Executive Severance and Restrictive Covenant Agreement, dated as of February 13,
2006 (the "Agreement"), between The GSI Group, Inc., a Delaware corporation (the
"Company"), and Xxxx X. Xxxxxxxxx (the "Executive").
The Company desires to continue to retain the Executive to supply services
to the Company, and the Executive desires to continue to provide such services
to the Company, on the terms and subject to the conditions set forth in this
Agreement.
In consideration of (i) the Executive's agreement to continue to supply services
under this Agreement, (ii) the Company's making available to the Executive the
co-investment opportunity described below, (iii) the grant of options to
purchase common stock described herein and (iv) the mutual agreements set forth
below, the sufficiency of which is hereby acknowledged, the Company and the
Executive agree as follows:
SECTION 1. Employment Relationship.
(a) Employment by Company. The Company hereby employs the Executive,
and the Executive hereby agrees to be employed by the Company, in the capacity
indicated on Exhibit A, and the Executive shall devote all of his or her
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business time, attention, knowledge and skills and use his or her best efforts
during the Employment Period (defined below) to perform services and duties
consistent with the Executive's title and position (the "Services") for the
Company in accordance with directions given to the Executive from time to time
by the reporting officer set forth on Exhibit A.
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(b) Employment Period. The period commencing on the date of this Agreement
and ending on the date on which this Agreement is terminated is referred to
herein as the "Employment Period." During the Employment Period, the Executive
will be an at-will employee of the Company. The Employment Period will be
freely terminable for any reason by either party at any time.
SECTION 2. Compensation and Benefits. During the Employment Period:
(a) Base Compensation. The Company will pay the Executive a base
salary at the annual rate as set forth in Exhibit A (as adjusted from time to
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time by the Company, the "Base Salary") payable in accordance with the standard
policies of the Company.
(b) Additional Compensation. The Executive will be eligible to receive
discretionary annual performance bonuses as determined by the Board of Directors
of the Company (the "Board").
(c) Co-Investment and Incentive Plans. Simultaneously herewith, the
Executive and GSI Holdings Corp., a Delaware corporation and the parent of the
Company ("Holdings"), are entering into agreements providing for (i) the
co-investment by the Executive with Charlesbank Equity Fund V, Limited
Partnership and its affiliates (the "Charlesbank Investors") of the amount set
forth on Exhibit A to purchase common stock, $.01 par value (the "Common
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Stock"), in Holdings at the same purchase price as the Charlesbank Investors and
(ii) the grant to the Executive of options to purchase shares of Common Stock of
Holdings under the GSI Holdings Corp. 2005 Management Stock Incentive Plan. In
addition, the Executive and the Company are entering into an agreement setting
forth the rights and obligations of the Executive with respect to its ownership
of shares of Common Stock of the Company. The Executive will be entitled to
participate in current or future equity incentive plans adopted by the Company.
Such grants may be awarded from time to time in the sole discretion of the
Board.
(d) Benefit Plans. During the Employment Period, the Executive will be
entitled to participate in benefit plans and programs maintained by the Company
from time to time and generally made available to its senior executive officers;
provided, however, that (i) the Executive's right to participate in such plans
and programs will not affect the Company's right to amend or terminate any such
plan and program, and (ii) the Executive acknowledges that he or she will have
no vested rights under any such plan or program except as expressly provided
under the terms thereof.
SECTION 3. Termination.
(a) Cause. The Company, at its option, may terminate the Employment
Period for Cause, provided that to terminate the Executive's employment for
Cause, at least a majority of the members of the Board must determine in good
faith that Cause has occurred. "Cause" means the Executive's (1) indictment
for, conviction of or plea of guilty or nolo contendere to a felony or any crime
involving moral turpitude, fraud, embezzlement or theft, (2) breach of
fiduciary duties, which breach is not cured within 30 days after written notice
from the Company, or (3) gross negligence or willful misconduct in the
performance of the Services, which negligence or misconduct is not cured within
30 days after written notice from the Company. If the Executive is charged with
a felony, then during the period while such charge or related indictment remains
outstanding and until finally determined, in the Company's sole discretion, the
Company may suspend the Executive without compensation.
