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Exhibit 99.09
SEVERANCE PROTECTION AGREEMENT
THIS AGREEMENT is made as of the day of July, 1996, by and between
Tylan General, Inc. (the "Company") and (the "Executive").
WHEREAS, the Board of Directors of the Company (the "Board")
recognizes that the possibility of a Change in Control (as hereinafter defined)
exists and that the threat or the occurrence of a Change in Control can result
in significant distractions of its key management personnel because of the
uncertainties inherent in such a situation;
WHEREAS, the Board has determined that it is essential and in the
best interest of the Company and its stockholders to retain the services of the
Executive in the event of a threat or occurrence of a Change in Control and to
ensure his continued dedication and efforts in such event without undue concern
for his personal financial and employment security; and
WHEREAS, in order to induce the Executive to remain in the employ of
the Company, particularly in the event of a threat or the occurrence of a Change
in Control, the Company desires to enter into this Agreement with the Executive
to provide the Executive with certain benefits in the event his employment is
terminated as a result of, or in connection with, a Change in Control and to
provide the Executive with certain other benefits whether or not the Executive's
employment is terminated.
NOW, THEREFORE, in consideration of the respective agreements of the
parties contained herein, it is agreed as follows:
1. Term of Agreement. This Agreement shall commence as of the date
hereof and shall continue in effect until December 31, 1998; provided, however,
that on December 31, 1997 and on each anniversary thereof, the term of this
Agreement shall automatically be extended for one year unless either the Company
or the Executive shall have given written notice to the other prior thereto that
the term of this Agreement shall not be so extended; and provided, further,
however, that notwithstanding any such notice by the Company not to extend, the
term of this Agreement shall not expire prior to the expiration of 15 months
after the occurrence of a Change in Control.
2. Definitions.
2.1 Accrued Compensation. For purposes of this Agreement,
"Accrued Compensation" shall mean an amount which shall include all amounts
earned or accrued through the "Termination Date" (as hereinafter defined)
but not paid as of the Termination Date including (i) base salary, (ii)
reimbursement for reasonable and necessary expenses incurred by the
Executive on behalf of the Company during the period ending on the
Termination Date, (iii) vacation and sick leave pay (to the extent
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provided by Company policy or applicable law), and (iv) bonuses and
incentive compensation (other than the "Pro Rata Bonus" (as hereinafter
defined)).
2.2 Base Amount. For purposes of this Agreement, "Base Amount"
shall mean the greater of (a) the Executive's annual base salary at the
rate in effect immediately prior to the Change in Control and (b) the
Executive's annual base salary at the rate in effect on the Termination
Date, and shall include all amounts of his base salary that are deferred
under the qualified and non-qualified employee benefit plans of the Company
or any other agreement or arrangement.
2.3 Bonus Amount. For purposes of this Agreement, "Bonus
Amount" shall mean the greater of the Executive's annual bonus (without
giving effect to any pro ration) for the fiscal year in which a Change in
Control has occurred and the Executive's annual bonus (without giving
effect to any pro ration) for the fiscal year in which the Termination Date
occurs (calculated in accordance with any plan, policy, agreement, or
arrangement pursuant to which the Executive is entitled to an annual
bonus).
2.4 Cause. For purposes of this Agreement, a termination of
employment is for "Cause" if the Executive has been convicted of a felony
involving moral turpitude or the termination is evidenced by a resolution
adopted in good faith by two-thirds of the Board that the Executive (a)
intentionally and continually failed substantially to perform his
reasonably assigned duties with the Company (other than a failure resulting
from the Executive's incapacity due to physical or mental illness or from
the Executive's assignment of duties that would constitute "Good Reason" as
hereinafter defined) which failure continued for a period of at least
thirty days after a written notice of demand for substantial performance
has been delivered to the Executive specifying the manner in which the
Executive has failed substantially to perform, or (b) intentionally engaged
in conduct which is demonstrably and materially injurious to the Company;
provided, however, that no termination of the Executive's employment shall
be for Cause until (x) there shall have been delivered to the Executive a
copy of a written notice setting forth that the Executive was guilty of the
conduct set forth in this Section 2.4 and specifying the particulars
thereof in detail, and (y) the Executive shall have been provided an
opportunity to be heard in person by the Board (with the assistance of the
Executive's counsel if the Executive so desires). Neither an act nor a
failure to act, on the Executive's part shall be considered "intentional"
unless the Executive has acted or failed to act with a lack of good faith
and with a lack of reasonable belief that the Executive's action or failure
to act was in the best interest of the Company. Notwithstanding anything
contained in this Agreement to the contrary, no failure to perform by the
Executive after a Notice of Termination is given by the Executive shall
constitute Cause for purposes of this Agreement.
