1
EXHIBIT 10.31
AGREEMENT
AGREEMENT by and between ▇▇▇▇▇▇ Automation, Inc., a Delaware
corporation (the "Company"), and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (the "Executive"), dated as
of the 11th day of November, 1999.
The Board of Directors of the Company (the "Board"), has determined
that it is in the best interests of the Company and its shareholders to assure
that the Company will have the continued dedication of the Executive,
notwithstanding the possibility, threat, or occurrence of a Change of Control
(as defined below) of the Company. The Board believes it is imperative to
diminish the inevitable distraction of the Executive by virtue of the personal
uncertainties and risks created by a pending or threatened Change of Control and
to encourage the Executive's full attention and dedication to the Company
currently and in the event of any threatened or pending Change of Control, and
to provide the Executive with compensation and benefits arrangements upon a
Change of Control which ensure that the compensation and benefits expectations
of the Executive will be satisfied and which are competitive with those of other
corporations. Therefore, in order to accomplish these objectives, the Board has
caused the Company to enter into this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Certain Definitions.
(a) The "Effective Date" shall be the first date during the "Change
of Control Period" (as defined in Section 1(b)) on which a Change of Control
occurs. Anything in this Agreement to the contrary notwithstanding, if the
Executive's employment with the Company is terminated or the Executive ceases to
be an officer of the Company prior to the date on which a Change of Control
occurs, and it is reasonably demonstrated that such termination of employment
2
(1) was at the request of a third party who has taken steps reasonably
calculated to effect the Change of Control or (2) otherwise arose in connection
with or in anticipation of the Change of Control, then for all purposes of this
Agreement the "Effective Date" shall mean the date immediately prior to the date
of such termination of employment.
(b) The "Change of Control Period" is the period commencing on the
date hereof and ending on the fifth anniversary of such date; provided, however
that commencing on the date four years after the date hereof, and on each fifth
year anniversary of such date (such date and each fifth year anniversary thereof
is hereinafter referred to as the "Renewal Date"), the Change of Control Period
shall be automatically extended without any further action by the Company or the
Executive so as to terminate five years from such Renewal Date; provided,
however, that if the Company shall give notice in writing to the Executive, at
least sixty days prior to the Renewal Date, stating that the Change of Control
Period shall not be extended, then the Change of Control Period shall expire
five years from the last effective Renewal Date.
2. Change of Control. For the purpose of this Agreement, a "Change of
Control" shall mean:
(a) The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")), other than ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or any of his
affiliates (as defined in the Exchange Act) of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of thirty percent or
more of the then outstanding shares of stock of the Company entitled to vote in
the election of directors (the "Outstanding Company Common Stock"), whether in
one transaction or in multiple transactions which in the aggregate equal or
exceed thirty percent of the Outstanding Company Common Stock;
-2-
3
provided, however, that (i) any acquisition by the Company or its subsidiaries,
or any employee benefit plan (or related trust) of the Company or its
subsidiaries of thirty percent or more of Outstanding Company Common Stock shall
not constitute a Change of Control; (ii) any acquisition by any individual,
entity or group of beneficial ownership of thirty percent or more but less than
forty percent of the Outstanding Company Common Stock may be deemed unanimously
by the Board of Directors of the Company as it is constituted as of the date of
this Agreement (the "Incumbent Board"), excluding any members of the Incumbent
Board affiliated with the acquiror, to not constitute a Change of Control, in
the Incumbent Board's sole and absolute discretion; and (iii) any acquisition by
a corporation with respect to which, following such acquisition, more than fifty
percent of the then outstanding shares of common stock of such corporation, is
then beneficially owned, directly or indirectly, by all or substantially all of
the individuals and entities who were the beneficial owners of the Outstanding
Company Common Stock immediately prior to such acquisition in substantially the
same proportion as their ownership, immediately prior to such acquisition, of
the Outstanding Company Common Stock, shall not constitute a Change of Control;
or
(b) Individuals who, as of the date of this Agreement, constitute the
members of the Incumbent Board cease for any reason to constitute at least a
