Cash
If nett cash, defined as cash and cash equivalents nett of borrowings under lines of credit minus debt, is at least $15 million at 31 December 2003, a bonus of 10% of base salary will be paid.
In 2003 base salary, for the purpose of calculating bonus payable, will be determined as total annual base salary if the Employee commences employment on or before 1 April 2003. However, if the Employee commences employment after 1 April 2003, base salary will be determined by the Employee’s total base salary earnings in 2003. For example, this means that if the Employee is employed for eight months in 2003 then base salary will be calculated as eight twelfths of the Employee’s basic annual salary.
From 2004 onwards, base salary will be determined as total annual base salary.
If either the Employer or the Employee gives the other party notice of termination of employment only that bonus achieved at the time of giving notice will be payable.
Stock Options
The Employee will be made an initial grant of 200,000 stock options. The stock options will vest in four equal instalments (25% per year) commencing one year after the date of grant.
The Board on an annual basis based upon performance will grant subsequent grants of stock options.
The Company shall reimburse the Employee all travel, hotel and any other out-of-pocket expenses reasonably and properly incurred by him exclusively in connection with the performance of his duties hereunder. As you will be required to liaise directly with overseas subsidiaries the company will pay all reasonable home telephone expenses.
| 6. | PROVISION OF A MOTOR CAR: | |
To assist the Employee to carry out his duties hereunder the Company will provide, license and insure a suitable four or five door motor car for the Employee during the currency of his Agreement, costing the Company a lease cost of no more than £1000 per month, based on a four year, 100,000 mile lease agreement. The company shall pay all running expenses, maintenance and outgoings insofar as the Employee in the performance of his duties reasonably incurs them. This car will at all times remain the property of the company. The Employee shall be entitled to use the car reasonably for his private purpose without payment and the Company will bear the cost of fuel for such use.
Alternatively, the Employee may choose to have a car allowance of £1000 per month instead of a company car. If the employee chooses this option he should drive a four or five door car suitable for carrying out his duties. In this case insurance, running expenses and maintenance will be the responsibility of the Employee. The company will bear the cost of all business and reasonable private fuel.
| 7. | FRENCH SOCIAL SECUR ITY | |
Although the employee will be employed under a UK contract of employment and bound by UK laws in this respect, it is anticipated that the employee, at least in the short-term, will remain within the French Social Security System. The employer will make appropriate payments to the French authorities in this respect. Therefore the employer will make no additional payments to the employee in respect of health care, life assurance, long-term incapacity and pension.
The Employee shall be entitled to 25 working days paid holiday in each calendar year (in addition to UK publics holidays) to be taken at such time or times as may be agreed between the Company and the Employee.
| 9. | PATENTS AND INVENTIONS: |
| | | |
| | 9.1 | The rights of the parties hereto in any invention, patent, utility model, design copyright, technology and know-how of all types (including test and performance data, processes, production methods) or other intellectual property, including improvement to all such matters and all recorded material defining describing or illustrating such matter whether in writing or other recording media an whether stored in plain or in code from (herein referred to collectively as “Technology”) shall be as follows:- |
5
| | | 9.1.1 | An invention within the scope of Section 39 of the Patents Act 1977 made by the employee in the course of his normal duties or duties specifically assigned to him, or by the Employee at the time of occupying a post in the management structure of the Company such that he has a special obligation to further the Company’s interest so that It ought to be regarded as the property of the Company, shall belong to the Company as provided in the said section 39. |
| | | | |
| | | 9.1.2 | Other Technology including inventions not within the preceding paragraph devised or discovered by the Employee which related to the business of the Company or to any other business which might conveniently or otherwise be carried on in conjunction with the company’s present or known or expected future business shall be offered to the Company by the Employee and if the company accepts the same the Employee shall be entitled to such reasonable compensation as the Board may decide. |
| | | | |
| | | 9.1.3 | In the case of any other Technology belonging to or possessed by the Employee, the Company shall have a right of first refusal of the same. Should the Company refuse to take up rights the Employee shall not offer such rights to any other person on more favourable terms than were offered to the Company. |
| | | | |
| | | 9.1.4 | In every instance where the Employee devises or discovers any Technology he shall, as soon as practical inform a member of the Board of the subject matter of the Technology in confidence. In the event that the said subject matter is accepted and adopted by the Company, whether patentable or otherwise registerable, the Employee shall promptly (whether during the continuance of employment with the company or thereafter) at the request and cost of the Company sign all documents application forms in order to best the same in the Company. It shall be the duty of the Employee to maintain and keep all proper and correct records of the said subject matter, as it may be desirable for future reference. |
| | | | |
| 10 | TERMINATION |
| | | | |
| | 10.1 | This Agreement may be terminated forthwith by the Company without prior notice (except of paragraph 10.1.4 hereof) if the Employee shall at any time: - |
6
| | | 10.1.1 | Commit any serious or after due warning any persistent breach of any of the provisions herein contained; |
| | | | |
| | | 10.1.2 | Be guilty of any grave misconduct or wilful neglect in the discharge of his duties hereunder or in connection with the business of the Company or any of its subsidiary or associated companies; |
| | | | |
| | | 10.1.3 | Become bankrupt or make any arrangement or composition with his creditors; |
| | | | |
| | | 10.1.4 | Become permanently incapacitated by accident or ill-health from performing his duties under this Agreement provided that in such case the Company shall give the Employee not less than three month’ notice in writing; |
| | | | |