(ii) Upon termination of the Employment Period by the Company for
Cause, (1) the Company will pay the Executive's then current Base Salary (but
not any bonus) and provide any benefits under the plans in which the Executive
participates through the termination date, payable in accordance with the
standard policies of the Company, and (2) with respect to any outstanding stock
options, restricted stock or other equity based compensation (collectively,
"Equity Based Compensation") granted by the Company to the Executive, vesting
will cease on all such Equity Based Compensation as of the termination date, all
unvested Equity Based Compensation will be forfeited on the termination date,
and all vested options and other Equity Based Compensation (with features
similar to exercise) will be exercisable only through the termination date and
will be forfeited if not exercised by such date.
(b) Good Reason. The Executive may terminate the Employment Period
upon 60 days' prior written notice to the Company for Good Reason (as defined
below) if the basis for such Good Reason is not cured within a reasonable period
of time (determined in light of the cure appropriate to the basis of such Good
Reason, but in no event less than 15 business days) after the Company receives
written notice specifying the basis of such Good Reason. "Good Reason" means
(1) the failure of the Company to pay any amount (in the aggregate over $10,000)
due to the Executive within 45 days after written notice to the Company of such
failure (provided that if the Company disputes any amount or that any such
amount is due, and pays any undisputed amount, the 45 day cure period will be
tolled until the resolution of the dispute) or (2) any other material breach by
the Company of any obligations owed to the Executive in connection with the
Executive's employment.
(ii) Upon termination of the Employment Period by the Executive for
Good Reason, (1) the Company will pay the Executive's then current Base Salary
(but not any bonus) for a period of one year following the date of termination
of employment, provided, that no payment of Base Salary shall be due and payable
to Executive during such one year period if such payment would give rise to
adverse tax consequences to Executive under Section 409A of the Internal Revenue
Code of 1986, as amended (the "Code"), and all such payments that would
otherwise be payable during such one year period shall become due and payable as
soon as practicable after the date on which no such adverse tax consequences
under Section 409A of the Code would be suffered by Executive, (2) the Company
will provide the Executive with benefits under the plans in which the Executive
participates through the termination date, and (3) with respect to any
outstanding Equity Based Compensation granted by the Company to the Executive,
vesting will cease on all unvested Equity Based Compensation as of the
termination date, all unvested Equity Based Compensation will be forfeited on
the termination date and all vested options and other Equity Based Compensation
(with features similar to exercise) will be exercisable for 30 days after the
termination date and will be forfeited if not exercised by such date.
(iii) Upon termination of the Employment Period by the Executive without
Good Reason, (1) the Company will pay the Executive's then current Base Salary
(but not any bonus) and provide any benefits under the plans in which the
Executive participates through the termination date, and (2) with respect to any
outstanding Equity Based Compensation granted by the Company to the Executive,
vesting will cease on all unvested Equity Based Compensation as of the
termination date, all unvested Equity Based Compensation will be forfeited on
the termination date and all vested options and other Equity Based Compensation
(with features similar to exercise) will be exercisable for 30 days after the
termination date and will be forfeited if not exercised by such date.
(c) Without Cause. The Company, at its option, may terminate the
Employment Period without Cause at any time.
(ii) Upon termination of the Employment Period by the Company without
Cause, (1) the Company will pay the Executive's then current Base Salary (but
not any bonus) for a period of one year following the date of termination of
employment, provided, that no payment of Base Salary shall be due and payable to
Executive during such one year period if such payment would give rise to adverse
tax consequences to Executive under Section 409A of the Code, and all such
payments that would otherwise be payable during such one year period shall
become due and payable as soon as practicable after the date on which no such
adverse tax consequences under Section 409A of the Code would be suffered by
Executive, (2) the Company will provide the Executive with benefits under the
plans in which the Executive participates through the termination date, and (3)
with respect to any outstanding Equity Based Compensation granted by the Company
to the Executive, vesting will cease on all unvested Equity Based Compensation
as of the termination date, all unvested Equity Based Compensation will be
forfeited on the termination date and all vested options and other Equity Based
Compensation (with features similar to exercise) will be exercisable for 30 days
after the termination date and will be forfeited if not exercised by such date.
