JOHNSON CONTROLS, INC. CHANGE OF CONTROL EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.F
▇▇▇▇▇▇▇ CONTROLS, INC.
CHANGE OF CONTROL
EXECUTIVE EMPLOYMENT AGREEMENT
CHANGE OF CONTROL
EXECUTIVE EMPLOYMENT AGREEMENT
AGREEMENT by and between ▇▇▇▇▇▇▇ Controls, Inc. a Wisconsin corporation (the “Company”) and
Executive Name (the “Executive”), dated .
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) (i) The “Effective Date” shall mean the first date during the Change of Control Period
(as defined in Section 1(b)) on which a Change of Control (as defined in Section 2) occurs. (ii)
Anything in this Agreement to the contrary notwithstanding, if a Change of Control occurs and 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 the Change of Control occurs, and if it is reasonably
demonstrated by the Executive that such termination of employment or cessation of status as an
officer (A) was at the request of a third party who has taken steps reasonably calculated to effect
the Change of Control or (B) otherwise arose in connection with or 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 or cessation of status as an
officer.
(b) The “Change of Control Period” shall mean the period commencing on the date hereof and
ending on the second anniversary of such date; provided, however, that commencing on the date one
year after the date hereof, and on each annual anniversary of such date (such date and each annual
anniversary thereof shall be hereinafter referred to as the “Renewal Date”), the Change of Control
Period shall be automatically extended so as to terminate two years from such Renewal Date, unless
at least 60 days prior to the Renewal Date the Company shall give notice to the Executive that the
Change of Control Period shall not be so extended.
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CHANGE OF CONTROL
EXECUTIVE EMPLOYMENT AGREEMENT
CHANGE OF CONTROL
EXECUTIVE EMPLOYMENT AGREEMENT
(c) A “Change of Control” shall mean the first to occur of the following events:
(i) 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”)) (a “Person”)
of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of
35% or more of either (A) the then-outstanding shares of common stock of the Company (the
“Outstanding Company Common Stock”) or (B) the combined voting power of the then-outstanding voting
securities of the Company entitled to vote generally in the election of directors (the “Outstanding
Company Voting Securities”); provided, however, that the following acquisitions shall not
constitute a Change of Control: (I) any acquisition directly from the Company, (II) any
acquisition by the Company, (III) any acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any Affiliated Company, or (IV) any acquisition by any
corporation pursuant to a transaction that complies with Sections 1(c)(iii)(A), 1(c)(iii)(B) and
1(c)(iii)(C);
(ii) Any time at which individuals who, as of the date hereof, constitute the Board (the
“Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided,
however, that any individual becoming a director subsequent to the date hereof 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 assumption of office occurs as a result of an actual or threatened
election contest with respect to the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the Board;
(iii) Consummation of a reorganization, merger, statutory share exchange or consolidation or
similar corporate transaction involving the Company or any of its subsidiaries, a sale or other
disposition of all or substantially all of the assets of the Company, or the acquisition of assets
or stock of another entity by the Company or any of its subsidiaries (each, a “Business
Combination”), in each case unless, following such Business Combination, (A) all or substantially
all of the individuals and entities that were the beneficial owners of the Outstanding Company
Common Stock and the Outstanding Company Voting Securities immediately prior to such Business
Combination beneficially own, directly or indirectly, more than 50% of the then-outstanding shares
of common stock and the combined voting power of the then-outstanding voting securities entitled to
vote generally in the election of directors, as the case may be, of the corporation resulting from
such Business Combination (including, without limitation, a corporation that, as a result of such
transaction, owns the Company or all or substantially all of the Company’s assets either directly
or through one or more subsidiaries) in substantially the same proportions as their ownership
immediately prior to such Business Combination of the Outstanding Company Common Stock and the
Outstanding Company Voting Securities, as the case may be, (B) no Person (excluding
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any corporation resulting from such Business Combination or any employee benefit plan (or
related trust) of the Company or an Affiliated Company or such corporation resulting from such
Business Combination) beneficially owns, directly or indirectly, 35% or more of, respectively, the
then-outstanding shares of common stock of the corporation resulting from such Business Combination
or the combined voting power of the then-outstanding voting securities of such corporation, except
to the extent that such ownership existed prior to the Business Combination, and (C) at least a
majority of the members of the board of directors of the corporation resulting from such Business
Combination were members of the Incumbent Board at the time of the execution of the initial
agreement or of the action of the Board providing for such Business Combination; or
(iv) Approval by the shareholders of the Company of a complete liquidation or dissolution of
the Company.
(d) As used in this Agreement, the term “Affiliated Company” or “Affiliated Companies” shall
include any company or companies controlled by, controlling or under common control with the
Company; provided that when determining when the Executive has experienced a Separation from
Service for purposes of this Agreement, control shall be determined pursuant to Code Section 414(b)
or 414(c), except that the phrase “at least 50 percent” shall be used in place of the phrase “at
least 80 percent” in each place it appears in the regulations thereunder.
(e) “Code” shall mean the Internal Revenue Code of 1986, as amended. Any reference to a
specific provision of the Code shall be deemed to include any successor provision thereto.
(f) “Separation from Service” shall mean the Executive’s Termination of Employment, except
that if the Executive continues to provide services following his or her Termination of Employment,
such later date as is considered a separation from service, within the meaning of Code Section
409A, from the Company and its Affiliated Companies. Specifically, if the Executive continues to
provide services to the Company or an Affiliated Company in a capacity other than as an employee,
such shift in status is not automatically a Separation from Service.
