Exhibit 10.14
NANOMETRICS
INCORPORATED
JAMES MONIZ EMPLOYMENT
AGREEMENT
This Agreement is entered into as of
February 18 , 2009 by and between Nanometrics
Incorporated (the “Company”) and James Moniz
(“Executive”), effective as of the date hereof (the
“Effective Date”).
1. Duties and Scope of
Employment .
(a) Position and Duties .
Executive will serve as Chief Financial Officer reporting to
Company’s President and Chief Executive Officer (the
“CEO”). Executive will render such business and
professional services in the performance of his duties, consistent
with Executive’s position within the Company, as will
reasonably be assigned to him by CEO. The period Executive is
employed by the Company under this Agreement is referred to herein
as the “Employment Term”.
(b) Obligation . During the
Employment Term, Executive will devote Executive’s full
business efforts and time to the Company and will use good faith
efforts to discharge Executive’s obligations under this
Agreement to the best of Executive’s ability and in
accordance with each of the Company’s corporate guidance and
ethics guidelines, conflict of interests policies and code of
conduct. For the duration of the Employment Term, Executive agrees
not to actively engage in any other employment, occupation, or
consulting activity for any direct or indirect remuneration without
the prior approval of the CEO. Executive hereby represents and
warrants to the Company that Executive is not party to any
contract, understanding, agreement or policy, written or otherwise,
that would be breached by Executive’s entering into, or
performing services under, this Agreement.
2. At-Will Employment .
Executive and the Company agree that Executive’s employment
with the Company constitutes “at-will” employment.
Executive and the Company acknowledge that this employment
relationship may be terminated at any time, upon written notice to
the other party, with or without good cause or for any or no cause,
at the option either of the Company or Executive. However, as
described in this Agreement, Executive may be entitled to severance
benefits depending upon the circumstances of Executive’s
termination of employment.
3. Compensation .
(a) Base Salary . As of the
Effective Date, the Company will pay Executive an annual salary of
$300,000 as compensation for his services (such annual salary, as
is then effective, to be referred to herein as “Base
Salary”). The Base Salary will be paid periodically in
accordance with the Company’s normal payroll practices and be
subject to the usual, required withholdings.
(b) Equity Award . Subject to
approval of the Board of Directors of the Company (the
“Board”), which shall be obtained at or about the
Effective Date, the Executive will be granted a nonstatutory stock
option to purchase 100,000 shares of the Company’s Common
Stock at an exercise price per share equal to one hundred percent
(100%) of the fair
market value of a
share of Company Common Stock on the date of grant (the
“Option”). Subject to the accelerated vesting
provisions set forth herein, the Option will vest as to one-third
( 1 / 3 ) of the shares subject to
the Option one year after the date of grant, and as to 1/36th of
the shares subject to the Option monthly thereafter, so that the
Option will be fully vested and exercisable three (3) years
from the date of grant, subject to Executive’s continued
service to the Company on the relevant vesting dates. The Option
will have a seven year term and will be subject to the terms,
definitions and provisions of the Company’s 2005 Equity
Incentive Plan (the “Option Plan”) and the stock option
agreement by and between Executive and the Company (the
“Option Agreement”), both of which documents are
incorporated herein by reference.
(c) Annual Incentive .
Executive shall be eligible to participate in an annual Performance
Bonus Plan (the “Performance Bonus”) which is set at
fifty percent (50%) of Base Salary if the Company meets its
profitability operating plan. The actual earned cash incentive
payable to Executive for any performance period will depend on
extent to which applicable performance goals are achieved. Any
bonus that actually is earned will be paid as soon as reasonably
practicable after the date earned, but no later than sixty
(60) days after the end of the fiscal quarter. Bonus payments
will be subject to all applicable withholding taxes.
(d) Employee Benefits .
During the Employment Term, Executive will be eligible to
participate in all Company employee benefit plans, policies and
arrangements that are applicable to other executive officers and
employees of the Company, as such plans, policies and arrangements
may exist from time to time and in accordance with their terms. The
Company reserves the right to cancel or change the benefit plans
and programs it offers to its employees at any time.
4. Expenses . The Company
will reimburse Executive for reasonable travel, entertainment and
other expenses incurred by Executive in the furtherance of the
performance of Executive’s duties hereunder, in accordance
with the Company’s expense reimbursement policy as in effect
from time to time.
5. Termination of Employment
. In the event Executive’s employment with the Company
terminates for any reason, Executive will be entitled to any
(a) unpaid Base Salary accrued up to the effective date of
termination, (b) unpaid, but earned and accrued annual
incentive for any completed fiscal year (or other performance
period, as applicable) as of his termination of employment,
(c) pay for accrued but unused paid time off that the Company
is legally obligated to pay Executive, (d) benefits or
compensation as provided under the terms of any employee benefit
and compensation agreements or plans applicable to Executive,
(e) unreimbursed business expenses required to be reimbursed
to Executive, and (f) rights to indemnification agreement, as
applicable. In addition, if the termination by the Company is
either without Cause or by the Executive with Good Reason as a
result of a Change of Control, Executive will be entitled to the
amounts specified in Section 6.
6. Severance .
(a) Termination Without Cause;
Resignation for Good Reason as a Result of Change of Control .
