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EXHIBIT (c)(4)
TERMINATION, NONCOMPETITION AND MUTUAL RELEASE AGREEMENT
THIS AGREEMENT dated December 20, 1999, by and between PLASMA-THERM,
INC., a Florida corporation (the "Employer"), and Xxxxxxx X. Xxxxxxxxx (the
"Employee").
WITNESSETH
WHEREAS, the Employee is employed by the Employer under that certain
Employment Agreement by and between Employer and Employee dated January 22,
1998 and subsequent amendments dated October 1, 1998 and July 19, 1999 (as
amended, the "Employment Agreement") , until the date hereof; and
WHEREAS, the Company is currently contemplating entering into an
Agreement and Plan of Merger (the "Merger Agreement") with an affiliate of
Oerlikon-Xxxxxx Holding AG and Balzers & Leybold (the "Bidder") pursuant to
which the Bidder will make a tender offer (the "Tender Offer") for certain of
the issued and outstanding shares of the Company (the "Shares"); and
WHEREAS, in connection with the making of the Tender Offer the Bidder
has requested that the Employment Agreement by and between the Employer and the
Employee be terminated as set forth herein; and
WHEREAS, the Employee was heretofore granted the right and option to
purchase 560,000 shares of common stock of the Employer in accordance with
certain Stock Option Agreements by and between Employer and Employee (the
"Stock Options"); and
WHEREAS, the Employee and the Employer have determined that it is in
their mutual best interests to terminate their relationship as employee and
employer as set forth herein; provided, however, that this Agreement shall only
become effective if, and as of, the date on which the Bidder first accepts and
pays for any Shares pursuant to the Tender Offer (the "Tender Offer Closing
Date"); and
WHEREAS, the Employer desires to assure itself of the Employee's
continued noncompetition obligations pursuant to the terms hereof; and
WHEREAS, the Employer and Employee desire to mutually release each
other from any and all of their other obligations to each other (except for the
noncompetition provisions contained in the Terminated Agreement which shall
remain in full force and effect) in full and final settlement pursuant to the
terms hereof.
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NOW, THEREFORE, in consideration of the mutual covenants and agreements
of the parties contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
covenant and agree as follows:
1. TERMINATION OF EMPLOYMENT RELATIONSHIP. The Employer and the
Employee hereby agree to terminate their employment relationship;
provided, however, that this Agreement shall only become effective
if, and as of, the Tender Offer Closing Date.
2. EXTENSION OF THE NONCOMPETE DURATION. The Employee hereby agrees
that the noncompete provisions of Section 9 of the Employment
Agreement shall remain in full force and is hereby modified such
that the noncompete period shall be for a period of two years from
the Tender Offer Closing Date.
3. TREATMENT OF THE STOCK OPTIONS. Regardless of the terms contained
in any prior stock option grant agreement, all of the Stock
Options shall remain outstanding and shall be treated the same as
all other outstanding stock options of the Company in accordance
with the Merger Agreement.
4. CONSIDERATION. In consideration for the Employee's covenants, the
mutual release contained in this Agreement, the agreement as to
the treatment of the Stock Options and the tendering of his
resignation from any and all positions as an officer or director
of the Employer, the Employer shall pay the Employee a sum of One
million dollars ($1,000,000) payable in one lump sum payment, one
day after the Tender Offer Closing Date.
The Employee acknowledges that any violation by the Employee of
the noncompete obligation as contained in this Agreement, will
constitute a breach as mentioned in paragraph 13 hereinafter, and
such breach will cause immediate and irreparable harm to the
Employer. Therefore, the Employee consents that in connection with
any threatened or actual violation of the Employee's noncompete
obligations contained in this Agreement, the Employer shall be
entitled to immediately stop its payments to the Employees
hereunder and to offset any outstanding payment obligation with
its own claim for damages suffered.
