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Exhibit 99.07
SEVERANCE PROTECTION AGREEMENT
THIS AGREEMENT made as of the 22nd day of July, 1996, by and
between Tylan General, Inc. (the "Company") and Xxxxx X. Xxxxxx (the
"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 the
Executive in the event of a threat or occurrence of a Change in Control and to
ensure his continued dedication and efforts in such event without undue concern
for his personal financial and employment security; and
WHEREAS, in order to induce the 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 the
Executive to provide the Executive with certain benefits in the event his
employment is terminated as a result of, or in connection with, a Change in
Control and to provide the Executive with certain other benefits whether or not
the Executive's employment is terminated.
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 the
date hereof and shall continue in effect until December 31, 1998; provided,
however, that on December 31, 1997 and on each anniversary thereof, the term of
this Agreement shall be automatically extended for one year unless either the
Company or the Executive shall have given written notice to the other prior
thereto that the term of this Agreement shall not be so extended; and provided,
further, however, that notwithstanding any such notice by the Company not to
extend, the term of this Agreement shall not expire prior to the expiration of
15 months after the occurrence of a Change in Control.
2. Definitions.
2.1 Accrued Compensation. For purposes of this Agreement,
"Accrued Compensation" shall mean an amount which shall include all
amounts earned or accrued through the "Termination Date" (as
hereinafter defined) but not paid as of the Termination Date including
(i) base salary, (ii) reimbursement for reasonable and necessary
expenses incurred by the Executive on behalf of the Company ending on
the Termination Date, (iii) vacation and sick leave pay (to the extent
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provided by Company policy or applicable law), and (iv) bonuses and
incentive compensation (other than the "Pro Rata Bonus" (as hereinafter
defined)).
2.2 Base Amount. For purposes of this Agreement, "Base Amount"
shall mean the greater of (a) the Executive's annual base salary at the
rate in effect immediately prior to the Change in Control and (b) the
Executive's annual base salary at the rate in effect on the Termination
Date, and shall include all amounts of his base salary that are
deferred under the qualified and non-qualified employee benefit plans
of the Company or any other agreement or arrangement.
2.3 Bonus Amount. For purposes of this Agreement, "Bonus
Amount" shall mean the greater of the Executive's annual bonus (without
giving effect to any pro ration) for the fiscal year in which a Change
in Control has occurred and the Executive's annual bonus (without
giving effect to any pro ration) for the fiscal year in which the
Termination Date occurs (calculated in accordance with any plan,
policy, agreement, or arrangement pursuant to which the Executive is
entitled to an annual bonus).
2.4 Cause. For purposes of this Agreement, a termination of
employment is for "Cause" if the Executive has been convicted of a
felony involving moral turpitude or the termination is evidenced by a
resolution adopted in good faith by two-thirds of the Board that the
Executive (a) intentionally and continually failed substantially to
perform his reasonably assigned duties with the Company (other than a
failure resulting from the Executive's incapacity due to physical or
mental illness or from the Executive's assignment of duties that would
constitute "Good Reason" as hereinafter defined) which failure
continued for a period of at least thirty days after a written notice
of demand for substantial performance has been delivered to the
Executive specifying the manner in which the Executive has failed
substantially to perform, or (b) intentionally engaged in conduct which
is demonstrably and materially injurious to the Company; provided,
however, that no termination of the Executive's employment shall be for
Cause until (x) there shall have been delivered to the Executive a copy
of a written notice setting forth that the Executive was guilty of the
conduct set forth in this Section 2.4 and specifying the particulars
thereof in detail, and (y) the Executive shall have been provided an
opportunity to be heard in person by the Board (with the assistance of
the Executive's counsel if the Executive so desires). Neither an act
nor a failure to act, on the Executive's part shall be considered
"intentional" unless the Executive has acted or failed to act with a
lack of good faith and with a lack of reasonable belief that the
Executive's action or failure to act was in the best interest of the
Company. Notwithstanding anything contained in this Agreement to the
contrary, no failure to perform by the Executive after a Notice of
Termination is given by the Executive shall constitute Cause for
purposes of this
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Agreement.
2.5 Change in Control. For purposes of this Agreement, a "Change
in Control" shall mean any of the following events:
(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(d) or 14(d) of the Securities Exchange Act
of 1934, as amended (the "1934 Act")) immediately after which such
Person has "Beneficial Ownership" (within the meaning of Rule
13d-3 promulgated under the 0000 Xxx) of thirty percent or more of
the combined voting power of the Company's then outstanding Voting
Securities; provided, however, that 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 (x) the Company or (y) 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,
or (3) any Person in connection with a "Non-Control Transaction."
