EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of August 1, 2002 between Xxxxxx X.
Xxxxxxxx (the "Executive") and Helix Technology Corporation, a
Delaware corporation (the "Company")
The Company and the Executive desire to enter into this Agreement
to provide for the continued employment of the Executive by the
Company upon the terms and subject to the conditions set forth
herein.
Accordingly, in consideration of the premises and the mutual
agreements contained herein, the parties hereby agree as follows:
1. Employment; Term.
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(a) Employment. The Company hereby employs the Executive, and
the Executive hereby agrees to be employed by the Company, upon
the terms and subject to the conditions contained in this
Agreement.
(b) Term. The term of this Agreement (the "Term") shall commence
on the date hereof and shall terminate on the Executive's "normal
retirement date" as defined in the Helix Technology Corporation
Employees' Pension Plan (unless extended by mutual agreement),
except as Executive's employment is earlier terminated pursuant
to Section 4 hereof. As used herein, the term "Employment
Period" shall mean the period commencing on the date hereof and
ending on the date of termination of Executive's employment with
the Company pursuant to Section 4 hereof or upon expiration of
the Term. For purposes of Section 4(d)(ii) the Executive's "Date
of Hire" shall be defined to be July 12, 1979.
2. Position; Duties; Responsibilities.
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(a) Position and Duties. The Company shall employ the Executive
as a senior officer of the Company. The Executive shall
faithfully and loyally perform to the best of his abilities all
the duties reasonably assigned to him hereunder, shall devote his
full time, attention and effort to the affairs of the Company as
is reasonably necessary for the proper performance of such duties
and shall use his reasonable best efforts to promote the
interests of the Company. Any other commitments or activities
which might impinge on the Executive's full-time performance of
such duties shall be reported to and approved by the Chairman of
the Board of Directors of the Company (the "Board") and the
President of the Company.
(b) Responsibilities. The Executive shall have responsibilities
and authority as are customarily exercisable by a senior officer,
subject in each case to the general supervision and direction of
the Board, the Chairman of the Board and the President of the
Company.
3. Compensation.
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(a) Base Salary. During the Employment Period, the Company shall
pay to the Executive an annual base salary at the rate of
$260,000 per annum, payable in accordance with the Company's
executive payroll policy. Such base salary shall be reviewed
annually, commencing January 1, 2003, and may be increased (but
shall not be decreased except in conjunction with a general
reduction of executive salaries), as determined by the Company's
Human Resources and Compensation Committee (the "Compensation
Committee"). The Executive's base salary, as increased or
decreased hereunder, is referred to herein as the "Base Salary."
(b) Annual Performance Bonus. In the discretion of the Company's
Compensation Committee, the Executive shall be eligible to
receive an annual performance bonus payable in cash for each full
or partial fiscal year of the Company during the Employment
Period in accordance with the Company's performance-based bonus
program for Executive Officers.
(c) Stock Options. In the discretion of the Company's
Compensation Committee, the Executive shall be eligible to
receive from time to time options ("Options") to purchase shares
of Company common stock ("Common Stock") pursuant to the terms of
the Company's 1996 Equity Incentive Plan.
(d) Supplemental Key Executive Retirement Plan. In addition to
the compensation and benefits to which the Executive is entitled
hereunder, the Executive shall be entitled to participate in the
Company's Supplemental Key Executive Retirement Plan (the
"Supplemental Retirement Plan") in accordance with its terms.
(e) Reimbursement of Expenses. The Company shall reimburse the
Executive for all expenses necessarily and reasonably incurred by
him during the Employment Period in connection with the business
of the Company, upon presentation of proper receipts or other
proof of expenditure and subject to such reasonable guidelines or
limitations as are established by the Company from time to time.
(f) Participation in Benefit Plans. During the Employment
Period, the Executive shall be entitled to participate in any
profit sharing plan, retirement plan, group life insurance plan
or other insurance plan or medical expense plan maintained by the
Company for its senior executives generally.
4. Termination.
(a) Death. Upon the death of the Executive, this Agreement shall
automatically terminate and all rights of the Executive and his
heirs, executors and administrators to compensation and other
benefits hereunder shall cease, except for (i) compensation which
shall have accrued to the date of death, including accrued Base
Salary up to the date of termination, prorated Bonus (based on
the same percentage of accrued Base Salary as compared to annual
Base Salary multiplied times the average of the annual Bonuses
paid to the Executive for the three fiscal years of the Company
preceding the Executive's death) and any amounts payable pursuant
to the Supplemental Retirement Plan and (ii) the rights to
indemnification under Section 5 hereof.