(g) For purposes of this Agreement, the Executive will be considered a “Specified Employee”
if, on the date of the Executive’s Separation from Service, the Executive is a key employee of the
Company or an affiliate of the Company (within the meaning of Code Section 414(b) or (c)) any of
the stock of which is publicly traded on an established securities market or otherwise. The
Executive is considered a key employee for the 12-month period beginning on the first day of the
fourth month following the key employee identification date, which is December 31 of each year,
such that if the Executive satisfies the requirements for key employee status as of December 31 of
a year, the Executive shall be treated as a key employee for the 12-month period beginning April 1
of the following calendar year. The Executive will meet the requirements for key employee status
as of December 31 of a year if the Executive
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meets the requirements of Code Section 416(i)(1)(A)(i), (ii) or (iii), applied in accordance
with the regulations under Code Section 416, but disregarding Code Section 416(i)(5), at any time
during the 12-month period ending on such December 31. For purposes of determining whether the
Executive is a key employee, the definition of compensation under Treasury Regulation §1.415-2(a)
shall be used, applied as if the Company and its affiliates were not using any safe harbor under
Treasury Regulation §1.415-2(d), any of the special timing rules of Treasury Regulation §1.415-2(e)
or any of the special rules provided in Treasury Regulation §1.415-2(g).
In lieu of the foregoing, if, in the transaction constituting a Change of Control, the Company
is merged with or acquired by another entity, and immediately following the Change of Control the
stock of either the Company or the acquirer or successor in such transaction is publicly traded on
an established securities market or otherwise, then the Executive shall be considered a key
employee for the period between the effective date of such transaction and the next specified
employee effective date of the acquirer or survivor if the Executive is on the combined list of the
specified employees of each entity participating in the transaction, as re-ordered to identify the
top 50 key employees (as well as 1% and 5% owners that are considered key employees) in accordance
with Treasury Regulations §1.409A-1(i)(6)(i).
(h) For purposes of this Agreement, the Executive’s “Termination of Employment” (or variations
thereof, such as “Terminates Employment” or “Employment Termination”) shall occur when the
Executive permanently ceases to perform services for the Company and its Affiliated Companies as an
employee or when the level of bona fide services the Executive performs as an employee of the
Company and its Affiliated Companies permanently decreases to no more than twenty percent (20%) of
the average level of bona fide services performed by the Executive (whether as an employee or
independent contractor) for the Company and its Affiliated Companies over the immediately preceding
thirty-six (36)-month period (or such lesser period of services). Notwithstanding the foregoing,
if the Executive takes a leave of absence for purposes of military leave, sick leave or other bona
fide reason, the Executive will not be deemed to have experienced a Termination of Employment for
the first six (6) months of the leave of absence, or if longer, for so long as the Executive’s
right to reemployment is provided either by statute or by contract, including this Agreement;
provided that if the leave of absence is due to a medically determinable physical
or mental impairment that can be expected to result in death or last for a continuous period of not
less than six (6) months, where such impairment causes the Executive to be unable to perform the
duties of his or her position of employment or any substantially similar position of employment,
the leave may be extended by the Company for up to twenty-nine (29) months without causing a
Termination of Employment.
2. Employment Period. The Company hereby agrees to continue the Executive in its
employ for the period commencing on the Effective Date and ending on the second anniversary of such
date (the “Employment Period”), subject to the provisions of Section 4.
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EXECUTIVE EMPLOYMENT AGREEMENT
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EXECUTIVE EMPLOYMENT AGREEMENT
3. Terms of Employment. (a) Position and Duties. (i) 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 90-day period immediately preceding the Effective Date 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 35 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 reasonable attention and time
during normal business hours to the business and affairs of the Company and, to the extent
necessary to discharge 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
monthly rate, at least equal to twelve times the highest monthly base salary paid or payable to the
Executive by the Company and its Affiliated Companies for any month during the twelve-month period
immediately preceding the month in which the Effective Date occurs. During the Employment Period,
the Annual Base Salary shall be reviewed at least annually and shall be increased at any time and
from time to time as shall be substantially consistent with increases in base salary generally
awarded in the ordinary course of business to other peer executives of the Company and its
Affiliated Companies. 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 ending 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 less than twelve
full months or with respect to which the Executive has been employed by the Company for less than
twelve full months)
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bonuses paid or payable, including any amount that would have been paid or have been payable
were it not for a mandatory or voluntary deferral of such amount, including pursuant to the Annual
and Long-Term Incentive Plans or any counterpart or successor plan(s) thereto, to the Executive by
the Company and its Affiliated Companies in respect of the three fiscal years immediately preceding
the fiscal year in which the Effective Date occurs (the “Recent Average Bonus”). Each such Annual
Bonus shall be paid no later than the fifteenth (15th) day of the third 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 in accordance with the terms of any
deferred compensation plan then in effect.
(iii) Incentive, Savings and Retirement Plans. During the Employment Period, the
Executive shall be entitled to participate in all incentive, savings and retirement plans,
practices, policies and programs applicable generally to other peer executives of the Company and
its Affiliated Companies, but in no event shall such plans, practices, policies and programs
provide the Executive with incentive opportunities (measured with respect to both regular and
special incentive opportunities, to the extent, if any, that such distinction is applicable),
savings opportunities and retirement benefit opportunities, in each case, less favorable, in the
aggregate, than the most favorable of those provided by the Company and its Affiliated Companies
for the Executive under such plans, practices, policies and programs as in effect at any time
during the 90-day period immediately preceding the Effective Date or, if more favorable to the
Executive, those provided generally at any time after the Effective Date to other peer executives
of the Company and its Affiliated Companies. The amount payable to the Executive under any such
incentive program(s) for any performance period will be reduced (but not below zero) by the amount
of the Annual Bonus paid or payable to the Executive for such performance period in accordance with
Section 3(b)(ii) above. Any amounts thereafter payable to the Executive under the incentive
program(s) for any performance period shall be paid no later than the fifteenth (15th)
day of the third month of the fiscal year next following the fiscal year that includes the
performance period for which such payments are awarded.
