Exhibit (d)(4)
CONSULTING AGREEMENT
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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This is a Consulting Agreement ("Agreement") made on May 15, 2001 by Fluke
Electronics Corporation, a corporation organized under Washington law and having
its principal offices at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ("Fluke") and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇"), a resident
of the state of Utah.
▇▇▇▇▇▇▇ Corporation, the parent of Fluke, has entered into an Agreement and
Plan of Merger dated as of May 15, 2001 with Saltwater Acquisition Corp. and
▇▇▇▇▇▇▇▇▇▇ Industries, Inc. ("▇▇▇▇▇▇▇▇▇▇") (the "Merger Agreement"), under which
Saltwater Acquisition Corp. will acquire all of the issued and outstanding stock
of ▇▇▇▇▇▇▇▇▇▇ (the "Acquisition"). ▇▇▇▇▇▇▇▇ has been the Chairman of the Board
of Directors and Chief Executive Officer of ▇▇▇▇ Scientific Incorporated
("▇▇▇▇"), and has been a principal contributor to the success of its business.
Fluke desires that ▇▇▇▇▇▇▇▇ remain available to Fluke and ▇▇▇▇ after Effective
Time (as such term is defined in the Merger Agreement) of the Acquisition to
provide consulting services as described herein. As an inducement to Fluke to
close the Acquisition and in consideration of the terms described herein,
▇▇▇▇▇▇▇▇ will provide certain business consulting services to Fluke and ▇▇▇▇
pursuant to and in accordance with the terms of this Agreement.
In consideration of the mutual benefits to be derived from the making of
this Agreement and the mutual covenants and obligations herein contained, the
parties agree as follows:
1. Consulting Services.
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(a) ▇▇▇▇▇▇▇▇ shall remain a ▇▇▇▇ employee until July 31, 2001 and until
that time he shall receive his normal compensation including all benefits and
bonuses to which he is entitled. Thereafter, he shall provide to Fluke and ▇▇▇▇,
pursuant to specific requests of either ▇▇▇▇ or Fluke management, consulting
services relating to the implementation of Fluke's acquisition of ▇▇▇▇, as well
as to operations, product development, marketing and other aspects of ▇▇▇▇'▇
business as shall be agreed to from time to time by ▇▇▇▇▇▇▇▇ and Fluke or ▇▇▇▇
("the Services"). ▇▇▇▇▇▇▇▇ shall provide a maximum of 1,040 hours of consulting
services during the term of this agreement.
(b) ▇▇▇▇▇▇▇▇ shall perform the requested Services for Fluke and ▇▇▇▇ with
normal and customary professional skill and in a prompt manner. The Services
will be provided during normal business hours Monday through Friday unless
otherwise agreed by the parties. ▇▇▇▇▇▇▇▇'▇ reasonable travel expenses incurred
on behalf of Fluke or ▇▇▇▇ shall comply with Fluke travel policies (or to ▇▇▇▇
policies to the extent they remain in force after Effective Time of the
Acquisition) and shall be reimbursed within 30 days of the receipt by ▇▇▇▇ of
▇▇▇▇▇▇▇▇'▇ expense report.
2. Consideration. Subject to the consummation of the Acquisition and in return
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for ▇▇▇▇▇▇▇▇'▇ consulting services and in consideration of his compliance with
the terms and conditions of this Agreement, Fluke pay to ▇▇▇▇▇▇▇▇ eight hundred
thousand dollars ($800,000) for the Services. That amount shall be paid to
▇▇▇▇▇▇▇▇ in four annual installments of two hundred thousand dollars ($200,000)
each, the first being payable on August 1, 2002 and the subsequent payments
being due and payable on the first of August in 2003, 2004 and 2005. Of the
annual payments made to ▇▇▇▇▇▇▇▇ hereunder, the payments for the first and
second year shall be totally attributable to his provision of the Services. In
the third and fourth year of this agreement, ▇▇▇▇▇▇▇▇ shall have no obligations
to consult to Fluke or ▇▇▇▇, the payments in those years are for the non-compete
provisions, the Release and other consideration provided hereunder.
