EXECUTIVE CHANGE IN CONTROL AGREEMENT
EXHIBIT 10.2
This Executive Change in Control Agreement (this “Agreement”), is made as of the 29th day of
March, 2008 (the “Effective Date”), by and between Advanced Energy Industries, Inc., a Delaware
corporation (the “Company”), and Xxxxxxxx X. Xxxxxxxxx (the “Executive”).
Recitals
A. The Executive currently serves as the Executive Vice President and Chief Financial Officer
of the Company.
B. The Board of Directors of the Company (the “Board”) acknowledges that consolidation within
the industries in which the Company operates is likely to continue and the potential for a change
in control of the Company, whether friendly or hostile, currently exists and from time to time in
the future will exist, which potential can give rise to uncertainty among the senior executives of
the Company. The Board considers it essential to the best interests of the Company to reduce the
risk of the Executive’s departure and/or the inevitable distraction of the Executive’s attention
from his duties to the Company, which are normally attendant to such uncertainties.
C. The Executive confirms that the terms of this Agreement reduce the risks of his departure
and distraction of his attention from his duties to the Company and, accordingly, desires to enter
into this Agreement.
Agreement
In consideration of the foregoing and the mutual covenants contained herein, the Company and
the Executive agree as follows:
1. Definitions. Capitalized terms used herein shall have the meanings given to them
in Annex A attached hereto, except where the context requires otherwise.
2. Term of Agreement.
This Agreement shall be effective as of the Effective Date and shall continue in effect until
March 29, 2009 (the “Initial Expiration Date”), provided, however, that the term of this Agreement
automatically shall be extended for one additional year effective as of the Initial Expiration Date
and each anniversary thereof (each, a “Scheduled Expiration Date”), unless either the Company or
the Executive provides written notice to the other that the term of this Agreement shall terminate
on the upcoming Scheduled Expiration Date, provided such notice is received by the receiving party
not less than ninety (90) days prior to the applicable Scheduled Expiration Date, and provided
further that the Company shall not be entitled to deliver to the Executive such notice in the event
of a Change in Control or a Pending Change in Control. Notwithstanding the foregoing, this
Agreement shall terminate immediately upon the termination of the Executive’s employment prior to
a Change in Control.
3. At Will Employment; Reasons for Termination.
The Executive’s employment shall continue to be at-will, as defined under applicable law. If
the Executive’s employment terminates for any reason or no reason, the Executive shall not be
entitled to any compensation, benefits, damages, awards or other payments in respect of such
termination, except as provided in this Agreement or pursuant to the terms of any Applicable
Benefit Plan. “Applicable Benefit Plan” means any written employee benefit plan in effect and in
which the Executive participates as of the time of the termination of his employment.
4. Benefits Upon Separation.
(a) Compensation and Benefits Required by Law or Applicable Benefit Plan.
Notwithstanding anything to the contrary herein, the Executive or his estate shall be entitled to
any and all compensation, benefits, awards and other payments required by any Applicable Benefit
Plan, the COBRA Act or other applicable law, after taking into account the agreements set forth
herein.
(b) No Payments Without Release. The Executive shall not be entitled to any of the
compensation, benefits or other payments provided herein in respect of the termination of his
employment, unless and until he has provided to the Company a full release of claims, substantially
in the form of Appendix I attached hereto, which release shall be dated not earlier than
the date of the termination of his employment, which release shall be executed within 30 days of
Executive’s termination of employment.
(c) Voluntary Resignation or Termination for Cause.
(i) In the event of the Executive’s Voluntary Resignation or termination of his employment by
the Company for Cause, the Executive shall not be entitled to any compensation, benefits, awards or
other payments in connection with such termination of his employment, except as provided in
paragraph (a) of this Section 4.
(ii) The Executive shall not be deemed to have been terminated for Cause under this Agreement,
unless the following procedures have been observed: To terminate the Executive for Cause, the
Board must deliver to the Executive notice of such termination in writing, which notice must
specify the facts purportedly constituting Cause in reasonable detail. The Executive will have the
right, within 10 calendar days of receipt of such notice, to submit a written request for review by
the Board. If such request is timely made, within a reasonable time thereafter, the Board (with
all directors attending in person or by telephone) shall give the Executive the opportunity to be
heard (personally or by counsel). Following such hearing, unless a majority of the directors then
in office confirm that the Executive’s termination was for Cause, the Executive’s termination shall
be deemed to have been made by the Company without Cause for purposes of this Agreement.
(d) Death or Long-Term Disability. In the event of the Executive’s death or Long-Term
Disability, the Executive (or his estate or personal representative) shall be entitled to receive
(i) the proceeds of any life insurance policy carried by the Company with respect to the Executive,
(ii) payments pursuant to any long-term disability insurance policy carried by the Company with
respect to the Executive.
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(e) Involuntary Termination. In the event Executive’s employment is terminated under
circumstances constituting an Involuntary Termination, the Executive shall be entitled to receive:
(i) within fifteen (15) calendar days after the Date of Termination, the Executive’s Accrued
Compensation and Pro-Rata Bonus through the Date of Termination; and
(ii) within fifteen (15) calendar days after the period for revocation of the release has
elapsed, the amount in cash equal to the sum of the Executive’s annual Base Salary and the
Executive’s Target Bonus in effect as of the Date of Termination; and
(iii) for eighteen (18) months after the period for revocation of the release has elapsed
continuation of the Benefits, as if the Executive’s employment had not been terminated; provided,
however, that if the Executive commences employment with another employer during such eighteen (18)
month period and is eligible to receive medical benefits under the new employer’s plan(s), the
Benefits shall terminate as of the date the Executive becomes eligible to receive such benefits;
(iv) within fifteen (15) calendar days after the after the period for revocation of the
release has elapsed, an amount equal to the contributions to the Company’s retirement plans on
behalf of the Executive that would have been made for the benefit of the Executive if the
Executive’s employment had continued for twelve (12) months after the Date of Termination, assuming
for this purpose that all benefits under any such retirement plans were fully vested and that the
Executive’s compensation during such twelve (12) months were the same as it had been immediately
prior to the Date of Termination; and
(v) reimbursement, up to $15,000, for outplacement services reasonably selected by the
Executive incurred by the end of the second calendar year after termination of employment such
reimbursement to occur by the end of the following calendar year.
5. Effect on Option, Restricted Stock and Restricted Unit Agreements.
(a) In the event Options held by the Executive are assumed by the surviving entity in
connection with a Change in Control, if an Involuntary Termination of Executive’s employment occurs
following the Change of Control before the end of the CIC Period, vesting of any and all assumed
Options held by the Executive shall be accelerated so that all unexpired Options then held by the
Executive shall be fully vested and exercisable immediately upon the Involuntary Termination.
(b) In the event Restricted Stock and RSUs held by the Executive are assumed by the surviving
entity in connection with a Change in Control, if an Involuntary Termination of Executive’s
employment occurs following the Change of Control before the end of the CIC Period, vesting of any
and all assumed Restricted Stock and RSUs held by the Executive shall be accelerated so that all
Restricted Stock and RSUs then held by the Executive shall be fully vested and exercisable
immediately upon the Involuntary Termination.
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(c) The termination of the Executive’s employment by the Company without Cause during a
Pending Change in Control shall have no effect on the vesting of the Options, Restricted Stock or
RSUs then held by the Executive, and no shares of Common Stock shall be delivered to the Executive
in connection with the RSUs held by the Executive at the time of the termination of his employment
unless the Change in Control is effected within three (3) months following the Date of Termination.
If the Change in Control is effected, then the Options, Restricted Stock and RSUs held by the
Executive as of the Date of Termination shall be treated as if the Executive’s employment had not
been terminated and the Executive shall have rights as set forth under Section 5(a) above. If the
Change in Control is not effected within three (3) months following the Date of Termination, then
the Options, Restricted Stock and RSUs held by the Executive as of the Date of Termination shall be
treated as if the Executive’s employment had been terminated as of such three-month anniversary of
the Date of Termination.
(d) In the event the Executive’s employment is terminated by the Company under any
circumstances other than those described in paragraphs (a) through (c) of this Section 5, the
effect of such termination of employment on the Options, Restricted Stock and/or RSUs then held by
the Executive shall be as set forth in the agreements representing such Options, Restricted Stock
and/or RSUs.
6. Mitigation. 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 set forth in Section 4, such amounts shall
not be reduced whether or not the Executive obtains other employment.
7. 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 other 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 shall 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.
8. Miscellaneous.
(a) The captions of this Agreement are not part of the provisions hereof and shall have no
force or effect. This Agreement constitutes the entire agreement and understanding of the parties
in respect of the subject matter hereof and supersedes all prior understanding, agreements, or
representations by or among the parties, written or oral, to the extent they relate in any away to
the subject matter hereof; provided, however, this Agreement shall have no effect on any
confidentiality agreements or assignment of inventions agreements
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between the parties. This Agreement may not be amended or modified other 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:
Xxxxxxxx X. Xxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxxxx Xxxxxxx, XX 00000
000 Xxxxxxx Xxxxxx
Xxxxxxxx Xxxxxxx, XX 00000
if to the Company:
Advanced Energy Industries, Inc.
0000 Xxxxx Xxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
Attention: General Counsel
0000 Xxxxx Xxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
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 United States
federal, state or local or foreign taxes as shall be required to be withheld pursuant to any
applicable law or regulation.
(e) The Executive’s or the Company’s failure to insist upon strict compliance with any
provision of this Agreement or the failure to assert any right the Executive or the Company may
have hereunder shall not be deemed to be a waiver of such provision or right or any other provision
or right of this Agreement.
(f) All claims by the Executive for payments or benefits under this Agreement shall be
promptly forwarded to and addressed by the Compensation Committee and shall be in writing. Any
denial by the Compensation Committee of a claim for benefits under this Agreement shall be
delivered to the Executive in writing and shall set forth the specific reasons for the denial and
the specific provisions of this Agreement relied upon. The Compensation Committee shall afford the
Executive a reasonable opportunity for a review of the decision denying a claim and shall further
allow the Executive make a written demand upon the Company to submit the disputed matter to
arbitration in accordance with the provisions of paragraph (g) below. The Company shall
pay all expenses of the Executive, including reasonable attorneys and expert fees, in connection
with any such arbitration. If for any reason the arbitrator has not made his award within one
hundred eighty (180) days from the date of
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Executive’s demand for arbitration, such arbitration proceedings shall be immediately
suspended and the Company shall be deemed to have agreed to Executive’s position. Thereafter, the
Company shall, as soon as practicable and in any event within 10 business days after the expiration
of such 180-day period, pay Executive his reasonable expenses and all amounts reasonably claimed by
him that were the subject of such dispute and arbitration proceedings.
(g) Subject to the terms of paragraph (f) above, any dispute arising from, or relating to,
this Agreement shall be resolved at the request of either party through binding arbitration in
accordance with this paragraph (g). Within 10 business days after demand for arbitration
has been made by either party, the parties, and/or their counsel, shall meet to discuss the issues
involved, to discuss a suitable arbitrator and arbitration procedure, and to agree on arbitration
rules particularly tailored to the matter in dispute, with a view to the dispute’s prompt,
efficient, and just resolution. Upon the failure of the parties to agree upon arbitration rules
and procedures within a reasonable time (not longer than 15 business days from the demand), the
Commercial Arbitration Rules of the American Arbitration Association shall be applicable.
Likewise, upon the failure of the parties to agree upon an arbitrator within a reasonable time (not
longer than 15 business days from demand), there shall be a panel comprised of three arbitrators,
one to be appointed by each party and the third one to be selected by the two arbitrators jointly,
or by the American Arbitration Association, if the two arbitrators cannot decide on a third
arbitrator. At least 30 days before the arbitration hearing (which shall be set for a date no
later than 60 days from the demand), the parties shall allow each other reasonable written
discovery including the inspection and copying of documents and other tangible items relevant to
the issues that are to be presented at the arbitration hearing. The arbitrator(s) shall be
empowered to decide any disputes regarding the scope of discovery. The award rendered by the
arbitrator(s) shall be final and binding upon both parties. The arbitration shall be conducted in
Larimer County in the State of Colorado. The Colorado District Court located in Larimer County
shall have exclusive jurisdiction over disputes between the parties in connection with such
arbitration and the enforcement thereof, and the parties consent to the jurisdiction and venue of
such court for such purpose.
(h) This Agreement shall be governed by the laws of the State of Colorado, without giving
effect to any choice of law provision or rule (whether of the State of Colorado or any other
jurisdiction) that would cause the application of the laws of any jurisdiction other than the State
of Colorado.
9. Other Terms Relating to Section 409A
(a) Except as provided in Section 9(b), amounts payable under this Agreement following
Executive’s termination of employment, other than those expressly payable on a deferred or
installment basis or as reimbursement of expenses, will be paid as promptly as practicable after
such a termination of employment and, in any event, within 2 1/2 months after the end of the year in
which employment terminates and amounts payable as reimbursements of expenses to the Executive must
be made on or before the last day of the calendar year following the calendar year in which such
expense was incurred.
(b) Anything in this Agreement to the contrary notwithstanding, if (A) on the date of
termination of Executive’s employment with the Company or a subsidiary, any of the Company’s stock
is publicly traded on an established securities market or otherwise (within
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the meaning of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, as amended (the “Code”)), (B)
if Executive is determined to be a “specified employee” within the meaning of Section
409A(a)(2)(B) of the Code, (C) the payments exceed the amounts permitted to be paid pursuant to
Treasury Regulations section 1.409A-1(b)(9)(iii) and (D) such delay is required to avoid the
imposition of the tax set forth in Section 409A(a)(1) of the Code, as a result of such termination,
the Executive would receive any payment that, absent the application of this Section 9(b), would be
subject to interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result
of the application of Section 409A(2)(B)(i) of the Code, then no such payment shall be payable
prior to the date that is the earliest of (1) six (6) months after the Executive’s termination
date, (2) the Executive’s death or (3) such other date as will cause such payment not to be subject
to such interest and additional tax (with a catch-up payment equal to the sum of all amounts that
have been delayed to be made as of the date of the initial payment).
(c) It is the intention of the parties that payments or benefits payable under this Agreement
not be subject to the additional tax imposed pursuant to Section 409A of the Code. To the extent
such potential payments or benefits could become subject to such Section, the parties shall
cooperate to amend this Agreement with the goal of giving the Executive the economic benefits
described herein in a manner that does not result in such tax being imposed.
(d) A termination of employment under this Agreement shall be deemed to occur only in
circumstances that would constitute a separation from service for purposes of Treasury Regulations
section 1.409A-1(h)(1)(ii).
(e) Wherever payments under this Agreement are to be made in installments, each such
installment shall be deemed to be a separate payment for purposes of Section 409A.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth in the
Preamble hereto.
| Advanced Energy Industries, Inc. | ||||||
| By: | ||||||
| Chief Executive Officer | ||||||
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ANNEX A
DEFINITIONS
(a) “Accrued Compensation” means an amount including all amounts earned or accrued through the
Date of Termination but not paid as of the Date of Termination including (i) Base Salary, (ii)
reimbursement for reasonable and necessary expenses incurred by the Executive on behalf of the
Company during the period ending on the Date of Termination, (iii) vacation and sick leave pay (to
the extent provided by Company policy or applicable law), and (iv) incentive compensation (if any)
earned in respect of any period ended prior to the Date of Termination. It is expressly
understood that incentive compensation shall have been “earned” as of the time that the conditions
to such incentive compensation have been met, even if not calculated or payable at such time.
(b) “Agreement” means this Executive Change in Control Agreement, as set forth in the Preamble
hereto.
(c) “Applicable Benefit Plan” means any written employee benefit plan in effect and in which
the Executive participates as of the time of the termination of his employment.
(d) “Base Salary” means the Executive’s annual base salary at the rate in effect during the
last regularly scheduled payroll period immediately preceding the occurrence of the Change in
Control or termination of employment and does not include, for example, bonuses, overtime
compensation, incentive pay, fringe benefits, sales commissions or expense allowances.
(e) “Board” means the Board of Directors of the Company, as set forth in the Recitals hereto.
(f) “Cause” means any of the following:
(i) the Executive’s (A) conviction of a felony; (B) commission of any other material act or
omission involving dishonesty or fraud with respect to the Company or any of its Affiliates or any
of the customers, vendors or suppliers of the Company or its Affiliates; (C) misappropriation of
material funds or assets of the Company for personal use; or (D) engagement in unlawful harassment
or unlawful discrimination with respect to any employee of the Company or any of its subsidiaries;
(ii) the Executive’s continued substantial and repeated neglect of his duties, after written
notice thereof from the Board, and such neglect has not been cured within 30 days after the
Executive receives notice thereof from the Board;
(iii) the Executive’s gross negligence or willful misconduct in the performance of his duties
hereunder that is materially and demonstrably injurious to the Company; or
(iv) the Executive’s engaging in conduct constituting a breach of his written obligations to
the Company in respect of confidentiality and/or the use or ownership of proprietary information.
(g) “Change in Control” shall be deemed to occur upon the consummation of any of the following
transactions:
(i) a merger or consolidation in which the Company is not the surviving entity, except for a
transaction the principal purpose of which is to change the state of the Company’s incorporation or
a transaction in which 50% or more of the surviving entity’s outstanding voting stock following the
transaction is held by holders who held 50% or more of the Company’s outstanding voting stock prior
to such transaction; or
(ii) the sale, transfer or other disposition of all or substantially all of the assets of the
Company; or
(iii) any reverse merger in which the Company is the surviving entity, but in which 50% or
more of the Company’s outstanding voting stock is transferred to holders different from those who
held the stock immediately prior to such merger; or
(iv) the acquisition by any person (or entity), other than Xxxxxxx Xxxxxx and/or any of his
affiliates or members of his immediate family, directly or indirectly of 50% or more of the
combined voting power of the outstanding shares of Common Stock.
(h) “CIC Period” means the six month period following the effective date of a Change in
Control.
(i) “Code” means the Internal Revenue Code of 1986, as amended.
(j) “Common Stock” means common stock, par value $0.001, of the Company.
(k) “Company” means Advanced Energy Industries, Inc., a Delaware corporation, as set forth in
the Preamble hereto.
(l) “Date of Termination” means (i) if the Executive’s employment is terminated for Cause, the
date of receipt by the Executive of written notice from the Board or the Chief Executive Officer
that the Executive has been terminated, or any later date specified therein, as the case may be,
(ii) if the Executive’s employment is terminated by the Company other than for Cause, death or
Long-Term Disability, the date specified in the Company’s written notice to the Executive of such
termination, (iii) if the Executive’s employment is terminated by reason of the Executive’s death
or Long-Term Disability, the date of such death or the effective date of such Long-Term Disability,
(iv) if the Executive’s employment is terminated by Executive’s resignation that constitutes
Involuntary Termination under this Agreement, the date of the Company’s receipt of the Executive’s
notice of termination or any later date specified therein.
(m) “Effective Date” means the date set forth in the Preamble hereto.
A-ii
(n) “Executive” means the individual identified in the Preamble hereto.
(o) “Good Reason” means any of the following:
(i) a material reduction in the Executive’s duties, level of responsibility or authority,
other than (A) reductions solely attributable to the Company ceasing to be a publicly held company
or becoming a subsidiary or division of another company, or (B) isolated incidents that are
promptly remedied by the Company; or
(ii) a material reduction in the Executive’s Base Salary, without (A) the Executive’s express
written consent or (B) an increase in the Executive’s benefits, perquisites and/or guaranteed
bonus, which increase(s) have a value reasonably equivalent to the reduction in Base Salary; or
(iii) a material reduction in the Executive’s Target Bonus, without (A) the Executive’s
express written consent or (B) an corresponding increase in the Executive’s Base Salary; or
(iv) the relocation of the Executive’s principal place of business to a location more than
thirty-five (35) miles from the Executive’s principal place of business immediately prior to the
Change in Control, without the Executive’s express written consent; or
(v) the Company’s (or its successor’s) material breach of this Agreement.
(p) “Involuntary Termination” means the termination of Executive’s employment with the Company
at the time of or following a Change in Control before the end of the CIC Period:
(i) by the Company without Cause, or
(ii) by the Executive for Good Reason.
(q) “Long-Term Disability” is defined according to the Company’s insurance policy regarding
long-term disability for its employees.
(r) A “Payment” means 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.
(s) “Pending Change in Control” means that one or more of the following events has occurred
and a Change in Control pursuant thereto is reasonably expected to be effected within 90 days of
the date as of the determination as to whether there is a Pending Change in Control: (i) the
Company executes a letter of intent, term sheet or similar instrument with respect to a transaction
or series of transactions, the consummation of which transaction(s) would result in a Change in
Control; (ii) the Board approves a transaction or series of transactions, the consummation of which
transaction(s) would result in a Change in Control; or (iii) a person makes a public announcement
of tender offer for the Common Stock, the
A-iii
completion of which would result in a Change in Control. A Pending Change in Control shall
cease to exist upon a Change in Control.
(t) “Pro Rata Bonus” means an amount equal to 100% of the Target Bonus that the Executive
would have been eligible to receive for the Company’s fiscal year in which the Executive’s
employment terminates following a Change in Control, multiplied by a fraction, the numerator of
which is the number of days in such fiscal year through the Termination Date and the denominator of
which is 365.
(u) “Restricted Stock” means Common Stock issued by the Company with vesting restrictions and
subject to an award agreement pursuant to a stock plan of the Company.
(v) “RSUs” mean restricted stock units granted by the Company pursuant to which the Company
has agreed to issue Common Stock upon the satisfaction of vesting and other conditions, which RSUs
are subject to an award agreement pursuant to a stock plan of the Company.
(w) “Target Bonus” means the bonus which would have been paid to the Executive for full
achievement of the Company’s base business plan or budget and/or for the attainment of specific
performance objectives pertaining to the business of the Company or any of its specific business
units or divisions, or to individual performance criteria applicable to the Executive or his
position, which objectives have been established by the Board of Directors (or the Compensation
Committee thereof) for the Executive relating to such plan or budget for the year in question.
“Target Bonus” shall not mean the “maximum bonus” which the Executive might have been paid for
overachievement of such plan.
(x) “Value” of a Payment means 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.
(y) “Voluntary Resignation” means the termination of the Executive’s employment upon his
voluntary resignation, which includes retirement, as set forth in Section 3 hereof.
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APPENDIX I
Legal Release
This Legal Release (“Release”) is between Advanced Energy Industries, Inc. (the “Company”) and
(“Executive”) (each a “Party,” and together, the “Parties”).
Recitals
A. Executive and the Company are parties to an Executive Change In Control Agreement to which
this Release is appended as Appendix I (the “CIC Agreement”).
B. Executive wishes to receive the benefits described in the CIC Agreement.
C. Executive and the Company wish to resolve, except as specifically set forth herein, all
claims between them arising from or relating to any act or omission predating the Final Separation
Date of [ ].
Agreement
The Parties agree as follows:
Confirmation of CIC Agreement Obligations. The Company shall pay or provide to
Executive the payments and benefits, as, when and on the terms and conditions specified in the CIC
Agreement.
Legal Releases
(a) Executive, on behalf of Executive and Executive’s heirs, personal representatives and
assigns, and any other person or entity that could or might act on behalf of Executive, including,
without limitation, Executive’s counsel (all of whom are collectively referred to as “Executive
Releasers”), hereby fully and forever releases and discharges the Company, its present and future
affiliates and subsidiaries, and each of their past, present and future officers, directors,
employees, shareholders, independent contractors, attorneys, insurers and any and all other persons
or entities that are now or may become liable to any Releaser due to any Releasee’s act or
omission, (all of whom are collectively referred to as “Executive Releasees”) of and from any and
all actions, causes of action, claims, demands, costs and expenses, including attorneys’ fees, of
every kind and nature whatsoever, in law or in equity, whether now known or unknown, that Executive
Releasers, or any person acting under any of them, may now have, or claim at any future time to
have, based in whole or in part upon any act or omission occurring on or before the Final
Separation Date, without regard to present actual knowledge of such acts or omissions, including
specifically, but not by way of limitation, matters which may arise at common law, such as breach
of contract, express or implied, promissory estoppel, wrongful discharge, tortious interference
with contractual rights, infliction of emotional distress, defamation, or under federal, state or
local laws, such as the Fair Labor Standards Act, the Employee Retirement Income Security Act, the
National Labor Relations Act, Title VII of the Civil Rights Act of 1964, the Age Discrimination in
Employment Act, the Rehabilitation Act of 1973, the Equal Pay Act, the Americans with Disabilities
Act, the Family and Medical Leave Act, and any civil rights law of any state or other governmental
body; PROVIDED, HOWEVER, that notwithstanding the foregoing or anything else contained in this
Agreement, the release set forth in
A-v
this Section shall not extend to: (i) any rights arising under this Agreement; or; (ii) any
vested rights under any pension, retirement, profit sharing or similar plan; (iii) Executive’s
rights, if any, to indemnification, and/or defense under any Company certificate of incorporation,
bylaw and/or policy or procedure, or under any insurance contract, in connection with Executive’s
acts an omissions within the course and scope of Executive’s employment with the Company; or (iv)
any rights or remedies that cannot by law be waived by private agreement. Executive hereby
warrants that Executive has not assigned or transferred to any person any portion of any claim
which is released, waived and discharged above. Executive further states and agrees that Executive
has not experienced any illness, injury, or disability that is compensable or recoverable under the
worker’s compensation laws of any state that was not reported to the Company by Executive before
the Final Separation Date. Executive has specifically consulted with counsel with respect to the
agreements, representations, and declarations set forth in the previous sentence. Executive
understands and agrees that by signing this Agreement Executive is giving up any right to bring any
legal claim against the Company concerning, directly or indirectly, Executive’s employment
relationship with the Company, including Executive’s separation from employment. Executive agrees
that this legal release is intended to be interpreted in the broadest possible manner in favor of
the Company, to include all actual or potential legal claims that Executive may have against the
Company, except as specifically provided otherwise in this Agreement.
(b) In order to provide a full and complete release, Executive understands and agrees that
this Agreement is intended to include all claims, if any, covered under this Section 2 that
Executive may have and not now know or suspect to exist in Executive’s favor against any Executive
Releasee and that this Agreement extinguishes such claims. Thus, Executive expressly waives all
rights under any statute or common law principle in any jurisdiction that provides, in effect, that
a general release does not extend to claims which the releasing party does not know or suspect to
exist in Executive’s favor at the time of executing the release, which if known by Executive must
have materially affected Executive’s settlement with the party being released. Notwithstanding
any other provision of this Section 2, however, nothing in this Section 2 is intended or shall be
construed to limit or otherwise affect in any way Executive’s rights under this Agreement.
(c) Executive agrees and acknowledges that Executive: (i) understands the language used in
this Agreement and the Agreement’s legal effect; (ii) is specifically releasing all claims and
rights under the Age Discrimination in Employment Act, as amended, 29 U.S.C. Section 621 et seq.;
(iii) will receive compensation under this Agreement to which Executive would not have been
entitled without signing this Agreement; (iv) has been advised by the Company to consult with an
attorney before signing this Agreement; and (v) will be given up to twenty one (21) calendar days
to consider whether to sign this Agreement. For a period of seven days after Executive signs this
Agreement, Executive may, in Executive’s sole discretion, rescind this Agreement by delivering a
written notice of rescission to the Company’s General Counsel. If Executive rescinds this
Agreement within seven calendar days after Executive signs the Agreement, or if Executive does not
sign this Agreement within the twenty-one day consideration period, this Agreement shall be void,
all actions taken pursuant to this Agreement shall be reversed, and neither this Agreement nor the
fact of or circumstances surrounding its execution shall be admissible for any purpose whatsoever
in any proceeding between the Parties, except in connection with a claim or defense involving the
validity or effective rescission of this Agreement. If Executive does not rescind this Agreement
within seven calendar days after the day Executive signs this Agreement, this Agreement shall
become final and binding and shall be irrevocable.
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Executive acknowledges that Executive has received all compensation to which Executive is
entitled for Executive’s work up to Executive’s last day of employment with the Company, and that
Executive is not entitled to any further pay or benefit of any kind, for services rendered or any
other reason, other than the payments and benefits, to the extent not already paid, described in
the CIC Agreement.
Executive agrees that the only thing of value that Executive will receive by signing this
Supplemental Release is the payments and benefits described in the CIC Agreement.
The Parties agree that their respective rights and obligations under the CIC Agreement shall
survive the execution of this Release.
NOTE: DO NOT SIGN THIS LEGAL RELEASE UNTIL AFTER EXECUTIVE’S FINAL DAY OF EMPLOYMENT.
| EXECUTIVE | ADVANCED ENERGY INDUSTRIES, INC. | |||||||||
| By: | ||||||||||
Date:
|
Date: | |||||||||
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