Exhibit (c)(8)
EMPLOYMENT AGREEMENT
THIS AGREEMENT (this "Agreement") is entered into as of November 22, 1998
by and between ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (the "Executive") and Total Control Products,
Inc., an Illinois corporation (the "Company").
R E C I T A L S:
A. Concurrently herewith, GE Fanuc Automation North America, Inc. ("GE
Fanuc"), Orion Merger Corp. and the Company are entering into an Agreement and
Plan of Merger (the "Merger Agreement"), pursuant to which Orion Merger Corp.
will be commencing a tender offer (the "Offer") for the common stock of the
Company and, following the consummation of such Offer, merging (the "Merger")
with and into the Company, whereupon the Company will become a wholly-owned
subsidiary of GE Fanuc.
B. The Executive is the beneficial owner of certain shares of common stock
of the Company and intends to tender such shares to Orion Merger Corp. pursuant
to the Offer.
C. The Company and the Executive have entered into an Employment
Agreement, dated as of December 31,1997 (the "Prior Agreement") pursuant to
which the Executive is employed as an executive officer of the Company.
D. Commencing upon consummation of the Offer, the Company desires to
continue the employment of the Executive as an executive officer of the Company
and the Executive agrees to be so bound, all on the terms and subject to the
conditions set forth herein, and the Company and the Executive desire to
terminate the Prior Agreement.
E. The Company desires to bind the Executive to certain restrictive
covenants and the Executive agrees to be so bound, all on the terms and subject
to the conditions set forth herein.
A G R E E M E N T:
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. EFFECT OF AGREEMENT; TERMINATION OF PRIOR AGREEMENT. This Agreement
shall become effective upon the consummation of the Offer and shall terminate
and be of no further force or effect if the Merger Agreement shall be terminated
prior to the consummation of the Offer. Upon consummation of the Offer, the
Prior Agreement shall terminate and shall be of no further force or effect
whatsoever.
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2. TERM. Subject to the terms and conditions set forth herein and unless
sooner terminated as hereinafter provided, the Company shall employ the
Executive and the Executive agrees to serve as an employee of the Company during
the period beginning at the consummation of the Offer and ending on the second
anniversary thereof (the "Employment Term"). After the expiration of the
Employment Term, the Executive's employment hereunder shall automatically renew
for successive one-year periods (each, a "Renewal Term") unless either party
hereto delivers written notice to the other party hereto, at least ninety (90)
days prior to the expiration of the Employment Term or any Renewal Term thereof,
as the case may be, of his or its desire to terminate the Executive's employment
with the Company. The Employment Term and any Renewal Term thereof are
collectively referred to herein as the "Term."
3. EMPLOYMENT DUTIES. During the Term, the Executive shall serve as the
Senior Vice President & CFO of the Company. The Executive shall faithfully,
diligently and competently perform such duties and as are commensurate with his
position and such other duties as are commensurate with his position that may
from time to time be assigned to him by the President & CEO of the Company.
4. COMPENSATION. As compensation for the services to be performed and the
duties and responsibilities to be assumed by the Executive during the Term, the
Company shall pay to the Executive the following compensation:
(a) A salary (the "Salary") in an amount equal to $175,000 per annum. The
Company shall review the Salary annually during the Term and any increases in
Salary shall be made at the sole discretion of the Company. The Salary shall be
payable to the Executive in accordance with the Company's ordinary payment
practices for salaried employees.
(b) The Executive shall be entitled to participate in the Company's
executive bonus plan (a "Bonus") on the same terms as the participation of other
executives of the Company; provided, however, that, during the Employment Term,
the Executive shall receive an annual Bonus of not less than $50,000. In no
event shall any Bonus be paid to the Executive for any calendar year of the
Company unless the Executive is employed throughout the entire calendar year by
the Company or any of its Affiliates (as defined below). The Bonus shall be
determined from the Company's internal accounting records, which shall be
finally approved by the Board of Directors of the Company (the "Board") or any
compensation committee thereof. The Bonus awarded to the Executive in respect
of any particular calendar year shall be paid at the same time as bonuses are
paid to other executives of the Company.
