EXHIBIT 10(F)
[ DATE ], 1998
[NAME]
[ADDRESS]
[CITY, STATE]
Retention Agreement
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Dear [NAME]:
Kollmorgen Corporation, a New York corporation (the "Company"), considers it
essential to the best interests of its shareholders to take reasonable steps to
retain key management personnel. Further, the Board of Directors of the Company
(the "Board") recognizes that the uncertainty and questions which might arise
among management in the context of a change in control of the Company could
result in the departure or distraction of management personnel to the detriment
of the Company and its shareholders.
The Board has determined, therefore, that appropriate steps should be taken
to reinforce and encourage the continued attention and dedication of members of
the management of the Company and its subsidiaries, including yourself, to their
assigned duties without distraction in the face of potentially disturbing
circumstances arising from any possible change in control of the Company.
In order to induce you to remain in the employ of the Company, the Company
has determined to enter into this letter agreement (this "Agreement") which
addresses the terms and conditions of your employment in the event of a change
in control of the Company. Capitalized words which are not otherwise defined
herein shall have the meanings assigned to such words in Section 8 of this
Agreement.
1. Term of Employment Under the Agreement; Effect on Prior Agreement. The
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term of your employment under this Agreement shall commence on the Change in
Control Date and shall continue until the second anniversary of the Change in
Control Date (the "Term"). This Agreement supersedes that certain Retention
Agreement dated __________ __, 1997, between the Company and you, which, as of
the date of your execution of this Agreement, shall be of no further force or
effect.
2. Employment During the Term. During the Term, the following terms and
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conditions shall apply to your employment with the Company:
(a) Titles; Reporting and Duties. Your position, titles, nature and
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status of responsibilities and reporting obligations shall be no less favorable
to you than those that you enjoyed immediately prior to the Change in Control
Date.
(b) Salary and Bonus. Your base salary and annual bonus opportunity may
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not be reduced, and your base salary shall be periodically reviewed and
increased in the manner commensurate with increases awarded to other similarly
situated executives of the Company.
(c) Incentive Compensation. You shall be eligible to participate in
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each long-term incentive plan or arrangement established by the Company for its
executive employees, in accordance with the terms and provisions of such plan or
arrangement and at a level consistent with the Company's practices applicable to
you prior to the Change in Control Date.
(d) Benefits. You shall be eligible to participate in all pension,
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welfare and fringe benefit plans and arrangements that the Company provides to
its executive employees in accordance with the terms of such plans and
arrangements, which shall be no less favorable to you, in the aggregate, than
the terms and provisions available to other executive employees of the Company.
(e) Location. You will continue to be employed at the business location
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at which you were employed prior to the Change in Control Date and the amount of
time that you are required to travel for business purposes will not be increased
in any significant respect from the amount of business travel required of you
prior to the Change in Control Date.
3. Involuntary Termination During the Term.
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(a) Severance Payment. In the event of your Involuntary Termination
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during the Term, the Company shall pay you within 5 days of the date of such
Involuntary Termination the full amount of any earned but unpaid base salary
through the Date of Termination at the rate in effect at the time of the Notice
of Termination, plus a cash payment (calculated on the basis of your Reference
Salary) for all unused vacation time which you may have accrued as of the Date
of Termination. The Company shall also pay you within 5 days of the Date of
Termination a pro rata portion of the annual bonus for the year in which your
Involuntary Termination occurs, calculated on the basis of your target bonus for
that year and on the assumption that all performance targets have been or will
be achieved. You also shall receive long-term incentive bonus amounts, to the
extent such amounts are payable in accordance with the terms of any long-term
incentive plan of the Company in which you participated immediately prior to
your Date of Termination. In addition, the Company shall pay you in a cash lump
sum, within 8 days following the date of your execution of the release described
in the last sentence of this Section 3(a) (or on the Date of Termination, if
later), an amount (the "Severance Payment") equal to [two and one half times]
the sum of your Reference Salary and your Reference Bonus. The Severance
Payment shall be in lieu of any other severance payments which you are entitled
to receive under any other severance pay plan or arrangement sponsored by the
Company and its subsidiaries. Your right to the Severance Payment shall be
conditioned upon your execution of a release in favor of the Company in
substantially the form attached hereto as Exhibit A.
(b) Benefit Payment. In the event of your Involuntary Termination
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during the Term, you and your eligible dependents shall continue to be eligible
to participate during the Benefit Continuation Period (as hereinafter defined)
in the medical, dental, health, life and other fringe benefit plans and
arrangements applicable to you immediately prior to your Involuntary Termination
on the same terms and conditions in effect for you and your dependents
immediately prior to such Involuntary Termination. For purposes of the previous
sentence, "Benefit Continuation Period" means the period beginning on the Date
of Termination and ending on the earlier to occur of (i) the [date 30 months
following] [OR] [first anniversary of] the Date of Termination and (ii) the date
that you and your dependents are eligible and elect coverage under the plans of
a subsequent employer which provide substantially equivalent or greater benefits
to you and your dependents.
(c) Date and Notice of Termination. Any termination of your employment
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by the Company or by you during the Term shall be communicated by a notice of
termination to the other party hereto (the "Notice of Termination"). The Notice
of Termination shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of your employment
under the provision so indicated. The date of your termination of employment
with the Company and its subsidiaries (the "Date of Termination") shall be
determined as follows: (i) if your employment is terminated for Disability,
thirty (30) days after a Notice of Termination is given (provided that you shall
not have returned to the full-time performance of your duties during such thirty
(30) day period), (ii) if your employment is terminated by the Company in an
Involuntary Termination, five (5) days after the date the Notice of Termination
is received by
you and (iii) if your employment is terminated by the Company for Cause, the
later of the date specified in the Notice of Termination or ten (10) days
following the date such notice is received by you. If the basis for your
Involuntary Termination is your resignation for Good Reason, the Date of
Termination shall be ten (10) days after the date your Notice of Termination is
received by the Company. The Date of Termination for a resignation of employment
other than for Good Reason shall be the date set forth in the applicable notice,
which shall be no earlier than ten (10) days after the date such notice is
received by the Company.
(d) No Mitigation or Offset. You shall not be required to mitigate the
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amount of any payment provided for in this Agreement by seeking other employment
or otherwise, nor shall the amount of any payment or benefit provided for in
this Agreement be reduced by any compensation earned by you as the result of
employment by another employer or by pension benefits paid by the Company or
another employer after the Date of Termination or otherwise except as
specifically provided in clause (ii) of the last sentence of Section 3(b).
4. Additional Payment.
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(a) Gross-Up Payment. Notwithstanding anything herein to the contrary,
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if it is determined that any Payment would be subject to the excise tax imposed
by Section 4999 of the Code or any interest or penalties with respect to such
excise tax (such excise tax, together with any interest or penalties thereon, is
herein referred to as an "Excise Tax"), then you shall be entitled to an
additional payment (a "Gross-Up Payment") in an amount that will place you in
the same after-tax economic position that you would have enjoyed if the Excise
Tax had not applied to the Payment. The amount of the Gross-Up Payment shall be
determined by the Accounting Firm in accordance with the formula {(E x (1 -
M)/(1 - T)) - E} (or such other formula as the Accounting Firm deems appropriate
which is intended to achieve the same result), where
E equals the Payments which are determined to be "excess
parachute payments" within the meaning of Section 280G(b)(1)
of the Code;
M equals the sum of the highest marginal rates for Taxes
applicable to you at the time of the Payment; and
T equals M plus the rate of Excise Tax applicable to the
Payment.
(b) Determination of Gross-Up Payment. Subject to the provisions of
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Section 4(c), all determinations required under this Section 4, including
whether a Gross-Up Payment is required, the amount of the Payments constituting
excess parachute payments, and the amount of the Gross-Up Payment, shall be
made by the Accounting Firm, which shall provide detailed supporting
calculations both to you and the Company within fifteen days of the Change in
Control Date, your Date of Termination or any other date reasonably requested by
you or the Company on which a determination under this Section 4 is necessary or
advisable. The Company shall pay to you the initial Gross-Up Payment within 5
days of the receipt by you and the Company of the Accounting Firm's
determination. If the Accounting Firm determines that no Excise Tax is payable
by you, the Company shall cause the Accounting Firm to provide you with an
opinion that the Accounting Firm has substantial authority under the Code and
Regulations not to report an Excise Tax on your federal income tax return. Any
determination by the Accounting Firm shall be binding upon you and the Company.
If the initial Gross-Up Payment is insufficient to cover the amount of the
Excise Tax that is ultimately determined to be owing by you with respect to any
Payment (hereinafter an "Underpayment"), the Company, after exhausting its
remedies under Section 4(c) below, shall promptly pay to you an additional
Gross-Up Payment in respect of the Underpayment.
(c) Procedures. You shall notify the Company in writing of any claim by
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the Internal Revenue Service that, if successful, would require the payment by
the Company of a Gross-Up Payment. Such notice shall be given as soon as
practicable after you know of such claim and shall apprise the Company of the
nature of the claim and the date on which the claim is requested to be paid.
You agree not to pay the claim until the expiration of the thirty-day period
following the date on which you notify the Company, or such shorter period
ending on the date the
Taxes with respect to such claim are due (the "Notice Period"). If the Company
notifies you in writing prior to the expiration of the Notice Period that it
desires to contest the claim, you shall: (i) give the Company any information
reasonably requested by the Company relating to the claim; (ii) take such action
in connection with the claim as the Company may reasonably request, including,
without limitation, accepting legal representation with respect to such claim by
an attorney reasonably selected by the Company and reasonably acceptable to you;
(iii) cooperate with the Company in good faith in contesting the claim; and (iv)
permit the Company to participate in any proceedings relating to the claim. You
shall permit the Company to control all proceedings related to the claim and, at
its option, permit the Company to pursue or forgo any and all administrative
appeals, proceedings, hearings, and conferences with the taxing authority in
respect of such claim. If requested by the Company, you agree either to pay the
tax claimed and sue for a refund or contest the claim in any permissible manner
and to prosecute such contest to a determination before any administrative
tribunal, in a court of initial jurisdiction and in one or more appellate courts
as the Company shall determine; provided, however, that, if the Company directs
you to pay such claim and pursue a refund, the Company shall advance the amount
of such payment to you on an after-tax and interest-free basis (the "Advance").
The Company's control of the contest related to the claim shall be limited to
the issues related to the Gross-Up Payment and you shall be entitled to settle
or contest, as the case may be, any other issues raised by the Internal Revenue
Service or other taxing authority. If the Company does not notify you in writing
prior to the end of the Notice Period of its desire to contest the claim, the
Company shall pay to you an additional Gross-Up Payment in respect of the excess
parachute payments that are the subject of the claim, and you agree to pay the
amount of the Excise Tax that is the subject of the claim to the applicable
taxing authority in accordance with applicable law.
(d) Repayments. If, after receipt by you of an Advance, you become
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entitled to a refund with respect to the claim to which such Advance relates,
you shall pay the Company the amount of the refund (together with any interest
paid or credited thereon after Taxes applicable thereto). If, after receipt by
you of an Advance, a determination is made that you shall not be entitled to any
refund with respect to the claim and the Company does not promptly notify you of
its intent to contest the denial of refund, then the amount of the Advance shall
not be required to be repaid by you and the amount thereof shall offset the
amount of the additional Gross-Up Payment then owing to you.
(e) Further Assurances. The Company shall indemnify you and hold you
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harmless, on an after-tax basis, from any costs, expenses, penalties, fines,
interest or other liabilities ("Losses") incurred by you with respect to the
exercise by the Company of any of its rights under this Section 4, including,
without limitation, any Losses related to the Company's decision to contest a
claim or any imputed income to you resulting from any Advance or action taken on
your behalf by the Company hereunder. The Company shall pay all legal fees and
expenses incurred under this Section 4, and shall promptly reimburse you for the
reasonable expenses incurred by you in connection with any actions taken by the
Company or required to be taken by you hereunder. The Company shall also pay
all of the fees and expenses of the Accounting Firm, including, without
limitation, the fees and expenses related to the opinion referred to in Section
4(b).
5. Other Provisions.
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(a) Vesting and Exercise. Notwithstanding the terms of the Equity Plan,
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and of any agreement thereunder, Equity Awards granted to you under the Equity
Plan shall vest and become exercisable in the event of your Involuntary
Termination on or following the Change in Control Date.
(b) General. Anything in this Agreement to the contrary
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notwithstanding, in no event shall the vesting and exercisability provisions
applicable to you under the terms of your Equity Awards be less favorable to you
then the terms and provisions of such awards in effect on the date hereof.
6. Legal Fees and Expenses. The Company shall pay or reimburse you on an
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after-tax basis for all costs and expenses (including, without limitation, court
costs and reasonable legal fees and expenses which reflect common practice with
respect to the matters involved) incurred by you as a result of any claim,
action or proceeding (i) arising out of your termination of employment during
the Term, (ii) contesting, disputing or enforcing any right, benefits or
obligations under this Agreement or (iii) arising out of or challenging the
validity, advisability or enforceability of this Agreement or any provision
thereof.
7. Successors; Binding Agreement.
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(a) Assumption by Successor. The Company will require any successor
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(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business or assets of the Company expressly to
assume and to agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place; provided, however, that no such assumption shall relieve the
Company of its obligations hereunder. As used in this Agreement, the "Company"
shall mean the Company as hereinbefore defined and any successor to its business
and/or assets as aforesaid which assumes and agrees to perform this Agreement by
operation of law or otherwise.
(b) Enforceability; Beneficiaries. This Agreement shall be binding upon
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and inure to the benefit of you (and your personal representatives and heirs)
and the Company and any organization which succeeds to substantially all of the
business or assets of the Company, whether by means of merger, consolidation,
acquisition of all or substantially all of the assets of the Company or
otherwise, including, without limitation, as a result of a Change in Control or
by operation of law. This Agreement shall inure to the benefit of and be
enforceable by your personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If you
should die while any amount would still be payable to you hereunder if you had
continued to live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to your devisee, legatee or
other designee or, if there is no such designee, to your estate.
8. Definitions. For purposes of this Agreement, the following capitalized
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words shall have the meanings set forth below:
"Accounting Firm" shall mean [NAME] or, if such firm is unable or
unwilling to perform such calculations, such other national accounting firm
as shall be designated by agreement between you and the Company. To the
extent reasonably practicable, one such accounting firm shall be designated
to perform the calculations in respect of the Combined Arrangements.
"Cause" shall mean a termination of your employment during the Term
which is a result of (i) your felony conviction, (ii) your willful
disclosure of material trade secrets or other material confidential
information related to the business of the Company and its subsidiaries or
(iii) your willful and continued failure substantially to perform your
duties with the Company (other than any such failure resulting from your
incapacity due to physical or mental illness or any such actual or
anticipated failure resulting from a resignation by you for Good Reason)
after a written demand for substantial performance is delivered to you by
the Board, which demand specifically identifies the manner in which the
Board believes that you have not substantially performed your duties, and
which performance is not substantially corrected by you within 10 days of
receipt of such demand. For purposes of the previous sentence, no act or
failure to act on your part shall be deemed "willful" unless done, or
omitted to be done, by you not in good faith and without reasonable belief
that your action or omission was in the best interest of the Company.
Notwithstanding the foregoing, you shall not be deemed to have been
terminated for Cause unless and until there shall have been delivered to you
a copy of a resolution duly adopted by the affirmative vote of not less than
three-fourths (3/4ths) of the entire membership of the Board at a meeting of
the Board called and held for such purpose (after reasonable notice to you
and an opportunity for you, together with your counsel, to be heard before
the Board), finding that in the good faith opinion of the Board you were
guilty of conduct set forth above in clause (i), (ii) or (iii) of the first
sentence of this section and specifying the particulars thereof in detail.
"Change in Control" shall mean a change in control of the Company
of a nature that would be required to be reported in response to Item 6(e)
of Schedule 14A of Regulation 14A promulgated under the Exchange Act,
whether or not the Company is then subject to such reporting requirement;
provided, however, that, anything in this Agreement to the contrary
notwithstanding, a Change in Control shall be deemed to have occurred if:
(i) any individual, partnership, firm, corporation, association,
trust, unincorporated organization or other entity or person, or any
syndicate or group deemed to be a person under Section 14(d)(2) of the
Exchange Act, is or becomes the "beneficial owner" (as defined in Rule
13d-3 of the General Rules and Regulations under the Exchange Act),
directly or indirectly, of securities of the Company representing 30% or
more of the combined voting power of the Company's then outstanding
securities entitled to vote in the election of directors of the Company;
(ii) during any period of two (2) consecutive years (not including
any period prior to the execution of this Agreement) individuals who at
the beginning of such period constituted the Board and any new
directors, whose election by the Board or nomination for election by the
Company's shareholders was approved by a vote of at least three-fourths
(3/4ths) of the directors then still in office who either were directors
at the beginning of the period or whose election or nomination for
election was previously so approved (the "Incumbent Directors"), cease
for any reason to constitute a majority thereof;
(iii) there occurs a reorganization, merger, consolidation or other
corporate transaction involving the Company (a "Transaction"), in each
case, with respect to which the shareholders of the Company immediately
prior to such Transaction do not, immediately after the Transaction, own
more than 50 percent of the combined voting power of the Company or
other corporation resulting from such Transaction;
(iv) all or substantially all of the assets of the Company are sold,
liquidated or distributed; or
(v) there is a "change in control" of the Company within the meaning
of Section 280G of the Code and the Regulations.