(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
and its Affiliated Companies (including, without limitation, medical, prescription, dental,
disability, salary continuance, employee life, group life, accidental death and travel, accident
insurance plans and programs) to the extent applicable generally to other peer executives of the
Company and its Affiliated Companies, but in no event shall such plans, practices, policies and
programs provide the Executive with benefits which are less favorable, in the aggregate, than the
most favorable of such plans, practices, policies and programs in effect for the Executive at any
time during the 90-day period immediately preceding the Effective Date or, if more favorable to the
Executive, those provided generally at any time after
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the Effective Date to other peer executives of the Company and its Affiliated Companies.
(v) Expenses. During the Employment Period, the Executive shall be entitled to
receive prompt reimbursement for all reasonable expenses incurred by the Executive in accordance
with the most favorable policies, practices and procedures of the Company and its Affiliated
Companies in effect for the Executive at any time during the 90-day period immediately preceding
the Effective Date or, if more favorable to the Executive, as in effect generally at any time
thereafter with respect to other peer executives of the Company and its Affiliated Companies.
(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 and its Affiliated Companies in effect for the Executive at any time during the 90-day
period immediately preceding the Effective Date or, if more favorable to the Executive, as in
effect generally at any time thereafter with respect to other peer executives of the Company and
its Affiliated Companies.
(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 and its Affiliated Companies at any time during
the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive,
as provided generally at any time thereafter with respect to other peer executives of the Company
and its Affiliated Companies.
(viii) Vacation. During the Employment Period, the Executive shall be entitled to paid
vacation in accordance with the most favorable plans, policies, programs and practices of the
Company and its Affiliated Companies as in effect for the Executive at any time during the 90-day
period immediately preceding the Effective Date or, if more favorable to the Executive, as in
effect generally at any time thereafter with respect to other peer incentives of the Company and
its Affiliated Companies.
4. Termination of Employment. (a) Death or Disability. The Executive’ shall
Terminate Employment 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 or his legal representative written notice in accordance with Section 11(b) of this
Agreement of its intention to Terminate the Executive’s Employment. In such event, the Executive’s
Termination of Employment shall occur effective on the 30th day after receipt of such notice by the
Executive or his legal representative (the “Disability Effective Date”), provided that, within the
30 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”
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shall mean 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 a medically determinable physical or
mental impairment that can be expected to result in death or is otherwise total and permanent as
determined 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 Employment of the Executive during the
Employment Period for Cause. For purposes of this Agreement, “Cause” shall mean (i) repeated
violations by the Executive of the Executive’s obligations under Section 3(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
specifying such violations or (ii) the conviction of the Executive of a felony involving moral
turpitude. For purposes of this Section 4(b), no act, or failure to act, on the part of the
Executive shall be considered “willful” unless it is done, or omitted to be done, by the Executive
in bad faith or without reasonable belief that the Executive’s action or omission was in the best
interests of the Company. Any act, or failure to act, based upon authority given pursuant to a
resolution duly adopted by the Board or upon the instructions of the Chief Executive Officer of the
Company or a senior officer of the Company or based upon the advice of counsel for the Company (or
any act which the Executive omits to do because of the Executive’s reasonable belief that such act
would violate law or the Company’s standards of ethical conduct in its corporate policies) shall be
conclusively presumed to be done, or omitted to be done, by the Executive in good faith and in the
best interests of the Company. The cessation of employment of the Executive shall not be deemed to
be for Cause unless and until there shall have been delivered to the Executive a copy of a
resolution duly adopted by the affirmative vote of not less than three-quarters of the entire
membership of the Board (excluding the Executive, if the Executive is a member of the Board) at a
meeting of the Board called and held for such purpose (after reasonable notice is provided to the
Executive and the Executive is given an opportunity, together with counsel for the Executive, to be
heard before the Board), finding that, in the good faith opinion of the Board, the Executive
committed the conduct described in Section 4(b)(i) or 4(b)(ii), and specifying the particulars
thereof in detail.
(c) Without Cause. The Company may Terminate the Employment of Executive during the
Employment Period without Cause, in which event, without limitation, the provisions of Section 5
shall apply.
(d) Good Reason. The Executive may Terminate Employment for Good Reason during the
Employment Period. For purposes of this Agreement, “Good Reason” shall mean the occurrence of any
of the following events:
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(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 3(a) of this 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 3(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) the Company’s requiring the Executive to be based at any office or location other than
that described in Section 3(a)(i)(B) hereof;
(iv) any purported termination by the Company of the Executive’s employment otherwise than as
expressly permitted by this Agreement;
(v) any failure by the Company to comply with and satisfy Section 10(c) of this Agreement; or
(vi) the Company’s request that the Executive perform any illegal, or wrongful act in
violation of the Company ’s code of conduct policies.
For purposes of this Section 4(d), any good faith determination of “Good Reason” made by the
Executive shall be conclusive.
(e) Without Good Reason. The Executive’s employment may be terminated during the
Employment Period by the Executive without Good Reason.
(f) Notice of Termination. Any Termination of the Executive’s Employment by the
Company or by the Executive shall be communicated by a Notice of Termination given to the other
party hereto. Such Notice of Termination shall satisfy the requirements set forth in Section 11(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 which is relied
upon as a basis for the Termination of the Executive’s Employment, (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 Date
of Termination (which date shall not be more than fifteen (15) days after the date the Notice of
Termination is tendered to the other party). 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
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Company from asserting such fact or circumstance in enforcing the Executive’s or the Company’s
rights under this Agreement. Subject to the provisions of Section 5, the Executive’s Employment
Period ends at 11:59 p.m. on the Executive’s Date of Termination.
