Exhibit 10.56
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made by and between BTU
International, Inc. (the "Company"), a Delaware corporation, and Xxxx X. van der
Wansem (the "Executive"), effective as of this 18th day of February, 2005.
WHEREAS, subject to the terms and conditions hereinafter set forth, the
Company wishes to employ the Executive as its Chief Executive Officer and the
Executive wishes to accept such employment;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
promises, terms, provisions and conditions set forth in this Agreement, the
parties hereby agree:
1. EMPLOYMENT. Subject to the terms and conditions set forth in this
Agreement, the Company hereby offers and the Executive hereby accepts
employment.
2. TERM. Subject to earlier termination as hereafter provided, this
Agreement shall have an indefinite term, which term commenced on October 1, 2004
(the "First Day of Employment"). The term of this Agreement, which is the period
during which the Executive is employed, is hereafter referred to as "the term of
this Agreement" or "the term hereof."
3. CAPACITY AND PERFORMANCE.
(a) During the term hereof, the Executive shall serve the Company as
its Chief Executive Officer. The Executive shall comply with the lawful
directives of the Board of Directors of the Company (the "Board") and shall
perform such duties and responsibilities, commensurate with his position as
Chief Executive Officer, on behalf of the Company and its Affiliates as may from
time to time be prescribed by the Board or its designee(s). During the term
hereof, the Company shall use its best efforts to assure that the nomination of
the Executive is included as part of the Company's slate of directors to be
recommended for election by the stockholders at each appropriate annual meeting
of the stockholders, provided that the Executive is otherwise eligible for such
election; however, the failure of the stockholders to so elect the Executive
shall not constitute Good Reason for termination by the Executive hereunder.
(b) During the term hereof, the Executive shall be employed by the
Company on a full-time basis and shall perform and discharge, faithfully,
diligently and to the best of his ability, his duties and responsibilities
hereunder.
(c) During the term hereof, the Executive shall devote his full
business time and his best efforts, business judgment, skill and knowledge
exclusively to the advancement of the business and interests of the Company and
its Affiliates and to the discharge of his duties and responsibilities
hereunder. The Executive shall not engage in any other business activity or
serve in any industry, trade, professional, governmental or academic position
during the term of this Agreement, except as may be expressly approved in
advance by the Board in writing, which approval shall not be unreasonably
withheld; provided, however, that the Executive shall not be prohibited from
devoting time to non-business related activities, so long as such activities do
not prevent or interfere with the Executive's performance of his obligations
hereunder.
4. COMPENSATION AND BENEFITS. As compensation for all services performed
by the Executive under and during the term hereof and subject to performance of
the Executive's duties and of the obligations of the Executive to the Company
and its Affiliates, pursuant to this Agreement or otherwise:
(a) BASE SALARY. During the term hereof, the Company shall pay the
Executive a base salary at the rate of Three Hundred Seven Thousand Dollars
($307,000) per annum, payable in accordance with the payroll practices of the
Company for its executives (the "Base Salary"); provided, however, that the Base
Salary will be reduced effective upon the execution of this Agreement to the
rate of Two Hundred Seventy Six Thousand Dollars ($276,000) per annum, which
reduction will be reviewed by the Compensation Committee of the Board no later
than October 1, 2005. Such Base Salary shall be subject to increase in the sole
discretion of the Board, based upon review of the Executive's performance by the
Board from time to time, but in no event shall the Board review the Executive's
performance less than annually.
(b) BONUS COMPENSATION. During the term hereof, the Executive shall
be entitled to participate in the Company's Executive Bonus Plan (the "Plan") in
accordance with the terms thereof, as such terms may be modified or amended by
the Company from time to time. In accordance with the Plan, the amount of bonus
compensation will be determined by the Board, based on its assessment, in its
sole discretion, of the Company's achievement of performance targets which will
be established annually by the Board after consultation with the Executive (the
"Performance Targets"). The amount of bonus compensation for which the Executive
will be eligible each fiscal year will range from zero to seventy percent (70%)
calculated on the basis of $350,000 of annual income and will be thirty-five
percent (35%) of such amount if the Board determines that the Company has
achieved all of the Performance Targets (the "Bonus"). In accordance with the
Plan, except as set forth in Section 5 below, the Executive shall not be
eligible to receive any portion of the Bonus for any fiscal year in which he is
not employed by the Company on the date that bonus compensation payments are
distributed.