"Change in Control Date" shall mean the earliest of (i) the date on
which the Change in Control occurs, (ii) the date on which the Company
executes an agreement, the consummation of which would result in the
occurrence of a Change in Control, (iii) the date the Board approves a
transaction or series of transactions, the consummation of which would
result in a Change in Control and (iv) the date the Company fails to satisfy
its obligations to have this agreement assumed by any successor to the
Company in accordance with Section 7(a) of this Agreement. If the Change in
Control Date occurs as a result of an agreement described in clause (ii) of
the previous sentence or as a result of the approval of the Board described
in clause (iii) of the previous sentence and the Change in Control to which
such agreement or approval relates (the "Contemplated Change in Control")
subsequently does not occur, then the Term shall expire on the sixtieth day
(the "Reset Date") following the date the Board certifies by resolution duly
adopted by three-fourths (3/4ths) of the Incumbent Directors then in office
that the Contemplated Change in Control is not reasonably likely to occur;
provided, however, that this sentence shall not apply if (A) an Involuntary
Termination of your employment with the Company has occurred on and after
the Change in Control Date and on or prior to the Reset Date or (B) the
Contemplated Change in Control subsequently occurs within three months of
the Reset Date. Following the Reset Date, the provisions of this Agreement
shall remain in effect and a new Term shall commence upon the occurrence of
a subsequent Change in Control Date. Notwithstanding the first sentence of
this section, if your employment with the Company terminates prior to the
Change in Control Date and it is reasonably demonstrated that your
termination of employment (i) was at the request of the third party who has
taken steps reasonably calculated to effect the Change in Control or (ii)
otherwise arose in connection with or in anticipation of the Change in
Control, then Change in Control Date shall mean the date immediately prior
to the date of your termination of employment.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and
any successor provisions thereto.
"Common Stock" shall mean the common stock of the Company.
"Disability" shall mean (i) your incapacity due to physical or
mental illness which causes you to be absent from the full-time performance
of your duties with the Company for six (6) consecutive months, and (ii)
your failure to return to full-time performance of your duties for the
Company within thirty (30) days after written Notice of Termination due to
Disability is given to you. Any question as to the existence of your
Disability upon which you and the Company cannot agree shall be determined
by a qualified independent physician selected by you (or, if you are unable
to make such selection, such selection shall be made by any adult member of
your immediate family), and approved by the Company. The determination of
such physician made in writing to the Company and to you shall be final and
conclusive for all purposes of this Agreement.
"Equity Awards" shall mean options, restricted stock, bonus stock or
other grants or awards which consist of, or relate to, equity securities of
the Company and which have been granted to you under the Equity Plan. For
purposes of this Agreement, Equity Awards shall also include any securities
acquired upon the exercise of an option, warrant or similar right that
constitutes an Equity Award.
"Equity Plan" shall mean the Kollmorgen Corporation 1991 Long Term
Incentive Plan, as amended.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and any successor provisions thereto.
"Good Reason" shall mean a resignation of your employment during the
Term as a result of any of the following:
(i) A meaningful and detrimental alteration in your position,
your titles, or the nature or status of your responsibilities (including
your reporting responsibilities) from those in effect immediately prior
to the Change in Control Date;
(ii) A reduction by the Company in your annual base salary as in
effect immediately prior to the Change in Control Date or as the same
may be increased from time to time thereafter; a failure by the Company
to increase your salary at a rate commensurate with that of other key
executives of the Company; or a reduction in your target annual bonus
(expressed as a percentage of base salary) below the target in effect
for you prior to the Change in Control Date;
(iii) The relocation of the office of the Company where you are
employed immediately prior to the Change in Control Date (the "CIC
Location") to a location which is more than fifty (50) miles away from
the CIC Location or the Company's requiring you to be based more than
fifty (50) miles away from the CIC Location (except for required travel
on the Company's business to an extent substantially consistent with
your customary business travel obligations in the ordinary course of
business prior to the Change in Control Date);
(iv) The failure by the Company to continue in effect any
compensation plan in which you participated prior to the Change in
Control Date or made available to you after the Change in Control Date,
unless an equitable arrangement (embodied in an ongoing substitute or
alternative plan) has been made with respect to such plan in connection
with the Change in Control, or the failure by the Company to continue
your participation therein on at least as favorable a basis, both in
terms of the amount of benefits provided and the level of your
participation relative to other participants, as existed on the Change
in Control Date;
(v) The failure by the Company to continue to provide you with
benefits at least as favorable in the aggregate to those enjoyed by you
under the Company's pension, savings, life insurance, medical, health
and accident, disability, and fringe benefit plans and programs in which
you were participating immediately prior to the Change in Control Date;
or the failure by the Company to provide you with the number of paid
vacation days to which you are entitled on the basis
of years of service with the Company in accordance with the Company's
normal vacation policy in effect immediately prior to the Change in
Control;
(vi) The failure of the Company to obtain an agreement reasonably
satisfactory to you from any successor to assume and agree to perform
this Agreement, as contemplated in Section 7(a) hereof or, if the
business of the Company for which your services are principally
performed is sold at any time after a Change in Control, the failure of
the Company to obtain such an agreement from the purchaser of such
business;
(vii) Any termination of your employment which is not effected
pursuant to the terms of this Agreement; or
(viii) A material breach by the Company of the provisions of this
Agreement;
provided, however, that an event described above in clause (i), (ii), (iv),
(v) or (viii) shall not constitute Good Reason unless it is communicated by
you to the Company in writing and is not corrected by the Company in a
manner which is reasonably satisfactory to you (including full retroactive
correction with respect to any monetary matter) within 10 days of the
Company's receipt of such written notice from you.
"Involuntary Termination" shall mean (i) your termination of
employment by the Company and its subsidiaries during the Term other than
for Cause or Disability or (ii) your resignation of employment with the
Company and its subsidiaries during the Term for Good Reason.
"Payment" means (i) any amount due or paid to you under this
Agreement, (ii) any amount that is due or paid to you under any plan,
program or arrangement of the Company and its subsidiaries (including,
without limitation, the Equity Plans), and (iii) any amount or benefit that
is due or payable to you under this Agreement or under any plan, program or
arrangement of the Company and its subsidiaries not otherwise covered under
clause (i) or (ii) hereof which must reasonably be taken into account under
Section 280G of the Code and the Regulations in determining the amount of
the "parachute payments" received by you, including, without limitation, any
amounts which must be taken into account under the Code and Regulations as a
result of (A) the acceleration of the vesting of any option, restricted
stock or other equity award granted under the Equity Plans or otherwise, (B)
the acceleration of the time at which any payment or benefit is receivable
by you or (C) any contingent severance or other amounts that are payable to
you.
"Reference Bonus" shall mean the average of the two most recent
annual bonuses paid to you prior to your Involuntary Termination
(disregarding any bonus in an amount that results in a breach of this
Agreement).
"Reference Salary" shall mean the annual rate of your base salary
from the Company and its subsidiaries in effect immediately prior to the
date of your Involuntary Termination (disregarding any reduction of such
base salary in breach of this Agreement).
"Regulations" shall mean the proposed, temporary and final
regulations under Section 280G of the Code or any successor provision
thereto.
"Taxes" shall mean the federal, state and local income taxes to
which you are subject at the time of determination, calculated on the basis
of the highest marginal rates then in effect, plus any additional payroll or
withholding taxes to which you are then subject.
"Transaction Date" shall mean the date described in clause (i) of
the definition of Change in Control Date.
9. Notice. For the purpose of this Agreement, notices and all other
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communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United
States registered mail, return receipt requested, postage prepaid, addressed to
the Board of Directors, Kollmorgen Corporation, [Address], with a copy to the
General Counsel of the Company, or to you at the address set forth on the first
page of this Agreement or to such other address as either party may have
furnished to the other in writing in accordance herewith, except that notice of
change of address shall be effective only upon receipt.
10. Miscellaneous.
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(a) Amendments, Waivers, Etc. No provision of this Agreement may be
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modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing. No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time. No agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made by
either party which are not expressly set forth in this Agreement and this
Agreement shall supersede all prior agreements, negotiations, correspondence,
undertakings and communications of the parties, oral or written, with respect to
the subject matter hereof; provided, however, that, except as expressly set
forth herein, this Agreement shall not supersede the terms of Equity Awards
previously granted to you.