majority of the Board, provided that any individual becoming a director
subsequent to the date of this Agreement whose election, or nomination for
election by the Company's shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial
-3-
4
assumption of office is in connection with either an actual or threatened
election contest (as such terms are used in Rule 14a-11 of Regulation 14A
promulgated under the Exchange Act) or other actual or threatened solicitation
of proxies or consents by or on behalf of a person other than the Board; or
c) Approval by the stockholders of the Company of (i) a
reorganization, merger or consolidation, in each case, with respect to which all
or substantially all of the individuals and entities who were the beneficial
owners of the Outstanding Company Common Stock immediately prior to such
reorganization, merger or consolidation will not, following such reorganization,
merger or consolidation, beneficially own, directly or indirectly, more than 50%
of the then outstanding shares of common stock of the corporation resulting from
such a reorganization, merger or consolidation, other than a merger or
consolidation effected to implement a recapitalization of the Company (or
similar transaction) in which no "person" (as such term is used in Sections
13(d) and 14(d) of the Exchange Act) acquires 30% or more of Outstanding Company
Common Stock; or (ii) the sale or other disposition of all or substantially all
of the assets of the Company, excluding a sale or other disposition of assets to
a subsidiary of the Company and excluding a sale or license of a portion of the
business of the Company which is deemed by the Incumbent Board, acting in its
sole and absolute discretion, to not constitute a Change of Control.
Anything in this Agreement to the contrary notwithstanding, if an event
that would, but for this paragraph, constitute a Change of Control results from
or arises out of a purchase or other acquisition of the Company, directly or
indirectly, by a corporation or other entity in which
-4-
5
the Executive has a greater than ten percent direct or indirect equity interest,
such event shall not constitute a Change of Control.
3. Employment Period. Subject to the terms and conditions hereof, the
Company hereby agrees to continue the Executive in its employ for the period
commencing on the Effective Date and ending on the last day of the twelfth month
following the month in which the Effective Date occurs (the "Employment
Period"). The Executive hereby agrees to remain in the employ of the Company for
the period commencing on the Effective Date and ending on the last day of the
sixth month following the month in which the Effective Date occurs (the "Six
Month Period").
4. Terms of Employment.
(a) Position and Duties.
(i) Except as provided in Section 4(c) below, during the
Employment Period, (A) the Executive's position (including status, offices,
titles and reporting requirements), authority, duties and responsibilities shall
be at least commensurate in all material respects with the most significant of
those held, exercised and assigned at any time during the one hundred eighty-day
period immediately preceding the Effective Date, including without limitation,
the responsibilities described under the caption "Responsibilities" in the
letter from ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President and Chief Executive Officer of ▇▇▇▇▇▇
Automation, Inc. to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ dated October 19, 1998 attached hereto
(the "Offer Letter") and (B) the Executive's services shall be performed at the
location where the Executive was employed immediately preceding the Effective
Date or any office or location less than thirty-five miles from such location.
(ii) During the Employment Period, and excluding any periods of
vacation and sick leave to which the Executive is entitled, the Executive agrees
to devote his full business time to the business and affairs of the Company and,
to the extent necessary to discharge
-5-
6
the responsibilities assigned to the Executive hereunder, to use the Executive's
reasonable best efforts to perform faithfully and efficiently such
responsibilities. During the Employment Period it shall not be a violation of
this Agreement for the Executive to (A) serve on corporate, civic or charitable
boards or committees, (B) deliver lectures, fulfill speaking engagements or
teach at educational institutions and (C) manage personal investments, so long
as such activities do not significantly interfere with the performance of the
Executive's responsibilities as an employee of the Company in accordance with
this Agreement. It is expressly understood and agreed that to the extent that
any such activities have been conducted by the Executive prior to the Effective
Date, the continued conduct of such activities (or the conduct of activities
similar in nature and scope thereto) subsequent to the Effective Date shall not
thereafter be deemed to interfere with the performance of the Executive's
responsibilities to the Company.
(b) Compensation.