(c) VACATIONS. During the term hereof, the Executive shall be
entitled to up to six (6) weeks of vacation per year, to be taken at such times
and intervals as shall be determined by the Executive, subject to the reasonable
business needs of the Company. Vacation shall otherwise be governed by the
policies of the Company, as in effect from time to time.
(d) OTHER BENEFITS. During the term hereof and subject to any
contribution therefor generally required of executives of the Company, the
Executive shall be entitled to participate in any and all employee benefit plans
from time to time in effect for executives of the Company generally, except to
the extent such plans are in a category of benefit otherwise provided to the
Executive (e.g., severance pay). Such participation shall be subject to the
terms of the applicable plan documents and generally applicable Company
policies. The Company may alter, modify, add to or delete its employee benefit
plans at any time as it, in its sole judgment, determines to be appropriate,
without recourse by the Executive. In addition, during the term hereof, the
Company shall: (i) lease on behalf of the Executive, or reimburse the Executive
for the cost equivalent of leasing, a Mercedes Benz S430 or equivalent
automobile; and (ii) reimburse the Executive for the cost of gasoline, routine
maintenance and automobile
-2-
insurance associated with the leased automobile; provided the Executive submits
satisfactory documentation as may be specified by the Company (the "Automobile
Benefit").
(e) BUSINESS EXPENSES. The Company shall pay or reimburse the
Executive for all reasonable business expenses incurred or paid by the Executive
in the performance of his duties and responsibilities hereunder, subject to any
reasonable limit and other reasonable restrictions on such expenses set by the
Board and subject to such reasonable substantiation and documentation as may be
specified by the Company from time to time.
5. TERMINATION OF EMPLOYMENT AND SEVERANCE BENEFITS.
Notwithstanding the provisions of Section 2 hereof, the Executive's
employment hereunder shall terminate under the following circumstances:
(a) DEATH. In the event of the Executive's death during the term
hereof, the Executive's employment hereunder shall immediately and automatically
terminate. For purposes of this Agreement, the date of termination of the
Executive's employment hereunder is referred to as the "Separation Date." In
such event, the Company shall pay to the Executive's designated beneficiary or,
if no beneficiary has been designated by the Executive, to his estate, (i) the
Base Salary earned but not paid through the Separation Date, (ii) pay for any
vacation time earned but not used through the Separation Date, (iii) any Bonus
for the fiscal year preceding the year in which the Separation Date occurs that
was earned but had not yet been paid; (iv) provided that the Executive was
employed for at least ninety (90) days during the fiscal year in which the
Separation Date occurs, any Bonus for such fiscal year, pro-rated based on the
number of days during such fiscal year the Executive was employed by the
Company; and (v) any business expenses incurred by the Executive but that had
not yet been reimbursed on the Separation Date, provided that such expenses and
the required substantiation and documentation are submitted within ninety (90)
days of termination and that such expenses are reimbursable under Company policy
(all of the foregoing, "Final Compensation)." The Company shall have no further
obligation to the Executive hereunder.
(b) DISABILITY.
(i) The Company may terminate the Executive's employment hereunder,
upon notice to the Executive, in the event that the Executive becomes
disabled during his employment hereunder through any illness, injury,
accident or condition of either a physical or psychological nature and, as
a result, is unable to perform substantially all of his duties and
responsibilities hereunder, with or without reasonable accommodation, for
ninety (90) consecutive calendar days or an aggregate of one hundred
twenty (120) days during any period of three hundred and sixty-five (365)
consecutive calendar days. In the event of such termination, the Company
shall have no further obligation to the Executive hereunder, other than
for payment of Final Compensation.
(ii) The Board may designate another employee to act in the
Executive's place during any period of the Executive's disability.
Notwithstanding any such designation, the Executive shall continue to
receive the Base Salary in accordance with Section 4(a) and benefits in
accordance with Section 4(d), to the extent permitted by the then-current
-3-
terms of the applicable benefit plans, until the Executive becomes
eligible for disability income benefits under the Company's disability
income plan or until the termination of his employment, whichever shall
first occur.