3. Termination of Employment Agreements.
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(a) ▇▇▇▇▇▇▇▇ acknowledges that his Employment Agreement with ▇▇▇▇
Scientific, Inc. shall be terminated upon the Effective Time. If the Effective
Time occurs before July 31, 2001, ▇▇▇▇▇▇▇▇'▇ relationship with ▇▇▇▇ shall become
that of an employee-at-will until July 31, 2001. Effective immediately after
the Effective Time, ▇▇▇▇▇▇▇▇ shall waive any and all rights arising from the
Employment Agreement, except as described in Article 3.(c) below. (b) This
Agreement shall supersede and render null and void, and as of the Effective Time
▇▇▇▇▇▇▇▇ waives any and all rights arising from, any other agreement, whether
written or oral, ▇▇▇▇▇▇▇▇ may have pertaining to his employment with ▇▇▇▇ or any
affiliate thereof, including, without limitation, any agreement that may pertain
to compensation as a result of a sale or acquisition of ▇▇▇▇ or ▇▇▇▇▇▇▇▇▇▇.
(c) Notwithstanding the above, the provisions of Section 4.(3) of
▇▇▇▇▇▇▇▇'▇ Employment Agreement (requiring the continuation of major medical and
hospitalization insurance until ▇▇▇▇▇▇▇▇ is entitled to receive Medicare) shall
survive and such benefit will be
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provided or alternate arrangements will be made. Furthermore, Section 13
(addressing ▇▇▇▇'▇ indemnification of ▇▇▇▇▇▇▇▇) of that Employment Agreement
shall remain in full force and effect throughout the term of this Consulting
Agreement, provided that the following facts exist:
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1. ▇▇▇▇▇▇▇▇ acted in good faith;
2. ▇▇▇▇▇▇▇▇ reasonably believed that his conduct in question was in
the Company's best interests;
3. ▇▇▇▇▇▇▇▇'▇ actions did not amount to intentional misconduct or
gross negligence;
4. ▇▇▇▇▇▇▇▇ received no benefit in money, property or services from
the conduct in question except that which ▇▇▇▇▇▇▇▇ was legally
entitled to receive; and
5. in the case of a criminal proceeding, ▇▇▇▇▇▇▇▇ had no reasonable
cause to believe that his conduct was unlawful.
▇▇▇▇▇▇▇▇ agrees that he is not entitled to the payment provided above in Article
2 under his employment agreement or otherwise and that the payment is more than
adequate consideration for the releases and covenants contained in this
Agreement. In addition, ▇▇▇▇▇▇▇▇ consents and agrees that all options to
purchase common stock of ▇▇▇▇▇▇▇▇▇▇ or any of its subsidiaries shall be
cancelled in the manner and for the consideration set forth in Section 2.9 of
the Merger Agreement.
4. Relationship of Parties. As of August 1, 2001, ▇▇▇▇▇▇▇▇ shall be an
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independent contractor and shall perform requested Services in the manner and by
the means determined by ▇▇▇▇▇▇▇▇, subject at all times, however, to the general
direction of Fluke and ▇▇▇▇. As of August 1, 2001 ▇▇▇▇▇▇▇▇ shall not be an
agent or employee of Fluke or ▇▇▇▇ and shall have no authority to bind Fluke or
▇▇▇▇ by contract or otherwise.
5. Employment Taxes and Benefits. As of August 1, 2001, ▇▇▇▇▇▇▇▇ shall report
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on his tax returns, in accordance with applicable regulations of the Internal
Revenue Service, all compensation received by him pursuant to this Agreement,
and ▇▇▇▇▇▇▇▇ shall indemnify each of Fluke and ▇▇▇▇ and hold it harmless to the
extent of any obligation imposed by law on Fluke or ▇▇▇▇ to pay any withholding
taxes, social security, unemployment or disability insurance, or similar items
in connection with any payments made to ▇▇▇▇▇▇▇▇ by Fluke or ▇▇▇▇ pursuant to
this Agreement. ▇▇▇▇▇▇▇▇ shall not be entitled to participate in any plans,
arrangements or distributions by Fluke or ▇▇▇▇ pertaining to any bonus, stock
option, profit sharing, or similar benefits for employees of Fluke or ▇▇▇▇,
other than those he is entitled to participate in through July 31, 2001.