(c) If the Executive remains employed by the Company for the entire
Employment Term he shall be entitled to a bonus in the amount of $85,000 at the
end of such Employment Term.
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As used herein, an "Affiliate" shall mean and include any person or entity
which controls a party, which such party controls or which is under common
control with such party. "Control" means the power, direct or indirect, to
direct or cause the direction of the management and policies of a person or
entity through voting securities, contract or otherwise.
5. VACATIONS. The Executive shall be entitled to reasonable vacation in
accordance with the Company's policies applicable to its senior executives
generally, but in no event less than three weeks annually, which shall be taken
at such time or times as shall be mutually determined by the Company and the
Executive.
6. BENEFITS.
(a) During the Term, the Executive shall be entitled to participate in such
employee benefit plans and programs as are maintained by the Company, to the
extent that his position, service, compensation, age, health and other
qualifications make him eligible to participate. The Company does not promise
the adoption or continuance of any particular plan or program during the Term,
and the Executive's (and his eligible dependents') participation in any such
plan or program shall be subject to the provisions, rules, regulations and laws
applicable thereto.
(b) During the Term, the Executive shall be entitled to such other fringe
benefits as are provided to employees of the Company with comparable positions,
service and compensation as the Executive.
7. REIMBURSEMENT OF EXPENSES. During the Term, the Executive shall be
entitled to prompt reimbursement for ordinary, necessary and reasonable out-of-
pocket trade or business expenses which the Executive incurs in connection with
performing his duties under this Agreement. The reimbursement of all such
expenses shall be made upon presentation of evidence reasonably satisfactory to
the Company of the amounts and nature of such expenses and shall be subject to
the reasonable approval of the Board.
8. RESTRICTIVE COVENANTS. The Executive acknowledges and agrees that (a)
through his continuing services to the Company, he will learn valuable trade
secrets and other proprietary information relating to the Company's business;
(b) the Executive's services to the Company are unique in nature; (c) the
Company's business is national in scope; and (d) the Company would be
irreparably damaged if the Executive were to provide services to any person or
entity in violation of the restrictions contained in this Agreement.
Accordingly, as an inducement to the Company to enter into this Agreement, the
Executive agrees that during the Term and for two years thereafter (such period
being referred to herein as the "Restricted Period"), the Executive shall not,
directly or indirectly, either for himself or for any other person or entity,
without the prior written consent of the Board of Directors of GE Fanuc:
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(a) anywhere in the United States, engage or participate in, or assist,
advise or be connected with (including as an employee, owner, partner,
shareholder, officer, director, advisor, consultant, agent or (without
limitation by the specific enumeration of the foregoing) otherwise), or permit
his name to be used by or render services for, any person or entity engaged in,
or making plans to engage in, a business that competes with the business
conducted by, or proposed to be conducted by, GE Fanuc or any of its
subsidiaries (a "Competing Business");
(b) take any action which might divert from GE Fanuc or any of its
subsidiaries any opportunity (each, an "Opportunity") which would be within the
scope of the business then conducted by GE Fanuc or any of its subsidiaries and
shall offer each Opportunity to GE Fanuc, which GE Fanuc may, in its sole
discretion, decide to pursue or not;
(c) solicit, attempt to solicit, aid in the solicitation of or accept any
orders from any person or entity who is or has been a customer of GE Fanuc or
any of its subsidiaries, at any time during the period beginning one year prior
to the date of termination of his employment through the Restrictive Period, to
purchase products or services from any person or entity which products or
services could have been supplied or performed, as the case may be, by GE Fanuc
or any of its subsidiaries (other than from GE Fanuc or any of its
subsidiaries);
(d) solicit, attempt to solicit or aid in the solicitation of any person or
entity who is or has been a customer, supplier, licensor, licensee or person or
entity having any other business relationship with GE Fanuc or any of its
subsidiaries, at any time during the period beginning one year prior to the date
of termination of his employment through the Restrictive Period, to cease doing
business with or alter its business relationship with GE Fanuc or any of its
subsidiaries; or
(e) solicit or hire any person or entity who is a director, officer or
employee of GE Fanuc or any of its subsidiaries to perform services for any
person or entity other than GE Fanuc or any of its subsidiaries or to terminate
his or her employment with GE Fanuc or any of its subsidiaries.
