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EXHIBIT 10.9
EMPLOYMENT AGREEMENT
AGREEMENT made this December 1, 1992, by and between Plasma-Therm I.P.
Inc., a Delaware Corporation (herein referred to as "Corporation") and Xxxxxx X.
Xxxxxxxx (herein referred to as "Employee").
BACKGROUND OF AGREEMENT
Employee is presently employed by Corporation. Corporation desires to
employ Employee and Employee desires to continue to accept such employment and
both parties are entering into this Agreement to set forth their entire
understanding with respect to such employment.
NOW, THEREFORE, the parties hereto intending to be legally bound hereby,
and in consideration of the mutual covenants herein contained, agree as
follows:
1. EMPLOYMENT
Corporation hereby employs Employee, and Employee hereby accepts such
employment, upon the terms and subject to the conditions herein set forth.
2. TERM
The term of this agreement shall commence on December 1, 1992 and shall
continue for a period of three years until December 1, 1995 (the "Term"). Upon
the expiration of the Term, the employment of Employee shall continue in full
force and effect for an additional period of three years and thereafter for
three year extension periods unless at least ninety (90) days prior to the end
of the then current term, either Corporation or Employee has given written
notice to the other of his/her or its election to terminate the employment at
the end of such term.
3. DUTIES
The Employee shall be General Manager and his/her particular duties and
power in such capacity shall be such as may be determined from time to time by
the President of Corporation, provided, however, such duties and powers shall be
consistent with the position of an executive employee of a Delaware business
corporation. In the performance of his/her duties the Employer shall make
available to the Employee offices, secretarial and other support as necessary,
facilities and amenities commensurate with his/her position and duties. Except
with the written consent of Employee, his/her principal office in performing her
duties hereunder shall be situated at Corporation's headquarters in St.
Petersburg, Florida.
4. EXTENT OF SERVICES
Employee agrees to devote substantially all of his/her business time,
attention and energies to the business of the Corporation and shall not during
the Term of this Agreement be
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engaged in any other business activity requiring any substantial amount of
his/her business time (whether or not such business is pursued for gain, profit
or pecuniary advantage).
5. COMPENSATION
The Corporation agrees to pay and Employee agrees to accept as
compensation for all services rendered hereunder:
5.1 a base annual salary, payable in weekly installments, in the amount
of $135,500.00.
5.2 a monthly car allowance in the amount of $540.00 plus reimbursement
for other reasonable car-related expenses including fuel and oil, but not
maintenance or repair items.
6. EXPENSES
The parties recognize that in the course of performing his/her duties
hereunder, Employee may incur expenses. Corporation agrees to reimburse Employee
upon presentation of vouchers for reasonable expenses incurred by Employee in
the performance of his/her duties hereunder.
7. FRINGE BENEFITS
Employee shall be entitled to such fringe benefits paid for or supplied
by the Corporation and shall be further entitled to the following provisions:
7.1 participation in retirement and employee benefit plans such as
401k, stock options, education reimbursement, health, accident, disability,
life, or group insurance plans and other plans as the President of Corporation
determines from time to time to make available generally to the other executive
employees of Corporation.
7.2 the Corporation may elect to pay for the employee's entire health
insurance premium payments to the extent that this is offered to the other
executive employees of the Corporation.
7.3 those plans in which the Employee participates at the time of the
execution hereof shall not be terminated or otherwise discontinued or amended in
a manner having a detrimental effect on the Employee during the term of this
Agreement without the prior written consent of the Employee. In the event of the
termination of the Employee's employment by the Corporation for any reason other
than for cause or in the event the Employee terminates the agreement for cause
or for any reason other than for cause, as set forth herein, the Corporation
shall continue to provide the benefits and make the payments under those plans
for the remaining term of this agreement.
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7.3.1 The Employee may at any time direct the Corporation in writing to
assign the insurance policy or policies to the Employee in the event of his
termination for any reason whatsoever, whether or not for cause, following which
the Employee shall be fully responsible for payments on the policy or policies
and the Corporation's obligations under the policy or policies shall cease.
