Exhibit 10.10
SEVERANCE AND GENERAL RELEASE AGREEMENT
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This SEVERANCE AND GENERAL RELEASE AGREEMENT ("Agreement") is made
and entered into as of November 4, 2003, by and between Vishay Intertechnology,
Inc., a Delaware corporation ("Vishay"), and Avi Eden, an individual (the
"Executive").
W I T N E S S E T H:
WHEREAS, Executive is currently a member of the Board of Directors,
a Vice Chairman of the Board of Directors and an Executive Vice President of
Vishay;
WHEREAS, Executive desires to resign his employment with Vishay,
effective as of the date hereof, and Vishay desires to accept such resignation,
subject to the terms and conditions set forth below;
NOW, THEREFORE, Vishay and Executive, each intending to be legally
bound, hereby mutually covenant and agree as follows:
1. Resignation. In consideration of the terms and conditions of this
Agreement, Executive will cease to serve in any executive positions of Vishay,
including as a member of the Board of Directors, a Vice Chairman of the Board of
Directors and an Executive Vice President of Vishay, and will terminate his
employment with Vishay, effective as of the date hereof. In addition, Executive
shall resign from all positions with any subsidiaries of Vishay as and when
requested by Vishay from time to time following the date hereof.
2. Consideration. In consideration of Executive's past services to Vishay,
and in consideration for entering into this Agreement, Vishay agrees to pay
Executive the consideration set forth below.
(a) Bonus. Vishay shall pay Executive three-quarters (3/4) of the
performance-based annual cash and/or stock bonus that would otherwise have been
payable to Executive for the calendar year ended December 31, 2003, as described
in the "Report on Executive Compensation" in Vishay's proxy statement dated
April 21, 2003 under the section entitled "Executive Officers and Key
Management" and at the time that such bonus would otherwise have been payable.
(b) Additional Payments.
(i) Vishay shall pay Executive a lump sum cash payment of
$1,000,000, payable within fifteen (15) days of the date hereof.
(ii) Vishay shall pay Executive an aggregate of $1,400,000, payable
in 108 equal monthly installments of $12,962.96 commencing in January, 2004, in
accordance with Vishay's standard payroll practices for employees in Malvern,
Pennsylvania (i.e. monthly, bi-monthly or bi-weekly as the case may be).
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(c) Automobile Lease. Executive shall be permitted to use the BMW
automobile which Vishay has leased for Executive's use, and Vishay shall pay or
reimburse Executive for all expenses related thereto, until the lease expires,
at which time Executive shall immediately return such automobile to Vishay.
(d) Restricted Shares. On the later of November 3, 2003 and two days
after the release of Vishay's earnings for the fiscal quarter ended September
30, 2003, all contractual restrictions on shares of common stock of Vishay held
by Executive pursuant to the Vishay Employee Stock Plan shall lapse and such
shares of common stock shall become fully vested and nonforfeitable. At
Executive's request, Vishay shall promptly remove any legends on Executive's
shares of common stock relating to the foregoing restrictions.
(e) Continuation of Benefits. From the date hereof until December 31,
2003, Vishay shall continue to include Executive in its group welfare plans,
including term life insurance, medial insurance and long-term disability
insurance. If, however, Vishay is unable to include Executive in its group
welfare plans under the terms of such plans, Vishay shall reimburse Executive
for the reasonable cost of obtaining substantially equivalent coverage during
such period.
(f) No Impairment of Accrued Benefits. Nothing in this Agreement shall
adversely affect Executive's right to receive any benefits earned prior to the
date hereof under any employee benefit plan of Vishay, including, but not
limited to, any pension profit sharing or deferred compensation plan, whether or
not "qualified" under the Internal Revenue Code. All such benefits shall be paid
to Executive in accordance with the terms of each plan in which Executive
participates prior to the date hereof.
3. Acceleration of Payments. All amounts payable to Executive pursuant to
Section 2(b)(ii) shall be accelerated and the entire balance shall become
immediately due and payable upon written notice from Executive to Vishay upon
the occurrence of any of the following events:
(a) Vishay defaults in its obligation to make payment when due of any
of the installments provided for in Section 2(b)(ii), and fails to cure said
payment default within thirty (30) days after receipt of notice thereof;
(b) Vishay declares itself bankrupt or insolvent under any federal or
state bankruptcy or insolvency law, or an involuntary petition in bankruptcy is
filed against Vishay and is not withdrawn or dismissed within thirty (30) days
of filing thereof; or
(c) A "Fundamental Change" has occurred, as defined in Section 4.09(a)
of the indenture governing Vishay's 3-5/8% Convertible Subordinated Notes due
2003, as in effect on the date hereof (without giving effect, however, to the
exclusions provided in the final clauses (i) and (ii) of such definition), and
such Fundamental Change has not been approved by a majority of the "Continuing
Directors" of Vishay, as defined Section 1.01 of such indenture.
