Exhibit (c)(3)
EMPLOYMENT AGREEMENT
PARTIES
This Employment Agreement (this "agreement") dated as of the 1st day of
January, 1995, is entered into by and between VITRONICS CORPORATION, a
Massachusetts corporation having its principal place of business at 1 Forbes
Road, Newmarket Industrial Park, Newmarket, New Hampshire 03857 (the "Company")
and Daniel J. Sullivan, an individual with an address at 331 Old Westford Road,
Chelmsford, MA 01824 (hereinafter called "Employee").
TERMS OF AGREEMENT
In consideration of this Agreement and the continued employment of the
Employee by the Company, the parties agree as follows:
1. Employment. The Company hereby employs Employee, on a full-time
basis, to act as Vice President-Controller of the Company during the Employment
Period and to perform such acts and duties and furnish such services to the
Company in connection with and related to that position as is customary for
persons with similar positions in like companies, as the Company's Board of
Directors shall from time to time reasonably direct. Employee hereby accepts
said employment. Employee shall use his best and most diligent efforts to
promote the interests of the Company; shall discharge his duties in a highly
competent manner; and shall devote his full business time and his best business
judgment, skill and knowledge to the performance of his duties and
responsibilities hereunder. Employee shall report to such officer(s) as the
Board of Directors determines.
2. Employment Period. The Employment Period shall commence as of January
1, 1995 and shall terminate on December 31, 1995, unless terminated earlier
pursuant to Sections 3.9, 4 or 5 hereof, provided, however, that the initial
Employment Period shall automatically renew for additional one year periods
thereafter unless the Company shall provide the Employee with not less than
ninety (90) days' prior written notice of its intention not to renew prior to
the expiration of the initial Employment Period or any annual extension thereof.
In the event that the Company shall not renew this Agreement as provided in the
preceding sentence, the Company shall continue to pay the Employee's salary, at
his then current rate, for a three (3) month period following termination.
3. Compensation and Benefits; Disability
3.1 Salary. During the Employment Period, the Company shall pay
Employee a salary at an annualized rate equal to $67,500.00 payable in equal
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installments pursuant to the Company's customary payroll policies in force at
the time of payment (but in no event less frequently than monthly), less
required payroll deductions. The Employee's salary may be adjusted upward from
time to time in the sole discretion of the Board of Directors of the Company,
except that the Employee, if a Director, shall not be entitled to vote thereon.
3.2 Discretionary Bonus. During the Employment Period, the Employee
may participate in such bonus plan or plans of the Company as the Chief
Executive Officer, in conjunction with the Board of Directors acting through its
Compensation Committee, may approve for the Employee. Nothing contained in this
Section 3.2 shall be construed to require the Chief Executive Officer or Board
of Directors to approve a bonus plan or in any way grant to Employee the right
to receive bonuses not otherwise approved.
3.3 Health Benefits. During the Employment Period, the Employee
shall receive such benefits as customarily provided to other officers and
employees of the Company.
3.4 Vacation. Employee may take two (2) weeks of paid vacation
during each year at such times as shall be consistent with the Company's
vacation policies and (in the Company's judgment) with the Company's vacation
schedule for officers and other employees.
3.5 Disability. If during the Employment Period, Employee shall
become ill, disabled or otherwise incapacitated so as to be unable to perform
his usual duties (a) for a period in excess of one hundred twenty (120)
consecutive days or (b) for more than one hundred eighty (180) days in any
consecutive twelve (12) month period, then the Company shall have the right to
terminate this Agreement, subject only to applicable laws, on thirty (30) days'
notice to Employee.
3.6 Severance Pay.
3.6.1 Termination By Company. In the event the Company
terminates this Agreement pursuant to Section 5, the Company shall continue to
pay Employee, at his then current salary, for (a) a three (3) month period after
termination if termination shall occur prior to a Change in Control or an
Approved Change in Control or after an Approved Change in Control (both as
hereinafter defined), or (b) a six (6) month period after termination if
termination shall occur after a Change in Control.
3.6.2 Termination By Employee For "Good Reason".
(a) After a Change in Control and provided Employee has Good Reason
(as hereinafter defined), Employee may terminate his employment hereunder upon
fifteen (15) days written notice to the Company and the Company shall continue
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to pay Employee his Salary, at his then current rate, for a twelve (12) month
period.
