-110-
-19-
Exhibit 10.12
Change of Control
Employment Agreement
This Agreement is made and entered into as of the 1st day
of September, 1996, by and between Littelfuse, Inc., a Delaware
corporation (hereinafter referred to as the OCompanyO), and ------------
----------- (hereinafter referred to as the OExecutiveO);
W i t n e s s e t h:
Whereas, the Board of Directors of the Company
(hereinafter referred to as the OBoardO) has determined that it
is in the best interests of the Company and its stockholders to
provide the Executive with certain protections against the
uncertainties usually created by a Change of Control (as such
term is hereinafter defined); and
Whereas, the Board believes that the protections provided
to the Executive in connection with a Change of Control will
better enable the Executive to devote his full time, attention
and energy to the business of the Company prior to and after a
Change of Control, thereby benefitting the Company and its
stockholders;
Now, Therefore, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged and confessed, the Company and
the Executive hereby agree as follows:
SectionE1. Certain Definitions. (a)EThe OEffective DateO
shall mean the first date during the Change of Control Period
(as defined in SectionE1(b) hereof) on which a Change of
Control (as defined in SectionE2 hereof) occurs.
Notwithstanding anything to the contrary contained in this
Agreement, if a Change of Control occurs and if the ExecutiveOs
employment with the Company is terminated 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 (i)Ewas at the direct or indirect request of a third
party who theretofore had taken any steps intended to effect a
Change of Control or (ii)Eotherwise arose in connection with or
in anticipation of a Change of Control, then for all purposes
of this Agreement the OEffective DateO shall mean the date
immediately prior to the date of such termination of
employment.
(b) The OChange of Control PeriodO shall mean the period
commencing on the date hereof and ending on the fifth
anniversary of the date hereof.
SectionE2. Change of Control. For the purpose of this
Agreement, a OChange of ControlO shall mean:
(a) The acquisition in one or more transactions by
any individual, entity or group (hereinafter referred to
collectively as a OPersonO) within the meaning of
SectionE13(d)(3) of the Securities Exchange Act of 1934,
as amended (hereinafter referred to as the OExchange
ActO), of beneficial ownership (within the meaning of, and
calculated in accordance with, Rule 13d-3 promulgated
under the Exchange Act) of 20% or more of either (i)Ethe
then outstanding shares of common stock of the Company
(hereinafter referred to as the OOutstanding Company
Common StockO) or (ii)Ethe combined voting power of the
then outstanding voting securities of the Company entitled
to vote generally in the election of directors
(hereinafter referred to as the OOutstanding Company
Voting SecuritiesO); provided, however, that for purposes
of this subsection (a), the following acquisitions shall
not constitute a Change of Control: (i)Eany acquisition
directly from the Company, (ii)Eany acquisition by the
Company, (iii)Eany acquisition by any employee benefit
plan (or related trust) sponsored or maintained by the
Company or any corporation controlled by the Company,
(iv)Eany acquisition by any corporation pursuant to a
transaction which complies with clausesE(i), (ii) and
(iii) of subsectionE(c) of this SectionE2 or (v) any
acquisition by Oaktree Capital Management, LLC, a
California limited liability company, or any of its
Affiliates or Associates (as used herein, the terms
OAffiliateO and OAssociateO shall have the respective
meanings ascribed to such terms in RuleE12b-2 of the
General Rules and Regulations under the Exchange Act); or
(b) Individuals who, as of the date hereof,
constitute the Board (hereinafter referred to as the
OIncumbent BoardO) 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
CompanyOs stockholders, 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; or
(c) Consummation of a reorganization, merger or
consolidation or sale or other disposition of all or
substantially all of the assets of the Company
(hereinafter referred to as a OBusiness CombinationO)
unless, following such Business Combination, (i)Eall or
substantially all of the individuals and entities who were
the beneficial owners, respectively, of the Outstanding
Company Common Stock and Outstanding Company Voting
Securities immediately prior to such Business Combination
beneficially own, directly or indirectly, more than 50%
of, respectively, 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 which as a
result of such transaction owns the Company or all or
substantially all of the CompanyOs 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 Outstanding Company Voting Securities, as
the case may be, (ii)Eno Person (excluding any corporation
resulting from such Business Combination or any employee
benefit plan (or related trust) of the Company or such
corporation resulting from such Business Combination)
beneficially owns, directly or indirectly, 20% 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 (iii)Eat 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
(d) Approval by the stockholders of the Company of a
complete liquidation or dissolution of the Company within
one year after a Business Combination.
