EXHIBIT 10.3
CONFIDENTIAL
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EXECUTION COPY
EMPLOYMENT AGREEMENT
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This EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into on
January 25, 1995, by and between Cotag International Limited, a company
organized under the laws of England (the "Company"), and Xxxxxx Xxxxx
("Employee").
Recitals
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A. Employee has been employed by the Company (or its subsidiary, Tag
Radionics Limited) since January 1, 1983 and as Chairman and Chief Executive of
the Company since April 28, 1987, and has accumulated experience and knowledge
of value to the Company.
B. The Company desires to provide for the continued employment of Employee
in such a manner as will reinforce and encourage the Employee's highest
attention and dedication to the Company.
C. Employee is willing to continue to serve the Company on the terms and
conditions provided herein.
Terms and Conditions
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In consideration of the covenants and agreements contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Employment. The Company shall continue to employ Employee, and
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Employee shall continue to serve the Company, on the terms and conditions set
forth herein.
2. Term. Subject to the terms and conditions herein, the employment of
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Employee by the Company as provided in Section 1 will be for a term commencing
on the date hereof and expiring on the close of business on January 31, 1997
(the "Primary Term"). Thereafter this Agreement may be terminated by either the
Company or the Employee upon twelve months written notice of termination which
may be given at any time, but not to expire before the expiring of the Primary
Term.
3. Position and Duties. The Company shall engage Employee, and Employee
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shall serve, as Chairman and Chief Executive of the Company with such duties as
may be assigned to him from time to time by the President and Chief Executive
Officer of Amtech Corporation, the Company's parent corporation organized under
the laws of the State of Texas, (hereinafter referred to as the "Amtech CEO").
Employee shall devote
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substantially all his working time and efforts to the business and affairs of
the Company and to the Employee's responsibilities as Vice President-Europe of
Amtech Systems Corporation, a corporation organized under the laws of the State
of Delaware. The location of Employee's principal employment shall be Xxxxxxx
Xxx, Xxxxxxxxx XX0 0XX.
4. Compensation. During the term of Employee's employment hereunder, the
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Company shall pay Employee for his services a base salary of not less than
(Pounds)95,000 per annum (the "Base Salary"), payable monthly in arrears on the
last Friday of every month. The Base Salary includes any amounts that the
Employee may request that the Company contribute to a defined contribution
pension scheme on the Employee's behalf. The Amtech CEO shall review the Base
Salary of Employee once a year and if he, in his sole and complete discretion,
deems an adjustment in the Base Salary is appropriate for any reason whatsoever
(including, but not limited to, a change of Employee's duties), the adjustment
will be effective on the date designated by the Amtech CEO and be evidenced by
appropriate entries on the payroll records of the Company. All applicable taxes
on the Base Salary will be withheld in accordance with applicable taxation
guidelines.
During the Primary Term, the Employee will receive on such dates a minimum
increase equal to the increase in the United Kingdom retail price index for the
twelve months ended on February 1, 1996 and February 1, 1997.
The Employee will have the opportunity to receive on an annual basis an
amount equal to between 25% to 30% of the Base Salary in a bonus (the "Bonus
Opportunity"). For 1995, 1/3 of the Bonus Opportunity is based upon the
Company's financial performance, as set forth in a bonus plan similar to a bonus
plan applicable to the executive management team at Amtech Corporation, the
parent corporation of the Company ("Amtech"), 1/3 of the Bonus Opportunity is
based upon the financial performance of Amtech, as set forth in a bonus plan
applicable to the executive management team at Amtech, while 1/3 of the Bonus
Opportunity is based upon individual performance as determined by the Amtech
CEO.
5. Working Hours and Vacation. The Employee's normal hours are 37.5 hours
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per week, excluding lunch break during the hours of 9:00 a.m. through 5:30 p.m.,
Monday through Friday.
In addition to public holidays when the Company is closed, the Employee is
entitled, without loss of remuneration, to twenty-five vacation days in each
calendar year, of which up to ten accrued and unused vacation days may be
carried into the next calendar year. Vacation days may be taken in advance of
entitlement to such days; provided, however, if the Employee leaves employment
of the Company for any reason and the Employee has taken a number of vacation
days in excess of the number accrued to that date, then the Employee shall
reimburse
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the Company any remuneration paid on account of the excess vacation days.
