EXHIBIT 10.K
▇▇▇▇▇▇▇ CONTROLS, INC.
EXECUTIVE EMPLOYMENT AGREEMENT
In consideration of the employment of the undersigned employee
("Executive") by ▇▇▇▇▇▇▇ Controls, Inc., or its affiliated companies
("Company"), it is agreed between Executive and Company as follows in lieu of
any other agreements or commitments relating to such employment, whether written
or oral and whether past or present, unless expressly included or incorporated
herein:
1. DUTIES. The Company agrees to employ Executive as a manager with
duties and responsibilities which the Company acting either through its Board of
Directors or its Chief Executive Officer, in its sole discretion believes are
appropriate to Executive's skills, training and experience. Executive agrees to
perform such assigned duties by devoting full time, due care, loyalty and best
efforts thereto and complying with all applicable laws and the requirements of
the Company's policies and procedures on employee conduct, including but not
limited to the Ethics and no-harassment policies.
2. TERM. This Agreement will be for an initial period of one year, and
will thereafter automatically renew for successive one-year periods unless
terminated as provided in Section 4, replaced or amended as provided in Section
5, or superceded as provided in Section 6.
3. COMPENSATION. Executive shall be paid the base salary, bonuses, and
benefits set forth in Exhibit A, subject to the terms and conditions set forth
in this Section and in Section 4. The salary, benefits, and bonuses will be
reviewed and adjusted periodically in accordance with the Company's policies
then in existence. Those policies and any benefit and bonus programs may be
amended from time to time at the Company's discretion.
4. TERMINATION. Executive's employment with the Company may be
terminated as follows, and Executive's sole right to receive compensation,
benefits, or bonuses after the termination shall be exclusively as set forth
below.
a. DEATH. If Executive dies during the term of this Agreement,
this Agreement shall terminate and the Company shall be obligated to
make payments of six (6) months of Executive's base salary to the
beneficiaries set out in Exhibit A or to his estate if no beneficiaries
have been designated. However, all benefit plans or bonuses in effect
upon Executive's death shall operate in accordance with their terms
covering death of the Executive or terminate immediately if silent.
b. DISABILITY. If Executive becomes disabled during the term
hereof, Executive's sole remedy shall be to the Company's Short and
Long Term Disability Policies in effect at that time and Executive's
"disability" shall be determined in accordance with such plan
provisions. All other bonuses and benefits in effect at that time shall
operate in accordance with their provisions relating to disability or
terminate if there is no such provision.
▇▇▇▇▇▇▇ CONTROLS, INC.
EXECUTIVE EMPLOYMENT AGREEMENT
c. BY EMPLOYEE. Executive may terminate this Agreement at any
time for any reason, including resignation or retirement. All
compensation, bonuses, or benefits in effect at that time shall cease
as of the date of termination, unless specifically provided otherwise
with respect to voluntary terminations in the applicable bonus or
benefit policies. The Company specifically reserves the right to grant
or not grant stock options and bonuses to an employee who has
voluntarily terminated employment.
d. FOR CAUSE. The Company may terminate Executive for theft,
dishonesty, fraudulent misconduct, violation of Section 7 or 8 of this
Agreement, gross dereliction of duty, grave misconduct injurious to the
Company or serious violation of the law or the Company's policies and
procedures on employee conduct. In the event the Company terminates
Executive for cause hereunder, the Executive shall not be due any
compensation, bonuses or benefits after the Termination Date unless
earned in full prior to such date in accordance with the applicable
provisions of the plan or plans. The Company, if allowed by law, may
set off losses, fines or damages the Executive has caused it as a
result of such misconduct.
e. WITHOUT CAUSE. The Company, acting through its Board of
Directors or through its Chief Executive Officer, may terminate
Executive for any reason other than as set out in Sec. 4. a. - d. In
such an event, Executive shall receive a severance allowance under the
Company's severance policy in effect at that time; however, in no event
shall such benefits be less than Executive's base salary for one (1)
year or twice the severance payments provided under the then current
severance policy, whichever is greater. Executive shall also receive
any bonus or benefits in effect at that time under plan provisions for
terminations without cause or none if such plans are silent.
5. AMENDMENT. The Company may at any time in its discretion amend,
modify or replace this Agreement; however, such changes shall not reduce the
benefits provided Executive for termination without cause under Sec. 4.e.
6. CHANGE OF CONTROL. In the event there is a "change of control" in
the Company, as such term is defined in the Agreement attached as Exhibit B,
then the Agreement set forth in Exhibit B shall supersede and replace this
Agreement in all respects.
7. NONCOMPETITION. Executive agrees that for a period of one year after
the termination of active employment hereunder, he shall not, except as
permitted by the Company's prior written consent, in any capacity in which
Confidential Information or Trade Secrets of the Company would reasonably be
regarded as useful, engage in, be employed by, or in any way advise or act for
any business which is a competitor of the Company with respect to the products
or services provided by any division or group within the Company to which
Executive devoted substantial attention in the year preceding termination of
employment with the Company, and within the national and international
geographic markets served by any such division or group. This restriction shall
also apply to any ownership or other financial interest in such a competitor
except the
▇▇▇▇▇▇▇ CONTROLS, INC.
EXECUTIVE EMPLOYMENT AGREEMENT
ownership of less than five percent of the shares of any corporation whose
shares are listed on a recognized stock exchange or trade in an over-the-counter
market. Depending on the scope of Executive's responsibilities in the year
preceding termination of employment with the Company, this covenant could
potentially apply to a geographic area coextensive with the Company's
operations, including but not limited to all of North America and the European
Economic Community. Executive agrees that the scope of this covenant is
reasonably necessary for the Company's protection from unfair competition. This
covenant shall survive the termination of this Agreement.
