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Exhibit 10.10
Employment Agreement
This Agreement is made and entered into as of the 1st day of
September, 1996, by and between Littelfuse, Inc., a Delaware
corporation (hereinafter referred to as the OCompanyO), and
Howard B. Witt (hereinafter referred to as the OExecutiveO);
Witnesseth:
Whereas, the Company desires to retain the services of the
Executive in the capacities herein set forth and the Executive
desires to be employed by the Company in such capacities;
Now, Therefore, in consideration of the premises and the
mutual covenants herein contained, the Company and the Executive
hereby agree as follows:
1. Employment. The Company hereby employs the Executive
and the Executive hereby accepts employment with the Company upon
the terms and conditions hereinafter set forth.
2. Term. Subject to the provisions for earlier
termination hereinafter set forth, the term of employment
hereunder shall commence on the date hereof and end on the day
preceding the fifth anniversary of the date hereof (hereinafter
said five-year period is referred to as the OEmployment PeriodO).
3. Compensation. The Company agrees to provide the
Executive with the following compensation for all services
rendered by the Executive under this Agreement:
3.1. Salary. During the Employment Period, the Company
shall pay to the Executive an annual salary of no less than
Three Hundred Ten Thousand Dollars ($310,000), payable
monthly. Commencing with calendar year 1997, the Board of
Directors of the Company (or the Compensation Committee of
the Board of Directors of the Company) shall review the
compensation payable to the Executive at least once each
calendar year during the Employment Period.
3.2. Bonus. During the Employment Period, the Company
shall pay to the Executive such bonuses as the Board of
Directors of the Company may from time to time determine
based upon the evaluation of the ExecutiveOs performance by
the Board of Directors of the Company.
3.3. Other Benefits. To the extent that the Executive
is otherwise eligible to participate therein, during the
Employment Period the Executive shall be entitled to
participate in and receive the benefits of any and all stock
option, pension, retirement, vacation, profit sharing,
health, disability, insurance and other benefit plans,
programs and policies, if any, which may be maintained by
the Company from time to time during the term hereof,
including, without limitation, any supplemental executive
retirement plan and executive loan program.
4. Duties. The Executive shall, subject to election and
removal by the Board of Directors of the Company in its sole
discretion, serve as Chairman, President and Chief Executive
Officer of the Company. As such, the ExecutiveOs duties and
responsibilities shall include, but shall not be limited to:
(i) Primary responsibility for the day-to-day
management of the Company;
(ii) Primary responsibility for ensuring that all
orders and resolutions of the Board of Directors of the
Company are implemented;
(iii) Primary responsibility for reporting to the Board
of Directors of the Company respecting the activities of the
Company; and
(iv) Primary responsibility for supervising the
executive management of the Company.
The Executive shall also be responsible for the performance of
such other duties and responsibilities as may be prescribed from
time to time by the Board of Directors of the Company.
5. Extent of Service. During the Employment Period, the
Executive agrees to devote reasonable attention and time to the
business and affairs of the Company and its subsidiaries and, to
the extent necessary to discharge the responsibilities assigned
to the Executive hereunder, to use the ExecutiveOs reasonable
best efforts to perform faithfully and efficiently such
responsibilities. During the Employment Period it shall not be a
violation of this Agreement for the Executive to (i)Eserve on
corporate, civic or charitable boards or committees, (ii)Edeliver
lectures, fulfill speaking engagements or teach at educational
institutions, and (iii)Emanage personal investments, so long as
such activities do not significantly interfere with the
performance of the ExecutiveOs responsibilities as an employee of
the Company in accordance with this Agreement. It is expressly
understood and agreed that to the extent that any such activities
have been conducted by the Executive prior to the date hereof,
the continued conduct of such activities (or the conduct of
activities similar in nature and scope thereto) during the
Employment Period shall not thereafter be deemed to interfere
with the performance of the ExecutiveOs responsibilities to the
Company.
6. Working Facilities. The Executive shall be furnished
with office space, furnishings, secretarial assistance and such
other facilities and services as the Board of Directors of the
Company shall decide are reasonably necessary for the performance
of the ExecutiveOs duties. The Company agrees that the Executive
shall not be required to relocate to an office further than 20
miles from the CompanyOs Des Plaines, Illinois facility without
the ExecutiveOs prior written consent.
7. Expenses. The Company will reimburse the Executive for
such reasonable business expenses which are incurred by the
Executive in promoting the business of the Company and its
subsidiaries upon the presentation by the Executive from time to
time (and at least monthly) of an itemized account of such
expenditures containing such detail as may be required by the
Board of Directors of the Company.
8. Termination of Employment.
8.1. Disability. If the Board of Directors of the
Company determines in good faith that the Disability of the
Executive has occurred during the Employment Period
(pursuant to the definition of Disability set forth below),
the Board of Directors of the Company may give written
notice to the Executive of its intention to terminate the
ExecutiveOs employment. In such event, the ExecutiveOs
employment with the Company shall terminate effective on the
30th day after delivery of such notice to the Executive (the
ODisability Effective DateO), provided that, within the 30
days after such delivery, the Executive shall not have
returned to full-time performance of the ExecutiveOs duties.
For purposes of this Agreement, ODisabilityO shall mean the
absence of the Executive from the ExecutiveOs duties with
the Company on a full-time basis for 180 consecutive
business days as a result of incapacity due to mental or
physical illness which is determined to be total and
permanent by a physician selected by the Company or its
insurers and reasonably acceptable to the Executive or the
ExecutiveOs legal representative.
8.2. Cause. The Company may terminate the ExecutiveOs
employment during the Employment Period for Cause. For
purposes of this Agreement, OCauseO shall mean:
(i) the willful and continued failure of the
Executive to perform substantially the ExecutiveOs
duties with the Company (other than any such failure
resulting from incapacity due to physical or mental
illness), after a written demand for substantial
performance is delivered to the Executive by the Board
of Directors of the Company which specifically
identifies the manner in which the Board of Directors
of the Company believes that the Executive has not
substantially performed the ExecutiveOs duties and such
failure is not cured within sixty (60) calendar days
after receipt of such written demand; or
(ii) the willful engaging by the Executive in
illegal conduct or gross misconduct which is materially
and demonstrably injurious to the Company.
For purposes of this provision, any act or failure to act on
the part of the Executive in violation or contravention of
any order, resolution or directive of the Board of Directors
of the Company shall be considered OwillfulO unless such
order, resolution or directive is illegal or in violation of
the certificate of incorporation or by-laws of the Company;
provided, however, that no other act or failure to act on
the part of the Executive shall be considered Owillful,O
unless it is done, or omitted to be done, by the Executive
in bad faith or without reasonable belief that the
ExecutiveOs action or omission was in the best interests of
the Company. Any act, or failure to act, based upon
authority given pursuant to a resolution duly adopted by the
Board of Directors of the Company or based upon the advice
of counsel for the Company shall be conclusively presumed to
be done, or omitted to be done, by the Executive in good
faith and in the best interests of the Company. The
cessation of employment of the Executive shall not be deemed
to be for Cause unless and until there shall have been
delivered to the Executive a copy of a resolution duly
adopted by the affirmative vote of not less than a majority
of the entire membership of the Board of Directors of the
Company at a meeting of the Board of Directors of the
Company called and held for such purpose (after reasonable
notice is provided to the Executive and the Executive is
given an opportunity, together with counsel, to be heard
before the Board of Directors of the Company), finding that,
in the good faith opinion of the Board of Directors of the
Company, the Executive is guilty of the conduct described in
subparagraph (i) or (ii) above, and specifying the
particulars thereof in detail.