(d) Death or Disability. If the Executive dies during the Employment
Period, the Employment Period will terminate as of the date of the Executive's
death. If the Executive becomes unable to substantially perform the Services
for 30 consecutive days, or for shorter periods aggregating 90 days in any
12-month period, due to a physical or mental disability, whether resulting from
illness, accident or otherwise (each such case, a "Disability"), (1) the Company
may elect to terminate the Employment Period at any time thereafter, and (2) the
Employment Period will terminate as of the date of such election. All
disabilities will be certified by a physician acceptable to both the Company and
the Executive, or, if the Company and the Executive cannot agree upon a
physician within 15 days, by a physician selected by physicians designated by
each of the Company and the Executive. The Executive's failure to submit to any
physical examination by such physician after such physician has given reasonable
notice of the time and place of such examination will be conclusive evidence of
the Executive's inability to perform his or her duties hereunder.
(ii) Upon termination of the Employment Period upon the Executive's
death or Disability, (1) the Company will pay the Executive's then current Base
Salary (but not any bonus) and provide any benefits under the plans in which the
Executive participates through the termination date, and (2) with respect to any
outstanding Equity Based Compensation granted by the Company to the Executive,
vesting on all Equity Based Compensation will continue for the period of 12
months following the termination date, all of the Executive's vested options and
other Equity Based Compensation (with features similar to exercise) will be
exercisable for 12 months after the termination date and all options and other
Equity Based Compensation (with features similar to exercise) that remain
unvested or unexercised on the date that is 12 months after the termination date
will be forfeited.
(e) Termination of Obligations. In the event of termination of the
Employment Period in accordance with this Section 3, all obligations of the
Company and the Executive under this Agreement will terminate, except for any
amounts payable and benefits to be provided by the Company as specifically set
forth in this Section 3; provided, however, that notwithstanding anything to the
contrary contained in this Agreement, the provisions of Section 4 and Section 5
shall survive such termination in accordance with their respective terms and the
relevant provisions of Section 6 shall survive such termination indefinitely.
In the event of termination of the Employment Period in accordance with this
Section 3, the Executive agrees to cooperate with the Company in order to ensure
an orderly transfer of the Executive's duties and responsibilities.
(f) Condition. The Company will not be required to make the payments and
provide the benefits stated in this Section 3 unless the Executive executes and
delivers to the Company an agreement releasing from all liability (other than
the payments and benefits contemplated by this Agreement and any indemnification
arrangement of the Company with respect to the Executive) the Company and each
of its parents and subsidiaries and any of their respective past or present
directors, officers, employees, shareholders, controlling persons or agents of
the Company. This agreement will be in the form normally used by the Company
for senior executives at the time.
SECTION 4. Confidentiality; Non-Disclosure.
(a) Non-Disclosure Obligation. Except (x) as provided in this
Section 4(a) or (y) with the Company's written consent, the Executive will not
disclose any Confidential Information of the Company or any of its affiliates or
subsidiaries to any person, firm, corporation, association or other entity
(other than the Company, its affiliates or subsidiaries or any of their
respective officers or employees, attorneys, accountants, bank lenders, agents,
advisors or representatives thereof) for any reason or purpose whatsoever (other
than in the normal course of business on a need-to-know basis after the Company
has received assurances that the confidential or proprietary information will be
kept confidential), nor will the Executive make use of any such confidential or
proprietary information for his or her own purposes or for the benefit of any
person, firm, corporation or other entity, except the Company. As used in this
Section 4, the term "Confidential Information" means all information which is or
becomes known to the Executive and relates to matters such as trade secrets,
research and development activities, new or prospective lines of business
(including analysis and market research relating to potential expansion of the
business), books and records, financial data, customer lists, marketing
techniques, financing, credit policies, vendor lists, suppliers, purchasers,
potential business combinations, distribution channels, services, procedures,
pricing information and private processes as they may exist from time to time;
provided, however, that the term Confidential Information will not include
information that is or becomes generally available to the public (other than as
a result of a disclosure in violation of this Agreement by the Executive or by a
person who received such information from the Executive in violation of this
Agreement).
