ACUSON CORPORATION EXHIBIT 10.30
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CHANGE IN CONTROL AGREEMENT
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THIS CHANGE IN CONTROL AGREEMENT, made as of the 12th day of October,
1998, by and between Acuson Corporation, a company incorporated under the laws
of Delaware (the "Company"), and _____________ ("Executive").
WHEREAS, the Board of Directors of the Company (the "Board") recognizes
that the possibility of a Change in Control (as hereinafter defined) exists and
that the threat or the occurrence of a Change in Control can result in
significant distractions of its key management personnel because of the
uncertainties inherent in such a situation;
WHEREAS, the Board has determined that it is essential and in the best
interest of the Company and its stockholders to retain the services of Executive
in the event of a threat or occurrence of a Change in Control and to ensure
Executive's continued dedication and efforts in such event without undue concern
for Executive's personal financial and employment security; and
WHEREAS, in order to induce Executive to remain in the employ of the
Company, particularly in the event of a threat or the occurrence of a Change in
Control, the Company desires to enter into this Agreement with Executive to
provide Executive with certain benefits in the event Executive's employment is
terminated as a result of, or in connection with, a Change in Control;
NOW, THEREFORE, in consideration of the respective agreements of the
parties contained herein, it is agreed as follows:
1. Term of Agreement. This Agreement shall commence as of October 12,
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1998 (the "Effective Date") and shall continue in effect until the third
anniversary of the Effective Date; provided, that commencing on the third
anniversary of the Effective Date and on each subsequent anniversary thereof,
the term of this Agreement shall automatically be extended for one (1) year
unless either the Company or Executive shall have given written notice to the
other at least ninety (90) days prior thereto that the term of this Agreement
shall not be so extended; and provided, further, that notwithstanding any such
notice by the Company not to extend, the term of this Agreement shall not expire
prior to the expiration of thirteen (13) months after the occurrence of a Change
in Control.
2. Definitions.
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2.1. Accrued Compensation. "Accrued Compensation" shall mean an
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amount which shall include all amounts earned or accrued through the Termination
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Date (as hereinafter defined) but not paid as of the Termination Date,
including, without limitation, (i) base salary, (ii) reimbursement for
reasonable and necessary expenses incurred by Executive on behalf of the Company
during the period ending on the Termination Date, (iii) paid time off (PTO) pay
and (iv) bonuses and incentive compensation.
2.2. Base Amount. "Base Amount" shall mean the amount of
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Executive's annual base salary at the rate in effect immediately prior to the
Change in Control, and shall include all amounts of Executive's base salary that
are deferred under any qualified and non-qualified employee benefit plans of the
Company or any other agreement or arrangement.
2.3. Bonus Amount. "Bonus Amount" shall mean the greater of (i)
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Executive's incentive target for the fiscal year in which the Change in Control
occurs and as in place immediately prior to the Change in Control, or (ii)
Executive's incentive target for the fiscal year in which the Termination Date
occurs.
2.4. Cause. A termination of employment is for "Cause" if
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Executive has been convicted of a felony involving fraud or dishonesty or the
termination is evidenced by a resolution adopted in good faith by two-thirds of
the Board to the effect that Executive (i) intentionally and continually failed
substantially to perform Executive's reasonably assigned duties with the Company
(other than a failure resulting from Executive's incapacity due to physical or
mental illness or from Executive's assignment of duties that would constitute
Good Reason (as hereinafter defined)), which failure continued for a period of
at least thirty (30) days after a written notice of demand for substantial
performance has been delivered to Executive specifying the manner in which
Executive has failed substantially to perform, or (ii) intentionally engaged in
conduct which is demonstrably and materially injurious to the Company; provided,
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that no termination of Executive's employment shall be for Cause as set forth in
clause (ii) above until (a) there shall have been delivered to Executive a copy
of a written notice setting forth that Executive was guilty of the conduct set
forth in clause (ii) and specifying the particulars thereof in detail, and (b)
Executive shall have been provided an opportunity to be heard in person by the
Board (with the assistance of Executive's counsel if Executive so desires). No
act, nor failure to act, on Executive's part shall be considered "intentional"
unless Executive has acted, or failed to act, with a lack of good faith and with
a lack of reasonable belief that Executive's action or failure to act was in the
best interest of the Company.
