Retention Agreement - Peter J. Tallian



 Exhibit 10.5 
 

 
 March 20, 2009 
 Peter J.
Tallian 
 RETENTION AGREEMENT 
 Dear
Peter: 
 BTU International, Inc. (the “Company”) wants to encourage you to become an employee of the Company and values your
association with us as an executive officer. To that end, the Company is offering you the assurance of severance pay, as described below, in the event that your employment is terminated in specific circumstances. Therefore, the purpose of this
letter is to confirm the agreement between you and the Company on the following terms: 
  

	1.	Severance Benefits. 

  

	 	a.	 In the event that the Company terminates your employment other than for Cause (as defined below in Section 2(b)): (i) the Company will continue to pay you
your base salary, at the rate in effect on the date of termination, until the earlier of (A) the conclusion of a period equal to six (6) months plus one (1) month for each year of completed service, up to a maximum of twelve
(12) months, or (B) the date you commence employment that provides you with substantially equivalent base salary and bonus opportunity to the last position you held at the Company (the “Severance Pay Period”); (ii) for the
duration of the Severance Pay Period, subject to any employee contribution applicable to active employees, the Company shall continue to contribute to the premium cost of your participation and that of your eligible dependents in the Company’s
group medical and dental plans, provided that you and your dependents are entitled to continue such participation under applicable law and plan terms; and (iii) provided you have worked for at least three (3) months during the year in
which termination occurs, at the time bonuses are payable to executives of the Company generally for the year in which termination occurs (but in no event later than two and one-half months following the close of the fiscal year for which the bonus
was earned), the Company will pay you, in its discretion, a pro-rata portion of the bonus (if any) to which you would have been entitled had your employment continued through the end of the year, such pro rata portion to be based upon the number of
days you worked prior to termination divided by 233 (the “Pro Rata Bonus”); provided, however, that no payments will be made by the Company pursuant to this Section 1(a) until after the effective date of the Release of Claims
described below. Salary continuation payments to which you may be entitled hereunder shall be 












					
	Peter J. Tallian	  	- 2 -	  	March 20, 2009

  


	 	 
payable in accordance with the Company’s standard payroll practices and shall commence on the next regular Company payday for executives that is at
least 5 business days following the later of the effective date of the Release of Claims or the date the Release of Claims, signed by you, is received by the Company, but with the first payment being retroactive to the date following the date of
termination. 


  

	 	b.	In the event that within one year of a Change in Control (as defined below in Section 2(c)) the Company terminates your employment other than for Cause or you terminate your
employment for Good Reason (as defined below in Section 2(d)), by providing notice to the Company of the condition giving rise to the Good Reason no later than thirty (30) days following the occurrence of the condition, giving the Company
thirty (30) days to remedy the condition, and by terminating employment for Good Reason within thirty (30) days thereafter if the Company fails to remedy the condition, then: within ten (10) days following the effective date of the
Release of Claims described below, the Company will provide you with one lump-sum payment in the amount representing: (i) six (6) months plus two (2) months for each year of service completed, up to a maximum of twelve
(12) months, of your base salary at the rate in effect on the date of termination; plus (ii) provided you have worked at least three (3) months during the year in which termination occurs, the Pro Rata Bonus, which shall be calculated
as if you and the Company met but did not exceed the performance targets for the year in which termination occurs, and shall be based upon the number of days you worked prior to termination divided by 233. For the avoidance of doubt, (Y) if the
Company terminates your employment other than for Cause within one year of a Change in Control, payments to you pursuant to this Section 1(b) shall be in lieu of, and not in addition to, payments pursuant to Section 1(a) hereof, and
(Z) no payments will be made by the Company pursuant to this Section 1(b) until after the effective date of the Release of Claims described below. 

