Exhibit 10.11
CONSULTING AND NON-COMPETITION AGREEMENT
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This CONSULTING AND NON-COMPETITION AGREEMENT ("Agreement") is made
and entered into as of November 4, 2003, by and between Vishay Intertechnology,
Inc., a Delaware corporation ("Vishay"), and Avi Eden, an individual (the
"Consultant").
W I T N E S S E T H:
WHEREAS, Consultant was a member of the Board of Directors, a Vice
Chairman of the Board of Directors and an Executive Vice President of Vishay;
WHEREAS, Vishay now desires to retain Consultant as a consultant to
Vishay in such matters as shall from time to time hereafter be requested by
Vishay, on the terms and conditions set forth herein;
NOW, THEREFORE, Vishay and Consultant, each intending to be legally
bound, hereby mutually covenant and agree as follows:
ARTICLE I
Consultancy Engagement
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1.1 Engagement. Vishay hereby engages Consultant to provide such
advice to, and perform such consultative services for, Vishay as the parties may
mutually agree (collectively, the "Services"), subject to Consultant's
reasonable availability. Without limiting the foregoing, Consultant shall (i)
provide advice to Vishay with respect to mergers and acquisitions and
environmental matters and (ii) make himself available as reasonably requested by
Vishay to provide assistance to Vishay, including testimony, in any action or
proceeding to which Vishay or any subsidiary is or may become a party.
1.2 Term. The term of this Agreement shall commence on the date
hereof (the "Commencement Date") and shall end on January 1, 2007 (the "Initial
Term"). Thereafter, the term of this Agreement shall automatically be renewed
for subsequent twelve (12) month periods, unless terminated by either party, by
written notice to the other party, not less than thirty (30) days prior to the
end of the then current term (each an "Additional Term," and, together with the
Initial Term, the "Term"). This Agreement shall terminate upon Consultant's
death or, if as a result of Consultant's permanent disability, Consultant is
unable to perform the Services.
1.3 Performance. During the Term, Consultant shall take such actions
as are reasonably necessary to provide the Services consistent with his
engagement as set forth in Section 1.1 hereof; provided, however, Consultant may
engage in outside business activities so long as such activities would be
permitted by Section 3.1.
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1.4 Independent Contractor Status. Consultant shall perform the
Services under this Agreement as an independent contractor and not as an
employee of Vishay. Except to the extent set forth in Article II hereof,
Consultant shall not be entitled to social security, unemployment or other
benefits made available to employees of Vishay.
ARTICLE II
Remuneration
2.1 Consulting Fee.
(a) From the Commencement Date until December 31, 2003, as
consideration for Consultant's agreement to provide the Services pursuant to
this Agreement, Vishay shall pay Consultant a consulting fee equal to the base
salary (including benefits) that would have otherwise been payable to Consultant
during such period had he remained an employee of Vishay.
(b) Commencing January 1, 2004, and for the remainder of the Term,
as consideration for Consultant's agreement to provide the Services pursuant to
this Agreement, Vishay shall pay Consultant a consulting fee of $1,700 per day
for any day (or a pro-rated portion thereof for any partial day) during which
Consultant provides the Services, payable in accordance with Vishay's regular
payroll practices; provided, however, that Vishay shall pay Consultant a minimum
non-refundable fee of $100,000 per annum, such minimum fee to be payable in full
on January 2 of each calendar year during the Term, to be credited towards the
daily fee otherwise payable to Consultant during such calendar year under this
Section 2.1.
2.2 Insurance. During the Term, Consultant and his spouse shall be
entitled to participate in his current medical insurance plan. In the event
Consultant and his spouse shall not be eligible for coverage under such plan
pursuant to contractual terms with a third party insurance provider, Consultant
and his spouse, at Consultant's option, may participate in any medical insurance
plan available to Vishay's senior executives (including any self-insurance plan)
or in any other medical insurance plan available to Vishay's United States
employees generally, in each case for which Consultant is eligible, provided
that Consultant's participation in such other plan is not more expensive to
Vishay.