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6. Proprietary Information. ▇▇▇▇▇▇▇▇ acknowledges and understands that
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Proprietary Information is an important ▇▇▇▇ asset and agrees that he shall not
disclose, publish, or use Proprietary Information until such information is
disclosed to the public by its owner or ownership rights terminate pursuant to
law. ▇▇▇▇▇▇▇▇ shall return to ▇▇▇▇ all Proprietary Information in his
possession upon the termination of his employment with ▇▇▇▇. Proprietary
Information for purposes of this Agreement shall include ▇▇▇▇ information that
otherwise is not generally known to the public and that is or has been
developed, owned or obtained by either ▇▇▇▇▇▇▇▇ or ▇▇▇▇. "Proprietary
Information" includes, without limitation, any technical data, trade secrets,
good will or know-how, including without limitation, information related to
operations, employee roles and functions, products, research, inventions,
designs, processes, methods, product proposals and development, products yet to
be announced, development engineering, technology-based components research,
computer software, source code, specifications, confidential manuals, sales and
financial materials, forecasts, pricing and cost data, customer lists, sales
figures, projections and plans, business strategies, unannounced products, or
other oral, written or computer-generated information, including non-technical
and non-sales-related information. Proprietary information shall not include
the skills or general knowledge and information obtained by ▇▇▇▇▇▇▇▇ while
employed at ▇▇▇▇ that pertains to business management or the temperature
metrology equipment industry that one would expect to use when employed
elsewhere. It shall apply to the business information specific to ▇▇▇▇ that
▇▇▇▇, or any other company, would not want divulged to those outside the company
because of the potential that such disclosure could cause economic harm to the
company or deprive it of financial benefit.
7. Non-Compete Provisions.
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(a) ▇▇▇▇▇▇▇▇ acknowledges that the covenants he is providing in this
Agreement, are reasonable and necessary to the protection of the legitimate
interests of Fluke and ▇▇▇▇ and their respective subsidiaries and parents,
including, but not limited to, the good will of ▇▇▇▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇▇ further
acknowledges that by virtue of his position with ▇▇▇▇ he has developed
considerable expertise in the business operations of ▇▇▇▇. ▇▇▇▇▇▇▇▇
acknowledges that Fluke and ▇▇▇▇ and their respective subsidiaries and parents,
would be irreparably damaged and its substantial investment in ▇▇▇▇ materially
impaired were ▇▇▇▇▇▇▇▇ to engage in an activity that competes with the business
of ▇▇▇▇, Fluke or their respective subsidiaries and parents in violation of the
terms of this Agreement. Accordingly, ▇▇▇▇▇▇▇▇ acknowledges that he is
voluntarily entering into this Agreement and that the terms and conditions of
this Agreement are fair and reasonable to him in all respects and that Fluke, in
addition to any other remedies which
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it may have, shall be entitled to obtain injunctive relief, including specific
performance, in the event of any actual or threatened breach by ▇▇▇▇▇▇▇▇ of any
of the provisions of this Agreement.
(b) Accordingly, ▇▇▇▇▇▇▇▇ covenants and agrees that during for a period of
three years from the Effective Time of the Acquisition, (the "Covenant Period"),
▇▇▇▇▇▇▇▇ shall not, directly or indirectly, perform any services for any person
or entity engaged in a competing business or, without limiting the generality of
the foregoing, be or become or agree to be or become, interested in or
associated with, in any capacity (whether as a partner, shareholder, owner,
officer, director, employee, principal, agent, creditor, trustee, consultant,
coventurer or otherwise) in any competing business as defined herein. ▇▇▇▇▇▇▇▇
agrees that ▇▇▇▇ provides goods and services both at its facilities and at the
locations of its customers and that by the nature of its business, it operates
globally. Therefore, the Market Area shall be defined as anywhere in the world.