(b) Disability. The Company may, at its option, terminate this
Agreement upon written notice to the Executive if the Executive,
because of physical or mental incapacity or disability, fails in
any material respect to perform the services required of him
hereunder for a continuous period of 180 days. Upon such
termination, all obligations of the Company hereunder shall
cease, except for (i) compensation which shall have accrued to
the date of termination, including accrued Base Salary up to the
date of termination, prorated Bonus (based on the same percentage
of accrued Base Salary as compared to annual Base Salary
multiplied times the average of the annual Bonuses paid to the
Executive for the three fiscal years of the Company preceding the
termination of this Agreement pursuant to this Section 4(b)) and
any amounts payable pursuant to the Supplemental Retirement Plan,
(ii) the rights to indemnification under Section 5 hereof and
(iii) the Company shall continue to pay the Executive 60% of Base
Salary as it exists on the date of termination, less any payments
to the Executive under the Company's long-term disability
protection plan or other plan, through the period beginning on
termination of the Executive's employment with the Company by
reason of disability and ending on the Executive's normal
retirement date as defined in the Company's pension plan. In the
event of any dispute regarding the existence of the Executive's
incapacity hereunder, the matter shall be resolved by the
determination of a majority of three physicians qualified to
practice medicine in the state of the Executive's residence, one
to be selected by each of the Executive and the Board and the
third to be selected by such two designated physicians. For this
purpose, the Executive shall submit to appropriate medical
examinations.
(c) Cause. (i) The Company may, at its option; terminate the
Executive's employment under this Agreement for "Cause" (as
hereinafter defined). A termination for Cause shall not take
effect until and unless the Company complies with this Section
4(c)(i). The Executive shall be given written notice by the
Company of the intention to terminate his employment hereunder
for Cause (the "Cause Notice"). The Cause Notice shall state the
particular action(s) or inaction(s) giving rise to termination
for Cause.
(ii) As used in this Agreement, the term "Cause" shall mean any
one or more of the following, in any case as determined to have
occurred by not less than two-thirds of the directors then
serving on the Board:
(A) the Executive's refusal to perform specific directives of the
Board which are consistent with the scope and nature of the
Executive's duties and responsibilities as set forth herein or a
material violation by Executive of the policies, procedures or
rules of the Company;
(B) the Executive's commission of, or conviction for, a felony or
any act involving fraud, embezzlement, theft, misrepresentation,
dishonesty or moral turpitude;
(C) the Executive's indictment for commission of a material crime
on the basis of alleged facts of such a serious nature that the
Company has reasonable cause to believe that the Executive cannot
effectively discharge the Executive's duties and
responsibilities, or the Executive's indictment for the
commission of a material business related crime;
(D) any gross or willful misconduct of the Executive resulting in
substantial loss to the Company or substantial damage to the
Company's business or reputation;
(E) gross neglect of the Executive's duties resulting in
substantial loss to the Company or substantial damage to the
Company's business or reputation; or
(F) any material breach by the Executive of this Agreement or any
non-competition agreement between the Executive and the Company.
(iii) The exercise of the right of the Company to terminate this
Agreement pursuant to this Section 4(c) shall not abrogate the
rights or remedies of the Company in respect of the breach giving
rise to such termination.
(iv) If the Company terminates the Executive's employment for
Cause, he shall be entitled to:
(A) accrued Base Salary through the date of the termination of
his employment;
(B) any amounts owing but not yet paid pursuant to Section 3(e);
and
(C) other or additional benefits to the extent required by any
applicable plans and programs of the Company.
(v) Notwithstanding anything to the contrary contained in this
Agreement, if, following a termination of the Executive's
employment for Cause, a court of competent jurisdiction, in a
final determination, determines that the Executive was not guilty
of the conduct that formed the basis for the termination, the
Executive shall be entitled to the payments and the economic
equivalent of the benefits he would have received had his
employment been terminated by the Company without Cause.