  

	 	c.	 In the event that a Change of Control (as defined below in Section 2(c)) occurs, and (i) you remain employed by the Company on the date that is six
(6) months following the consummation of the Change of Control (the “Eligibility Date”), or (ii) the Company terminates your employment other than for Cause following the Change of Control but prior to the Eligibility Date, the
Company will provide you, within ten (10) days following the Eligibility Date or the effective date of the Release of Claims, as applicable, with either (A) a lump-sum cash payment in the amount equal to the value of 7,000 shares of the
Company’s common stock, such value to be determined as of the date the Change of Control is consummated, or (B) at the Company’s option, if following the Change of Control the Company is the surviving corporation, 7,000 shares of the
Company’s common stock (the “Retention Bonus”). For the avoidance of doubt, if you terminate your employment 



  

 

 










					
	Peter J. Tallian	  	- 3 -	  	March 20, 2009

  


	 	 
for any reason prior to the Eligibility Date, or if the Company terminates your employment for Cause prior to the Eligibility Date, you will not be eligible
for the Retention Bonus or any portion thereof. For the avoidance of doubt, the Retention Bonus shall be in addition to any amounts due under Section 1(a) or (b). 


  

	 	d.	In the event your employment is terminated in accordance with Section 1(a) or 1(b) above, and during your employment part of your compensation was earned on a commission basis:
(i) the Company will pay you, at the time such commissions otherwise would have been paid to you had you remained an active employee of the Company, all commission payments that had become due and payable to you prior to the date of termination
but that had not yet been paid to you; and (ii) the Company will pay you, in one lump-sum payment within ten (10) days following the effective date of the Release of Claims described below, an amount representing fifty percent
(50%) of the total commissions that were paid to you for the calendar year prior to the year in which termination occurs. 

  

	 	e.	Notwithstanding anything to the contrary in this Agreement, if at the time of your separation from service you are a “specified employee”, as hereinafter defined, no
payment shall be made to you before the date which is six months after you separate from service ((within the meaning of Section 409A(a)(2)(B)(i) of the Internal Revenue Code of 1986, as amended)), except to the extent of amounts that do not
constitute a deferral of compensation within the meaning of Treasury regulations 1.409A-1(b) (including without limitation by reason of the safe harbor set forth in l.409A-1(b)(9)(iii), benefits which qualify as excepted welfare benefits pursuant to
Treasury regulations 1.409A-1(a)(5), or other amounts or benefits that are not subject to the requirements of Section 409A). For purposes of Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations and guidance
issued thereunder (“Section 409A”), all references to termination of employment or similar terms, when used in a context that bears on the payment or timing of payment of any amounts or benefits that could constitute “nonqualified
deferred compensation” within the meaning of Section 409A, shall be construed to require a “separation from service” (as defined in Section 1.409A-1(h) of the Treasury regulations), and the Company may, but need not, elect
in writing, subject to the applicable limitations under Section 409A, any of the special elective rules prescribed in Section 1.409A-1(h) of the Treasury Regulations for purposes of determining whether a “separation from service”
has occurred, which election shall be deemed part of this Agreement. In addition, each payment made under this Agreement shall be treated as a separate payment, and the right to a series of installment payments under this Agreement is to be treated
as a right to a series of separate payments. For purposes of this Section, the term “specified employee” shall mean an individual determined by the Company to be a specified employee as defined in subsection (a)(2)(B)(i) of
Section 409A. 

  

 

 










					
	Peter J. Tallian	  	- 4 -	  	March 20, 2009

  


	2.	Definitions. For the purposes of this Agreement, the following definitions shall apply: 

  

	 	a.	“Affiliates” means all persons and entities directly or indirectly controlling, controlled by or under common control with the Company, where control may be by either
management authority or equity interest. 

  

	 	b.	“Cause” means (i) your material failure to perform (other than by reason of disability) or material negligence in the performance of your duties and responsibilities
for the Company or any of its Affiliates; (ii) commission by you of fraud, embezzlement or theft with respect to the Company or its Affiliates; or (iii) commission by you of any felony or any other crime involving dishonesty or moral
turpitude. A termination for Cause shall be communicated by a written notice to you, which notice shall set forth the specific facts and circumstances claimed to provide a basis for termination of your employment for Cause and provide a period of 30
days to cure such failure of performance (if capable of cure); provided, that the Company will not have to provide more than one notice and opportunity to cure with respect to any multiple, repeated, related or substantially similar events or
circumstances. 

