a smooth transition period following Zhang’s resignation and departure so that Zhang can focus on improving his poor health. |
1. | Engagement. Subject to the terms and conditions of this Agreement, AXT hereby engages Zhang as an independent contractor to perform the services set forth herein, and Zhang hereby accepts such engagement. |
2. | Duties and Term. Zhang’s duties and term of engagement are set forth below: |
a. | Duties. Zhang’s consultation services will be limited to (i) the strategy and operations of the ten (10) Joint Ventures and AXT’s subsidiaries in China, and (ii) the locating and training of a candidate to assist Dr. Young, in his capacity as the Chief Executive Officer for AXT, in managing the ten (10) Joint Ventures and AXT’s subsidiaries in China. In this consulting arrangement, Zhang will report exclusively to Dr. Young and will communicate with Dr. Young, the candidate and the management teams of the ten (10) Joint Venture and AXT’s subsidiaries in China. |
b. | Term. Zhang will consult on an independent contractor basis with AXT for three (3) months, from May 16, 2015 to August 15, 2015, to locate and train a candidate to assist Dr. Young, in his capacity as the Chief Executive Officer of AXT, in managing the ten (10) Joint Ventures and AXT’s subsidiaries in China. If the candidate is not located or suitably trained at the end of the three months, and AXT requests an extension of this agreement on or before August 3, 2015, Zhang may in his sole discretion agree to extend the term of the independent contractor agreement for another three (3) months, from August 16, 2015 to November 15, 2015. |
3. | Compensation. Subject to Sections 4, 5 and 6, Zhang’s compensation shall be in the amount of $112,500, which shall be paid by AXT in a lump sum at the beginning of each of the three (3) month terms. AXT shall pay a lump sum of $112,500 to Zhang on May 16, 2015. If a second term is necessary, AXT will make a second payment of $112,500 to Zhang on August 15, 2015. |
4. | Health Expenses. During the term of the Agreement, AXT shall contribute $3,000 a month to Zhang’s health expenses (including medical and dental insurance), however obtained, whether or not incurred. A three month payment of $9,000 shall be made in a lump sum at the beginning of each of the three (3) month terms in the same manner described in Section 3. |
5. | Business Expenses. Zhang is authorized to incur reasonable expenses in connection with the performance of this Agreement, including travel and other similar items. Zhang must provide AXT adequate records and other documentation as may be required for the substantiation of such expenditures as a business expense. AXT shall promptly reimburse Zhang for reasonable and necessary expenses incurred on behalf of AXT by Zhang in connection with the performance of Zhang’s duties under this Agreement. AXT agrees that it will make prompt payment to Zhang following receipt and verification of the incurred expenses. |
6. | Stock Options. Zhang’s currently existing stock options with AXT will continue to vest until November 30, 2015, regardless of the status of this Agreement. Zhang will continue to be subject to AXT’s stock trading restrictions for six (6) months after the termination or conclusion of this Agreement. |
7. | Conflicting Obligations. Zhang represents and warrants that he has no agreements, relationships, or commitments to any other person or entity that conflict with the provisions of this Agreement, his obligations to the Company under this Agreement, and/or his ability to perform the services under this Agreement. Zhang will not enter into any such conflicting agreement during the term of this Agreement. |
8. | Competing Agreements. For so long as Zhang is providing services to the Company pursuant to this Agreement, Zhang will not enter into any agreement or arrangement with any third party, including a third-party deemed by the Company to be the Company’s competitor, for the purpose of providing to such third party services, including, but not limited to, services similar to the services covered by this Agreement. |
9. | Proprietary Information. Sections 3 and 4 of the Employee Inventions and Proprietary Rights Assignment Agreement, dated January 27, 2000 (the “Employee Inventions and Proprietary Rights Assignment Agreement”), are incorporated herein by reference and shall remain effective during the term of this Agreement. A copy of the Employee Inventions and Proprietary Rights Assignment Agreement is attached to this Agreement as Exhibit A. |
10. | Independent Contractor. This Agreement shall not render Zhang an employee, partner, agent of, or joint venture with AXT for any purpose. Zhang is and will remain an independent contractor in his relationship to AXT. Zhang acknowledges full responsibility for compliance with all Federal, State and City tax regulations regarding taxes that may accrue on the fee, including expenses, if any, paid to Zhang as a result of services rendered to AXT. AXT shall not be responsible for withholding taxes with respect to Zhang’s compensation hereunder. |
11. | Merger. This Agreement shall not be terminated by the merger or consolidation of AXT into or with any other entity. |
12. | Termination. Notwithstanding the provisions in Section 2(b) above, Zhang may terminate this Agreement at any time for any reason by fourteen (14) calendar days’ written notice to AXT. AXT may only terminate this Agreement for gross negligence, gross incompetence, or a medical disability that makes Zhang unable to perform his consultancy. |
13. | Survival. Upon the conclusion or termination of this Agreement, the obligations of the Parties to each other shall come to an end, except that the provisions of Section 6 (regarding stock options) shall survive. |
14. | Choice of Law. The laws of the state of California shall govern the validity of this Agreement, the construction of its terms and the interpretation of the rights and duties of the Parties hereto. |
15. | Arbitration. Any controversies arising out of the terms of this Agreement or its interpretation shall be settled in the County of Santa Clara, State of California, through JAMS arbitration, and the judgment upon award may be entered in any court having jurisdiction thereof. |
16. | Consent to Jurisdiction and Forum Selection. If a controversy is unable to be settled through JAMS arbitration for any reason, the Parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated exclusively in the State and Federal courts located in the County of San Francisco, State of California. The aforementioned choice of venue is intended by the Parties to be mandatory and not permissive in nature, thereby precluding the possibility of litigation between the parties with respect to or arising out of this Agreement in any jurisdiction other than that specified in this paragraph. Each party hereby waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine or to object to venue with respect to any proceeding brought in accordance with this paragraph, and stipulates that the State and Federal courts located in the County of San Francisco, State of California shall have in personam jurisdiction and venue over each of them for the purpose of litigation any dispute, controversy, or proceeding arising out of or related to this Agreement. Each party hereby authorizes and accepts service of process sufficient for personal jurisdiction in any action against it as contemplated by this paragraph by registered or certified mail, return receipt requested, postage prepaid, to its address for the giving of notices as set forth in this Agreement. Any final judgment rendered against a party in any action or proceeding shall be conclusive as to the subject of such final judgment and may be enforced in other jurisdictions in any manner provided by law. |
