TRANSITION AGREEMENT
Exhibit 10.8
BETWEEN: |
Vishay Capacitors Belgium NV,
|
having its registered offices at 8800 Xxxxxxxxx, Xxxxxxxxxxx 000X, Xxxxxxx
and with the company number 0464.945.843
Xxxx represented by Xx. Xxxx Xxxxxxx, Managing Director.
Hereinafter referred to as the “Company”;
AND: |
Xx. Xxxxx Xxxxxxxx,
|
Residing at [Personal address redacted]
Hereinafter referred to as “Xx. Xxxxxxxx”,
Together referred to hereafter as the “Parties” and separately as a “Party”;
The settlement agreement is hereinafter referred to as the “Transition Agreement”.
***
IT IS WITNESSED THAT:
By resolution of the General Shareholders’ meeting of 7 June 2005, Xx. Xxxxxxxx has been appointed as director of the Company (“Director”).
By decision of the Board of Director’s meeting of 30 June 2008, Xx. Xxxxxxxx has been appointed as director in charge of the daily management of the
Company (“Managing Director”) as from 1 July 2008.
Xx. Xxxxxxxx has then been promoted to Chief Technology Officer by decision of 1 August 2011. On 16 January 2012, the Parties have concluded an agreement
with regard to this position, further amended on 4 March 2014, 3 March 2015, 15 February 2018, and 23 February 2021, respectively (collectively, hereinafter referred as the “Services Agreement”).
The Company wishes to terminate the Services Agreement and end the corporate mandates of Director and Managing Director, in accordance with the terms and
conditions described herein.
2
In this context, the Parties have entered into discussions with the aim of concluding the Transition Agreement, through which they intend to settle, once
and for all, the terms and conditions of termination of their professional relationship, as well as any disputes that currently exist or could arise in the future.
3
CONSEQUENTLY, IT HAS BEEN AGREED AS FOLLOWS:
Article 1
After mutual concessions, the Parties enter into a settlement agreement in the sense of Article 2044 and the following
articles of the Civil Code.
Article 2
The Parties recognize that they were aware of their rights at the time of the conclusion of the Transition Agreement. The provisions
of the Transition Agreement have been agreed upon between the Parties and those provisions fully reflect their free and clear consent.
Both of the Parties have been given the necessary time for reflection to examine and negotiate the Transition Agreement and they have
received the necessary advice in order to understand its scope.
The Parties undertake to execute the Transition Agreement in good faith.
Article 3
The Parties expressly agree and acknowledge that any professional relationship between them shall be definitively terminated as a
termination by the Company without Cause (as defined below) on 31 December 2022 (the “Termination Date”), unless Xx. Xxxxxxxx’x employment is
earlier terminated by the Company for Cause, or due to Xx. Xxxxxxxx’x death or disability (within the meaning of Section 13.2(b) of the Services Agreement, (“Disability”)).
Until the Termination Date, Xx. Xxxxxxxx will carry out the missions provided in the Services Agreement, will make good faith efforts
to prepare the Company and its affiliates (which, for the avoidance of doubt, includes for the purposes of this Transition Agreement Vishay Intertechnology, Inc., a Delaware corporation (the parent company) and all of its subsidiaries) for an
orderly transition of his duties as Chief Technology Officer to his successor (and, upon the request of the Company and its affiliates, an orderly transition of his other duties to other personnel of the Company of its affiliates), and will perform
his corporate mandates with all due care. However, as of 1 January 2023, Xx. Xxxxxxxx will no longer perform any services or corporate mandates for the Company and its affiliates.
With respect to the corporate mandates, Xx. Xxxxxxxx commits to resign from such mandates with effect on the Termination Date. At the
signature of the Transition Agreement, Xx. Xxxxxxxx will provide the Company with a signed original of the resignation letter annexed to the Transition Agreement.