6. Absence Due to Illness. During any period of absence from work due to
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physical or mental illness or accident, the Employee is required to produce a
proper certificate so as to continue to be entitled to the Base Salary. In the
event of absence from work due to physical or mental illness or accident for a
period of four or more consecutive days, the Employee is required to provide the
Company with a statement signed by the Employee under the self certification
procedure of the Statutory Sick Pay Scheme stating the cause of incapacity.
Where the Employee's absence due to physical or mental illness or accident
exceeds six or more consecutive days, the Employee will cause to be produced to
the Company a certificate signed by a qualified medical examiner.
The Company shall set off against the Employee's remuneration all Statutory
Sick Pay payments made by the Company in accordance with the Statutory Sick Pay
Scheme.
7. Life Assurance. The Company will maintain at its own expense a life
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assurance policy (the "Policy") in favor of the Employee's dependents or
beneficiaries in the event of the Employee's death during the term of this
Agreement. The benefit payable under the Policy will be a lump sum of four
times the Base Salary on the date of death of the Employee.
8. Expenses and Services. During the term of Employee's employment
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hereunder, Employee will be required to travel both domestically and
internationally and shall be entitled to receive prompt reimbursement for all
reasonable expenses incurred by Employee by reason of his employment, provided
that such expenses are incurred and accounted for in accordance with the
policies and procedures established by the Company and in effect when the
expenses are incurred. The Company shall furnish Employee with office space,
secretarial assistance, office supplies, office equipment and such other
facilities and services as are suitable to Employee's position and adequate for
the performance of his duties.
9. Transportation. The Company will provide the Employee with a Jaguar
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XJ6 Sovereign motor car (the "Company Vehicle"), or its substantial equivalent.
The Company agrees to pay for the licensing, insurance, repair and servicing of
the Company Vehicle and for the cost of all petrol and oil. The Employee, with
his permission, and members of his immediate family may use the Company Vehicle
for private purposes when the Employee is not engaged in transacting business on
behalf of the Company.
10. Confidential Information. Employee recognizes and acknowledges that
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Employee will have access to confidential information of the Company and its
Affiliates including, without limitation, customer information, lists of
suppliers and costs, information concerning the business and operations of the
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Company, and its Affiliates and proprietary data, information, concepts and
ideas (whether or not patentable or copyrightable) relating to the business of
the Company, or its Affiliates, as applicable. Employee agrees not to disclose
such confidential information, except as may be necessary in the performance of
Employee's duties, to any Person, nor use such confidential information in any
way, unless Employee has received the written consent of the Company or its
Affiliates as applicable, or unless such confidential information becomes public
knowledge through no wrongful act of Employee. Upon termination of Employee's
employment for any reason, Employee shall promptly deliver to the Company all
drawings, manuals, letters, notebooks, customer lists, documents, records,
equipment, files, computer disks or tapes, reports or any other materials
relating to the business of the Company or its Affiliates,(and all copies) which
are in Employee's possession or under Employee's control excluding documents in
the possession of Employee (as a direct result of Employee being a signatory to
such documents) relating to the purchase by Amtech of the Employee's shares in
the Company. Additionally, the parties hereby acknowledge that Employee has
previously executed an Assignment of Inventions and Confidential Information
Agreement dated January 25, 1995.
11. Rights under Certain Plans. Each of the Employee and the Employee's
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spouse and children is entitled to participate in the Company's medical
insurance scheme, as operated from time to time, the cost of which will be paid
for by the Company. In addition, the Company will maintain at its cost a
disability insurance policy for the benefit of the Employee.
12. Early Termination. Employee's employment hereunder may be terminated
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without any breach of this Agreement only under the following circumstances:
(A) Employee's employment hereunder will terminate upon Employee's
death;
(B) If, as a result of Employee's incapacity due to physical or mental
illness, Employee shall have been absent from his duties or is unable to
perform his full duties hereunder for a total of 180 days during any 12
month period, and within 30 days after written notice of termination is
given (which may occur before or after the end of such 180 day period)
shall not have returned to the performance of his full duties hereunder on
a full-time basis, the Company may terminate Employee's employment
hereunder.