2.5. Change in Control. "Change in Control" shall mean any of the
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following:
(a) An acquisition (other than directly from the Company) of any
voting securities of the Company (the "Voting Securities") by any Person (as the
term "person" is used for purposes of Section 13 or 14 of the Securities
Exchange Act of 1934, as amended (the "1934 Act")) immediately after which such
Person has Beneficial Ownership (as the term "beneficial ownership" is defined
under Rule 13d-3 promulgated
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under the 0000 Xxx) of (i) twenty percent (20%) or more of the combined voting
power of the Company's then outstanding Voting Securities, which acquisition is
not approved in advance by a majority of the Incumbent Board (as hereinafter
defined), or (ii) thirty three percent (33%) or more of the combined voting
power of the Company's then outstanding Voting Securities, which acquisition is
approved in advance by a majority of the Incumbent Board; provided, that in each
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case of (i) or (ii) above, in determining whether a Change in Control has
occurred, Voting Securities which are acquired in a Non-Control Acquisition (as
hereinafter defined) shall not constitute an acquisition which would cause a
Change in Control. A "Non-Control Acquisition" shall mean an acquisition by (1)
an employee benefit plan (or a trust forming a part thereof) maintained by (A)
the Company or (B) any corporation or other Person of which a majority of its
voting power or its equity securities or equity interest is owned directly or
indirectly by the Company (a "Subsidiary"), (2) the Company or any Subsidiary,
(3) any Person in connection with a Non-Control Transaction (as hereinafter
defined) or (4) Xxxx Xxxxxxxxxxxx of a percentage of the combined voting power
of the Company's then outstanding Voting Securities (the "Voting Power") which
does not cause the aggregate percentage of the Voting Power held by him to
exceed twenty-five percent (25%) when his aggregate percentage of the Voting
Power is combined with the aggregate percentage of the Voting Power held
collectively by all of Mr. Johannsmeier's associates, affiliates (other than the
Company) and Persons with whom he is acting in concert with respect to such
acquisition or acquisitions (collectively, the "Johannsmeier Group"); provided,
however, that if, after the date of this Agreement, Xx. Xxxxxxxxxxxx or any of
the Johannsmeier Group sells, donates, assigns or otherwise transfers the
Beneficial Ownership of any Voting Securities, including among themselves, then
any subsequent acquisition of Beneficial Ownership of Voting Securities (other
than pursuant to the exercise of options granted under a Company stock option
plan) shall not be deemed to be a Non-Control Acquisition pursuant to this
Section 2.5(a); provided, further that in the event of Mr. Johannsmeier's death
or incapacity due to physical or mental illness, any acquisition by the trustee
or other representative of Xx. Xxxxxxxxxxxx or his estate or any Person acting
on Mr. Johannsmeier's behalf shall also not be deemed to be Non-Control
Acquisition pursuant to this Section 2.5(a);
(b) The individuals who, as of the date this Agreement is approved by
the Board, are members of the Board (the "Incumbent Board"), cease for any
reason to constitute at least a majority of the Board; provided, that if the
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appointment, election or nomination for election by the Company's stockholders
of any new director was approved by a vote of two-thirds (2/3rds) of the
Incumbent Board, such new director shall, for purposes of this Agreement, be
considered a member of the Incumbent Board; and provided, further, that no
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individual shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an actual or
threatened "Election Contest" (as described in Rule 14a-11 promulgated under the
0000 Xxx) or other actual or threatened solicitation of proxies or consents by
or on behalf of a Person other than the Board (a "Proxy Contest") including by
reason of any agreement intended to avoid or settle any Election Contest or
Proxy Contest;
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(c) Approval by stockholders of the Company of:
(i) A merger, consolidation or reorganization involving
the Company, unless such merger, consolidation or reorganization satisfies
the conditions set forth in clauses (A) through (C) below (the transactions
described by clauses (A) through (C) below being referred to herein as
"Non-Control Transactions"):
(A) the stockholders of the Company immediately before
such merger, consolidation or reorganization own, directly or
indirectly, immediately following such merger, consolidation or
reorganization, at least sixty percent (60%) of the combined voting
power of the outstanding voting securities of the corporation
resulting from such merger, consolidation or reorganization (the
"Surviving Corporation") in substantially the same proportion as their
ownership of the Voting Securities immediately before such merger,
consolidation or reorganization;
(B) the individuals who were members of the Incumbent
Board immediately prior to the execution of the agreement providing
for such merger, consolidation or reorganization constitute at least a
majority of the members of the board of directors of the Surviving
Corporation; and
(C) no Person (other than the Company, any Subsidiary,
any employee benefit plan (or any trust forming a part thereof)
maintained by the Company, the Surviving Corporation or any
Subsidiary, or any Person who, immediately prior to such merger,
consolidation or reorganization had Beneficial Ownership of twenty
percent (20%) or more of the then outstanding Voting Securities) has
Beneficial Ownership of twenty percent (20%) or more of the combined
voting power of the Surviving Corporation's then outstanding voting
securities;
(ii) A complete liquidation or dissolution of the Company;
or
(iii) An agreement for the sale or other disposition of all
or substantially all of the assets of the Company to any Person (other than
a transfer to a Subsidiary).
