SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit 10.1
SECOND AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT
This Second Amended and Restated Employment Agreement (the “Restated Agreement”) is made and
entered into in Chelmsford, Massachusetts by and between Xxxxxx Automation, Inc., a Delaware
corporation (the “Company”) and Xxxxxx X. Xxxxx (the “Executive”), as of October 18, 2006.
RECITALS
1. The Company and Executive entered into an Employment Agreement on January 31, 2003,
effective February 3, 2003 and amended and restated that Employment Agreement, effective June 1,
2004 (the “Original Employment Agreement”).
2. The Company desires to continue to employ the Executive as Chief Executive Officer of the
Company until September 30, 2007 upon the terms and conditions set forth herein.
3. The Company and Executive desire to further amend and restate the Original Employment
Agreement, with the changes set forth herein to take effect as of September 1, 2006 (the “Effective
Date”), to reflect a change of compensation as of the Effective Date and to reflect certain
additional benefits and obligations of the Company and Executive.
4. In consideration of the employment to be provided hereby and the amounts to be paid as
provided herein, Executive desires to continue to be employed by the Company and to agree with the
Company as further provided herein.
For and in consideration of the mutual promises, terms, provisions and conditions contained in
this Restated Agreement, the parties hereby agree as follows:
1. Duties.
1.1. Title. The Company shall continue to employ Executive as the President and Chief
Executive Officer of the Company (the “Chief Executive Officer”). The Executive will continue in
his role as President while he serves as Chief Executive Officer until the Executive and the Board
mutually agree to any change in title. The Executive shall continue to report to the Board of
Directors of the Company (the “Board of Directors”). Executive shall have general management and
control of the business, affairs and property of the Company and its direct and indirect
subsidiaries and shall perform the duties of such office as are provided for in the bylaws of the
Company subject to the general supervision and direction of the Board of Directors.
1.2. Board of Directors. Executive shall continue to serve as a member of the Board
of Directors and shall be considered for re-nomination each year of the Employment Term (as defined
below) by the Company’s Nominating & Governance Committee.
2. Term. Subject to Section 7 and the termination provisions contained therein, the term
of the Executive’s employment under this Restated Agreement shall end on September 30, 2007 (the
“Employment Term”). The following positions shall report directly to the Executive:
President/COO Semiconductor Products Group, Senior Vice President/Chief Financial Officer,
President/COO of Software Division, Senior Vice President of Human Resources, Senior Vice
President/General Counsel and any position necessary to fulfill the duties of the President or
Chief Executive Officer.
3. Other Activities. Subject to the terms and conditions of the Non-Competition and
Proprietary Information Agreement executed by the Executive in connection with the Original
Employment Agreement, Executive may serve on corporate, civic, charitable boards or committees,
fulfill speaking engagements, teach at educational institutions or manage personal investments;
provided that such activities do not individually or in the aggregate interfere or conflict with
the performance of his duties or obligations under this Restated Agreement.
4. Performance. During the Employment Term, Executive shall use his business judgment,
skill and knowledge for the advancement of the Company’s interests and to discharge his duties and
responsibilities hereunder. Executive shall perform and discharge, faithfully, diligently and to
the best of his ability, his duties and responsibilities hereunder. Subject to Section 3 hereof,
Executive shall devote substantially all of his working time and efforts to the business and
affairs of the Company.
5. Consulting Agreement. Following the expiration (but not earlier termination) of the
Employment Term, the Company agrees that it shall retain the Executive as a consultant for a period
of four (4) years (the “Consulting Term”), and the Company and Executive shall enter into the
Consulting Agreement attached hereto as Exhibit A.
6. Compensation and Benefits.
6.1. Base Salary. As consideration for Executive’s services performed during the
Employment Term, the Company agrees to pay Executive a base salary of $600,000 per year (the “Base
Salary”) payable in accordance with the normal payroll practices of the Company for its executives
and subject to federal and state tax withholding. The Base Salary shall be reviewed annually by
the compensation committee of the Board of Directors (the “Compensation Committee”) and adjusted as
determined by the Compensation Committee (the Base Salary as adjusted from time to time shall be
referred to as the “Current Base Salary”).
6.2. Annual Management Bonus. Executive shall be eligible to receive cash bonuses
each year from the Company determined by the Compensation Committee in accordance with bonus
programs developed and implemented from time to time by the Compensation Committee (the “Annual
Management Bonus”). The Annual Management Bonus shall be reviewed at least annually by the
Compensation Committee. Any such Annual Management Bonuses paid to Executive shall be in addition
to the Current Base Salary.
6.3. Option Grants/Restricted Stock. Pursuant to previous action by the Compensation
Committee, upon the execution and delivery of this Agreement, the Company will grant to the
Executive 100,000 restricted shares of common stock (the “Restricted Stock”) that will vest on
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September 30, 2007, subject to the terms and conditions as set forth in the governing
restricted stock agreement.
