EXHIBIT 10.8
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (herein "Agreement") is entered into as of
August 7, 2001, by and between JMAR/XXX NANOLITHOGRAPHY, INC. ("Employer") and
Xxxxxx X. Xxxxxxx ("Employee").
RECITALS
WHEREAS, Employer is a leading manufacturer of X-ray lithography
systems;
WHEREAS, Employer desires to retain the services of Employee; and
WHEREAS, Employee desires to be employed by Employer.
NOW, THEREFORE, Employer and Employee agree as follows:
1. Employment/Title/Responsibilities. Employee's employment shall commence
on the Closing Date of the Merger (as defined in Attachment 1 below).
Employee shall be employed as President, reporting directly to the CEO
of JMAR Technologies, Inc. ("JMAR"), with such duties as may be assigned
to him from time to time by Employer and JMAR. Although his position may
require a reasonable amount of travel, Employee will primarily perform
his job duties at Employee's facility in South Burlington, Vermont.
2. Compensation/Benefits/Review. As compensation for the services provided
by Employee under this Agreement, Employer will pay Employee an annual
salary of $185,000 (base pay), payable in accordance with Employer's
usual payroll procedures. Employee will receive all standard Employer
benefits as described in the enclosed summary of benefits, or to the
extent that the benefit plans provided by Employer's parent, JMAR
Technologies, Inc. ("JMAR"), cannot legally be extended to the employees
of Employer in the State of Vermont, then Employer will provide
alternative benefits comparable to those provided by JMAR to its
employees. In no event will there be any interruption in benefits for
Employee between his employment with XXX, Inc. and his employment with
Employer. Employee's vacation accrual will be modified to carry forward
on Employer's books the amount of vacation Employee has accrued with
XXX, Inc. as of the date of this Agreement and to provide that Employee
will accrue vacation with Employer at the rate of four weeks per year.
Increases in the vacation accrual rate will be in accordance with the
JMAR Employee Handbook which provides that employees with three weeks of
vacation will accrue a fourth week of vacation after five years of
service and employees with four weeks of vacation will accrue an
additional day of vacation for each year of service until an accrual
rate of a maximum of five weeks per years is reached.
3. Employer Stock Options. Upon commencement of Employee's employment,
Employer shall grant him Incentive Stock Options (ISO's) to purchase
30,000 shares of common stock of Employer, pursuant to the terms of
Employer's 2001 Employee Stock Option Plan, a copy of which is delivered
herewith. The ISO's will vest in equal amounts at the end of each of the
first three years after the start date of Employee's employment and will
have an exercise price of $1.00 per share. The other terms of the
options shall be contained in Employer's standard stock option
agreement.
4. JMAR Stock Options. Upon the commencement of Employee's employment, JMAR
shall grant Employee Incentive Stock Options (ISO's) to purchase 40,000
shares of JMAR common stock pursuant to the terms of JMAR's 1999
Employee Stock Option Plan, a copy of which is delivered herewith. The
ISO's will vest in equal amounts at the end of each of the first three
years after the start date of Employee's employment and the exercise
price of the ISO's will be equal to the average closing prices of JMAR
Common Stock for the five trading days prior to the date of the grant.
The other terms of the options shall be contained in JMAR's standard
stock option agreement.
5. Management Incentive Plan/Bonus Plans. For the fiscal years 2001 and
2002, Employee shall participate in the management incentive plan
described on Attachment 1 hereto. Employee shall also be eligible to
participate in such other annual bonus plans as may be recommended from
time to time by the Employer's President and approved by the Board of
Directors of Employer.
6. Employment at Will; Salary Continuation Payments.
6.1 Employee's employment will be "at-will" and may be terminated at any
time, for any reason, by either Employee or Employer. If Employer
terminates Employee for any reason other than pursuant to Paragraph 6.2
below, Employee shall be entitled to receive an amount ("Salary
Continuation Payments") equal to 6 months salary (subject to earlier
termination upon the occurrence of an event specified in Paragraph 6.2),
payable commencing on the date of such termination at the rate and times
as such compensation would have been payable to Employee had this
Agreement not been terminated pursuant to this Paragraph 6.1.
6.2 Notwithstanding the provisions of Paragraph 6.1 above, this
Agreement shall terminate (without any right to Salary Continuation
Payments) upon the occurrence of any of the following events: (a) the
death of Employee; (b) the incapacity or disability of Employee, which
renders him unable to perform substantially all of the services
contemplated by this Agreement for a continuous period of sixty (60)
days; (c) the commission of an act of fraud, dishonesty in a matter
which is material to his employment, or embezzlement by Employee; (d)
the willful neglect by Employee in the performance of the services
contemplated
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by this Agreement in such manner as to provide reasonable cause for
terminating his services; or (e) the substantial breach by Employee of
any of the covenants or obligations under this Agreement and such breach
provides reasonable cause for Employer to terminate this Agreement;
provided that, in order to terminate this Agreement pursuant to clauses
(d) and (e) of this Paragraph 6.2, Employer shall have given thirty (30)
days written notice of termination to Employee and Employee shall have
failed to fully cure or correct such willful neglect or breach within
the thirty days immediately following such notice.
6.3 This Agreement may be terminated by Employee on thirty (30) days
written notice of termination to Employer if Employer breaches any of
its covenants or obligations under the Agreement and such breach
provides reasonable cause for Employee to terminate this Agreement. In
such event, Employee shall also be entitled to the Salary Continuation
Payments in the manner provided in Paragraph 6.1 above; provided that,
in order to terminate this Agreement pursuant to this provision,
Employer shall have failed to fully cure or correct such breach within
the thirty days immediately following such notice.