(ii) Compulsory Disclosures. If the Executive is requested or (in the
opinion of his or her counsel) required by law or judicial order to disclose any
Confidential Information (as defined above), the Executive will provide the
Company with prompt notice of any such request or requirement so that the
Company may seek an appropriate protective order or waiver of the Executive's
compliance with the provisions of this Section 4(a). The Executive will not
oppose any reasonable action by, and will cooperate with, the Company to obtain
an appropriate protective order or other reliable assurance that confidential
treatment will be accorded to the Confidential Information. If, failing the
entry of a protective order or the receipt of a waiver hereunder, the Executive
is, in the opinion of his or her counsel, compelled by law to disclose a portion
of the Confidential Information, the Executive may disclose to the relevant
tribunal without liability hereunder only that portion of the Confidential
Information which counsel advises the Executive he or she is legally required to
disclose, and each of the parties hereto agrees to exercise such party's best
efforts to obtain assurance that confidential treatment will be accorded to such
Confidential Information.
(b) Assignment of Inventions. The Executive agrees that he or she will
promptly and fully disclose to the Company all inventions, ideas, software,
trade secrets or know-how (whether patentable or copyrightable or not) made or
conceived by the Executive (either solely or jointly with others) during the
Employment Period and for a period of six months thereafter, and all tangible
work product derived therefrom (collectively, the "Ideas"). The Executive
agrees that all such Ideas will be and remain the sole and exclusive property of
the Company. On the request of the Company, the Executive will, during and
after the term of this Agreement, without charge to the Company but at the
expense of the Company, assist the Company in any reasonable way to vest in the
Company, title to all such Ideas, and to obtain any related patents, trademarks
or copyrights in all countries throughout the world. In this regard, the
Executive will execute and deliver any and all documents that the Company may
reasonably request.
SECTION 5. Ongoing Restrictions on Executive's Activities.
(a) General Effect. This Section uses the following defined terms:
"Client" means any client or prospective client of the Group to whom the
Executive provided services, or for whom the Executive transacted business, or
whose identity became known to the Executive in connection with the Executive's
relationship with or employment by the Company.
"Competitive Enterprise" means any business enterprise that either (i)
engages in any material activity that competes anywhere with any material
activity in which the Group is then engaged or is planning to engage of which
the Executive is aware or (ii) holds a 5% or greater equity, voting or profit
participation interest in any enterprise that engages in such a competitive
activity.
"Group" means the Company and any and all of its parents, subsidiaries,
joint ventures and affiliated entities as the same may exist from time to time.
"Post-Employment Restriction Period" means a 12-month period after
termination of the Employment Period.
"Solicit" means any direct or indirect communication of any kind,
regardless of who initiates it, that in any way invites, advises, encourages or
requests any person to take or refrain from taking any action.
(b) Executive's Importance to the Group and the Effect of this Section
5. The Executive acknowledges that:
(i) In the course of the Executive's involvement in the Group's
activities, the Executive has had and will have access to Confidential
Information and the Group's client base and will profit from the goodwill
associated with the Group. In view of the Executive's access to Confidential
Information and the Executive's importance to the Group, if the Executive
competes with the Group either during or for some time after the Executive's
employment, the Group will likely suffer significant harm. In return for the
benefits the Executive will receive from the Company, including without
limitation, the Executive's co-investment in shares of Common Stock of Holdings
and stock option grant as described in Section 2(c) above, and to induce the
Company to enter into this Agreement, and in light of the potential harm the
Executive could cause the Company, the Executive agrees to the provisions of
this Section 5. The Company would not have entered into this Agreement or the
agreements described in Section 2(c) above to sell stock in Holdings or grant
options in Holdings to Executive if the Executive did not agree to this Section
5.
(ii) In light of Section 5(b)(i), if the Executive breaches any provision of
this Section 5, the loss to the Company would be material but the amount of loss
would be uncertain and not readily ascertainable.
(iii) This Section 5 limits the Executive's ability to earn a livelihood in
a Competitive Enterprise and the Executive's relationships with Clients. The
Executive acknowledges, however, that complying with this Section 5 will not
result in severe economic hardship for the Executive or the Executive's family.
(c) Executive's Payment Obligations.