Notwithstanding the foregoing, a Change in Control shall not be deemed
to occur solely because any Person (the "Subject Person") acquired Beneficial
Ownership of more than the permitted amount of the outstanding Voting Securities
as a result of the acquisition of Voting Securities by the Company which, by
reducing the number of Voting Securities outstanding, increases the proportional
number of shares Beneficially Owned by the Subject Person; provided, that if a
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Change in Control would occur (but for
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the operation of this sentence) as a result of the acquisition of Voting
Securities by the Company, and after such share acquisition by the Company, the
Subject Person becomes the Beneficial Owner of any additional Voting Securities
(other than pursuant to the exercise of options granted under a Company stock
option plan or pursuant to a Capital Structure Change (as hereinafter defined))
which increases the percentage of the then outstanding Voting Securities
Beneficially Owned by the Subject Person in excess of the permitted amount of
the outstanding Voting Securities, then a Change in Control shall occur. For
purposes of this paragraph, a "Capital Structure Change" shall mean any change
made in the Voting Securities of the Company (including a stock dividend or
stock split) not involving the receipt of consideration by the Company.
(d) Notwithstanding anything contained in this Agreement to the
contrary, if Executive's employment is terminated prior to a Change in Control
and it is determined that such termination (i) was at the request of a third
party who has indicated an intention or taken steps reasonably calculated to
effect a Change in Control and who subsequently effectuates a Change in Control
(a "Third Party") or (ii) otherwise occurred in connection with, or in
anticipation of, a Change in Control which actually occurs, then, for all
purposes of this Agreement, the date of a Change in Control with respect to
Executive shall mean the date immediately prior to the date of such termination
of Executive's employment.
2.6. Company. The "Company" shall mean Acuson Corporation and
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shall include its "Successors and Assigns" (as hereinafter defined).
2.7. Disability. "Disability" shall mean a physical or mental
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infirmity which impairs Executive's ability to substantially perform Executive's
duties with the Company for a period of one hundred eighty (180) consecutive
days and Executive has not returned to Executive's full-time employment prior to
the Termination Date as stated in the Notice of Termination (as hereinafter
defined).