9. DISCLOSURE OF CONFIDENTIAL INFORMATION. The Executive recognizes that
he will occupy a position of trust and confidence with the Company as to
Confidential Information (as herein defined) pertaining to the Company and its
Affiliates. As an inducement for the Company to enter into this Agreement, the
Executive therefore agrees that:
(a) for the longest period permitted by law from the date of this
Agreement, the Executive shall hold in the strictest confidence and shall not,
other than as required by law, without the prior written consent of the Board of
Directors of GE Fanuc, use for his own benefit or that of any third party or
disclose to any person, firm or corporation (except the Company, an Affiliate of
the Company or employees of the Company and its Affiliates) any Confidential
Information. For purposes of this Agreement, "Confidential
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Information" shall mean any (i) trade secret or other confidential or secret
information of the Company or of any of its Affiliates or (ii) other technical,
business, proprietary or financial information of the Company or any of its
Affiliates not available to the public generally or to the competitors of the
Company or any of its Affiliates.
(b) The Executive (and, if deceased, the Executive's personal
representative) shall promptly following a request therefor from GE Fanuc return
to the Company, without retaining copies, all tangible items which are or which
contain Confidential Information. The Executive shall also surrender all
computer print-outs, laboratory books, floppy disks and other such media for
storing software and information, work papers, files, client lists, telephone
and/or address books, rolodex cards, internal memoranda, appointment books,
calendars, keys and other tangible things entrusted to the Executive by the
Company or any of its Affiliates or authored in whole or in part by the
Executive within the scope of his duties to the Company even if such things do
not contain Confidential Information; and
(c) at the request of GE Fanuc made at any time or from time to time
hereafter, the Executive (and, if deceased, the Executive's personal
representative) shall make, execute and deliver all applications, papers,
assignments, conveyances, instruments or other documents and shall perform or
cause to be performed such other lawful acts as GE Fanuc may reasonably deem
necessary or desirable to implement any of the provisions of this Agreement, and
shall give testimony and cooperate with the Company, its Affiliates or their
respective representatives in any controversy or legal proceedings involving the
Company, its Affiliates or their respective representatives with respect to any
Confidential Information, the reasonable expenses of such testimony and
cooperation to be paid by the Company.
10. INVENTIONS. The Executive acknowledges that in his capacity as an
executive officer of the Company, he will be involved in (i) the conception of
making of improvements, discoveries, inventions or the like (whether patentable
or unpatentable and whether or not reduced to practice), (ii) the authorship of
copyrightable works and (iii) the development of trade secrets relating to the
Company or any of its Affiliates. The Executive acknowledges that all such
intellectual property developed in connection with his employment with the
Company is the exclusive property of the Company. The Executive hereby waives
any rights he may have in or to such intellectual property, and the Executive
hereby assigns to the Company all right, title and interest in and to such
intellectual property. At the request of GE Fanuc and at no expense to the
Executive, the Executive shall execute and deliver all such papers, including,
without limitation, any assignment documents, and shall provide such cooperation
as may be necessary or desirable, or as GE Fanuc may reasonably request, in
order to enable the Company to secure and exercise its rights to such
intellectual property.