(i) If the Executive fails to comply with this Section 5 during the
Employment Period or the Post-Employment Restriction Period, other than any
isolated, insubstantial and inadvertent failure that is not in bad faith, the
Executive will:
(1) forfeit all severance payments made or due to the Executive
pursuant to Sections 3(b)(ii) or 3(c)(ii) of this Agreement;
(2) forfeit all (x) vested and unvested stock options and other Equity Based
Compensation (with features similar to exercise) that have been granted by
Holdings to the Executive and not been exercised at the date of determination,
(y) restricted stock and other Equity Based Compensation (without features
similar to exercise) that have been awarded by Holdings and not vested at the
time of determination, and (z) amounts due and unpaid by Holdings (or any
permitted assignee of Holdings' repurchase rights) to the Executive in respect
of the repurchase of the Executive's shares of Common Stock of Holdings that
exceed the lesser of cost and fair market value on the termination date; and
(3) pay to the Company (or its designee) the amount of all gain to the
Executive within the 12 months before the date of determination from (w) the
exercise of any options or other Equity Based Compensation (with features
similar to exercise) that have been granted to the Executive by the Company, (x)
the vesting of any restricted stock and other Equity Based Compensation (without
features similar to exercise) that have been awarded by Holdings to the
Executive, (y) the sale of any shares of Common Stock of Holdings to any third
party, and (z) the repurchase by Holdings (or any permitted assignee of
Holdings' repurchase rights) of the Executive's shares of Common Stock of
Holdings that exceed the lesser of cost and fair market value on the termination
date.
(ii) The Executive will pay the Company (or its designee) under this
Section 5(c) within 30 days of notice by the Company, and the date of notice
will be the date of determination for purposes of this Section. The Executive
will pay the Company (or its designee) in cash, and gain will be determined
after giving effect to any taxes paid or payable by the Executive on such gain.
The Executive's obligations under this Section 5(c) are full recourse
obligations. The Company will have the right to offset the Executive's
obligations under this Section 5(c) against any amounts otherwise owed to the
Executive by any member of the Group, including under this Agreement.
(d) Non-Competition. During the Employment Period, and for the
Post-Employment Restriction Period, the Executive will not directly or
indirectly:
(i) hold a 5% or greater equity, voting or profit participation
interest in a Competitive Enterprise; or
(ii) associate (including as a director, officer, employee, partner, member,
consultant, agent or advisor) with a Competitive Enterprise and in connection
with the Executive's association engage, or directly or indirectly manage or
supervise personnel engaged, in any activity:
(1) that is substantially related to any activity that the Executive
was engaged in,
(2) that is substantially related to any activity for which the Executive
had direct or indirect managerial or supervisory responsibility, or
(3) that calls for the application of specialized knowledge or skills
substantially related to those used by the Executive in the Executive's
activities;
in each case, for the Group at any time during the year before the end of the
Executive's employment (or, if earlier, the year before the date of
determination).
(e) Non-Solicitation of Clients. During the Employment Period, and for
the Post-Employment Restriction Period, the Executive will not attempt to:
(i) Solicit any Client to transact business with a Competitive
Enterprise or to reduce or refrain from doing any business with the Group,
(ii) transact business with any Client that would cause the Executive to be
a Competitive Enterprise or to reduce or refrain from doing any business with
the Group, or
(iii) interfere with or damage any relationship between the Group and a
Client.
(f) Non-Solicitation of Group Employees. During the Employment Period
and for a three year period after the termination thereof, the Executive will
not attempt to Solicit anyone who is then an employee of the Group (or who was
an employee of the Group within the prior six months) to resign from the Group
or to apply for or accept employment with any Competitive Enterprise.
(g) Notice to New Employers. Before the Executive either applies for or
accepts employment with any other person or entity while any of Section 5(d),
(e) or (f) is in effect, the Executive will provide the prospective employer
with written notice of the provisions of this Section 5 and will deliver a copy
of the notice to the Company.
SECTION 6. General Provisions.