8.3. Good Reason. The ExecutiveOs employment may be
terminated by the Executive for Good Reason. For purposes
of this Agreement, OGood ReasonO shall mean:
(i) the Executive is not elected, or is removed,
as the Chairman, President or Chief Executive Officer
of the Company;
(ii) the assignment by the Board of Directors of
the Company to the Executive of any duties inconsistent
in any respect with the ExecutiveOs position,
authority, duties or responsibilities as contemplated
by SectionE4 hereof, or any other action by the Board
of Directors of the Company which results in a
diminution in such position, authority, duties or
responsibilities, excluding for this purpose an
isolated, insubstantial and inadvertent action not
taken in bad faith and which is remedied by the Board
of Directors of the Company promptly after receipt of
notice thereof given by the Executive;
(iii) any failure by the Company to comply with any
of the provisions of this Agreement, other than an
isolated, insubstantial and inadvertent failure not
occurring in bad faith and which is remedied by the
Company promptly after receipt of notice thereof given
by the Executive; or
(iv) any purported termination by the Board of
Directors of the Company of the ExecutiveOs employment
otherwise than as expressly permitted by this
Agreement.
8.4. Notice of Termination. Any termination by the
Company for Cause, or by the Executive for Good Reason,
shall be communicated by Notice of Termination to the other
party hereto given in accordance with SectionE12.8 hereof.
For purposes of this Agreement, a ONotice of TerminationO
means a written notice which (i)Eindicates the specific
termination provision in this Agreement relied upon, (ii)Eto
the extent applicable, sets forth in reasonable detail the
facts and circumstances claimed to provide a basis for
termination of the ExecutiveOs employment under the
provision so indicated and (iii)Eif the Date of Termination
(as defined below) is other than the date of receipt of such
notice, specifies the termination date (which date shall be
not more than 30 days after the giving of such notice). The
failure by the Executive or the Company to set forth in the
Notice of Termination any fact or circumstance which
contributes to a showing of Good Reason or Cause shall not
waive any right of the Executive or the Company,
respectively, hereunder or preclude the Executive or the
Company, respectively, from asserting such fact or
circumstance in enforcing the ExecutiveOs or the CompanyOs
rights hereunder.
8.5. Date of Termination. As used in this Agreement,
ODate of TerminationO means (i)Eif the ExecutiveOs
employment is terminated by the Company for Cause, or by the
Executive for Good Reason, the date of delivery of the
Notice of Termination or any later date specified therein,
as the case may be, (ii)Eif the ExecutiveOs employment is
terminated by the Company other than for Cause or
Disability, the Date of Termination shall be the date on
which the Company notifies the Executive of such termination
and (iii)Eif the ExecutiveOs employment is terminated by
reason of death or Disability, the Date of Termination shall
be the date of death of the Executive or the Disability
Effective Date, as the case may be.
9. Obligations of the Company upon Termination.
9.1. Good Reason; Other Than for Cause. If, during the
Employment Period, the Company shall terminate the
ExecutiveOs employment other than for Cause or Disability or
the Executive shall terminate his employment for Good
Reason, such termination shall constitute a breach of
contract by the Company and during the period commencing on
the date of such termination and ending on the fifth
anniversary of the date hereof the Company shall, subject to
the provisions of SectionE9.2 hereof: (i) continue to pay
the Executive the salary provided in Section 3.1 hereof,
payable monthly, at the same annual level as was payable to
the Executive immediately prior to such termination; (ii)
continue to provide the Employee with all of the benefits
described in Section 3.3 hereof at the same levels as were
provided to the Executive prior to such termination (except
that no further stock options shall be granted); (iii) pay
to the Executive a bonus on each anniversary of the date the
most recent bonus was paid to the Executive prior to such
termination in an amount equal to the average amount of the
bonuses paid to the Executive in the three calendar years
preceding the calendar year wherein such termination occurs;
(iv) continue to make contributions on behalf of the
Executive to all pension, retirement, supplemental executive
retirement and other plans and programs maintained by the
Company and in which the Executive participated prior to
such termination equal to the amount of the largest
contribution with respect to each such plan or program which
the Company contributed on behalf of the Executive during
any of the three calendar years preceding the calendar year
wherein such termination occurs; (v) amend any documents
which govern any unexercised stock options which were held
by the Executive immediately prior to the termination of his
employment to provide that all such unexercised stock
options, to the extent not then exercisable, shall become
immediately exercisable and not forfeited as a result of
said termination of employment, and that all such
unexercised stock options shall continue to be exercisable
by the Executive during the period of time from the date of
such termination of employment to and including the 90th day
after the fifth anniversary of the date hereof; and (vi) be
liable to the Executive for any and all other damages
sustained by the Executive as a result of any such breach of
contract.