  

	 	c.	“Change of Control” means (i) any entity or “group” (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934 as
amended (tile “Exchange Act”)), other than the Company or any of its Affiliates or any trustee or other fiduciary holding securities under an employee benefit plan of the Company or one of its Affiliates, becomes a beneficial owner (within
the meaning of Rule 13d-3 as promulgated under the Exchange Act), directly or indirectly, in one or a series of transactions, of securities representing more than fifty percent (50%) of the combined voting power of the Company’s then
outstanding securities; (H) any merger or consolidation involving the Company (other than a merger of a subsidiary with the Company); or (iii) any sale or other disposition by the Company of all or substantially all of the assets of the
Company other than to one or more of the Company’s Affiliates or any trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its Affiliates. 

  

	 	d.	“Good Reason” means, without your consent, the occurrence of one or more of the following events: (i) the material reduction of your base salary by the Company
without your consent (other than a reduction applicable to all Company managerial employees); (H) the material diminution in the scope of your duties, responsibilities or authority by the Company; or (iii) the material failure by the
Company to comply with any of the material provisions of this Agreement. 

  

 

 










					
	Peter J. Tallian	  	- 5 -	  	March 20, 2009

  


	 	e.	“Products” means all products planned, researched, developed, manufactured, sold, licensed, leased or otherwise distributed or put into use by the Company or any of its
Affiliates, together with all services provided or planned by the Company or any of its Affiliates, during your employment. 

  

	3.	Release of Claims. In order to be eligible to receive any of the severance pay and benefits under Section 1(a), 1(b), 1(c)(ii) and 1(d)(ii) of this Agreement, you must
execute a timely and valid release of claims in favor of the Company, in the form attached hereto as Exhibit 1, and you must not revoke the release of claims (the “Release of Claims”). The Release of Claims shall be delivered to you not
later than ten (10) business days following the date of termination, and you shall be required to execute it, if at all, not later than the date determined by the Company to be the last day of the period it must provide to you by law to
consider the Release of Claims. 

  

	4.	Confidentiality and Restricted Activities. 

  

	 	a.	You acknowledge that the Company and its Affiliates continually develop Confidential Information, that you may develop Confidential Information for the Company or its Affiliates and
that you may learn of Confidential Information during the course of employment. You will comply with the policies and procedures of the Company and its Affiliates for protecting Confidential Information and shall not disclose to any person or entity
or use, other than as required by applicable law or for the proper performance of your duties and responsibilities to the Company and its Affiliates, any Confidential Information obtained by you incident to your employment or other association with
the Company or any of its Affiliates. You understand that this restriction shall continue to apply after your employment terminates, regardless of the reason for such termination. 

  

	 	b.	You acknowledge that in your employment with the Company you will have access to confidential information of the Company and its Affiliates which, if disclosed, would assist in
competition against them and that you will also generate goodwill for the Company and its Affiliates in the course of your employment. Therefore, you agree that the following restrictions on your activities during and after your employment with the
Company are necessary to protect the goodwill, confidential information and other legitimate interests of the Company and its Affiliates: 

  

	 	i.	While you are employed by the Company and for the period of twelve (12) months after your employment terminates, you shall not, directly or indirectly, own, manage, operate,
control or participate in any manner in the ownership, management, operation or control of, or be connected as an officer, employee, partner, director, principal, consultant, agent or otherwise with, or have any financial interest in, or aid or
assist anyone else in the conduct of, any business, venture or activity which competes with any Business of the Company or its Affiliates, in the United States or any other geographic area where such Business is being conducted or actively being
planned to be conducted at or prior to the last day of your employment. For the purposes of this Section 4, the Business of the Company and its Affiliates shall include all Products and your undertaking shall encompass all items, products and
services that may be used in substitution for Products. Notwithstanding the foregoing, ownership of not more than five percent of any class of equity security of any publicly held corporation shall not, of itself, constitute a violation of this
Section 4. 