(b) Validity. The invalidity or unenforceability of any provision of
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this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
(c) Counterparts. This Agreement may be executed in several
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counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
(d) No Contract of Employment. Nothing in this Agreement shall be
-------------------------
construed as giving you any right to be retained in the employ of the Company or
shall affect the terms and conditions of your employment with the Company prior
to the commencement of the Term hereof.
(e) Withholding. Amounts paid to you hereunder shall be subject to all
-----------
applicable federal, state and local withholding taxes.
(f) Source of Payments. All payments provided under this Agreement,
------------------
other than payments made pursuant to a plan which provides otherwise, shall be
paid in cash from the general funds of the Company, and no special or separate
fund shall be established, and no other segregation of assets made, to assure
payment. You will have no right, title or interest whatsoever in or to any
investments which the Company may make to aid it in meeting its obligations
hereunder. To the extent that any person acquires a right to receive payments
from the Company hereunder, such right shall be no greater than the right of an
unsecured creditor of the Company.
(g) Headings. The headings contained in this Agreement are intended
--------
solely for convenience of reference and shall not affect the rights of the
parties to this Agreement.
(h) Governing Law. The validity, interpretation, construction, and
-------------
performance of this Agreement shall be governed by the laws of the State of New
York applicable to contracts entered into and performed in such State.
* * * *
If this letter sets forth our agreement on the subject matter hereof, kindly
sign and return to the Company the enclosed copy of this letter which will then
constitute our agreement on this subject.
Sincerely,
KOLLMORGEN CORPORATION
By
----------------------
[Name]
[Title]
Agreed to as of this
day of , 1998.
------------------------------
[Name]
EXHIBIT A
RELEASE
1. I have signed a Retention Agreement with Kollmorgen Corporation (the
"Company"), dated February __, 1997, (the "Agreement"), wherein I agreed to the
terms applicable to certain terminations of employment with the Company.
Pursuant to the terms of the Agreement, I am entitled to certain severance
payments and benefits, described in the Agreement, provided that I sign this
Release.
2. In consideration of the severance payments described in the Agreement,
I, on behalf of myself, my heirs, agents, representatives, predecessors,
successors and assigns, hereby irrevocably release, acquit and forever discharge
the Company and each of its respective agents, employees, representatives,
parents, subsidiaries, divisions, affiliates, officers, directors, shareholders,
investors, employees, attorneys, transferors, transferees, predecessors,
successors and assigns, jointly and severally of and from any and all debts,
suits, claims, actions, causes of action, controversies, demands, rights,
damages, losses, expenses, costs, attorneys' fees, compensation, liabilities and
obligations whatsoever, suspected or unsuspected, known or unknown, foreseen or
unforeseen, arising at any time up to and including the date of this Release,
save and except for the parties' obligations and rights under the Agreement. In
recognition of the consideration set forth in the Agreement, I hereby release
and forever discharge the Company from any and all claims, actions and causes of
action, I have or may have as of the date of this Release arising under any
state or federal civil rights or human rights law, or under the Federal Age
Discrimination in Employment Act of 1967, as amended, and the applicable rules
and regulations promulgated thereunder ("ADEA"). By signing this Release, I
hereby acknowledge and confirm the following: (a) I was advised in writing by
the Company in connection with my termination to consult with an attorney of my
choice prior to signing this Agreement, including, without limitation, the terms
relating to my release of claims arising under ADEA and any other law, rule or
regulation referred to above; (b) I was given a period of not fewer than 21 days
to consider the terms of this Agreement and to consult with an attorney of my
choosing with respect hereto; and (c) I am providing the release and discharge
set forth in this paragraph only in exchange for consideration in addition to
anything of value to which I was already entitled.
3. The Agreement and this Release may be revoked by me within the 7-day
period commencing on the date I sign this Release (the "Revocation Period"). In
the event of any such revocation, all obligations of the Company under the
Agreement will terminate and be of no further force and effect as of the date of
such revocation and both the Company and I will have and be entitled to exercise
all rights that would have existed had the Agreement and Release not been
entered into. No such revocation will be effective unless it is in writing and
signed by me and received by the Company prior to the expiration of the
Revocation Period.
_____________________ ______________
[NAME] Date
_____________________ ______________
WITNESS
