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EXHIBIT 10.16
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made as of this 12th day
of July, 2000 (the "Effective Date"), by and between Advanced Thermal
Technologies, Inc., a Delaware corporation (the "Company") and Xxxxx Xxxxxxx
(the "Employee").
RECITALS
WHEREAS, the Company wishes to employ the Employee and the Employee wishes
to accept such employment on the terms and conditions hereafter set forth; and
WHEREAS, the Company wishes to make secure for itself the experience,
abilities and services of the Employee and to prevent the loss of such
experience, services and abilities;
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto, each intending to
be legally bound, do hereby agree as follows:
l. Employment. The Company shall employ the Employee, and the Employee shall
perform services for and continue in the employment of the Company, for an
initial period of three (3) years commencing on the Effective Date, and ending
three (3) years thereafter, whereupon the Employee's employment hereunder shall
automatically be extended from year to year on and after such date, until either
the Company or the Employee gives the other party at least thirty (30) days
written notice prior to the then-applicable "Expiration Date" (as hereinafter
defined of its or his desire to terminate this Agreement, unless such employment
shall have been sooner terminated as hereinafter set forth. For purposes of this
Agreement (i) the term "Employment Period" shall mean the initial three (3) year
period and all extensions thereof, if any, as aforesaid, and (ii) the term
"Expiration Date" shall be the date three years from the Effective Date or the
date this Agreement is last in effect in the event that the Employment Period is
extended on and after the date three years from the Effective Date.
2. Position and Duties. The Employee shall serve the Company in the capacity of
Operations Manager of the Company and, shall be accountable to, and shall have
such other powers, duties and responsibilities, consistent with this capacity,
as may from time to time be prescribed by the President and Chief Operating
Officer (the "President") of the Company, or his designee. The Employee shall
perform and discharge, faithfully, diligently and to the best of his ability,
such duties and responsibilities. The Employee shall devote all of his working
time and efforts to the business and affairs of the Company.
3. Compensation.
(a) Salary. During the Employment Period, the Employee shall receive a
salary (the "Salary") payable at the rate of $81,000 per annum. Such rate may be
adjusted from time to time by the President; provided, however, that it shall at
no time be adjusted below $81,000 per annum. The Salary shall be payable
biweekly or in accordance with the Company's current payroll practices, less all
required deductions. The Salary shall be pro-rated for any period of service
less than a full year.
(b) Incentive Bonus. The Employee may receive a performance bonus of up to
forty (40%) percent, as determined by the President after the end of the 2001
fiscal year and is to be paid as soon as practicable after the close of the
fiscal year. Any subsequent changes to the Employee bonus plan after fiscal year
2001 shall apply to this Agreement.
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(c) Expenses. During the Employment Period, the Employee shall be entitled
to receive prompt reimbursement for all reasonable business expenses incurred by
him on behalf of the Company.
(d) Fringe Benefits. During the Employment Period, the Employee shall be
entitled to participate in or receive benefits under any life or disability
insurance, health, pension, retirement and accident plans or arrangements made
generally available by the Company to its employees, subject to and on a basis
consistent with the terms, conditions and overall administration of such plans
and arrangements. In accordance with the Company policy, the Employee shall also
be entitled to paid vacation in any fiscal year during the Employment Period as
well as all paid holidays given by the Company to its employees.
4. Termination and Compensation Thereon.
(a) Termination Date. The term "Termination Date" shall mean the earlier
of (i) the Expiration Date; or (ii) if the Employee's employment is terminated
(x) by his death, the date of his death; or (y) for any other reason, the date
on which such termination is to be effective pursuant to the notice of
termination given by the party terminating the employment relationship.
(b) Death. The Employee's employment hereunder shall terminate upon his
death. In such event, the Company shall pay to such person as the Employee shall
have designated in a notice filed with the Company, or, if no such person shall
have been designated, to this estate, an amount equal to the Salary that would
have been due to the Employee had this Agreement been in effect from the date of
his death until the Expiration Date.
(c) Incapacity. If in the reasonable judgment of the President, as a
result of the Employee's incapacity due to physical or mental illness or
otherwise, the Employee shall for at least six consecutive months during the
term of this Agreement have been unable to perform his duties under this
Agreement on a full-time basis, the Company may terminate the Employee's
employment hereunder by notice to the Employee. In such event, the Company shall
continue to pay the Employee his Salary (at the rate in effect as of the
Termination Date) and (to the extent legally practicable) extend to him the
applicable fringe benefits referred to in Section 3(d) hereof until the
Expiration Date. The Company's obligation to pay the Employee his Salary and
extend to him such benefits shall terminate if the Employee subsequently takes
other employment to the extent of the Employee's salary and benefits from such
other employment. Any dispute between the President and the Employee with
respect to the Employee's incapacity shall be settled by reference to a
competent medical authority mutually agreed to by the President and the
Employee, whose decision shall be binding on all parties.