11. SPECIFIC PERFORMANCE. The Executive agrees that any violation by him
of Sections 8, 9, or 10 of this Agreement would be highly injurious to the
Company and its Affiliates and would cause irreparable harm to the Company and
its Affiliates. By
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reason of the foregoing, the Executive consents and agrees that if he violates
any provision of Sections 8, 9 or 10 of this Agreement, the Company and its
Affiliates shall be entitled, in addition to other rights and remedies that they
may have, to apply to any court of competent jurisdiction for specific
performance and/or injunctive or other relief in order to enforce, or prevent
any continuing violation of, the provisions of such section. In the event the
Executive breaches a covenant contained in this Agreement, the Restricted Period
applicable to the Executive with respect to such breached covenant shall be
extended for the period of such breach. The Executive also recognizes that the
territorial, time and scope limitations set forth in Sections 8 and 9 are
reasonable and are properly required for the protection of the Company and its
Affiliates and in the event that any such territorial, time or scope limitation
is deemed to be unreasonable by a court of competent jurisdiction, the Company
and the Executive agree, and the Executive submits, to the reduction of any or
all of said territory, time or scope limitations to such an area, period or
scope as said court shall deem reasonable under the circumstances. The Executive
represents, warrants and acknowledges that he has available to him sufficient
other means of support so that observance of the covenants contained in Sections
8, 9 and 10 shall not deprive him of his ability to earn a livelihood or support
his dependents.
12. TERMINATION FOR CAUSE. During the Term, the Executive's employment
with the Company may be terminated by the Board "for cause," which shall include
(a) the Executive's conviction for, or plea of nolo contendere to, a felony or a
crime involving moral turpitude; (b) the Executive's commission of an act
involving personal dishonesty or fraud involving personal profit in connection
with the Executive's employment with the Company; (c) the Executive's commission
of an act involving willful misconduct or gross negligence on the part of the
Executive in the conduct of his duties hereunder; (d) the Executive's breach of
any material provision of this Agreement where such breach continues for a
period of twenty (20) days after the Executive's receipt of written notice of
such breach from the Company; or (e) willful violation of the Parent's integrity
policies as set forth in the booklet "The Spirit and Letter," a copy of which
has been provided to the Employee. In the event of termination under this
Section 12, the Company's obligations under this Agreement shall cease and the
Executive shall forfeit all his rights to receive any compensation or benefits
under this Agreement, except that the Executive shall be entitled to his Salary
and benefits for services already performed as of the date of termination of the
Executive's employment hereunder.
13. GOOD REASON. The Executive shall be entitled to terminate his
employment hereunder at any time for Good Reason. For the purposes of this
Agreement, the Executive shall have "Good Reason" to terminate his employment
hereunder (i) upon a significant demotion or material adverse change in his
duties and responsibilities; (ii) upon a reduction in Salary, Bonus or in fringe
benefits provided to him of 10% or more; (iii) upon a material breach by the
Company of its agreements and covenants set forth herein; (iv) upon a
requirement to relocate, except for office relocations that would not increase
the Executive's one-way commute distance by more than fifty (50) miles from the
most recent principal residence selected by the Executive prior to notice of
relocation; or (v) if General Electric Company no longer controls the Company,
directly or indirectly, or all or
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substantially all of the assets of the Company are purchased by any person who
is not controlled directly or indirectly by General Electric Company.
14. DEATH OR DISABILITY.
(a) This Agreement shall terminate upon the Executive's death.
(b) If the Executive becomes permanently disabled (determined as provided
below) during the Term, his employment with the Company shall terminate as of
the date such permanent disability is determined. The Executive shall be
considered to be permanently disabled for purposes of this Agreement if he is
unable by reason of accident or illness (including mental illness) to perform
the material duties of his regular position with the Company and is (i) not
expected to recover from his disability within a period of six (6) months from
the commencement of the disability; or (ii) not expected to be able to perform
his material duties of his regular position with the Company for a period of six
(6) months in any consecutive twelve (12) month period as a result of the same
disability. If at any time the Executive claims or is claimed to be permanently
disabled, a physician acceptable to both the Executive, or his personal
representative, and the Company (which acceptances shall not be unreasonably
withheld) shall be retained by the Company and shall examine the Executive. The
Executive shall cooperate fully with the physician. If the physician determines
that the Executive is permanently disabled, the physician shall deliver to the
Company a certificate certifying both that the Executive is permanently disabled
and the date upon which the condition of permanent disability commenced. The
determination of the physician shall be conclusive.