For the purposes of this Transition Agreement, “Cause” means any of the following:
(i)
|
Xx. Xxxxxxxx’x conviction of a felony or any other crime involving moral turpitude (whether or not involving the Company or its affiliates);
|
(ii)
|
any act or failure to act by Xx. Xxxxxxxx involving dishonesty, fraud, misrepresentation, theft or embezzlement of assets from the Company or
its affiliates; or
|
4
(iii)
|
Xx. Xxxxxxxx’x (a) willful and repeated failure to substantially perform his duties under the Services Agreement or Transition Agreement (other
than as a result of total or partial incapacity due to physical or mental illness or injury) or (b) willful and repeated failure to substantially comply with any policy of the Company or its affiliates applicable to Xx. Xxxxxxxx;
provided, however, that a termination pursuant to this clause (iii) will not become effective unless Xx. Xxxxxxxx fails to cure such failure to perform or comply within twenty (20) days after written notice thereof from the Company.
|
For avoidance of doubt, a termination due to a condition entitling Xx. Xxxxxxxx to long-term disability benefits under a Company plan will not constitute a
termination without Cause.
Article 4
The Parties expressly agree and acknowledge that, subject to Xx. Xxxxxxxx’x continued employment through the Termination Date, between the date hereof
and the Termination Date, the Company shall continue to pay or provide to Xx. Xxxxxxxx his compensation and benefits as in effect on the date hereof, which for the avoidance of doubt are enumerated below:
-
|
his monthly fixed fees, corresponding to EUR 44,508 gross per month, less applicable legal withholdings. The payment of the monthly fixed fees is subject to the effective performance by Xx. Xxxxxxxx of the missions agreed under the Services Agreement and hereunder;
|
-
|
his monthly lump-sum representation allowance of EUR 300; and
|
-
|
the other payments and benefits scheduled on Annex 1 hereto.
|
The Parties expressly agree and acknowledge, that subject to Xx. Xxxxxxxx’x continued employment through the Termination Date, and subject further to Xx.
Xxxxxxxx’x timely execution of this Transition Agreement and the release attached hereto as Annex 2 (the “Release”):
-
|
the Company shall make a lump sum payment to Xx. Xxxxxxxx equal to all accrued unpaid fixed fee and unpaid expense reimbursement, in accordance
with Company policies, within 15 days following the Termination Date;
|
-
|
the Company shall pay to Xx. Xxxxxxxx a termination indemnity of EUR 1,602,288 gross, less applicable legal withholdings, to be paid in equal
instalments in accordance with the Company’s standard payroll practices (but no less frequently than monthly) from 1 January 2023 until 31 December 2025. In the event a Change in Control (as defined in the Services Agreement, but that
also constitutes a “change in control event” described in Treas. Reg. § 1.409A-3(i)(5)(i)) occurs prior to the Termination Date, the above-described termination
indemnity will instead be paid in a single lump sum within 60 days following the Termination Date;
|
5
-
|
Xx. Xxxxxxxx shall remain eligible to receive an annual bonus in respect of 2022, determined in the same manner and at the same time as would
have been the case in the absence of Xx. Xxxxxxxx’x termination of employment;
|
-
|
the service-based vesting criteria applicable to Xx. Xxxxxxxx’x outstanding equity awards shall be deemed satisfied, whereas performance-based
vesting criteria will remain in effect through the end of the applicable performance period, and all such awards will be settled in accordance with the applicable award agreements;
|
-
|
Xx. Xxxxxxxx shall remain entitled to those rights that he is entitled to following a termination of employment without Cause under the terms
of the Company’s benefit plans or arrangements (other than severance benefit plans); and
|
-
|
in the case of Xx. Xxxxxxxx’x death after the Termination Date, any remaining amounts that would have been paid to him under this Article 4 in
the absence of his death, will instead be paid to his estate.
|
The Parties expressly agree and acknowledge that the consequences of Xx. Xxxxxxxx’x cessation of employment due to death, Disability, or a termination by
the Company for Cause, in each case prior to the Termination Date, shall be as set forth in the Services Agreement.
Article 5
Until the Termination Date and in compliance with Article 7.2 of the Services Agreement, the Company commits, upon presentation of the justificative
documentation, to reimburse the reasonable expenses incurred by Xx. Xxxxxxxx in the performance of his office and which are not covered by the lump-sum representation allowance.
