EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made as of this
16th day of August, 1999, by and between Plasma-Therm, Inc., a Florida
corporation (hereinafter referred to as the "Company"), and Xxxx X. Xxxx
(hereinafter referred to as "Employee").
WHEREAS, Company desires to employ Employee and Employee
desires to accept such employment and both parties are entering into this
Agreement to set forth their entire understanding with respect to such
employment;
NOW, THEREFORE, the parties hereto intending to be legally
bound hereby, and in consideration of the mutual covenants herein contained,
agree as follows:
1. EMPLOYMENT
Company hereby employs Employee and Employee hereby
accepts such employment upon the terms and subject to the conditions set forth
herein.
2. TERM
The term of this Agreement shall be for a period of
two (2) years commencing on the 16th day of August, 1999, and terminating on the
15th day of August, 2001 (the "Term"). Upon expiration of the initial Term and
any subsequent terms, this Agreement shall automatically renew for additional
subsequent three (2) year Terms unless at least ninety (90) days prior to the
end of the then current Term, either Company or Employee has given written
notice to the other of its or his election to terminate the employment at or
prior to the end of such Term.
3. DUTIES
Subject to the terms and conditions of this
Agreement, the Company shall employ the Employee during the Term (as hereinafter
defined) in such management capacities as may be assigned, from time to time, by
the Company. The Employee accepts such employment and agrees to devote his best
efforts and entire business time, skill, labor and attention to the performance
of such duties.
4. COMPENSATION
Company agrees to pay and Employee agrees to accept
as compensation for all services rendered hereunder:
4.1 A base annual salary of $110,000.00 payable
in accordance with the Company's usual payroll procedures as they may exist from
time to time;
4.2 A commission plan based on sales and
bookings, which may be restructured, from time to time, by the Company; and
4.3 A car allowance in the amount of $1,000.00,
payable monthly.
5. EXPENSES
The parties recognize that in the course of
performing his duties hereunder, Employee may incur expenses. Company agrees to
reimburse Employee upon presentation of vouchers for reasonable expenses
incurred by Employee in the performance of his duties hereunder according to the
Company Travel and Expense policy.
6. FRINGE BENEFITS
Employee shall be entitled to such fringe benefits
paid for or supplied by Company and shall be further entitled to the following:
6.1 Participation in retirement and Employee
benefit plans such as 401(k), tuition reimbursement, health, dental, accident,
disability, life, or other group insurance plans, and other plans as Company
determines from time to time to make available generally to the other executive
employees of Company.
6.2 Nothing herein shall be construed to alter,
amend or modify the terms of any stock option plan or policy that may be made
available to Employee by Company. Upon termination of this Agreement for any
reason, any and all such benefits granted under any such plan or policy shall be
governed by the terms and conditions of that plan or policy as it may exist from
time to time.
7. DEATH OR DISABILITY
In the event the Employee becomes permanently
disabled so that he is unable to perform his essential employment duties
hereunder, and no requested reasonable accommodation of Employee's disability is
possible, this Agreement shall terminate. Notwithstanding the foregoing, the
compensation then payable by Company to Employee pursuant to Section 4 hereof
shall continue to be paid as if Employee were not disabled in any way, until the
end of the current Term of employment pursuant to Section 2 hereof. For the
purposes of this Agreement, the term "permanent disability" shall mean any
disability lasting ninety (90) calendar days or more.
In the event Employee becomes temporarily disabled so
that he is unable to perform his essential employment duties hereunder, and no
requested reasonable accommodation of Employee's disability is possible, then
Company has the right to terminate this Agreement without cause consistent with
the obligations set forth in Section 8.3.1, except as otherwise provided by law.
For the purpose of this Agreement, the term "temporary disability" shall mean
any disability lasting less than ninety (90) calendar days.
In the event Employee becomes either permanently or
temporarily disabled, Company shall be entitled to credit against its
obligations under Section 7 of this Agreement the amount of any and all other
disability benefits provided by or paid for by the
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Company that inure to Employee's benefit. In the event this Agreement is
terminated pursuant to this Section, should an Employee's disability cease prior
to the expiration of the Term of employment during which the Agreement was
terminated, then Employee remains obligated to return to his employment duties
with the Company for the balance of the then current Term, at the Company's
option.
