CONSULTING AGREEMENT THE PARTIES
Exhibit
10.1
THE
PARTIES
This
Consulting Agreement (the "Agreement") is by and between Xxxxx X. X. Xxxxxx
("Consultant") and KEY TECHNOLOGY, INC. (the "Company") (collectively referred
to as the "Parties").
RECITALS
WHEREAS,
Consultant is presently a full-time employee of the Company whose last day of
employment will be April 17, 2009 (the "Termination Date");
WHEREAS,
Consultant and the Company wish to enter into a consulting agreement applicable
to the one-year period following his last day of employment; and
NOW,
THEREFORE, in consideration of the mutual covenants and promises contained
herein and for other good and valuable consideration, receipt of which is hereby
acknowledged, it is agreed by and between the Parties as follows:
AGREEMENT
1. This
Agreement extends to the Company, its subsidiaries, divisions, and affiliates,
and the officers, directors, managers, employees, insurers, attorneys, agents,
and assigns of all the above. One purpose of this Agreement is for
Consultant to fully and finally release all of these parties, individuals, and
entities.
10. All
agreements and understandings between the Parties are embodied in and expressed
in this Agreement. The Parties acknowledge that no representations
have been made, other than those set forth in this Agreement. The
terms of this Agreement are contractual and not mere recitals. The
terms of this Agreement supersede all prior agreements and understandings
between the parties, written or unwritten, excepting any agreements regarding
confidentiality, trade secrets and restrictive covenants which hereby continue
in existence.
3. In
consideration of Consultant's release of claims arising out of his prior
employment by the Company and the rendering of consulting services as described
herein, the Company will make a lump sum payment to Consultant in the amount of
$185,000; provide Company-paid COBRA coverage for a period of six months,
beginning May 1, 2009; and accelerate the vesting of 592 shares of unvested
service-based restricted stock previously granted to Consultant, which payment
and acceleration shall occur on the eighth calendar day following the day on
which Consultant returns an executed copy of this Agreement to the Company,
provided he has not revoked this Agreement prior to such time.
4. During
the one-year period following the Termination Date, Consultant will render to
the Company in good faith as an independent contractor and not as an employee
such reasonable consulting services as the Company may request, provided the
Consultant will not be required without his prior consent to render such
consulting services in excess of ten hours per week.
5. Consultant
acknowledges and understands that Consultant has a continuing obligation after
termination of employment to keep confidential all proprietary or confidential
information or know-how, in whatever form, belonging to the Company or disclosed
to Consultant by customers or suppliers of the Company in the course of
Consultant's employment at the Company. The Company's proprietary or
confidential information or know-how is defined broadly as any information that
the Company has, which gives the Company an advantage over competitors who do
not have that information, and includes, among other things, technical and
business information relating to the Company's inventions, products or services,
research and development, production and engineering processes, machines and
equipment, finances, customers, marketing information, and future business
plans. Consultant agrees to make future employers aware that
Consultant has executed a non-disclosure and confidentiality agreement with the
Company.
6. Consultant
agrees that Consultant has or will promptly return all of the Company's
property. This includes copies of documents, notebooks, equipment,
credit cards, and any other Company property. Consultant agrees to
erase or cause to be erased all confidential information from any computer
memory or storage which is not left with the Company. Consultant
shall not take any document or computer media containing any confidential
information.
7. Consultant
hereby waives any legal rights and releases and forever discharges the Company
from and of any and all liability, demands, claims, suits, actions, charges,
damages, judgments, levies or executions, whether known or unknown, liquidated,
fixed, contingent, direct or indirect, which have been, could have been or could
be raised or brought against the Company arising out of or related to
Consultant’s employment with Company. This release includes but is
not limited to any and all claims arising under any local, state or federal law
and including without limitation, any claims pertaining to discrimination in
employment, wage and hour, Title VII of the Civil Rights Act of 1964, the
Americans with Disabilities Act of 1990, the Post Civil War Civil Rights Acts
(42 USC Sections 1981-88), the Age Discrimination in Employment Act, the Older
Workers’ Benefit Protection Act, the Rehabilitation Act of 1973, the Equal Pay
Act of 1963, the Fair Labor Standards Act, state family leave laws, the federal
Family Medical Leave Act, the Employee Retirement Income Security Act, all as
amended, any regulations under such authorities, and any applicable tort,
contract or other common law theories.