Notwithstanding the provisions of this Article 6 (b), ▇▇▇▇▇▇▇▇ may own, solely
as an investment, not more than one percent (1%) of any class of securities of
any competing business that is publicly-traded on any United States national
security exchange or reported on the National Association of Securities Dealers
Automated Quotation System.
(c) ▇▇▇▇▇▇▇▇ acknowledges that, during the Covenant Period, he may engage
in any business activity or gainful employment of any type and in any place
except as described above. ▇▇▇▇▇▇▇▇ acknowledges that he will be reasonably able
to earn a livelihood without violating the terms of this Agreement.
(d) For purposes of the Agreement, a "competing business" is any business
that competes with ▇▇▇▇, Fluke or ▇▇▇▇▇▇▇ or any subsidiary or affiliate
thereof, in the research, development, marketing or sale of temperature
metrology equipment.
8. No Solicitation Provisions. ▇▇▇▇▇▇▇▇ further agrees that during the
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Covenant Period he will not, without Fluke's prior written consent, directly or
indirectly (i) induce or attempt to influence any employee of ▇▇▇▇ or Fluke or
their respective subsidiaries or parents to leave its employ, (ii) hire any
person who shall have been an employee of ▇▇▇▇ or Fluke or their respective
subsidiaries or parents, within one year preceding the termination of his
employment with ▇▇▇▇, (iii) aid or agree to aid any competitor, customer or
supplier of ▇▇▇▇ in any attempt to hire any person who shall have been employed
by ▇▇▇▇ or Fluke or their respective subsidiaries or parents within one year
preceding the termination of ▇▇▇▇▇▇▇▇'▇ employment with ▇▇▇▇, or (iv) induce or
attempt to influence any person or business entity who was a customer of ▇▇▇▇ or
Fluke or their respective subsidiaries or parents during any portion of the
Covenant Period to transact business with a competing business as defined
herein. Notwithstanding the above,
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▇▇▇▇▇▇▇▇ will not be prohibited from hiring or working with ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
within one year after Summer's employment with ▇▇▇▇ terminates provided that
either ▇▇▇▇ or Fluke give prior written approval of such an arrangement, which
approval shall not be unreasonably withheld.
9. Independence of Obligations. The covenants of ▇▇▇▇▇▇▇▇ set forth in this
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Agreement shall be construed as independent of any other agreement or
arrangement between the ▇▇▇▇▇▇▇▇ and Fluke or ▇▇▇▇. The existence of any claim
or cause of action by ▇▇▇▇▇▇▇▇ against Fluke or ▇▇▇▇ shall not constitute a
defense to the enforcement of such covenant against ▇▇▇▇▇▇▇▇.
10. Release of Claims. As a condition of receiving the consideration
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described in Article 2 of this Agreement, ▇▇▇▇▇▇▇▇ will, at or prior to the
Effective Time, execute and deliver to ▇▇▇▇▇▇▇▇▇▇ the agreement attached hereto
as Exhibit A.
11. Severability, Reformation. If any provision of this Agreement is held by a
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court of competent jurisdiction to be excessively broad as to duration,
activity, subject or geographic scope, this Agreement shall be modified to
extend only over the maximum duration, activity or subject as to which such
provision shall be valid and enforceable under applicable law. If any provision
of this Agreement shall, for any reason, be held by a court of competent
jurisdiction to be invalid, illegal or unenforceable, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
agreement, but this agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein.