6.4. Sign-on Bonus. The Executive received a bonus payment of $300,000 on January 1,
2005.
6.5. Benefits. During the Employment Term, Executive shall be eligible for
participation in and shall receive all benefits available under the Xxxxxx Automation, Inc. 401(k)
Plan, Deferred Compensation Plan and the Company’s welfare benefit plans, practices, policies and
programs (including disability, salary continuance, group life, accidental death and travel
accident insurance plans and programs) normally available to other senior executives.
6.6. Business Expenses. Executive shall be entitled to receive prompt reimbursement
during the Employment Term for all reasonable employment-related expenses incurred or paid by him
in the performance of his services, subject to reasonable substantiation and documentation.
6.7. Corporate Opportunities. Executive agrees that he will first present to the
Board of Directors, for acceptance or rejection on behalf of the Company, any opportunity to create
or invest in any company which is or will be involved in providing or furnishing equipment,
systems, components, products, software or services to customers in industries that the Company
serves (including, without limitation, the semiconductor and flat panel display industries) which
comes to his attention and in which he, or any affiliate, might desire to participate. If the
Board of Directors rejects the same or fails to act thereon in a reasonable time, Executive shall
be free to invest in, participate or present such opportunity to any other person or entity,
subject to the other terms of this Restated Agreement.
7. Termination Events.
7.1. Death; Disability; Expiration of Employment Term. This Restated Agreement shall
terminate and any and all rights and obligations of the Company and Executive hereunder shall cease
and be completely void except as specifically set forth in this Restated Agreement, upon (i) the
death of Executive, (ii) the expiration of the Employment Term or (iii) any disability of the
Executive that prevents the Executive from devoting to the business of the Company his best
efforts, skill and attention, for a period of 180 consecutive days and which qualifies the
Executive for benefits under the Company’s long term disability benefits as determined by its
insurer.
7.2. Termination by the Company. At the election of the Company, this Restated
Agreement shall terminate and any and all rights and obligations of the Company and Executive
hereunder shall cease and be completely void except as specifically set forth in this Restated
Agreement, upon the earliest to occur of the following: (i) the termination of Executive by the
Company with Cause (as defined below) under this Restated Agreement and delivery of written notice
in accordance with Sections 7, 8 and 14 or (ii) the termination of Executive by the Company without
Cause (other than by reason of disability) upon delivery of written notice in accordance with
Sections 7, 8 and 14.
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7.2.1. Cause. For purposes of this Restated Agreement, “Cause” shall include, without
limitation, the occurrence of any of the following events during the Employment Term of this
Restated Agreement:
(i) Executive’s conviction of, or the entry of a plea of guilty or nolo
contendere to any misdemeanor involving moral turpitude or any felony;
(ii) Fraud, embezzlement, or similar act of dishonesty, unauthorized
disclosure, attempted disclosure, use or attempted use of confidential
information; acts prejudicial to the interest or reputation of the Company;
or falsification, concealment or distortion of management information;
(iii) material misrepresentation in connection with the Executive’s
application for employment with the Company;
(iv) conduct by the Executive constituting an act of moral turpitude, or
acts of physical violence while on duty;
(v) the Executive’s willful failure or refusal to perform the duties on
behalf of the Company which are consistent with the scope and nature of the
Executive’s responsibilities, or otherwise to comply with a lawful directive
or policy of the Company;
(vi) any act of gross negligence, gross corporate waste or disloyalty by the
Executive to the Company or the commission of any intentional tort by the
Executive against the Company; or
(vii) material breach of this Restated Agreement by the Executive.
7.3. Termination by Executive. At the election of the Executive, this Restated
Agreement shall terminate and any and all rights and obligations of the Company or Executive
hereunder shall cease and be completely void except as specifically set forth in this Restated
Agreement, upon the earliest to occur of the following: (i) the Executive’s resignation for Good
Reason (as defined below); provided that Executive shall have first provided the Company with
written notice in accordance with Section 14 of the occurrence of such action he believes
constitutes Good Reason and the Company shall have failed to remedy such action within thirty (30)
days of its receipt of such notice; or (ii) the Executive’s resignation without Good Reason upon
delivery of written notice in accordance with Section 14.
7.3.1. Good Reason. “Good Reason” shall mean the Company has taken action that serves
to materially, adversely change Executive’s status by a reduction in title or a material reduction
in his duties without Executive’s consent. Following a Change of Control, “Good Reason” for
termination by the Executive shall exist if the acquirer does not agree in writing to assume the
Company’s obligations hereunder.
7.4. Termination Date. The term “Termination Date” shall mean the earlier of (i) the
expiration of the Employment Term or (ii) if the date Executive’s services are terminated (A) by
his death, then the date of his death, or (B) for any other reason, then the date on which such
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termination is to be effective pursuant to the notice of termination to be given by the party
terminating the employment relationship.