8. CONFIDENTIAL INFORMATION. (a) The Executive shall hold in a
fiduciary capacity for the benefit of the Company all secret or confidential
information, knowledge or data relating to the Company or any of its affiliated
companies, and their respective businesses, which shall have been obtained by
the Executive during the Executive's employment by the Company or any of its
affiliated companies and which shall not be or become public knowledge (other
than by acts by the Executive or representatives of the Executive in violation
of this Agreement). During employment and for two years after termination of the
Executive's employment with the Company, the Executive, except as may otherwise
be required by law or legal process, shall not use any such information except
on behalf of the Company and shall not communicate or divulge any such
information, knowledge or data to anyone other than the Company and those
designated by it. This covenant shall survive the termination of this Agreement.
Nothing in this paragraph is intended or shall be construed to limit in any way
Executive's independent duty not to misappropriate Trade Secrets of the Company.
(b) "Trade Secret" means information of the Company, including a formula,
pattern, compilation, program, device, method, technique or process, that
derives independent economic value, actual or potential, from not being
generally known to, and not being readily ascertainable by proper means by,
other persons who can obtain economic value from its disclosure or use, and that
is the subject of efforts by the Company to maintain its secrecy that are
reasonable under the circumstances. During employment with the Company,
Executive shall preserve and protect Trade Secrets of the Company from
unauthorized use or disclosure, and after termination of such employment,
Executive shall not use or disclose any Trade Secret of the Company until such
time as that Trade Secret is no longer a secret as a result of circumstances
other than a misappropriation involving the Executive.
9. MANDATORY ARBITRATION. As a condition of his employment with the
Company, and in consideration for that employment, Executive agrees that if he
has any legal disputes with the Company or its supervisors, managers, directors,
or agents concerning his employment or termination of employment, those disputes
will be brought and resolved exclusively through binding arbitration. For
example, any claims by the Executive that he has been demoted, denied promotion,
or discharged because of age discrimination, race discrimination, or unlawful
retaliation will be resolved through binding arbitration. Arbitrations involving
employment issues under this provision will be conducted pursuant to the terms
and conditions of the Company's Employment Dispute Resolution Program (copy
attached), except that use of arbitration under the Program to resolve
employment disputes will be mandatory rather than voluntary. Arbitrations un-
▇▇▇▇▇▇▇ CONTROLS, INC.
EXECUTIVE EMPLOYMENT AGREEMENT
der this agreement will be conducted pursuant to the procedural rules
established for resolving employment disputes by the American Arbitration
Association (copy available). By signing this Agreement, Executive releases and
waives any right he has to resolve employment disputes (including claims of
unlawful discharge) through filing a lawsuit in court, and agrees instead that
the disputes will be resolved exclusively though binding arbitration. Because
Executive is giving up the legal right to file a lawsuit against the Company or
its supervisors, managers, directors, or agents involving any and all legal
disputes arising from his employment or termination of employment, the Company
encourages him to consult with an attorney prior to signing this Agreement.
Executive understands that he has twenty-one days to consider whether to sign
this agreement. If he signs it, for a period of seven days following the signing
he may revoke the agreement. In order to make the revocation effective, he must
deliver a signed revocation to the Company within the seven-day revocation
period. Notwithstanding the foregoing, Executive agrees that the Company may
seek enforcement of paragraphs 7-8 of this Agreement by filing an action in a
court of competent jurisdiction seeking temporary, preliminary and permanent
injunctive relief and such other relief as may be necessary to protect the
Company from threatened, imminent, or existing irreparable harm.
10. MISCELLANEOUS. a. This Agreement is personal to the Executive and
without the prior written consent of the Company shall not be assignable by the
Executive otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal representatives.
b. This Agreement shall inure to the benefit of and be binding
upon the Company and its successors and assigns. Executive hereby
grants the Company unlimited authority to assign its rights under this
Agreement and consents to any and all such assignments.
c. The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and at
the same extent that the Company would be required to perform it if no
such succession had taken place. As used in this Agreement, "Company"
shall mean the Company as hereinbefore defined and any successor its
business and/or assets as aforesaid which assumes and agrees to perform
this Agreement by operation of law, or otherwise.
d. This Agreement shall be governed by and construed in
accordance with the laws of the State of Wisconsin, without reference
to principles of conflict of laws. The captions of this Agreement are
not part of the provisions hereof and shall have no force or effect.
e. All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:
If to the Executive:
▇▇▇▇▇▇▇ CONTROLS, INC.
EXECUTIVE EMPLOYMENT AGREEMENT
To the address appearing immediately below Executive's signature.
If to the Company
▇▇▇▇▇▇▇ Controls, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
or to such other address as either party shall have furnished to the
other in writing in accordance herewith. Notice and communications
shall be effective when actually received by the addressee.
f. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
g. The Company may withhold from any amounts payable under
this Agreement such Federal, state or local taxes as shall be required
to be withheld pursuant to any applicable law or regulation.
IN WITNESS WHEREOF, the Executive has hereunto set the
Executive's hand and, pursuant to the authorization from its Board of Directors,
the Company has caused these presents to be executed in its name on its behalf,
all as of the day and year written below.
Dated:
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Executive:
Address:
▇▇▇▇▇▇▇ CONTROLS, INC.
By:
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Date:
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▇▇▇▇▇▇▇ CONTROLS, INC.
EXECUTIVE EMPLOYMENT AGREEMENT
EXHIBIT A
EXECUTIVE:
BASE SALARY:
BENEFITS: Executive is a participant in the following benefits provided
by ▇▇▇▇▇▇▇ Controls, Inc., in addition to those benefits
provided all salary employees. However, Executive is not
assured an award under any such benefit in any year. Each
award will be granted each year in accordance with the terms
of the benefit plan.
The Company reserves the right, at its discretion, to pay all,
some, or no stock options and/or bonuses if the Executive
voluntarily resigns his/her employment or is discharged for
cause prior to the end of the applicable fiscal year.
BENEFICIARIES: The following beneficiaries will receive death benefits
provided under the above benefits unless beneficiaries have
been designated under a specific Benefit plan by the
Executive.
Name:______________________Relationship_______________________
Name:______________________Relationship_______________________
Name:______________________Relationship_______________________
Name:______________________Relationship_______________________
EXHIBIT B
▇▇▇▇▇▇▇ CONTROLS, INC.
CHANGE OF CONTROL
EXECUTIVE EMPLOYMENT AGREEMENT
AGREEMENT by and between ▇▇▇▇▇▇▇ Controls, Inc. a Wisconsin
corporation (the "Company") and ________________ (the "Executive"), dated as of
the ______ day of _______.
The Board of Directors of the Company (the "Board"), has
determined that it is in the best interests of the Company and its shareholders
to assure that the Company will have the continued dedication of the Executive,
notwithstanding the possibility, threat or occurrence of a Change of Control (as
defined below) of the Company. The Board believes it is imperative to diminish
the inevitable distraction of the Executive by virtue of the personal
uncertainties and risks created by a pending or threatened Change of Control and
to encourage the Executive's full attention and dedication to the Company
currently and in the event of any threatened or pending Change of Control, and
to provide the Executive with compensation and benefits arrangements upon a
Change of Control which ensure that the compensation and benefits expectations
of the Executive will be satisfied and which are competitive with those of other
corporations. Therefore, in order to accomplish these objectives, the Board has
caused the Company to enter into this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Certain Definitions. (a) The "Effective Date" shall mean
the first date during the Change of Control Period (as defined in Section 1(b))
on which a Change of Control (as defined in Section 2) occurs. Anything in this
Agreement to the contrary notwithstanding, if a Change of Control occurs and if
the Executive's employment with the Company is terminated or the Executive
ceases to be an officer of the Company prior to the date on which the Change of
Control occurs, and if it is reasonably demonstrated by the Executive that such
termination of employment or cessation of status as an officer (i) was at the
request of a third party who has taken steps reasonably calculated to effect the
Change of Control or (ii) otherwise arose in connection with or anticipation of
the Change of Control, then for all purposes of this Agreement the "Effective
Date" shall mean the date immediately prior to the date of such termination of
employment or cessation of status as an officer.
(b) The "Change of Control Period" shall mean the period
commencing on the date hereof and ending on the second anniversary of such date;
provided, however, that commencing on the date one year after the date hereof,
and on each annual anniversary of such date (such date and each annual
anniversary thereof shall be hereinafter referred to as the "Renewal Date"), the
Change of Control Period shall be automatically extended so as to terminate two
years from such Renewal Date, unless at least 60 days prior to the Renewal Date
the Company shall give notice to the Executive that the Change of Control Period
shall not be so extended.
2. Change of Control. For the purpose of this Agreement, a
"Change of Control" shall mean:
EXHIBIT B
▇▇▇▇▇▇▇ CONTROLS, INC.
CHANGE OF CONTROL
EXECUTIVE EMPLOYMENT AGREEMENT
(a) The acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act")) of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of
either (i) the then outstanding shares of common stock of the Company (the
"Outstanding Company Common Stock") or (ii) the combined voting power of the
then outstanding voting securities of the Company entitled to vote generally in
the election of directors (the "Outstanding Company Voting Securities");
provided, however, that the following acquisitions shall not constitute a Change
of Control: (i) any acquisition directly from the Company, (ii) any acquisition
by the Company or any of its subsidiaries, (iii) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the Company or any of
its subsidiaries or (iv) any acquisition by any corporation with respect to
which, following such acquisition, more than 60% of, respectively, the then
outstanding shares of common stock of such corporation and the combined voting
power of the then outstanding voting securities of such corporation entitled to
vote generally in the election of directors is then beneficially owned, directly
or indirectly, by all or substantially all of the individuals and entities who
were the beneficial owners, respectively, of the Outstanding Company Common
Stock and Company Voting Securities immediately prior to such acquisition in
substantially the same proportions as their ownership, immediately prior to such
acquisition, of the Outstanding Company Common Stock and Outstanding Company
voting Securities, as the case may be; or
(b) Individuals who, as of the date hereof, constitute the
Board (the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual becoming a
director subsequent to the date hereof whose election, or nomination for
election by the Company's shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption of
office occurs as a result of either an actual or threatened election contest (as
such terms are used in Rule l4a-11 of Regulation 14A promulgated under the
Exchange Act) or other actual or threatened solicitation of proxies or consents;
or
(c) Consummation of a reorganization, merger or consolidation,
in each case, with respect to which all or substantially all of the individuals,
and entities who were the beneficial owners, respectively, of the Outstanding
Company Common Stock and Outstanding Company Voting Securities immediately prior
to such reorganization, merger or consolidation do not, following such
reorganization, merger or consolidation, beneficially own, directly or
indirectly, more than 60% of, respectively, the then outstanding shares of
common stock and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors, as the case
may be, of the corporation resulting from such reorganization, merger or
consolidation in substantially the same proportions as their ownership,
immediately prior to such reorganization, merger or consolidation of the
Outstanding Company Common Stock and Outstanding Company Voting Securities, as
the case may be; or
EXHIBIT B
▇▇▇▇▇▇▇ CONTROLS, INC.
CHANGE OF CONTROL
EXECUTIVE EMPLOYMENT AGREEMENT
(d) Consummation of (i) a complete liquidation or dissolution
of the Company or (ii) the sale or other disposition of all or substantially
all, of the assets of the Company, other than to a corporation, with respect to
which following such sale or other disposition, more than 60% of, respectively,
the then outstanding shares of common stock of such Corporation and the combined
voting power of the then outstanding voting securities of such corporation
entitled to vote generally in the election of directors is then beneficially
owned, directly or indirectly, by all or substantially all of the individuals
and entities who were the beneficial owners, respectively, of the Outstanding
Company Common Stock and Outstanding Company Voting Securities immediately prior
to such sale or other disposition in substantially the same proportion as their
ownership, immediately prior to such sale or other disposition, of the
Outstanding Company Common Stock and Outstanding Company Voting Securities, as
the case may be.