9.2. Mitigation of Damages. If the ExecutiveOs
employment is terminated pursuant to Section 9.1 hereof, the
Executive shall have the duty to use his reasonable efforts
to mitigate his damages by seeking employment comparable to
his employment with the Company with respect to position,
compensation and geographic location.
9.3. Death. If the ExecutiveOs employment is
terminated by reason of the ExecutiveOs death during the
Employment Period, this Agreement shall terminate without
further obligations by the Company to the ExecutiveOs legal
representatives under this Agreement other than for payment
of the compensation set forth under SectionE3 hereof accrued
up to the date of the ExecutiveOs death.
9.4. Disability. If the ExecutiveOs employment is
terminated by reason of the ExecutiveOs Disability during
the Employment Period, this Agreement shall terminate
without further obligations by the Company to the Executive
under this Agreement other than for payment of the
compensation set forth in SectionE3 hereof accrued up to the
Date of Termination.
9.5. Cause; Other than for Good Reason. If the
ExecutiveOs employment shall be terminated for Cause during
the Employment Period, this Agreement shall terminate
without further obligations of the Company to the Executive
under this Agreement other than the payment of the
compensation set forth in SectionE3 hereof accrued up to the
Date of Termination. If the Executive voluntarily
terminates his employment during the Employment Period,
excluding a termination for Good Reason, this Agreement
shall terminate without further obligations of the Company
to the Executive under this Agreement other than the payment
of the compensation set forth in SectionE3 hereof accrued up
to the Date of Termination.
10. Nonexclusivity of Rights. Nothing in this Agreement
shall prevent or limit the ExecutiveOs continuing or future
participation in any plan, program, policy or practice provided
by the Company or any of its affiliated companies and for which
the Executive may qualify, nor shall anything herein limit or
otherwise affect such rights as the Executive may have under any
contract or agreement with the Company or any of its affiliated
companies. Amounts which are vested benefits or which the
Executive is otherwise entitled to receive under any plan,
policy, practice or program of or any contract or agreement with
the Company or any of its affiliated companies at or subsequent
to the Date of Termination shall be payable in accordance with
such plan, policy, practice or program or contract or agreement,
except as explicitly modified by this Agreement.