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2.5 Change in Control. For purposes of this Agreement, a
"Change in Control" shall mean any of the following events:
(a) An acquisition (other than directly from the
Company) of any voting securities of the Company (the "Voting
Securities") by any "Person" (as the term person 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 ▇▇▇▇ ▇▇▇) of thirty percent or more of the combined voting
power of the Company's then outstanding Voting Securities; provided,
however, that in determining whether a Change in Control has occurred,
Voting Securities which are acquired in a "Non-Control Acquisition" (as
hereinafter defined) shall not constitute an acquisition which would
cause a Change in Control. A "Non-Control Acquisition" shall mean an
acquisition by (1) an employee benefit plan (or a trust forming a part
thereof) maintained by (x) the Company or (y) any corporation or other
Person of which a majority of its voting power or its equity securities
or equity interest is owned directly or indirectly by the Company (a
"Subsidiary"), (2) the Company or any Subsidiary, or (3) any Person in
connection with a "Non-Control Transaction."
(b) The individuals who, as of the date hereof, are
members of the Board (the "Incumbent Board"), cease for any reason to
constitute at least two-thirds of the Board; provided, however, that if
the election, or nomination for election by the Company's stockholders,
of any new director was approved by a vote of at least two-thirds of
the then Incumbent Board, such new director shall, for purposes of this
Agreement, be considered as a member of the Incumbent Board; provided,
further, however, that no individual shall be considered 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 ▇▇▇▇ ▇▇▇) or other
actual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board (a "Proxy Contest") including
by reason of any agreement intended to avoid or settle any Election
Contest or Proxy Contest; or
(c) Approval by stockholders of the Company of:
(1) A merger, consolidation or
reorganization involving the Company, unless
(A) the stockholders of the Company,
immediately before such merger, consolidation or
reorganization, own, directly or indirectly, immediately
following such merger, consolidation or
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reorganization, at least seventy percent of the combined
voting power of the outstanding Voting Securities of the
corporation resulting from such merger or consolidation or
reorganization (the "Surviving Corporation") in substantially
the same proportion as their ownership of the Voting
Securities immediately before such merger, consolidation or
reorganization, and
(B) the individuals who were members
of the Incumbent Board immediately prior to the execution of
the agreement providing for such merger, consolidation or
reorganization constitute at least two-thirds of the members
of the board of directors of the Surviving Corporation or a
corporation beneficially owning, directly or indirectly, a
majority of the Voting Securities of the Surviving
Corporation, and
(C) no Person (other than the
Company, any Subsidiary, any employee benefit plan (or any
trust forming a part thereof) maintained by the Company, the
Surviving Corporation or any Subsidiary, or any Person who,
immediately prior to such merger, consolidation or
reorganization had Beneficial Ownership of fifteen percent or
more of the then outstanding Voting Securities) owns, directly
or indirectly, fifteen percent or more of the combined voting
power of the Surviving Corporation's then outstanding voting
securities, and
(D) a transaction described in
clauses (A) through (C) shall herein be referred to as a
"Non-Control Transaction";
(2) A complete liquidation or dissolution of
the Company; or
(3) An agreement for the sale or other
disposition of all or substantially all of the assets of the
Company to any Person (other than a transfer to a Subsidiary).
