Exhibit 10.17
CONSULTING AND NON-COMPETITION
AGREEMENT
This CONSULTING AND NON-COMPETITION AGREEMENT
(this “ Agreement ”) is made and entered into as
of August 31, 2008, by and between Vishay Intertechnology, Inc., a
Delaware corporation (“ Vishay ”), and Richard
N. Grubb, an individual (“ Consultant
”).
W I T N E S
S E T H:
WHEREAS, Consultant was Executive Vice President
and Chief Financial Officer of Vishay pursuant to an Employment
Agreement made as of January 1, 2004 (the “ Employment
Agreement ”);
WHEREAS, Consultant’s employment with
Vishay was terminated as of August 31, 2008, and each of Consultant
and Vishay retain their respective rights, and remain subject to
their respective obligations, under the Employment
Agreement;
WHEREAS, Vishay now desires to retain Consultant
as a consultant to Vishay in such matters as shall from time to
time hereafter be requested by Vishay, on the terms and conditions
set forth herein;
NOW, THEREFORE, Vishay and Consultant, each
intending to be legally bound, hereby mutually covenant and agree
as follows:
ARTICLE I
Consultancy Engagement
1.1 Engagement; Term . Vishay hereby engages Consultant, and
Consultant hereby accepts such engagement and agrees to serve as a
consultant to Vishay upon the terms and conditions hereinafter set
forth, for a term commencing as of September 1, 2008 and
terminating upon 30 days advance written notice from one party to
the other party (such term, the “ Consulting Term
”).
1.2 Consulting Duties . During the Consulting Term, Consultant shall
be available to render consulting services from time to time on an
as-needed basis. Consultant’s consulting duties shall include
(a) cooperating and assisting Vishay in (i) any investigation being
conducted by, or of, Vishay, and (ii) any investigation,
litigation, regulatory proceeding, or other dispute in which Vishay
is involved and, in either case, as to which Consultant had any
knowledge or involvement, (b) acting as a historical and knowledge
resource to Vishay employees in connection with matters he is
familiar with, including matters related to general financial
issues and the preparation of Vishay’s financial statements,
(c) transitioning his responsibilities to employees of Vishay, and
(d) providing other services as may be reasonably assigned to
Consultant. Consultant agrees to make himself available to perform
the services
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described above and to use his
best efforts to perform such services faithfully and diligently,
and to the best of his ability and in the best interests of the
Vishay. Such services will be performed at reasonably convenient
and mutually acceptable times, with consideration for
Consultant’s other business and personal obligations.
Consultant shall be permitted to engage in other business
activities (including employment), provided that such activities do
not otherwise violate the terms of the Employment Agreement, this
Agreement or materially impair his ability to perform his duties
hereunder. The parties expressly agree that the Vishay shall not be
obligated to provide Consultant with any staff or office space. The
parties do not anticipate that Consultant’s services as a
Consultant will exceed, and Consultant is not required to provide
such services in excess of, 20 percent of his average level of
services performed for Vishay over the 36-month period immediately
preceding the termination of his employment with Vishay.
1.3 Independent Contractor Status
.
(a) In
performing the consulting services hereunder, Consultant shall be
an independent contractor. Consultant shall not be considered as
having an employee status during his consulting engagement and,
except as expressly provided in the Employment Agreement, shall not
be entitled to participate in any Vishay employee plans,
arrangements or distributions by during such period. During his
consulting engagement, Consultant shall not act as an agent of
Vishay and shall not be entitled to enter into any agreements on
behalf of Vishay, incur any obligations on behalf of Vishay, or be
authorized to bind Vishay in any manner. No form of joint venture,
partnership or similar relationship between the parties is intended
or hereby created.
(b) Except
as otherwise required by law, Vishay shall not withhold any sums
from the Consulting Fees (defined below) for Social Security or
other federal, state or local tax liabilities or contributions, and
all such withholdings, liabilities, and contributions shall be
solely Consultant’s responsibility.
(c) As an
independent contractor during his consulting engagement, Consultant
shall be solely responsible for determining the means and methods
by which he shall perform the services described herein. All of
Consultant’s activities during his consulting engagement will
be at his own risk, and he shall have sole responsibility for
arrangements to guard against physical, financial, and other risks,
as appropriate.
(d) Notwithstanding the parties’ intention and
agreement that Consultant be an independent contractor and not be
an employee of Vishay during his consulting engagement, the parties
recognize that the applicable law and proper application thereof is
not always clear. Consultant understands and agrees that if he
should be classified as an employee under any such law, Consultant
shall remain ineligible to participate in any Vishay pension,
profit-sharing (including 401(k)), health, life, and all other
employee benefit plans, and, except as expressly set forth in the
Employment Agreement, Consultant expressly waives any right to any
such benefits. The Consulting Fees to be paid to Consultant under
this Agreement take into account the fact that Consultant is
ineligible in all events to participate in such plans, and
constitutes part of the consideration for this waiver. In addition,
Consultant acknowledges that policies and practices of Vishay with
respect to its employees do not apply to Consultant, and the terms
of Consultant’s
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consulting engagement by Vishay
are governed solely by the express provisions of this
Agreement.
ARTICLE II
Remuneration
2.1 Consulting Fee . Vishay will pay Consultant and Consultant will
accept consulting fees (“ Consulting Fees ”)
during the Consulting Term at a monthly rate of $20,000. Such
Consulting Fees will be paid monthly in arrears.
2.2 Reimbursement of Expenses
. Vishay will reimburse Consultant
for all reasonable and necessary travel and other business expenses
as may be incurred by him during the Consulting Term in the
performance of the duties and responsibilities assigned to him in
connection with his consulting engagement under this Agreement;
provide, however, that Consultant shall not be entitled to
reimbursement of first class airfare. Such reimbursements shall be
made by Vishay on a timely basis upon submission by Consultant of
proper accounts therefore in accordance with the Vishay’s
standard procedures.
2.3 No
Other Fees, Payments or Remuneration; Cessation of
Engagement . The
Consulting Fees and expense reimbursement specified in this Article
II shall be in lieu of any and all other fees, payments and
remuneration in connection with Consultant’s consulting
engagement with Vishay. In the event Consultant’s consulting
engagement hereunder shall cease for any reason, then the
Consulting Fees and expense reimbursement provided for in this
Article II shall cease on the date of such event, except as
otherwise specifically provided herein.
2.4 Access to Facilities and Employees
. During the Consulting Term,
Consultant may make use of Vishay’s facilities and of the
time and services of Vishay’s employees, in each case as the
Vishay shall determine.
ARTICLE III
Restrictive Covenants
3.1 Non-Competition . During the Consulting Term and for two years
following the termination of the Consulting Term, Consultant shall
not, without the prior written consent of the Vishay, directly or
indirectly, own, manage, operate, join, control, participate in,
invest in or otherwise be connected or associated with, in any
manner, including as an officer, director, employee, independent
contractor, subcontractor, stockholder, member, manager, partner,
principal, consultant, advisor, agent, proprietor, trustee or
investor, any Competing Business (as defined below);
provided , however , that nothing in this Agreement
shall prevent Consultant from (A) owning five percent (5%) or less
of the stock or other securities of a publicly held corporation, so
long as Consultant does not in fact have the power to control, or
direct the management of, and is not otherwise associated with,
such corporation, or (B) performing Services for an investment
bank, investment advisor or investment fund that may, directly or
indirectly, own, manage, operate, join, control, participate in,
invest in or otherwise be connected or associated with, in any
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