12. Specific Enforcement. ▇▇▇▇▇▇▇▇ acknowledges that it would be difficult to
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measure the damages that might result from any breach of any of his covenants
contained herein that pertain to the protection of proprietary information,
noncompetition or no solicitation, and that any breach of any such covenants
will result in injury to Fluke or to ▇▇▇▇, for which money damages could not
adequately compensate. If a breach of any such covenants occur, ▇▇▇▇▇▇▇▇'▇
right to further payments hereunder shall terminate and Fluke shall be entitled,
in addition to all of the rights and remedies that it may have at law or in
equity, to
(a) reimbursement by ▇▇▇▇▇▇▇▇ to Fluke of any amounts paid to him pursuant
to Article 2 of this Agreement in the event of a material breach of the above-
referenced covenants, and
(b) injunctive relief to enjoin and restrain ▇▇▇▇▇▇▇▇ and all other
persons and entities involved therein from continuing such breach. If Fluke
resorts to litigation to enforce any of the covenants or agreements contained
herein that have a fixed term, then such term shall be
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extended for a period of time equal to the period during which a breach of the
covenant or agreement was occurring, or, if later, the last day of the original
fixed term of such covenant or agreement.
13. Notices. All notices and other communications given pursuant to this
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Agreement shall be in writing and shall be delivered in hand, sent by telecopier
and confirmed by mailing of a copy thereof by ordinary mail on the same or
immediately following business day, or sent by certified mail, return receipt
requested, with postage and fees prepaid, addressed or delivered to the party
for whom the notice or other communication is intended at that party's address
set forth in the heading of this Agreement or to such other address for a party
notice of which, complying with these provisions, has been give by that party to
the other. All such notices, requests, demands or other communications will be
deemed to have been effectively given when received by the person addressed.
14. Waiver.
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(a) No failure on the part of any party to exercise any power, right,
privilege or remedy under this Agreement and no delay on the party of any party
in exercising any power, right, privilege or remedy under this Agreement, shall
operate as a waiver of the power, right, privilege or remedy; and no single or
partial exercise of any such power, right, privilege or remedy shall preclude
any other or further exercise thereof or of any other power, right, privilege or
remedy.
(b) No party will be deemed to have waived any claim arising out of this
Agreement or any power, right, privilege or remedy provided under this Agreement
unless the waiver of the claim, power, right, privilege or remedy is set forth
expressly in a written instrument duly executed and delivered on behalf of the
waiving party; and any such waiver shall not be applicable or have any effect
except in the specific instance in which it is given.
15. Survival. The respective obligations of the parties under this Agreement
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that by their nature would continue beyond the termination, cancellation or
expiration, shall survive termination, cancellation, or expiration, including
but not limited to Articles 5 through 18.
16. Assignment. ▇▇▇▇▇▇▇▇ agrees that this Agreement shall be assignable by ▇▇▇▇
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or Fluke to any person, firm or corporation that may become a successor in
interest to ▇▇▇▇, Fluke and their respective subsidiaries, affiliates and
parents. This assignment can include Articles 7 and 8. The
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duties and obligations under this Agreement are personal to ▇▇▇▇▇▇▇▇ and he
shall have no right to assign this Agreement. Any consideration owed hereunder
at the time of ▇▇▇▇▇▇▇▇'▇ death shall inure to the benefit of his heirs or
assigns.
17. Binding Effect. This Agreement shall be binding upon and shall inure to
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the benefit of Fluke and its successors and assigns and upon ▇▇▇▇▇▇▇▇ and his
heirs and legal representatives.
18. Applicable Law; Jurisdiction. Except to the extent governed by federal
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law, this Agreement shall be governed by and construed in accordance with the
laws of the State of Utah without giving effect to the conflict of laws
provisions thereunder. Each of the parties hereby absolutely and irrevocably
consents and submits to the jurisdiction of the courts the State of Utah and of
any federal court sitting in Salt Lake City in connection with any actions or
proceedings brought against any party arising out of or relating to this
Agreement. In any such action or proceeding, the parties each hereby absolutely
and irrevocably (i) waive any objection to jurisdiction or venue, (ii) waive
personal service of any summons, complaint, declaration or other process, and
(iii) agree that the service thereof may be made by certified or registered
first-class mail directed to such party, as the case may be, at their addresses
set forth under the signature lines of this Agreement.
19. Counterparts. This Agreement may be executed in several counterparts, each
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of which shall be deemed to be an original and all of which taken together shall
constitute one and the same instrument.
20. Termination. This Agreement shall terminate and have no effect and be
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void, and no party hereto shall have any obligation hereunder, upon termination
of the Offer (as defined in the Merger Agreement) or termination of the Merger
Agreement.