8. DEATH OR DISABILITY
In the event Employee dies or becomes physically or mentally disabled
so that he/she is unable to perform his/her duties hereunder, this Agreement
shall not terminate and the compensation then payable by Corporation to Employee
pursuant to Section 5 hereof shall continue to be paid as if Employee were not
disabled in any way or had not died, until the end of the then current term of
employment pursuant to Section 2 hereof, provided however, Corporation shall be
entitled to credit against its obligation hereunder the amount of any and all
disability benefits received by Employee provided or paid for by Corporation,
pursuant to Section 7 hereof.
9. TERMINATION
9.1 Notwithstanding anything herein contained to the contrary, subject
to Section 8 hereof, Corporation shall have the right to terminate this
Agreement upon one day's notice for reasonable cause. Reasonable cause shall
consist of the following events: commitment of fraud, dishonesty or other
material acts of misconduct in the performance of his/her duties hereunder,
commitment of or participant in a willful violation of any law, or regulations
(other than those relating to traffic violations or similar offenses) having a
material negative impact on the Corporation, or commitment or participation in
any other injurious act or omission wantonly, willfully or recklessly or in a
manner which was grossly negligent against the Corporation or its customers.
9.2 Corporation and Employee shall have the right to terminate the
agreement hereunder without cause provided that all of the obligations of
Corporation hereunder shall continue to be fully and timely performed until the
end of the then current term of employment pursuant to Section 2 hereof.
Employee shall receive the full compensation hereunder for the then remaining
term of this Agreement including the continuation of benefits as defined in
Section 7 and Section 13 hereof, which is in addition to aforesaid compensation
and not to be reduced by these amounts, as if this Agreement had not been
terminated and in no event shall a termination for other than cause prejudice,
eliminate, decrease, diminish or otherwise adversely affect the Employee's right
to receive full compensation under this Agreement to the same extent and amount
as if this Agreement had not been terminated.
9.3 Employee shall have the right to terminate the Agreement hereunder with
cause upon not less than 30 days written notice for the following reasons: a) in
the event of a change in control of the Corporation as described in Section 12,
b) in the event of a change in control of the Corporation as described in
Section 12, in conjunction with any of the following: (i) failure of the
Corporation to provide the employee with any one or more of the provisions of
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this Agreement, (ii) any change in the position of Employee set forth in Section
3 without prior written consent of employee, or, (iii) any material decrease in
the Employee's duties, responsibilities and authorities, without the prior
written consent of the Employee.
9.3.1 In the event of termination for cause by the Employee for the
reasons stated in 9.3, employee will receive full compensation hereunder for the
then remaining term of this Agreement including the continuation of benefits as
defined in Section 7 and Section 13 hereof, which is in addition to aforesaid
compensation and not to be reduced by these amounts, as if this Agreement had
not been terminated and in no event shall a termination for other than cause
prejudice, eliminate, decrease, diminish or otherwise adversely affect the
Employee's right to receive full compensation under this Agreement to the same
extent and amount as if this Agreement had not been terminated.
10. COVENANTS BY EMPLOYEE
10.1 Employee hereby agrees that he/she shall not compete with
Corporation, as defined below, whether directly or indirectly, as a principal,
partner, stockholder, officer, director, employee, or in any other capacity, for
the following periods of time: (i) if the Corporation terminates employment
without cause as defined in Section 9.2 or if the employee terminates employment
with cause as defined in Section 9.3, the employee agrees not to compete for a
period of 45 days from the date of termination of this contract; or (ii) if the
Corporation terminates employment with cause pursuant to Section 9.1 or if the
employee terminates employment without cause, the employee agrees not to compete
for a period of 6 months from the date of termination of this contract.
10.1.1 Compete in any manner whatsoever with the business now or
hereafter conducted by Corporation or any Affiliate (as hereinafter defined);
and
10.1.2 Solicit or attempt to solicit, sell, lease or offer to sell or
offer to lease, except on behalf of Corporation or any affiliate, any present or
future customer of Corporation or Affiliate any goods or services competitive to
the goods and services now or hereafter offered for sale or lease by Corporation
or any Affiliate.
10.2 The parties hereto recognize that the covenants of Employee herein
contained are unique and that in the event there is a breach or threatened
breach of such covenants, Corporation shall be entitled, in addition to any
other remedies available to it, to institute and prosecute proceedings in any
court of competent jurisdiction either in law or in equity, to obtain damages
for any breach of covenants or to enforce a specific performance thereof by
Employee, or to enjoin Employee from performing services or doing any act in
breach of such covenants.