  

 

 










					
	Peter J. Tallian	  	- 6 -	  	March 20, 2009

  


	 	ii.	You agree that while you are employed by the Company and during the two years after your employment terminates, you will not hire or attempt to hire any employee of the Company or
any of its Affiliates, assist in such hiring by any Person, encourage any such employee to terminate his or her relationship with the Company or any of its Affiliates, or solicit or encourage any customer or vendor of the Company or any of its
Affiliates to terminate or diminish its relationship with them, or, in the case of a customer, to conduct with any Person any business or activity which such customer conducts or could conduct with the Company or any of its Affiliates.


  

	 	c.	In signing this Agreement, you give the Company assurance that you have carefully read and considered all the terms and conditions of this Agreement, including the restraints
imposed on you under this Section 4. You agree without reservation that these restraints are necessary for the reasonable and proper protection of the Company and its Affiliates and that each and every one of the restraints is reasonable in
respect to subject matter, length of time and geographic area. You further agree that, were you to breach any of the covenants contained in this Section 4, the damage to the Company and its Affiliates would be irreparable. You therefore agree
that the Company, in addition to any other remedies available to it, shall be entitled to preliminary and permanent injunctive relief against any breach or threatened breach by you of any of those covenants, without having to post bond, together
with an award of reasonable attorneys’ fees incurred in securing such relief. You and the Company further agree that, in the event that any provision of this Section 4 is determined by any court of competent jurisdiction to be
unenforceable by reason of its being extended over too great a time, too large a geographic area or too great a range of activities, that provision shall be deemed to be modified to permit its enforcement to the maximum extent permitted by law.


  

 

 










					
	Peter J. Tallian	  	- 7 -	  	March 20, 2009

  


	5.	Payment Schedule and Withholding. Payments by the Company under this agreement shall be reduced by all taxes and other amounts which the Company is required to withhold under
applicable law. 

  

	6.	Not a Contract of Employment. This agreement is not a contract of employment for a definite term and does not otherwise restrict your right, or that of the Company, to
terminate your employment, with or without notice or cause. Notwithstanding the foregoing, you agree to provide the Company with 30 days’ written notice prior to terminating your employment with the Company. The Company may elect to waive this
period of notice, or any portion thereof, and, if the Company so elects, the Company will pay you your base salary for the notice period (or for any remaining portion of the notice period). 

  

	7.	Miscellaneous. 

  

	 	a.	This is the entire agreement between you and the Company, and replaces all prior communications, agreements and understandings, written or oral, with respect to termination of your
employment and all related matters (provided that all standard form of Company confidentiality, assignment of invention and similar agreements that you have signed shall continue to be in fill force and effect). No modification or amendment of this
Agreement shall be valid unless in writing and signed by you and a duly authorized representative of the Company. The headings and captions in this Agreement are for convenience only and in no way define or describe the scope or content of any
provision of this Agreement. This Agreement may be executed in two or more counterparts, each of which shall be an original and all of which together shall constitute one and the same instrument. This is a Massachusetts contract and shall be
governed and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to the conflict of laws principles thereof. 

  

	 	b.	 Neither you nor the Company may make any assignment of this Agreement or any interest in it, by operation of law or otherwise, without the prior written consent of
the other; provided, however, that in the event that the Company shall hereafter affect a reorganization, consolidate with, or merge into any entity or transfer all or substantially all of its properties or assets to any entity, the Company may (and
will use its reasonable efforts to) assign its rights and obligations under this Agreement to such entity, and, if the Company does assign its rights and obligations under 



  

 

 










					
	Peter J. Tallian	  	- 8 -	  	March 20, 2009

  


	 	 
this Agreement, the entity shall be bound by the terms of this Agreement. This Agreement shall inure to the benefit of and be binding upon you and the
Company, and each of our representative successors, executors, administrators, heirs and permitted assigns. 


 If the terms of this
Agreement are acceptable to you, please sign, date and return it to me no later than March 21, 2009. At the time you sign and return it, this Agreement will take effect as a legally binding agreement between you and the Company on the basis set
forth above. The enclosed copy of this Agreement, which you should also sign and date, is for your records. 
  

									
		 		 		 	Sincerely,
				
		 		 		 	BTU International, Inc.
					