Article 6
All amounts to be paid to Xx. Xxxxxxxx shall be transferred to Xx. Xxxxxxxx’x bank account, with the following bank account number: [Bank Account Redacted].
Article 7
All Belgian and/or foreign tax and social security contributions, which may be due in relation with the amounts set forth above will be exclusively borne
by Xx. Xxxxxxxx.
Article 8
The Parties confirm that they wish to maintain and apply the Non-Compete Clause set forth in Article 13.3 of the Service Agreement. Notwithstanding anything
to the contrary in this Transition Agreement, in the event that Xx. Xxxxxxxx breaches any of his obligations under Article 13.3 of the Service Agreement, any payments or benefits not yet made or provided under Article 4 above shall be forfeited
immediately.
6
Such forfeiture shall not limit any additional equitable or legal remedies the Company and its affiliates may have with respect to Xx. Xxxxxxxx’x breach.
In addition, Xx. Xxxxxxxx agrees to cooperate fully and in a timely manner, both before and after the Termination Date, with the Company and its
affiliates (and their counsel) with respect to any matter (including, without limitation, litigation, investigations, or governmental proceedings) relating to Xx. Xxxxxxxx’x tenure with the Company and its affiliates, upon reasonable notice from
the Company or its affiliate, so long as, following the Termination Date, the Company and its affiliates exercise commercially reasonable efforts to schedule and limit its need for Xx. Xxxxxxxx’x cooperation under this paragraph so as not to
interfere with Xx. Xxxxxxxx’x other personal and professional commitments. Xx. Xxxxxxxx’x obligation to cooperate as described in the prior sentence shall extend for the duration of his lifetime with respect to litigation, internal or external
audits or investigations and governmental proceedings; for all other matters, Xx. Xxxxxxxx’x obligation to cooperate shall expire on December 31, 2025. The Company will reimburse Xx. Xxxxxxxx for reasonable out-of-pocket costs that he incurs
pursuant to such cooperation, in accordance with its then-current expense reimbursement policy.
Article 9
At the latest on the Termination Date, Xx. Xxxxxxxx will return all the goods (company car, etc.), equipment and devices, and documents (confidential or
otherwise, including copies) that are the property of (or that were given them by) the Company or any of its affiliates. These goods, equipment and devices, and documents are and will remain the exclusive property of the Company.
Article 10
Xx. Xxxxxxxx undertakes not to communicate, divulge or use any Confidential Information. For the purpose of the Transition Agreement, “Confidential
Information” is defined as (i) the Services Agreements concluded with the Company, its contents and its deliverables and (ii) any technical, commercial, financial or other information relating to the business and affairs of the Company and its
affiliates and to the business and affairs of the Company’s and its affiliates’(potential) customers and clients which comes to Xx. Xxxxxxxx’x attention or possession, and which the Company regards or any of its affiliates regard, or could
reasonably be expected to regard as confidential, whether or not any such tangible information is marked “confidential”.
Xx. Xxxxxxxx explicitly agrees to refrain from denigrating the Company, any of its affiliates, or any of their respective officers, directors, employees,
consultants, reputations, products, operations, procedures, policies or services in any way.
Notwithstanding anything to the contrary in the Transition Agreement, the restrictions described in the two preceding paragraphs and in Article 12 herein
shall not (i) apply to disclosure required by Xx. Xxxxxxxx under applicable law, regulation or legal process (provided that, to the extent permitted by applicable law, Xx. Xxxxxxxx provides the Company with prior notice of the contemplated
disclosure and reasonably cooperates with the Company at its expense in seeking a protective order or other appropriate protection of such information) or (ii) be construed to impede Xx. Xxxxxxxx from making disclosures that are protected under
applicable whistleblower laws, or to require notification or prior approval by the Company or its affiliates of any such disclosure (provided that Xx. Xxxxxxxx is not authorized under this clause (ii) to disclose communications with counsel to the
Company or its affiliates that were made for the purpose of receiving legal advice or that contain legal advice or that are protected by the attorney work product or similar privilege).