2.8. Good Reason.
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(a) "Good Reason" shall mean the occurrence after a Change in
Control of any of the events or conditions described in subsections (i) through
(viii) hereof :
(i) (A) a change in Executive's status, title, position,
responsibilities (including reporting responsibilities) or working
conditions which represents an adverse change from Executive's status,
title, position, responsibilities or working conditions as in effect at any
time within ninety (90) days preceding the date of a Change in Control or
at any time thereafter; (B) the assignment to Executive of any duties or
responsibilities which are inconsistent with Executive's status, title,
position or responsibilities as in effect at any time within ninety (90)
days preceding the date of a Change in Control or at any time thereafter;
or (C) any removal of Executive from or failure to reappoint or reelect
Executive to any of such offices or positions, except in connection with
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termination of Executive's employment for Disability, Cause, as a result of
Executive's death or by Executive other than for Good Reason;
(ii) reduction in Executive's base salary to a level below
that in effect at any time within ninety (90) days preceding the date of a
Change in Control or at any time thereafter, or any failure to pay
Executive any compensation or benefits to which Executive is entitled
within five (5) days of the date due;
(iii) the Company's requiring Executive to be based at any
place outside a 50-mile radius from Executive's job location or residence
prior to the Change in Control, except for reasonably required travel on
the Company's business which is not materially greater than such travel
requirements prior to the Change in Control;
(iv) the failure by the Company to (A) continue in effect
(without reduction in benefit level and/or reward opportunities) any
material compensation or employee benefit plan in which Executive was
participating at any time within ninety (90) days preceding the date of the
Change in Control or at any time thereafter, including, but not limited to,
the plans listed on Appendix A (which shall include paid time off
policies), unless such plan is replaced with a plan that provides
substantially equivalent compensation or benefits to Executive, or (B)
provide Executive with compensation and benefits, in the aggregate, at
least equal (in terms of benefit levels and/or reward opportunities) to
those provided for under each other employee benefit plan, program and
practice in which Executive was participating at any time within ninety
(90) days preceding the date of the Change in Control or at any time
thereafter or which are provided to other similarly situated executives of
the Company;
(v) the insolvency or the filing (by any party, including
the Company) of a petition for bankruptcy of the Company, which petition is
not dismissed within sixty (60) days;
(vi) any material breach by the Company of any provision
of this Agreement;
(vii) any purported termination of Executive's employment
for Cause by the Company which does not comply with the terms of Section
2.4; or
(viii) the failure of the Company to obtain an agreement,
satisfactory to Executive, from any Successors and Assigns to assume and
agree to perform this Agreement, as contemplated in Section 6 hereof.
(b) Any event or condition described in this Section 2.8 which
occurs prior to a Change in Control, but which it is determined (i) was at the
request of a
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Third Party, or (ii) otherwise arose in connection with, or in anticipation of,
a Change in Control which actually occurs, shall constitute Good Reason for
purposes of this Agreement notwithstanding that it occurred prior to the Change
in Control.
(c) Executive's right to terminate Executive's employment
pursuant to this Section 2.8 shall not be affected by Executive's incapacity due
to physical or mental illness.
(d) For purposes of this Section 2.8, any good faith
determination of a Good Reason made by Executive shall be conclusive. In the
event Executive makes any such determination, Executive shall notify the Company
in writing and shall specify a last day of employment.
2.9. Notice of Termination. Following a Change in Control,
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"Notice of Termination" shall mean a written notice from the Company of
termination of Executive's employment which indicates the specific termination
provision in this Agreement relied upon and which sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
Executive's employment under the provision so indicated.
2.10. Successors and Assigns. "Successors and Assigns" shall mean
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a corporation or other entity acquiring all or substantially all the assets and
business of the Company (including this Agreement), whether by operation of law
or otherwise.
2.11. Termination Date. "Termination Date" shall mean (i) in the
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case of Executive's death, Executive's date of death, (ii) in the case of
termination of Executive's employment with the Company for Good Reason, the last
day of Executive's employment as specified by Executive pursuant to Section
2.8(d), and (iii) in all other cases, the date specified in the Notice of
Termination; provided, that if Executive's employment is terminated by the
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Company for Cause or due to Disability, the date specified in the Notice of
Termination shall be at least thirty (30) days from the date the Notice of
Termination is given to Executive; and provided, further, that in the case of
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Disability, Executive shall not have returned to the full-time performance of
Executive's duties during such period of at least thirty (30) days.
3. Termination of Employment.
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3.1. If, during the term of this Agreement, Executive's employment
with the Company shall be terminated within thirteen (13) months following a
Change in Control, Executive shall be entitled to the following compensation and
benefits:
(a) If Executive's employment with the Company shall be
terminated (i) by the Company for Cause or Disability, (ii) by reason of
Executive's death, (iii) due to Executive's retirement pursuant to the Company's
policies applying to executive offices generally, or (iv) by Executive other
than for Good Reason, the Company shall pay to Executive the Accrued
Compensation.
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(b) If Executive's employment with the Company shall be
terminated for any reason other than as specified in Section 3.1(a), Executive
shall be entitled to the following:
(i) the Company shall pay Executive all (A) Accrued
Compensation and (B) the Bonus Amount times a fraction, the numerator of
which is the number of days in the current fiscal year through the
Termination Date and the denominator of which is 365;
(ii) the Company shall pay Executive as severance pay and
in lieu of any further compensation for periods subsequent to the
Termination Date, an amount in cash equal to two (2) times the sum of (A)
the Base Amount and (B) the Bonus Amount;
(iii) the Company shall provide, at no cost to the
Executive, for a period of twenty four (24) months following the
Termination Date, the same or substantially equivalent employee benefits,
including without limitation, life insurance, medical, dental, prescription
and hospitalization benefits, in which Executive was participating at any
time within ninety (90) days preceding the date of the Change in Control or
at any time thereafter (and if Executive covered Executive's dependents
under such benefits, such dependents shall remain covered by such benefits
at Company's expense for such twenty four (24) month period), except to the
extent that Executive and/or Executive's dependents obtain employee
benefits of the same type offered by an entity to which Executive is then
providing his services, in which case such coverage provided by the Company
shall become secondary; and
(iv) the restrictions on any outstanding incentive awards
(including restricted stock and granted performance shares or units)
granted to Executive under the Company's stock option and other stock
incentive plans or under any other incentive plan or arrangement shall
lapse and such incentive awards shall become 100% vested, all stock options
and stock appreciation rights granted to Executive shall become immediately
exercisable and shall become 100% vested and all performance units granted
to Executive shall become 100% vested.
(c) The amounts provided for in Sections 3.1(a) and 3.1(b)(i) and
(ii) shall be paid in a single lump sum cash payment within ten (10) days after
the Termination Date (or earlier, if required by applicable law).
(d) The Executive shall not be required to mitigate the amount of
any payment provided for in this Agreement by seeking other employment or
otherwise, and no such payment shall be offset or reduced by the amount of any
compensation or benefits provided to Executive in any subsequent employment,
except as provided in Section 3.1(b)(iii).
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3.2. (a) The severance pay and benefits provided for in this Section
3 shall be in lieu of any other severance or termination pay to which Executive
may be entitled under any Company severance or termination plan, program,
practice or arrangement.
(b) The Executive's entitlement to any other compensation or
benefits shall be determined in accordance with the Company's employee benefit
plans (including the plans listed on Appendix A) and other applicable programs,
policies and practices then in effect.
4. Notice of Termination. Following a Change in Control, any purported
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termination of Executive's employment by the Company shall be communicated by a
Notice of Termination to Executive. For purposes of this Agreement, no such
purported termination shall be effective without such Notice of Termination.
5. Excise Tax Payments.
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5.1 Notwithstanding anything contained in this Agreement to the
contrary, to the extent that any payment or benefit (within the meaning of
Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the
"Code")) to Executive or for Executive's benefit, paid or payable or distributed
or distributable pursuant to the terms of this Agreement or otherwise in
connection with, or arising out of, Executive's employment with the Company or a
Change in Control (a "Payment" or "Payments"), would be subject to the excise
tax imposed under Code Section 4999, or any interest or penalties are incurred
by Executive with respect to such excise tax (such excise tax, together with any
such interest and penalties, are hereinafter collectively referred to as the
"Excise Tax"), the Payments shall be reduced (but not below zero) if and to the
extent that a reduction in the Payments would result in Executive retaining a
larger amount, on an after-tax basis (taking into account federal, state and
local income, employment and any other applicable taxes in addition to the
Excise Tax), than if Executive received all of the Payments (any such reduced
amount is hereinafter referred to as the "Limited Payment Amount"). Unless
Executive shall have given written notice prior to the Determination (as
hereinafter defined) specifying a different order to the Company to effectuate
the Limited Payment Amount, the Company shall reduce or eliminate the Payments
by (i) first reducing or eliminating those Payments which have a "parachute
payment" value (as determined under Code Section 280G and the regulations
promulgated thereunder) equal to the value of the Payment, and then (ii) those
Payments in the order in which their "parachute payment" value comes the closest
to the value of the Payment, and then (iii) notwithstanding the foregoing
provisions, any employee benefits provided pursuant to Section 3.1(b)(iii) of
this Agreement. Any notice given by Executive pursuant to the preceding
sentence shall take precedence over the provisions of any other plan,
arrangement or agreement governing Executive's rights and entitlements to any
benefits or compensation.
5.2 An initial determination as to whether the Payments shall be
reduced to the Limited Payment Amount and the amount of such Limited Payment
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Amount shall be made, at the Company's expense, by the accounting firm that is
the Company's independent accounting firm as of the date of the Change in
Control (the "Accounting Firm"). The Accounting Firm shall provide its
determination (the "Determination"), together with detailed supporting
calculations and documentation, to the Company and Executive within five (5)
days of the Termination Date, if applicable, or such other time as requested by
the Company or by Executive (provided Executive reasonably believes that any of
the Payments may be subject to the Excise Tax) and, if the Accounting Firm
determines that no Excise Tax is payable by Executive with respect to a Payment
or Payments, it shall furnish Executive with an opinion reasonably acceptable to
Executive that no Excise Tax will be imposed with respect to any such Payment or
Payments. Within ten (10) days of the delivery of the Determination to
Executive, Executive shall have the right to dispute the Determination (the
"Dispute"). If there is no Dispute, the Determination shall be binding, final
and conclusive upon the Company and Executive, subject to the application of
Section 5.3 below.
5.3 As a result of the uncertainty in the application of Sections
4999 and 280G of the Code, it is possible that the Payments to be made to, or
provided for the benefit of, Executive either will be greater (an "Excess
Payment") or less (an "Underpayment") than the amounts provided for by the
limitations contained in Section 5.1.
(a) If it is established, pursuant to a final determination of
a court or an Internal Revenue Service (the "IRS") proceeding which has been
finally and conclusively resolved, that an Excess Payment has been made, such
Excess Payment shall be deemed for all purposes to be a loan to Executive made
on the date Executive received the Excess Payment, which loan Executive must
repay to the Company together with interest at the applicable federal rate under
Code Section 7872(f)(2); provided, that no loan shall be deemed to have been
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made and no amount will be payable by Executive to the Company unless, and only
to the extent that, the deemed loan and payment would either reduce the amount
on which Executive is subject to tax under Code Section 4999 or generate a
refund of tax imposed under Code Section 4999.
(b) In the event that it is determined, by (i) the Accounting
Firm, the Company (which shall include the position taken by the Company, or
together with its consolidated group, on its federal income tax return) or the
IRS, (ii) pursuant to a determination by a court, or (iii) upon the resolution
to Executive's satisfaction of the Dispute, that an Underpayment has occurred,
the Company shall pay an amount equal to the Underpayment to Executive within
ten (10) days of such determination or resolution, together with interest on
such amount at the applicable federal rate under Code Section 7872(f)(2) from
the date such amount would have been paid to Executive until the date of
payment.
6. Successors; Binding Agreement.
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6.1. This Agreement shall be binding upon and shall inure to the
benefit of the Company and its Successors and Assigns, and the Company shall
require
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any Successors and Assigns to expressly assume 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 or assignment had taken place.
6.2. Neither this Agreement nor any right or interest hereunder
shall be assignable or transferable by Executive or Executive's beneficiaries or
legal representatives, except by will or by the laws of descent and
distribution. This Agreement shall inure to the benefit of and be enforceable
by Executive's legal personal representative.
7. Fees and Expenses. The Company shall pay in a timely manner all legal
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fees and related expenses (including the costs of experts, evidence and counsel)
incurred by Executive as they become due as a result of (a) Executive's
termination of employment (including all such fees and expenses, if any,
incurred in contesting or disputing any such termination of employment), (b)
Executive's seeking to obtain or enforce any right or benefit provided by this
Agreement (including but not limited to, any such fees and expenses incurred in
connection with any Dispute) or by any other plan or arrangement maintained by
the Company under which Executive is or may be entitled to receive benefits, and
(c) Executive's hearing before the Board as contemplated in Section 2.4 of this
Agreement; provided, that the circumstances set forth in clauses (a) and (b) of
this Section 7 (other than as a result of Executive's termination of employment
under circumstances described in Section 2.5(d)) occurred on or after a Change
in Control.