| | | 10.1.5 | Be convicted of any criminal offence triable on indictment (other than a motoring offence not resulting in imprisonment); or |
| | | | |
| | | 10.1.6 | Be disqualified from being a Director of a company. |
| | | | |
| | 10.2 | Any termination of the Employee’s employment hereunder shall be without prejudice to any other rights of the Company. |
| | | | |
| 11. | LIQUIDATION |
| | | | |
| | In the event of this Agreement being determined by reason of the liquidation of the Company for the purposes of amalgamation or reconstruction and the Employee being offered employment with any concern or undertaking resulting from such reconstruction or amalgamation on terms or conditions not less favourable than the terms of this Agreement then the Employee shall have no claim against the Company in respect of such determination. |
| | | | |
| 12. | RESTRICTION ON SUBSEQUENT ACTIVITIES: |
| | | |
| | 12.1 | As the Employee in the course of his employment is likely to obtain knowledge of the Company’s trade secrets and other confidential information will have dealings with the customers and suppliers of the Company, in order to protect the goodwill and business of the Company the Employee agrees, “without prejudice” to any other duty implied by law or equity, that in the event of the Employee’s employment with the Company being terminated in any way whatsoever shall not: - |
| | | |
| | | 12.1.1 | During the Employee’s period of notice of termination of employment, or, where the Employee receives pay in lieu of notice, the Employee shall not until the notice period, or pay in lieu of notice period, has expired: |
7
| | | | (a) | Be involved in the start up of a directly competitive business. |
| | | | Or | |
| | | | (b) | Accept a position with a directly competitive business. |
| | | | Or | |
| | | | (c) | Act as a consultant for a directly competitive business. |
| | | | | |
| | | 12.1.2 | For a period of two years: |
| | | | | |
| | | | (a) | Induce or attempt to induce (directly or indirectly) any person to leave the employment of the Company or any subsidiary or associated company. |
| | | | | |
| | | 12.1.3 | At any time after such termination: |
| | | | | |
| | | | (a) | Disclose or make use of the Company’s trade secrets or information concerning the business, transactions or affairs or the Company or other confidential information (or of any subsidiary or associated company); or |
| | | | | |
| | | | (b) | Hold himself out to the detriment of Trikon Technologies as having had any connection or association with the Company. |
| | | | | |
| 13. | DIRECTORSHIP OF COMPANY AND SUBSIDIARIES: |
| | | | | |
| | 13.1 | The Employee shall not resign his office as a Director of the Company during the continuance of his employment hereunder. |
| | | | | |
| | 13.2 | Upon the termination of employment the Employee agrees to resign as a Director of the Company or any subsidiary or associated companies. |
This Agreement supersedes any subsisting agreement relating to the employment by the Company of the Employee
The Employee may be required to attend and undergo at the Company’s expense an annual medical examination with the Company’s medical advisor and the Employee will be entitled to be shown the full results of such medical examination.
The procedure for the settlement of any grievance of the Employee relating to his employment is in the first instance, for the Employee to raise and submit such grievance either orally or in writing to the Chairman of the Board of Directors of Trikon Technologies Inc. If such grievance is not resolved to the satisfaction of the Employee within a reasonable time after such submission the Employee may ask for the matter to be passed for consideration to the full Board and the Employee shall be entitled to submit such grievance either orally or in writing to the Board or shareholders.
8
| 17. | TERMINATION OF EMPLOYMENT | |
The termination of the Employee’s employment with the Company for any reason whatsoever shall not affect any of the provisions hereof as are expressed to operate or have effect hereafter.
| 18. | RESIGNATION WITH CAUSE | |
In the event that the Company completes a merger or acquisition type and can not offer the Employee comparable employment going forward, or the Employee feels unable to fulfill his duties going forward, then the Employee shall have the right to resign his position with the Company and receive a termination payment, this right will apply from the date of such event until 90 days thereafter only. The termination payment will be the sum of the relevant notice payment as detailed in section 2 above, up to a maximum of one years basic salary plus a severance payment equal to one half of the total earnings (base salary plus bonus) paid by the Company to the Employee during the preceding 12 months.
| 19. | TEMPORARY ACCOMODATION | |
The employer will reimburse up to £1000 per month towards the cost of temporary accommodation for the Employee for a period of one year.
While the Employee’s main residence remains in France it is understood that business travel may be so organised from time to time such that the Employee can spend Saturday and Sunday at the family home in France. In addition the Company will reimburse the cost of up to one weekend return economy airfare to the family home per month.
If the employee decides to move his home to the Newport area, all reasonable costs associated with selling and purchasing a property will be borne by the Employer. Solicitor’s fees, both to sell and purchase property, estate agents’ fees, and removal fees are considered reasonable costs.
This offer of employment is conditional upon the Employer receiving satisfactory references and security clearance on the Employee.
9
AS WITNESS the hands of the parties hereto the day and year first above written.
SCHEDULE:
In accordance with Employment Protection (Consolidation) act 1978, the following terms of the Employee’s employment apply on the date of this Agreement:
| (a) | Job Title – see Clause 1. |
| | |
| (b) | Date of Commencement of Employment – see Clause 2. |
| | |
| (c) | Date of commencement of continuous period of employment for purpose of Clause 2.
As in (b) above |
| | |
| (d) | Remuneration – see Clause 4 |
| | |
| (e) | Hours of Work – there are no fixed hours of work - see Clause 3. |
| | |
| (f) | Holidays - see Clause 8 |
| | |
| (g) | Discipline and grievance procedure – see Clause 16. There are no specific disciplinary rules applicable to the Employee. If the Employee is dissatisfied with any disciplinary decision he should seek satisfaction in accordance with the grievance procedure laid down in Clause 16. |
/s/ A. Nigel Wheeler
SIGNED by A. Nigel Wheeler
For and on behalf of
TRIKON TECHNOLOGIES Inc.
In the presence of: -
/s/ Dr. Jihad Kiwan
SIGNED by Dr. Jihad Kiwan
In the presence of: -
(Both parties should additionally initial each page of this agreement)
10