The terms "disability" and "disabled" as used in this
Agreement connote the inability of Employee, for a period of time greater than
seven (7) consecutive business days, to perform his regular employment duties
hereunder as a result of death, mental or physical illness, or injury or
accident.
8. TERMINATION
8.1 Notwithstanding anything herein contained to
the contrary, subject to Section 7 hereof, Company shall have the right to
terminate this Agreement "with cause." A termination "with cause" may occur as
provided by law or as a result of any criminal activity, reckless misconduct,
gross negligence, non-satisfactory performance or abandonment of corporate
responsibility. In the event of a termination by Company with cause, Company
agrees to provide Employee with one (1) day's notice and pay, but will not have
any further obligations under this Agreement, except as provided by law. Company
may elect to waive the one (1) day notice requirement by providing one (1) day's
pay in lieu of notice.
8.2 During the Term of this Agreement, Employee
will not have, either directly or indirectly, any more than ten percent (10%)
equity interest in any entity, including any person, partnership, trust or
incorporated or unincorporated association or entity, that is manufacturing,
distributing or marketing products or services directly competitive to those
manufactured, distributed or marketed by Company. It is expressly understood
that such ownership or interest may represent a conflict of interest which may
be grounds for Company to terminate this Agreement with cause.
8.3 Notwithstanding anything herein contained to
the contrary, subject to Sections 7 and 8 herein, Company and Employee shall
have the right to terminate the Agreement hereunder without cause.
8.3.1 In the event Company terminates the
Agreement without cause, pursuant to Section 8.3 herein, Employee shall receive
the full compensation hereunder for the then remaining Term of this Agreement
pursuant to Section 2. Company reserves the right to exercise its option to pay
the comparable value of any benefit set forth in Section 6, above, to which
employee is entitled, rather than continuing the benefit for the balance of the
Term; EXCEPT THAT, Employee will not have any continuing rights under the 401(k)
plan or other defined benefit plan, except as otherwise provided by law.
8.3.2 In the event Employee terminates the
Agreement without cause, Employee must provide Company with at least ninety (90)
days' advance written notice. Upon the expiration of the ninety (90) day notice
period, all obligations by Company to the Employee, except those provided by
law, shall cease. Failure to provide Company with at least ninety (90) days'
advance written notice constitutes grounds for Company to terminate the
Agreement with
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"cause" as provided in Section 8.1 above, and voids any other right that
Employee may have to compensation, benefits or plans pursuant to Company
programs or policies, except those required to be provided by law.
8.4 In the event of a "Change in Control" of
Company, as defined in Sections 10 and 11 below, the following shall apply:
(a) Upon a Change in Control, if the Term of the
Agreement has less than twelve (12) months remaining, the Term of this Agreement
shall be extended so that a twelve (12) month Term remains from the time of the
Change in Control to the end of the Term. The extended Term of the Agreement
will be on terms identical to those in effect at the time of the Change in
Control. In the event that more than twelve (12) months of the Term exists as of
the time of a Change in Control, there will be no change in the Term.
(b) Employee commits to continue to perform his
duties under this Agreement for a minimum of twelve (12) months after a Change
in Control. At the end of twelve (12) months after a Change in Control, Employee
has the option to voluntarily terminate this Agreement. In the event Employee
terminates the Agreement pursuant to this Section 8.4, Employee must provide
Company with at least ninety (90) days' advance written notice. Upon expiration
of the ninety (90) day notice period, all obligations by Company to Employee,
except those provided by law, shall cease.
(c) In the event of a Change of Control, all
stock options granted under the Company's 1995 Stock Incentive Plan (the "Plan")
shall immediately become fully vested and exercisable. In addition, in the event
of a Change of Control, the Stock Option Committee shall have the discretion to
accelerate the termination of any stock option granted under the Plan to a date
no earlier than six (6) months following the date of a Change of Control.
8.5 With respect to any payments due and owing
as a result of any termination pursuant to this Section 8, Employee may, at
Company's option, receive payment for any such obligations in a one-time lump
sum payment, or, may continue to receive payments in accordance with Company's
usual payroll procedures, as they may exist from time to time.