(b) The individuals who, as of the date hereof, are
members of the Board (the "Incumbent Board"), cease for any reason
to constitute at least two-thirds of the Board; provided, however,
that if the election, or nomination for election by the Company's
stockholders, of any new director was approved by a vote of at
least two-thirds of the then Incumbent Board, such new director
shall, for purposes of this Agreement, be considered as a member
of the Incumbent Board; provided, further, however, that no
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; or
(c) Approval by stockholders of the Company of:
(1) A merger, consolidation or
reorganization involving the Company, unless
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(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 seventy percent of the
combined voting power of the outstanding Voting Securities of the
corporation resulting from such merger or 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,
and
(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 two-thirds of the members of
the board of directors of the Surviving Corporation or a
corporation beneficially owning, directly or indirectly, a
majority of the Voting Securities 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 fifteen percent or more of the then outstanding Voting
Securities) owns, directly or indirectly, fifteen percent or more
of the combined voting power of the Surviving Corporation's then
outstanding voting securities, and
(D) a transaction described in clauses (A)
through (C) shall herein be referred to as a "Non-Control
Transaction";
(2) A complete liquidation or dissolution of the
Company; or
(3) 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
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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 Change in Control would
occur (but for 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 which
increases the percentage of the then outstanding Voting Securities
Beneficially Owned by the Subject Person, then a Change in Control
shall occur.
(d) Notwithstanding anything contained in this
Agreement to the contrary, if the Executive's employment is
terminated prior to a Change in Control and the Executive
reasonably demonstrates 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
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
the Executive shall mean the date immediately prior to the date of
such termination of the Executive's employment.
2.6 Company. For purposes of this Agreement, the "Company"
shall include the Company's "Successors and Assigns" (as hereinafter
defined).
2.7 Disability. For purposes of this Agreement, "Disability"
shall mean a physical or mental infirmity which impairs the Executive's
ability to substantially perform his duties with the Company for a
period of one hundred eighty consecutive days and the Executive has not
returned to his full time employment prior to the Termination Date as
stated in the "Notice of Termination" (as hereinafter defined).
2.8 Good Reason (a)For purposes of this Agreement, "Good
Reason" shall mean the occurrence after a Change in Control of any of
the events or conditions described in subsections (1) through (9)
hereof:
(1) a change in the Executive's status, title,
position or responsibilities (including reporting
responsibilities) which, in the Executive's reasonable judgment,
represents an adverse change from his status, title, position or
responsibilities as in effect at any time within ninety days
preceding the date of a Change in Control or at any time
thereafter; the assignment to the Executive of any duties or
responsibilities which, in the Executive's reasonable judgment,
are inconsistent with his status, title, position or
responsibilities as in effect at any time within ninety days
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preceding the date of a Change in Control or at any time
thereafter; or any removal of the Executive from or failure to
reappoint or reelect him to any of such offices or positions,
except in connection with the termination of his employment for
Disability, Cause, as a result of his death or by the Executive
other than for Good Reason; provided, however, that, for purposes
of this Section 2.8(a)(1), the fact that a Change in Control has
occurred, in and of itself, shall not be deemed to constitute Good
Reason;
(2) a reduction in the Executive's base salary
or any failure to pay the Executive any compensation or benefits
to which he is entitled within five days of notice thereof;
(3) any event or occurrence constituting "good
reason," as it may be defined in any agreement between the
Executive and the Company or any of its affiliates;
(4) the Company's requiring the Executive to be
based at any place outside a 25-mile radius from the Executive's
primary place of employment (at the time of the Change of
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;
(5) the failure by the Company to provide the
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 the Executive was
participating at any time within ninety days preceding the date of
a Change in Control or at any time thereafter;
(6) 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 days;
(7) any material breach by the Company of any
provision of this Agreement;
(8) any purported termination of the
Executive's employment for Cause by the Company which does not
comply with the terms of Section 2.4; or
(9) the failure of the Company to obtain an
agreement, satisfactory to the Executive, from any Successors and
Assigns to assume and agree to perform this Agreement, as
contemplated in Section 7 hereof.
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(b) Any event or condition described in Section
2.8(a)(1) through (9) which occurs prior to a Change in Control
but which the Executive reasonably demonstrates (1) was at the
request of a Third Party, or (2) 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) The Executive's right to terminate his employment
pursuant to this Section 2.8 shall not be affected by his
incapacity due to a Disability
2.9 Notice of Termination. For purposes of this Agreement,
following a Change in Control, "Notice of Termination" shall mean a
written notice of termination from the Company of the 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
the Executive's employment under the provision so indicated.
2.10 Pro Rata Bonus. For purposes of this Agreement, "Pro Rata
Bonus" shall have the meaning ascribed to such term in any agreement
between the Executive and the Company or any of its affiliates, or if
no such agreement with respect to such term exists, shall mean an
amount equal to (a) the Bonus Amount, multiplied by a fraction, (i) the
numerator of which is the number of days from the first day of the
Company's fiscal year in which the Executive ceases to be employed by
the Company until the Termination Date, and (ii) the denominator of
which is 365, less (b) any bonus included in the Bonus Amount in
respect of such fiscal year and previously paid.
2.11 Successors and Assigns. For purposes of this Agreement,
"Successors and Assigns" shall mean a corporation or other entity
acquiring all or substantially all the assets and business of the
Company whether by operation of law or otherwise, and any affiliate of
such Successors and Assigns.