		 		 		 	By:	 	 /s/ Paul van der Wansem

		 		 		 		 	Paul van der Wansem
		 		 		 		 	Chief Executive Officer
				
	Accepted and agreed:	 		 		 	
				
	 /s/ Peter J. Tallian
	 		 		 	
	Date:	 	 3/21/09
	 		 		 	

  

 

 








 Exhibit 1 
 RELEASE OF CLAIMS 
 FOR AND IN CONSIDERATION OF the benefits to be provided me in connection with the
termination of my employment, as set forth in the letter agreement between me and BTU International, Inc. (the “Company”) dated as of March 20, 2009 (the “Agreement”), which are conditioned on my signing this Release of
Claims and to which I am not otherwise entitled, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, I, on my own behalf and on behalf of my heirs, executors, administrators, beneficiaries,
representatives and assigns, and all others connected with me, hereby release and forever discharge the Company, its subsidiaries and other affiliates and all of their respective past, present and future officers, directors, trustees, shareholders,
employees, employee benefit plans, agents, general and limited partners, members, managers, joint venturers, representatives, successors and assigns, and all others connected with any of them, both individually and in their official capacities, from
any and all causes of action, rights and claims of any type or description, known or unknown, which I have had in the past, now have, or might now have, through the date of my signing of this Release of Claims, in any way resulting from, arising out
of or connected with my employment by the Company or any of its subsidiaries or other affiliates or the termination of that employment or pursuant to any federal, state or local law, regulation or other requirement (including without limitation
Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the fair employment practices laws of the state or states in which I have been employed by the Company or any of the
subsidiaries or other affiliates, each as amended from time to time). 
 Excluded from the scope of this Release of Claims are: (i) any
right of indemnification or contribution and/or payment of attorneys’ fees and expenses (if any) that I have pursuant to the Articles of Incorporation, By-Laws, or other organizational documents of the Company or any of its subsidiaries or
other affiliates, under any written indemnification agreement I have entered into with the Company, or under applicable law; (ii) my right to seek unemployment compensation benefits and/or any other benefits that cannot by law be waived and/or
released; (iii) my right with respect to equity-based awards previously granted by the Company or its affiliates to me to the extent I retain any such right in accordance with the applicable terms of such awards subsequent to the termination of
my employment; (iv); any rights I may have to insurance coverage in accordance with applicable insurance plans and/or contracts for any covered losses, damages or expenses that I may in the future incur with respect to my service as an employee, or
officer of the Company or any of its subsidiaries or affiliates; (v) any rights to continued medical or dental coverage that I may have under COBRA (or similar applicable state law); (vi) my rights to the severance and other benefits
payable under this Agreement in accordance with the terms of this Agreement; and (vii) any rights to payment of vested benefits that I may have under a retirement or other benefit plan sponsored or maintained by the Company, or its subsidiaries
or its affiliates. Further, I do not waive any claims that may arise after the date of this Release of Claims. 
  

 

 








 In signing this Release of Claims, I acknowledge my understanding that I may not sign it prior to the
termination of my employment, but that I may consider the terms of this Release of Claims for up to twenty-one (21) days (or such longer period as the Company may specify) from the later of the date my employment with the Company terminates or
the date I receive this Release of Claims. I also acknowledge that I am advised by the Company and its subsidiaries and other affiliates to seek the advice of an attorney prior to signing this Release of Claims; that I have had sufficient time to
consider this Release of Claims and to consult with an attorney, if I wished to do so, or to consult with any other person of my choosing before signing; and that I am signing this Release of Claims voluntarily and with a full understanding of its
terms. 
 I further acknowledge that, in signing this Release of Claims, I have not relied on any promises or representations, express or
implied, that are not set forth expressly in the Agreement. I understand that I may revoke this Release of Claims at any time within seven (7) days of the date of my signing by written notice to the Chief Executive Officer of the Company and
that this Release of Claims will take effect only upon the expiration of such seven-day revocation period and only if I have not timely revoked it. 
 Intending to be legally bound, I have signed this Release of Claims under seal as of the date written below. 
  

			
	Signature:	 	  


  

			
	Name (please print):	 	  


  

			
	Date Signed: