CONSULTING AGREEMENT
Exhibit 10.08
EXHIBIT A
CONSULTING AGREEMENT, effective as of October 1, 2007, 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 October 1, 2007 (the “Effective Date”) and
ending September 30, 2011 (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 continue to participate
in the company Deferred Compensation Plan established 04/01/2005 and 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
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are consistent with the scope and nature of the Consultant’s responsibilities, or otherwise to
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: | /s/ Xxxxxx X. Xxxxx | |||
| Xx. Vice President, General Counsel and Secretary | ||||
| CONSULTANT: |
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| /s/ Xxxxxx X. Xxxxx | ||||
| 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: 9-21, 2007
|
/s/ Xxxxxx X. Xxxxx | |||||
| Xxxxxx X. Xxxxx | ||||||
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