(i) Base Salary. During the Employment Period, the Executive
shall receive an annual base salary ("Annual Base Salary"), which shall be paid
at a biweekly rate, at least equal to twelve times the highest monthly base
salary paid or payable to the Executive by the Company in respect of the
twelve-month period immediately preceding the month in which the Effective Date
occurs. Any increase in Annual Base Salary shall not serve to limit or reduce
any other obligation to the Executive under this Agreement. Annual Base Salary
shall not be reduced after any such increase and the term Annual Base Salary as
utilized in this Agreement shall refer to Annual Base Salary as so increased.
(ii) Annual Bonus. In addition to Annual Base Salary, the
Executive shall be awarded, for each fiscal year during the Employment Period,
an annual bonus (the "Annual Bonus") in cash at least equal to the average
annualized (for any fiscal year consisting of
-6-
7
less than twelve full months or with respect to which the Executive has been
employed by the Company for less than twelve full months) bonus (the "Average
Annual Bonus") paid or payable to the Executive by the Company in respect of the
lesser of the three fiscal years immediately preceding the fiscal year in which
the Effective Date occurs or the number of full fiscal years for which the
Executive has been employed by the Company immediately preceding the fiscal year
in which the Effective Date occurs. Each such Annual Bonus shall be paid no
later than the end of the second month of the fiscal year next following the
fiscal year for which the Annual Bonus is awarded, unless the Executive shall
elect to defer the receipt of such Annual Bonus pursuant to deferral plans of
the Company.
(iii) Incentive, Savings and Retirement Plans. In addition to
Annual Base Salary and Annual Bonus payable as hereinabove provided, the
Executive shall be entitled to participate during the Employment Period in all
incentive, savings and retirement plans, practices, policies and programs
applicable to other peer executives of the Company, but in no event shall such
plans practices, policies and programs provide the Executive with incentive,
savings and retirement benefits opportunities, in each case, less favorable, in
the aggregate, than the most favorable of those provided by the Company for the
Executive under such plans, practices, policies and programs as in effect at any
time during the one-year immediately preceding the Effective Date.
(iv) Welfare Benefit Plans. During the Employment Period, the
Executive and/or the Executive's family, as the case may be, shall be eligible
for participation in and shall receive all benefits under welfare benefit plans,
practices, policies and programs provided by the Company (including, without
limitation, medical, prescription, dental, disability, salary continuance,
employee life, group life, accidental death and travel accident insurance plans
-7-
8
and programs) and applicable to other peer executives of the Company, but in no
event shall such plans, practices, policies and programs provide benefits which
are less favorable, in the aggregate, than the most favorable of such plans,
practices, policies and programs in effect at any time during the one-year
period immediately preceding the Effective Date.
(v) Expenses. During the Employment Period, the Executive shall
be entitled to receive prompt reimbursement for all reasonable expenses incurred
by the Executive in the conduct of the Company's business upon submission of
appropriate accountings in accordance with the most favorable policies,
practices and procedures of the Company in effect at any time during the
one-year period immediately preceding the Effective Date.
(vi) Fringe Benefits. During the Employment Period, the Executive
shall be entitled to fringe benefits in accordance with the most favorable
plans, practices, programs and policies of the Company in effect at any time
during the one-year period immediately preceding the Effective Date. If at the
end of the Employment Period, the Company elects not to continue to employ
Executive for reasons other than for Cause, death or Disability, or if the
Executive shall terminate employment hereunder for Good Reason, the Company will
provide to Executive up to $15,000 in fees paid for out-placement assistance.
(vii) Office and Support Staff. During the Employment Period, the
Executive shall be entitled to an office or offices of a size and with
furnishings and other appointments, and to exclusive personal secretarial and
other assistance, at least equal to the most favorable of the foregoing provided
to the Executive by the Company at any time during the one-year period
immediately preceding the Effective Date.
(viii) Vacation. During the Employment Period, the Executive
shall be entitled to paid vacation in accordance with the most favorable plans,
policies, programs and
-8-
9
practices of the Company as in effect at any time during the one-year period
immediately preceding the Effective Date.