7
Article 11
Insofar as Xx. Xxxxxxxx uses online social networks (such as Facebook, Twitter, LinkedIn, Hyves, Plaxo, etc.), Xx. Xxxxxxxx
undertakes, within seven calendar days after the Termination Date, to update his personal profile to make it clear that he is no longer in a relationship with the Company and its affiliates since the Termination Date.
Article 12
Xx. Xxxxxxxx explicitly agrees to keep the existence as well as the content of the Transition Agreement strictly confidential and
agrees not to communicate directly or indirectly any information relating to the Transition Agreement to third parties, except in cases where there is a legal obligation to divulge this information or where Xx. Xxxxxxxx is requested to divulge this
information by a competent authority.
Xx. Xxxxxxxx, moreover, explicitly agrees to refrain from divulging any information to any third party regarding any disputes that
have existed between the Parties.
Article 13
Under the condition of the proper and complete execution of the Transition Agreement:
-
|
Xx. Xxxxxxxx accepts the provisions of the Transition Agreement as final settlement of all claims of a contractual nature or of any other
nature, which he could have against the Company regarding his professional relationship with the Company (and its affiliates) and/or the termination thereof;
|
-
|
Xx. Xxxxxxxx waives all other rights, which he has or which may arise with regard to the professional relationship that existed between him and
the Company (and its affiliates) or with regard to the termination of the relationship, including, but without being limited to, claims for damages and interest for abusive termination of the contractual relationship, additional
termination indemnity, fees arrears, bonus arrears, premiums, equity investment compensations, etc.;
|
-
|
Xx. Xxxxxxxx xxxxxx his right to file any future court action regarding his professional relationship with the Company (and its affiliates)
and/or the termination thereof;
|
-
|
Xx. Xxxxxxxx shall refrain from prevailing himself of any legal or factual error or any omission regarding the existence or the scope of his
rights.
|
8
Consequently, Xx. Xxxxxxxx explicitly agrees and acknowledges that he has exhausted his rights and confirms that he has no more claims against the
Company or its affiliates.
The waiver exercised by Xx. Xxxxxxxx is not only valid with regard to the Company but also with regard to each and every one of its predecessors,
successors (by merger or otherwise), parents, subsidiaries, affiliates, divisions and related entities, and all of their directors, officers, executives, attorneys and agents, whether present or former, and benefit plans (and the administrators,
fiduciaries and agents of such plans).
Moreover, Xx. Xxxxxxxx commits to confirm and sign, on the Termination Date, the Release annexed to the Transition Agreement and restating the same
waivers as the one provided in the present article. This release shall cover in particular the period running from the signature of Transition Agreement to the Termination Date.
Article 14
The Transition Agreement constitutes the final and complete agreement of the Parties.
The Transition Agreement annuls and replaces all previous agreements and stipulations, of whatsoever nature, which were concluded verbally or in writing
between the Parties and are in conflict with the Transition Agreement.
If one or more clauses or parts of clauses of the Transition Agreement are deemed partially or totally void, the other provisions shall not be affected
by the nullity and shall consequently remain valid.
Article 15
This Transition Agreement shall be governed by and construed in accordance with Belgian law.
The Parties expressly accept the exclusive jurisdiction of Belgian courts for any disputes arising from the Transition Agreement or the execution
thereof.
* * *
Drafted in Belgium, on July 15, 2022, in two originals signed and initialised by each Party. Both Parties acknowledging having received one original.
Each counterpart to this Transition Agreement may be executed and delivered electronically (including via portable document format or similar method) and a receiving Party may rely on the receipt of a document so executed and delivered as if the
original had been received.
For Vishay Capacitors Belgium NV Xx. Xxxxxxxx*
/s/ Xxxx Xxxxxxx
/s/ Xxxxx Xxxxxxxx
Name: Xx. Xxxx Xxxxxxx
Position: Managing Director
9
*The signature must be preceded by the handwritten note
“read and approved”.