Notwithstanding the foregoing, a Change in Control shall not be deemed
to occur solely because any Person (the "Subject Person") acquired
Beneficial Ownership of more than the permitted amount of the
outstanding Voting Securities as a result of the acquisition of Voting
Securities by the Company which, by reducing the number of Voting
Securities outstanding, increases the proportional number of shares
Beneficially Owned by the Subject Person, provided that if a Change in
Control would occur (but for the operation of this sentence) as a
result of the acquisition of Voting Securities by the Company, and
after such share acquisition by the Company, the Subject Person becomes
the Beneficial Owner of any
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additional Voting Securities which increases the percentage of the then
outstanding Voting Securities Beneficially Owned by the Subject Person,
then a Change in Control shall occur.
(d) Notwithstanding anything contained in this
Agreement to the contrary, if the Executive's employment is terminated
prior to a Change in Control and the Executive reasonably demonstrates
that such termination (i) was at the request of a third party who has
indicated an intention or taken steps reasonably calculated to effect a
Change in Control and who effectuates a Change in Control (a "Third
Party") or (ii) otherwise occurred in connection with, or in
anticipation of, a Change in Control which actually occurs, then for
all purposes of this Agreement, the date of a Change in Control with
respect to the Executive shall mean the date immediately prior to the
date of such termination of the Executive's employment.
2.6 Company. For purposes of this Agreement, the "Company"
shall include the Company's "Successors and Assigns" (as hereinafter
defined).
2.7 Disability. For purposes of this Agreement, "Disability"
shall mean a physical or mental infirmity which impairs the Executive's
ability to substantially perform his duties with the Company for a
period of one hundred eighty consecutive days and the Executive has not
returned to his full time employment prior to the Termination Date as
stated in the "Notice of Termination" (as hereinafter defined).
2.8 Good Reason. (a) For purposes of this Agreement,
"Good Reason" shall mean the occurrence after a Change in Control of
any of the events or conditions described in subsections (1) through
(9) hereof:
(1) a change in the Executive's status,
title, position or responsibilities (including reporting
responsibilities) which, in the Executive's reasonable judgment,
represents an adverse change from his status, title, position or
responsibilities as in effect at any time within ninety days
preceding the date of a Change in Control or at any time
thereafter; the assignment to the Executive of any duties or
responsibilities which, in the Executive's reasonable judgment,
are inconsistent with his status, title, position or
responsibilities as in effect at any time within ninety days
preceding the date of a Change in Control or at any time
thereafter; or any removal of the Executive from or failure to
reappoint or reelect him to any of such offices or positions,
except in connection with the termination of his employment for
Disability, Cause, as a result of his death or by the Executive
other than for Good Reason, provided, however, that, for purposes
of this Section 2.8(a)(i), the fact that a Change in
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Control has occurred, in and of itself, shall not be deemed to
constitute Good Reason;
(2) a reduction in the Executive's base
salary or any failure to pay the Executive any compensation or
benefits to which he is entitled within five days of notice
thereof;
(3) the Company's requiring the Executive to
be based at any place outside a 25-mile radius from his primary
place of employment (at the time of the Change of Control), except
for reasonably required travel on the Company's business which is
not materially greater than such travel requirements prior to the
Change in Control;
(4) the failure by the Company to provide
the Executive with compensation and benefits, in the aggregate, at
least equal (in terms of benefit levels and/or reward
opportunities) to those provided for under each other employee
benefit plan, program and practice in which the Executive was
participating at any time within ninety days preceding the date of
a Change in Control or at any time thereafter;
(5) the insolvency or the filing (by any
party, including the Company) of a petition for bankruptcy of the
Company, which petition is not dismissed within sixty days;
(6) any material breach by the Company of
any provision of this Agreement;
(7) any purported termination of the
Executive's employment for Cause by the Company which does not
comply with the terms of Section 2.4;
(8) any event or occurrence constituting
"good reason," as it may be defined in any agreement between the
Executive and the Company or any of its affiliates; or
(9) the failure of the Company to obtain an
agreement, satisfactory to the Executive, from any Successors and
Assigns to assume and agree to perform this Agreement, as
contemplated in Section 7 hereof.