10.3 For the purposes of this Agreement, an "Affiliate" of Corporation
shall mean any person, partnership or corporation which is controlled by, in
common control with or controlling Corporation.
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10.4 Employee agrees during the Term hereof and after the termination
of employment of Employee for any reason whatsoever the Employee shall not
disclose to any person, firm, partnership or corporation any information
concerning any of the methods of conducting business of Corporation or any
affiliate or any details relating thereto including the names of suppliers,
customers and methods of operation of Corporation or any of its Affiliates which
information is hereby acknowledged to be confidential in nature. This provision
shall not be construed to prevent Employee from using any knowledge which he/she
possessed at the time he commenced his/her employment with corporation or from
using any information which is not confidential.
11. INDEMNIFICATION
11.1 If litigation is brought to enforce or interpret any provision
hereof in the event of a change in control as described in section 12, the
Corporation shall indemnify the Employee for his/her reasonable attorney's fees
and disbursements incurred in such litigation.
11.2 The Corporation shall further indemnify the Employee to the extent
of the greater of the indemnification provided for in any agreement, bylaw or
charter provision of the Corporation, or any provision of law, rule or
regulation, any of which may be applicable to the Employee or generally
applicable to other executive officers of the Employee's class.
12. CHANGE OF CONTROL
"Change in control" as used in this agreement shall refer to any one or
more of the following: (i) the acquisition in any manner of the beneficial
ownership of shares of the Corporation having 20% or more of the total number of
votes that may be cast for the election of one or more directors of the
Corporation by any person, or persons acting as a group within the meaning of
Section 13 (d) of the Securities and Exchange Act of 1934, if the Board has made
a determination that such acquisition constitutes or will constitute control of
the Corporation; (ii) any liquidation, dissolution or sale of all or
substantially all of the assets of the Corporation; or (iii) any action taken
following, as a result of, or in connection with, any tender or exchange, offer,
merger or other business combination, sale of assets, proxy contest or any
combination of the foregoing whereby the persons who were the Directors of the
Corporation immediately prior to such action shall cease to constitute a
majority of the Board of the Corporation or any successor to the Corporation.
The term "person" refers to an individual, corporation, company or other entity.
13. VACATION
Employee shall be entitled to take vacations at such time as shall
reasonably be approved by Corporation which shall be not more than four weeks
per annum. Vacation over four weeks per annum not used is forfeited. In the
event of termination without cause by Corporation or by Employee or with cause
by Employee, Employee will receive cash equivalent of vacation time not yet
taken in accordance with Company policy.
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14. MISCELLANEOUS PROVISIONS
14.1 NOTICES
Any notice required or permitted to be given under this Agreement shall
be in writing, and shall be deemed to have been given when delivered personally
or sent by registered or certified mail, postage prepaid, addressed as follows:
14.1.1 If to Corporation:
Xxxxxx X. Xxxxxxxxx, President
Plasma-Therm I.P. Inc.
0000 Xxxxxxxxxxxxx Xxxxx
Xx. Xxxxxxxxxx, XX 00000
14.1.2 If to Employee:
Xxxxxx Xxxxxxxx
000 Xxxx Xxxxxxx Xx. XX
Xx. Xxxxxxxxxx, XX 00000
The designation of the person to be so notified or the address of such
person for the purposes of such notice may be changed from time to time by a
similar notice to be effective ten (10) days after such changed designation is
supplied.
14.2 SITUS
This Agreement shall be governed by and construed in accordance with
the applicable laws of the States of Delaware and Florida.
14.3 ENTIRE AGREEMENT
This Agreement constitutes the full and complete understanding and
agreement of the parties and supersedes all prior understandings and agreements,
and may not be modified or amended orally, but only by an agreement in writing,
signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
14.4 BINDING EFFECT
This Agreement shall be binding upon and inure to the benefit of the
Corporation, its successors and assigns, and Employee, his/her heirs and
personal representatives.
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IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first above written.
FOR PLASMA-THERM I.P. INC.
/s/Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx, President
EMPLOYEE
/s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