2.3 Stock Options. Consultant shall be considered to be an Employee
of Vishay until the end of the Term for purposes of all stock options heretofore
granted or awarded to Consultant, whether vested or unvested, under Vishay's
1997 Stock Option Program, 1998 Stock Option Program or otherwise.
2.4 Automobile Lease. Consultant shall be permitted to use the BMW
automobile which Vishay has leased for Consultant's use, and Vishay shall pay or
reimburse Consultant for all expenses related thereto, until the lease expires,
at which time Consultant shall immediately return such automobile to Vishay.
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2.5 Access to Facilities and Employees. During the Term, Consultant
may make use of Vishay's facilities and of the time and services of Vishay's
employees, in each case as the Company shall determine.
2.6 Reimbursement of Expenses. Vishay shall reimburse Consultant,
for such reasonable and documented out-of-pocket expenses as may be incurred by
Consultant during the Term in providing the Services; provided, however, that
Consultant shall not be entitled to reimbursement of first class airfare.
2.7 Indemnification. Consultant shall be indemnified by Vishay
against reasonable expenses, including attorney's fees, actually and necessarily
incurred by him in connection with the defense of any action, suit,
investigation or proceeding or similar legal activity, regardless of whether
criminal, civil, administrative or investigative in nature, to which he is made
a party by reason of his then providing or having provided Services to Vishay
hereunder; provided, however, that no indemnification shall be provided in
respect of any matter as to which (i) Consultant shall have been finally
adjudicated in any proceeding not to have acted in good faith in the reasonable
belief that his action was in, or not opposed to, the best interests of Vishay,
and with respect to any criminal action or proceeding, as to which Consultant
had reasonable cause to believe that his conduct was unlawful or (ii)
Consultant's action or inaction constituted gross negligence or willful
misconduct. Such right of indemnification will not be deemed exclusive of any
other rights to which Consultant may be entitled under Vishay's Certificate of
Incorporation or By-laws, as in effect from time to time, any agreement or
otherwise. Vishay shall (upon receipt by Vishay of an undertaking by or on
behalf of the Consultant to repay the expenses described in this Section 2.7 if
it shall ultimately be determined that he is not entitled to be indemnified by
Vishay against such expenses) pay reasonable expenses, including attorney's
fees, incurred by Consultant in defending any threatened, pending or completed
action, suit or proceeding or appearing as a witness at a time when he has not
been named as a defendant or respondent with respect thereto in advance of the
final disposition of any such action, suit or proceeding.
2.8 Withholding Taxes. Vishay may withhold from all payments due to
Consultant under this Agreement all taxes which, by applicable federal, state,
local or other law, Vishay is required to withhold therefrom.
ARTICLE III
Restrictive Covenants
3.1 Non-Competition. During the Term and for two years following the
termination of this Agreement, Consultant shall not, without the prior written
consent of the Company, directly or indirectly, own, manage, operate, join,
control, participate in, invest in or otherwise be connected or associated with,
in any manner, including as an officer, director,
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employee, independent contractor, subcontractor, stockholder, member, manager,
partner, principal, consultant, advisor, agent, proprietor, trustee or investor,
any Competing Business (as defined below); provided, however, that nothing in
this Agreement shall prevent Consultant from (A) owning five percent (5%) or
less of the stock or other securities of a publicly held corporation, so long as
Consultant does not in fact have the power to control, or direct the management
of, and is not otherwise associated with, such corporation, or (B) performing
Services for an investment bank, investment advisor or investment fund that may,
directly or indirectly, own, manage, operate, join, control, participate in,
invest in or otherwise be connected or associated with, in any manner, any
Competing Business, provided that Consultant shall not, directly or indirectly,
have any responsibility whatsoever for, provide any services whatsoever to, or
otherwise be connected or associated with such Competing Business.
Notwithstanding the foregoing, if a company has separate divisions or
subsidiaries, some of which conduct a Competing Business and some of which
conduct other businesses which are not Competing Businesses, then the
restrictions imposed hereunder with respect to Competing Businesses shall apply
only to the divisions or subsidiaries of such company that conduct the Competing
Businesses, provided that (A) Consultant shall not, directly or indirectly, have
any responsibility whatsoever for, provide any services whatsoever to, or
otherwise be connected or associated with any Competing Business of the same
company, and (B) Consultant obtains the prior written consent of the Company,
which consent shall not be unreasonably with held. As used in this Section 3.1,
"Competing Business" means any business or venture located anywhere in the world
that is engaged in the manufacture and supply of passive and discrete active
electronic components and/or strain gages, strain gage transducers or strain
gage instrumentation to the extent Vishay or any subsidiary of Vishay is engaged
in such activities on the Commencement Date.