(g) Date of Termination. “Date of Termination” means the date of which the
Executive’s Termination of Employment occurs, as follows: (i) if the Executive’s Termination of
Employment is by the Company for Cause, or by the Executive for Good Reason or for other than Good
Reason, the date of receipt of the Notice of Termination or any later date specified therein, as
the case may be, (ii) if the Executive’s Termination of Employment is by the Company other than for
Cause or Disability, the date on which the Company notifies the Executive of such termination and
(iii) if the Executive’s Termination of Employment is by reason of death or Disability, the date of
death of the Executive or the Disability Effective Date, as the case may be.
5. Obligations of the Company upon Termination. (a) Good Reason; Other Than for
Cause, Death or Disability. If, during the Employment Period, the Executive’s Termination of
Employment shall be by Company other than for Cause or Disability or by the Executive for Good
Reason:
(i) the Company shall pay to the Executive in a lump sum in cash the aggregate of the
following amounts (such aggregate amounts shall be hereinafter referred to as the “Special
Termination Amount”):
A. the sum of (1) the Executive’s Annual Base Salary through the Date of Termination
and any Annual Bonus(es) that relate to performance periods that have ended on or before the
Date of Termination, (2) the product of (x) the higher of (I) the Recent Average Bonus and
(II) the Annual Bonus paid or payable, including any amount that would have been paid or
would be payable were it not for a mandatory or voluntary deferral of such amount (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) for the most recently
completed fiscal year during the Employment Period, if any (the “Highest Annual Bonus”) and
(y) 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 (provided that, if the
Executive’s Date of Termination is the same day as a Change of Control occurs as defined in
the Annual and Long-Term Incentive Plans or any counterpart or successor plans thereto, the
amount payable under this clause (2) shall be reduced (but not below zero) by the amounts
paid or payable under such plans as a result of the Change of Control); and (3) any accrued
vacation pay; in each case to the extent not theretofore paid (the sum of the amounts
described in clauses (1), (2), and (3) shall be hereinafter referred to as the “Accrued
Obligations”); and
B. the amount equal to the product of (1) three and (2) the sum of (x) the Executive’s
Annual Base Salary and (y) the Highest Annual Bonus; and
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C. a separate lump-sum supplemental retirement benefit equal to:
(1) if the Executive is participating in the ▇▇▇▇▇▇▇ Controls, Inc. Pension Plan (or
any successor plan thereto) (the “Pension Plan”) and/or is accruing a supplemental defined
benefit amount under the ▇▇▇▇▇▇▇ Controls, Inc. Restoration Benefit Plan (the “Restoration
Plan”) or any other supplemental and/or excess retirement plan that provides a defined
benefit-type accrual for the Executive (the “SERP”) as of the Effective Date, the amount, if
any, by which (A) the actuarial equivalent single-sum value (utilizing for this purpose the
actuarial assumptions utilized to determine lump sum payments as of the Date of Termination
with respect to the Pension Plan) of the benefit payable under the Pension Plan, the related
defined benefit component of the Restoration Plan or any other SERP which the Executive
would receive if the Executive’s employment continued at the compensation level provided for
in Sections 3(b)(i) and 3(b)(ii) of this Agreement until the second anniversary of the
Effective Date, assuming for this purpose that all accrued benefits are fully vested and
that benefit accrual formulas and the actuarial assumptions are no less advantageous to the
Executive than those most favorable to the Executive and in effect during the 90-day period
immediately preceding the Effective Date and assuming that the benefits commence on the
earliest date following Termination of Employment on which the Executive would be eligible
to commence benefits under the Pension Plan, exceeds (B) the actuarial equivalent single-sum
value (utilizing for this purpose the same actuarial assumptions as were utilized in clause
(1) above) of the Executive’s actual benefit (paid or payable) with payment assumed to have
commenced at the same time as under clause (1) above, if any, under the Pension Plan, the
Restoration Plan and the SERP; or
(2) if the Executive is participating in the ▇▇▇▇▇▇▇ Controls, Inc. Savings and
Investment (401k) Plan, or any successor plan thereto (the “SIP”), and/or is eligible for
any supplemental defined contribution benefits under the Restoration Plan or any other
supplemental or excess retirement plan that provides a defined contribution-type benefit for
the Executive (the “DC SERP”) as of the Effective Date, the amount equal to the Company
non-matching and non-elective deferral contributions that would have been made for the
Executive under the SIP, the Restoration Plan and the DC SERP if the Executive’s employment
continued at the compensation level provided for in Sections 3(b)(i) and 3(b)(ii) of this
Agreement until the second anniversary of the Effective Date, assuming for this purpose that
the Executive’s accounts are fully vested and that the contribution formulas are no less
advantageous to the Executive than those most favorable to the Executive and in effect
during the 90-day period immediately preceding the Effective Date, but determined without
regard to any interest such amounts would have earned until the second anniversary of the
Effective Date.
11
▇▇▇▇▇▇▇ CONTROLS, INC.
CHANGE OF CONTROL
EXECUTIVE EMPLOYMENT AGREEMENT
CHANGE OF CONTROL
EXECUTIVE EMPLOYMENT AGREEMENT
Such lump sum shall be paid within thirty (30) business days after the Executive’s Separation
from Service, provided that (x) if the Executive is a Specified Employee, payment will be delayed
until no earlier than six (6) months and no later than seven (7) months after the date of the
Executive’s Separation from Service, and if so delayed, such payment shall be accompanied by a
payment of interest at an annual rate equal to the “prime rate” as published from time to time by
The Wall Street Journal, such rate changing as and when such published rate changes (the “Prime
Rate”), compounded quarterly, and (y) if the Effective Date is prior to a Change of Control
pursuant to Section 1(a)(ii), payment will be made within thirty (30) business days following the
Change of Control.
(ii) until the second anniversary of the Effective Date, or such longer period as any plan,
program, practice or policy may provide, the Company shall continue welfare benefits to the
Executive and/or the Executive’s family at least equal to those which would have been provided to
them in accordance with the plans, programs, practices and policies described in Section 3(b)(iv)
of this Agreement if the Executive’s Employment had not been Terminated in accordance with the most
favorable plans, practices, programs or policies of the Company and its Affiliated Companies
applicable generally to other peer executives and their families during the 90-day period
immediately preceding the Effective Date or, if more favorable to the Executive, as in effect
generally at any time thereafter with respect to other peer executives of the Company and its
Affiliated Companies and their families, provided, however, that if the Executive becomes
reemployed with another employer and is eligible to receive medical or other welfare benefits under
another employer-provided plan, the medical and other welfare benefits described herein shall be
secondary to those provided under such other plan during such applicable period of eligibility.
For purposes of determining eligibility of the Executive for retiree benefits pursuant to such
plans, practices, programs and policies, the Executive shall be considered to have remained
employed until the second anniversary of the Effective Date and to have retired on the last day of
such period. With respect to the foregoing:
A. If applicable, following the end of the COBRA continuation period, if such health
care coverage is provided under a health plan that is subject to Code Section 105(h),
benefits payable under such health plan shall comply with the requirements of Treasury
regulation section 1.409A-3(i)(1)(iv)(A) and (B) and, if necessary, the Company shall amend
such health plan to comply therewith. The continuation of health care coverage hereunder
shall count as COBRA continuation coverage;
B. If the Executive is a Specified Employee, then during the first six (6) months
following the Executive’s Separation from Service, the Executive shall pay the Company for
any life insurance coverage that provides a benefit in excess of $50,000 under a group term
life insurance policy. After the end of such six (6)-month period, the Company shall make a
cash payment to the Executive equal to the aggregate premiums paid by the Executive for such
coverage, and
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▇▇▇▇▇▇▇ CONTROLS, INC.
CHANGE OF CONTROL
EXECUTIVE EMPLOYMENT AGREEMENT
CHANGE OF CONTROL
EXECUTIVE EMPLOYMENT AGREEMENT
such payment shall be credited with interest at an annual rate equal to the Prime Rate,
compounded quarterly, and thereafter such coverage shall be provided at the expense of the
Company for the remainder of the period ending on the second anniversary of the Effective
Date; and
C. If the Effective Date is prior to a Change of Control pursuant to Section 1(a)(ii),
then the Company shall fulfill its obligations hereunder by providing retroactive welfare
benefits coverage to the Executive’s Date of Termination and, if the Executive has paid
COBRA premiums for health care coverage from the Date of Termination through the date of the
Change of Control, the Company shall reimburse the Executive for the aggregate amount of
such COBRA premiums within thirty (30) business days following the Change of Control,
without liability for interest thereon; and
(iii) to the extent not theretofore paid or provided, the Company shall timely pay or provide
to the Executive any other amounts or benefits required to be paid or provided or which the
Executive is eligible to receive pursuant to this Agreement under any plan, program, policy or
practice or contract or agreement of the Company and its Affiliated Companies (such other amounts
and benefits shall be hereinafter referred to as the “Other Benefits”).
(b) Death. If the Executive’s Termination of Employment is by reason of the
Executive’s death during the Employment Period, this Agreement shall terminate without further
obligations to the Executive’s legal representatives under this Agreement, other than for payment
of the Special Termination Amount and the timely payment or provision of Other Benefits. The
Special Termination Amount shall be paid to the Executive’s estate or beneficiary, as applicable,
in a lump sum in cash within 30 days of the Date of Termination. With respect to the provision of
Other Benefits, the term Other Benefits as utilized in this Section 5(b) shall include, and the
Executive’s family shall be entitled to receive, benefits at least equal to the most favorable
benefits provided by the Company and any of its Affiliated Companies to surviving families of peer
executives of the Company and such Affiliated Companies 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 90-day period immediately preceding the
Effective Date or, if more favorable to the Executive and/or the Executive’s family, as in effect
on the date of the Executive’s death with respect to other peer executives of the Company and its
Affiliated Companies and their families.
(c) Disability. If the Executive’s Termination of Employment is by reason of the
Executive’s Disability during the Employment Period, this Agreement shall terminate without further
obligations to the Executive, other than for payment of the Special Termination Amount and the
timely payment or provision of Other Benefits. The Special Termination Amount shall be paid to the
Executive at the same time and in the same manner as the payment would be made pursuant to Section
5(a). With respect to the provision of Other Benefits, the term Other Benefits as utilized in this
Section 5(c) shall include, and the Executive shall be entitled after the Disability Effective Date
to
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▇▇▇▇▇▇▇ CONTROLS, INC.
CHANGE OF CONTROL
EXECUTIVE EMPLOYMENT AGREEMENT
CHANGE OF CONTROL
EXECUTIVE EMPLOYMENT AGREEMENT
receive, disability and Other Benefits at least equal to the most favorable of those generally
provided by the Company and its Affiliated Companies to disabled executives and/or their families
in accordance with such plans, programs, practices and policies relating to disability, if any, as
in effect generally with respect to other peer executives and their families at any time during the
90-day period immediately preceding the Effective Date or, if more favorable to the Executive
and/or the Executive’s family, as in effect at any time thereafter generally with respect to other
peer executives of the Company and its Affiliated Companies and their families.
(d) Termination by Company for Cause; Termination by Executive for Other than for Good
Reason.
(i) If the Executive’s Termination of Employment during the Employment Period is by the
Company for Cause, this Agreement shall terminate without further obligations to the Executive
other than the obligation to pay to the Executive his Annual Base Salary through the Date of
Termination (subject to any deferral election then in effect) and the payment, in accordance with
the terms of the ▇▇▇▇▇▇▇ Controls, Inc. Executive Deferred Compensation Plan and the ▇▇▇▇▇▇▇
Controls, Inc. Retirement Restoration Plan (or other relevant nonqualified deferred compensation
plan), of any previously vested amounts, in each case to the extent theretofore unpaid.
(ii) If the Executive voluntarily Terminates Employment during the Employment Period,
excluding a Termination of Employment for Good Reason, this Agreement shall terminate without
further obligations to the Executive, other than for Accrued Obligations and the timely payment or
provision of Other Benefits. In such case, all Accrued Obligations shall be paid to the Executive
in a lump sum in cash within thirty (30) business days of the Executive’s Separation from Service;
provided that if the Executive is a Specified Employee, payment will be delayed until no earlier
than six (6) months and no later than seven (7) months after the date of Separation from Service,
and, if so delayed, such payment shall be credited with interest at an annual rate equal to the
Prime Rate, compounded quarterly.
6. Non-Exclusivity of Rights. Nothing in this Agreement shall prevent or limit the
Executive’s continuing or future participation in any plan, program, policy or practice provided by
the Company or any of its Affiliated Companies and for which the Executive may qualify, nor shall
anything herein limit or otherwise affect such rights as the Executive may have under any contract
or agreement with the Company or any of its Affiliated Companies. Amounts which are vested
benefits or which the Executive is otherwise entitled to receive under any plan, policy, practice
or program of or any contract or agreement with the Company or any of its Affiliated Companies at
or subsequent to the Date of Termination shall be payable in accordance with such plan, policy,
practice or program or contract or agreement except as explicitly modified by this Agreement.
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▇▇▇▇▇▇▇ CONTROLS, INC.
CHANGE OF CONTROL
EXECUTIVE EMPLOYMENT AGREEMENT
CHANGE OF CONTROL
EXECUTIVE EMPLOYMENT AGREEMENT
7. Full Settlement. 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(a)(ii), such
amounts shall not be reduced whether or not the Executive obtains other employment. The Company
agrees to pay, to the full extent permitted by 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), plus in each case interest
on any delayed payment at the Prime Rate, compounded quarterly. The Company shall make such
payment to the Executive within thirty (30) business days (but in no event later than the end of
the calendar year following the calendar year in which the Executive incurred such fees and
expenses) following receipt from the Executive of documentation substantiating such fees and
expenses.
8. Certain Additional Payments by the Company.
(a) Anything in this Agreement to the contrary notwithstanding and except as set forth below,
in the event it shall be determined that any Payment would be subject to the Excise Tax, then the
Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount
such that after payment by the Executive of all taxes (and any interest or penalty imposed with
respect to such taxes), including, without limitation, any income taxes (and any interest and
penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the
Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the
Payments. Notwithstanding the foregoing provisions of this Section 8(a), if it shall be determined
that the Executive is entitled to the Gross-Up Payment, but that the Parachute Value of all
Payments does not exceed 110% of the Safe Harbor Amount, then no Gross Up Payment shall be made to
the Executive and the amounts payable under this Agreement shall be reduced so that the Parachute
Value of all Payments, in aggregate, equals the Safe Harbor Amount. The reduction of the amounts
payable hereunder, if applicable shall be made by first reducing the Payments under
Section 5(a)(i)(B), unless an alternative method of reduction is elected by the Executive, and in
any event shall be made in such a manner as to maximize the Value of all Payments actually made to
the Executive. For purposes of reducing the Payments to the Safe Harbor Amount, only amounts
payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the
amount payable under this Agreement would not result in a reduction of the Parachute Value of all
Payments to the Safe Harbor Amount, no amounts payable under the Agreement shall be reduced
pursuant to Section 8(a). The Company’s obligation to make Gross-Up Payments
15
▇▇▇▇▇▇▇ CONTROLS, INC.
CHANGE OF CONTROL
EXECUTIVE EMPLOYMENT AGREEMENT
CHANGE OF CONTROL
EXECUTIVE EMPLOYMENT AGREEMENT
under this Section 8 shall not be conditioned upon the Executive’s Termination of Employment.
(b) Subject to the provisions of Section 8(c), all determinations required to be made under
this Section 8, including whether and when a Gross-Up Payment is required and the amount of such
Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be
made by PricewaterhouseCoopers LLP or such other certified public accounting firm as may be
designated by the Executive (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. In the event that the Accounting Firm is serving as accountant or auditor for the
individual, entity or group effecting the Change of Control, the Executive shall appoint another
nationally recognized accounting firm to make the determinations required hereunder (which
accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses
of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined
pursuant to this Section 8, shall be paid by the Company to the Executive: (1) if the Effective
Date is prior to a Change of Control pursuant to Section 1(a)(ii), within thirty (30) business days
following the Change of Control, or if later, within five (5) business days of the receipt of the
Accounting Firm’s determination, but no later than 21/2 months following the year in which the Change
of Control occurs; (2) if the Executive’s Termination of Employment is on or after a Change of
Control and the Executive is a Specified Employee, no earlier than six (6) months and no later than
seven (7) months after the date of the Executive’s Separation from Service, and such Gross-Up
Payment shall be credited with interest at an annual rate equal to the Prime Rate, compounded
quarterly or (3) otherwise, within ninety (90) days following the Executive’s Separation from
Service; provided that the Executive shall not have discretion to choose the tax year in which the
Gross-Up Payment shall be made if the calendar year ends during any such payment period.
Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed
under Code Section 4999 prior to the applicable payment date for the Gross-Up Payment described
hereinabove (such as, for instance, because other payments due to the Executive without regard to
this Agreement cause the Excise Tax to be due), then the Company shall promptly reimburse the
Executive for the amount of Excise Taxes paid by the Executive under Code Section 4999, plus an
amount equal to the additional taxes imposed on the Executive due to the Company’s reimbursement of
the Excise Tax and such additional taxes. In no event shall the payment described in this
paragraph be paid to the Executive later than the end of the calendar year following the year in
which the Executive remits such taxes. In such event, the Gross-Up Payment, if and when paid,
shall be reduced by the payment previously made to the Executive under this paragraph.
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
16
▇▇▇▇▇▇▇ CONTROLS, INC.
CHANGE OF CONTROL
EXECUTIVE EMPLOYMENT AGREEMENT
CHANGE OF CONTROL
EXECUTIVE EMPLOYMENT AGREEMENT
Excise Tax on the Executive’s applicable federal income tax return would not result in the
imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be
binding upon the Company and the Executive. As a result of the uncertainty in the application of
Code Section 4999 at the time of the initial determination by the Accounting Firm hereunder it is
possible that Gross-Up 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 8(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. Any such Underpayment shall be promptly paid by the Company to or
for the benefit of the Executive following the date the Executive remits the taxes, or if earlier,
the date the Internal Revenue Service assesses such additional taxes, but no later than the
calendar year following the calendar year in which the Executive remits the additional taxes. The
Executive shall provide written notice to the Company and documentation substantiating the amount
of additional taxes paid or assessed.
(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 Gross-Up Payment or
Underpayment. Such notification shall be given as soon as practicable but no later than ten (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 thirty (30)-day period following
the date on which it 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:
(i) give the Company any information reasonably requested by the Company relating to such
claim,
(ii) 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,
(iii) cooperate with the Company in good faith in order to effectively contest such claim,
and
(iv) permit the Company to participate in any proceedings relating to such claim;
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
17
▇▇▇▇▇▇▇ CONTROLS, INC.
CHANGE OF CONTROL
EXECUTIVE EMPLOYMENT AGREEMENT
CHANGE OF CONTROL
EXECUTIVE EMPLOYMENT AGREEMENT
Tax or income tax (including interest and penalties with respect thereto) imposed as a result of
such representation and payment of costs and expenses. Without limitation on the foregoing
provisions of this Section 8(c), the Company shall control all proceedings taken in connection with
such contest and, at its sole option, may pursue or forgo any and all administrative appeals,
proceedings, hearings and conferences with the taxing authority in respect of such claim and may,
at its sole option, either direct the Executive to pay the tax claimed and ▇▇▇ for a refund or
contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to
a determination before any administrative tribunal, in a court of initial jurisdiction and in one
or more appellate courts, as the Company shall determine; provided, however, that if the Company
directs the Executive to pay such claim and ▇▇▇ for a refund, the Company shall indemnify and hold
the Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including
interest or penalties with respect thereto) imposed with respect to such payment or with respect to
any imputed income with respect to such payment; and further provided that any extension of the
statute of limitations relating to payment of taxes for the taxable year of the Executive with
respect to which such contested amount is claimed to be due is limited solely to such contested
amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect
to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to
settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or
any other taxing authority.
(d) If, after the receipt by the Executive of an amount advanced by the Company pursuant to
Section 8(c), the Executive becomes entitled to receive any refund with respect to such claim, the
Executive shall (subject to the Company’s complying with the requirements of Section 8(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 8(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 thirty (30) days
after the Company’s receipt of notice of 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 Gross-Up Payment required to be paid.
Notwithstanding any other provision of this Section 8, the Company, may in its sole
discretion, in lieu of making a payment to the Executive, withhold and pay over to the Internal
Revenue Service or any other applicable taxing authority, for the benefit of the Executive, all or
any portion of any Gross-Up Payment, and the Executive hereby consents to such withholding.
Definitions. The following terms shall have the following meanings for purposes of
this Section 8.
18
▇▇▇▇▇▇▇ CONTROLS, INC.
CHANGE OF CONTROL
EXECUTIVE EMPLOYMENT AGREEMENT
CHANGE OF CONTROL
EXECUTIVE EMPLOYMENT AGREEMENT
“Excise Tax” shall mean the Excise Tax imposed by Section 4999 of the Code, together with any
interest or penalties imposed with the respect to such Excise Tax.
“Parachute Value” of a Payment shall mean the present value as of the date of the change of
control for purposes of Section 280G of the Code of the portion of such Payment that constitutes a
“parachute payment” under Section 280G(b)(2), as determined by the Accounting Firm for purposes of
determining whether and to what extent the Excise Tax will apply to such Payment.
A “Payment” shall mean any payment or distribution in the nature of compensation (within the
meaning of Section 280G(b)(2) of the Code) to or for the benefit of the Executive, whether paid or
payable pursuant to this Agreement or otherwise.
The “Safe Harbor Amount” means 2.99 times the Executive’s “base amount,” within the meaning of
Section 280G(b)(3) of the Code.
“Value” of a Payment shall mean the economic present value of a Payment as of the date of the
change of control for purposes of Section 280G of the Code, as determined by the Accounting Firm
using the discount rate required by Section 280G(d)(4) of the Code.
9. Confidential Information. (a) The Executive shall hold in a fiduciary capacity
for the benefit of the Company all secret or confidential information, knowledge or data relating
to the Company or any of its Affiliated Companies, and their respective businesses, which shall
have been obtained by the Executive during the Executive’s employment by the Company or any of its
Affiliated Companies and which shall not be or become public knowledge (other than by acts by the
Executive or representatives of the Executive in violation of this Agreement). During employment
and for two years after the Executive’s Termination of Employment, the Executive, except as may
otherwise be required by law or legal process, shall not use any such information except on behalf
of the Company and shall not communicate or divulge any such information, knowledge or data to
anyone other than the Company and those designated by it. This covenant shall survive the
termination of this Agreement. Nothing in this paragraph is intended or shall be construed to
limit in any way Executive’s independent duty not to misappropriate Trade Secrets of the Company.
(b) “Trade Secret” means information of the Company and its Affiliated Companies, including a
formula, pattern, compilation, program, device, method, technique or process, that derives
independent economic value, actual or potential, from not being generally known to, and not being
readily ascertainable by proper means by, other persons who can obtain economic value from its
disclosure or use, and that is the subject of efforts by the Company or an Affiliated Company to
maintain its secrecy that are reasonable under the circumstances. During employment with the
Company and its Affiliated Companies, Executive shall preserve and protect Trade Secrets from
19
▇▇▇▇▇▇▇ CONTROLS, INC.
CHANGE OF CONTROL
EXECUTIVE EMPLOYMENT AGREEMENT
CHANGE OF CONTROL
EXECUTIVE EMPLOYMENT AGREEMENT
unauthorized use or disclosure, and after Termination of Employment, Executive shall not use
or disclose any Trade Secret until such time as that Trade Secret is no longer a secret as a result
of circumstances other than a misappropriation involving the Executive.
10. 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.
Failure of the Company to obtain such agreement prior to the effective date of such purchase,
merger, consolidation or other transaction shall be a breach of this Agreement constituting “Good
Reason” hereunder, except that for purposes of implementing the foregoing, the date upon which such
purchase, merger, consolidation or other transaction becomes effective shall be deemed the Date of
Termination. 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.
11. Miscellaneous. (a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Wisconsin, 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:
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▇▇▇▇▇▇▇ CONTROLS, INC.
CHANGE OF CONTROL
EXECUTIVE EMPLOYMENT AGREEMENT
CHANGE OF CONTROL
EXECUTIVE EMPLOYMENT AGREEMENT
If to the Company:
▇▇▇▇▇▇▇ Controls, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
or to such other address as either party shall have furnished to the other in writing in accordance
herewith. Notice 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.
(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.
In addition, if prior to the date of payment of any payment hereunder, the Federal Insurance
Contributions Act (FICA) tax imposed under Sections 3101, 3121(a) and 3121(v)(2), where applicable,
becomes due with respect to any payment or benefit to be provided hereunder, the Company shall
(unless otherwise directed by the Executive, to the extent such direction does not cause a
violation of Code Section 409A) provide for an immediate payment of the amount needed to pay the
Executive’s portion of such tax (plus an amount equal to the taxes that will be due on such amount)
and the Special Termination Amount shall be reduced accordingly.
(e) The Executive’s or the Company’s failure to insist upon strict compliance with any
provision hereof or any other provision of this Agreement or the failure to assert any right the
Executive or the Company may have hereunder, including, without limitation, the right of the
Executive to Terminate Employment for Good Reason pursuant to Section 4(c)(i)-(v) of this
Agreement, shall not be deemed to be a waiver of such provision or right or any other provision or
right of this Agreement.
(f) The Executive and the Company acknowledge that, except as may otherwise be provided under
any other written agreement between the Executive and the Company, the employment of the Executive
by the Company is “at will” and, prior to the Effective Date, may be terminated by either the
Executive or the Company at any time. Moreover, if prior to the Effective Date, (i) the
Executive’s employment with the Company terminates or (ii) the Executive ceases to be an officer of
the Company, then the Executive shall have no further rights under this Agreement. From and after
the Effective Date, this Agreement shall supersede any other employment agreement between the
parties.
(g) This Agreement shall be governed by the laws of the State of Wisconsin, without reference
to conflict of law principles thereof.
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▇▇▇▇▇▇▇ CONTROLS, INC.
CHANGE OF CONTROL
EXECUTIVE EMPLOYMENT AGREEMENT
CHANGE OF CONTROL
EXECUTIVE EMPLOYMENT AGREEMENT
(i) If, after a Change of Control, any payment amount or the value of any benefit under this
Agreement is required to be included in an Executive’s income prior to the date such amount is
actually paid or the benefit provided as a result of the failure of this Agreement (or any other
arrangement that is required to be aggregated with this Agreement under Code Section 409A) to
comply with Code Section 409A, then the Executive shall receive a payment, in a lump sum, within
ninety (90) days after the date it is finally determined that the Agreement (or such other
arrangement that is required to be aggregated with this Agreement) fails to meet the requirements
of Section 409A of the Code; such payment shall equal the amount required to be included in the
Executive’s income as a result of such failure and shall reduce the amount of payments or benefits
otherwise due hereunder.
(ii) The Company and the Executive intend the terms of this Agreement to be in compliance with
Section 409A of the Code. To the maximum extent permissible, any ambiguous terms of this Agreement
shall be interpreted in a manner which avoids a violation of Section 409A of the Code.
(h) To avoid a violation of Section 409A of the Code, the Executive acknowledges that, with
respect to payments that may be payable or benefits that may be provided under this Agreement that
are subject to Section 409A of the Code and that are not timely paid or provided, the Executive
must make a reasonable, good faith effort to collect any payment or benefit to which the Executive
believes the Executive is entitled hereunder no later than ninety (90) days after the latest date
upon which the payment should have been made or benefit provided under this Agreement, and if not
paid or provided, must take further enforcement measures within one hundred eighty (180) days after
such latest date. Failure to comply with these deadlines will not result in the loss of any
payment or benefit to which the Executive is otherwise entitled.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive’s 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.
| ▇▇▇▇▇▇▇ CONTROLS, INC. | ||||||
| By: | ||||||
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