(b) After an Approved Change in Control and provided Employee has
Good Reason, Employee may terminate his employment hereunder upon fifteen (15)
days written notice to the Company and the Company shall continue to pay
Employee his Salary, at his then current rate, for a three (3) month period and
thereafter for one (1) additional three (3) month period or until the Employee
shall become employed.
3.6.3 Definitions. For purposes of this Section 3.6,
(a) a "Change in Control" shall mean:
(i) A change in "control" [as defined in Rule 12b-2 adopted under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")] of the Company
which would be required to be reported under either Section 13 or 14 of the
Exchange Act whether or not the Company is then subject to said Act, including a
change whereby
(A) any "person" [as such term is used in Sections 13(d) and
14(d) of the Exchange Act] becomes a "beneficial owner" (as
defined in Rule 13d-3 adopted under the Exchange Act) of
securities of the Company representing 50% or more of the
combined voting power of the Company's then outstanding
securities; or
(B) there ceases to be a majority of the Board of Directors
comprised of individuals described in subsection (iii)
below.
(ii) an "Approved Change in Control" of the Company shall mean a
Change in Control that is approved by a majority of the Company's Board of
Directors.
(iii) For the purposes of Sections 3.6.3(a)(i) and (ii),
"Board of Directors" shall mean: (i) individuals who, on the date hereof,
constituted the Board of the Company, and (ii) any directors who are elected or
nominated for election by a majority of the directors who held such office
immediately prior to a Change in Control.
(b) "Good Reason" shall mean without the Employee's written consent, the
occurrence after a Change in Control of any of the following circumstances
unless, in the case of paragraphs (A), (B), (C) or (H), such circumstances
constitute an
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isolated, insubstantial and inadvertent action not taken in bad faith and which
are fully remedied by the Company prior to the Employee's last day of
employment:
(A) the assignment to the Employee of any duties inconsistent with
the highest position in the Company that the Employee held at any time during
the 90-day period immediately preceding the Change in Control of the Company, or
a significant adverse alteration in the nature or status of the Employee's
responsibilities or the conditions of the Employee's employment from those in
effect at any time during the 90-day period immediately preceding such Change in
Control;
(B) any violation of Section 1 or Section 3.1 through 3.4 of this
Agreement;
(C) the failure by the Company to provide the Employee with the
greatest number of vacation days to which the Employee is entitled in accordance
with the Company's normal vacation policy in effect at any time during the
90-day period immediately preceding the Change in Control;
(D) any requirement by the Company or of any person in control of the
Company that the location at which the Employee perform the Employee's principal
duties for the Company be (1) outside a radius of 50 miles from the location at
which the Employee performed such duties immediately prior to the Change in
Control, or (2) more than 25 miles in commuting distance further than the
Employee's commuting distance to the location at which the Employee performed
such duties immediately prior to the Change in Control;
(E) the failure by the Company to pay to the Employee any portion of
the Employee's current compensation within seven (7) days after such
compensation is due;
(F) any requirement by the Company or any person in control of the
company that the Employee travel on an overnight basis to an extent not
substantially consistent with the Employee's business travel obligations
immediately prior to the Change in Control;
(G) the failure of the Company to obtain a satisfactory agreement
from any successor to assume and agree to perform the Agreement, as contemplated
in Section 9.3; or
(H) any purported termination of the Employee's employment which is
not effected pursuant to the requirements of Section 5 and 8, which purported
termination shall not be effective for purposes of the Agreement.
The Employee's continued employment shall not constitute consent to, or a
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waiver of rights with respect to, any circumstance constituting Good Reason
hereunder.
For purposes of this Section 3.6.3(b), any good faith determination of
"Good Reason" made by the Employee shall be conclusive.
4. Discharge for Cause. The Company may discharge Employee and terminate
his employment under this Agreement for cause without further liability to the
Company by a majority vote of the Board of Directors of the Company except that
the Employee, if a Director, shall not be entitled to vote thereon. As used in
this Section 4, "cause" shall mean any or all of the following:
(a) gross or willful misconduct of Employee during the course of his
employment;
(b) conviction of a fraud or felony or any criminal offense involving
dishonesty, breach of trust or moral turpitude during the Employment Period;
(c) Employee's breach of any of the material terms of this Agreement.
5. Termination Without Cause. Upon thirty (30) days prior written
notice, the Company may terminate this Agreement without cause without further
liability to the Company except as set forth in Section 3.6 by a majority vote
of the Board of Directors of the Company except that the Employee, if a
Director, shall not be entitled to vote thereon.
6. Expenses. Pursuant to the Company's customary policies in force at
the time of payment, Employee shall be promptly reimbursed, against presentation
of vouchers or receipts therefor, for all authorized expenses properly incurred
by him on the Company's behalf in the performance of his duties hereunder.
7. Additional Agreements. Upon execution of this Agreement, the Employee
shall execute and deliver to the Company a Confidential and Proprietary
Information Agreement (the "Proprietary Agreement") and an Agreement Not to
Compete (the "Noncompetition Agreement") in the forms attached hereto as
Exhibits A and B, respectively.
8. Notices. Any notice or communication given by any party hereto to the
other party or parties shall be in writing and personally delivered or mailed by
certified mail, return receipt requested, postage prepaid, to the addresses
provided above. All notices shall be deemed given when actually received. Any
person entitled to receive notice (or a copy thereof) may designate in writing,
by notice to the others, such other address to which notices to such person
shall thereafter be sent.
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9. Miscellaneous.
9.1 Entire Agreement. This Agreement contains the entire
understanding of the parties in respect of its subject matter and supersedes all
prior agreements and understandings between the parties with respect to such
subject matter; provided, however that nothing in this Agreement shall affect
the Employee's obligations under the Proprietary Agreement and Noncompetition
Agreement or the Employee's rights under any stock option agreements at any time
outstanding between the Employee and the Company.
9.2 Amendment; Waiver. This Agreement may not be amended,
supplemented, canceled or discharged, except by written instrument executed by
the party affected thereby. No failure to exercise, and no delay in exercising,
any right, power or privilege hereunder shall operate as a waiver thereof. No
waiver of any breach of any provision of this Agreement shall be deemed to be a
waiver of any preceding or succeeding breach of the same or any other provision.
9.3 Binding Effect; Assignment. Employee's rights or obligations
under this Agreement may not be assigned by Employee; except that Employee's
right to compensation to the earlier of date of death or termination of actual
employment shall pass to Employee's executor or administrator. The rights and
obligations of this Agreement shall bind and inure to the benefit of the Company
and its successors and assigns. The Company will require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such successor had
taken place. As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined any successor to its business and/or assets as aforesaid
which assumes and agrees to perform this Agreement by operation of law, or
otherwise.
9.4 Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation of
this Agreement.
9.5 Governing Law; Interpretation. This Agreement shall be construed
in accordance with and governed for all purposes by the laws and public policy
of the Commonwealth of Massachusetts applicable to contracts executed and to be
wholly performed within such Commonwealth. Service of process in any dispute
shall be effective (a) upon the Company, if service is made on any officer of
the Company other than the Employee; (b) upon the Employee, if served at
Employee's residence last known to the Company with an information copy to the
Employee at any other residence, or care of a subsequent employer, of which the
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Company may be aware.
9.6 Further Assurances. Each of the parties agrees to execute,
acknowledge, deliver and perform, or cause to be executed, acknowledged,
delivered and performed, at any time, or from time to time, as the case may be,
all such further acts, deeds, assignments, transfers, conveyances, powers of
attorney and provisions or intent of this Agreement.
9.7 Severability. If any one or more of the terms, provisions,
covenants or restrictions of this Agreement shall be determined by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Agreement shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated. If, moreover, any one or more of the provisions contained in this
Agreement shall for any reason be determined by a court of competent
jurisdiction to be excessively broad as to duration, geographical scope,
activity or subject, it shall be construed, by limiting or reducing it, so as to
be enforceable to the extent compatible with then applicable law.
EXECUTION
The parties executed this Agreement as a sealed instrument as of the date
first above written, whereupon it became binding in accordance with its terms.
VITRONICS CORPORATION
BY:___________________________
James J. Manfield, Jr.
Chairman & CEO
____________________________
Daniel J. Sullivan
Employee
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