8. Notice. Notices and all other communications provided for in this
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Agreement (including the Notice of Termination) shall be in writing and shall be
deemed to have been duly given when personally delivered or sent by certified
mail, return receipt requested, postage prepaid, addressed to the respective
addresses last given by each party to the other; provided, that all notices to
the Company shall be directed to the attention of the Board with a copy to the
Secretary of the Company. All notices and communications shall be deemed to
have been received on the date of delivery thereof or on the third business day
after the mailing thereof, except that notice of change of address shall be
effective only upon receipt.
9. Non-Exclusivity of Rights. Nothing in this Agreement shall prevent or
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limit Executive's continuing or future participation in any benefit, bonus,
incentive or other plan or program provided by the Company (except for any
severance or termination policies, plans, programs or practices) and for which
Executive may qualify, nor shall anything herein limit or reduce such rights as
Executive may have under any other agreements with the Company (except for any
severance or termination agreement). Amounts which are vested benefits or which
Executive is otherwise entitled to receive under any plan or program of the
Company shall be payable in accordance with such plan or program, except as
explicitly modified by this Agreement.
10. Settlement of Claims. The Company's obligation to make the payments
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provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any circumstances, including, without
limitation, any set-off,
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counterclaim, recoupment, defense or other right which the Company may have
against Executive or others.
11. Miscellaneous.
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11.1 No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing
and signed by Executive and the Company. No waiver by either party hereto at
any time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreement or representation,
oral or otherwise, express or implied, with respect to the subject matter hereof
has been made by either party which is not expressly set forth in this
Agreement.
11.2 If there shall be any dispute between the Company and
Executive (i) in the event of any termination of Executive's employment by the
Company, concerning whether such termination was for Cause or (ii) in the event
of any termination of employment by Executive, concerning whether Good Reason
exists, then, unless and until there is a final, nonappealable judgment of a
court of competent jurisdiction declaring that such termination was for Cause or
that the determination by Executive of the existence of Good Reason was not made
in good faith, the Company shall pay all amounts, and provide all benefits, to
Executive and Executive's dependents, as the case may be, that the Company would
be required to pay or provide pursuant to Section 3 as though such termination
were by the Company without Cause or by Executive with Good Reason; provided,
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however, that the Company shall not be required to pay any disputed amounts
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pursuant to this paragraph except upon receipt of an undertaking by or on behalf
of Executive to repay all such amounts to which the Executive is ultimately
adjudged by such court not to be entitled.
11.3 Executive and the Company acknowledge that the employment of
Executive by the Company is and shall continue to be "at will" and may be
terminated by either Executive or the Company at any time.
12. Governing Law. This Agreement shall be governed by and construed and
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enforced in accordance with the internal laws of the State of California (as
permitted by Section 1646.5 of the California Civil Code or any similar
successor provision), without giving effect to any choice of law rule that would
cause the application of the laws of any jurisdiction other than the internal
laws of the State of California to the rights and duties of the parties. Any
action brought by any party to this Agreement shall be brought and maintained in
a court of competent jurisdiction in Santa Xxxxx County in the State of
California.
13. Severability. The provisions of this Agreement shall be deemed
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severable, and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
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14. Entire Agreement. This Agreement constitutes the entire agreement
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between the parties hereto and supersedes all prior agreements, if any,
understandings and arrangements, oral or otherwise, between the parties hereto
with respect to the subject matter hereof.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
its duly authorized officer and Executive has executed this Agreement as of the
day and year first above written.
ACUSON CORPORATION
ATTEST: By:___________________________
Name:_____________________
_________________________ Title:____________________
Secretary
EXECUTIVE
______________________________
Signature
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APPENDIX A
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EMPLOYEE BENEFIT PLANS
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Medical
Dental
Vision
Prescription
Life Insurance
Accidental Death and Dismemberment
Long Term Disability
Paid Time Off
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