(b) Any event or condition described in Section
2.8(a)(1) through (9) which occurs prior to a Change in Control but
which the Executive reasonably demonstrates (1) was at the request of a
Third Party, or (2) otherwise arose in connection with, or in
anticipation of, a Change in Control which actually occurs,
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shall constitute Good Reason for purposes of this Agreement
notwithstanding that it occurred prior to the Change in Control.
(c) The Executive's right to terminate his employment
pursuant to this Section 2.8 shall not be affected by his incapacity
due to a Disability
2.9 Notice of Termination. For purposes of this Agreement,
following a Change in Control, "Notice of Termination" shall mean a written
notice of termination from the Company of the Executive's employment which
indicates the specific termination provision in this Agreement relied upon
and which 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.
2.10 Pro Rata Bonus. For purposes of this Agreement, "Pro Rata
Bonus" shall have the meaning ascribed to such term in any agreement
between the Executive and the Company or any of its affiliates, or if no
such agreement with respect to such term exists, shall mean an amount equal
to (a) the Bonus Amount, multiplied by a fraction, (i) the numerator of
which is the number of days from the first day of the Company's fiscal year
in which the Executive ceases to be employed by the Company until the
Termination Date, and (ii) the denominator of which is 365, less (b) any
bonus included in the Bonus Amount in respect of such fiscal year and
previously paid.
2.11 Successors and Assigns. For purposes of this Agreement,
"Successors and Assigns" shall mean a corporation or other entity acquiring
all or substantially all the assets and business of the Company whether by
operation of law or otherwise, and any affiliate of such Successors and
Assigns.
2.12 Termination Date. For purposes of this Agreement,
"Termination Date" shall mean (a) in the case of the Executive's death, his
date of death, (b) in the case of Good Reason, the last day of his
employment, and (c) in all other cases, the date specified in the Notice of
Termination; provided, however, that if the Executive's employment is
terminated by the Company for Cause or due to Disability, the date
specified in the Notice of Termination shall be at least 30 days from the
date the Notice of Termination is given to the Executive, provided that in
the case of Disability the Executive shall not have returned to the
full-time performance of his duties during such period of at least 30 days.
3. Termination of Employment.
3.1 Severance Pay and Benefits. If, during the term of this
Agreement, the Executive shall cease to be employed by Company prior to the
expiration of 15
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months after the occurrence of a Change in Control, the Executive shall be
entitled to the following compensation and benefits:
(a) If the Executive's employment with the Company
shall be terminated (x) by the Company for Cause or Disability, (y) by
reason of the Executive's death, or (z) by the Executive other than for
Good Reason, the Company shall pay to the Executive the Accrued
Compensation and, if such termination is other than by the Company for
Cause, the Pro Rata Bonus.
(b) If the Executive's employment with the Company
shall be terminated by the Company other than for Cause or Disability
or the Executive's employment with the Company shall be terminated by
the Executive for Good Reason, the Executive shall be entitled to the
following:
(1) the Company shall pay the Executive all
Accrued Compensation and a Pro-Rata Bonus;
(2) the Company shall pay the Executive as
severance pay and in lieu of any further compensation for periods
subsequent to the Termination Date, in a single payment an amount
in cash equal to one times the sum of (A) the Base Amount and (B)
the Bonus Amount.