SectionE3. Employment Period. The Company hereby agrees
to continue to employ the Executive, and the Executive hereby
agrees to remain as an employee of the Company, subject to the
terms and conditions of this Agreement, for the period
commencing on the Effective Date and ending on the second
anniversary of such date (the OEmployment PeriodO).
SectionE4. Terms of Employment.
(a) Position and Duties. (i)EDuring the Employment
Period, (A)Ethe ExecutiveOs 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 120-day period
immediately preceding the Effective Date and (B)Ethe
ExecutiveOs services shall be performed at the location where
the Executive was employed immediately preceding the Effective
Date or any office or location less than 20 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 ExecutiveOs 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)Eserve on corporate,
civic or charitable boards or committees, (B)Edeliver lectures,
fulfill speaking engagements or teach at educational
institutions, and (C)Emanage personal investments, so long as
such activities do not significantly interfere with the
performance of the ExecutiveOs 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 ExecutiveOs
responsibilities to the Company.
(b) Compensation. (i) Base Salary. During the Employment
Period, the Executive shall receive an annual base salary
(hereinafter referred to as the OAnnual Base SalaryO), which
shall be paid at a monthly rate, equal to at least twelve times
the highest monthly base salary paid or payable, including any
base salary which has been earned but deferred, to the
Executive by the Company and its affiliated companies in
respect of 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 no
more than 12 months after the last salary increase awarded to
the Executive prior to the Effective Date and thereafter at
least annually. 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 used
in this Agreement shall refer to Annual Base Salary as so
increased. As used in this Agreement, the term Oaffiliated
companiesO shall include any company controlled by, controlling
or under common control with the Company.
(ii) Annual Bonus. In addition to the Annual Base Salary,
the Executive shall be awarded, for each fiscal year ending
during the Employment Period, an annual bonus (hereinafter
referred to as the OAnnual BonusO) in cash at least equal to
the ExecutiveOs highest bonus under the CompanyOs incentive
bonus program or any comparable bonus under any predecessor or
successor plan, for the last three full fiscal years prior to
the Effective Date (annualized in the event that the Executive
was not employed by the Company for the whole of such fiscal
year) (hereinafter referred to as the ORecent Annual BonusO).
Each such Annual Bonus shall be paid no later than the end 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.
(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 120-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.
(iv) Welfare Benefit Plans. During the Employment Period,
the Executive and/or the ExecutiveOs 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, 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 120-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.
(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 120-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, including,
without limitation, tax and financial planning services,
payment of club dues, and, if applicable, use of an automobile
and payment of related expenses, 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 120-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 120-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 120-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.
SectionE5. Termination of Employment.
(a) Disability. 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 written notice to the Executive of
its intention to terminate the ExecutiveOs employment. In such
event, the ExecutiveOs employment with the Company shall
terminate effective on the 30th day after delivery of such
notice to the Executive (the ODisability Effective DateO),
provided that, within the 30 days after such delivery, the
Executive shall not have returned to full-time performance of
the ExecutiveOs duties. For purposes of this Agreement,
ODisabilityO shall mean the absence of the Executive from the
ExecutiveOs duties with the Company on a full-time basis for
180 consecutive business days as a result of incapacity due to
mental or physical illness which is determined to be total and
permanent by a physician selected by the Company or its
insurers and reasonably acceptable to the Executive or the
ExecutiveOs legal representative.
(b) Cause. The Company may terminate the ExecutiveOs
employment during the Employment Period for Cause. For
purposes of this Agreement, OCauseO shall mean:
(i) the willful and continued failure of the
Executive to perform substantially the ExecutiveOs duties
with the Company (other than any such failure resulting
from incapacity due to physical or mental illness), after
a written demand for substantial performance is delivered
to the Executive by the Board which specifically
identifies the manner in which the Board believes that the
Executive has not substantially performed the ExecutiveOs
duties and such failure is not cured within sixty (60)
calendar days after receipt of such written demand; or
(ii) the willful engaging by the Executive in illegal
conduct or gross misconduct which is materially and
demonstrably injurious to the Company.
For purposes of this provision, any act or failure to act on
the part of the Executive in violation or contravention of any
order, resolution or directive of the Board of Directors of the
Company shall be considered OwillfulO unless such order,
resolution or directive is illegal or in violation of the
certificate of incorporation or by-laws of the Company;
provided, however, that no other act or failure to act on the
part of the Executive, shall be considered Owillful,O unless it
is done, or omitted to be done, by the Executive in bad faith
or without reasonable belief that the ExecutiveOs 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 or a senior officer of the
Company or based upon the advice of counsel for the Company
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 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, to be
heard before the Board), finding that, in the good faith
opinion of the Board, the Executive is guilty of the conduct
described in subparagraph (i) or (ii) above, and specifying the
particulars thereof in detail.
(c) Good Reason. The ExecutiveOs employment may be
terminated by the Executive for Good Reason. For purposes of
this Agreement, OGood ReasonO shall mean:
(i) the Executive is not elected to, or is removed
from, any elected office of the Company which the
Executive held immediately prior to the Effective Date;
(ii) the assignment to the Executive of any duties
inconsistent in any respect with the ExecutiveOs position,
authority, duties or responsibilities as contemplated by
SectionE4(a) hereof, 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;
(iii) any failure by the Company to comply with any of
the provisions of this Agreement, other than an isolated,
insubstantial and inadvertent failure not occurring in bad
faith and which is remedied by the Company promptly after
receipt of notice thereof given by the Executive;
(iv) the CompanyOs requiring the Executive to travel
on Company business to a substantially greater extent than
required immediately prior to the Effective Date; or
(v) any purported termination by the Company of the
ExecutiveOs employment otherwise than as expressly
permitted by this Agreement.
For purposes of this SectionE5(c), any good faith
determination of OGood ReasonO made by the Executive shall be
conclusive.
(d) Notice of Termination. Any termination by the
Company for Cause, or by the Executive for Good Reason, shall
be communicated by Notice of Termination to the other party
hereto given in accordance with SectionE12(b) hereof. For
purposes of this Agreement, a ONotice of TerminationO means a
written notice which (i)Eindicates the specific termination
provision in this Agreement relied upon, (ii)Eto the extent
applicable, sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the
ExecutiveOs employment under the provision so indicated and
(iii)Eif the Date of Termination (as defined below) is other
than the date of delivery of such notice, specifies the
termination date (which date shall be not more than 30 days
after the delivery of such notice). The failure by the
Executive or the Company to set forth in the Notice of
Termination any fact or circumstance which contributes to a
showing of Good Reason or Cause shall not waive any right of
the Executive or the Company, respectively, hereunder or
preclude the Executive or the Company, respectively, from
asserting such fact or circumstance in enforcing the
ExecutiveOs or the CompanyOs rights hereunder.
(e) Date of Termination. ODate of TerminationO means
(i)Eif the ExecutiveOs employment is terminated by the Company
for Cause, or by the Executive for Good Reason, the date of
delivery of the Notice of Termination or any later date
specified therein, as the case may be, (ii)Eif the ExecutiveOs
employment is terminated by the Company other than for Cause or
Disability, the Date of Termination shall be the date on which
the Company notifies the Executive of such termination,
(iii)Eif the ExecutiveOs employment is terminated by reason of
death or Disability, the Date of Termination shall be the date
of death of the Executive or the Disability Effective Date, as
the case may be, and (iv) if the ExecutiveOs employment is
terminated by the Executive without Good Reason, the last day
of employment of the Executive with the Company.
SectionE6. Obligations of the Company upon Termination.
(a) Good Reason; Other Than for Cause, Death or
Disability. If, during the Employment Period, the Company
shall terminate the ExecutiveOs employment other than for Cause
or Disability or the Executive shall terminate his employment
for Good Reason:
(i) the Company shall pay to the Executive in a lump
sum in cash within 30 days after the Date of Termination
the aggregate of the following amounts:
A. the sum of (1)Ethe ExecutiveOs Annual Base
Salary through the Date of Termination to the extent
not theretofore paid, plus (2)Ethe product of (x)Ethe
higher of (I)Ethe Recent Annual Bonus and (II)Ethe
Annual Bonus paid or payable, including any bonus or
portion thereof which has been earned but deferred
(and annualized for any fiscal year consisting of
less than twelve full months or during which the
Executive was employed for less than twelve full
months), for the most recently completed fiscal year
during the Employment Period, if any (such higher
amount being hereinafter referred to as the OHighest
Annual BonusO) multiplied by (y)Ea 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 plus (3)Eany
compensation previously deferred by the Executive
(together with any accrued interest or earnings
thereon) and any accrued vacation pay, in each case
to the extent not theretofore paid (the sum of the
amounts described in clausesE(1), (2) and (3) are
hereinafter referred to as the OAccrued
ObligationsO); and
B. the amount equal to the product of (1) two
multiplied by (2)Ethe sum of (x)Ethe ExecutiveOs
Annual Base Salary plus (y)Ethe Highest Annual Bonus;
(ii) the Company shall credit as of the Date of
Termination the Account of the Executive under the
Littelfuse, Inc. Supplemental Executive Retirement Plan
(hereinafter referred to as the OSERPO) with an amount
equal to the sum of the two respective amounts which would
be credited to the Account of the Executive under the SERP
on the two Valuation Dates (as such term is defined in the
SERP) next succeeding the Date of Termination assuming (A)
the Executive would continue to be employed by the Company
up to and including said second Valuation Date
(hereinafter said period from the Date of Termination
until said second Valuation Date is referred to as the
OAssumed Employment PeriodO), (B) the Compensation (as
such term is defined in the SERP) of the Executive during
each fiscal year during the Assumed Employment Period
would be equal to the amount of the Compensation of the
Executive during the most recently ended Plan Year (as
such term is defined in the SERP) prior to the Date of
Termination, and (C) the Company would continue the SERP
up to and including said second Valuation Date; provided,
however, that if the Executive would reach the age of 62
prior to the expiration of the Assumed Employment Period,
no amounts shall be credited to the Account of the
Executive under the SERP for any Valuation Date occurring
after the date that the Executive reaches age 62;
(iii) during the two years following the Date of
Termination, the Company shall continue to provide medical
insurance benefits to the Executive and/or the ExecutiveOs
family at least equal to those which would have been
provided to them in accordance with the medical insurance
benefits described in SectionE4(b)(iv) hereof if the
ExecutiveOs employment had not been terminated; provided,
however, that if the Executive becomes reemployed with
another employer and is eligible to receive medical
insurance benefits under another employer-provided plan,
the medical insurance benefits described herein shall be
secondary to those provided under such other plan during
such applicable period of eligibility;
(iv) 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
under any plan, program, policy or practice or contract or
agreement of the Company and its affiliated companies
(such other amounts and benefits shall hereinafter be
referred to collectively as the OOther BenefitsO); and
(v) notwithstanding anything to the contrary
contained in any employment agreement, benefit plan or
other document, in the event the ExecutiveOs employment
shall be terminated during the Employment Period by the
Executive for Good Reason or by the Company other than for
Cause or Disability, on and after the Date of Termination
the Executive shall not be bound or prejudiced by any non-
competition agreement benefitting the Company or its
subsidiaries, and any provisions contained in the SERP
which would penalize the Executive for being employed by a
competitor, including, without limitation, Section 3.6(c)
thereof, shall not apply in any respect to the Executive
and, effective as of the Date of Termination, the Company
waives any right to enforce any such provisions against
the Executive.
(b) Death. If the ExecutiveOs employment is terminated
by reason of the ExecutiveOs death during the Employment
Period, this Agreement shall terminate without further
obligations by the Company to the ExecutiveOs legal
representatives under this Agreement, other than for payment of
Accrued Obligations and the timely payment or provision of
Other Benefits. Accrued Obligations shall be paid to the
ExecutiveOs 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 OOther
BenefitsO as utilized in this SectionE6(b) shall include,
without limitation, and the ExecutiveOs estate and/or
beneficiaries shall be entitled to receive, benefits at least
equal to the most favorable benefits provided by the Company
and affiliated companies to the estates and beneficiaries of
peer executives of the Company and such affiliated companies
under such plans, programs, practices and policies relating to
death benefits, if any, as in effect with respect to other peer
executives and their beneficiaries at any time during the 120-
day period immediately preceding the Effective Date.
(c) Disability. If the ExecutiveOs employment is
terminated by reason of the ExecutiveOs Disability during the
Employment Period, this Agreement shall terminate without
further obligations by the Company to the Executive under this
Agreement, other than for payment of Accrued Obligations and
the timely payment or provision of Other Benefits. Accrued
Obligations shall be paid to the Executive in a lump sum in
cash within 30 days of the Date of Termination. With respect
to the provision of Other Benefits, the term OOther BenefitsO
as utilized in this SectionE6(c) shall include, and the
Executive shall be entitled after the Disability Effective Date
to 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 120-day period immediately preceding the
Effective Date.
(d) Cause; Other than for Good Reason. If the
ExecutiveOs employment shall be terminated for Cause during the
Employment Period, this Agreement shall terminate without
further obligations to the Executive other than the obligation
to pay to the Executive (x)Ehis Annual Base Salary through the
Date of Termination, (y)Ethe amount of any compensation
previously deferred by the Executive, and (z)EOther Benefits,
in each case to the extent theretofore unpaid. If the
Executive voluntarily terminates his employment during the
Employment Period, excluding a termination for Good Reason,
this Agreement shall terminate without further obligations of
the Company to the Executive under this Agreement, other than
for payment of 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 30 days of the Date of Termination and the Company
shall timely pay or provide the Other Benefits to the
Executive. In no event shall the Executive be liable to the
Company for any damages caused by such voluntary termination by
the Executive nor shall the Executive be in any way restricted
from being employed by any other party after such voluntary
termination.
SectionE7. Nonexclusivity of Rights. Nothing in this
Agreement shall prevent or limit the ExecutiveOs 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, subject to
SectionE12(f) hereof, 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.
SectionE8. Full Settlement. The CompanyOs 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 such amounts shall
not be reduced whether or not the Executive obtains other
employment. The Company agrees to pay as incurred, to the
fullest extent permitted by law, all legal fees and expenses
which the Executive may reasonably incur as a result of any
contest by the Company, the Executive or others in which the
Executive is the prevailing party and which involves or relates
to 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 from the due
date thereof until paid at the prime rate from time to time
reported in The Wall Street Journal during said period.
SectionE9. Certain Additional Payments by the Company.
(a)EAnything in this Agreement to the contrary notwithstanding
and except as set forth below, in the event it shall be
determined that any payment or distribution by the Company to
or for the benefit of the Executive (whether paid or payable or
distributed or distributable pursuant to the terms of this
Agreement or otherwise, but determined without regard to any
additional payments required under this SectionE9) (hereinafter
referred to collectively as a OPaymentO) would be subject to
the excise tax imposed by SectionE4999 of the Code or any
interest or penalties are incurred by the Executive with
respect to such excise tax (such excise tax, together with any
such interest and penalties, are hereinafter collectively
referred to as the OExcise TaxO), then the Executive shall be
entitled to receive an additional payment (a OGross-Up
PaymentO) in an amount such that, after payment by the
Executive of all taxes (including any interest or penalties
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.
(b) Subject to the provisions of SectionE9(c) hereof, all
determinations required to be made under this SectionE9,
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
Ernst & Young LLP or such other independent certified public
accounting firm as may be designated by the Executive
(hereinafter referred to as the OAccounting FirmO) 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 SectionE9,
shall be paid by the Company to the Executive within five days
of the receipt of the Accounting FirmOs determination. 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 SectionE4999 of the Code 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 (hereinafter referred to
as the OUnderpaymentO) consistent with the calculations
required to be made hereunder. In the event that the Company
exhausts its remedies pursuant to SectionE9(c) hereof 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 and any such Underpayment
shall be promptly paid by the Company to or for the benefit of
the Executive.