(c) The Executive's right to his compensation and benefits under this
Agreement shall cease upon his death or disability, except that the Executive
(or his estate or heirs) shall be entitled to his Salary and a pro rata portion
of his Bonus and benefits for services already performed as of the date of his
death or disability.
15. EFFECT OF TERMINATION.
(a) If the Company terminates the Executive's employment hereunder for any
reason (including, without limitation, the Company's failure to renew the term
of this Agreement at the end of the Employment Term or any Renewal Term thereof,
as applicable), other than for cause, death or disability during the Term or the
Executive terminates this Agreement for Good Reason during the Term, provided
that the Executive (or the Executive's executor or other legal representative in
the case of the Executive's death or Disability) executes the Release (as
defined in Section (f) below), (i) the Company shall pay the Executive in one
lump sum an amount equal to (A) twenty-four times the greater of (I) his monthly
Salary as of the date of termination or (II) his highest monthly Salary during
the prior twelve month period; plus (B) two times the bonus paid to the
Executive for the fiscal year immediately prior to the date of such termination
under the bonus plan of the Company and (ii) the Company shall continue the
Executive's
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medical insurance benefits for a period equal to twelve months or until the
Executive is eligible for medical coverage under a plan of a successive
employer.
(b) If the Executive terminates his employment with the Company for any
reason whatsoever other than for Good Reason, the Company's obligations under
this Agreement shall cease and the Executive shall forfeit all his rights to
receive any compensation or benefits under this Agreement, except that the
Executive shall be entitled to his Salary and benefits for services already
performed as of the date of termination of this Agreement.
(c) Any amounts payable to the Executive pursuant to this Section 15 shall
be paid in full in a lump sum not more than sixty (60) days following the date
of termination of the Executive's employment hereunder.
(d) The Executive shall not be required to mitigate the amount of any
payment contemplated by this Section 15 (whether by seeking new employment or in
any other manner), nor shall any such payment be reduced by any earnings that
the Executive may receive from any other source.
(e) The transfer of the Executive's employment from the Company to an
Affiliate of the Company and the assumption of this Agreement by such Affiliate
shall not constitute a termination of employment for purposes of this Section
15.
(f) Notwithstanding anything to the contrary contained in this Agreement,
no amount shall be payable to the Executive (or the Executive's executor or
other legal representative in the case of the Executive's death or Disability)
pursuant to this Section 15 unless and until the Executive (or the Executive's
executor or other legal representative in the case of the Executive's death or
Disability) executes a general release in the form of Exhibit A attached hereto
(the "Release").
16. CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY.
(a) If it shall be determined that any payment or distribution by the
Company or its affiliated companies 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 4) (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 "Tax Reimbursement Payment") in an amount equal
to the Excise Tax imposed upon the Payments. The Company will pay the Tax
Reimbursement Payment for the Executive not less than five days prior to the
date on which the Executive must pay such excise tax.
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(b) Subject to the provisions of Section 4(c), all determinations required
to be made under this Section 4, including whether and when a Tax Reimbursement
Payment is required and the amount of such Tax Reimbursement Payment and the
assumptions to be utilized in arriving at such determination, shall be made by
the Company's public accounting firm (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. All fees and
expenses of the Accounting Firm shall be borne solely by the Company. 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. 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 Tax
Reimbursement Payments which 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 4(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 Tax Reimbursement Payment. Such notification shall be given as
soon as practicable but no later than 10 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 the Executive 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:
(1) give the Company any information reasonably requested by the Company
relating to such claim,
(2) 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,
(3) cooperate with the Company in good faith in order effectively to
contest such claim, and
(4) permit the Company to participate in any proceedings relating to such
claim;
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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.
(d) If, after the receipt by the Executive of an amount advanced by the
Company pursuant to Section 4(c), the Executive becomes entitled to receive, and
receives, any refund with respect to such claim, the Executive shall (subject to
the Company's complying with the requirements of Section 4(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 4(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 Tax Reimbursement Payment required to be
paid.