(3) for a number of months equal to 12 (the
"Continuation Period"), the Company shall at its expense continue
on behalf of the Executive and his dependents and beneficiaries
the medical, dental and hospitalization benefits provided (x) to
the Executive at any time during the 90-day period prior to the
Change in Control or at any time thereafter or (y) to other
similarly situated executives who continue in the employ of the
Company during the Continuation Period. The coverage and benefits
(including deductibles and costs) provided in this Section
3.1(b)(3) during the Continuation Period shall be no less
favorable to the Executive and his dependents and beneficiaries,
than the most favorable of such coverages and benefits during any
of the periods referred to in clauses (x) and (y) above. The
Company's obligation hereunder with respect to the foregoing
benefits shall be limited to the extent that the Executive obtains
any such benefits pursuant to a subsequent employer's benefit
plans, in which case the Company may reduce the coverage of any
benefits it is required to provide the Executive hereunder as long
as the aggregate coverages and benefits of the combined benefit
plans is no less favorable to the Executive than the coverages and
benefits required to be provided hereunder. This subsection (3)
shall not be interpreted so as to limit any benefits to which the
Executive, his dependents or beneficiaries may be entitled under
any of the Company's employee benefit plans, programs or
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practices following the Executive's termination of employment,
including without limitation, retiree medical and life insurance
benefits;
3.2 Payment Form. The amounts provided for in Sections 3.1(a)
and 3.1(b)(1) and (2) shall be paid in a single lump sum cash payment
within five days after the Executive's Termination Date (or earlier, if
required by applicable law).
3.3 No Mitigation. The Executive shall not be required to
mitigate the amount of any payment provided for in this Agreement by
seeking other employment or otherwise and no such payment shall be offset
or reduced by the amount of any compensation or benefits provided to the
Executive in any subsequent employment except as provided in Section
3.1(b)(3).
3.4 Other Severance Arrangements. If the Executive is entitled
to severance pay and benefits pursuant to this Agreement following a
Change in Control, the following shall apply:
(a) The severance pay and benefits provided for in
this Section 3 shall be reduced by the amount of any other severance or
termination pay to which the Executive may be entitled under any
agreement with the Company or any of its Affiliates.
(b) The Executive's entitlement to any other
compensation or benefits or any indemnification shall be determined in
accordance with the Company's employee benefit plans and other
applicable programs, policies and practices or any indemnification
agreement then in effect.(1)
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(1) Because ▇▇. ▇▇▇▇▇'▇ Employment Agreement provides for certain
severance payments, Section 3.4 of ▇▇. ▇▇▇▇▇'▇ ▇▇▇▇▇▇▇▇▇ Protection Agreement
reads in full as follows:
"Other Severance Arrangements. If the Executive is entitled to
severance pay and benefits pursuant to this Agreement following a Change in
Control, the following shall apply:
(a) The Employment Agreement among the Company, Span Instruments, Inc.
("Span") and the Executive, dated July 3, 1996 (as it may be amended,
supplemented, restated or replaced from time to time, including any such
amendment, supplement, restatement or replacement that is between the Company,
Span and the Executive) (the "Existing Employment Agreement"), shall continue in
full force and effect in accordance with its terms; provided, however, that if
the Executive resigns or is terminated with or without cause, the amount payable
to the Executive pursuant to Section 3.1 of this Agreement shall be reduced by
an amount equal to the aggregate amount payable or paid
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to the Executive pursuant to Section 4(a), Section 4(c) or Section 4(d) of the
Existing Employment Agreement, as the case may be, but in any event the amount
payable to the Executive pursuant to Section 3.1 of this Agreement shall not be
reduced to an amount less than zero; and provided, further, that if any amount
payable to the Executive pursuant to Section 4(a), Section 4(c) or Section 4(d)
of the Existing Employment Agreement is not actually paid to the Executive (for
whatever reason or no reason, whether in accordance with the last sentence of
Section 4(a) of the Existing Employment Agreement or otherwise) within the one
year period subsequent to the Termination Date, all remaining unpaid amounts
described in Section 4(a), Section 4(c) or Section 4(d) of the Existing
Employment Agreement shall become immediately due and payable pursuant to this
Agreement with interest at the prime rate plus 2% or at the maximum rate
permitted by applicable law, if lower (for purposes of this subsection (a), the
prime rate will be the prime commercial lending rate as announced from time to
time by Bank of America NT&SA, or its successor, as in effect at the close of
business on the business day preceding the Termination Date).
(b) The severance pay and benefits provided for in this Section 3 shall
be reduced by the amount of any other severance or termination pay to which the
Executive may be entitled under any agreement with the Company or any of its
Affiliates.