(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. Such notification shall be given as soon as
practicable but no later than ten 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 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 effectively to 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 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 SectionE9(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 to 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 advance the
amount of such payment to the Executive, on an interest-free
basis and 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 advance or with respect to any imputed
income with respect to such advance. The CompanyOs control of
any such 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 SectionE9(c) hereof, the
Executive becomes entitled to receive any refund with respect
to such claim, the Executive shall (subject to the CompanyOs
complying with the requirements of SectionE9(c) hereof)
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 SectionE9(c)
hereof, 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 30
days after 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.
SectionE10. Confidential Information. 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 ExecutiveOs 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). After termination of the ExecutiveOs employment
with the Company, the Executive shall not, without the prior
written consent of the Company or as may otherwise be required
by law or legal process, communicate or divulge any such
information, knowledge or data to anyone other than the Company
and those designated by it. In no event shall an asserted
violation of the provisions of this SectionE10 constitute a
basis for deferring or withholding any amounts otherwise
payable to the Executive under this Agreement. The provisions
of this Section 10 shall survive any termination of this
Agreement or any termination of the employment of the Executive
with the Company.
SectionE11. Successors. (a)EThis 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 ExecutiveOs legal representatives.
(b) This Agreement shall inure to the benefit of and be
binding upon the Company and its successors and assigns.
(c) The Company will require any successor (whether
direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or
assets of the Company to assume expressly and agree to perform
this Agreement in the same manner and to the same extent that
the Company would be required to perform it if no such
succession had taken place. As used in this Agreement, the
term OCompanyO 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.
SectionE12. Miscellaneous. (a)EThis Agreement shall be
governed by and construed in accordance with the laws of the
State of Illinois, without reference to principles of conflict
of laws. 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) Each notice, request, demand, approval or other
communication which may be or is required to be given under
this Agreement shall be in writing and shall be deemed to have
been properly given when delivered personally at the address
set forth below for the intended party during normal business
hours at such address, when sent by facsimile or other
electronic transmission to the respective facsimile
transmission numbers of the parties set forth below with
telephone confirmation of receipt, or when sent by recognized
overnight courier or by the United States registered or
certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Company:
Littelfuse, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President (unless the Executive is
the President, in which case the
communication should be to the
attention of all of the Directors
of the Company other than the
Executive)
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Confirm: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Executive:
-----------------------------
Notices shall be given to such other addressee or address, or
both, or by way of such other facsimile transmission number, as
a particular party may from time to time designate by written
notice to the other party hereto. Each notice, request,
demand, approval or other communication which is sent in
accordance with this Section shall be deemed given and received
for all purposes of this Agreement as of two business days
after the date of deposit thereof for mailing in a duly
constituted United States post office or branch thereof, one
business day after deposit with a recognized overnight courier
service or upon confirmation of receipt of any facsimile
transmission. Notice given to a party hereto by any other
method shall only be deemed to be given and received when
actually received in writing by such party.
(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, local or foreign
taxes as shall be required to be withheld pursuant to any
applicable law or regulation.
(e) The ExecutiveOs or the CompanyOs failure to insist
upon strict compliance with any provision of this Agreement or
the failure to promptly 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 SectionE5(c)(i)-(v) hereof, 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 Oat willO and, subject to
SectionE1(a) hereof and/or any other written agreement between
the Executive and the Company, prior to the Effective Date the
ExecutiveOs employment and/or this Agreement may be terminated
by either the Executive or the Company at any time prior to the
Effective Date upon written notice to the other party, in which
case the Executive shall have no further rights under this
Agreement. From and after the Effective Date, this Agreement
shall supersede any other agreement between the parties with
respect to the subject matter hereof.
(g) This Agreement may be executed in two or more
counterparts, all of which taken together shall constitute one
and the same agreement.
In Witness Whereof, the parties hereto have executed this
Change of Control Employment Agreement as of the day and year
first above written.
__________________________
_____
Littelfuse, Inc.
By
Its