(ix) Offer Letter. During the Employment Period, the Executive,
at a minimum, shall be entitled to the compensation set forth under the captions
"Base and Bonus Compensation," "Car Allowance," "Basic Benefits" and "Vacation
and Time Off" in the Offer Letter.
(c) Six Month Period. Notwithstanding anything to the contrary in
this Section 4, during the Six Month Period, the Company's obligations under
this Agreement are limited to employing the Executive in any capacity reasonably
assigned to Executive by the Company to assist in the transition caused by the
Change of Control at the location where the Executive was employed immediately
preceding the Effective Date or at any office or location less than thirty-five
miles from such location and providing to the Executive compensation and
benefits, as set forth in Section 4(b) hereof in accordance with the most
favorable plans, practices, policies and programs provided by the Company for
the Executive as in effect at any time during the one year period immediately
preceding the Effective Date.
5. Termination of Employment.
(a) Death or Disability. The Executive's employment shall terminate
automatically upon the Executive's death during the Employment Period. If the
Company determines in good faith that the Disability of the Executive has
occurred during the Employment Period (pursuant to the definition of
"Disability" set forth below), it may give to the Executive written notice in
accordance with Section 10(b) of this Agreement of its intention to terminate
the Executive's employment. In such event, the Executive's employment with the
Company shall terminate effective on the thirtieth day after receipt of such
notice by the Executive (the "Disability Effective
-9-
10
Date"), provided that, within the thirty days after such receipt, the Executive
shall not have returned to full-time performance of the Executive's duties. For
purposes of this Agreement, "Disability" means the absence of the Executive from
the Executive's duties with the Company on a full-time basis for 180 consecutive
business days as a result of incapacity due to mental or physical illness which
is determined to be total and permanent by a physician selected by the Company
or its insurers and acceptable to the Executive or the Executive's legal
representative (such agreement as to acceptability not to be withheld
unreasonably).
(b) Cause. The Company may terminate the Executive's employment
during the Employment Period for "Cause". For purposes of this Agreement,
"Cause" means (i) an act or acts of personal dishonesty taken by the Executive
and intended to result in substantial personal enrichment of the Executive at
the expense of the Company, (ii) repeated violations by the Executive of the
Executive's obligations under Section 4(a) of this Agreement (other than as a
result of incapacity due to physical or mental illness) which are demonstrably
willful and deliberate on the Executive's part, which are committed in bad faith
or without reasonable belief that such violations are in the best interests of
the Company and which are not remedied in a reasonable period of time after
receipt of written notice from the Company or (iii) the conviction of the
Executive of a felony involving moral turpitude.
(c) Good Reason. The Executive's employment may be terminated during
the Employment Period by the Executive for Good Reason. For purposes of this
Agreement, "Good Reason" means:
(i) the assignment to the Executive of any duties inconsistent in
any respect with the Executive's position (including status, offices, titles and
reporting requirements), authority, duties or responsibilities as contemplated
by Section 4(a) of this
-10-
11
Agreement, or any other action by the Company which results in a diminution in
such position, authority, duties or responsibilities, excluding for this purpose
an isolated, insubstantial and inadvertent action not taken in bad faith and
which is remedied by the Company promptly after receipt of notice thereof given
by the Executive;
(ii) any failure by the Company to comply with any of the provisions
of Section 4(b) of this Agreement, other than an isolated, insubstantial and
inadvertent failure not occurring in bad faith and which is remedied by the
Company promptly after receipt of notice thereof given by the Executive;
(iii) any failure by the Company to fulfill its obligations to the
Executive during the Six Month Period, as set forth in Section 4(c) of this
Agreement, other than an isolated, insubstantial and inadvertent failure not
occurring in bad faith and which is remedied by the Company promptly after
receipt of notice thereof given by the Executive;
(iv) the Company's requiring the Executive to be based at any office
or location other than that described in Section 4(a)(i)(B) hereof;
(v) any purported termination by the Company of the Executive's
employment otherwise than as expressly permitted by this Agreement; or
(vi) any failure by the Company to comply with and satisfy Section
9(c) of this Agreement.
