SECONDMENT AGREEMENT
THIS SECONDMENT AGREEMENT (the “Agreement”) is
made on July 6, 2010 by and between Vishay Intertechnology, Inc., a Delaware
corporation (“VSH”), and Vishay Precision Group, Inc., a
Delaware corporation (“VPG”).
WHEREAS, VSH has agreed that it will supply to
VPG assistance by seconding two of its employees, Xx. Xxxxx Xxxxxxx and Xxxxxx
Katraro (together, the “Secondees”) to VPG in accordance with the terms and
conditions of this Agreement.
NOW IT
IS HEREBY AGREED AS FOLLOWS:
1. Secondment. VSH shall second the Secondees to VPG for
the time periods described in Section 4, in accordance with the terms and
conditions of this Agreement (the “Secondment”).
2. Commitment to VPG. Subject to the provisions of Section 6, VSH shall be required to make each Secondee
available to VPG for the performances of the Services described in Section 3 for up to five percent (5%) of such
Secondee’s professional working time on a monthly basis; provided that in no event shall a Secondee be required
to commit more than five (5) hours to the Services for VPG in the course of any
given week.
3. Services. Each Secondee will provide VPG with
consulting services in research and development and technology (the
“Services”) pursuant to the terms of this Agreement.
Other than the Services, VSH shall not be required to make the Secondees
available for the performance of any services to VPG.
4. Term. The term of this Agreement shall commence on
the date of this Agreement and shall continue thereafter until first anniversary,
2011 (the “Initial Term”), and shall thereafter automatically renew
for additional one year periods (each, a “Renewal Term”, and the Initial Term or any such Renewal
Term, the “Term”), unless sooner terminated in accordance
with Section 11 of this Agreement or written notice is given by one party to the
other at least 90 days prior to the expiration of the Initial Term or any
Renewal Term, as applicable.
5. Scheduling. Subject to the provisions of this Agreement,
the Secondees shall perform the Services when and as requested by the Chief
Executive Officer of VPG. The Chief Executive Officer of VPG shall consult with
the Chief Executive Officer of VSH in good faith in order to schedule the time
and place of the Services of each of the Secondees to VPG so as not to
unreasonably interfere with the performance of the duties and responsibilities
of the Secondee to VSH or impose hardship on the Secondees.
6. Status. The Secondees shall at all times be and
remain employees of the VSH, and nothing in this Agreement shall affect the
employment relationship between VSH and each of the Secondees. While a Secondee
is performing services for VPG, he shall hold himself out as a consultant to
VPG, and he shall not, and VPG shall not permit him to, hold himself out as an
employee of VSH.
7. Obligations of VSH. VSH shall perform all obligations and
discharge all liabilities which may be imposed on it by law or otherwise in its
capacity as employer of the Secondees, including, without limitation, paying
salary and providing employee benefits.
8. Consideration.
(a) In consideration for VSH seconding the
Secondees to VPG, during the Term VPG shall pay to VSH in respect of each
Secondee the amount per annum set forth on Exhibit A (the “Secondment Fee”). The Secondment Fee shall be payable in
equal monthly installments on or before the first day of each calendar month
during the Term (or if such day is not a business day, the next succeeding
business day).
(b) VPG shall also be responsible for the
payment of any and all reasonable out-of-pocket business expenses incurred by
either of VSH or such Secondee in connection with the performance of the
Services by the Secondees, including, but not limited to, expenses for business
travel and accommodation, in connection with a Secondee’s services as
contemplated by this Agreement. In its discretion, VSH may reimburse a Secondee
for such business expenses, in which case VSH shall be entitled to invoice VPG
for amounts incurred by such Secondee. Payment by VPG shall be due within thirty
(30) days of the date of invoice, unless otherwise agreed between VPG and the
VSH.
(c) All payments by VPG under this Agreement
shall be made without set-off or counterclaim or condition, and otherwise in
accordance with this Agreement.
9. Liability and Indemnity.
(a) VSH shall have no liability for any loss
or damage (whether direct or indirect, physical, economic, consequential or
otherwise) arising from or in connection with the provision of the Services to
VPG by the Secondees. VPG agrees and acknowledges that it shall bear full and
sole responsibility for supervising the Secondees’ performance of the Services
during the course of the Secondment.
(b) VPG agrees to indemnify and hold VSH fully
and effectively harmless in respect of all and any liabilities which VSH may
incur to any third party for claims, losses, liabilities or damages or loss of
profit, savings, goodwill, business trade or any other economic loss arising in
connection with the provision of any Services to VPG by the Secondees.