8. Effect of Termination.
8.1. Termination for Death or Disability. It is expressly acknowledged and agreed
that if Executive’s employment shall be terminated due to Executive’s death or disability, all of
the obligations under Sections 1 through 6 of the Company and Executive shall cease except that the
Company shall pay, or provide the following benefits, to Executive without further recourse or
liability to the Company:
(i) an amount equal to the unpaid portion of Executive’s Current Base Salary
earned through the Termination Date;
(ii) the prorata portion of Executive’s then current Current Base Salary for
the remaining balance of the Employment Term;
(iii) an amount equal to the prorata Annual Management Bonus for the
completed portion of the current annual pay period where the total Annual
Management Bonus is determined in accordance with Section 6.2;
(iv) an amount equal to the value of Executive’s vacation accrued as of the
Termination Date; and
(v) notwithstanding anything herein or in the governing plan, stock or
option agreement to the contrary, (a) all shares of restricted stock then
held by the Executive shall immediately vest and (b) all stock options then
held by the Executive shall continue to vest in accordance with the vesting
schedule therein and remain exercisable for the remaining option term
without regard to any continued employment or other relationship with the
Company (with the exception of a termination of the Consulting Term by the
Company for cause (as defined in the Consulting Agreement)).
8.2. Termination by the Company.
8.2.1. Termination by the Company for Cause. It is expressly acknowledged and agreed
that if Executive is terminated by the Company for Cause, all of the obligations under Sections 1
through 6 of the Company and Executive shall cease except that the Company shall pay immediately
after the Termination Date the following amounts to the Executive without further recourse or
liability to the Company:
(i) an amount equal to the sum of Executive’s Current Base Salary earned
through the Termination Date; and
(ii) an amount equal to the value of Executive’s vacation accrued as of the
Termination Date.
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8.2.2. Termination By the Company Without Cause. It is expressly acknowledged and
agreed that if Executive’s employment shall be terminated by Company for any reason, except as set
forth in Sections 7.1 and 7.2(i), at any time prior to the expiration of the Employment Term, then
all of the obligations under Sections 1 through 4 and 6 of the Company and Executive shall cease
except that the Company shall pay, or provide the following benefits, to Executive without further
recourse or liability to the Company:
(i) an amount equal to the unpaid portion of Executive’s Current Base Salary
earned through the Termination Date;
(ii) an amount equal to the prorata Annual Management Bonus for the
completed portion of the current annual pay period where the total Annual
Management Bonus is determined in accordance with Section 6.2;
(iii) an amount equal to the value of Executive’s vacation accrued as of the
Termination Date;
(iv) provided the Executive is in then compliance with and has complied with
the Amended and Restated Non-Competition and Proprietary Information
Agreement, one (1) year’s Current Base Salary as severance paid in bi-weekly
payments for one (1) year (the “Initial Salary Continuation Period”);
(v) provided the Executive is then in compliance with and has complied with
the Amended and Restated Non-Competition and Proprietary Information
Agreement, if the Executive has not found a full time comparable executive
position with another employer during the Initial Salary Continuation
Period, the Company will extend the bi-weekly payment on a month-to-month
basis until the earlier to occur of (A) one (1) additional year (26
additional bi-weekly payments) or (B) the date Executive secures full-time
employment, in each case subject only to the Executive’s obligation to
inform the Company’s Human Resources Department that Executive’s search for
replacement employment is ongoing and continuing in good faith on the
15th of each month following the expiration of the Initial Salary
Continuation Period, provided that any payments pursuant to this Section
8.2.2(v) shall be offset by income earned from consulting fees with the
Company, by short term and/or sporadic consulting fees earned from any other
business entity or by income received for part time employment with another
business entity; and
(vi) notwithstanding anything herein or in the governing plan, stock or
option agreement to the contrary, (a) all shares of restricted stock then
held by the Executive shall immediately vest and (b) all stock options then
held by the Executive shall continue to vest in accordance with the vesting
schedule therein and remain exercisable for the remaining option term
without regard to any continued employment or other relationship with the
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Company (with the exception of a termination of the Consulting Term by the
Company for cause (as defined in the Consulting Agreement)).
8.3. Termination by Executive
8.3.1. Termination by Executive Without Good Reason. It is expressly acknowledged and
agreed that if Executive resigns without Good Reason, then all of the obligations under Sections 1
through 4 and 6 of the Company and Executive shall cease except that the Company shall pay, or
provide the following benefits, to Executive without further recourse or liability to the Company:
(i) an amount equal to the unpaid portion of Executive’s Current Base Salary
earned through the Termination Date; and
(ii) an amount equal to the value of Executive’s accrued vacation pay.
8.3.2. Termination by Executive For Good Reason. It is expressly acknowledged and
agreed that if Executive’s employment shall be terminated because the Executive resigns for Good
Reason at any time prior to the expiration of Employment Term, then all of the obligations under
Sections 1 through 4 and 6 of the Company and Executive shall cease except that the Company shall
pay, or provide the following benefits, to Executive without further recourse or liability to the
Company:
(i) an amount equal to the unpaid portion of Executive’s Current Base Salary
earned through the Termination Date;
(ii) an amount equal to the prorata Annual Management Bonus for the
completed portion of the current annual pay period where the total Annual
Management Bonus is determined in accordance with Section 6.2;
(iii) an amount equal to the value of Executive’s vacation accrued as of the
Termination Date;
(iv) provided the Executive is then in compliance with and has complied with
the Amended and Restated Non-Competition and Proprietary Information
Agreement, one (1) year’s Current Base Salary as severance paid in bi-weekly
payments for the Initial Salary Continuation Period; a
(v) provided the Executive is then in compliance with and has complied with
the Amended and Restated Non-Competition and Proprietary Information
Agreement, if the Executive has not found a full time comparable executive
position with another employer during the Initial Salary Continuation
Period, the Company will extend the bi-weekly payment on a month-to-month
basis until the earlier to occur of (A) one (1) additional year (26
additional bi-weekly payments) or (B) the date Executive secures full-time
employment, in each case subject only to the Executive’s obligation to
inform the Company’s Human Resources
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Department that Executive’s search for replacement employment is ongoing and
continuing in good faith on the 15th of each month following the
expiration of the Initial Salary Continuation Period, provided that any
payments pursuant to this Section 8.3.2(v) shall be offset by income earned
from consulting fees with the Company, by short term and/or sporadic
consulting fees earned from any other business entity or by income received
for part time employment with another business entity; and
(vi) notwithstanding anything herein or in the governing plan, stock or
option agreement to the contrary, (a) all shares of restricted stock then
held by the Executive shall immediately vest and (b) all stock options then
held by the Executive shall continue to vest in accordance with the vesting
schedule therein and remain exercisable for the remaining option term
without regard to any continued employment or other relationship with the
Company (with the exception of a termination of the Consulting Term by the
Company for cause (as defined in the Consulting Agreement)).
8.4. Termination Upon Expiration of the Term. It is expressly acknowledged and agreed
that if Executive’s employment shall be terminated due to the expiration of the Employment Term,
all of the obligations under Sections 1 through 4 and 6 of the Company and Executive shall cease
except that the Company shall pay, or provide the following benefits, to Executive without further
recourse or liability to the Company:
(i) an amount equal to the unpaid portion of Executive’s Current Base Salary
earned through the Termination Date;
(ii) the bonus earned by the Executive in respect of the Company’s results
of operations for the fiscal year ended September 30, 2007 (payable in the
ordinary course of business when other annual bonuses are payable);
(iii) an amount equal to the value of Executive’s vacation accrued as of the
Termination Date; and
(iv) notwithstanding anything herein or in the governing plan, stock or
option agreement to the contrary, (a) all shares of restricted stock then
held by the Executive shall immediately vest and (b) all stock options then
held by the Executive shall continue to vest in accordance with the vesting
schedule therein and remain exercisable for the remaining option term
without regard to any continued employment or other relationship with the
Company (with the exception of a termination of the Consulting Term by the
Company for cause (as defined in the Consulting Agreement)).
8.5. 280G. In the event that the Executive shall become entitled to payment and/or
benefits provided by this Restated Agreement or any other amounts in the “nature of compensation”
(whether pursuant to the terms of this Restated Agreement or any other plan,
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arrangement or agreement with the Company, any person whose actions result in a change of
ownership or effective control covered by Section 280G(b)(2) of the Code or any person affiliated
with the Company or such person) as a result of such change in ownership or effective control
(collectively the “Company Payments”), and such Company Payments would be subject to the tax
imposed by Section 4999 of the Code (together with any similar tax that may hereafter be imposed by
any taxing authority, the “Excise Tax”) the Executive shall be solely responsible for the payment
in full of any such Excise Tax; and the Company shall withhold any federal or state taxes as
required by applicable law.
9. Noncompetition Agreement. The Executive has execute the Amended and Restated
Non-Competition and Proprietary Information Agreement attached as Exhibit A to the Original
Employment Agreement.
10. Assignment. Neither the Company nor Executive may make any assignment of this Restated
Agreement or any interest herein, by operation of law or otherwise, without the prior written
consent of the other party; provided, however, that the Company may assign its rights and
obligations under this Restated Agreement without the consent of Executive if the Company shall
hereafter effect a reorganization, consolidate with, or merge into any other entity or transfer all
or substantially all of its properties or assets to any other person or entity. This Restated
Agreement shall be binding upon and inure to the benefit of the Company, Executive and their
respective successors, executors, administrators, heirs and permitted assigns.
11. Indemnification. The Executive has execute and delivered the Amended and Restated
Indemnification Agreement attached as Exhibit B to the Original Employment Agreement.
12. Waiver. The waiver by any party hereto of a breach of any provision of this Restated
Agreement by any other party will not operate or be construed as a waiver of any other or
subsequent breach by such other party.
13. Severability. The parties agree that each provision contained in this Restated
Agreement shall be treated as a separate and independent clause, and the unenforceability of any
one clause shall in no way impair the enforceability of any of the other clauses herein. Moreover,
if one or more of the provisions contained in this Restated Agreement shall for any reason be held
to be excessively broad as to scope, activity or subject, such provisions shall be construed by the
appropriate judicial body by limiting and reducing it or them, so as to be enforceable to the
extent compatible with the applicable law.
14. Notices. Any notice or other communication in connection with this Restated Agreement
shall be deemed to be delivered if in writing, addressed as provided below and actually delivered
at said address:
If to Executive, to him at the following address:
Xxxxxx X. Xxxxx
000 0xx Xx., Xxx. #0
Xxx Xxxxx, XX 00000
000 0xx Xx., Xxx. #0
Xxx Xxxxx, XX 00000
If to the Company, to it at the following address:
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Xxxxxx Automation, Inc.
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: General Counsel
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: General Counsel
or to such other person or address as to which either party may notify the other in accordance
with this Section 14.
15. Medical and Dental Benefits. The Company its successors or assignees shall pay the
cost of the Executive’s participation (and that of his spouse through the Executive) in the
Company’s group medical and dental insurance plans following the Termination Date until the
provisions for continued coverage under COBRA expire, provided that the Executive makes any
election required under COBRA and is entitled to continue such participation under applicable law
and plan terms, and provided, further, that the Consultant has not been offered participation in
medical or dental insurance plans of a subsequent employer. During the four years following the
Termination Date and after the expiration of the Executive’s continued coverage under COBRA (such
time, the “Expiration of Coverage”), if the Company its successors or assignees is then not
permitted under the terms of its group medical and dental plans to offer continued coverage to the
Executive and the Executive has not been offered participation in medical or dental insurance plans
of a subsequent employer, the Company its successors or assignees shall procure on behalf of the
Executive for the remainder of such four-year period health and dental insurance coverage
comparable to that offered at the Expiration of Coverage up to the amount the Company paid for
COBRA coverage on behalf of the Executive at the Expiration of Coverage.
16. Relocation. The Company shall reimburse the Executive (a) to the extent the bona fide
sales price for Executive’s condominium located at 00 Xxxxxx Xxxxx Xxxx, Xxxx 000, Xxxxxxx, XX
00000 (the “Condominium”) is less than the sum of the Executive’s cost and all capital improvements
made to the Condominium and (b) for all selling expenses incurred in connection therewith
(including without limitation broker commissions and legal expenses), provided (x) the sale occurs
during the Employment Term or within six months following the expiration of the Employment Term,
and (y) the Executive provides the Company with supporting documentation for the purchase cost,
additional capital additions sold with the property and the sale documents supporting the claim for
reimbursement hereunder. In addition, the Company will pay to the Executive an additional amount
in cash which, after reduction for all federal, state and local taxes, is sufficient to pay any and
all federal, state and local taxes imposed on the Executive with respect to the receipt of such
reimbursement by the Executive.
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IN WITNESS WHEREOF, the parties hereto have hereunto set their hands, as of the date first
above written.
| /s/ Xxxxxx X. Xxxxx | ||||
| Xxxxxx X. Xxxxx | ||||
| XXXXXX AUTOMATION, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Xxxxxx X. Xxxxx | ||||
| Senior Vice President, General Counsel and Secretary | ||||
[Signature Page To Employment Agreement]
EXHIBIT A
CONSULTING AGREEMENT
CONSULTING AGREEMENT, effective as of ______, 200_, by and between XXXXXX AUTOMATION, INC., 00
Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 (the “Company”) XXXXXX X. XXXXX, of 000
0xx Xxxxxx, Xxx #0, Xxx Xxxxx, XX 00000
WITNESSETH:
WHEREAS, Consultant has been employed by the Company pursuant to a Second Amended and Restated
Employment Agreement, effective September 1, 2006 (the “Employment Agreement”);
WHEREAS, the Consultant and Company have executed an Indemnification Agreement (the
“Indemnification Agreement”)’
WHEREAS, the Consultant and Company have executed an Executive Invention, Nondisclosure,
Noncompetition and Nonsolicitation Agreement (the “Noncompetition Agreement”);
WHEREAS, the Employment Agreement provides that the parties would enter into a Consulting
Agreement in certain circumstances in connection with the Employment Agreement; and
WHEREAS, the Company and Consultant desire to enter into a Consulting Agreement (the
“Consulting Agreement”) on the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein it is
hereby agreed by and between the Company and Consultant as follows:
1. Consulting Term. The term of this Consulting Agreement shall be four years, unless
earlier terminated in accordance herewith, commencing , 200 the “Effective Date”)
and ending , 20 (the “Term”).
2. Consulting Responsibilities. Consultant shall, if and to the extent requested by the
Company’s Board of Directors, provide the Company’s Board of Directors and Chief Executive Officer
with advice on strategic planning issues and assist them with the transitioning of management to a
new executive team. Consultant shall be available for up to one hundred (100) hours per quarter to
provide such consulting services as may be reasonably requested by the Board. If the Board does
not request such services in any particular quarter, then the hours not utilized by the Company
shall not carry over into any subsequent quarters. Consultant shall be permitted to perform the
duties under this Section 2 in the geographic location of his choice. Consultant shall be
considered for nomination to the Company’s Board of Directors each year of the Term (as defined
below) by the Company’s Nominating and Governance Committee.
3. Remuneration.
(a) Fees. In consideration of Consultant entering into this Consulting Agreement, and
of his agreeing to furnish services as Consultant hereunder, the Company shall pay to
Consultant an annual fee of One Hundred Thousand Dollars ($100,000). The annual fee shall be
paid in monthly installments in accordance with the Company’s normal practices. The Consultant
shall be an independent contractor and will be responsible for all self-employment taxes.
Executive shall be eligible to receive additional fees as determined by the Compensation Committee
in light of the services provided by the Consultant hereunder.
(b) Expenses. The Company shall reimburse Consultant for his reasonable out-of-pocket
expenses incurred in connection with the furnishing of services hereunder and in accordance with
the Company’s expense policies for independent contractors.
(c) Restricted Stock/Options. If this Consulting Agreement is terminated by the
Company without cause as defined below, then notwithstanding anything herein or in the governing
plan, stock or option agreement to the contrary, all stock options then held by the Consultant
shall continue to vest in accordance with the vesting schedule therein, without regard to any
continued employment or other relationship with the Company, and remain exercisable, for the
remaining option term.
(d) Benefits. During the Term and to the extent permitted by the applicable plan,
Consultant shall be eligible for participation in and shall receive all benefits available under
the Xxxxxx Automation, Inc. 401(k) Plan, and the Company’s welfare benefit plans, practices,
policies and programs (including disability, salary continuance, group life, accidental death and
travel accident insurance plans and programs) normally available to other senior executives. These
benefits shall be in addition to the benefits required to be provided to the Executive pursuant to
Section 15 of the Employment Agreement which shall survive independently from this consulting
agreement. In addition, at the request of the Consultant, the Company will use its commercially
reasonable efforts to implement an arrangement whereby the Consultant may defer some or all of the
remuneration he is due hereunder to the extent such an arrangement is available in compliance with
applicable law, including Section 409A of the Internal Revenue Code.
4. Termination of Consulting. The Company or Consultant may terminate this Consulting
Agreement by providing at least sixty (60) days written notice to the other in accordance with the
notice requirements of Section 8(f) herein. If the Company (or any successor or assignee)
terminates the Consulting Agreement without cause as defined below, then it shall continue to pay
the fees and provide the benefits set forth in Sections 3(a), 3(b) and 3(c) above through the
expiration of the Term but all other rights and obligations of the Company or Consultant shall
cease and be completely void expect as specifically set forth in this Consulting Agreement. If
this Consulting Agreement is terminated by the Company for cause or by the Consultant, then the
Company shall have no further obligation hereunder. For purposes of this Section, “cause” shall
mean the (i) Consultant’s conviction of, or the entry of a plea of guilty or nolo contendere to any
misdemeanor involving moral turpitude or any felony; (ii) fraud, embezzlement, or similar act of
dishonesty, unauthorized disclosure, attempted disclosure, use or attempted use of confidential
information; acts prejudicial to the interest or reputation of the Company; or falsification,
concealment or distortion of management information; (iii) conduct by the Consultant constituting
an act of moral turpitude, or acts of physical violence while on duty; (iv) the Consultant’s
willful failure or refusal to perform the duties on behalf of the Company which are consistent with
the scope and nature of the Consultant’s responsibilities, or otherwise to
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comply with a lawful directive or policy of the Company; (v) any act of gross negligence, gross
corporate waste or disloyalty by the Consultant to the Company or the commission of any intentional
tort by the Consultant against the Company; or (vi) material breach of this Agreement by the
Consultant.
5. Public Statements. For so long as the Consultant is engaged by the Company under this
Consulting Agreement, and at all times thereafter, the Consultant shall support the Company in
public statements and in all dealings with third parties, and will refrain from making any
derogatory or harmful statements with respect to the Company or taking any action that would
reflect negatively on the Company or any of its officers, directors, employees, advisors, customers
or other related or affiliated parties.