11. Restrictive Covenants.
11.1. During the period that the Executive is employed
by the Company and, unless the Executive terminates his
employment for Good Reason or the Company terminates his
employment other than for Cause, for a period of two (2)
years after the Date of Termination, if said Date of
Termination occurs prior to the expiration of the fifth
anniversary of the date hereof, or for a period of one (1)
year after the Date of Termination, if said Date of
Termination occurs on or after the fifth anniversary of the
date hereof (hereinafter said two-year or one-year period,
whichever becomes applicable, is referred to as the
ORestrictive PeriodO), the Executive agrees that the
Executive will not (i) own or have any interest, directly or
indirectly, in, or act as an officer, director, employee,
consultant, agent or representative of, or assist in any way
or in any capacity, any Competitor (as such term is
hereinafter defined); or (ii) directly or indirectly entice,
induce or in any manner influence any person who is, or
shall be, in the service of the Company or any of its
Affiliates (as such term is hereinafter defined) to leave
such service for the purpose of owning or having any
interest, directly or indirectly, in, or being employed by
or associated with any Competitor. Notwithstanding the
foregoing, the Executive may beneficially own up to one
percent (1%) of any publicly traded equity securities of any
entity which competes with the Company or any of its
Affiliates provided such ownership is for investment
purposes only. As used in this Section 11, the term
OCompetitorO shall include any corporation, partnership,
sole proprietorship, joint venture, limited liability
company, association or other business organization (x)Ethat
offers at any time during the Restrictive Period any product
or product category offered at any time during the
Restrictive Period by the Company and which product or
product category of the Company exceeds 10% of the gross
revenues or 10% of the pre-tax earnings of the Company on a
consolidated basis during the most recent fiscal year of the
Company ending prior to the Date of Termination or during
any other fiscal year of the Company ending during the
Restrictive Period, and (y) that conducts business in any
location within the United States of America. As used in
this Section 11, the term OAffiliatesO shall include any
entity in which the Company, or any entity which owns,
directly or indirectly, a majority ownership interest in the
Company, owns, directly or indirectly, at least a majority
interest.
11.2. The Executive agrees that all customer, supplier
and distributor lists, financial data, computer software
programs, source codes, plans, contracts, agreements,
literature, manuals, catalogs, brochures, books, records,
maps, correspondence and other materials furnished to the
Executive by the Company, or any of its Affiliates, or
secured through the efforts of the Executive, relating to
the business conducted by the Company or any of its
Affiliates, are and shall remain the property of the
Company, and/or its Affiliates, and the Executive agrees to
deliver all such materials, including all copies thereof, to
the Company upon the termination of the ExecutiveOs
employment hereunder, or at any other time at the CompanyOs
request.
11.3. The Executive agrees that the Executive will not
at any time during or after the ExecutiveOs employment with
the Company reveal, divulge or make known to any person,
firm or corporation any trade secrets or confidential
business information relating to the business of the Company
or any of its Affiliates, and will retain all such knowledge
and information in trust in a fiduciary capacity for the
sole benefit of the Company, its Affiliates and their
respective successors and assigns.
11.4. In the event that any court shall finally hold
that the time or territory or any other provision of this
Section 11 constitutes an unreasonable restriction against
the Executive, the Executive agrees that the provisions
hereof shall not be rendered void but shall apply as to such
time, territory and other extent as such court may
judicially determine or indicate constitutes a reasonable
restriction under the circumstances involved. The Company
and the Executive each request that any such court which
holds that any of the provisions of this Section 11
constitutes an unreasonable restriction against the
Executive make a determination of what would constitute a
reasonable restriction under the circumstances involved and
to reform this Agreement accordingly.
11.5. Except as expressly provided in any other written
agreement between the Company and the Executive, the
provisions of this Section 11 shall survive the termination
of the term of this Agreement and the termination of the
ExecutiveOs employment with the Company and shall run to and
inure to the benefit of the Company, its Affiliates and
their respective successors and assigns.
12. General.
12.1. This Agreement supersedes all prior agreements and
understandings between the Executive and the Company or any
of its Affiliates or their respective directors, officers,
shareholders, employees, attorneys, agents or
representatives, and constitutes the entire Agreement
between the parties, respecting the subject matter hereof
and there are no representations, warranties or commitments
other than those expressed herein.
12.2. The Executive represents and warrants to the
Company that the Executive is not a party to or bound by,
and the employment of the Executive by the Company or the
ExecutiveOs disclosure of any information to the Company or
its utilization of such information will not violate or
breach any, employment, retainer, consulting, license, non-
competition, non-disclosure, trade secrets or other
agreement or understanding between the Executive and any
other person, partnership, corporation, joint venture,
association or other entity.
12.3. No modification or amendment of, or waiver under,
this Agreement shall be valid unless in writing and signed
by the Executive and an officer of the Company pursuant to
express authority granted by the Board of Directors of the
Company.
