Kulicke & Soffa Industries Inc. 1005 Virginia Drive Fort Washington, PA 19034 USA
Exhibit
10.2
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Kulicke
& Xxxxx Industries Inc.
0000
Xxxxxxxx Xxxxx
Xxxx
Xxxxxxxxxx, XX 00000 XXX
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000-000-0000
phone
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000-000-0000
fax
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xxx.xxx.xxx
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This
CONSULTING AGREEMENT is made as of this 7th day of
October, 2010, by and between Kulicke and Xxxxx Industries,
Inc., a Pennsylvania corporation (the “Company”), and C. Xxxxx Xxxxxxx
(“Consultant”).
WITNESSETH:
WHEREAS, Consultant was previously
employed as the Company’s chief executive officer, and the Company desires to
obtain certain services from Consultant to provide assistance in transitioning
to a new chief executive officer, and Consultant desires to provide such
services to the Company.
NOW,
THEREFORE, IT IS HEREBY AGREED by and among Consultant and the Company, in
consideration of the premises and intending to be legally bound hereby, as
follows:
1. Engagement
(a) Term and
Termination. This Agreement shall become effective on October
11, 2010 (the “Effective Date”), and, unless sooner terminated pursuant to the
terms of this Agreement, shall continue for a period of 36 months, expiring on
October 10, 2013 (such period, the “Term”). The provisions of
Sections 2(c), 3 and 4 shall survive any termination of this
Agreement.
(b) Engagement and
Duties. Consultant shall be an independent contractor to perform
consulting services and assignments on an as-needed basis as the Chief Executive
Officer of the Company or any other person designated by the Chief Executive
Officer may reasonably request and which are consistent with his position as
having formerly been the chief executive officer of the
Company. Consultant will render his services hereunder to the Company
and its subsidiaries and affiliates, as necessary and requested, and shall use
his commercially reasonable efforts in performing the duties assigned to
him. Consultant, in his capacity as an independent contractor under
this Agreement, shall not have any right, power or authority to bind or commit
the Company or any of its subsidiaries to any act, service or other contractual
commitment, and Consultant shall not represent to any other person or entity
that he has any such right, power or authority. In addition,
Consultant shall not have any right, power or authority to amend or terminate
any relationship between the Company or any of the Company’s subsidiaries and
any other person or entity. The Company retains the right to engage
the services of other persons and entities to perform services for the Company,
whether similar or dissimilar to the services provided by Consultant to the
Company under this Agreement.
(c) Provision of the
Services. In connection with providing the services during the
Term, Consultant shall make himself available by telephone, email, or, with his
consent, in person at the offices of the Company in Fort Washington,
Pennsylvania during normal business hours of the Company as reasonably requested
by the Chief Executive Officer.
2. Compensation and Independent
Contractor Status
(a) Compensation for
Services. As compensation for his services to the Company
under this Agreement, during the Term, Consultant shall receive Twenty-Two
Thousand Nine Hundred and Sixteen Dollars ($22,916) per month. As
additional compensation for his services, during the Term, the Company shall
also pay an amount each month equal to the premiums due for continued medical,
dental and prescription coverage under the Company’s plans. The
Company may pay these amounts directly to the insurers, but such amounts shall
constitute imputed income to Consultant.
(b) Expense
Reimbursement. The Company shall reimburse Consultant for his
actual out-of-pocket expenses and disbursements incurred in connection with the
performance of the services under this Agreement, upon receipt by the Company of
proper documentation evidencing such expenses and approval thereof by the
Company in accordance with the Company’s expense reimbursement policy in effect
from time to time.
(c) Independent
Contractor. Consultant’s relationship to the Company under
this Agreement is solely that of an independent
contractor. Consultant shall not be considered an employee or agent
of the Company under this Agreement or otherwise. Nothing herein
shall be deemed or construed to create a joint venture, partnership, agency or
employee/employer relationship between the parties for any purpose, including,
without limitation, withholding for purposes of Social Security, income tax or
other tax, if any. As an independent contractor, the Company will
issue an IRS Form 1099 for payments made pursuant to this Agreement, including
any imputed income pursuant to Section 2(a), and Consultant will be responsible
for paying all federal, state and local income and social security taxes arising
out of any such payments.