17. MISCELLANEOUS.
(a) All notices required or permitted to be given hereunder shall be in
writing and shall be deemed given (i) when delivered in person at the time of
such delivery or by telecopy with receipt of transmission indicating the date
and time (provided, however, that notice delivered by telecopy shall only be
effective if such notice is also delivered by hand or deposited in the United
States mail, postage prepaid, registered or certified mail, on or before two (2)
business days after its delivery by telecopy), (ii) when received if given by a
nationally recognized overnight courier service or (iii) two (2) business days
after being deposited in the United States mail, postage prepaid, registered or
certified mail, addressed as follows:
if to the Executive:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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with a copy to:
▇'▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Company:
Total Control Products, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: President
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
GE Fanuc Automation North America, Inc.
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and/or to such other address or addresses as may be designated by notice given
in accordance with the provisions hereof.
(b) This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, successors and permitted assigns. As
to the Executive, this Agreement is a personal service contract and shall not be
assignable by the Executive, but all obligations and agreements of the Executive
hereunder shall be binding upon and enforceable against the Executive and the
Executive's personal representatives, heirs, legatees and devisees.
(c) The parties adopt the Recitals to this Agreement and agree and affirm
that construction of this Agreement shall be guided thereby; this Agreement
contains all of the agreements between the parties with respect to the subject
matter hereof; and this Agreement supersedes all other agreements, oral or
written, between the parties hereto with respect to the subject matter hereof.
(d) No change or modification of this Agreement shall be valid unless the
same shall be in writing and signed by all of the parties hereto. No waiver of
any provisions of this Agreement shall be valid unless in writing and signed by
the waiving party. No waiver
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of any of the provisions of this Agreement shall be deemed, or shall constitute,
a waiver of any other provision, whether or not similar, nor shall any waiver
constitute a continuing waiver, unless so provided in the waiver.
(e) If any provisions of this Agreement (or portions thereof) shall, for
any reason, by invalid or unenforceable, such provisions (or portions thereof)
shall be ineffective only to the extent of such invalidity or unenforceability,
and the remaining provisions of this Agreement (or portions thereof) shall
nevertheless be valid, enforceable and of full force and effect.
(f) The section or paragraph headings or titles herein are for convenience
of reference only and shall not be deemed a part of this Agreement.
(g) This Agreement may be executed in multiple counterparts, each of which
shall be deemed to be an original and all of which taken together shall
constitute a single instrument.
(h) Notwithstanding anything to the contrary contained herein, the
Executive's rights and obligations under Sections 8, 9, 10, 11 and 15 shall
survive the expiration or termination of this Agreement (other than a
termination pursuant to Section 1).
(i) This Agreement shall be governed and controlled as to validity,
enforcement, interpretation, construction, effect and in all other respects by
the laws of the State of Illinois applicable to contracts made in that State
(other than any conflict of laws rule which might result in the application of
the laws of any other jurisdiction).
(j) The Executive hereby expressly submits and consents in advance to the
jurisdiction of the federal and state courts of the State of Illinois for all
purposes in connection with any action or proceeding arising out of or relating
to this Agreement.
(k) The Company shall require any successor (whether direct or indirect
and either by purchase, lease, merger, consolidation, liquidation or otherwise)
to all or substantially all of the Company's business and/or assets, by an
agreement in substance and form satisfactory to the Executive, to assume this
Agreement and to agree expressly to perform this Agreement in the same manner
and to the same extent as the Company would be required to perform it in the
absence of a succession. Regardless of such assumption, the Company shall
remain liable for performance of this Agreement if the successor corporation
fails to perform this Agreement.
(l) All costs, including any legal fees and other expenses incurred
(including all such fees and expenses incurred by the Executive in contesting or
disputing any termination under this Agreement or in seeking to obtain or
enforce any of his rights or benefits under this Agreement), shall be paid by
the Company. All costs, including legal fees and other expenses incurred in
defending or asserting the validity and enforceability of
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this Agreement against challenge by any person in any forum shall be paid by
the Company.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
________________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
TOTAL CONTROL PRODUCTS, INC.