4. Withholding Taxes. Vishay may withhold from all payments due to
Executive under this Agreement all taxes which, by applicable federal, state,
local or other law, Vishay is required to withhold therefrom.
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5. Payments Upon Death. In the event of Executive's death, all unpaid
amounts due to Executive under this Agreement shall be paid to Executive's
surviving spouse or to Executive's estate if Executive has no surviving spouse
in accordance with the terms of this Agreement, without acceleration, except as
provided in Section 3.
6. Indemnification. Executive shall be indemnified by Vishay, to the
fullest extent permitted under applicable law and Vishay's Certificate of
Incorporation and By-laws as in effect on the date hereof, against reasonable
expenses, including attorney's fees, actually and necessarily incurred by him in
connection with the defense of any action, suit, investigation or proceeding or
similar legal activity, regardless of whether criminal, civil or investigative
in nature, to which he is made a party by reasons of his employment by Vishay.
In addition, for a period of not less than six (6) years following the date
hereof, Vishay shall use its commercially reasonable efforts to continue to
include Executive as a named insured under Vishay's director and officer
insurance policy for all periods during which Executive served or serves as a
director or officer of Vishay or any of its subsidiaries with coverage at least
equal to that applicable to directors and officers of Vishay and its
subsidiaries generally.
7. Releases.
(a) Executive. In exchange for and in consideration of the promises,
covenants and agreements set forth herein, and as a material inducement to
Vishay to enter into this Agreement, Executive, for himself and his executors,
administrators, heirs and assigns, unconditionally and forever releases and
discharges Vishay, together with its past, present and future parents,
subsidiaries (whether wholly- or partially-owned, direct or indirect),
affiliates and divisions, and each of their respective past, present and future
officers, directors, agents, employees, shareholders, predecessors, successors
and assigns, in their respective capacities, as officers, directors, agents,
employees, shareholders, predecessors, successors and assigns (in each case,
where applicable, in both their personal and corporate capacities)
(collectively, the "Company Released Persons"), jointly and severally, to the
maximum extent permitted by law, from any and all Claims (as defined below)
which any of them has or may have for any period up to and including the date
hereof.
(b) Vishay. In exchange for and in consideration of the promises,
covenants and agreements set forth herein, and as a material inducement to
Executive to enter into this Agreement, Vishay, for itself and its respective
past, present and future corporate parents, subsidiaries and controlled
affiliates, unconditionally and forever releases and discharges Executive and
his executors, administrators, heirs and assigns (collectively, the "Executive
Covered Persons"), jointly and severally, to the maximum extent permitted by
law, from any and all Claims (as defined below) which any of them has or may
have for any period up to and including the date hereof.
(c) Claims. For purposes of this Section 7, "Claims" means any and all
manner of claims, demands, causes of action, suits, judgments, executions,
obligations, damages or liabilities whatsoever of every kind and nature, at law
or in equity, known or unknown, suspected or unsuspected and whether or not
discoverable, that Executive or Vishay now have, may have, or at any time had,
against any Company Released Person or Executive Released Person. The foregoing
notwithstanding, the term "Claims" does not include (i) any claims arising out
of or
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based upon this Agreement or the Consulting and Non-Competition Agreement, of
even date herewith, between Vishay and Executive (the "Consulting Agreement"),
(ii) any rights Executive may have to indemnification under Vishay's Certificate
of Incorporation, By-laws, directors and officers liability insurance, this
Agreement or the Consulting Agreement, or (iii) any claims arising out of
criminal acts that as a matter of law cannot be released as against public
policy.
(d) Unenforceability of Release. Upon a finding by a court of competent
jurisdiction or arbitrator that a release or waiver of Claims provided for by
this Section 7 is illegal, void or unenforceable, Vishay or Executive, as the
case may be, may require the other party to promptly execute a release that is
legal and enforceable, so long as said release does not expand the scope of the
initial release found to be unenforceable.
8. Representation of Counsel; Reliance. Executive acknowledges and agrees
that (i) Executive has had the opportunity to consult with and be advised by the
attorneys of his choice prior to executing this Agreement, (ii) the signing of
this Agreement by Executive is voluntary, (iii) Executive fully understands all
of the provision of this Agreement, and (iv) in executing this Agreement,
Executive does not rely on any representation or statement not set forth in this
Agreement made by any representative of Vishay with regard to the subject
matter, basis, or effect of this Agreement.