3. Employment Period. The Company hereby agrees to continue
the Executive in its employ, and the Executive hereby agrees to remain in the
employ of the Company, for the period commencing on the Effective Date and
ending on the second anniversary of such date (the "Employment Period").
4. Terms of Employment. (a) Position and Duties. (i) During
the Employment Period, (A) the Executive's position (including status, offices,
titles and reporting requirements), authority, duties and responsibilities shall
be at least commensurate in all material respects with the most significant of
those held, exercised and assigned at any time during the 90-day period
immediately preceding the Effective Date and (B) the Executive's services shall
be performed at the location where the Executive was employed immediately
preceding the Effective Date or any office or location less than 35 miles from
such location.
(ii) During the Employment Period, and excluding any periods
of vacation and sick leave to which the Executive is entitled, the Executive
agrees to devote reasonable attention and time during normal business hours to
the business and affairs of the Company and, to the extent necessary to
discharge the responsibilities assigned to the Executive hereunder, to use the
Executive's 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 (A) serve on corporate, civic or charitable
boards or committees, (B) deliver lectures, fulfill speaking engagements or
teach at educational institutions and (C) manage personal investments, so long
as such activities do not significantly interfere with the performance of the
Executive's 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 Effective
Date, the continued conduct of such activities (or the conduct of activities
similar in nature and scope thereto) subsequent to the Effective Date shall not
thereafter be deemed to interfere with the performance of the Executive's
responsibilities to the Company.
EXHIBIT B
▇▇▇▇▇▇▇ CONTROLS, INC.
CHANGE OF CONTROL
EXECUTIVE EMPLOYMENT AGREEMENT
(b) Compensation. (i) Base Salary. During the Employment
Period, the Executive shall receive an annual base salary ("Annual Base
Salary"), which shall be paid at a monthly rate, at least equal to twelve times
the highest monthly base salary paid or payable to the Executive by the Company
and its affiliated companies in respect of the twelve-month period immediately
preceding the month in which the Effective Date occurs. During the Employment
Period, the Annual Ease Salary shall be reviewed at least annually and shall be
increased at any time and from time to time as shall be substantially consistent
with increases in base salary generally awarded in the ordinary course of
business to other peer executives of the Company and its affiliated companies.
Any increase in Annual Base Salary shall not serve to limit or reduce any other
obligation to the Executive under this Agreement. Annual Base Salary shall not
be reduced after any such increase and the term Annual Base Salary as utilized
in this Agreement shall refer to Annual Base Salary as so increased. As used in
this Agreement, the term "affiliated companies" shall include any company
controlled by, controlling or under common control with the Company.
(ii) Annual Bonus. In addition to Annual Base Salary, the
Executive shall be awarded, for each fiscal year ending during the Employment
Period, an annual bonus (the "Annual Bonus") in cash at least equal to the
average annualized (for any fiscal year consisting of less than twelve full
months or with respect to which the Executive has been employed by the Company
for less than twelve full months) bonuses paid or payable, including by reason
of any deferral, including the Executive Incentive Compensation Plan and the
Long Term Performance Plan or any counterpart or successor plans thereto, to the
Executive by the Company and its affiliated companies in respect of the three
fiscal years immediately preceding the fiscal year in which the Effective Date
occurs (the "Recent Average Bonus"). Each such Annual Bonus shall be paid no
later than the end of the third month of the fiscal year next following the
fiscal year for which the Annual Bonus is awarded, unless the Executive shall
elect to defer the receipt of such Annual Bonus.
(iii) Incentive, Savings and Retirement Plans. During the
Employment Period, the Executive shall be entitled to participate in all
incentive, savings and retirement plans, practices, policies and programs
applicable generally to other peer executives of the Company and its affiliated
companies, but in no event shall such plans, practices, policies and programs
provide the Executive with incentive opportunities (measured with respect to
both regular and special incentive opportunities, to the extent, if any, that
such distinction is applicable), savings opportunities and retirement benefit
opportunities, in each case, less favorable, in the aggregate, than the most
favorable of those provided by the Company and its affiliated companies for the
Executive under such plans, practices, policies and programs as in effect at any
time during the 90-day period immediately preceding the Effective Date or if
more favorable to the Executive, those provided generally at any time after the
Effective Date to other peer executives of the Company and its affiliated
companies.
EXHIBIT B
▇▇▇▇▇▇▇ CONTROLS, INC.
CHANGE OF CONTROL
EXECUTIVE EMPLOYMENT AGREEMENT
(iv) Welfare Benefit Plans. During the Employment Period, the
Executive and/or the Executive's family, as the case may be, shall be eligible
for participation in and shall receive all benefits under welfare benefit plans,
practices, policies and programs provided by the Company and its affiliated
companies (including, without limitation, medical, prescription, dental,
disability, salary continuance, employee life, group life, accidental death and
travel, accident insurance plans and programs) to the extent applicable
generally to other peer executives of the Company and its affiliated companies,
but in no event shall such plans, practices, policies and programs provide the
Executive with benefits which are less favorable, in the aggregate, than the
most favorable of such plans, practices, policies and programs in effect for the
Executive at any time during the 90-day period immediately preceding the
Effective Date or, if more favorable to the Executive, those provided generally
at any time after the Effective Date to other peer executives of the Company and
its affiliated companies.
(v) Expenses. During the Employment Period, the Executive
shall be entitled to receive prompt reimbursement for all reasonable expenses
incurred by the Executive in accordance with the most favorable policies,
practices and procedures of the Company and its affiliated companies in effect
for the Executive at any time during the 90-day period immediately preceding the
Effective Date or, if more favorable to the Executive, as in effect generally at
any time thereafter with respect to other peer executives of the Company and its
affiliated companies.
(vi) Fringe Benefits. During the Employment Period, the
Executive shall be entitled to fringe benefits in accordance with the most
favorable plans, practices, programs and policies of the Company and its
affiliated companies in effect for the Executive at any time during the 90-day
period immediately preceding the Effective Date or, if more favorable to the
Executive, as in effect generally at any time thereafter with respect to other
peer executives of the Company and its affiliated companies.
(vii) Office and Support Staff. During the Employment Period,
the Executive shall be entitled to an office or offices of a size and with
furnishings and other appointments, and to exclusive personal secretarial and
other assistance, at least equal to the most favorable of the foregoing provided
to the Executive by the Company and its affiliated companies at any time during
the 90-day period immediately preceding the Effective Date or, if more favorable
to the Executive, as provided generally at any time thereafter with respect to
other peer executives of the Company and its affiliated companies.
(viii) Vacation. During the Employment Period, the Executive
shall be entitled to paid vacation in accordance with the most favorable plans,
policies, programs and practices of the Company and its affiliated companies as
in effect for the Executive at any time during the 90-day period immediately
preceding the Effective Date or, if more favorable to the Executive, as in
effect generally at any time thereafter with respect to other peer incentives of
the Company and its affiliated companies.
EXHIBIT B
▇▇▇▇▇▇▇ CONTROLS, INC.
CHANGE OF CONTROL
EXECUTIVE EMPLOYMENT AGREEMENT
5. Termination of Employment. (a) Death or Disability. The
Executive's employment shall terminate automatically upon the Executive's death
during the Employment Period. If 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), it may give to the Executive
written notice in accordance with Section 12(b) of this Agreement of its
intention to terminate the Executive's employment. In such event, the
Executive's employment with the Company shall terminate effective on the 30th
day after receipt of such notice by the Executive (the "Disability Effective
Date"), provided that, within the 30 days after such receipt, the Executive
shall not have returned to full-time performance of the Executive's duties. For
purposes of this Agreement, "Disability" shall mean the absence of the Executive
from the Executive's 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 acceptable to the Executive or the Executive's
legal representative (such agreement as to acceptability not to be withheld
unreasonably).
(b) Cause. The Company may terminate the Executive's
employment during the Employment Period for Cause. For purposes of this
Agreement, "Cause" shall mean (i) repeated violations by the Executive of the
Executive's obligations under Section 4(a) of this Agreement (other than as a
result of incapacity due to physical or mental illness) which are demonstrably
willful and deliberate on the Executive's part, which are committed in bad faith
or without reasonable belief that such violations are in the best interests of
the Company and which are not remedied in a reasonable period of time after
receipt of written notice from the Company specifying such violations or (ii)
the conviction of the Executive of a felony involving moral turpitude.
(c) Good Reason. The Executive's employment may be terminated
by the Executive for Good Reason. For purposes of this Agreement, "Good Reason"
shall mean
(i) the assignment to the Executive of any duties inconsistent
in any respect with the Executive's position (including status, offices, titles
and reporting requirements), authority, duties or responsibilities as
contemplated by Section 4(a) of this Agreement, or any other action by 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 Company
promptly after receipt of notice thereof given by the Executive,
(ii) any failure by the Company to comply with any of the
provisions of Section 4(b) 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;
EXHIBIT B
▇▇▇▇▇▇▇ CONTROLS, INC.
CHANGE OF CONTROL
EXECUTIVE EMPLOYMENT AGREEMENT
(iii) the Company's requiring the Executive to be based at any
office or location other than that described in Section 4(a)(i)(B) hereof;
(iv) any purported termination by the Company of the
Executive's employment otherwise than as expressly permitted by this Agreement;
or
(v) any failure by the Company to comply with and satisfy
Section 11(c) of this Agreement; or,
(vi) the Company's request that the Executive perform any
illegal, or wrongful act in violation of the Company's code of conduct
policies.
For purposes of this Section 5(c), any good faith determination of "Good Reason"
made by the Executive shall be conclusive. Anything in this Agreement to the
contrary notwithstanding, a termination by the Executive for any reason or no
reason during the 30-day period immediately following the first anniversary of
the Effective Date shall be deemed to be a termination by the Executive for Good
Reason for all purposes of this Agreement.
(d) 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 Section 12(b) of
this Agreement. For purposes of this Agreement, a "Notice of Termination" means
a written notice which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
the Executive's employment under the provision so indicated and (iii) if 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
fifteen 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 hereunder or preclude the Executive or the
Company from asserting such fact or circumstance in enforcing the Executive's or
the Company's rights hereunder.
(e) Date of Termination. "Date of Termination" means (i) if
the Executive's employment is terminated by the Company for Cause, or by the
Executive for Good Reason, the date of receipt of the Notice of Termination or
any later date specified therein, as the case may be, (ii) if the Executive's
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) if the Executive's 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.
6. Obligations of the Company upon Termination. (a) Good
Reason: Other Than for Cause, Death or Disability. If, during the Employment
Period, the Com-
EXHIBIT B
▇▇▇▇▇▇▇ CONTROLS, INC.
CHANGE OF CONTROL
EXECUTIVE EMPLOYMENT AGREEMENT
pany shall terminate the Executive's employment other than for Cause or
Disability or the Executive shall terminate employment for Good Reason:
(i) the Company shall pay to the Executive in a lump sum in
cash within 30 days after the Date of Termination the aggregate of the following
amounts (such aggregate shall be hereinafter referred to as the "Special
Termination Amount"):
A. the sum of (1) the Executive's Annual Base Salary through
the Date of Termination to the extent not theretofore paid, (2) the
product of (x) the higher of (I) the Recent Average Bonus and (II) the
Annual Bonus paid or payable, including by reason of deferral, (and
annualized for any fiscal year consisting of less than twelve full
months or for which the Executive has been employed for less than
twelve full months) for the most recently completed fiscal year during
the Employment Period, if any (the "Employment Period") and (y) a
fraction, the numerator of which is the number of days in the current
fiscal year through the Date of Termination, and the denominator of
which is 365 and (3) any compensation previously deferred by the
Executive (together with any accrued interest or earnings thereon) and
any accrued vacation pay, in each case to the extent not theretofore
paid (the sum of the amounts described in clauses (1), (2), and (3)
shall be hereinafter referred to as the "Accrued Obligations"); and
B. the amount equal to the product of (1) two and (2) the sum
of (x) the Executive's Annual Base Salary and (y) the Highest Annual
Bonus; and
C. a separate lump-sum supplemental retirement benefit equal
to the difference between (1) the actuarial equivalent (utilizing for
this purpose the actuarial assumptions utilized with respect to the
▇▇▇▇▇▇▇ Controls Pension Plan for Salaried Employees (or any successor
plan thereto) (the "Retirement Plan") during the 90-day period
immediately preceding the Effective Date) of the benefit payable under
the Retirement Plan and any supplemental and/or excess retirement plan
providing benefits for the Executive (the "SERP") which the Executive
would receive if the Executive's employment continued at the
compensation level provided for in Sections 4(b)(i) and 4(b)(ii) of
this Agreement for the remainder of the Employment Period, assuming for
this purpose that all accrued benefits are fully vested and that
benefit accrual formulas are no less advantageous to the Executive than
those in effect during the 90-day period immediately proceeding the
Effective Date, and (2) the actuarial equivalent (utilizing for this
purpose the actuarial assumptions utilized with respect to the
Retirement Plan during the 90-day period immediately preceding the
Effective Date) of the Executive's actual benefit (paid or payable), if
any, under the Retirement Plan and the SERP; and
(ii) for the remainder of the Employment Period, or such
longer period as any plan, program, practice or policy may provide, the Company
shall continue benefits to the Executive and/or the Executive's family at least
equal to those which would have been provided to them in accordance with the
plans, programs, practices
EXHIBIT B
▇▇▇▇▇▇▇ CONTROLS, INC.
CHANGE OF CONTROL
EXECUTIVE EMPLOYMENT AGREEMENT
and policies described in Section 4(b)(iv) of this Agreement if the Executive's
employment had not been terminated in accordance with the most favorable plans,
practices, programs or policies of the Company and its affiliated companies
applicable generally to other peer executives and their families during the
90-day period immediately preceding the Effective Date or, if more favorable to
the Executive, as in effect generally at any time thereafter with respect to
other peer executives of the Company and its affiliated companies and their
families, provided, however, that if the Executive becomes reemployed with
another employer and is eligible to receive medical or other welfare benefits
under another employer provided plan, the medical and other welfare benefits
described herein shall be secondary to those provided under such other plan
during such applicable period of eligibility. For purposes of determining
eligibility of the Executive for retiree benefits pursuant to such plans,
practices, programs and policies, the Executive shall be considered to have
remained employed until the end of the Employment Period and to have retired on
the last day of such period; and
(iii) to the extent not theretofore paid or provided, the
Company shall timely pay or provide to the Executive any other amounts or
benefits required to be paid or provided or which the Executive is eligible to
receive pursuant to this Agreement under any plan, program, policy or practice
or contract or agreement of the Company and its affiliated companies (such other
amounts and benefits shall be hereinafter referred to as the "Other Benefits").
(b) Death. If the Executive's employment is terminated by
reason of the Executive's death during the Employment Period, this Agreement
shall terminate without further obligations to the Executive's legal
representatives under this Agreement, other than for payment of the Special
Termination Amount and the timely payment or provision of Other Benefits. The
Special Termination Amount shall be paid to the Executive's estate or
beneficiary, as applicable, in a lump sum in cash within 30 days of the Date of
Termination. With respect to the provision of Other Benefits, the term Other
Benefits as utilized in this Section 6(b) shall include, and the Executive's
family shall be entitled to receive, benefits at least equal to the most
favorable benefits provided by the Company and any of its affiliated companies
to surviving families of peer executives of the Company and such affiliated
companies under such plans, programs, practices and policies relating to family
death benefits, if any, as in effect with respect to other peer executives and
their families at any time during the 90-day period immediately preceding the
Effective Date or, if more favorable to the Executive and/or the Executive's
family, as in effect on the date of the Executive's death with respect to other
peer executives of the Company and its affiliated companies and their families.
(c) Disability. If the Executive's employment is terminated by
reason of the Executive's Disability during the Employment Period, this
Agreement shall terminate without further obligations to the Executive, other
than for payment of the Special Termination Amount and the timely payment or
provision of Other Benefits. The Special Termination Amount shall be paid to the
Executive in a lump sum in cash within 30 days of the Date of Termination. With
respect to the provision of Other Benefits, the term
EXHIBIT B
▇▇▇▇▇▇▇ CONTROLS, INC.
CHANGE OF CONTROL
EXECUTIVE EMPLOYMENT AGREEMENT
Other Benefits as utilized in this Section 6(c) shall include, and the Executive
shall be entitled after the Disability Effective Date to receive, disability and
other benefits at least equal to the most favorable of those generally provided
by the Company and its affiliated companies to disabled executives and/or their
families in accordance with such plans, programs, practices and policies
relating to disability, if any, as in effect generally with respect to other
peer executives and their families at any time during the 90-day period
immediately preceding the Effective Date or, if more favorable to the Executive
and/or the Executive's family, as in effect at any time thereafter generally
with respect to other peer executives of the Company and its affiliated
companies and their families.
