EXHIBIT 10.48
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made as of this 1st day
of October, 1998, by and between Plasma-Therm, Inc., a Florida corporation
(hereinafter referred to as the "Company"), and Xxx X. Xxxxxxxxx (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 three (3) years
commencing on the 1st day of October, 1998, and terminating on the 30th day of
September, 2001 (the "Term"). Upon expiration of the initial Term and any
subsequent terms, this Agreement shall automatically renew for additional
subsequent three (3) 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 $112,800.00 payable in accordance
with the Company's usual payroll procedures as they may exist from time to time;
and
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4.2 An annual bonus based on one-half of one percent (.5%) of
fiscal year Net Earnings, as defined by Company policy, to be paid on a
quarterly basis and reconciled at year end, not to exceed $50,000.00 annually.
4.3 Reimbursement for car-related expenses in the amount of
$600.00, 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. Additionally, Employee will be entitled to reimbursement for
such reasonable expenses granted to other executive level employees which may or
may not be included in 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 Company may elect to pay for the Employee's entire health
insurance premium payments to the extent that this is offered to the other
executive employees of Company. Otherwise, Employee bears the cost of such
benefits, as determined by then existing Company policy.
6.3 If the insurance policy permits, the Employee may at any time
direct Company, in writing to assign the insurance policy or policies to the
Employee. In the event of Employee's termination for any reason whatsoever,
whether or not with cause, payments on the policy or policies, and Company's
obligations, if any, under the policy or policies shall cease.
6.4 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.
6.5 Company presently maintains, and shall continue to maintain
Directors and Officers Liability Insurance coverage for the benefit of Employee
for so long as Employee remains an officer of Company.
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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 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
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
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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
"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
without a loss of benefits, as if Company had terminated this
Agreement "without cause" pursuant to Section 8.3.1 above.
(c) In the event of a Change in Control, Section 4.2, providing
for an annual bonus, will be modified to provide that Employee's
current fiscal year annual bonuses will in no event, be less than the
annual bonus given in the full year prior to the Change in Control.
(d) 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
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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 his 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 the
balance of the then remaining Term of this Agreement or for a period of twelve
months (12) from the termination of this Agreement, whichever is greater,
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.
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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.
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.
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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 five (5) weeks per annum. Paid Time Off less than
five (5) weeks per annum not used, shall either be "cashed out" or 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:
If to Company: Xxxxx X. Xxxxxx, Vice President of Finance & Administration
Plasma-Therm, Inc.
00000 00xx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, XX 00000
If to Employee: Xx. Xxx X. Xxxxxxxxx
0000 Xxxxxxxx Xxxxxx X.X.
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.
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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 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) DERIVATIVE ACTIONS: Company shall indemnify any director or
officer of Company, who was or is a party or is threatened to be made a party to
any derivative action by reason of the fact that such director or officer was or
is a corporate agent, against his expenses in the action if he acted in good
faith and in a manner reasonably believed by him to be in, or not opposed to,
the best interest of Company; except, that no indemnification shall be made in
respect of any claim, issue or matter as to which he shall have been adjudged to
be liable for negligence or misconduct in the performance of his duty to Company
unless and only to the extent that the court in which such derivative action is
or was pending shall determine upon application that, despite the adjudication
of liability but in view of all circumstances of the case, he is fairly and
reasonably entitled to indemnity for such items as the court shall deem proper.
(c) INDEPENDENT LEGAL COUNSEL: In the event of an actual or
potential conflict of interest, Employee shall be entitled to an independent
legal counsel and said counsel shall be chosen by Company, subject to the
consent of Employee, and all such reasonable expenses incurred in defense of
Employee shall be paid directly by Company, or reimbursed to Employee at
Employee's sole option.
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(d) 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.
(e) 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/ XXXXX X. XXXXXX /s/ XXXXXX X. XXXXXXXXX
------------------- -----------------------
Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx
President and Chief Executive Officer
Witness: Employee
/s/ XXXXXXX X. XXXXXX /s/ XX. XXX X. XXXXXXXXX
--------------------- ------------------------
Xxxxxxx X. Xxxxxx Xx. Xxx X. Xxxxxxxxx
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