(C) The Company may terminate Employee's employment hereunder for
Cause. For purposes of this Agreement, the Company shall have "Cause" to
terminate Employee's employment hereunder upon (1) the willful and
continued failure by Employee to substantially perform his duties hereunder
(other than any such failure resulting from Employee's incapacity due to
physical or mental illness),
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after written demand for substantial performance is delivered by the
Company that specifically identifies the manner in which the Company
believes Employee has not substantially performed his duties; or (2) the
willful engaging by Employee in misconduct that is materially injurious to
the Company; or (3) the conviction of Employee of any indictable offense or
crime of moral turpitude. For purposes of this subsection (C), no act, or
failure to act, on Employee's part shall be considered "willful" unless
done, or omitted to be done, by him not in good faith and without
reasonable belief that his action or omission was in the best interest of
the Company. Notwithstanding the foregoing, Employee shall not be deemed to
have been terminated for Cause without (a) reasonable written notice to
Employee, setting forth the reasons for the Company's intention to
terminate for Cause; (b) an opportunity for Employee, together with his
counsel, to be heard before the Board (or an authorized representative
thereof); and (c) delivery to Employee of a written Notice of Termination
as defined in subsection (D) hereof from the Board finding that, in the
good faith opinion of the Board, Employee was guilty of conduct set forth
above in clause (1), (2) or (3) of this subsection (C), and specifying the
particulars thereof in detail.
(D) Any termination of Employee's employment by the Company (other
than termination pursuant to subsection (A) above) shall be communicated by
written Notice of Termination to the Employee. For purposes of this
Agreement, a "Notice of Termination" shall mean a notice that shall
indicate the specific termination provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of Employee's employment under
the provision so indicated.
(E) "Date of Termination" shall mean (1) if Employee's employment is
terminated by Employee's death, the date of Employee's death; and (2) if
Employee's employment is terminated for any other reason, the date
specified in the Notice of Termination.
13. Compensation upon Termination. Upon termination of Employee's
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employment under Paragraph 12 hereof, the Company shall pay to Employee the
monthly Base Salary earned through the Date of Termination at the rate then in
effect, any invoiced and unpaid expenses payable under Section 8 hereof and an
amount equivalent to the Employee's accrued and unused vacations days to the
Date of Termination. The Company shall have no further obligations to Employee
under this Agreement.
14. Noncompetition and Nonsolicitation. Employee agrees and covenants:
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(A) That Employee will not compete directly or indirectly with the
Company (which term, for purposes of this Section 14, shall mean the
Company and its subsidiaries) in the Designated Geographical Area in any
business or businesses conducted by the Company during the term provided
for in Section 2 and for a period of six months after Employee ceases to be
employed by the Company. For purposes of this Agreement, "Competition"
shall include, without limitation, any engagement in any business whether
as proprietor, partner, joint venturer, employee, agent, officer or holder
of more than five percent (5%) of any class of equity ownership of a
business enterprise, which is competitive with any business or businesses
conducted by the Company;
(B) That the Employee will not furnish advice to, solicit or do
business of a like nature to that done by the Company and with any past or
current customer of the Company during term provided for in Section 2 and
for a period of twelve months after the Employee ceases to be employed by
the Company.
(C) That the Employee will not hire away on any basis any person who
is an employee of the Company during the term provided for in Section 2 and
for a period of twelve months after the Employee ceases to be employed by
the Company.
(D) For purposes of this Section 13, "Designated Geographical Area"
shall mean and includes the United Kingdom and any foreign jurisdiction in
which the Company has conducted or is actively conducting business,
directly or indirectly, at the time Employee ceases to be employed by the
Company; and
(E) The non-competition and non-solicitation covenants of Employee
contained in this Section 14 shall be construed as agreements independent
of any other provision of this Agreement and the existence of any claim or
cause of action of Employee against the Company, whether predicated on this
Agreement or otherwise, shall not constitute a defense to the enforcement
by the Company of the non-competition and non-solicitation covenants.
15. Affiliate Defined. The term "Affiliate" as used in this Agreement
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means any individual, corporation, unincorporated organization, trust or other
form of entity controlling, controlled by or under common control with the
Company. For purposes of this definition, "control" (including "controlled by"
and "under common control with") means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
such individual, corporation, unincorporated organization, trust or other form
of entity, whether through the ownership of voting securities or otherwise.