Notwithstanding the foregoing, during the Six Month Period, "Good
Reason" shall mean (iii), (iv), (v) or (vi) above only. For purposes of this
Section 5(c), any good faith determination of "Good Reason" after the Six Month
Period made by the Executive shall be conclusive.
-11-
12
(d) Notice of Termination. Any termination by the Company for Cause or
without Cause or by the Executive for Good Reason shall be communicated by
Notice of Termination to the other party hereto given in accordance with Section
10(b) of this Agreement. For purposes of this Agreement, a "Notice of
Termination" means a written notice which (i) indicates the specific termination
provision in this Agreement relied upon, if applicable, (ii) to the extent
applicable, sets forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of the Executive's employment under the
provision so indicated, and (iii) if the Date of Termination (as defined below)
is other than the date of receipt of such notice, specifies the termination date
(which date shall be not more than fifteen days after the giving of such
notice). The failure by the Executive or the Company to set forth in the Notice
of Termination any fact or circumstance which contributes to a showing of Good
Reason or Cause shall not waive any right of the Executive or the Company
hereunder or preclude the Executive or the Company from asserting such fact or
circumstance in enforcing the Executive's or the Company's rights hereunder.
(e) Date of Termination. "Date of Termination" means the date of
receipt of the Notice of Termination or any later date specified therein, as the
case may be; provided however, that (i) if the Executive's employment is
terminated by the Company other than for Cause, death or Disability, the Date of
Termination shall be the date on which the Company notifies the Executive of
such termination and (ii) if the Executive's employment is terminated by reason
of death or Disability, the Date of Termination shall be the date of death of
the Executive or the Disability Effective Date, as the case may be.
6. Obligations of the Company upon Termination.
(a) Death. If the Executive's employment is terminated by reason of
the Executive's death during the Employment Period, this Agreement shall
terminate without further
-12-
13
obligations to the Executive's legal representatives under this Agreement, other
than payment of the sum of the following amounts: (i) the Executive's Annual
Base Salary through the Date of Termination to the extent not theretofore paid,
(ii) the product of (A) the greater of (x) the Annual Bonus paid or payable (and
annualized for any fiscal year consisting of less than twelve full months or for
which the Executive has been employed for less than twelve full months) to the
Executive for the Company's most recently completed fiscal year, and (y) the
Average Annual Bonus and (B) a fraction, the numerator of which is the number of
days in the current fiscal year through the Date of Termination, and the
denominator of which is 365, and (iii) any compensation previously deferred by
the Executive (together with any accrued interest or earnings thereon) and any
accrued bonus amounts or vacation pay, in each case, to the extent not yet paid
by the Company (the amounts described in subparagraphs (i), (ii), and (iii) are
hereafter referred to as "Accrued Obligations" and shall be paid to the
Executive's estate or beneficiary, as applicable, in a lump sum in cash within
sixty days of the Date of Termination. Anything herein to the contrary
notwithstanding, the Executive's family shall be entitled to receive benefits at
least equal to the most favorable benefits provided by the Company to surviving
families of peer executives of the Company under such plans, programs, practices
and policies relating to family death benefits, if any, as in effect with
respect to other peer executives and their families at any time during the one
year period immediately preceding the Effective Date.
(b) Disability. If the Executive's employment is terminated by reason
of the Executive's Disability during the Employment Period, this Agreement shall
terminate without further obligations of the Company to the Executive, other
than for payment of the Accrued Obligations (which shall be paid in a lump sum
in cash within sixty days of the Date of Termination). Anything herein to the
contrary notwithstanding, the Executive shall be entitled
-13-
14
after the Disability Effective Date to receive disability and other benefits at
least equal to the most favorable of those provided by the Company to disabled
executives and/or their families in accordance with such plans, programs,
practices and policies relating to disability, if any, as in effect with respect
to other peer executives and their families at any time during the one year
period immediately preceding the Effective Date.