By:_______________________________
Name:
Title:
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EXHIBIT A
Date of Notification:_________________
GENERAL RELEASE
This is a General Release (this "Release") executed by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
(the "Executive") pursuant to Section 15 of the Employment Agreement dated as of
__________, 1998 (the "Employment Agreement") between [Orion], an Illinois
corporation (the "Company"), and the Executive.
WHEREAS, the employment of the Executive will be terminated by the
Company;
WHEREAS, the Company and the Executive intend that the terms and
conditions of the Employment Agreement and this Release shall govern all issues
related to the Executive's employment and termination of employment by the
Company;
WHEREAS, the Executive has had at least 45 days to consider the form
of this Release;
WHEREAS, the Company advised the Executive in writing to consult with
a lawyer before signing this Release;
WHEREAS, the Executive has represented and hereby reaffirms that the
Executive has disclosed to the Company any information in the Executive's
possession concerning any conduct involving the Company, __________, a ________
corporation (the "Parent"), or their affiliates that the Executive has any
reason to believe involves any false claims to the United States or is or may be
unlawful or violates the policies of the Company or the Parent in any respect;
WHEREAS, the Executive acknowledges that the consideration to be
provided to the Executive under the Employment Agreement is sufficient to
support this Release;
WHEREAS, the Executive represents that the Executive has not filed any
charges, claims or lawsuits against the Company or the Parent involving any
aspect of the Executive's employment which have not been terminated as of the
date of this Release; and
WHEREAS, the Executive understands that the Company regards the
representations by the Executive as material and that the Company is relying on
these representations in paying amounts to the Executive pursuant to the
Employment Agreement.
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THE EXECUTIVE THEREFORE AGREES AS FOLLOWS:
1. The Executive's employment with the Company shall terminate on
_______________ (the "Termination Date").
2. The Executive shall receive the termination payments set forth in
Section 15 of the Employment Agreement.
3. The Employee Innovation and Proprietary Information Agreement
with the Company remains in effect in accordance with its terms.
4. The Executive, on behalf of the Executive and anyone claiming
through the Executive, including the Executive's heirs, assigns and agents,
releases and discharges the Company, the Parent and their respective directors,
officers, employees, subsidiaries, affiliates and agents, and the predecessors,
successors and assigns of any of them (the "Released Parties"), from each and
every claim, action or right of any sort, in law or in equity, known or unknown,
asserted or unasserted, foreseen or unforeseen, arising on or before the
Effective Date (as set forth in Section 11 hereof).
(a) This Release includes, but is not limited to: any claim of
discrimination on the basis of race, sex, religion, marital status, sexual
orientation, national origin, handicap or disability, age, veteran status,
special disabled veteran status or citizenship status; any other claim based on
a statutory prohibition or common law doctrine; any claim arising out of or
related to the Executive's employment with the Company, the terms and conditions
thereof or the termination or cessation thereof; any express or implied
employment contract, any other express or implied contract affecting terms and
conditions of the Executive's employment or the termination or cessation
thereof, or a covenant of good faith and fair dealing; any tort claims and any
personal gain with respect to any claim arising under the qui tam provisions of
the False Claims Act, 31 U.S.C. 3730.
(b) The Executive represents that the Executive understands this
Release, that rights and claims under the Age Discrimination in Employment Act
of 1967, as amended, the Civil Rights Act of 1964, as amended, the Civil Rights
Act of 1991, the Civil Rights Act of 1866, the Older Workers' Benefit Protection
Act, the Family and Medical Leave Act, the Americans With Disabilities Act, the
Employee Retirement Income Security Act of 1974 and the Wisconsin Fair
Employment Act are among the rights and claims against the Released Parties the
Executive is releasing, and that the Executive understands that the Executive is
not releasing any rights or claims arising after the Effective Date.