3.2 Non-Solicitation. During the Term and for two years following
the termination of this Agreement, Consultant shall not, directly or indirectly
solicit for employment, or recruit any person who at the relevant time is an
officer, director, employee, independent contractor, subcontractor, manager,
partner, principal, consultant, or agent of Vishay or any of its subsidiaries or
affiliates, or induce or encourage any of the foregoing to terminate their
employment, contractual or other relationship (as appropriate) with Vishay or
any of its subsidiaries or affiliates, or attempt to do any of the foregoing
either on Consultant's own behalf or for the benefit of any third person or
entity.
3.3 Confidential Information. Consultant agrees that he shall not,
directly or indirectly, use, make available, sell, disclose or otherwise
communicate to any person, other than in the course of providing the Services
hereunder and for the benefit of Vishay, either during the Term or at any time
thereafter, any nonpublic, proprietary or confidential information, knowledge or
data relating to Vishay, any of its subsidiaries, affiliated companies or
businesses, which shall have been obtained by Consultant during Consultant's
prior employment by Vishay or during the Term. The foregoing shall not apply to
information that (i) was known to the public prior to its disclosure to
Consultant; (ii) becomes known to the public subsequent to disclosure to
Consultant through no wrongful act of Consultant or any representative of
Consultant; or (iii) Consultant is required to disclose by applicable law,
regulation or legal process (provided that Consultant provides Vishay with prior
notice of the contemplated disclosure and reasonably cooperates with Vishay at
its expense in seeking a protective order or other appropriate protection of
such information). Notwithstanding clauses (i) and (ii) of the preceding
sentence,
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Consultant's obligation to maintain such disclosed information in confidence
shall not terminate where only portions of the information are in the public
domain.
3.4 Non-Disparagement. Each of Consultant and Vishay (for purposes
hereof, Vishay shall mean only the executive officers and directors thereof and
not any other employees) agrees not to make any public statements that disparage
the other party or, in the case of Vishay, its respective affiliates, employees,
officers, directors, products or services. Notwithstanding the foregoing,
statements made in the course of sworn testimony in administrative, judicial or
arbitral proceedings (including, without limitation, depositions in connection
with such proceedings) shall not be subject to this Section 3.4.
3.5 Acknowledgements Respecting Restrictive Covenants.
(a) Consultant has carefully read and considered the provisions of
this Article III and, having done so, agrees that:
(i) the restrictive covenants contained in this Article III,
including, without limitation, the scope and time period of such restrictions,
are reasonable, fair and equitable in light of Consultant's duties and
responsibilities under this Agreement and the benefits to be provided to him
under this Agreement; and
(ii) such restrictive covenants are reasonably necessary to
protect the legitimate business interests of Vishay.
(b) The parties acknowledge that it is impossible to measure in
money the damages that will accrue to one party in the event that the other
party breaches any of the restrictive covenants contained in this Article III
and that any such damages, in any event, would be inadequate and insufficient.
Therefore, if one party breaches any restrictive covenant contained in this
Article III, the non-breaching party shall be entitled to an injunction
restraining the breaching party from violating such restrictive covenant;
provided, however, that a party must provide the other party with not less than
five (5) days written notice prior to instituting an action or proceeding to
enforce any restrictive covenant contained in this Article III. If the
non-breaching party shall institute any action or proceeding to enforce a
restrictive covenant contained in this Article III, the breaching party hereby
waives, and agrees not to assert in any such action or proceeding, the claim or
defense that the non-breaching party has an adequate remedy at law.
(c) In the event of a breach of any of the restrictive covenants
contained in this Article III, the parties agree that the non-breaching party,
in addition to any injunctive relief as described in Section 3.5(b), shall be
entitled to any other appropriate legal or equitable remedy.