(d) Termination by the Company. The Company may terminate the Employee's
employment hereunder for "cause". For purposes of this Agreement, "cause" shall
mean (i) the Employee's material failure, refusal or neglect to perform and
discharge his duties and responsibilities hereunder (including duties prescribed
by the President pursuant to Section 2), other material breach of the terms
hereof, or breach of any fiduciary duties he may have because of any position he
holds with the Company or any subsidiary or affiliate thereof; or (ii) a felony
conviction or a conviction for any crime involving the Employee's personal
dishonesty or moral turpitude. If the Employee's employment is terminated
pursuant to this Section 4(d), the Company shall have no further obligations to
the Employee hereunder after the Termination Date, except for unpaid Salary and
benefits accrued through the Termination Date.
(e) Change of Control. If a "Change of Control" (as that term is defined
in the Company's 2000 Directors' Stock Option Plan) occurs during the Employment
Period and, as a result of such Change of Control, this Agreement or the
Employee's employment is terminated for any reason, or the Employee
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resigns his employment because any of the Employee's position, powers, duties or
responsibilities under Section 2 above are changed without his agreement, or any
compensation or benefit payable or otherwise extended to the Employee hereunder
(including without limitation Salary, incentive bonus, expenses, fringe benefits
and automobile set forth in Section 3 above) is eliminated or reduced, the
Company or its successor in interest shall:
(i) give prompt notice to the Employee of any such termination,
change, elimination or reduction;
(ii) within thirty (30) days after the Termination Date, pay to the
Employee (or in the event of the Employee's subsequent death, such person as the
Employee shall have designated in a notice filed with the Company, or, if no
such person shall have been designated, to his estate) a lump sum amount equal
to the Employee's Salary in effect as of the Termination Date, which lump sum
amount shall not be pro-rated and shall be paid in addition to the Salary due
and payable under (iii) below;
(iii) until the Expiration Date, continue to pay to the Employee (or
in the event of the Employee's subsequent death, such person as the Employee
shall have designated in a notice filed with the Company, or, if no such person
shall have been designated, to his estate) his Salary (in effect as of the date
of the Change of Control), and to extend to him the incentive bonus, expenses,
fringe benefits and automobile set forth in Section 3 above.
The obligations of the Company pursuant to this Section 4 (e) shall
survive any termination of this Agreement or the Employee's employment or any
resignation of such employment by the Employee pursuant to this Section 4(e).
(f) Consulting Period Upon Termination. If the Company fails to extend the
Employee's employment hereunder for a period of at least one year beyond
Expiration Date at his then current Salary and otherwise on the terms and
conditions set forth herein, then the Company shall have the option, at its sole
discretion, of retaining the Employee as a consultant to perform such services
as the Company may reasonably request, in consideration for which services the
Company shall continue to pay the Employee the same Salary and (to the extent
legally practicable) extend to him the applicable fringe benefits referred to in
Section 3(d), as in effect on the Termination Date for the period commencing on
the Termination Date and ending on the date two years after the Termination Date
or on such earlier date as the Company may otherwise specify by at least two
weeks' prior written notice.
(g) Severance Pay. In the event the Company does not retain the Employee
as a Consultant as provided in Section 4(e) hereof, the Employee shall be
entitled to continuation of his then current Salary and medical and dental
benefits as in effect at the expiration of the Employment Period, or any
extension thereof, for a period equal to 12 months, provided, however, that the
Employee's employment was not terminated for cause as set forth in Section 4(d)
hereof.
5. Proprietary Rights and Non-Competition. Employee acknowledges that the
Company is engaged in a continuous program of research, development and
production in connection with its business, present and future and hereby
covenants as follows:
(a) Confidentiality. Employee will maintain in confidence and will not
disclose or use, either during or after the Employment Term, any proprietary or
confidential information or know-how belonging to the Company ("Proprietary
Information" hereinafter defined), whether or not in written form, except to the
extent required to perform duties on behalf of the Company. For purposes of this
Agreement, "Proprietary Information" shall mean any information, not generally
known to the relevant trade or industry, which was obtained from the Company, or
which was learned, discovered, developed,
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conceived, originated or prepared by Employee in connection with this Agreement.
Such Proprietary Information includes, without limitation, software, technical
and business information relating to the Company's inventions or products,
research and development, production processes, manufacturing and engineering
processes, machines and equipment, finances, customers, marketing and production
and future business plans, information belonging to customers or suppliers of
the Company disclosed incidental to Employee's performance under this Agreement,
and any other information which is identified as confidential by the Company,
but only so long as the same is not generally known in the relevant trade or
industry.
(b) Inventions.
(i) Definition of Inventions. For purposes of this Agreement,
"Inventions" shall mean any new or useful art, discovery, contribution, finding
or improvement, whether or not patentable, and all related know-how. Inventions
shall include, without limitation, all designs, discoveries, formulae,
processes, manufacturing techniques, semiconductor designs, computer software,
inventions, improvements and ideas.