IN WITNESS WHEREOF, the undersigned have executed this agreement as of the date
first above written.
FLUKE ELECTRONICS CORPORATION
By /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Address: Address:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇.▇. ▇▇▇ ▇▇▇▇, ▇▇ 203A
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
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EXHIBIT A
[__] Company's Copy
[__] ▇▇▇▇▇▇▇▇'▇ Copy
PLEASE READ THIS AGREEMENT CAREFULLY.
IT CONTAINS A RELEASE OF KNOWN AND UNKNOWN CLAIMS.
To ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇:
This Agreement establishes the terms under which ▇▇▇▇▇▇▇▇▇▇ Industries,
Inc. and its subsidiaries (collectively, the "Company") and you have agreed to
end your employment effective as of the close of business on the later of July
31, 2001 or the Effective Time of the Acquisition (the "Separation Date") and of
your release of the Company and others described below from any claims you might
have against any of them related to your employment and other matters described
and of the Company's release of you.
Resignation. You have indicated your agreement to remain employed by the
Company until the Separation Date. As of the Separation Date or a mutually
agreed later date, you are resigning as an employee, officer, director, and
other representative of the Company. You agree that you will no longer have any
connection with the Company after the Separation Date, except as this Agreement
provides.
Services. You agree to provide consulting services to the Company under your
Consulting Agreement with Fluke Electronics Corporation, dated as of May 15,
2001 (the "Consulting Agreement").
Payment. The Company will, contingent upon receipt of this Release Agreement
signed by you, the lapse of the Revocation Period, and the Effective Time of the
merger provided in the Agreement and Plan of Merger dated as of May 15, 2001
with Saltwater Acquisition Corp. and the Company, pay you or your estate
$800,000 under the Consulting Agreement. You agree that you are not entitled to
this payment under your employment relationship or otherwise and that the
payment is more than adequate consideration for the Release and other
consideration by you hereunder and under your Consulting Agreement.
Limitations on Other Benefits or Compensation. You understand and agree that
you will receive no other wage, back pay, severance, or other payments or
benefits from the Company or affiliates of the Company other than those set
forth in this and the preceding paragraph and your regular bonus for fiscal year
2001, except for any generally applicable retirement benefit plans for which you
have qualified and post-employment medical coverage described to in your
Consulting Agreement.
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Duties. As part of this Agreement, through the Separation Date, you agree to:
(i) continue to perform all of your current duties and comply with your
employment agreement and other obligations to the Company; (ii) assist with the
merger; and (iii) carry out any other tasks the Company reasonably requests to
facilitate the Effective Time of the merger.
No Disparaging Comments. Except as the law may require, you agree that you will
not in any way, directly or indirectly, to any employee of the Company or to any
other person (including but not limited to any communications with the press or
other media), make any statement that could reasonably be interpreted to
criticize or disparage the performance, competency, or ability of the Company or
its affiliates as a provider of products and services, or the officers,
directors, trustees, partners, members, employees, or agents of any of them at
any time after the execution of this Agreement, nor will you do or say anything
that likely would have the effect of disrupting or impairing the Company's
normal, ongoing business operations or harming the Company's reputation with its
associates, employees, clients, investors, suppliers, dealers, acquisition
prospects, or the public. It will not be a violation of this paragraph for you
to make truthful statements, under oath, as required by law or formal legal
process.
If the Company, Fluke or ▇▇▇▇▇▇▇ beleive you have violated provisions of this
article, reasonable attempts will be made to notify you of such concerns. If
either seek to enjoin you from making such statements, payment of amounts owed
to you may be withheld pending the conclusion of binding arbitration of whether
such statements meet the requirements described in this Article. The
determination shall be made by one arbitrator in arbitration undertaken in Salt
Lake City, Utah pursuant to the rules of the American Arbitration Association.