(a) Enforceability. It is the desire and intent of the parties hereto
that the provisions of this Agreement shall be enforced to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, although the Executive and the
Company consider the restrictions contained in this Agreement to be reasonable
for the purpose of preserving the Company's goodwill and proprietary rights, if
any particular provision of this Agreement shall be determined by any court or
arbitrator to be invalid or unenforceable, such provision shall be deemed
amended to delete therefrom the portion thus adjudicated to be invalid or
unenforceable, such deletion to apply only with respect to the operation of such
provision in the particular jurisdiction in which such adjudication is made. It
is expressly understood and agreed that although the Company and the Executive
consider the restrictions contained in Section 5 of this Agreement to be
reasonable, if a final determination is made by a court of competent
jurisdiction or any arbitrator that the time or territory or any other
restriction contained in this Agreement is unenforceable against the Executive,
the provisions of this Agreement shall be deemed amended to apply as to such
maximum time and territory and to such maximum extent as such court or
arbitrator may determine or indicate to be enforceable.
(b) Remedies. The parties acknowledge that the Company's damages at law
would be an inadequate remedy for the breach by the Executive of any provision
of Section 4 or Section 5 of this Agreement, and agree in the event of any
actual or threatened breach of Section 4 or 5 of this Agreement that the Company
may obtain temporary and permanent injunctive relief restraining the Executive
from such breach without bond or other security, and, to the extent permissible
under the applicable statutes and rules of procedure, a temporary injunction may
be granted immediately upon the commencement of any such suit. Nothing
contained herein shall be construed as prohibiting the Company from pursuing any
other remedies available at law or equity for such breach or threatened breach
of Section 4 or Section 5 of this Agreement.
(c) Withholding. The Company shall withhold such amounts from any
compensation or other benefits payable to the Executive under this Agreement on
account of payroll and other taxes as may be required by applicable law or
regulation of any governmental authority.
(d) Assignment. The rights of the Company under this Agreement may,
without the consent of the Executive, be assigned by the Company, in its sole
discretion, to any person, firm, corporation or other business entity which at
any time, whether by purchase, merger or otherwise, directly or indirectly,
acquires 80% or more of the stock, assets or business of the Company. This
Agreement is for the sole benefit of the parties hereto and their respective
successors and permitted assigns and not for the benefit of, or enforceable by,
any third party, except that this Agreement will inure to the benefit of the
Group.
(e) Non-Transferability of Interest. None of the rights of the Executive to
receive any form of compensation payable pursuant to this Agreement shall be
assignable or transferable except through a testamentary disposition or by the
laws of descent and distribution upon the death of the Executive. Any other
attempted assignment, transfer, conveyance or other disposition of any interest
in the rights of the Executive to receive any form of compensation to be made by
the Company pursuant to this Agreement shall be void.
(f) Indemnity. The Company hereby agrees to indemnify and hold the
Executive harmless consistent with the Company's policy against any and all
liabilities, expenses (including attorneys' fees and costs), claims, judgments,
fines, and amounts paid in settlement actually and reasonably incurred in
connection with any proceeding arising out of the Executive's employment with
the Company (whether civil, criminal, administrative or investigative, other
than proceedings by or in the right of the Company), if with respect to the
actions at issue in the proceeding the Executive acted in good faith and in a
manner he or she reasonably believed to be in, or not opposed to, the best
interests of the Company, and (with respect to any criminal action) the
Executive had no reason to believe his or her conduct was unlawful. Said
indemnification arrangement shall (i) survive the termination of this Agreement,
(ii) apply to any and all qualifying acts of the Executive which have taken
place during any period in which he or she was employed by the Company,
irrespective of the date of this Agreement or the term hereof, including, but
not limited to, any and all qualifying acts as an officer and/or director of any
affiliate while the Executive is employed by the Company and (iii) be subject to
any limitations imposed from time to time under applicable law.
(g) Dispute Resolution; Attorney's Fees. Subject to the Company's rights
under Section 6(b), any dispute, claim or controversy arising out of or relating
to this Agreement or the employment relationship, including without limitation
any dispute, claim or controversy concerning validity, enforceability, breach or
termination hereof or any claims under federal or state law for age, race, sex,
disability or other discrimination, shall be finally settled by arbitration in
accordance with the then-prevailing Commercial Arbitration Rules of the American
Arbitration Association, as modified herein ("Rules"). There shall be one
arbitrator who shall be jointly selected by the parties. If the parties have
not jointly agreed upon an arbitrator within twenty (20) calendar days of
respondent's receipt of claimant's notice of intention to arbitrate, either
party may request the American Arbitration Association to furnish the parties
with a list of names from which the parties shall jointly select an arbitrator.