If Executive’s employment is terminated by the Company
without Cause or Executive resigns for Good Reason, and such
termination occurs
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within twelve (12) months of a
Change of Control, then, subject to Sections 7, 8 and 10, Executive
will receive (i) continued payment of Base Salary for six
(6) months (“Continuance Period”), paid in
accordance with the Company’s normal payroll practices;
(ii) subject to Executive timely electing to receive
continuation coverage under Title X of the Consolidated Budget
Reconciliation Act of 1985 (“COBRA”), reimbursement for
premiums paid (payable when such premiums are due) for continued
health benefits for Executive (and any eligible dependents) under
the Company’s health plans until the earlier of
(A) twelve (12) months following termination, or
(B) the date upon which Executive and Executive’s
eligible dependents become covered under any other health plans;
and (iii) one hundred percent (100%) of the unvested
shares subject to Executive’s then outstanding, unvested
equity awards will immediately vest and, if applicable, become
exercisable.
(b) Voluntary Termination or
Termination for Cause Other Than By Change of Control . If
Executive’s employment is terminated voluntarily with or
without Good Reason, including due to death or Disability, or is
terminated with or without Cause by the Company, then, (i) all
further vesting of Executive’s outstanding equity awards will
terminate in accordance with the provisions of the stock option
plan; (ii) all payments of compensation by the Company to
Executive hereunder will terminate immediately upon termination,
and (iii) Executive will be eligible for severance benefits
only in accordance with the Company’s then established plans,
programs and practices.
7. Conditions to Receipt of Severance; No Duty to
Mitigate . The severance
payments and benefits provided herein shall be conditioned on the
following:
(a) The receipt of any severance or
other benefits pursuant to this Employment Agreement will be
subject to (i) Executive signing and not revoking a release of
claims in a form acceptable to the Company;
(ii) Executive’s promptly resigning from all positions
with the Company as requested; and (iii) Executive continuing
to comply with the terms of any Confidential Information Agreement
by which he is then bound. No severance or other benefits will be
paid or provided until the release agreement becomes
effective.
(b) During the period of
Executive’s employment with the Company and the Continuance
Period, Executive will not knowingly and materially disparage,
criticize, or otherwise make any derogatory statements regarding
the Company or any officer, director or agent of the Company nor
will the Company knowingly and materially disparage, criticize, or
otherwise make any derogatory statements regarding Executive.
Notwithstanding the foregoing, nothing contained in this Employment
Agreement will be deemed to restrict Executive, the Company or any
of the Company’s current or former officers and/or directors
from providing information to any governmental or regulatory agency
(or in any way limit the content of any such information) to the
extent they are requested or required to provide such information
pursuant to applicable law or regulation.
(c) Executive acknowledges that the
nature of the Company’s business is such that if Executive
were to become employed by, or substantially involved in, the
business of a competitor of the Company during the six
(6) months following the termination of the Executive’s
employment with the Company, it would be very difficult for
Executive not to rely on or use the Company’s trade secrets
and confidential information. Thus, to avoid the
inevitable
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disclosure of the Company’s
trade secrets and confidential information, Executive agrees and
acknowledges that Executive’s right to receive the separation
payments set forth in Section 6 of this Employment Agreement
shall be conditioned upon Executive not directly or indirectly
engaging in (whether as an employee, consultant, agent, proprietor,
principal, partner, stockholder, corporate officer, director or
otherwise), nor having any ownership interested in or participating
in the financing, operation, management or control of, any person,
firm, corporation or business that competes with Company or is a
customer of the Company. Upon any breach of this section, all
severance payments pursuant to this Employment Agreement shall
immediately cease.
(d) Until the date six months
(6) after the termination of Executive’s employment with
the Company for any reason, Executive agrees and acknowledges that
Executive’s right to receive the separation payments set
forth in Section 6 of this Employment Agreement shall be
conditioned upon Executive not either directly or indirectly
soliciting, inducing, attempting to hire, recruiting, encouraging,
taking away, hiring any employee of the Company or causing an
employee to leave his or her employment either for Executive or for
any other entity or person.
8. Limitation on Payments .
In the event that the severance and other benefits provided for in
this Agreement or otherwise payable to Executive
(i) constitute “parachute payments” within the
meaning of Section 280G of the Internal Revenue Code of 1986,
as amended (the “Code”) and (ii) but for this
Section 8, would be subject to the excise tax imposed by
Section 4999 of the Code, the Executive’s severance
benefits under Section 6 will be either:
(a) delivered in full, or
(b) delivered as to such lesser
extent which would result in no portion of such severance benefits
being subject to excise tax under Section 4999 of the Code,
whichever of the foregoing amounts, taking into account the
applicable federal, state and local income taxes and the excise tax
imposed by Section 4999, results in the receipt by Executive
on an after-tax basis, of the greatest amount of severance
benefits, notwithstanding that all or some portion of such
severance benefits may be taxable under Section 4999 of the
Code. Unless the Company and Executive otherwise agree in writing,
any determination required under this Section will be made in
writing by the independent public accountants who are primarily
used by the Company immediately prior to Change of Control (the
“Accountants”), whose determination will be conclusive
and binding upon Executive and the Company for all purposes. For
purposes of making the calculations required by this Section, the
Accountants may make reasonable assumptions and approximations
concerning applicable taxes and may rely on reasonable, good faith
interpretations concerning the application of Sections 280G and
4999 of the Code. The Company and Executive will furnish to the
Accountants such information and documents as the Accountants may
reasonably request in order to make a determination under this
Section. The Company will bear all costs t