Entire Agreement. This is the entire agreement between you and the Company and
the other parties released, with respect to employment-related matters covered
by, and provided in, this Agreement. The Company has made no promises to you
other than those in this Agreement with respect to matters covered by it. The
parties expressly agree that your current employment agreement and any
predecessor agreements have no force or effect after the Separation Date and
cannot be enforced by either party against the other, except as expressly noted
above, provided that you agree that you remain bound by the restrictive
covenants in your Consulting Agreement. Neither the Company, ▇▇▇▇▇▇▇ Corporation
nor Fluke Corporation has made promises to you other than those in this
Agreement and in the Consulting Agreement.
No Reliance. You acknowledge and agree that, in deciding to execute this
Agreement and the Release, (i) you have relied entirely upon your own judgment,
(ii) you have been advised to and have [had the opportunity to consult]
[consulted] with legal, financial, and other personal advisors of your choosing
as you consider appropriate in assessing whether to execute this Agreement, and
(iii) you have read and fully understood all the terms of this Agreement.
Except as written into this Agreement, neither you nor the Company is relying or
has relied upon any statements, representations, warranties, or other promises,
express or implied, oral or written, as to fact or as to law, made by the other
party, or any other person, including, without limitation, any attorney or agent
of either party, or upon any consideration of any form received or to be
received by any party from any other person, including, without limitation, any
attorney or agent of a party.
Settlement. The parties have reached this Agreement and Release to, among other
things, settle any potential claims relating to the termination of your
employment that you have or may have against the Company and any related
entities including parent, subsidiaries, successors, or affiliates, and their
present, former and future
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employees, officers, trustees, partners, shareholders, counsel, and anyone
acting or purporting to act on behalf of any of them. Neither this Agreement nor
any other document or written or oral statement prepared or made in connection
with this Agreement, nor any discussion of the matters referred to in this
Agreement nor any payment under this Agreement, constitutes, or should be deemed
to constitute, (A) an admission of law or fact or an admission of any liability
or wrongdoing by you or the Company with respect to any claims, unasserted
claims, or demands relating to or arising out of or in connection with any
matter whatsoever (and the Company specifically denies any such liability or
wrongdoing) or (B) evidence of any matter whatsoever, except for the agreement
expressly set forth in this Agreement.
Binding Effect This Agreement binds any and all successors and assigns of the
Company and your heirs and beneficiaries.
Mutual Release of Claims. You, for yourself and your heirs, executors,
administrators, representatives, and assigns, as a free and voluntary act,
release and discharge the Company, ▇▇▇▇▇▇▇ Corporation, Fluke Corporation and
any entities related to any of them, including parent, divisions, subsidiaries,
or affiliates, and their present, former, and future employees, officers,
directors, stockholders, counsel, and anyone acting or purporting to act on
behalf of any of them, from any and all debts, obligations, demands, claims,
judgments or causes of action of any kind whatsoever, whether now known or
unknown, in tort, in contract, by statute, or any other basis for compensatory,
punitive or other damages, expenses, reimbursements or costs of any kind. This
release and discharge includes, but is not limited to, any and all claims,
demands, rights and/or causes of action, arising up to the date of this Release,
including those that might arise out of allegations relating to any claimed
breach of an alleged oral or written contract, or any purported employment
discrimination or civil rights violations, or any alleged acts of slander,
libel, or intentional infliction of emotional distress. This release and
discharge includes, but is not limited to, any and all claims, demands, rights,
and/or causes of action you might have or assert against any of the Company and
the other described entities or persons by (1) reason of active employment by
the Company or any associated or affiliated company or the cessation of such
employment relationship and all circumstances related thereto, or (2) reason of
any other matter, case or thing whatsoever that may have occurred before the
dates of execution of this Release. The Company specifically disclaims any
liability to, or for wrongful acts against, you or any other person on the part
of itself, its shareholders, subsidiaries, affiliates, and successors and the
directors, officers, employees and agents of each of them.
Company Release of Claims. Likewise, the Company, ▇▇▇▇▇▇▇ Corporation and Fluke
Corporation, as a free and voluntary act of each, release and discharge you from
any and all debts, obligations, demands, claims, judgments, or causes of action
of any kind whatsoever, whether known or unknown, under or with respect to your
employment or your employment agreement, arising up to the date of this Release.