(c) Cause, Other than for Good Reason. If the Executive's employment
shall be terminated by the Company for Cause or by the Executive other than for
Good Reason (and other than by reason of his death or Disability) during the
Employment Period, this Agreement shall terminate without further obligations of
the Company to the Executive other than the obligation to pay to the Executive
Annual Base Salary through the Date of Termination, plus the amount of any
compensation previously deferred by the Executive and any accrued and awarded
bonus amounts or vacation pay, in each case, to the extent theretofore unpaid.
In such case, such amounts shall be paid to the Executive in a lump sum in cash
within thirty days of the Date of Termination, except that accrued and awarded
bonus amounts, if any, shall be paid as previously scheduled at the time of the
award. The Executive shall, in such event, also be entitled to any benefits
required by law that are not otherwise provided by this Agreement.
(d) Good Reason; Other Than for Cause or Disability. If, during the
Employment Period, the Company shall terminate the Executive's employment other
than for Cause, death or Disability, or if the Executive shall terminate
employment under this Agreement for Good Reason:
(i) the Company shall pay to the Executive in a lump sum in cash
within thirty days after the Date of Termination the aggregate of the following
amounts:
A. All Accrued Obligations; and
-14-
15
B. the amount (such amount shall be hereinafter referred
to as the "Severance Amount") equal to the greater of
$250,000 or one year of Annual Base Salary.
(ii) the Company shall timely pay and provide, for eighteen
months from the Date of Termination, medical benefits to the Executive and/or
the Executive's family at least equal to those which would have been provided in
accordance with the applicable plans (including the Company's 401(k), match and
profit-sharing plans), programs, practices and policies described in Section
4(b)(v) of this Agreement as if the Executive's employment had not been
terminated in accordance with the most favorable plans, practices, programs or
policies of the Company as in effect and applicable generally to other peer
executives and their families during the one year period immediately preceding
the Effective Date, provided, however, that if the Executive becomes re-employed
with another employer and is eligible to receive medical and dental benefits
under another employer provided plan, the medical and dental benefits described
herein shall be secondary to those provided under such other plan during such
applicable period of eligibility and provided, further, that if any Company plan
would not allow Executive to participate, the Company shall provided to
Executive comparable tax-adjusted payments of an equivalent amount;
(iii) to the extent not theretofore paid or provided, the Company
shall timely pay or provide to the Executive and/or the Executive's family any
other amounts or benefits required to be paid or provided or which the Executive
and/or the Executive's family is eligible to receive pursuant to this Agreement
and under any plan, program, policy or practice or contract or agreement of the
Company as in effect and
-15-
16
applicable generally to other peer executives of the Company and their families,
including up to $15,000 in fees paid for out-placement assistance (such other
amounts and benefits shall be hereinafter referred to as the "Other Benefits");
and
(iv) all of Executive's options to purchase the Company's common
stock shall vest immediately.
7. Nonexclusivity of Rights. Except as provided in Section 6, nothing
in this Agreement shall prevent or limit the Executive's continuing or future
participation in any benefit, bonus, incentive or other plans, programs,
policies or practices, provided by the Company and for which the Executive may
qualify, nor shall anything herein limit or otherwise affect such rights as the
Executive may have under any other agreements with the Company. Amounts which
are vested benefits or which the Executive is otherwise entitled to receive
under any plan, policy, practice or program of the Company at or subsequent to
the Date of Termination shall be payable in accordance with such plan, policy,
practice or program except as explicitly modified by this Agreement.
8. Full Settlement.
(a) The Company's obligation to make the payments provided for in this
Agreement and otherwise to perform its obligations hereunder shall not be
affected by any set-off, counterclaim, recoupment, defense or other claim, right
or action which the Company may have against the Executive or others. In no
event shall the Executive be obligated to seek other employment or take any
other action by way of mitigation of the amounts payable to the Executive under
any of the provisions of this Agreement and, except as provided in Section
6(d)(ii), such amounts shall not be reduced whether or not the Executive obtains
other employment. The Company agrees to pay promptly as incurred, to the full
extent permitted by
-16-
17
law, all legal fees and expenses which the Executive may reasonably incur as a
result of any contest (regardless of the outcome thereof) by the Company, the
Executive or others of the validity or enforceability of, or liability under,
any provision of this Agreement or any guarantee of performance thereof
(including as a result of any contest by the Executive about the amount of any
payment pursuant to this Agreement, unless a court of competent jurisdiction
determines that the Executive made such effort in bad faith), plus in each case
interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of
the Internal Revenue Code of 1986, as amended (the "Code").