(d) Cause; Other than for Good Reason. If the Executive's
employment shall be terminated for Cause during the Employment Period, this
Agreement shall terminate without further obligations to the Executive other
than the obligation to pay to the Executive Annual Base Salary through the Date
of Termination plus the amount of any compensation previously deferred by the
Executive, in each case to the extent theretofore unpaid. If the Executive
voluntarily terminates employment during the Employment Period, excluding a
termination for Good Reason, this Agreement shall terminate without further
obligations to the Executive, other than for Accrued Obligations and the timely
payment or provision of Other Benefits. In such case, all Accrued Obligations
shall be paid to the Executive in a lump sum in cash within 30 days of the Date
of Termination.
7. Non-Exclusivity of Rights. Nothing in this Agreement shall
prevent or limit the Executive's 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.
8. Full Settlement. The Company's obligation to make the
payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Executive or others. In no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to the Executive under any of the provisions of this Agreement and such amounts
shall not be reduced whether or not the Executive obtains other employment. The
Company agrees to pay, to the full extent permitted by law, all legal fees and
expenses which the Executive may reasonably incur as a result of any contest
(regardless of the outcome thereof) by the Company, the Executive or others of
the validity or enforceability of, or liability under, any provision of this
Agree-
EXHIBIT B
▇▇▇▇▇▇▇ CONTROLS, INC.
CHANGE OF CONTROL
EXECUTIVE EMPLOYMENT AGREEMENT
ment or any guarantee of performance thereof (including as a result of any
contest by the Executive about the amount of any payment pursuant to this
Agreement), plus in each case interest on any delayed payment at the applicable
Federal rate provided for in Section 7872(f)(2)(A) of the Internal Revenue Code
of 1986, as amended (the "Code").
9. Certain Additional Payments by the Company.
(a) Anything in this Agreement to the contrary
notwithstanding, in the event it shall be determined that any payment or
distribution by the Company to or for the benefit of the Executive (whether paid
or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise, but determined without regard to any additional payments
required under this Section 9) (a "Payment") would be subject to the excise tax
imposed by Section 4999 of the Code or any interest or penalties are incurred by
the Executive with respect to such excise tax (such excise tax, together with
any such interest and penalties, are hereinafter collectively referred to as the
"Excise Tax"), then the Executive shall be entitled to receive an additional
payment (a "Gross-Up Payment") in an amount such that after payment by the
Executive of all taxes (including any interest or penalties imposed with respect
to such taxes), including, without limitation, any income taxes (and any
interest and penalties imposed with respect thereto) and Excise Tax imposed upon
the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment
equal to the Excise Tax imposed upon the Payments.
(b) Subject to the provisions of Section 9(c), all
determinations required to be made under this Section 9, including whether and
when a Gross-Up Payment is required and the amount of such Gross-Up Payment and
the assumptions to be utilized in arriving at such determination, shall be made
by PricewaterhouseCoopers LLP or such other certified public accounting firm as
may be designated by the Executive (the "Accounting Firm") which shall provide
detailed supporting calculations both to the Company and the Executive within 15
business days of the receipt of notice from the Executive that there has been a
Payment, or such earlier time as is requested by the Company. In the event that
the Accounting Firm is serving as accountant or auditor for the individual,
entity or group effecting the Change of Control, the Executive shall appoint
another nationally recognized accounting firm to make the determinations
required hereunder (which accounting firm shall then be referred to as the
Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall
be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to
this Section 9, shall be paid by the Company to the Executive within five days
of the receipt of the Accounting Firm's determination. If the Accounting Firm
determines that no Excise Tax is payable by the Executive, it shall furnish the
Executive with a written opinion that failure to report the Excise Tax on the
Executive's applicable federal income tax return would not result in the
imposition of a negligence or similar penalty. Any determination by the
Accounting Firm shall be binding upon the Company and the Executive. As a result
of the uncertainty in the application of Section 4999 of the Code at the time of
the initial determination by the Accounting Firm hereunder it is possible that
Gross-Up Payments which
EXHIBIT B
▇▇▇▇▇▇▇ CONTROLS, INC.
CHANGE OF CONTROL
EXECUTIVE EMPLOYMENT AGREEMENT
will not have been made by the Company should have been made ("Underpayment"),
consistent with the calculations required to be made hereunder. In the event
that the Company exhausts its remedies pursuant to Section 9(c) and the
Executive thereafter is required to make a payment of any Excise Tax, the
Accounting Firm shall determine the amount of the Underpayment that has occurred
and any such Underpayment shall be promptly paid by the Company to or for the
benefit of the Executive.
(c) The Executive shall notify the Company in writing of any
claim by the Internal Revenue Service that, if successful, would require the
payment by the Company of the Gross-Up Payment. Such notification shall be given
as soon as practicable but no later than ten business days after the Executive
is informed in writing of such claim and shall apprise the Company of the nature
of such claim and the date on which such claim is requested to be paid. The
Executive shall not pay such claim prior to the expiration of the 30-day period
following the date on which it gives such notice to the Company (or such shorter
period ending on the date that any payment of taxes with respect to such claim
is due). If the Company notifies the Executive in writing prior to the
expiration of such period that it desires to contest such claim, the Executive
shall:
(i) give the Company any information reasonably requested by
the Company relating to such claim,
(ii) take such action in connection with contesting such claim
as the Company shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to such claim by
an attorney reasonably selected by the Company,
(iii) cooperate with the Company in good faith in order
effectively to contest such claim, and
(iv) permit the Company to participate in any proceedings
relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limitation on the foregoing provisions of
this Section 9(c), the Company shall control all proceedings taken in connection
with such contest and, at its sole option, may pursue or forgo any and all
administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option, either direct
the Executive to pay the tax claimed and ▇▇▇ for a refund or contest the claim
in any permissible manner, and the Executive agrees 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
EXHIBIT B
▇▇▇▇▇▇▇ CONTROLS, INC.