9. COVENANTS BY EMPLOYEE
9.1 Employee hereby acknowledges that Company is
one of only a small number of companies worldwide that designs, manufactures and
sells plasma process thin film etching and deposition equipment. Employee also
acknowledges that pursuant to his prior relationship with Company, and under the
terms of this Agreement, he will gain access to valuable trade secrets of
Company and other valuable confidential business and proprietary information,
and will become aware of and a part of Company's substantial relationships with
customers, potential customers, suppliers, and sources. Accordingly, Employee
hereby covenants that he shall not, either directly or indirectly, as a
principal, partner, stockholder, officer, director, agent or employee, or in any
other capacity, enter into any employment agreement, or accept employment with
or render services for, any company, partnership, person or entity that competes
or attempts to compete, whether directly or indirectly, with Company, for
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the balance of the then remaining Term of this Agreement, not to exceed twelve
(12) months, regardless of the reason for said termination.
9.2 The Employee agrees that he shall not
solicit or attempt to solicit, sell to, lease to or offer to sell to, or offer
to lease to, except on behalf of Company or any Affiliate, any present or future
customer of Company or Affiliate, any goods or services competitive to the goods
and services now or hereafter offered for sale or lease by Company or any
Affiliate for the periods of time set forth in Section 9.1 herein.
9.3 The parties hereto recognize that the
covenants of Employee herein contained are unique and that in the event there is
a breach or threatened breach of such covenants, Company shall be entitled, in
addition to any other remedies available to it, to institute and prosecute
proceedings in any court of competent jurisdiction either in law or in equity,
to obtain damages for any breach of covenants or to enforce a specific
performance thereof by Employee, or to enjoin Employee from performing services
or doing any act in breach of such covenants.
9.4 For the purposes of this Agreement, the term
"Affiliate" shall mean any person who or which, directly and/or indirectly,
controls, is controlled by or is under common control with another person. For
the purpose of this definition, "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of management and
policies, whether through the ownership of voting securities, by contract or
otherwise. For the purpose of this definition, "person," refers to an
individual, partnership, company, corporation, or other entity.
9.5 Employee agrees that during the Term hereof
and after the termination of Employee for any reason whatsoever, the Employee
shall not disclose to any person, firm, partnership, company, or other legal
entity any information concerning any of the methods of conducting business
utilized by Company or any Affiliate or any details relating thereto including,
but not limited to, the names of suppliers, customers and methods of operation
of Company or any of its Affiliates; Employee hereby acknowledges that this
information is confidential in nature. This provision shall not be construed to
prevent Employee from using any knowledge that he possessed at the time he
commenced his employment with Company or from using any information that is not
confidential.
9.6 Employee has carefully read the provisions
of Section 9 herein, and of each subsection or subparagraph thereof, and having
done so agrees that:
(a) the restrictions set forth therein are fair
and reasonable and are reasonably required for the protection of the interests
of Company; and
(b) each subsection or subparagraph set forth
therein is separate and independent and all are to be construed as separate and
independent of any other so as to promote their enforcement to the maximum
extent possible.
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10. CHANGE IN CONTROL
"Change in Control" as used in this Agreement shall
refer to any one or more of the following:
(a) the acquisition in any manner of the
beneficial ownership of shares of Company having twenty percent (20%) or more of
the total number of votes that may be cast for the election of one or more
directors of Company by any person, or persons acting as a group within the
meaning of Section 13(d) of the Securities and Exchange Act of 1934, if the
Board has made a determination that such acquisition constitutes or will
constitute control of Company;
(b) any liquidation, dissolution or sale of all
or substantially all of the assets of Company; or
(c) any action taken following, as a result of,
or in connection with, any tender or exchange, offer, merger or other business
combination of the foregoing whereby the persons who were the Directors of
Company immediately prior to such action shall cease to constitute a majority of
the Board of Company or any successor to Company.
The term "Person," as used in this Section 10, refers to an individual,
partnership, company, corporation, or other entity.
11. ASSIGNABILITY
Employee may not transfer or assign this Agreement to
any other person. Company may assign this Agreement to any other company or
entity that acquires all or substantially all of the assets of Company, without
further permission of the Employee. In the event Company assigns this Agreement,
said assignment will be deemed to constitute a "Change in Control" as referred
to in Sections 8.4 and 10, above.
12. PAID TIME OFF
Employee shall be entitled to take Paid Time Off at
such time as shall reasonably be requested by Employee and approved by Company
in accordance with Company policy, not to exceed the maximum allowable under
Company policy. Paid Time Off per annum not used, shall be forfeited according
to Company policy. In the event of termination without cause by Company or by
Employee or with cause by Employee, Employee will receive cash equivalent of
time not yet taken during the Term in accordance with Company policy.
13. MISCELLANEOUS PROVISIONS
13.1 NOTICES
Any notice required or permitted to be given under
this Agreement shall be in writing, and shall be deemed to have been given when
delivered personally or sent by registered or certified mail, postage prepaid,
addressed as follows:
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If to Company: Xxxxx X. Xxxxxx, Chief Financial Officer and Secretary
Plasma-Therm, Inc.
00000 00xx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, XX 00000
If to Employee: Xx. Xxxx X. Xxxx
X.X. Xxx 00000
Xx. Xxxxxxxxxx, XX 00000
The designation of the person to be so notified or the address of such person
for the purposes of such notice may be changed from time to time by a similar
notice to be effective ten (10) days after such changed designation is supplied.
13.2 CHOICE OF LAW
This Agreement, and any dispute arising between the
parties by virtue of their relationship under this Agreement, shall be governed
by and construed in accordance with the applicable laws of the State of Florida.
The parties further agree that any lawsuit or action pertaining to, or arising
from, this Agreement, shall be brought in the state or federal courts within the
State of Florida, and the parties expressly waive the right to proceed in any
other jurisdiction or forum.
13.3 ENTIRE AGREEMENT
This Agreement constitutes the full and complete
understanding and agreement of the parties and supersedes all prior
understandings and agreements, and may not be modified or amended orally, but
only by an agreement in writing, signed by the party against whom enforcement of
the Agreement, or of or any waiver, change, modification, extension or discharge
of the Agreement, is sought.
13.4 SEVERABILITY
This Agreement shall be construed to be valid and
enforceable to the full extent allowed by law. It is understood and agreed by
the parties that if any part, term or provision of this Agreement is determined
to be illegal or in conflict with applicable law, the validity of the remaining
portions or provisions shall not be affected, and the rights and obligations of
the parties shall be construed and enforced as if the Agreement did not contain
the part, term or provision held to be invalid.
13.5 INDEMNIFICATION
(a) THIRD-PARTY PROCEEDING: Company shall
indemnify Employee, his heirs, or personal representative, made, or threatened
to be made, a party to any threatened, pending, or completed action or
proceeding, whether civil, criminal, administrative, or investigative, by reason
of the fact that he was or is a corporate agent, or serves or served any other
corporation or other enterprise in any capacity at the request of Company, to
the full extent permitted by Florida law, including, without limitation,
indemnification against his expenses and
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liabilities in connection with the third-party proceeding if he acted in good
faith and in a manner reasonably believed by him to be in, or not opposed to,
the best interests of Company, and with respect to any criminal third-party
proceeding, had no reasonable cause to believe his conduct was unlawful or in
violation of applicable rules. The termination of any third-party proceeding by
judgment, order, settlement, consent, filing of a criminal complaint or
information, indictment, conviction or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that Employee did not act
in good faith and in a manner which he reasonably believed to be in, or not
opposed to, the best interests of Company or, with respect to any criminal
third-party proceeding, had reasonable cause to believe that his conduct was
unlawful.
(b) SCOPE OF EMPLOYMENT: Pursuant to this
Section 13.5, Company shall only indemnify Employee, his heirs, or personal
representative, made, or threatened to be made, a party to any threatened,
pending, or completed action or proceeding, for claims relating to or arising
out of Employee's actions, or omissions, within the scope of his employment by
Company.
(c) The term and conditions of this Section 13.5
shall survive the termination of this Agreement and shall apply to any claims
made against Employee, relating to, or arising from Employee's actions pursuant
to this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement
on the day and year first written above.
PLASMA-THERM, INC.
Witness:
/s/ XXXXXX X. XXXXXXXXX /s/ XXXXX X. XXXXXX
----------------------- -------------------
Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx, Chief Financial Officer
and Secretary
Employee
Witness:
/s/ XXXXXXX X. XXXXXX /s/ XXXX X. XXXX
--------------------- ----------------
Xxxxxxx X. Xxxxxx Xxxx X. Xxxx