17. | Headings. Section headings are not to be considered a part of this Agreement and are not intended to be a full and accurate description of the contents hereof |
18. | No Waiver. None of the provisions of this Agreement shall be deemed to have been waived by any act or acquiescence on the part of Zhang, but only by an instrument in writing signed by both Zhang and an authorized officer of AXT. No waiver of any provision of this Agreement shall constitute a waiver of any other provision or of the same provision on another occasion. Waiver by one party hereto of breach of any provision of this Agreement by the other shall not operate or be construed as a continuing waiver. |
19. | Assignment. Zhang shall not assign any of his rights under this Agreement, or delegate the performance of any of his duties hereunder, without the prior written consent of AXT. |
20. | Construction of Agreement. This Agreement shall be construed and interpreted according to its plain meaning, and no presumption shall be deemed to apply in favor of, or against the party drafting the Agreement. The Parties acknowledge and agree that each has had the opportunity to seek and utilize legal counsel in the drafting of, review of, and entry into this Agreement. |
21. | Notices. Any and all notices, demands, or other communications required or desired to be given hereunder by any party shall be in writing and shall be validly given or made to another party if personally served, or if deposited in the United States mail, certified or registered, postage prepaid, return receipt requested. If such notice or demand is served personally, notice shall be deemed constructively made at the time of such personal service. If such service, demand or other communication is given by mail, such notice shall be conclusively deemed given five (5) days after deposit thereof in the United States mail addressed to the party to whom such notice, demand or other communication is to be given as follows: |
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If to Zhang:
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[Name]
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Davis Zhang
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[Address]
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Carey & Carey
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P.O. Box 1040
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Palo Alto, California 94302-1040
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If to AXT:
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[Name]
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AXT, Inc.
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[Address]
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4281 Technology Drive
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Fremont, California 94538 |
22. | Entire Agreement. This Agreement, including its recitals, and the Employee Inventions and Proprietary Rights Assignment Agreement contain the entire understanding between the Parties and supersede all prior or contemporaneous communications, agreements, and understandings between the Parties with respect to the subject matter hereof. This Agreement may be modified only by a written amendment executed by both Parties and made a part hereto by incorporation. |
23. | Attorneys’ Fees. The prevailing party in any action brought for the enforcement or interpretation of this Agreement shall be entitled to receive from the losing party a reasonable sum for its attorneys’ fees and costs of litigation, in addition to any other relief to which it may be entitled. |
24. | Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall be deemed to be one and the same instrument. |
25. | Severability. If any provision of this Agreement is held to be invalid, such invalidity shall not affect the validity or enforceability of any other provision of this Agreement. |
26. | Time is of the Essence. Time is of the essence in this Agreement pursuant to the time frame and terms described in Sections 2, 3, and 4. |
27. | Force Majeure. Neither party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including, but not limited to Acts of God, Government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected. |
AN INDIVIDUAL:
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AXT, INC.
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By:
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/s/ Davis Zhang
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By:
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/s/ Morris S. Young
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Print Name:
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Davis Zhang
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Name:
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Morris S. Young
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Title:
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Chief Executive Officer
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1.
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This agreement is to be signed by American Xtal Technology employees for new or continued employment by AXT, Inc. DO NOT USE THIS AGREEMENT WHEN RETAINING INDEPENDENT CONTRACTOR OR CONSULTANT SERVICES.
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2.
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To Be Completed Before Signing. |
(a)
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Exhibit A (“Prior Inventions”) must be completed prior to signing this agreement in accordance with Paragraph 8 (“Disclosure of Prior Inventions”). If the employee has no such prior inventions, complete the form by writing, “No such prior inventions exist.”
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3.
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Signature. Have the employee sign and date both the signature page and Exhibit B (“Limited Exclusion Notification”) in accordance with Paragraph 14 (“Nonassignable Inventions”).
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“COMPANY”
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“EMPLOYEE”
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AXT, Inc.
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By:
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By:
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/s/ Davis Zhang | |||
Printed Name:
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Andrew Sie
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Printed Name:
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Davis Zhang
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Title:
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Director of Human Resources
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Title
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President - Substrate Division
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Dated:
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Dated:
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1/27/00
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Employee Signature:
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/s/ Davis Zhang | |
Davis Zhang
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(Printed Name of Employee)
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Date:
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1/27/00
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WITNESSED BY:
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/s/ Soraya Rodriguez
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Soraya Rodriguez HR Rep
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(Printed Name of Witness/Company Representative)
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Date:
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1/27/00
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