(d) Termination Without Cause. If, during the Employment Period,
the Company terminates the employment of the Executive hereunder
for any reason other than a reason set forth in Section 4(a),
4(b) or 4(c):
(i) concurrent with such termination, the Company shall pay to
the Executive an amount equal to his accrued Base Salary up to
the date of termination, prorated Bonus (based on the same
percentage of accrued Base Salary as compared to the annual Base
Salary multiplied times the average of the annual Bonuses paid to
the Executive for the three fiscal years of the Company preceding
such termination of employment) and any amounts payable pursuant
to the Supplemental Retirement Plan, in each case accrued through
the date of termination;
(ii) the Company shall continue to pay the Executive his Base
Salary, average Bonus (based on the average of the annual Bonuses
paid to the Executive for the three fiscal years of the Company
preceding such termination of employment divided by the
applicable pay period (said Base Salary and average bonus being
payable pro-rata to the Executive on the Company's usual payroll
dates)) and all other benefits which would otherwise be payable
hereunder for a period of twelve months if the effective date of
the termination of the Executive's employment with the Company
under this Section 4(d) occurs at least one year after the
Executive's Date of Hire and for a period of twenty-four months
if the effective date of the termination of the Executive's
employment with the Company under this Section 4(d) occurs at
least five years after the Executive's Date of Hire; provided,
however, that if, prior to the end of such period, the Executive
shall obtain employment with another employer, the amounts
otherwise payable pursuant to this clause (ii) shall be reduced
by the amount of compensation earned by the Executive from his or
her new employment during such period (except that in no event
shall any such reduction result in the Executive receiving an
amount pursuant to this clause (ii) that would be less than the
amount the Executive would have earned if his Base Salary,
average Bonus and other benefits had been continued for a period
of six months following such termination);
(iii) the Executive shall be entitled to any amounts owing but
not yet paid pursuant to Section 3(e);
(iv) the Executive shall be entitled to his rights to
indemnification under Section 5 hereof; and
(v) the Executive's vested Options shall be exercisable for one
year from the date of termination of Executive's employment, but
in no event beyond the term of the Options.
(e) Termination for Good Reason. If, during the Employment
Period, the Executive terminates his employment hereunder for
"Good Reason" (as such term is defined in Section 4(e)(ii)
hereof, he or she shall be entitled to all of the payments and
benefits specified by Sections 4(d)(i) through 4(d)(v) hereof,
inclusive, and, in addition, the Executive's Options shall be
vested as if the Executive had remained employed with the Company
for an additional two years from the date of termination of
Executive's employment with the Company.
(ii) For purposes of this Agreement, "Good Reason" shall mean,
without the Executive's express written consent, the occurrence
of any one or more of the following events:
(A) a material breach of this Agreement by the Company;
(B) the failure to elect or re-elect the Executive as a senior
officer of the Company;
(C) a diminution of the Executive's responsibilities and
authority described in Section 2 resulting in responsibilities
and authority in any material respect inconsistent with the
responsibilities and authority of a senior officer of the
Company, only after the Company shall have had an opportunity to
cure (any such cure to be effected within 30 days after
appropriate written notice of the basis for Good Reason is given
to the Company by the Executive);
(D) a material reduction of any benefit enjoyed by the Executive
or the failure to continue the Executive's participation in any
incentive compensation plan, unless a plan providing a
substantially similar economic opportunity is substituted or all
senior executives suffer a substantially similar reduction or
failure;
(E) the relocation of the Executive's office to a location more
than 50 miles from Mansfield, Massachusetts; or
(F) the failure of the Company to obtain the assumption in
writing of its obligation to perform this Agreement by any
successor to all or substantially all of the assets of the
Company within 15 days after a merger, consolidation, sale of
assets or similar transaction.
(f) Voluntary Termination. If, during the Employment Period, the
Executive voluntarily terminates his employment hereunder for any
reason other than Good Reason, he shall be entitled to the
payments specified by Sections 4(c)(iv)(A) through 4(c)(iv)(C)
hereof, inclusive.
(g) Retirement. Upon the Executive's "normal retirement date" as
defined in the Helix Technology Corporation Employees' Pension
Plan, this Agreement shall automatically terminate and the
Executive shall be entitled to the payments specified by Sections
4(c)(iv)(A) through 4(c)(iv)(C) hereof, inclusive.
5. Indemnification. To the fullest extent permitted by law, the
Certificate of Incorporation of the Company, the By-laws of the
Company or any indemnification agreement entered into between the
Company and the Executive; the Executive (and his heirs,
executors and administrators) shall be indemnified by the Company
and its successors and assigns. The obligations of the Company
pursuant to this Section 5 shall survive the termination of the
Employment Period, except as otherwise provided herein.