(d) If any of the restrictive covenants contained in this Article
III are deemed by a court of competent jurisdiction to be unenforceable by
reason of their extent, duration or geographical scope or otherwise, the parties
contemplate that the court shall revise such extent, duration, geographical
scope or other provision but only to the extent required in order to render such
restrictions enforceable, and enforce any such restriction in its revised form
for all purposes in the manner contemplated hereby.
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3.6 Consideration. Each of the covenants of this Article III is
given by Consultant as part of the consideration for this Agreement and as an
inducement to Vishay to enter into this Agreement and accept the obligations
hereunder.
ARTICLE IV
Miscellaneous
4.1 Survival. Notwithstanding anything to the contrary herein,
Section 2.6 ("Indemnification"), Article III ("Restrictive Covenants") and
Article IV ("Miscellaneous") of this Agreement shall survive termination of this
Agreement for any reason whatsoever.
4.2 Notices. Any notice, consent, request or other communication
made or given in accordance with this Agreement shall be in writing and shall be
sent either (i) by personal delivery to the party entitled thereto, (ii) by
facsimile with confirmation of receipt, or (iii) by registered or certified
mail, return receipt requested. The notice, consent request or other
communication shall be deemed to have been received upon personal delivery, upon
confirmation of receipt of facsimile transmission, or, if mailed, three (3) days
after mailing. Any notice, consent, request or other communication made or given
in accordance with the Agreement shall be made to those listed below at their
following respective addresses or at such other address as each may specify by
notice to the other:
To Vishay:
Vishay Intertechnology, Inc.
00 Xxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Secretary
Facsimile No.: (000) 000-0000
To Consultant:
Avi Eden
[Personal address omitted]
4.3 Successors.
(a) This Agreement is personal to Consultant and, without the prior
written consent of Vishay, shall not be assignable by Consultant otherwise than
(i) to an affiliate of Consultant or (ii) by will or the laws of descent and
distribution. This Agreement shall inure to the benefit of and be enforceable by
Consultant's heirs and legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
Vishay and its successors and assigns.
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(c) Vishay shall 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 Vishay expressly to assume and agree to perform
this Agreement in the same manner and to the same extent that Vishay would have
been required to perform if no such succession had taken place. As used in this
Agreement, "Vishay" shall mean both Vishay as defined above and any such
successor that assumes and agrees to perform this Agreement, by operation of law
or otherwise.
4.4 Complete Understanding; Amendment; Waiver. This Agreement
constitutes the complete understanding between the parties with respect to the
subject matter hereof and supersedes all other prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof, and no statement, representation, warranty or covenant
has been made by either party with respect thereto except as expressly set forth
herein. This Agreement shall not be altered, modified, amended or terminated
except by a written instrument signed by each of the parties hereto. Any waiver
of any term or provision hereof, or of the application of any such term or
provision to any circumstances, shall be in writing signed by the party charged
with giving such waiver. Waiver by either party hereto of any breach hereunder
by the other party shall not operate as a waiver of any other breach, whether
similar to or different from the breach waived. No delay on the part of Vishay
or Consultant in the exercise of any of their respective rights or remedies
shall operate as a waiver thereof, and no single or partial exercise by Vishay
or Consultant of any such right or remedy shall preclude other or further
exercise thereof.
4.5 Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement. If any provision of this Agreement shall
be held invalid or unenforceable in part, the remaining portion of such
provision, together with all other provisions of this Agreement, shall remain
valid and enforceable and continue in full force and effect to the fullest
extent consistent with law.
4.6 Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be wholly performed within that State, without regard to the principles
of conflicts of law.
4.7 Titles and Captions. All Section titles or captions in this
Agreement are for convenience only and in no way define, limit, extend or
describe the scope or intent of any provision hereof.
4.8 Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall be deemed an original, and all such
counterparts shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Consulting and Non-Competition Agreement as of the day and year first above
written.
VISHAY INTERTECHNOLOGY, INC.
/s/ Xxxxx Xxxxxxx
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By: Xxxxx Xxxxxxx
Title: Chairman of the Board and
Chief Executive Officer
CONSULTANT:
/s/ Avi Eden
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Avi Eden
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