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16. Waiver. No waiver of any provision of this Agreement shall be deemed,
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or shall constitute, a waiver of any other provision, whether or not similar,
nor shall any waiver constitute a waiver of any continuing or succeeding breach
of such provision, a waiver of the provision itself, or a waiver of any right
under this Agreement. No waiver shall be binding unless executed in writing by
the party making the waiver.
17. Limitation of Rights. Nothing in this Agreement, except as
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specifically stated herein, is intended to confer any rights or remedies under
or by reason of this Agreement on any persons other than the parties to it and
their respective permitted successors and assigns and other legal
representatives, nor is anything in this Agreement intended to relieve or
discharge the obligation or liability of any third persons to any party to this
Agreement, nor shall any provision give any third persons any right of
subrogation or action over against any party to this Agreement.
18. Remedies. Employee hereby agrees that a violation of the provisions
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of Section 10 or 14 or any agreement referred to in Section 14 would cause
irreparable injury to the Company for which it would have no adequate remedy at
law. Accordingly, in the event of any such violation, the Company shall be
entitled to preliminary and other injunctive relief. Any such injunctive relief
shall be in addition to any other remedies to which the Company may be entitled
at law or in equity, or otherwise.
19. Notice. Any consent, notice, demand or other communication (including
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any payment hereunder) required or permitted hereby must be in writing to be
effective and shall be deemed to have been received on the date delivered, if
personally delivered, on the date transmitted, if transmitted by telecopy with
receipt appropriately confirmed, or ten days following the date the same is
deposited in the mail, postage prepaid, certified return receipt requested,
addressed to the applicable party at the address for such party set forth below
or at such other address as such party may designate by like notice:
The Company:
Amtech Corporation
Dominion Plaza
00000 Xxxxxxx Xxxx, X-000
Xxxxxx, Xxxxx 00000
Attn: General Counsel
Employee:
Xx. Xxxxxx X. Xxxxx
0 Xxxxxxxxxx Xxxxx
Xxxxxx
Xxxxxxxxx XX0 0XX
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20. Inconsistent Obligations. Employee represents and warrants that
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Employee has not previously assumed any obligations inconsistent with those of
this Agreement. The Employee's employment hereunder is not subject to any
agreement between the Company and any trade union.
21. Entirety and Amendments. This instrument and the instruments referred
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to herein embody the entire agreement between the parties relating to the
subject matters hereof, supersede all prior agreements and understandings
relating to the subject matter hereof, and may be amended only by an instrument
in writing executed by all parties, and supplemented only by documents delivered
or to be delivered in accordance with the express terms hereof.
22. Successors and Assigns. This Agreement will be binding upon and inure
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to the benefit of the parties hereto and any successors in interest to the
Company but neither this Agreement nor any rights hereunder may be assigned by
the Company or the Employee except in the case of the death of Employee.
23. Governing Law. The construction, validity and performance of this
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Agreement shall be governed by English law which shall be the applicable law in
all respects. The parties irrevocably agree that, for the exclusive benefit of
the Company and the Employee, the courts of England shall have exclusive
jurisdiction in respect of any dispute, suit, action or proceedings that may
arise out of or in connection with this Agreement.
24. Cumulative Remedies. No remedy herein conferred upon any party is
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intended to be exclusive of any other benefits or remedy, and each and every
such remedy shall be cumulative and shall be in addition to every other benefit
or remedy given hereunder or now or hereafter existing at law or in equity or by
statute or otherwise. No single or partial exercise by any party of any right,
power or remedy hereunder shall preclude any other exercise or further exercise
thereof.
25. Multiple Counterparts. This Agreement may be executed in a number of
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identical counterparts, each of which constitute collectively, one agreement;
but in making proof of this Agreement, it shall not be necessary to produce or
account for more than one counterpart.
26. Descriptive Headings. The headings, captions and arrangements used in
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this Agreement are for convenience only and shall not be deemed to limit,
amplify, or modify the terms of this Agreement, nor affect the meaning hereof.
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Signatures
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To evidence the binding effect of the covenants and agreements described
above, the parties hereto have executed this Agreement effective as of the date
first above written.
THE COMPANY:
Cotag International Limited
By: /s/G. Xxxxxxx Xxxxxxxxx
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G. Xxxxxxx Xxxxxxxxx
EMPLOYEE:
/s/Xxxxxx X. Xxxxx
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