This release of you does not waive any defenses the Company, ▇▇▇▇▇▇▇ Corporation
or Fluke Corporation may have with respect to indemnifying you, nor does it
cover any acts of a criminal or fraudulent nature.
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Release of Statutory Claims. This Release includes but is not limited to a
release of any rights or claims you may have under the Age Discrimination in
Employment Act of 1967, as amended ("ADEA"), which prohibits age discrimination
in employment; Title VII of the Civil Rights Act of 1964, as amended, which
prohibits discrimination in employment based on race, color, national origin,
religion or sex; the Equal Pay Act, which prohibits paying men and women unequal
pay for equal work; the Americans with Disabilities Act of 1990, which prohibits
discrimination against disabled persons; the Vocational Rehabilitation Act of
1973, which prohibits discrimination against handicapped persons; the Civil
Rights Act of 1991, and any other federal, state, or local laws or regulations
prohibiting employment discrimination; and any claim for reinstatement. This
also includes your release of any claims for wrongful discharge, breach of
contract (express or implied), breach of any covenant of good faith and fair
dealing (express or implied), any claims that the Company has dealt with you
unfairly or has denied you any rights under its policies and procedures or any
other claims arising under common or civil law and relating to your employment
or termination, and any claims under the Employee Retirement Income Security Act
of 1974, which prohibits actions taken to discharge or discriminate against
someone to prevent his exercising any right under an employee benefit plan or to
interfere with his attainment of any such right. It does not release claims
under ADEA or on any other basis that arise after the date you sign this
Release, but you agree that your termination of employment as of the Separation
Date and the other matters described in the Agreement "arise" before the date
you sign below.
Known and Unknown Claims. To implement a full and complete release and
discharge, you expressly acknowledge that this Release is intended to include in
its effect, without limitation, all claims you do not know or suspect to exist
in your favor at the time of execution of this Release. You agree that this
Release contemplates the extinguishment of any such claim or claims except any
acts of a criminal or fraudulent nature. In turn the Company, ▇▇▇▇▇▇▇
Corporation and Fluke Corporation acknowledge and agree in the same manner as
stated in this Article.
Indemnification. The Company agrees that you are not releasing any claims you
may have for indemnification under state or other law or the charter, articles,
or by-laws of the Company and its affiliated companies, or under any insurance
policy providing directors' and officers' coverage for any lawsuit or claim
relating to the period when you were a director or officer of the Company or any
affiliated company.
Period for Consideration. You acknowledge that, as ADEA requires, you have been
given a period of 21 days to review and consider the release of claims under
ADEA contained in this Release before signing and you have been informed that
you may use as much or as little of this period as you wish before signing. As
ADEA also requires, you may revoke (that is, cancel) the release of ADEA claims
in this Release before the release becomes effective as to ADEA. ADEA provides a
seven day period for such revocation, which the Company and you agree will start
on the Separation Date. You would make this revocation by delivering a written
notice of revocation to NAME, ADDRESS. For this revocation to be effective, the
NAME must receive this notice no later than the close of business on seventh day
following the Separation Date. If you
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revoke the release of claims under ADEA before that deadline, this Release will
not be effective or enforceable as to those claims; however, the Company will
then not pay you and you will not be entitled to retain the amounts described in
the Agreement to which this Release is attached.
Governing Law. The laws of the State of Utah (other than its conflict of laws
provisions) govern this Agreement.
Effectiveness. This Agreement does not become effective until it has been
executed and delivered by both the Company and you and the Merger has closed.
[SIGNATURE PAGE FOLLOWS]
You acknowledge that you have read this Agreement, understand it, and are
voluntarily entering into it.
▇▇▇▇▇▇▇▇▇▇ Industries, Inc.
By: _______________________________
___________________________________
Date Signed
Name: _____________________________
Title: ____________________________
This agreement includes a release -- read carefully before signing. You should
consult with an attorney.
Accepted and agreed to this ____ day of _______ 2001:
_________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
_________________________________
Date Signed
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