CHANGE OF CONTROL
EXECUTIVE EMPLOYMENT AGREEMENT
the Executive to pay such claim and ▇▇▇ for a refund, the Company shall advance
the amount of such payment to the Executive, on an interest-free basis and shall
indemnify and hold the Executive harmless, on an after-tax basis, from any
Excise Tax or income tax (including interest or penalties with respect thereto)
imposed with respect to such advance or with respect to any imputed income with
respect to such advance; and further provided that any extension of the statute
of limitations relating to payment of taxes for the taxable year of the
Executive with respect to which such contested amount is claimed to be due is
limited solely to such contested amount. Furthermore, the Company's control of
the contest shall be limited to issues with respect to which a Gross-Up Payment
would be payable hereunder and the Executive shall be entitled to settle or
contest, as the case may be, any other issue raised by the Internal Revenue
Service or any other taxing authority.
(d) If, after the receipt by the Executive of an amount
advanced by the Company pursuant to Section 9(c), the Executive becomes entitled
to receive any refund with respect to such claim, the Executive shall (subject
to the Company's complying with the requirements of Section 9(c)) promptly pay
to the Company the amount of such refund (together with any interest paid or
credited thereon after taxes applicable thereto). If, after the receipt by the
Executive of an amount advanced by the Company pursuant to Section 9(c), a
determination is made that the Executive shall not be entitled to any refund
with respect to such claim and the Company does not notify the Executive in
writing of its intent to contest such denial of refund prior to the expiration
of 30 days after such determination, then such advance shall be forgiven and
shall not be required to be repaid and the amount of such advance shall offset,
to the extent thereof, the amount of Gross-Up Payment required to be paid.
10. Confidential Information. (a) The Executive shall hold in
a fiduciary capacity for the benefit of the Company all secret or confidential
information, knowledge or data relating to the Company or any of its affiliated
companies, and their respective businesses, which shall have been obtained by
the Executive during the Executive's employment by the Company or any of its
affiliated companies and which shall not be or become public knowledge (other
than by acts by the Executive or representatives of the Executive in violation
of this Agreement). During employment and for two years after termination of the
Executive's employment with the Company, the Executive, except as may otherwise
be required by law or legal process, shall not use any such information except
on behalf of the Company and shall not communicate or divulge any such
information, knowledge or data to anyone other than the Company and those
designated by it. This covenant shall survive the termination of this Agreement.
Nothing in this paragraph is intended or shall be construed to limit in any way
Executive's independent duty not to misappropriate Trade Secrets of the Company.
(b) "Trade Secret" means information of the Company, including
a formula, pattern, compilation, program, device, method, technique or process,
that derives independent economic value, actual or potential, from not being
generally known to, and
EXHIBIT B
▇▇▇▇▇▇▇ CONTROLS, INC.
CHANGE OF CONTROL
EXECUTIVE EMPLOYMENT AGREEMENT
not being readily ascertainable by proper means by, other persons who can obtain
economic value from its disclosure or use, and that is the subject of efforts by
the Company to maintain its secrecy that are reasonable under the circumstances.
During employment with the Company, Executive shall preserve and protect Trade
Secrets of the Company from unauthorized use or disclosure, and after
termination of such employment, Executive shall not use or disclose any Trade
Secret of the Company until such time as that Trade Secret is no longer a secret
as a result of circumstances other than a misappropriation involving the
Executive.
11. Successors. (a) This Agreement is personal to the
Executive and without the prior written consent of the Company shall not be
assignable by the Executive otherwise than by will or the laws of descent and
distribution. This Agreement shall inure to the benefit of and be enforceable by
the Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and be
binding upon the Company and its successors and assigns.
(c) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and 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. As used in this Agreement, "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.
12. Miscellaneous. (a) This Agreement shall be governed by and
construed in accordance with the laws of the State of Wisconsin, without
reference to principles of conflict of laws. The captions of this Agreement are
not part of the provisions hereof and shall have no force or effect. This
Agreement may not be amended or modified otherwise than by a written agreement
executed by the parties hereto or their respective successors and legal
representatives.
(b) All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Executive:
EXHIBIT B
▇▇▇▇▇▇▇ CONTROLS, INC.
CHANGE OF CONTROL
EXECUTIVE EMPLOYMENT AGREEMENT
If to the Company:
▇▇▇▇▇▇▇ Controls, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
(d) The Company may withhold from any amounts payable under
this Agreement such Federal, state or local taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
(e) The Executive's or the Company's failure to insist upon
strict compliance with any provision hereof or any other provision of this
Agreement or the failure to assert any right the Executive or the Company may
have hereunder, including, without limitation, the right of the Executive to
terminate employment for Good Reason pursuant to Section 5(c)(i)-(v) of this
Agreement, shall not be deemed to be a waiver of such provision or right or any
other provision or right of this Agreement.
(f) The Executive and the Company acknowledge that, except as
may otherwise be provided under any other written agreement between the
Executive and the Company, the employment of the Executive by the Company is "at
will" and, prior to the Effective Date, may be terminated by either the
Executive or the Company at any time. Moreover, if prior to the Effective Date,
(i) the Executive's employment with the Company terminates or (ii) the Executive
ceases to be an officer of the Company, then the Executive shall have no further
rights under this Agreement. From and after the Effective Date this Agreement
shall supersede any other agreement between the parties with respect to the
subject matter hereof.
IN WITNESS WHEREOF, the Executive has hereunto set the
Executive's hand and, pursuant to the authorization from its Board of Directors,
the Company has caused these presents to be executed in its name on its behalf,
all as of the day and year first above written.
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[Executive]
▇▇▇▇▇▇▇ CONTROLS, INC.
By
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