If the parties have not agreed upon an arbitrator within ten (10) calendar days
of the transmittal date of the list, then each party shall have an additional
five (5) calendar days in which to strike any names objected to, number the
remaining names in order of preference, and return the list to the American
Arbitration Association, which shall then select an arbitrator in accordance
with Rule 13 of the Rules. The place of arbitration shall be Chicago, Illinois.
By agreeing to arbitration, the parties hereto do not intend to deprive any
court of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral
attachment or other order in aid of arbitration. The arbitration shall be
governed by the Federal Arbitration Act, 9 U.S.C. Sec.Sec. 1-16. Judgment upon
the award of the arbitrator may be entered in any court of competent
jurisdiction. Each party shall bear its or his own costs and expenses in any
such arbitration and one-half of the arbitrator's fees and expenses. If the
arbitration is definitively decided in the Executive's favor, the Executive
shall have the right, in addition to any other relief granted by such
arbitrator, to recover reasonable attorneys' fees; provided, however, that the
Company shall have the right, in addition to any other relief granted by such
arbitrator, to recover reasonable attorneys' fees in the event that a claim
brought by the Executive is definitively decided in the Company's favor.
(h) Acknowledgment. The Executive acknowledges that he or she has had
adequate time to consider the terms of this Agreement, has knowingly and
voluntarily entered into this Agreement and has been advised by the Company to
seek the advice of independent counsel prior to reaching agreement with the
Company on any of the terms of this Agreement. The parties to this Agreement
agree that no rule of construction shall apply to this Agreement which construes
ambiguous language in favor of or against any party by reason of that party's
role in drafting this Agreement.
(i) Amendments and Waivers. No modification, amendment or waiver, of any
provision of, or consent required by, this Agreement, nor any consent to any
departure herefrom, shall be effective unless it is in writing and signed by the
parties hereto. Such modification, amendment, waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
(j) Notices. All notices or other communications which are required or
permitted hereunder shall be in writing and sufficient if delivered personally
or sent by registered or certified mail, postage prepaid, return receipt
requested, sent by overnight courier, or sent by facsimile (with confirmation of
receipt), addressed as follows:
If to the Company:
The GSI Group, Inc.
0000 X. Xxxxxxxx Xx.
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Facsimile: 000-000-0000
with a copy to:
Xxxxxxxxx & Xxxxxxx
1330 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx
Facsimile: (000) 000-0000
and:
Charlesbank Capital Partners LLC
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Attention: Xxxx Xxxxx
Xxxx Xxxxx
Facsimile: (000) 000-0000
If to the Executive, at the address indicated on Exhibit A.
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or at such other address as the party to whom notice is to be given may have
furnished to the other party in writing in accordance herewith. If such notice
or communication is mailed, such communication shall be deemed to have been
given on the fifth business day following the date on which such communication
is posted.
(k) Descriptive Headings; Certain Interpretations. Descriptive
headings are for convenience only and shall not control or affect the meaning or
construction of any provision of this Agreement. Except as otherwise expressly
provided in this Agreement: (i) any reference in this Agreement to any
agreement, document or instrument includes all permitted supplements and
amendments; (ii) a reference to a law includes any amendment or modification to
such law and any rules or regulations issued thereunder; (iii) the words
"include," "included" and "including" are not limiting; and (iv) a reference to
a person or entity includes its permitted successors and assigns.
(l) Counterparts; Entire Agreement. This Agreement may be executed in any
number of counterparts, and each such counterpart hereof shall be deemed to be
an original instrument, but all such counterparts together shall constitute one
agreement. This Agreement contains the entire agreement between the Company and
the Executive with respect to the transactions contemplated by this Agreement
and supersedes all other or prior written or oral agreements or understandings
among the parties with respect to the Executive's employment by the Company.
The Company and the Executive hereby agree that the Consulting Agreement, dated
as of February 3, 2006, between the Company and the Executive, is terminated as
of the date of this Agreement.
(m) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS REGARDLESS OF
PRINCIPLES OF CONFLICTS OF LAWS.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first written above.
The GSI Group, Inc.
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Chairman
/s/ Xxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxxxxx
