Exhibit 10.1(a)
TERMINATION AGREEMENT AND RELEASE
THIS AGREEMENT has been entered into as of the ____ day of
____________, 2000, among XXXXX INC., a Delaware corporation (the "Company"),
XXXXX-SUNDSTRAND GMBH & CO. (the "Operating Company"), and XXXXX GMBH & CO.
HYDRAULIK KG, XXXXX GMBH, AND EMF EUROPAEISCHE MARKETING UND FINANZMANAGEMENT
AKTIENGESELLSCHAFT (collectively the "Silent Partners" and individually a
"Silent Partner").
The Company, the Operating Company and each of the Silent Partners, or
their assignor, entered into the Amended and Restated Agreement regarding the
establishment of a silent partnership between the Operating Company, the Silent
Partners (or their assignor), the Company and Xxxxx-Sundstrand GmbH dated April
14, 1998 (the "Agreement"). A Notice of Termination was delivered on September
9, 1999 by the Operating Company and the independent directors of the Company to
the Silent Partners advising that the silent partnership and the silent
partnership interests described in the Agreement would be terminated pursuant to
Sections 2.2(b) and 2.3 of the Agreement upon the consummation of the
acquisition by the Company of the fluid power business of Danfoss A/S (the
"Acquisition"). The parties hereto desire to formally terminate the Agreement
and the silent partnership and silent partnership interests described therein
concurrently with the consummation of the Acquisition.
NOW, THEREFORE, for the consideration referred to below and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and in consideration of the mutual covenants and agreements herein
contained, the parties hereto, intending to be legally bound hereby, do hereby
unconditionally agree as follows:
1. TERMINATION EXCHANGE. Pursuant to Section 11.2 of the Agreement, the
Company has issued and delivered stock certificates to the Silent Partners
representing in the aggregate 2,250,000 shares of the common stock of the
Company in exchange for the silent partnership interests described in the
Agreement, and each Silent Partner acknowledges receipt of its prorata share of
such common stock.
2. TAX REIMBURSEMENT. The Company or the Operating Company shall, as
provided in Section 11.2 of the Agreement, pay each Silent Partner an amount in
cash equal to the German income tax payable by such Silent Partner directly as a
result of the exchange described in Section 1 above, subject to certain
adjustments, and provided that such amount shall not exceed DM 23,354,400 in the
aggregate for all silent partners. The foregoing tax reimbursement shall be paid
on or before June 1, 2000.
3. PRIVATE ACCOUNT NET BALANCE. The Operating Company agrees to pay
each Silent Partner the net balance in its private account with respect to the
silent partnership, which amount shall include its prorata share of the
Operating Company's profit or loss for the current fiscal year.
4. TERMINATION OF THE AGREEMENT. The Agreement and the silent
partnership and silent partnership interests referred to therein, are hereby
terminated and the Agreement shall be of no further force or effect and the
Silent Partners shall have no further right or interest in the Agreement or the
silent partnership or silent partnership interests referred to therein.
5. SILENT PARTNERS' RELEASE. Each Silent Partner, on behalf of itself,
all of its subsidiaries, and all of its shareholders, partners or members and
any and all other parties claiming or who might hereafter claim any right
through such Silent Partner (collectively whether one or more the "Silent
Partner Releasing Party") does forever release and discharge the Company, the
Operating Company, their subsidiaries and affiliates and their past and present
officers, directors, employees, agents, representatives, stockholders, advisors,
counsel, joint venturers, partners, predecessors, successors and assigns, and
all other related persons, corporations and other entities who are or might be
liable (all of the foregoing collectively referred to as the "Released
Parties"), from all claims, rights of action, causes of action, liabilities and
demands of every kind and character whatsoever, known or unknown, developed or
undeveloped, which each Silent Partner or any Silent Partner Releasing Party now
has or under any circumstances could or might have against any or all of the
Released Parties in connection with, arising out of, or regarding in any way,
the Agreement or the silent partnership or silent partnership interests
described in the Agreement.
6. SILENT PARTNERS' COVENANT NOT TO XXX. Each Silent Partner, on behalf
of itself and any and all of its Silent Partner Releasing Parties, covenants and
agrees that such Silent Partner will not xxx, institute, cause to be instituted,
assist in instituting or permit to be instituted, on behalf of such Silent
Partner or any of its Silent Partner Releasing Parties, any proceeding before
any court, tribunal or other body, or otherwise bring any challenge or assist in
any challenge, with respect to any claim or matter of any and every nature
whatsoever that has been, could have been, or could ever be asserted against any
or all of the Released Parties in connection with, arising out of, or regarding
in any way, the Agreement or the silent partnership or silent partnership
interests referred to in the Agreement.
7. COMPLETE DEFENSE. This Agreement may be pleaded as a full and
complete defense to, or an abatement of, and may be used as the basis for an
injunction against any action, suit or other proceeding of any kind whatsoever
which may be instituted, prosecuted, maintained or attempted in breach of this
Agreement.
8. SPECIFIC PERFORMANCE. The parties hereto acknowledge that damages
would be an inadequate remedy for any breach of the provisions of this Agreement
and agree that the obligations of the parties hereunder shall be specifically
enforceable.
9. TERMINATION AGREEMENT. Notwithstanding anything in this Termination
Agreement and Release to the contrary, this Termination Agreement and Release
shall not limit or effect the rights or remedies in any way whatsoever of any
Silent Partner under Sections 2 and 3 of this Termination Agreement and Release.
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10. ENTIRE AGREEMENT. This Termination Agreement and Release contains
the entire agreement between the parties with respect to the subject matter of
this Termination Agreement and Release and supersedes all prior agreements and
understandings, oral or written, between the parties hereto with respect to the
subject matter of this Termination Agreement and Release, including, without
limitation, the termination of the Agreement and the silent partnership and
silent partnership interests described in the Agreement. No additional
obligations or understandings shall be inferred from any of the terms of this
Termination Agreement and Release, as all obligations, agreements and
understandings with respect to the subject matter hereof are solely and
expressly set forth herein. This Termination Agreement and Release shall be
deemed to have been executed in Ames, Iowa, and the validity, interpretation,
construction and performance of this Termination Agreement and Release shall be
governed by the laws of the State of Iowa applicable to agreements made and to
be entirely performed therein, without regard to conflicts of laws principles.
11. COUNTERPARTS. This Termination Agreement and Release may be
executed in counterparts with the same force and effect as if each of the
signatories had executed the same document.
12. HEADINGS. The headings contained herein are for reference purposes
only and shall not in any way affect the meaning or interpretation of any
provision of this Termination Agreement and Release.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
"THE COMPANY"
XXXXX INC.
By:
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(Print Name and Title)
"THE OPERATING COMPANY"
XXXXX-SUNDSTRAND GMBH & CO.
By:
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(Print Name and Title)
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"THE SILENT PARTNERS"
XXXXX GMBH & CO. HYDRAULIK KG
By:
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Xxxxx Xxxxxxx, Partner
XXXXX GMBH
By:
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Xxxxx Xxxxxxx, Managing Director
EMF EUROPAEISCHE MARKETING
UND FINANZMANAGEMENT AKTIENGESELLSCHAFT
By:
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Xxxxx Xxxxxxx, Executive Director
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