Exhibit 10.13 EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of July 18, 1997 between Xxxxxx X. Xxxxxxxx
(the "Executive") and Helix Technology Corporation, a Delaware corporation (the
"Company").
WHEREAS, the Company is engaged primarily in the business of providing
cryogenic and vacuum equipment and services principally to semiconductor
equipment manufacturers;
WHEREAS, the Executive currently serves as a Senior Vice President of the
Company;
WHEREAS, the Executive's abilities and services are unique and essential to
the prospects of the Company; and
WHEREAS, 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.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
contained herein, the parties hereby agree as follows:
1. Employment; Term.
(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 continue indefinitely thereafter until 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. 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.
(a) Position and Duties. The Company shall employ the Executive as
a Senior Vice President 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 responsibility and
authority for the formulation and execution of the policies relating to the
manufacturing and production operations of the Company and the administration of
its manufacturing and production operations and facilities and such other
responsibilities and authorities as are customarily exercisable by a head of
manufacturing, 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.
(a) Base Salary. During the Employment Period, the Company shall
pay to the Executive an annual base salary at the rate of $170,000 per annum,
payable in accordance with the Company's executive payroll policy. Such base
salary shall be reviewed annually, commencing January 1, 1998, 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 during
the Employment Period 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, and (ii) the rights to
indemnification under Section 5 hereof. 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
Executive being obligated to use his or her reasonable best efforts to secure
employment during such period), 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); and
(iv) the Executive shall be entitled to his rights to
indemnification under Section 5 hereof.
(e) Termination for Good Reason. (i) 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)(iv)
hereof, inclusive.
(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 to
any position that is at least substantially comparable or more
favorable to the positions described in Section 2 hereof, removal of
the Executive from any such position or any change in the Executive's
responsibilities described in Section 2 in any respect which is
materially adverse to the Executive;
(C) a diminution of any of the Executive's significant
duties or the assignment to the Executive of any duties inconsistent
with his duties or the material impairment of the Executive's ability
to function in the positions described in Section 2 hereof, in each
case 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.
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.
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 Xxxxxxxx II, Esquire, Xxxxxx & Dodge LLP, Xxx
Xxxxxx Xxxxxx, 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. 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
----------------------------
President
EXECUTIVE:
/s/ Xxxxxx X. Xxxxxxxx
----------------------------
Xxxxxx X. Xxxxxxxx