5. GENERAL MUTUAL RELEASE.
a. Employee, on his own behalf and on behalf of his heirs and
representatives, hereby releases and forever discharges
Employer, along with its respective officers, directors,
employees, assigns, successors, and representatives from all
manner of civil actions, contract actions, tort actions,
statutory actions, administrative actions, injuries, damages,
loss of services, constitutional claims, charges of
discrimination and claims for costs, expenses or attorney's
fees which he had, has, or hereafter can, or may have against
the Employer arising out of any event, act or occurrence
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in any way based on the employment of the Employee by the
Employer, including but not limited to any and all claims,
damages or losses, known or unknown, directly or indirectly
sustained by the Employee in connection with any matter arising
out of their employment relationship, including those arising
in connection with the Stock Options or other employee benefit
programs.
b. Employer, on its own behalf and on behalf of its successors and
assigns, hereby releases and forever discharges Employee, along
with his heir, successors, and representatives from all manner
of civil actions, contract actions, tort actions, statutory
actions, administrative actions, injuries, damages, loss of
services, constitutional claims, charges of discrimination and
claims for costs, expenses or attorney's fees which it had,
has, or hereafter can, or may have against the Employee arising
out of any event, act or occurrence in any way based on the
employment of the Employee by the Employer, including but not
limited to any and all claims, damages or losses, known or
unknown, directly or indirectly sustained by the Employer in
connection with any matter arising out of their employment
relationship; provided, however, that Section 9 of the
Employment Agreement shall remain in full force and effect and
is hereby modified such that the noncompete period shall be for
a period of two years from the Tender Offer Closing Date.
6. RETURN OF EMPLOYER'S PROPERTY. Simultaneously upon the
effectiveness of this Agreement on the Tender Offer Closing Date,
the Employee covenants that he will return any and all material
records, designs, patents, business plans, financial statements,
manuals, memoranda, lists, software and other property delivered
to or compiled by the Employee by or on behalf of the Employer or
its representatives, vendors or customers which pertain to the
business of the Employer and acknowledges that such property is
and shall remain the property of the Employer.
7. NOTICE. For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall
be deemed to have been duly given when hand-delivered, sent by
telecopier, facsimile transmission or other electronic means of
transmitting written documents (as long as receipt is
acknowledged) or mailed by United States certified or registered
mail, return receipt requested, postage prepaid, addressed as
follows:
If to Employee:
Xxxxxx X. Xxxxxxxxx
000 Xxxxx Xxxxx
Xxxx Xxxxxx, XX 00000
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If to Employer:
Plasma-Therm, Inc.
00000 00xx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attn: President
Facsimile: (000) 000-0000
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that a notice of change of address shall
be effective only upon receipt.
8. COMPLETE AGREEMENT. Employee has no oral representations,
understandings or agreements with the Employer or any of its
officers, directors or representatives covering the same subject
matter as this Agreement. This written Agreement is the final,
complete and exclusive statement and expression of the agreement
between the Employer and Employee and of all the terms of this
Agreement, and it cannot be varied, contradicted or supplemented
by evidence of any prior or contemporaneous oral or written
agreements. This written Agreement may not be later modified
except by a further writing signed by a duly authorized officer of
the Employer and Employee, and no term of this Agreement may be
waived except by writing signed by the party waiving the benefit
of such term.
9. EXPENSES INCURRED IN CONNECTION WITH THE ENFORCEMENT OF THIS
AGREEMENT. The Employer and the Employee shall be entitled to
reimbursement for any costs, including legal fees, incurred in
connection with the enforcement of the this Agreement.
10. CHANGE IN CONTROL. Employee understands and acknowledges that the
Employer may be merged, sold, or consolidated with or into another
entity and that such entity shall automatically succeed to the
rights and obligations of the Employer.
11. MISCELLANEOUS. This Agreement shall be binding upon, and inure to
the benefit of, the Employer, its respective successors and
assigns, and the Employee and his heirs, executors, administrators
and legal representatives. The parties agree that if any provision
of this Agreement shall under any circumstances be deemed invalid
or inoperative, the Agreements shall be construed with the invalid
or inoperative provision deleted and the rights and obligations of
the parties shall be construed and enforced accordingly. The
validity, interpretation, construction and performance of this
Agreement shall be governed by the internal laws of the State of
Florida. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but
all of which together will constitute but one and the same
instrument.
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12. COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be executed
in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the
same instrument. This Agreement may be effective upon the
execution and delivery by any party hereto of facsimile copies of
signature pages hereto duly executed by such party.
13. DEFAULT AND CURE PERIOD. In the event of a breach by either party
of the terms of this Agreement, the nonbreaching party will give
prompt written notice of such breach to the other and afford the
breaching party 10 days from receipt of such notice to cure such
breach.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
PLASMA-THERM, INC.,
a Florida corporation
("Employer")
By: Xxxxx X. Xxxxxx
Its: Chief Financial Officer, Treasurer
and Corporate Secretary
/s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
("Employee")
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