EXHIBIT 10.15
GSI Lumonics
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 1st day of January, 2004 between GSI
Lumonics Inc. (the "Company"), a corporation continued under the laws of New
Brunswick and Xxxxxxx X. Xxxxxxx (the "Executive);
WHEREAS the Company and the Executive have entered into an employment
relationship for their mutual benefit;
NOW THEREFORE THIS AGREEMENT WITNESSES that the parties have agreed
that the terms and conditions of the relationship shall be as follows:
1. DUTIES
1.1 The Company confirms the appointment of the Executive as Chief
Executive Officer of the Company to undertake the duties requested of
the Executive from time to time by the Board of Directors (the "Board")
of the Company or such committee of the Board designated by the Board,
and the Executive accepts the office on the terms and conditions set
forth in this Agreement.
1.2 The Executive, throughout the term of this Agreement shall devote his
full time and attention to business and affairs of the Company and
shall not, without the consent in writing of the Board of Directors
undertake any other business or occupation or become an officer,
employee, agent or consultant of any company, firm or individual nor
hold more than 5% of the issued shares or stock of any company.
1.3 The Executive shall faithfully serve the Company and use his reasonable
best efforts to promote the interests thereof.
2. TERM
2.1 The appointment of the Executive shall be for three years from the date
hereof unless terminated sooner in accordance with the provisions of
this Agreement.
2.2 If the employment of the Executive by the Company continues, in
accordance with the provisions of this Agreement, until December 31,
2006, the Executive shall have the right to remain in the employ of the
Company, in an advisory and consulting capacity, for an additional two
years (i.e. until December 31, 2008) (the "Extended Period"). During
the Extended Period the Executive shall perform such services as may be
assigned to him from time to time by the Board of Directors provided he
shall not be required to spend more than 50% of his normal working time
on Company business. During the Extended Period the Executive shall be
entitled to an annual salary equal to 50% of the Base Salary and he
shall be entitled to continue to participate in the Company's stock
option plans.
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3. COMPENSATION
3.1 The compensation of the Executive shall be as agreed upon from time to
time between the Executive and the Company and in no case shall it be
less than a base salary of US $400,000 ("Base Salary") plus bonus at
target of 70% of Base Salary.
4. BENEFITS AND VACATION
4.1 The Executive shall be entitled to all benefit coverage offered by the
Company during the Term of this Agreement.
5. NON COMPETITION
5.1 The Executive agrees that the nature of the services to be provided by
the Executive (which the Executive acknowledges are of a special,
unique, extraordinary and intellectual character), places the Executive
in a position of confidence and trust with suppliers, customers and
employees of the Company. The Executive also acknowledges that the
suppliers and customers serviced by the Company are located throughout
the world and, accordingly, it is reasonable that the restrictive
covenants set forth herein are not limited by any geographical area.
The Executive understands and accepts the provisions of this Agreement
may limit the employment opportunities available to the Executive
following me termination of this Agreement. The Executive understands
and agrees that it is reasonable and necessary for the protection and
goodwill of the business of the Company that the Executive makes the
covenants contained herein.
5.2 Accordingly, it is agreed that the Executive will not, at any time
during the 24 months immediately following the termination of this
Agreement for any reason (whether such termination is for cause,
without cause, or by resignation of the Executive, or by frustration of
this Agreement, or by passage of time) directly or indirectly either
alone or in conjunction with any individual or firm, corporation,
association or other entity, whether as principal, agent shareholder,
investor or in any other capacity whatsoever:
(i) carry on, or be engaged in, concerned with or interested in,
directly or indirectly, any business which relates to the
establishment, development, promotion, marketing, sales or
other provision of products or services similar to those which
the Company is engaged (except for an equity share investment
in a public company whose shares are listed on a stock
exchange where such investment does not in the aggregate
exceed 5% of the issued equity shares of such company);
(ii) attempt to solicit away from the Company any person or
entities with whom the Company or both are engaged including
suppliers, employees, customers, agents or distributors;
(iii) take any act as a result of which the relations between the
Company and any of their suppliers, customers, employees,
agents, distributors or others may be impaired or which may
otherwise be detrimental to the business of the Company.