10. Confidentiality and Intellectual Property
Rights.
(a) VSH shall cause each Secondee to enter
into agreements as to confidentiality and as to compliance with policies
corresponding to those normally obtained by VPG from its employees and
consultants.
(b) VSH and VPG each agrees to take all
reasonable measures to protect the confidential information and intellectual
property of the other that may, directly or indirectly, be disclosed in
connection with the Secondment. Neither party will improperly use or disclose
any confidential information or intellectual property of the other, without the
other party’s consent,
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and each party agrees to
promptly notify the other of its possession of any confidential information or
intellectual property of the other.
(c) If at any time during the Term either
Secondee alone or jointly discovers or acquires any invention, development,
improvement, process or design whatsoever or any interests therein which shall
relate to or concern the activities of VPG, VSH shall cause each Secondee to be
obligated to communicate full details thereof to VPG, and any such invention
made or discovered as aforesaid shall belong to and be the absolute property of
VPG; provided that no such invention, development,
improvement, process or design shall incorporate the proprietary know-how or
other intellectual property of VSH without the consent of VSH and, to the extent
incorporating such know-how or intellectual property, shall not be the property
of VPG unless otherwise agreed by VSH.
11. Termination.
(a) VPG may terminate this Agreement at any
time and for any reason upon thirty (30) days advance written notice to
VSH.
(b) Either party may terminate this Agreement
upon the occurrence of any of the following events, upon written notice to the
other party:
(i) with respect to one or both Secondees, in
the event that either party commits a breach of this Agreement which in the case
of a breach capable of remedy is not remedied within thirty (30) days after
written notice has been given to the breaching party;
(ii) with respect to one or both Secondees, if
the other party is unable to pay its debts or upon the institution by or against
such party of insolvency, receivership or bankruptcy proceedings or any other
proceedings for the settlement of such party’s debts, upon such party making an
assignment for the benefit of creditors, or upon such party’s dissolution or
ceasing to do business; or
(iii) with respect to either Secondee, if such
Secondee is unable to properly perform the Services contemplated to be performed
by such Secondee due to such Secondee’s death, disability, injury or any other
reason, if such inability continues for a period of thirty (30) consecutive
working days.
(c) This Agreement shall terminate
automatically, without notice to either party, with respect to either Secondee,
if such Secondee’s employment with VSH is terminated for any reason. In the
event such employment with VSH is terminated, VSH shall provide prompt notice of
same to VPG.
(d) Termination of this Agreement for any
reason shall not affect the rights and obligations of the parties hereunder that
have accrued up to the date of or arising out of such termination or expiry,
including the right to claim damages as a result of a breach of this Agreement,
or any obligations to pay any outstanding payments due to third parties after
the termination date.
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(e) The following provisions shall survive
termination of this Agreement: Section 10 (“Confidentiality and Intellectual Property
Rights”); and Section 12 (“Miscellaneous”).
12. Miscellaneous.
(a) Notice. Any notice to be served on either of the
parties by the other shall be sent by certified first class mail to the business
address of the party to whom it is sent, attention Chief Executive Officer of
the applicable party.
(b) No Third Party Beneficiaries;
Assignability. The
provisions of this Agreement are solely for the benefit of the parties hereto
and their respective successors and permitted assigns, and are not intended to
confer upon any other person, including the Secondees, any third party
beneficiary rights under this Agreement. Neither party may assign, delegate or
transfer (by merger, operation of law or otherwise) its respective rights or
delegate its respective obligations under this Agreement without the express
prior written consent of the other party. Notwithstanding the foregoing, either
party will have the right to assign this Agreement to any direct or indirect
wholly-owned subsidiary of such party subject to such party remaining liable for
the fulfillment of its obligations under this Agreement.
(c) Relationship of the Parties. Nothing in this Agreement shall be deemed or
construed by the parties, or by any third party, to create the relationship of a
partnership, joint venture or similar relationship between the parties hereto,
and neither party shall be deemed to be the agent of the other party by virtue
of this Agreement, it being understood and agreed that no provision contained
herein shall be deemed to create any relationship between the parties hereto
other than the relationship of independent parties contracting for services.
Neither party has and neither party shall hold itself out as having any
authority to enter into any contract or create any obligation or liability on
behalf of, in the name of, or binding upon the other party or to transact
business in the other party’s name or on its behalf, or make any promises or
representations on behalf of the other party by virtue of this
Agreement.