6. Release. Except for Consultant’s rights arising under any option agreements, restricted
stock agreements, the Indemnification Agreement, the Noncompetition Agreement and this Consulting
Agreement, Consultant specifically releases, remises and forever discharges the Company and its
officers, directors, agents and employees, acting in their capacity as such officer, managing
director and employee, from all claims of any nature which Consultant now has or ever had arising
from his employment with the Company, whether common law claims or statutory claims, including but
not limited to:
(a) claims under any United States state or federal discrimination, fair employment practices
or other employment related statute, or regulation (as they may have been amended through the date
of this Consulting Agreement) prohibiting discrimination or harassment based upon any protected
status including, without limitation, race, color, religion, national origin, age, gender, marital
status, disability, handicap, veteran status or sexual orientation. Without limitation,
specifically included in this paragraph are any claims arising under the Federal Rehabilitation Act
of 1973, Age Discrimination in Employment Act of 1964 as amended by the Civil Rights Act of 1991,
the Equal Pay Act, the Americans With Disabilities Act and any similar Massachusetts or other state
or local statute or ordinance;
(b) claims under any other United States state or federal employment related statute, or
regulation (as they may have been amended through the date of this Consulting Agreement) relating
to wages, hours or any other terms and conditions of employment. Without limitation, specifically
included in this paragraph are any claims arising under the Fair Labor Standards Act, the Family
and Medical Leave Act of 1993, the National Labor Relations Act, the Employee Retirement Income
Security Act of 1974, the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) and any
similar Massachusetts or other state or local statute or ordinance;
(c) claims under any United States state or federal common law theory including, without
limitation, wrongful discharge, breach of express or implied contract, promissory estoppel, unjust
enrichment, breach of a covenant of good faith and fair dealing, violation of public policy,
defamation, interference with contractual relations, intentional or negligent infliction of
emotional distress, invasion of privacy, misrepresentation, deceit, fraud or negligence;
(d) any other claim arising under United States state or federal law;
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(e) any benefits under the Employment Agreement including, without limitation, any termination
benefits provided under Sections 7 and 8 thereunder; and
(f) notwithstanding anything herein to the contrary, Consultant is not releasing, and shall
not be deemed to have released, any and all common law, contractual, statutory or other rights of
Consultant may under the Indemnification Agreement or contribution, if any, or any claims to the
extent of available insurance coverage.
7. Older Workers Benefit Protection Act of 1990. This paragraph is intended to comply with
the United States Older Workers Benefit Protection Act of 1990 (“OWBPA”) with regard to
Consultant’s waiver of rights under the United States Age Discrimination in Employment Act of 1967
(“ADEA”):
(a) Consultant is specifically waiving rights and claims under ADEA;
(b) The waiver of rights under ADEA does not extend to any rights or claims arising after the
date this Consulting Agreement is signed by Consultant;
(c) Consultant acknowledges receiving consideration for this waiver;
(d) Consultant acknowledges that he has been advised to consult with an attorney before
signing this Consulting Agreement; and
(e) Consultant acknowledges that after receiving a copy of this Consulting Agreement,
Consultant had the right to take up to 21 days to consider his decision to sign the Consulting
Agreement; the parties agree that changes, whether material or immaterial, do not restart the
running of the 21 day period. Further, that Consulting Agreement does not become effective for a
period of seven days after Consultant signs it. Consultant has the right to revoke this Consulting
Agreement during the seven day period. Revocation must be made in writing, signed by Consultant
and delivered to the Company during the seven day period. If Consultant revokes this Consulting
Agreement, the entire Consulting Agreement shall be null and void.
8. Miscellaneous.
(a) Incapacity. In the event of Consultant’s disability or incapacity, during the
Term, he shall not be required to furnish services hereunder while such incapacity or disability
continues, and during the period of such incapacity or disability, the salary and benefits payable
to him as provided herein shall be paid in the same amounts and at the same times as it would have
been payable if he had not been under such incapacity or disability.
(b) Entire Agreement. Except as provided herein with respect to the Indemnification
Agreement, Noncompetition Agreement, Employment Agreement, restricted stock agreements and option
agreements, the Consulting Agreement constitutes the entire agreement and understanding of the
parties hereto with respect to the subject matter hereof and supersedes all prior agreements and
undertakings, both written and oral.
(c) Severability. In the event that any court having jurisdiction shall determine
that any covenant or other provision contained in this Consulting Agreement shall be unreasonable
or
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unenforceable in any respect, then such covenant or other provision shall be deemed limited to
the extent that such court deems it reasonable and enforceable, and as so limited shall remain in
full force and effect. In the event that such court shall deem any covenant or provision wholly
unenforceable, the remaining covenants and provisions of this Consulting Agreement shall
nevertheless remain in full force and effect.
