Exhibit 10 (b)
TERMINATION OF EMPLOYMENT AGREEMENT
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THIS AGREEMENT made as of the 1st day of January, 1998 between Kulicke
and Xxxxx Industries, Inc. ("K&S") and ______________ ("Officer"),
WITNESSETH;
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WHEREAS, Officer is employed by K&S or a wholly-owned subsidiary of K&S
and such employment is terminable at will by either Officer, K&S or the
wholly-owned subsidiary of K&S,
WHEREAS, Officer is willing to continue the employment on an at-will
basis under present management if the protections set forth herein are
provided to Officer upon the occurrence of a "Change in Management" as
hereinafter defined, and
WHEREAS, K&S desires to retain the services of Officer,
NOW THEREFORE, the parties hereto, intending to be legally bound, agree
as follows:
1. For the purposes of this Agreement, the following words and phrases
shall have the following meanings:
(a) "K&S" means Kulicke and Xxxxx Industries, Inc. and any
successor corporation thereto.
(b) "Board of Directors" means the Board of Directors of K&S or of
any successor corporation thereto.
(c) "Directors" means members of the Board of Directors.
(d) A "Change in Management" shall mean either of the following
events:
(i) An acquisition (other than directly from K&S) of any
voting securities of K&S ("Voting Securities") by any "Person" (as such term
is used for purposes of section 13(d) or 14(d) of the Securities Exchange
Act of 1934, as amended (the "1934 Act")) immediately after which such
Person has "Beneficial Ownership" (within the meaning of Rule 13d-3
promulgated under the 0000 Xxx) of 50% or more of the combined voting power
of all then outstanding Voting Securities, provided, however, that any such
acquisition approved by two-thirds of the Incumbent Board (as hereinafter
defined) shall not be deemed to be a Change in Management; or
(ii) The individuals who, as of December 9, 1997, are members
of K&S' Board of Directors (the "Incumbent Board") cease for any reason to
constitute at least two-thirds of the Board of Directors; provided, however,
that if the election, or nomination for election by the shareholders, of any
new director was approved by a vote of at least two-thirds of the members of
the Board of Directors who constitute Incumbent Board members, such new
director shall for all purposes be considered as members of the Incumbent
Board as of December 9, 1997; provided further, however, that no individual
shall be considered as a member of the Incumbent Board if such individual
initially assumed office as a result of either an actual or threatened
"Election Contest" (as described in Rule 14a-11 promulgated under the 0000
Xxx) or other actual or threatened solicitation of proxies or consents by or
on behalf of a Person other than the Board of Directors (a "Proxy Contest")
including by reason of any agreement intended to avoid or settle any
Election Contest or Proxy Contest.
2. If a Change in Management occurs and Officer's employment by K&S or
a K&S subsidiary is terminated, other than voluntarily by the Officer or for
cause by K&S or the K&S subsidiary, within 18 months following such Change
in Management, K&S or its successor shall pay Officer termination pay as
follows:
The lesser of:
(a) ___ months pay at the total cash compensation rate targeted
for the Officer (base salary plus cash incentive) for the fiscal year during
which the Change in Management occurs, or
(b) Ten dollars less than that amount which would subject Officer
to excise tax with respect to such payment under Section 4999 of the
Internal Revenue Code of 1986 (the "Code") or make any payment hereunder
non-deductible by K&S under Section 280 G (a) of the Code by virtue of the
payment being deemed an "excess parachute payment."
Termination of employment shall be deemed to be for cause only if such
termination is for intentional dishonesty or Officer's physical or mental
incapacity or willful refusal to perform the duties of his office persisting
for at least 30 days after written notice thereof specifying the respects in
which such duties are not being performed. If Officer resigns or quits
because his duties and/or responsibilities have been substantially reduced
or he is otherwise harassed by management or because his place of employment
has been changed to a place more than 35 miles from his place of employment
immediately prior to the Change in Management or because his base rate of
compensation or total targeted compensation has been reduced, his employment
shall not be deemed to have been terminated voluntarily by the Officer.
3. The total termination pay provided for herein shall be fixed on the
date of Officer's termination and paid to Officer, his heirs or estate, in
equal monthly installments on the first day of each month commencing with
the first day of the month following Officer's termination and continuing
for that number of months provided for herein.
4. Any payments made hereunder shall be in lieu of any other
termination pay to which Officer might otherwise be entitled.
5. Any payments made hereunder shall be in addition to and shall not
affect any rights, other than rights to termination pay, Officer may have at
the time a Change in Management occurs.
6. Nothing herein shall give or be construed to give to Officer any
rights unless and until a Change in Management shall have occurred. Without
limiting the generality of the foregoing, this Agreement shall confer no
rights on Officer to remain in the employ of K&S or its subsidiaries, nor
shall this Agreement confer any rights on Officer in the event of discharge,
with or without cause, prior to the occurrence of a Change in Management.
7. All disputes and contested claims arising out of, or in connection
with, this Agreement shall be decided by arbitration in Philadelphia,
Pennsylvania in accordance with the Commercial Arbitration Rules of the
American Arbitration Association as then in effect and the decision or
decisions reached in such arbitration shall be final and binding, and
judgment thereon may be entered in any court having jurisdiction. The
expenses of arbitration, other than the fees and expenses of Officer's
counsel and expert witnesses, shall be paid by K&S. If the Officer is
awarded any sums by the arbitration panel, it shall also award him the
reasonable fees and expenses of his counsel.
8. This Agreement shall, unless renewed by a written agreement
executed by K&S and Officer, terminate on, and be of no force and effect
after, December 31, 2000, provided that if a Change in Management shall have
occurred prior to that date this Agreement shall automatically be extended,
if necessary, to the date that is 18 months and one day after such Change in
Management. Termination of this Agreement shall not discharge any
obligations to make payment that have theretofore arisen under Section 2
hereof.
9. This Agreement cancels, supersedes and replaces any and all prior
Termination of Employment Agreements between K&S and Officer.
IN WITNESS WHEREOF, K&S has caused this Agreement to be executed by its
duly authorized officers under its common or corporate seal, and Officer has
set his hand and seal, on the day and year first above written.
KULICKE AND XXXXX INDUSTRIES, INC.
By________________________________
Attest:
___________________________
(Corporate Seal)
OFFICER
_________________________________