(iii) While receiving disability income payments under the Company's
disability income plan, the Executive shall not be entitled to receive any
Base Salary under Section 4(a) hereof, but shall continue to participate
in Company benefit plans in accordance with Section 4(d) and the terms of
such plans, until the termination of his employment.
(iv) If any question shall arise as to whether during any period the
Executive is disabled through any illness, injury, accident or condition
of either a physical or psychological nature so as to be unable to perform
substantially all of his duties and responsibilities hereunder, the
Executive may, and at the request of the Company shall, submit to a
medical examination by a physician selected by the Company to whom the
Executive or his duly appointed guardian, if any, has no reasonable
objection to determine whether the Executive is so disabled and such
determination shall for the purposes of this Agreement be conclusive of
the issue. If such question shall arise and the Executive shall fail to
submit to such medical examination, the Company's determination of the
issue shall be binding on the Executive.
(c) BY THE COMPANY FOR CAUSE. The Company may terminate the
Executive's employment hereunder for Cause at any time upon notice to the
Executive setting forth in reasonable detail the nature of such Cause. The
following events shall constitute Cause for termination:
(i) The final written determination by the Board of Directors of the
Company, after 30 days' prior written notice to the Executive and the
opportunity for the Executive to be heard by the Board of Directors, that
the Executive has materially failed to perform his duties and
responsibilities to the Company or any of its Affiliates (other than by
reason of disability), or acted in a materially negligent manner with
respect to his duties and responsibilities to the Company or any of its
Affiliates;
(ii) The final written determination by the Board of Directors of
the Company, after 30 days' prior written notice to the Executive and the
opportunity for the Executive to be heard by the Board of Directors, that
the Executive has materially breached any material provision of this
Agreement or any other agreement with the Company or any of its
Affiliates;
(iii) The commission of fraud, embezzlement or theft by the
Executive with respect to the Company or its Affiliates; or
(iv) The commission by the Executive of any felony or any other
crime involving dishonesty or moral turpitude.
Upon the giving of notice of termination of the Executive's employment hereunder
for Cause, the Company shall have no further obligation to the Executive
hereunder, other than for (i) the Base
-4-
Salary earned but not paid through the Separation Date, (ii) pay for any
vacation time earned but not used through the Separation Date, (iii) any Bonus
for the fiscal year preceding the year in which the Separation Date occurs that
was earned but had not yet been paid; and (iv) any business expenses incurred by
the Executive but that had not yet been reimbursed on the Separation Date,
provided that such expenses and the required substantiation and documentation
are submitted within thirty (30) days of termination and that such expenses are
reimbursable under Company policy Final Compensation.
(d) BY THE COMPANY OTHER THAN FOR CAUSE AND TERMINATION BY THE
EXECUTIVE FOR GOOD REASON. The Company may terminate the Executive's employment
hereunder other than for Cause at any time. The Executive may terminate this
Agreement at any time for Good Reason. "Good Reason" shall mean any of the
following circumstances unless remedied by the Company within thirty (30) days
after receipt of written notification from the Executive that such circumstances
exist or have occurred: (i) material diminution in the nature or scope of the
Executive's responsibilities, duties or authority; provided, however, that any
diminution of the business of the Company or any of its Affiliates shall not
constitute Good Reason; (ii) material reduction of the Executive's compensation
and/or benefits, other than any reduction in effect from time to time that
applies to the base salaries of executives of the Company generally, as provided
in Paragraph 4(a); or (iii) any material failure by the Company to comply with
any of the material provisions of this Agreement.
In the event of such termination by the Company other than for Cause or by
the Executive for Good Reason, in addition to Final Compensation, for a period
of twelve months following the Separation Date the Company shall continue to pay
the Executive the Base Salary at the rate in effect on the date of termination,
provided the Executive makes himself available to perform a reasonable amount of
transition services during the first three months following the Separation Date
(all of the foregoing, "Severance Payments").