12.4. The Executive agrees to indemnify the Company and
its Affiliates against, and to hold the Company and its
Affiliates harmless from, any and all claims, lawsuits,
losses, damages, expenses, costs and liabilities, including,
without limitation, court costs and attorneysO fees, which
the Company or any of its Affiliates may sustain as a result
of, or in connection with, either directly or indirectly,
the ExecutiveOs breach or violation of any of the provisions
of this Agreement; provided, however, that the Executive
shall not be liable to the Company for any lost profits of
the Company resulting from any such breaches or violations
which are primarily based upon or related to the poor
performance of any of the duties of the Executive described
in Section 4 hereof and which do not involve any intentional
misconduct or malfeasance on the part of the Executive.
12.5. The Company agrees to indemnify the Executive
against, and to hold the Executive harmless from, any and
all claims, lawsuits, losses, damages, expenses, costs and
liabilities, including, without limitation, court costs and
attorneysO fees, which the Executive may sustain as a result
of, or in connection with, either directly or indirectly,
the CompanyOs breach or violation of any of the provisions
of this Agreement.
12.6. The Executive hereby agrees that in the event of
the violation by the Executive of any of the provisions of
this Agreement, the Company will be entitled, if it so
elects, to institute and prosecute proceedings at law or in
equity to obtain damages with respect to such violation or
to enforce the specific performance of this Agreement by the
Executive or to enjoin the Executive from engaging in any
activity in violation hereof.
12.7. The waiver by the Company or the Executive of a
breach of any provision of this Agreement by the other shall
not operate or be construed as a waiver of any subsequent
breach.
12.8. Each notice, request, demand, approval or other
communication which may be or is required to be given under
this Agreement shall be in writing and shall be deemed to
have been properly given when delivered personally at the
address set forth below for the intended party during normal
business hours at such address, when sent by facsimile or
other electronic transmission to the respective facsimile
transmission numbers of the parties set forth below with
telephone confirmation of receipt, or when sent by
recognized overnight courier or by United States registered
or certified mail, return receipt requested, postage
prepaid, addressed as follows:
If to the Company:
Littelfuse, Inc.
800 E. Northwest Highway
Des Plaines, Illinois 60016
Attention: The Directors of the Company
(other than the Executive)
Facsimile: (847) 824-3865
Confirm: (847) 391-0304
If to the Executive:
Howard B. Witt
93-A Bateman Road
Barrington Hills, Illinois 60010
Facsimile: _________________
Confirm: (847) 382-5821
Notices shall be given to such other addressee or address,
or both, or by way of such other facsimile transmission
number, as a particular party may from time to time
designate by written notice to the other party hereto. Each
notice, request, demand, approval or other communication
which is sent in accordance with this Section shall be
deemed delivered, given and received for all purposes of
this Agreement as of three business days after the date of
deposit thereof for mailing in a duly constituted United
States post office or branch thereof, one business day after
deposit with a recognized overnight courier service or upon
confirmation of receipt of any facsimile transmission.
Notice given to a party hereto by any other method shall
only be deemed to be delivered, given and received when
actually received in writing by such party.
12.9. The Company agrees to reimburse the Executive for
up to $5,000 for any reasonable attorneysO fees or other
expenses incurred by the Executive in connection with the
negotiation, preparation and review of this Agreement.
12.10. This Agreement shall inure to the benefit of and
be binding upon the Company and the Executive and their
respective heirs, personal representatives, successors and
assigns.
12.11. This Agreement shall be governed by and construed
in accordance with the laws of the State of Illinois.
12.12. This Agreement may be executed in two or more
counterparts, all of which taken together shall constitute
one and the same agreement.
In Witness Whereof, the parties hereto have executed this
Employment Agreement as of the day and year first above written.
Littelfuse, Inc. Executive:
By______________________________
__________________________________
Its______________________________ Howard B. Witt