(b) If there shall be any dispute between the Company and the
Executive (i) in the event of any termination of the Executive's employment by
the Company, whether such termination was for Cause, or (ii) in the event of any
termination of employment by the Executive, whether Good Reason existed, then,
unless and until there is a final, nonappealable judgment by a court of
competent jurisdiction declaring that such termination was for Cause or that the
determination by the Executive of the existence of Good Reason was not made in
good faith, the Company shall pay all amounts, and provide all benefits, to the
Executive and/or the
-17-
18
(c) Executive's family or other beneficiaries, as the case may be,
that the Company would be required to pay or provide pursuant to Section 6(d) as
though such termination were by the Company without Cause, or by the Executive
with Good Reason; provided, however, that the Company shall not be required to
pay any disputed amount pursuant to this paragraph except upon receipt of an
undertaking by or on behalf of the Executive to repay all such amounts to which
the Executive is ultimately adjudged by such court not to be entitled.
9. Successors.
(a) This Agreement is personal to the Executive and without the
prior written consent of the Company shall not be assignable by the Executive
otherwise than by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of and be enforceable by the Executive's legal
representatives.
(b) This Agreement shall inure to the benefit of and be binding
upon the Company and its successors and assigns.
(c) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise. In addition, Executive's outstanding stock options or stock
appreciation rights of the Company will continue to vest in accordance with
their terms during the period from the Effective Date until the termination of
the Executive's employment with the Company. The Executive shall be entitled,
upon exercise of any such outstanding stock options or stock appreciation rights
of the Company, to receive in lieu of
-18-
19
shares of the Company's stock, shares of such stock or other securities of such
successor as the holders of shares of the Company's stock received pursuant to
the terms of the merger, consolidation or sale.
10. Miscellaneous.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts, without reference
to principles of conflict of laws. The captions of this Agreement are not part
of the provisions hereof and shall have no force or effect. This Agreement may
not be amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal representatives.
(b) All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Executive:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to the Company:
▇▇▇▇▇▇ Automation, Inc.
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notices and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
-19-
20
(d) The Company may withhold from any amounts payable under this
Agreement such Federal, state or local taxes as shall be required to be withheld
pursuant to any applicable law or regulation.
(e) The Executive's or the Company's failure to insist upon
strict compliance with any provision hereof shall not be deemed to be a waiver
of such provision or any other provision thereof.
(f) This Agreement contains the entire understanding of the
Company and the Executive with respect to the subject matter hereof and by
entering into this Agreement the Executive waives all rights he may have under
the Company's separation policy, provided that if the Company's separation
policy would provide greater benefits to the Executive than this Agreement, then
the Executive may elect to receive benefits under the Company's separation
policy in lieu of the benefits provided hereunder.
(g) The Executive and the Company acknowledge that prior to the
Effective Date and following the end of the Employment Period, the employment of
the Executive by the Company is subject to the terms of the Offer Letter.
Moreover, if prior to the Effective Date, the Executive's employment with the
Company terminates, then the Executive shall have no further rights under this
Agreement. Notwithstanding anything contained herein, if, during the Employment
Period, the Executive shall terminate employment with the Company other than for
Good Reason, the Executive shall have no liability to the Company.
(h) As used in this Agreement, "Company" shall mean the Company
as hereinbefore defined and any successor to its business or assets as aforesaid
which assumes and agrees to perform this Agreement by operation of law, or
otherwise.
-20-
21
IN WITNESS WHEREOF, the Executive has hereunto set his hand and,
pursuant to the authorization from its Board of Directors, the Company has
caused these presents to be executed in its name on its behalf, all as of the
day and year first above written.
▇▇▇▇▇▇ AUTOMATION, INC.
By:
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
EXECUTIVE
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-21-