3. Certain
Restrictions
(a) At
all times during the Term and for a period of two (2) years after the Term,
Consultant shall not:
(i) directly
or indirectly, together or separately or with any third party, whether as an
individual proprietor, partner, stockholder, officer, employee, director, joint
venturer, investor, or in any other capacity whatsoever, actively engage in
business or assist anyone or any firm in business as a manufacturer, seller, or
distributor of any products or services which are the same, like, similar to, or
which compete with the products and services offered by the Company (or any of
its affiliates) in any geographic area in which the Company sells or markets its
products;
(ii) directly
or indirectly recruit, solicit or encourage any employee of the Company (or any
of its affiliates) or otherwise induce such employee to leave the employ of the
Company (or any of its affiliates) or to become an employee or otherwise be
associated with his or any firm, corporation, business or other entity with
which he is or may become associated or assist another person or entity to
engage in such conduct; or
(iii) solicit,
directly or indirectly, for himself or as agent or employee of any person,
partnership, corporation, or other entity (other than for the Company) with the
intent of actively engaging in business, any then or former customer, supplier,
or client of the Company.
(b) Consultant,
on behalf of himself and his affiliates, acknowledges a duty of confidentiality
owed to the Company and agrees that he shall render the services hereunder in a
manner designed to protect the proprietary information of the Company from
improper use or disclosure. Consultant, on behalf of himself and his
affiliates, agrees that he will not, except in the performance of his duties
hereunder, during or at any time subsequent to the Term, use, divulge, furnish
or make accessible to any person or business entity (other than with the written
permission of the Company) any knowledge, technical data, information or future
plans of the Company with respect to the Company or its business, including,
without limitation, the products of the Company, licensed technology or
technology, whether in the concept or development stage, owned or being marketed
or developed by the Company on the effective date of this Agreement or during
the Term. All computer software, customer lists, price lists,
contract forms, catalogs, books, records and files acquired by Consultant or his
affiliates during the Term are acknowledged to be proprietary information of the
Company and shall not be duplicated, removed from the Company’s possession or
made use of other than in pursuit of the Company’s business, and, at the end of
the Term or upon termination of this Agreement for any reason, Consultant shall,
and shall cause his affiliates to, either destroy or deliver to the Company,
without further demand, all copies thereof which are then in his possession or
under control.
(c) Consultant
represents to the Company that the restrictions set forth in this Section 3 will
not be unduly burdensome to him, and he agrees that they are reasonable and do
not impose a greater restraint than is necessary to protect the Company’s
legitimate business interests.
(d) Consultant
and the Company agree that any breach or threatened breach of this Section 3 may
cause irreparable and continuing harm to the Company for which there will be no
adequate remedy at law and which could not be adequately compensated by monetary
damages. Accordingly, Consultant and the Company agree that, in
addition to any other remedies that the Company may have at law or in equity,
the Company shall be entitled to seek injunctive relief for any breach or
threatened or anticipated breach by Consultant. Additionally, the
Company shall be entitled to terminate this Agreement for any breach or
threatened breach of Section 3 by Consultant.
(e) In
the event Consultant breaches any provision of Section 3(a) above, the time
periods set forth therein shall be extended by the amount of time that
Consultant is in breach.
4. Miscellaneous
(a) Other
Agreements. Consultant represents and warrants to the Company
that there are no restrictions, agreements or understandings whatsoever to which
he is a party that would prevent or make unlawful his execution of this
Agreement, that would be inconsistent or in conflict with this Agreement or
Consultant’s obligations hereunder, or that would otherwise prevent, limit or
impair the performance by Consultant of his duties under this
Agreement.
(b) Successors and
Assigns. The Company may assign this Agreement to (i) any
subsidiary of the Company or (ii) any successor to all or substantially all of
its assets and business by means of liquidation, dissolution, merger,
consolidation, transfer of assets, sale of stock or otherwise. The
duties of Consultant hereunder are personal to Consultant and may not be
assigned by him but shall be binding on his heirs and estate.