Annexes:
2.
|
Resignation letter from the mandates of Director and Managing Director
|
3.
|
Release to be signed on the Termination Date
|
10
Annex 1—Schedule of Payments and Benefits*
1.
|
A monthly automobile gross allowance of EUR 3,600 less applicable legal withholding
|
2.
|
A monthly gross cash payment of EUR 10,681 (representing 24% of Xx. Xxxxxxxx’x monthly fixed fees), in lieu of any contributions to an
individual pension commitment (“individuele pensioentoezegging”) less applicable legal withholding
|
3.
|
Continued participation in the Company’s program for hospitalization insurance, as in effect from time to time, in accordance with the
eligibility requirements of such program
|
4.
|
Continued participation in the Company’s travel insurance program, liability insurance for directors, and other insurance programs, as in
effect from time to time, in accordance with the eligibility requirements of such programs
|
* The payments and benefits described above shall continue to be paid or provided, as applicable, until the Termination Date, subject to
Xx. Xxxxxxxx’x continued employment through such date.
11
Annex 2 – Resignation letter
Xxxxx Xxxxxxxx
Residing at
[Personal address redacted]Vishay Capacitors Belgium NV
Registered offices: 8800 Roeselare, Xxxxxxxxxxx 000X, Xxxxxxx
Company number: 0464.945.843
Vishay Resistors Belgium BV
Twee Xxxxxxxxxxxx 00
Xxxxxxx (Evere) X-0000 Xxxxxxx
Company number: 0442.439.368
Vishay BCcomponents B.V.
Xxxxxxxxxxxxx 00
Xxxxxxxxx 0000 XX Xxxxxxxxxxx
Company number: KvK 1709457
August 3, 2022
To the Board of Directors of Vishay Capacitors Belgium NV, Vishay Resistors Belgium BV, and Vishay BCcomponents B.V.
Dear Member of the Board of Vishay Capacitors Belgium NV, Vishay Resistors Belgium BV, and Vishay BCcomponents B.V. (each, a “Company”):
Re: Resignation from my positions as Director
and Managing Director of the Companies
I, Xxxxx Xxxxxxxx, xxxxxx resign from my positions as Director and Managing Director of each Company with effect as from 31 December 2022.
12
I would kindly ask you to proceed to the necessary steps at the next general meeting of the shareholders and, to the extent applicable, to publish this
resignation in the Annexes of the Belgian Official Gazette (“Moniteur Belge”) or as otherwise appropriate.
I would also ask you to grant me the discharge for the acts performed in my capacity as Director and Managing Director of each respective Company at the
next general meeting of shareholders of each Company.
Finally, I confirm that I have no claim against any of the Companies or their respective shareholders and, in any event, I expressly waive any claim I
may have against them.
Yours sincerely,
/s/ Xxxxx Xxxxxxxx
Xxxxx Xxxxxxxx
13
Annex 3 - Release
31 December 2022
Xxxxxx, I confirm that:
-
|
I accept the provisions of the Transition Agreement concluded on July 15, 2022 as final settlement of all claims of a contractual nature or of
any other nature, which I could have against Vishay Capacitors Belgium NV (hereafter “the Company”) regarding our professional relationship and/or the termination thereof;
|
1.
|
I waive all other rights, which I have, or which may arise with regard to the professional relationship that existed between me and the Company
or with regard to the termination of the relationship, including, but without being limited to, claims for damages and interest for abusive termination of the contractual relationship, additional termination indemnity, fees arrears, bonus
arrears, premiums, equity investment compensations, etc.;
|
-
|
I waive my right to file any future court action regarding my professional relationship with the Company and/or the termination thereof;
|
-
|
I will refrain from prevailing myself of any legal or factual error or any omission regarding the existence or the scope of my rights.
|
I explicitly agree and acknowledge that I have exhausted my rights and confirm that I have no more claims against the Company.
My waiver is not only valid with regard to the Company but also with regard to each and every one of its predecessors, successors (by
merger or otherwise), parents, subsidiaries, affiliates, divisions and related entities, and all of their directors, officers, executives, attorneys and agents, whether present or former, and benefit plans (and the administrators, fiduciaries and
agents of such plans).
Xxxxx Xxxxxxxx*
____________________
*The signature is preceded by the
handwritten note “read and approved”.