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6. CONFIDENTIALITY
6.1 The Executive acknowledges that, by virtue of his position in the
Company he will have access to confidential information belonging to
the Company. The Executive therefore undertakes that he shall neither
during the term of this agreement nor at any time thereafter publish,
disclose or otherwise communicate to any person, company, business
entity or other organization whatsoever or make use of any confidential
information belonging or relating to the company, except with the prior
written approval of the Company or strictly in accordance with the
terms of this Agreement.
6.2 For the purposes of this Agreement, "Confidential Information" means
all materials relating to the business or affairs of the Company,
whether of a technical, operational or economic nature, including,
without limitation, all unpublished information, prices and discounts,
data, designs, trade secrets, know- how, formulae, plans, techniques,
processes, manuals, documents, records, drawings, specifications,
samples, studies, findings, inventions, software, source- code, ideas
whether patented, patentable of not, reports, information concerning
employees or officers, financial information and plans, information
relating to business and financial dealings, research activities,
business marketing or strategic plans and projects whether present or
future, equipment, working materials, and lists or identity of
customers whether they be in written, graphic, oral form or other form
whatever prepared by the Company or by the Executive on behalf of or
for the Company or otherwise disclosed to the Executive in the course
of his engagement and any know-how of the Company or information
relating to the Company or to any person, firm or other entity with
which the Company does business which is not generally know to persons
outside the Company, and any document marked "Confidential" or which
the Executive might reasonably expect the Company would regard as
confidential. The Executive acknowledges that the foregoing is intended
to be illustrative and that other confidential information may exist or
arise in the future.
6.3 Without prejudice to the generality of this Article, the Executive
acknowledges that the following "Confidential Information" if
disclosed or used in contravention of this Article would cause the
Company substantial damage or loss:
(i) names of clients, customers or suppliers of the Company prior
to the termination of this Agreement;
(ii) discounts, special prices or special contact terms offered to
or agreed with clients, customers or suppliers of the Company;
(iii) marketing and sales strategies/plans of the Company
(iv) planned new services or products of the Company
(v) existing or proposed research activities of the Company;
(vi) existing or proposed marketing and sales expenditures of the
Company
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(vii) any drawings, plans designs, processes, formulae,
specifications, know-how, trade secrets or any other
technical data relating to any existing products or services
offered to customers by the Company prior to the termination
of this Agreement;
(viii) any financial dealings of the Company;
(ix) any business transactions or dealing of the Company, or;
(x) the decisions or contents of any board meetings of the
Company.
6.4 The Executive's obligations under this Article shall apply both during
the Term of this Agreement and thereafter without limitation in time
and shall survive the variation, renewal, extension or termination of
this Agreement.
6.5 The Executive's obligations shall not apply in relation to any
Confidential Information which;
(i) the Executive is authorized by the Company to disclose,
publish, communicate or make use of, or which it is necessary
for the Executive to disclose, publish, communicate or make
use of for the proper and efficient discharge of his duties as
an employee of the Company;
(ii) the Executive is required by law or any court or other similar
judicial body or authority to disclose, publish or communicate
or;
(iii) has come into the public domain other than by way of
unauthorized disclosure by the Executive.
6.6 The Executive agrees that in the event of any violation of the
provisions of this Agreement, the Company in addition to any other
right or relief to which it may be entitled, shall be entitled to an
injunction restraining further breaches of this Agreement and the
Company, upon applying for an injunction, will not be required to prove
the inadequacy remedies at law.
7. REASONABLENESS OF NON-COMPETITION AND CONFIDENTIALITY
7.1 The Executive understands and agrees that the Company has a material
interest in preserving the relationship it has developed with its
suppliers and customers against impairment by competitive activities of
a former employee. Accordingly, the Executive agrees that the
restrictions and covenants contained in Articles 5 and 6 and the
Executive's agreement to them by the execution of this Agreement, are
of the essence of this Agreement.
7.2 The Executive understands and agrees that the restrictions and
covenants contained in Articles 5 and 6 constitute material inducements
to the Company to enter into this Agreement and that the Company would
not enter into this Agreement without such covenants.