(c) The Executive further agrees never to ▇▇▇ the Released Parties or
cause the Released Parties to be sued regarding any matter within the scope of
this Release. If the Executive violates this Release by suing any of the
Released Parties or
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causing any of the Released Parties to be sued, the Executive agrees to pay all
costs and expenses of defending against the suit incurred by the Released
Parties, including reasonable attorneys' fees.
(d) The Executive expressly represents and warrants that the
Executive is the sole owner of the actual or alleged claims, demands, rights,
causes of action and other matters that are released herein, that the same have
not been transferred or assigned or caused to be transferred or assigned to any
other person, firm, corporation or other entity, and that the Executive has the
full right and power to grant, execute and deliver this Release.
5. The Executive acknowledges that the Executive is bound by the
provisions of Section 4 of the Employment Agreement.
6. The Executive understands that any and all Company covenants
which relate to Company obligations to the Executive after the Termination Date,
including but not limited to the payments set forth in Section 3 of the
Employment Agreement, are contingent on the Executive's satisfaction of the
Executive's obligations under this Release.
7. The Executive agrees that, for the period commencing on the
Termination Date and ending on the second anniversary of the Termination Date,
the Executive will be reasonably available to the Company and the Parent to
respond to requests by the Company or the Parent for information pertaining to
or relating to the Company, the Parent and their affiliates, subsidiaries,
agents, officers, directors or employees which may be within the knowledge of
the Executive. The Executive will cooperate fully with the Company in
connection with any and all existing or future litigation or investigations
brought by or against the Company, the Parent or any of their affiliates,
agents, officers, directors or employees, whether administrative, civil or
criminal in nature, in which and to the extent the Company deems the Executive's
cooperation necessary. The Executive understands that the Company will
reimburse the Executive for reasonable out-of pocket expenses incurred as a
result of such cooperation. Nothing herein shall prevent the Executive from
communicating with or participating in any government investigation. The
Executive will act in good faith to furnish the information and cooperation
required by this Section 7 and the Company will act in good faith so that the
requirement to furnish such information and cooperation does not create a
hardship for the Executive.
8. The Executive agrees, subject to any obligations the Executive
may have under applicable law, that the Executive will not make or cause to be
made any statements that disparage, are inimical to, or damage the reputation of
the Company, the Parent or any of their affiliates, subsidiaries, agents,
officers, directors or employees. In the event such a communication is made to
anyone, including but not limited to the media, public interest groups and
publishing companies, it will be considered a material breach of the terms of
the Employment Agreement and this Release and the Executive
will be
17
required to reimburse the Company for any and all payments made under the terms
of the Employment Agreement and all commitments to make additional payments to
the Executive will be null and void.
9. The Company is not obligated to offer employment to the Executive
(or to accept services or the performance of work from the Executive directly or
indirectly) now or in the future.
10. The Executive may revoke this Release in writing within seven
days of signing it. This Release will not take effect until the Effective Date.
If the Executive revokes this Release, all of its provisions and the provisions
of Section 3 of the Employment Agreement shall be void and unenforceable.
11. The Termination Date of the Executive's employment will be
__________. The Effective Date shall be the day after the end of the revocation
period described in Section 10 hereof.
12. The Executive shall keep strictly confidential all the terms and
conditions, including amounts, in the Employment Agreement and this Release and
shall not disclose them to any person other than the Executive's spouse, the
Executive's legal or financial advisor or United States governmental officials
who seek such information in the course of their official duties, unless
compelled by law to do so. If a person not a party to the Employment Agreement
requests or demands, by subpoena or otherwise, that the Executive disclose or
produce the Employment Agreement or this Release or any terms or conditions
thereof, the Executive shall immediately notify the Company and shall give the
Company an opportunity to respond to such notice before taking any action or
making any decision in connection with such request or subpoena.
13. The Employment Agreement and this Release constitute the entire
understanding between the parties. The Executive has not relied on any oral
statements that are not included in the Employment Agreement or this Release.
14. This Release shall be construed, interpreted and applied in
accordance with the law of the State of [Illinois] (other than conflict of laws
principles).
EXECUTIVE
___________________________________
Date: _____________________________
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