(c) Governing Law and
Enforcement. This Agreement shall be governed by and construed
in accordance with the laws of the Commonwealth of Pennsylvania, without regard
to the principles of conflicts of laws. Any legal proceeding arising
out of or relating to this Agreement will be instituted in a state or federal
court in the Commonwealth of Pennsylvania, and Consultant and the Company hereby
consent to the personal and exclusive jurisdiction of such court(s) and hereby
waive any objection(s) that they may have to personal jurisdiction, the laying
of venue of any such proceeding and any claim or defense of inconvenient
forum.
(d) WAIVER OF JURY
TRIAL. TO THE FULLEST EXTENT PERMITTED BY LAW, THE PARTIES TO THIS
AGREEMENT HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY PROCEEDING
BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM
RELATING TO THE SUBJECT MATTER HEREOF. THE PARTIES TO THIS AGREEMENT
ALSO WAIVE ANY BOND OR SURETY OR SECURITY UPON SUCH BOND THAT MIGHT, BUT FOR
THIS WAIVER, BE REQUIRED OF THE OTHER PARTIES. THE SCOPE OF THIS
WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE
FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT,
INCLUDING, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER
COMMON LAW AND STATUTORY CLAIMS. THE PARTIES TO THIS AGREEMENT
ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS
RELATIONSHIP, THAT EACH PARTY HAS ALREADY RELIED ON THE WAIVER IN ENTERING INTO
THIS AGREEMENT AND THAT EACH PARTY WILL CONTINUE TO RELY ON THE WAIVER IN THEIR
RELATED FUTURE DEALINGS. THE PARTIES TO THIS AGREEMENT FURTHER
WARRANT AND REPRESENT THAT EACH HAS REVIEWED THIS WAIVER WITH LEGAL COUNSEL, AND
THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES THE JURY TRIAL RIGHTS OF SUCH PARTY
FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING,
AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS,
OR MODIFICATIONS TO THIS AGREEMENT. IN THE EVENT OF LITIGATION, THIS
SECTION MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE
COURT.
(e) Severability. If
any provision of this Agreement is determined to be invalid or unenforceable by
a court of competent jurisdiction by reason of the nature of the covenants
contained therein, such terms shall be deemed changed or reduced to enforceable
terms, but only to the extent necessary to cure such
invalidity. Further, whenever possible, each provision of this
Agreement shall be interpreted in such a manner to be effective and valid under
applicable law.
(f) Notices. Any
notice or communication required or permitted under this Agreement shall be made
in writing and (a) sent by overnight courier (such as Federal Express), or (b)
mailed by overnight U.S. express mail, return receipt requested, as
follows:
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If
to Consultant:
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C.
Xxxxx Xxxxxxx
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[Address Omitted]
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If
to the Company:
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0000
Xxxxxxxx Xxxxx
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Xxxx Xxxxxxxxxx, XX 00000
Attention: General
Counsel
or to
such other address as either party may from time to time duly specify by notice
given to the other party in the manner specified above.
(g) Entire Agreement;
Amendments; Waivers. This Agreement contains the entire
agreement and understanding of the parties hereto relating to the subject matter
hereof, and merges and supersedes all prior and contemporaneous discussions,
agreements and understandings of every nature relating to the subject matter,
whether written or oral. This Agreement may not be changed or
modified, except by an agreement in writing signed by each of the parties
hereto. The waiver by a party of any breach of any provision of this
Agreement shall not constitute or operate as a waiver of any other breach of
such provision or of any other provision hereof, nor shall any failure to
enforce any provision hereof operate as a waiver of such provision or of any
other provision hereof.
(h) Section
Headings. The headings of sections and paragraphs of this
Agreement are inserted for convenience only and shall not in any way affect the
meaning of construction of any provision of this Agreement.
(i) Counterparts;
Facsimile. This Agreement may be executed in multiple
counterparts (including by facsimile or pdf. signature), each of which will be
deemed to be an original, but all of which together will constitute but one and
the same instrument.
IN
WITNESS WHEREOF, each of the parties to this Agreement has duly executed this
Agreement as of the date first above written.
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/s/ C. Xxxxx Xxxxxxx
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C.
Xxxxx Xxxxxxx
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KULICKE
AND XXXXX INDUSTRIES, INC.
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By:
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/s/ Xxxxx Xxxxxxxx
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Name: Xxxxx
Xxxxxxxx
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Title: President
and Chief Executive
Officer
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