7.3 No claim or cause of action by the Executive against the Company,
whether predicated on this Agreement or otherwise, nor any assertion
that the Company has not complied with the terms of this Agreement or
has breached this
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Agreement fundamentally or otherwise, shall constitute a defense or bar
to the enforcement by the Company of the covenants or restrictions set
out in Articles 5 or 6.
8. TERMINATION OF EMPLOYMENT
8.1 The parties understand and agree that this Agreement may be terminated
in the following manner in the specified circumstances;
8.1.1 By the Company, in its absolute discretion, without any notice or pay
in lieu thereof, for cause. Any exercise of discretion pursuant to this
paragraph shall be considered and acted upon by the Board of Directors.
For the purposes of this Agreement, cause includes the following:
(i) any material breach of the provisions of this Agreement
(ii) failure or refusal of the Executive to comply with the lawful
directions or instructions of the Company on any material
matter;
(iii) any conduct of the Executive which in the reasonable opinion
of the Company, tends to bring himself or the Company into
disrepute;
(iv) conviction of the Executive of a criminal offense punishable
by felony conviction;
(v) any material act of dishonesty directed at the Company or any
client of the Company;
(vi) use by the Executive of drugs or of alcohol in a manner which
materially affects his ability to perform his employment
duties.
8.1.2 By the Company, in its absolute discretion, without any notice or pay
in lieu thereof, in the case of the Executive's Disability. Disability,
for purposes of this Agreement shall mean any mental or physical
disability or illness which results in the Executive being unable to
substantially perform the duties assigned pursuant to this Agreement
for a continuous period of 150 days or for periods aggregating 180 days
in any period of 365 days. Any exercise of discretion pursuant to this
paragraph shall be considered and acted upon by the Special Committee.
Any such action by the Special Committee shall require a two-thirds
vote of the Special Committee.
8.1.3 Failure by the Company to rely on the provision of this Article to
terminate this Agreement or to sanction or admonish the Executive in any given
instance or instances, shall not constitute a ratification of the act or acts in
question nor be deemed a waiver of the strict terms of this Article.
8.2 The parties understand and agree that any offer or giving of notice (or
payment of pay in lieu of notice) by the Company to the Executive on
termination or proposed termination of this Agreement shall be without
prejudice and shall not prevent the Company from alleging that the
termination was for cause.
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8.3 In the event that the employment of the Executive is terminated by the
Company during the term of this Agreement (a) without cause and (b) not
for reasons of disability, the Executive shall be entitled to the
salary and benefits described in Appendix A to this Agreement. Upon
compliance by the Company of this paragraph, the Executive shall not be
entitled to pursue any legal action of any kind for any additional
payment or notice required to be given. In the event that the Executive
is terminated for cause or disability, the Executive shall not be
entitled to any additional payments or benefits except as required by
law.
8.4 The Executive may voluntarily resign his employment at any time
provided he shall give the Company 90 days notice in writing of his
intention to do so. In the event of his voluntary resignation the
Executive shall be entitled to receive his salary and other benefits up
to, but not after, the date of termination of his employment.
8.5 On termination of employment the Executive shall immediately resign all
offices held (including directorships in the Company) and save as
provided in this Agreement, the Executive shall not be entitled to
receive any severance payment or compensation for loss of office or
otherwise by reason of the resignation. If the Executive fails to
resign as set out herein, the Company is irrevocably authorized to
appoint some person in the Executive's name and on the Executive's
behalf to sign any documents or do any things necessary or requisite to
give effect to it.
9. EMPLOYER'S PROPERTY
9.1 The Executive acknowledges that all things furnished by the Company to
the Executive and all equipment, automobiles, credit cards, books,
records, reports, files, manuals, literature, confidential information
or other materials shall remain and be considered the exclusive
property of the Company at all times and shall be surrendered to the
Company, in good condition, promptly on the termination of the
Executive's employment irrespective of the time, manner or cause of the
termination unless expressly provided in this Agreement. .