(d) Assignment. The Consultant may not make any assignment of this Consulting
Agreement or any interest herein, by operation of law or otherwise, without the prior written
consent of the Company. The Company shall assign its rights and obligations under this Consulting
Agreement, without the consent of Consultant, if the Company shall hereafter effect a
reorganization, consolidate with, or merge into any other entity or transfer all or substantially
all of its properties or assets to any other person or entity. This Consulting Agreement shall be
binding upon and inure to the benefit of the Company, Consultant and their respective successors,
executors, administrators, heirs and permitted assigns.
(e) Arbitration. In the event of a dispute between the parties as to the meaning or
interpretation of this Agreement, or the performance of either party hereunder, either party may
submit the matter for arbitration in Boston, Massachusetts, to the American Arbitration
Association, which is expressly permitted and required hereby, to include the reasonable costs of
arbitration, including attorney fees, of the prevailing party, in its decision. If the
nonprevailing party should then fail to comply with such decision, the reasonable costs of
enforcement, including attorney’s fees, shall be paid to the prevailing party. Such costs shall
specifically include any judicial proceeding to confirm such decision.
(f) Notices. All notices and other communications given or made pursuant hereto shall
be in writing (including telecopier, facsimile or similar writing) and shall be deemed to have been
duly given or made as of the date delivered, mailed or sent if delivered personally, mailed by
registered or certified mail (postage prepaid, return receipt requested) or sent by telecopier to
the parties at the following addresses or telecopier numbers (or at such other address or
telecopier number for a party as shall be specified by like notice, except that notices of changes
of address or telecopier numbers shall be effective only upon receipt);
If to Consultant, to him at the following address:
Xxxxxx X. Xxxxx
000 0xx Xxxxxx, Xxx. #0
Xxx Xxxxx, XX 00000
Xxxxxx X. Xxxxx
000 0xx Xxxxxx, Xxx. #0
Xxx Xxxxx, XX 00000
If to the Company, to it at the following address:
Xxxxxx Automation, Inc.
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: General Counsel
Xxxxxx Automation, Inc.
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: General Counsel
(g) Governing Law. This Consulting Agreement shall be governed by, and construed in
accordance with, the laws of the Commonwealth of Massachusetts.
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(h) Amendment. This Consulting Agreement may not be amended or modified except by an
instrument in writing signed by the parties hereto.
(i) Interpretation. The parties hereto acknowledge and agree that: (i) each party and
its counsel reviewed and negotiated the terms and provisions of this Consulting Agreement and have
contributed to its revision, (ii) the rule of construction to the effect that any ambiguities are
resolved against the drafting party shall not be employed in the interpretation of this Consulting
Agreement, and (iii) the terms and provisions of this Consulting Agreement shall be construed
fairly as to all parties hereto and not in favor of or against any party, regardless of which party
was generally responsible for the preparation of this Consulting Agreement.
(j) Compliance. The failure of any party hereto to insist upon strict compliance with
any of the terms, covenants or conditions hereof shall not be deemed a waiver of such terms,
covenants or conditions, nor shall any waiver or relinquishment of any right or power hereunder at
any one or more times be deemed a waiver or relinquishment of such power or right at any other time
or times.
(k) Headings. The headings contained in this Consulting Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of this Consulting
Agreement.
(l) Counterparts. This Consulting Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original but all of which taken together shall constitute one and
the same agreement.
(m) Survival. Notwithstanding any provision of this Consulting Agreement to the
contrary, the obligations of the Consultant and the Company pursuant to Sections 4 through 8
hereof, shall each survive termination of this Consulting Agreement.
(n) Absence of Duress. Consultant acknowledges that he has been afforded sufficient
time to understand the terms and effects of this Consulting Agreement, and that the agreements and
obligations herein are made voluntarily, knowingly and without duress, and that neither the Company
nor its agents or representatives have made any representations inconsistent with the provisions of
this Consulting Agreement.
[Signature Page to Follow]
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IN WITNESS WHEREOF, Consultant and the Company’s duly authorized representative have caused
this Consulting Agreement to be executed under seal as of the day and year first above written, to
become effective seven days after Consultant signs as provided in Paragraph 7(e).
| XXXXXX AUTOMATION, INC. |
|||||
| By: | |||||
| Sr. Vice President, General Counsel and | |||||
| Secretary | |||||
| CONSULTANT: |
|||||
| Xxxxxx X. Xxxxx | |||||
I, Xxxxxx X. Xxxxx, represent and agree that I have carefully read this Consulting Agreement; that
I have been given ample opportunity to consult with my legal counsel or any other party to the
extent, if any, that I desire; and that I am voluntarily signing by my own free act. This
Consulting Agreement constitutes a voluntary and knowing waiver of rights under the laws and
statutes referenced above.
| Dated: , 200_ | |||||
| Xxxxxx X. Xxxxx | |||||
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