8. Any
dispute arising out of this Agreement shall be subject upon election by either
party to final and binding arbitration in Walla Walla, Washington, and the Rules
of the American Arbitration Association. Judgment upon the
arbitration award may be entered in any court of competent jurisdiction in Walla
Walla, Washington.
9. Nothing
in this Agreement shall be construed, considered or interpreted in any manner as
an admission of liability by the Company.
10. By
signing this Agreement, the Parties acknowledge they are signing voluntarily
after having read all the contents of this Agreement and have had the
opportunity to consult with their attorneys. The Parties further
acknowledge that they understand the terms and conditions of this
Agreement.
11. Consultant
will not make any disparaging or false statements about the Company and its
subsidiaries, divisions, and affiliates, and the officers, directors, managers,
employees, insurers, attorneys, agents, and assigns of all the
above.
12. Consultant
shall not, directly or indirectly, as a proprietor, partner, employee, agent,
consultant or otherwise:
a.
For a period of twelve months after the Termination Date, directly or
indirectly, whether as a consultant or otherwise, solicit or in any way attempt
to influence an employee of the Company to leave the employment of the Company
or direct, encourage, advise or otherwise assist any person to make such
solicitation or inducement.
b. For
a period of twelve months after the Termination Date, directly or indirectly,
whether as a consultant or otherwise, except as may be requested by the Company
as part of the services to be rendered by Consultant under this Agreement,
contact, solicit or otherwise communicate or direct, encourage, advise or
otherwise assist any person to communicate with or solicit any current, past or
prospective customer of the Company so as to disrupt, interfere or attempt to
interfere with or disrupt relations between the Company and any of its current,
past or prospective customers or employees.
c. Consultant
acknowledges that a breach of Paragraph 12 of this Agreement shall
cause Company irreparable harm which cannot be readily remedied in damages
in an action at law and the damages to Company would be very difficult to
determine. Therefore, in addition to any other rights or remedies available
to Company, by law, in equity or by statute, you hereby consent to the
specific enforcement of any applicable section of this Agreement by Company
through an injunction or restraining order issued by any appropriate
court. Further, in the event of such breach, the Company shall
have no further obligation to pay you any future funds due you pursuant to the
terms hereof on or after the date of such breach.
d. Nothing
contained in Paragraph 12 shall be construed to limit or negate your
obligations not to use or disclose Confidential Information established
elsewhere in this Agreement or by statute or common law.
13. This
Agreement is made in accordance with the Age Discrimination in Employment Act
(the "Act"), as amended by the Older Worker's Benefit Protection
Act. In accordance with the Act:
a. Consultant
has been advised and hereby is advised in writing of Consultant's right to
consult with an attorney prior to executing this Agreement.
b. Consultant
knowingly and voluntarily waives any and all rights and claims under the Act
other than any rights or claims under the Act that may arise after this
Agreement is signed.
c. As
consideration for executing this Agreement, Consultant has and will receive
compensation of value to which Consultant would not otherwise be
entitled.
d. This
Agreement does not prohibit Consultant from filing a charge or complaint,
including a challenge to the validity of the waiver, with the EEOC.
e. The
offer set forth in this Agreement shall remain open for up to 21
days. If Consultant accepts the Company's offer by executing this
Agreement, Consultant shall have a period of seven days from the date
immediately following the date of execution of this Agreement in which
Consultant may revoke this Agreement at Consultant's sole
election. In the event Consultant does not exercise Consultant's
right to revoke this Agreement, this Agreement shall become effective on the
date immediately following the seven-day revocation period
described.
14. This
Agreement is governed in all respects by the internal, substantive laws of the
State of Washington, without regard to choice of law principles.
15. This
Agreement may not be modified or discharged, in whole or in part, and no
provision hereof may be waived, except in writing. No waiver of any
provision on a particular occasion will affect the enforceability of such
provision on subsequent occasions, and no waiver of any particular provision
will affect the enforceability of any other provision.
16. This
Agreement is binding on Consultant and Consultant's heirs, legal
representatives, successors, and assigns and is for the benefit of the
Company.
DATED this 15th day of April,
2009.
/s/ Xxxxx X. X.
Xxxxxx
Xxxxx X.
X. Xxxxxx