9.2 Any and all documents, drawing, things, techniques, computer programs
or related data, invention or improvements of which the Executive may
conceive or make or assist in the conception or making during the
period of this Agreement relating or in any way appertaining to or
connected with the duties, responsibilities or work of the Executive
pursuant to this Agreement or any of the matters which have been, are,
may become or were intended to become the subject of the undertakings
of the Company shall be the sole and exclusive property of the Company,
as the case may be. The Executive will, whenever requested by the
Company whether during or after the termination of this Agreement,
execute any and all applications, assignments and other instruments
which the Company shall deem necessary in order to apply for and obtain
patents, copyright, trademark protection or other rights or protection
in any country for the said documents, drawings, things, techniques,
computer programs or related data, inventions or improvements and in
order to assign and convey to the Company
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the sole and exclusive right, title and interest in and to the said
documents, drawings, things, techniques, computer programs or related
data, invention or improvements.
10. ASSIGNMENT OF RIGHTS
10.1 The rights which accrue to the Company under this Agreement shall pass
to its successors or assigns. The rights of the Executive under this
Agreement are not assignable or transferable in any manner.
11. NOTICES
11.1 Any notice required or permitted to be given to the Executive shall be
sufficiently given if delivered to the Executive personally or if
mailed by registered mail to the Executive's address last known to the
Company.
11.2 Any notice required or permitted to be given to the company shall be
sufficiently given if mailed by registered mail to the Company's Head
Office at its address last known to the Executive, Attention: Chief
Financial Officer.
12. SEVERABILITY
12.1 In the event that any provision or part of this Agreement shall be
deemed void or invalid by a court of competent jurisdiction, the
remaining provisions or parts shall be and remain in full force and
effect.
12.2 In the event that any provision of this Agreement shall in its stated
terms or breadth be deemed void or invalid or unenforceable as a result
a decision by a court of competent jurisdiction, the said provision
shall be valid and enforceable to the extent consistent with the
principle or principles underlying the said decision.
13. ENTIRE AGREEMENT
13.1 This Agreement constitutes the entire agreement between the parties
with respect to the employment and appointment of the Executive and any
and all previous agreements, written or oral, express or implied,
between the parties or on their behalf, relating to the employment and
appointment of the Executive by the Company, are terminated and
cancelled, including but not limited to the Employment Agreement
between the parties dated January 1, 2000 and the Severance Agreement
between the parties dated May 24, 2001 and any and all amendments
thereto.
14. MODIFICATION OF AGREEMENT
14.1 Any modification to this Agreement must be in writing and signed by the
parties or it shall have no effect and shall be void.
15. HEADINGS
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15.1 The headings used in this Agreement are for convenience only and are
not to be construed in any way as additions to or limitations of the
covenants and agreements contained in it.
16. GOVERNING LAW
This Agreement shall be construed in accordance wit the laws of the Commonwealth
of Massachusetts and the U.S.A. without regard to its conflict of law
provisions.
17. FACSIMILE
17.1 This Agreement will be valid and binding whether executed by original
or facsimile signature.
18. COUNTERPARTS
18.1 This Agreement may be executed in any number of counterparts, each of
which will be deemed an original, but all of which together will
constitute on and the same instrument.
IN WITNESS WHEREOF this Agreement has been executive by the parties to
it on the day, month and year first written above.
\s\ XXXX XXXXXXXXXXXX \s\ XXXXXXX X. XXXXXXX
--------------------- --------------------------------------
Witness XXXXXXX X. XXXXXXX
GSI LUMONICS INC.
Per: \s\ XXXX X. XXXXXXX
--------------------------------------
Xxxx X. Xxxxxxx, Chairman of the Board
Per: \s\ XXXXXXXX XXXXXXXX
--------------------------------------
Xxxxxxxx Xxxxxxxx,
Chairman, Compensation Committee
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APPENDIX A
TERMINATION WITHOUT CAUSE
In the event that the employment of the Executive is terminated by the Company
during the term of this Agreement (a) without cause and (b) not for reasons of
disability, the Executive shall be entitled to the following:
1. Base Salary plus bonus at 70% of Base Salary continued for two years from the
date of termination.
2. Company medical and insurance benefits to be continued for a period of two
years from the date of termination. Executive will be required to pay any/all
employee premiums during this period.
3. Company allowance for the use of a leased automobile to be continued for a
period of two years from the date of termination.
4. Annual US $7,000 allowance for tax planning and preparation to be continued
for a period of two years from the date of termination.
5. All unexercised stock options that have not vested shall vest on date of
termination. All options will expire if not exercised within 90 days of the date
of termination.
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