(c) The Executive's entitlement to any other compensation or benefits
or any indemnification shall be determined in accordance with the Company's
employee benefit plans and other applicable programs, policies and practices or
any indemnification agreement then in effect."
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4. Notice of Termination. Following a Change in Control, any purported
termination of the Executive's employment by the Company shall be communicated
by Notice of Termination to the Executive. For purposes of this Agreement, no
such purported termination shall be effective without such Notice of
Termination.
5. Excise Tax Limitation.
5.1 Notwithstanding anything contained in this Agreement to
the contrary, to the extent that the payments and benefits provided under
this Agreement and benefits provided to, or for the benefit of, the
Executive under any other Company plan or agreement (such payments or
benefits are collectively referred to as the "Payments") would be subject
to the excise tax (the "Excise Tax") imposed under Section 4999 of the
Internal Revenue Code of 1986, as amended (the "Code"), the Payments shall
be reduced (but not below zero) if and to the extent necessary so that no
Payment to be made or benefit to be provided to the Executive shall be
subject to the Excise Tax (such reduced amount is hereinafter referred to
as the "Limited Payment Amount"). Unless the Executive shall have given
prior written notice specifying a different order to the Company to
effectuate the foregoing, the Company shall reduce or eliminate the
Payments, by first reducing or eliminating the portion of the Payments
which are not payable in cash and then by reducing or eliminating cash
payments, in each case in reverse order beginning with payments or benefits
which are to be paid the farthest in time from the Determination (as
hereinafter defined). Any notice given by the Executive pursuant to the
preceding sentence shall take precedence over the provisions of any other
plan, arrangement or agreement governing the Executive's rights and
entitlements to any benefits or compensation.
5.2 The determination of whether the Payments shall be reduced
to the Limited Payment Amount pursuant to this Agreement and the amount of
such Limited Payment Amount shall be made, at the Company's expense, by an
accounting firm selected by the Executive which is one of the six largest
accounting firms in the United States (the "Accounting Firm"). The
Accounting Firm shall provide its determination (the "Determination"),
together with detailed supporting calculations and documentation to the
Company and the Executive within ten days of the Termination Date, if
applicable, or such other time as requested by the Company or by the
Executive (provided the Executive reasonably believes that any of the
Payments may be subject to the Excise Tax) and if the Accounting Firm
determines that no Excise Tax is payable by the Executive with respect to
the Payments, it shall furnish the Executive with an opinion reasonably
acceptable to the Executive that no Excise Tax will be imposed with respect
to any such Payments. The Determination shall be binding, final and
conclusive upon the Company and the Executive.
6. Successors; Binding Agreement.
6.1 This Agreement shall be binding upon and shall inure to
the benefit of the Company, its Successors and Assigns, and the Company
shall require any Successors and Assigns to expressly assume 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 or assignment
had taken place.
6.2 Neither this Agreement nor any right or interest hereunder
shall be assignable or transferable by the Executive, his beneficiaries or
legal representatives, except by will or by the laws of descent and
distribution. This Agreement shall inure to the benefit of and be
enforceable by the Executive's legal personal representative.
7. Fees and Expenses. The Company shall pay all legal fees and related
expenses (including the costs of experts, evidence and counsel) reasonably
incurred by the Executive as they become due as a result of (a) the Executive
seeking to obtain or enforce any right or benefit provided by this Agreement
(including, but not limited to, any such fees and expenses incurred in
connection with the Dispute, and (b) the Executive's hearing before the Board as
contemplated in Section 2.4 of this Agreement; provided,
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however, that the circumstances set forth in clause (a) (other than as a result
of the Executive's termination of employment under circumstances described in
Section 2.5(d)) occurred on or after a Change in Control.
8. Notice. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement (including the Notice of
Termination) shall be in writing and shall be deemed to have been duly given
when personally delivered or sent by certified mail, return receipt requested,
postage prepaid, by overnight courier or by facsimile, addressed to the
respective addresses and facsimile numbers last given by each party to the
other, provided that all notices to the Company shall be directed to the
attention of the Board with a copy to the Secretary of the Company. All notices
and communications shall be deemed to have been received on the date of delivery
thereof or on the third business day after the mailing thereof, except that
notice of change of address shall be effective only upon receipt.