In addition to the benefits outlined above, the Company shall continue the
Automobile Benefit for a period of three months, and shall continue the
Executive's coverage under the Company's medical and dental plans until six
months after the Separation Date, subject to the Executive's compliance with the
substantiation and documentation requirements set forth in Paragraph 4(d) and
subject to the terms of the applicable benefit plans and applicable law. Any
obligation of the Company to the Executive hereunder is conditioned, however,
upon the Executive signing a release of claims (other than any Company
obligations under the Retirement Agreement referred to in Section 19) in the
form provided by the Company (the "Employee Release") within twenty-one days (or
such greater period as the Company may specify) following the later of the date
on which the Executive receives notice of termination of employment or the date
the Executive receives a copy of the Employee Release and upon the Executive not
revoking the Employee Release in a timely manner thereafter. Base Salary to
which the Executive is entitled hereunder shall be payable in accordance with
the normal payroll practices of the Company and will begin at the Company's next
regular payroll period which is at least five business days following the
effective date of the Employee Release, but shall be retroactive to next
business day following the Separation Date.
(e) BY THE EXECUTIVE. The Executive may terminate his employment
hereunder at any time other than for Good Reason upon four months' notice to the
Company.
-5-
Upon the effective date of such termination of the Executive's employment
hereunder, the Company shall have no further obligation to the Executive
hereunder, other than for any Final Compensation due to him.
(f) UPON A CHANGE OF CONTROL. If a Change of Control, as defined in
Paragraph 13 below, occurs, then if the Executive's employment with the Company
shall terminate for any reason other than by the Company for Cause, in lieu of
any payments to the Executive under Paragraph 5(d) hereof and in addition to any
payments to the Executive under Paragraph 5(e) hereof, and provided that the
Executive signs the Employee Release specified in Paragraph 5(d), the Company
shall: (i) in addition to the Final Compensation, make a on-time payment to
Executive within 30 days of the Separation Date equal to Base Salary for one
year at the then current rate; and (ii) cause all stock options that the
Executive then holds that are not exercisable on the Separation Date to
immediately vest and become fully exercisable (the "Accelerated Options") and
cause to lapse any restrictions on any shares of restricted stock that the
Executive then holds. The Accelerated Options will remain exercisable until that
date which is three months from the Separation Date (or, if the Separation Date
occurs prior to the date the Change of Control occurs, until that date which is
three months from the date the Change of Control occurs), after which date any
Accelerated Options not exercised shall be forfeited and shall terminate. Except
as otherwise expressly provided in this Paragraph 5(f), the terms and conditions
of the Accelerated Options shall remain unchanged and shall be governed by the
terms of the applicable stock option grants, agreements and plans and other
restrictions or provisions generally applicable to options granted to Company
employees, as these may be amended from time to time by the Company. In
addition, the Company shall pay the Executive any Bonus for such fiscal year,
pro-rated based on the number of days during such fiscal year the Executive was
employed by the Company. If the Executive's employment with the Company shall
terminate under Section 5(d), and a Change of Control occurs within the ensuing
four (4) months, the Company shall on the date of the Change of Control make a
lump-sum payment to the Executive equal to the aggregate remaining Severance
Payments and the difference between the exercise price and the fair market value
(on the date of the Change of Control) on all stock options held by the
Executive upon his termination that were cancelled or expired.
6. EFFECT OF TERMINATION. The provisions of this Section 6 shall apply to
termination pursuant to Section 5 or otherwise.
(a) The benefits specified under the applicable termination
provision of Section 5 shall constitute the entire obligation of the Company and
its Affiliates to the Executive hereunder.
(b) Except as otherwise provided in this Agreement and by applicable
law, benefits shall terminate pursuant to the terms of the applicable benefit
plans based on the date of termination of the Executive's employment without
regard to any continuation of Base Salary or other payment to the Executive
following such date of termination.
(c) Provisions of this Agreement shall survive any termination if so
provided herein or if necessary or desirable to accomplish the purposes of other
surviving provisions, including without limitation the obligations of the
Executive under Paragraphs 7, 8 and 9 hereof. The obligation of the Company to
make payments to or on behalf of the Executive under
-6-
Paragraph 5 hereof is expressly conditioned upon the Executive's continued full
performance of obligations under Paragraphs 7, 8 and 9 hereof. The Executive
recognizes that, except as expressly provided in Paragraph 5, no compensation is
earned hereunder after termination of employment.
7. CONFIDENTIAL INFORMATION.
(a) The Executive acknowledges that the Company and its Affiliates
continually develop Confidential Information, that the Executive may develop
Confidential Information for the Company or its Affiliates and that the
Executive may learn of Confidential Information during the course of employment.
The Executive will comply with the policies and procedures of the Company and
its Affiliates for protecting Confidential Information and shall not disclose to
any Person or use, other than as required by applicable law or for the proper
performance of his duties and responsibilities to the Company and its
Affiliates, any Confidential Information obtained by the Executive incident to
his employment or other association with the Company or any of its Affiliates.
The Executive understands that this restriction shall continue to apply after
his employment terminates, regardless of the reason for such termination.
(b) All documents, records, tapes and other media of every kind and
description relating to the business, present or otherwise, of the Company or
its Affiliates and any copies, in whole or in part, thereof (the "Documents"),
whether or not prepared by the Executive, shall be the sole and exclusive
property of the Company and its Affiliates. The Executive shall safeguard all
Documents and shall upon request of the Company surrender to the Company at the
time his employment terminates, or at such earlier time or times as the Board or
its designee may specify, all Documents then in the Executive's possession or
control.
8. ASSIGNMENT OF RIGHTS TO INTELLECTUAL PROPERTY. The Executive shall
promptly and fully disclose all Intellectual Property, as defined in Paragraph
13 below, to the Company. The Executive hereby assigns and agrees to assign to
the Company (or as otherwise directed by the Company) the Executive's full
right, title and interest in and to all Intellectual Property. The Executive
agrees to execute any and all applications for domestic and foreign patents,
copyrights or other proprietary rights and to do such other acts (including
without limitation the execution and delivery of instruments of further
assurance or confirmation) requested by the Company to assign the Intellectual
Property to the Company and to permit the Company to enforce any patents,
copyrights or other proprietary rights to the Intellectual Property. The
Executive will not charge the Company for time spent in complying with these
obligations. All copyrightable works that the Executive creates shall be
considered "work made for hire".
9. RESTRICTED ACTIVITIES. The Executive agrees that some restrictions on
his activities during and after his employment are necessary to protect the
goodwill, Confidential Information and other legitimate interests of the Company
and its Affiliates:
(a) While the Executive is employed by the Company and for a period
of twelve months after the Separation Date (in the aggregate, the
"Non-Competition Period"), the Executive shall not, directly or indirectly, own,
manage, operate, control or participate in any manner in the ownership,
management, operation or control of, or be connected as an officer,
-7-
employee, partner, director, principal, consultant, agent or otherwise with, or
have any financial interest in, or aid or assist anyone else in the conduct of,
any business, venture or activity which competes with any Business of the
Company or its Affiliates, in the United States or any other geographic area
where such Business is being conducted or actively being planned to be conducted
at or prior to the Separation Date. For the purposes of this Section 9, the
Business of the Company and its Affiliates shall include all Products and the
Executive's undertaking shall encompass all items, products and services that
may be used in substitution for Products. Notwithstanding the foregoing,
ownership of not more than five percent of any class of equity security of any
publicly held corporation shall not, of itself, constitute a violation of this
Paragraph 9.
(b) The Executive agrees that, during his employment with the
Company, he will not undertake any outside activity, whether or not competitive
with the business of the Company or its Affiliates that could reasonably give
rise to a conflict of interest or otherwise interfere with his duties and
obligations to the Company or any of its Affiliates.
(c) The Executive further agrees that while he is employed by the
Company and during the Non-Competition Period, the Executive will not hire or
attempt to hire any employee of the Company or any of its Affiliates, assist in
such hiring by any Person, encourage any such employee to terminate his or her
relationship with the Company or any of its Affiliates, or solicit or encourage
any customer or vendor of the Company or any of its Affiliates to terminate or
diminish its relationship with them, or, in the case of a customer, to conduct
with any Person any business or activity which such customer conducts or could
conduct with the Company or any of its Affiliates.
10. NOTIFICATION REQUIREMENT. During the Non-Competition Period, the
Executive shall give notice to the Company of each new business activity he
plans to undertake which business is the same as or similar to the business of
the Company, as soon as reasonably practicable after the Executive finalizes his
intention to engage in such activity. The Executive shall provide the Company
with such other pertinent information concerning such business activity as the
Company may reasonably request in order to determine the Executive's continued
compliance with his obligations under Sections 7, 8 and 9 hereof.
-8-
11. ENFORCEMENT OF COVENANTS. The Executive acknowledges that he has
carefully read and considered all the terms and conditions of this Agreement,
including the restraints imposed upon him pursuant to Sections 7, 8 and 9
hereof. The Executive agrees that said restraints are necessary for the
reasonable and proper protection of the Company and its Affiliates and that each
and every one of the restraints is reasonable in respect to subject matter,
length of time and geographic area. The Executive further acknowledges that,
were he to breach any of the covenants contained in Sections 7, 8 or 9 hereof,
the damage to the Company would be irreparable. The Executive therefore agrees
that the Company, in addition to any other remedies available to it, shall be
entitled to preliminary and permanent injunctive relief against any breach or
threatened breach by the Executive of any of said covenants, without having to
post bond. The parties further agree that, in the event that any provision of
Section 7, 8 or 9 hereof shall be determined by any court of competent
jurisdiction to be unenforceable by reason of its being extended over too great
a time, too large a geographic area or too great a range of activities, such
provision shall be deemed to be modified to permit its enforcement to the
maximum extent permitted by law.
12. CONFLICTING AGREEMENTS. Each of the Executive and the Company hereby
represents and warrants that the execution of this Agreement and the performance
of his or its obligations hereunder will not breach or be in conflict with any
other agreement to which the Executive or the Company is a party or is bound.
The Executive represents and warrants that he is not now subject to any
covenants against competition or similar covenants or any court order or other
legal obligation that would affect the performance of his obligations hereunder.
The Executive will not disclose to or use on behalf of the Company any
proprietary information of a third party without such party's consent.
13. DEFINITIONS. Words or phrases which are initially capitalized or are
within quotation marks shall have the meanings provided in this Section and as
provided elsewhere herein. For purposes of this Agreement, the following
definitions apply:
(a) "Affiliates" means all persons and entities directly or
indirectly controlling, controlled by or under common control with the Company,
where control may be by either management authority or equity interest.
(b) "Change of Control" means (A) any Person or "group" (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934
as amended (the "Exchange Act")), other than the Company or any of its
Affiliates or any trustee or other fiduciary holding securities under an
employee benefit plan of the Company or one of its Affiliates, becomes a
beneficial owner (within the meaning of Rule 13d-3 as promulgated under the
Exchange Act), directly or indirectly, in one or a series of transactions, of
securities representing more than fifty percent (50%) of the combined voting
power of the Company's then outstanding securities; (B) any merger or
consolidation involving the Company or any sale of all or substantially all of
the assets of the Company, or any combination of the foregoing; or (C) there
occurs a closing of a sale or other disposition by the Company of all or
substantially all of the assets of the Company other than to one or more of the
Company's Affiliates or any trustee or other fiduciary holding securities under
an employee benefit plan of the Company or any of its Affiliates.
-9-
(c) "Confidential Information" means any and all information of the
Company and its Affiliates that is not generally known by others with whom they
compete or do business, or with whom any of them plans to compete or do business
and any and all information, publicly known in whole or in part or not, which,
if disclosed by the Company or its Affiliates would assist in competition
against them. Confidential Information includes without limitation such
information relating to (i) the development, research, testing, manufacturing,
marketing and financial activities of the Company and its Affiliates, (ii) the
Products, (iii) the costs, sources of supply, financial performance and
strategic plans of the Company and its Affiliates, (iv) the identity and special
needs of the customers of the Company and its Affiliates and (v) the people and
organizations with whom the Company and its Affiliates have business
relationships and those relationships. Confidential Information also includes
any information that the Company or any of its Affiliates have received, or may
receive hereafter, belonging to customers or others with any understanding,
express or implied, that the information would not be disclosed.
(d) "Intellectual Property" means inventions, discoveries,
developments, methods, processes, compositions, works, concepts and ideas
(whether or not patentable or copyrightable or constituting trade secrets)
conceived, made, created, developed or reduced to practice by the Executive
(whether alone or with others, whether or not during normal business hours or on
or off Company premises) during the Executive's employment that relate to either
the Products or any prospective activity of the Company or any of its Affiliates
or that make use of Confidential Information or any of the equipment or
facilities of the Company or any of its Affiliates.