9. Miscellaneous.
(a) No Liability. In executing this Agreement, Executive and Vishay do
not admit any liability or wrongdoing, and the considerations exchanged herein
do not constitute an admission of any liability, error, contract violation or
violation of any federal, state or local law, rule or regulation.
(b) Notices. Any notice, consent, request or other communication made
or given in accordance with this Agreement shall be in writing and shall be sent
either (i) by personal delivery to the party entitled thereto, (ii) by facsimile
with confirmation of receipt, or (iii) by registered or certified mail, return
receipt requested. The notice, consent request or other communication shall be
deemed to have been received upon personal delivery, upon confirmation of
receipt of facsimile transmission, or, if mailed, three (3) days after mailing.
Any notice, consent, request or other communication made or given in accordance
with the Agreement shall be made to those listed below at their following
respective addresses or at such other address as each may specify by notice to
the other:
To Vishay:
Vishay Intertechnology, Inc.
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Secretary
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
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To Executive:
Avi Eden
[Personal address omitted]
(c) Fees and Expenses. Each of the parties shall bear its own fees and
expenses incurred in connection with the negotiation of this Agreement.
(d) Full Settlement. Vishay's obligation to make any payments provided
for in this Agreement and otherwise to perform its obligations hereunder shall
not be affected by any set-off, counterclaim, recoupment, defense or other
claim, right or action which Vishay may have against Executive or others. In no
event shall Executive be obligated to take any action by way of mitigation of
the amounts payable to Executive under any of the provisions of this Agreement,
and such amounts shall not be reduced whether or not Executive obtains other
employment or compensation.
(e) Successors.
(i) This Agreement is personal to Executive and, without the prior
written consent of Vishay, shall not be assignable by Executive otherwise than
by will or the laws of descent and distribution. This Agreement shall inure to
the benefit of and be enforceable by Executive's heirs and legal
representatives.
(ii) This Agreement shall inure to the benefit of and be binding
upon Vishay and its successors and assigns.
(iii) Vishay shall require any successor (whether direct or
indirect, by purchase, merger, consolidation, or otherwise) to all or
substantially all of the business and/or assets of Vishay expressly to assume
and agree to perform this Agreement in the same manner and to the same extent
that Vishay would have been required to perform if no such succession had taken
place. As used in this Agreement, "Vishay" shall mean both Vishay as defined
above and any such successor that assumes and agrees to perform this Agreement,
by operation of law or otherwise.
(f) Complete Understanding; Amendment; Waiver. This Agreement
constitutes the complete understanding between the parties with respect to the
subject matter hereof and supersedes all other prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof, and no statement, representation, warranty or covenant
has been made by either party with respect thereto except as expressly set forth
herein. This Agreement shall not be altered, modified, amended or terminated
except by a written instrument signed by each of the parties hereto. Any waiver
of any term or provision hereof, or of the application of any such term or
provision to any circumstances, shall be in writing signed by the party charged
with giving such waiver. Waiver by either party hereto of any breach hereunder
by the other party shall not operate as a waiver of any other breach, whether
similar to or different from the breach waived. No delay on the part of Vishay
or Executive in the exercise
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of any of their respective rights or remedies shall operate as a waiver thereof,
and no single or partial exercise by Vishay or Executive of any such right or
remedy shall preclude other or further exercise thereof.
(g) Severability. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement. If any provision of this Agreement shall be held
invalid or unenforceable in part, the remaining portion of such provision,
together with all other provisions of this Agreement, shall remain valid and
enforceable and continue in full force and effect to the fullest extent
consistent with law.
(h) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be wholly performed within that State, without regard to the principles
of conflicts of law.
(i) Further Assurances. Each of the parties hereto shall execute and
deliver such documents, instruments and agreements and take such further actions
as may be reasonably required or desirable to carry out the provisions of this
Agreement and the transactions contemplated hereby, and each of the parties
hereto shall cooperate with each other in connection with the foregoing.
(j) Titles and Captions. All Section titles or captions in this
Agreement are for convenience only and in no way define, limit, extend or
describe the scope or intent of any provision hereof.
(k) Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall be deemed an original, and all such
counterparts shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Severance and General Release Agreement as of the day and year first above
written.
VISHAY INTERTECHNOLOGY, INC.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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By: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chairman of the Board and
Chief Executive Officer
EXECUTIVE:
/s/ Avi Eden
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Avi Eden
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