9. Non-exclusivity of Rights. Nothing in this Agreement shall prevent
or limit the Executive's continuing or future participation in any benefit,
bonus, incentive or other plan or program provided by the Company (except for
any severance or termination policies, plans, programs or practices) and for
which the Executive may qualify, nor shall anything herein limit or reduce such
rights as the Executive may have under any other agreements with the Company
(except for any severance or termination agreement). Amounts which are vested
benefits or which the Executive is otherwise entitled to receive under any plan
or program of the Company shall be payable in accordance with such plan or
program, except as explicitly modified by this Agreement.(2)
10. No Guaranteed Employment. The Executive and the Company acknowledge
that, except as may otherwise be provided under any other written
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(2) Section 9 of ▇▇. ▇▇▇▇▇'▇ ▇▇▇▇▇▇▇▇▇ Protection Agreement reads in full
as follows:
"Non-exclusivity of Rights. Nothing in this Agreement shall prevent or
limit the Executive's continuing or future participation in any benefit, bonus,
incentive or other plan or program provided by the Company (except for any
severance or termination policies, plans, programs or practices (other than such
policies, plans, programs or practices set forth in the Existing Employment
Agreement, which in accordance with Section 3.4(a) and Section 16, shall
continue in full force and effect)) and for which the Executive may qualify, nor
shall anything herein limit or reduce such rights as the Executive may have
under any other agreements with the Company (except for any severance or
termination agreement (other than the Existing Employment Agreement, which in
accordance with Section 3.4(a) and Section 16, shall continue in full force and
effect)). Amounts which are vested benefits or which the Executive is otherwise
entitled to receive under any plan or program of the Company shall be payable in
accordance with such plan or program, except as explicitly modified by this
Agreement."
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agreement between the Executive and the Company, the employment of the Executive
by the Company is "at will" and may be terminated by either the Executive or the
Company at any time.
11. Settlement of Claims. 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 circumstances, including, without
limitation, any set-off, counterclaim, recoupment, defense or other right which
the Company may have against the Executive or others.
12. Mutual Non-Disparagement. The Company, its affiliates and
subsidiaries agree and the Company shall use its best efforts to cause their
respective executive officers and directors to agree, that they will not make or
publish any statement critical of the Executive, or in any way adversely
affecting or otherwise maligning the Executive's reputation. The Executive
agrees that it will not make or publish any statement critical of the Company,
its affiliates and their respective executive officers and directors, or in any
way adversely affecting or otherwise maligning the business or reputation of any
member of the Company, its affiliates and subsidiaries and their respective
officers, directors and employees.
13. Miscellaneous. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by the Executive and the Company. 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 agreement 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.
14. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of California without
giving effect to the conflict of laws principles thereof. Any action brought by
any party to this Agreement shall be brought and maintained in a court of
competent jurisdiction in San Diego county in the State of California.
15. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof, and, in
such event, such provision shall be changed and interpreted so as to best
accomplish the objectives of such invalid or unenforceable provision within the
limits of applicable law or applicable court decisions.
13.
14
16. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto and supersedes all prior agreements, if any,
understandings and arrangements, oral or written, between the parties hereto
with respect to the subject matter hereof.(3)
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(3) Section 16 of ▇▇. ▇▇▇▇▇'▇ ▇▇▇▇▇▇▇▇▇ Protection Agreement reads in full
as follows:
"Entire Agreement. This Agreement, together with the Existing Employment
Agreement, constitutes the entire agreement between the parties hereto and
supersedes all prior agreements (other than the Existing Employment Agreement),
if any, understandings and arrangements, oral or written, between the parties
hereto with respect to the subject matter hereof."
14.
15
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
its duly authorized officer and the Executive has executed this Agreement as of
the day and year first above written.
TYLAN GENERAL, INC.
ATTEST: By: _____________________________
Name:
Title:
By: _____________________________
[Executive]
15.