(ii) Disclosure and Assignment of Inventions. Employee will promptly
disclose and describe to the Company all Inventions which he may solely or
jointly conceive, develop, or reduce to practice during the Employment Term (A)
which relate at the time of conception, development, or reduction to practice of
the Invention to the Company's business or actual or demonstrably anticipated
research or development, (B) which were developed, in whole or in part, in the
Company's time or with the use of any of the Company's equipment, supplies,
facilities or trade secret information, or (C) which resulted from any work
performed by Employee for the Company (the "Company's Inventions"). Employee
hereby assigns all of his right, title and interest world-wide in the Company's
Inventions and in all intellectual property rights based upon the Company's
Inventions; provided, however, that Employee does not assign or agree to assign
any Inventions, whether or not relating in any way to the Company's business or
demonstrably anticipated research and development, which were made by him prior
to the date of this Agreement, or which were developed by him prior to the date
of this Agreement, or which were developed by him independently during the term
of this Agreement and not under the conditions stated in subparagraph (B) above.
(c) Documents and Materials. Upon termination of this Agreement or any
other time upon the Company's request, Employee will promptly deliver to the
Company without retaining any copies, all documents and other materials
furnished to him by the Company prepared by him for the Company or otherwise
relating to the Company's business, including, without limitation, all written
and tangible material in his possession incorporating any Proprietary
Information.
(d) Competitive Employment. During the Employment Term and for a period of
twelve (12) months thereafter (collectively, the "Extended Term"), Employee will
not engage in any employment, consulting, or other activity in any business
competitive with the Company without the Company's written consent, which
consent shall not be unreasonably withheld.
(e) Non-solicitation. During the Extended Term, Employee will not solicit
or encourage, or cause others to solicit or encourage, any employees of the
Company to terminate their employment with the Company.
(f) Acts to Secure Proprietary Rights.
(i) Further Acts. Employee agrees to perform, during and after the
Employment Term, all acts deemed necessary or desirable by the Company to permit
and assist it, at its expense, in perfecting
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and enforcing the full benefits, enjoyment, rights and title throughout the
world in the Company's Inventions. Such acts may include, without limitation,
execution of documents and assistance or cooperation in the registration and
enforcement of applicable patents and copyrights or other legal proceedings.
(ii) Appointment of Attorney-In-Fact. In the event that the Company
is unable, for any reason whatsoever, to secure Employee's signature to any
lawful and necessary document required to apply for or execute any patent,
copyright or other applications with respect to any of the Company's Inventions
(including improvements, renewals, extensions, continuations, divisions or
continuations in part thereof), Employee hereby irrevocably appoints the Company
and its duly authorized officers and agents as his agents and Attorneys-in-fact
to execute and file any such application and to do all other lawfully permitted
acts to further the prosecution and issuance of patents, copyrights or other
rights thereon with the same legal force and effect as if executed by him,
intending hereby to create a so-called "durable power" which will survive any
subsequent disability.
(g) No Conflicting Obligations. Employee's performance of this
Agreement does not breach and will not breach any agreement to keep in
confidence proprietary information, knowledge or data acquired by him.
(h) Corporate Opportunities. Employee agrees that he will first present to
the Board, for its acceptance or rejection on behalf of the Company, any
opportunity to create or invest in any company which is or will be involved in
precision temperature control of semi-conductors or semi-conductor manufacturing
equipment, which comes to his attention and in which he, or any affiliate, might
desire to participate. If the Board rejects the same or fails to act thereon in
a reasonable time, Employee shall be free to invest in, participate or present
such opportunity to any other person or entity.
(i) Specific Performance. Employee acknowledges that a breach of any of
the promises or agreements contained herein could result in irreparable and
continuing damage to the Company for which ere may be no adequate remedy at law,
and the Company shall be entitled to seek injunctive relief and/or a decree for
specific performance, and such other relief as may be proper (including monetary
damages if appropriate).
6. Amendments. No amendment to this Agreement or any schedule hereto shall
be effective unless it shall be in writing and signed by each party hereto.
7. Notices. All notices and other communications hereunder shall be in writing
and shall be deemed given when delivered personally or sent by telecopy or three
days after being mailed by registered or certified mail (return receipt
requested) to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice):
If to the Company, to it at:
Advanced Thermal Technologies, Inc.
0000 Xxxx Xx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: President
with a copy to:
Advanced Thermal Technologies, Inc.
0000 Xxxx Xx Xxxxx Xxxxxx
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Xxxxxxx, XX 00000
Attention: General Counsel
If to the Employee, to him at:
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx Xxxxx, XX 00000
7. Entire Agreement. This Agreement and the Proprietary Rights and Consulting
Agreement of even date herewith constitute the entire agreement among the
parties hereto pertaining to the subject matter hereof and supersede all prior
and contemporaneous agreements, understandings, negotiations and discussions,
whether oral or written, of the parties.
8. Miscellaneous. The invalidity and unenforceability of any term or provision
hereof shall not affect the validity or enforceability of any other term or
provision hereof. The headings in this Agreement are for convenience of
reference only and shall not alter or otherwise affect the meaning hereof. This
Agreement may be executed in any number of counterparts which together shall
constitute one instrument and shall be governed by and construed in accordance
with the laws (other than the conflict of laws rules) of the State of California
and shall bind and inure to the benefit of the parties hereto and their
respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
EMPLOYEE
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
ADVANCED THERMAL TECHNOLOGIES, INC.
/s/ R. Xxxxx Xxxxxx
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R. Xxxxx Xxxxxx
President and Chief Operating Officer
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