(e) "Person" means an individual, a corporation, a limited liability
company, an association, a partnership, an estate, a trust and any other entity
or organization, other than the Company or any of its Affiliates.
(f) "Products" mean all products planned, researched, developed,
tested, manufactured, sold, licensed, leased or otherwise distributed or put
into use by the Company or any of its Affiliates, together with all services
provided or planned by the Company or any of its Affiliates, during the
Executive's employment.
14. WITHHOLDING. All payments made by the Company under this Agreement
shall be reduced by any tax or other amounts required to be withheld by the
Company under applicable law.
15. ASSIGNMENT. Neither the Company nor the Executive may make any
assignment of this Agreement or any interest herein, by operation of law or
otherwise, without the prior written consent of the other; provided, however,
that the Company may assign its rights and obligations under this Agreement
without the consent of the Executive in the event that the Executive is
transferred to a position with any of the Affiliates or in the event that the
Company shall hereafter affect a reorganization, consolidate with, or merge
into, any Person or transfer all or substantially all of its properties or
assets to any Person. This Agreement shall inure to the benefit of and be
binding upon the Company and the Executive, their respective successors,
executors, administrators, heirs and permitted assigns.
-10-
16. SEVERABILITY. If any portion or provision of this Agreement shall to
any extent be declared illegal or unenforceable by a court of competent
jurisdiction, then the remainder of this Agreement, or the application of such
portion or provision in circumstances other than those as to which it is so
declared illegal or unenforceable, shall not be affected thereby, and each
portion and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
17. WAIVER. No waiver of any provision hereof shall be effective unless
made in writing and signed by the waiving party. The failure of either party to
require the performance of any term or obligation of this Agreement, or the
waiver by either party of any breach of this Agreement, shall not prevent any
subsequent enforcement of such term or obligation or be deemed a waiver of any
subsequent breach.
18. NOTICES. Any and all notices, requests, demands and other
communications provided for by this Agreement shall be in writing and shall be
effective when delivered in person or deposited in the United States mail,
postage prepaid, registered or certified, and addressed to the Executive at his
last known address on the books of the Company or, in the case of the Company,
at its principal place of business, attention of the Board of Directors, or to
such other address as either party may specify by notice to the other actually
received.
19. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties and supersedes all prior communications, agreements and
understandings, written or oral, with respect to the terms and conditions of the
Executive's employment.
The Company and the Executive acknowledge that effective September 28,
2004 the Company ceased paying the Consulting Fee under the executive retirement
agreement dated February 7, 2003 (the "Retirement Agreement") between the
Company and the Executive under which the Executive has agreed to perform
consulting services for the Company and serve as Chairman of the Board of
Directors. No consulting services are to be performed by the Executive so long
as he serves as Chief Executive Officer of the Company. On the Separation Date,
the Company will pay to the Executive in a lump-sum payment the Consulting Fees
that would have been payable to him during the period from September 28, 2004
until the Separation Date unless either party has terminated the Retirement
Agreement as provided in Section 4 of the Retirement Agreement. If the
Separation Date occurs prior to the end of the Consulting Period under the
Retirement Agreement, performance of the consulting services and payment of the
Consulting Fees shall resume of that date. In all other respects, the Retirement
Agreement shall remain in force and shall not be affected by this Agreement.
20. AMENDMENT. This Agreement may be amended or modified only by a written
instrument signed by the Executive and by a expressly authorized representative
of the Company.
21. HEADINGS. The headings and captions in this Agreement are for
convenience only and in no way define or describe the scope or content of any
provision of this Agreement.
-11-
22. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be an original and all of which together shall
constitute one and the same instrument.
23. GOVERNING LAW. This is a Massachusetts contract and shall be construed
and enforced under and be governed in all respects by the laws of the
Commonwealth of Massachusetts, without regard to the conflict of laws principles
thereof.
IN WITNESS WHEREOF, this Agreement has been executed as a sealed instrument by
the Company, by its duly authorized representative, and by the Executive, as of
the date first above written.
THE EXECUTIVE BTU INTERNATIONAL, INC.
By:
----------------------- -------------------------------
Xxxx X. van der Wansem Name:
Director:
-12-