(d) Governing Law. This Agreement is governed by and shall be
construed in accordance with the laws of the State of New York, without regard
to the conflict of laws rules thereof to the extent such rules would require the
application of the law of another jurisdiction.
(e) Dispute Resolution. The terms and provisions of Article VIII of
the Master Separation and Distribution Agreement dated as of the 22nd day of June, 2010 between VSH and VPG,
relating to the procedures for resolution of any disputes between the parties,
shall apply to all disputes, controversies or claims (whether sounding in
contract, tort or otherwise) that may arise out of or relate to or arise under
or in connection with this Agreement, or the transactions contemplated hereby,
mutatis mutandis; provided that the parties agree that the remedy at
law for any breach of this Agreement may be inadequate, and that, as between VSH
and VPG, any party by whom this Agreement is enforceable shall be entitled to
seek temporary, preliminary or permanent injunctive or other equitable relief
with respect to the specific enforcement or performance of this Agreement. Such
party may, in its sole discretion, apply to a court of competent jurisdiction
for such injunctive or other equitable relief as such court may
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deem just and proper in
order to enforce this Agreement, or prevent any violation hereof, and, to the
extent permitted by applicable law, each party waives any objection to the
imposition of such relief.
(f) Consent to Jurisdiction. The parties to this Agreement submit to the
exclusive jurisdiction of the federal and state courts located in Philadelphia,
Pennsylvania and the City of New York, Borough of Manhattan for the purposes of
any suit, action or other proceeding to compel arbitration, for the enforcement
of any arbitration award or for specific performance or other equitable relief
pursuant to Section 11(e). Each of the parties irrevocably waives any
objection to venue in the federal and state courts located in Philadelphia,
Pennsylvania and the City of New York, Borough of Manhattan of any action, suit
or proceeding arising out of this Agreement, or the transactions contemplated
hereby for which it has submitted to jurisdiction pursuant to this Section 11.6
and waives any claim that any such action, suit or proceeding brought in any
such court has been brought in an inconvenient forum.
(g) Waiver of jury trial. Subject to Section 11(e), each of the parties hereby waives to the
fullest extent permitted by applicable law any right it may have to a trial by
jury with respect to any court proceeding directly or indirectly arising out of
and permitted under or in connection with this agreement or the transactions
contemplated by this agreement. Each of the parties hereby (i) certifies that no
representative, agent or attorney of any other party has represented, expressly
or otherwise, that such other party would not, in the event of litigation, seek
to enforce the foregoing waiver and (ii) acknowledges that it has been induced
to enter into this agreement and the transactions contemplated by this
Agreement, as applicable, by, among other things, the mutual waivers and
certifications in this Section 11(g).
(h) Amendment. No provisions of this Agreement shall be
deemed amended, modified or supplemented by any party, unless such amendment,
supplement or modification is in writing and signed by the authorized
representative of the party against whom it is sought to enforce such amendment,
supplement or modification.
(i) Severability. If any provision of this Agreement or the
application thereof to any person or circumstance is determined by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions hereof, or the application of such provision to persons or
circumstances or in jurisdictions other than those as to which it has been held
invalid or unenforceable, shall remain in full force and effect and shall in no
way be affected, impaired or invalidated thereby, so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner adverse to any party. Upon such determination, the parties shall
negotiate in good faith in an effort to agree upon such a suitable and equitable
provision to effect the original intent of the parties.
(j) Counterparts. This Agreement may be executed in one or
more counterparts, each of which when so executed and delivered or transmitted
by facsimile, e-mail or other electronic means, shall be deemed to be an
original and all of which taken together shall constitute but one and the same
instrument. A facsimile or electronic signature is deemed an original signature
for all purposes under this Agreement.
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[Signature Page Follows]
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IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto on the date first above written.
| VISHAY INTERTECHNOLOGY, INC. | |||
| By: | /s/ Xxxx X. Xxxxxxxx | ||
| Name: Xxxx X. Xxxxxxxx | |||
| Title: Executive Vice President and Chief | |||
| Financial Officer | |||
| VISHAY PRECISION GROUP, INC. | |||
| By: | /s/ Xxxxxxx X. Xxxxxx | ||
| Name: Xxxxxxx X. Xxxxxx | |||
| Title: Executive Vice President and Chief | |||
| Financial Officer | |||
EXHIBIT A
SECONDMENT FEE
VPG will pay to Vishay a
Secondment Fee equal to $60,000 in the aggregate per year in exchange for the
services to be provided by Xx. Xxxxx Xxxxxxx and Xx. Xxxxxx Katraro.