6. Non-Competition. For a period of three years following
termination of the Executive's employment with the Company for
any reason except, as set forth below, the Executive agrees that
he will not accept or continue to hold any position in any
capacity, whether as an employee, agent, consultant, investor;
director or otherwise, with any person, firm or corporation,
whose present or planned business is competitive with the
business of the Company as it exists on the date of the
termination of the Executive's employment with the Company. In
the event the Executive's employment with the Company is
terminated by the Company without Cause or by the Executive for
Good Reason, the foregoing non-competition covenant shall apply
for two years following the date of the termination of the
Executive's employment with the Company. The foregoing non-
competition covenant shall not apply to the Executive in any
given instance if the Board waives said covenant in writing with
respect to that instance. Ownership by the Executive of less
than one percent (1%) of the outstanding stock or securities in
any business enterprise shall not itself be deemed to be engaging
in any activity prohibited by this Section 6. The provisions of
this Section 6 and of Section 7 shall survive the termination of
this Agreement.
7. Trade Secrets. If the Executive has not already done so, the
Executive agrees to execute and abide by the Company's standard
form of agreement presently in effect protecting the Company's
inventions, patents and proprietary and confidential information
and the Executive agrees to execute and abide by any subsequent
agreement generally in effect for the Company's officers and key
employees.
8. Insurance. The Company may, at its election and for its
benefit, insure the Executive against disability, accidental loss
or death and the Executive shall submit to such physical
examinations and supply such information as may be required in
connection therewith.
9. Assignment. The rights and benefits of the Executive
hereunder shall not be assignable, whether by voluntary or
involuntary assignment or transfer. This Agreement shall be
binding upon, and inure to the benefit of, the successors and
assigns of the Company, and the heirs, executors and
administrators of the Executive, and shall be assignable by the
Company to any entity acquiring substantially all of the assets
of the Company, whether by merger, consolidation, sale of assets
or similar transaction.
10. Notices. Any notice required or permitted to be given under
this Agreement shall be sufficient if in writing and personally
delivered, sent by certified or registered mail or sent by
overnight courier service as follows: if to the Executive, to
his address as set forth in the records of the Company, and if to
the Company, to the address of its principal executive offices,
attention: President, with a copy to Xxxxxxx Xxxxxx, Esquire,
Xxxxxx & Dodge LLP, 000 Xxxxxxxxxx Xxxxxx at Prudential Center,
Xxxxxx, XX 00000, or to any other address designated by any
party hereto by notice similarly given.
11. Waiver of Breach. A waiver by the Company or the Executive
of any breach of any provision of this Agreement by the other
party shall not operate or be construed as a waiver of any other
or subsequent breach by the other party.
12. Entire Agreement. This Agreement contains the entire
agreement of the parties with respect to the subject matter
hereof and supersedes the agreement dated July 18, 1997 between
the Executive and the Company. This Agreement may be modified
only by an agreement in writing signed by the parties hereto.
13. Severability. In case any one or more of the provisions
contained in this Agreement shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any
other provision of this Agreement, but this Agreement shall be
construed as if such invalid, illegal or unenforceable provision
had never been contained herein. If, moreover, any one or more
of the provisions contained in this Agreement shall for any
reason be held to be excessively broad as to time, duration,
geographical scope, 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 it shall then
appear.
14. Costs. In the event that a dispute shall arise between the
parties hereto with respect to any term or provision of this
Agreement or the subject matter hereof, all costs and expenses
(including attorney fees incurred by the Company or the Executive
associated with such dispute) shall be borne by the respective
party incurring such costs and expenses; provided, however, that
if such dispute is ultimately determined in favor of Executive by
a court of competent jurisdictions, then the Company shall be
required to reimburse the Executive for up to an aggregate
$100,000 of such costs and expenses actually incurred by the
Executive in connection with such dispute.
15. Interpretation; Applicable Law. This Agreement and its
terms are subject to reasonable interpretation by the
Compensation Committee in its sole discretion. The terms of this
Agreement shall be governed by and construed in accordance with
the internal laws (as opposed to the conflict of laws provisions)
of the Commonwealth of Massachusetts.
16. Complete Agreement. This Agreement supersedes all other
prior agreements between the Executive and the Company concerning
the Executive's employment with the Company, and none of such
agreements shall be of any force or effect whatsoever; provided,
however, that nothing contained herein shall be deemed to limit
or otherwise affect the provisions of any non-competition
agreement or code of conduct arrangement between the Executive
and the Company or the provisions of any other agreement,
arrangement or policy concerning the Executive and the Company
that is unrelated to the subject matter of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
HELIX TECHNOLOGY CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
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President
EXECUTIVE:
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