7. Reimbursement for Expenses. Employer will reimburse Employee for all
reasonable expenses incurred by him on the business of Employer in
accordance with Employer policies in effect from time-to-time.
8. Confidential Information. Concurrently herewith, Employee shall enter
into an Employee Confidentiality and Inventions Agreement with Employer
in the form provided to Employee.
9. No Violation of Other Contracts. Employee represents and warrants that
the execution, delivery and performance of this Agreement by Employee
does not and will not result in a breach of or violation of, or
constitute a default under, any agreement to which Employee is a party
or by which Employee is bound.
10. No Conflicts of Interest. Employee represents and warrants that he does
not have any financial interest, whether by stock ownership or
otherwise, in any entity which is a supplier, customer or competitor of
Employer, other than as a result of investments in mutual funds and
similar investment vehicles over which Employee has no control and other
than ownership of shares of common stock of publicly traded companies
not in excess of 1% of such company's equity. Nothing in this section
shall prevent the Employee from making investments in the common stock
of JMAR Technologies, Inc., subject to compliance with applicable
securities laws.
11. Compliance with Employer's Rules. Employee agrees to comply with all of
the rules, regulations and standard practices of Employer as in effect
from time to time. Employer will provide Employee with all such current
rules, regulations and standard practices and all future updates.
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12. General Provisions.
12.1 Assignment. Neither the rights nor obligations under this Agreement
may be assigned, transferred, pledged or hypothecated by any party
hereto, except that this Agreement shall be binding upon and inure to
the benefit of any successor of Employer.
12.2 Notices. Any notice required or permitted to be given under this
Agreement shall be deemed to have been duly given if in writing and if
personally delivered or sent by registered or certified mail, return
receipt requested, with postage prepaid:
if to Employer:
JMAR/XXX NanoLithography, Inc.
c/o JMAR Technologies, Inc.
0000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: General Counsel
If to the Employee:
Xxxxxx Xxxxxxx
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Any party may change the address to which notices are to be sent to it
or him by giving ten days' written notice of such change of address to
the other party in the manner above provided for giving notice. Notices
will be considered delivered on the date of personal delivery or on the
date of deposit in the United States mail in the manner above provided
for giving notice by mail.
12.3 Arbitration. Any controversy or claim arising out of or relating to
this Agreement, or the breach thereof, shall be settled by arbitration
at South Burlington, Vermont, in accordance with the Commercial
Arbitration Rules of the American Arbitration Association, and judgment
upon the award of the arbitrator(s) shall be entered in any court with
appropriate jurisdiction as the final binding judgment. In addition to
any other relief as may be granted, the prevailing party shall be
entitled to reasonable attorneys' fees in such arbitration, with the
amount thereof to be determined by the arbitrator or the court.
12.4 Counterparts. This Agreement may be executed in several
counterparts, and all counterparts so executed shall constitute one
agreement binding on all of the parties hereto notwithstanding that all
parties are not signatory to the original or same counterpart.
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12.5 Entire Agreement. This Agreement constitutes the entire agreement
and understanding between Employee and Employer with respect to the
employment of Employee, and supersedes all other agreements, written or
oral, regarding such employment. This Agreement may be altered or
amended only by a written instrument executed by each of the parties
hereto.
12.6 Severability. If any provision of this Agreement or the application
thereof to any person or circumstance shall be invalid or unenforceable
to any extent, the remainder of this Agreement and the application of
such provisions to other persons or circumstances shall not be affected
thereby and shall be enforced to the greatest extent permitted by law.
12.7 Interpretation of Agreement. In the event of any arbitration or
other dispute, neither this Agreement nor any provision hereof shall be
interpreted for or against any party on the basis said party or its
attorney drafted the Agreement or provision in question.
12.8 Waiver. The waiver by any party hereto of a breach of any of the
provisions of this Agreement by the other party shall not operate or be
construed as a waiver of any subsequent breach hereof by such party.
12.9 Vermont Law. This Agreement shall be governed by and considered in
accordance with the laws of the State of Vermont.
12.10 Headings. The subject headings of the Sections of this Agreement
are included for the purposes of convenience only and shall not affect
the construction or interpretation of any term or provision hereof.
12.11 Disclosure. Subject to Employer's disclosure obligations under
applicable laws, Employer and Employee agree not to publicly disclose
the terms of this Agreement without each other's prior consent which
will not be unreasonably withheld.
AGREED TO AND ACCEPTED BY:
Employer: Employee:
JMAR/XXX NANOLITHOGRAPHY, INC.
By: /s/ XXXX X. XXXXXXXX /s/ XXXXXX X. XXXXXXX
Xxxx X. Xxxxxxxx, Xxxxxx X. Xxxxxxx
Chairman of the Board and
Chief Executive Officer
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Attachment 1
(Employee Bonus Plan)
Employee shall participate in the management incentive plan. The initial
management incentive bonus pool shall provide for a total bonus pool of $100,000
that is earned if a "Qualifying Order" (as defined in the Merger Agreement,
dated as of July 25, 2001, among JMAR, Employer and XXX, Inc.) has been received
by December 31, 2002. If earned, payment of this bonus shall be made no later
than January 31, 2003.
Employee's allocation of the above bonus pool shall be recommended by the
Employer's President and approved by the Employer's Board of Directors.
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