2.12 Termination Date. For purposes of this Agreement,
"Termination Date" shall mean (a) in the case of the Executive's death,
his date of death, (b) in the case of Good Reason, the last day of his
employment, and (c) in all other cases, the date specified in the
Notice of Termination; provided, however, that if the Executive's
employment is terminated by the Company for Cause or due to Disability,
the date specified in the Notice of Termination shall be at least 30
days from the date the Notice of Termination is given to the Executive,
provided that in the case of Disability the Executive shall not have
returned to the full-time performance of his duties during such period
of at least 30 days.
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3. Termination of Employment.
3.1 Severance Pay and Benefits. If, during the term of this
Agreement, the Executive shall cease to be employed by Company prior to
the expiration of 15 months after the occurrence of a Change in
Control, the Executive shall be entitled to the following compensation
and benefits:
(a) If the Executive's employment with the Company
shall be terminated at any time prior to the expiration of 15
months after the occurrence of the Change in Control (x) by reason
of the Executive's death or (y) by the Company for Disability, the
Company shall pay to the Executive the Accrued Compensation plus
the Pro Rata Bonus.
(b) During the period commencing on the date of the
Change in Control and ending on the 90th day thereafter (the
"Window Period"), if the Executive's employment with the Company
shall be terminated (other than by reason of the Executive's death
and other than by the Company for Disability), whether at the
instigation of the Executive or the Company, with or without
Cause, for Good Reason or not, the Executive shall be entitled to
the following:
(1) the Company shall pay the Executive all
Accrued Compensation and a Pro-Rata Bonus;
(2) the Company shall pay the Executive as
severance pay and in lieu of any further compensation for
periods subsequent to the Termination Date, in a single
payment an amount in cash equal to two and one-half times the
sum of (A) the Base Amount and (B) the Bonus Amount; provided,
however, that if and only if the Executive's employment with
the Company is terminated for the reasons set forth in Section
8(c) of that certain Employment Agreement between Vacuum
General, Inc. and the Executive, dated October 5, 1989, as it
may be amended, supplemented, restated or replaced from time
to time, including any such amendment, supplement, restatement
or replacement that is between the Company and the Executive
(the "Existing Employment Agreement") and the Executive elects
to require the Company to enter into a consulting contract
with the Executive in accordance with Section 8(c) of the
Existing Employment Agreement, the amount payable to the
Executive pursuant to this subsection 2 shall be reduced by an
amount equal to the aggregate amount payable or paid to the
Executive pursuant to Sections 8(c)(2)(i) and 8(c)(2)(iv) of
the Existing Employment Agreement but in any event the amount
payable to the Executive pursuant to this subsection 2 shall
not be reduced to an amount less than zero; and provided,
further, that if any
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amount payable to the Executive pursuant to Sections 8(c)(2)(i)
and 8(c)(2)(iv) of the Existing Employment Agreement is not
actually paid to the Executive (for whatever reason or no reason,
whether in accordance with the last sentence of Section 8(c)(1) of
the Existing Employment Agreement or otherwise) within the one
year period subsequent to the Termination Date, all remaining
unpaid amounts described in Sections 8(c)(2)(i) and 8(c)(2)(iv) of
the Existing Employment Agreement shall become immediately due and
payable by the Company pursuant to this Agreement with interest at
the prime rate plus 2% or at the maximum rate permitted by
applicable law, if lower (for purposes of this subsection 2, the
prime rate will be the prime commercial lending rate as announced
from time to time by Bank of America NT&SA, or its successor, as
in effect at the close of business on the business day preceding
the Termination Date); and
(3) for a number of months equal to 30 (the
"Continuation Period"), the Company shall at its expense continue
on behalf of the Executive and his dependents and beneficiaries
the medical, dental and hospitalization benefits provided (x) to
the Executive at any time during the 90-day period prior to the
Change in Control or at any time thereafter or (y) to other senior
executives who continue in the employ of the Company during the
Continuation Period. The coverage and benefits (including
deductibles and costs) provided in this Section 3.1(b)(3) during
the Continuation Period shall be no less favorable to the
Executive and his dependents and beneficiaries, than the most
favorable of such coverages and benefits described in clauses (x)
and (y) herein. The Company's obligation hereunder with respect to
the foregoing benefits shall be limited to the extent that the
Executive obtains any such benefits pursuant to a subsequent
employer's benefit plans, in which case the Company may reduce the
coverage of any benefits it is required to provide the Executive
hereunder as long as the aggregate coverages and benefits of the
combined benefit plans is no less favorable to the Executive than
the coverages and benefits required to be provided hereunder. This
subsection (3) shall not be interpreted so as to limit any
benefits to which the Executive, his dependents or beneficiaries
may be entitled under any of the Company's employee benefit plans,
programs or practices following the Executive's termination of
employment, including without limitation, retiree medical and life
insurance benefits.
(c) After the expiration of the Window Period and
prior to the expiration of 15 months after the occurrence of the
Change in Control, if the Executive's employment with the Company
shall be terminated (other than by
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reason of the Executive's death and other than by the Company for
Disability) (x) by the Company for any reason other than for Cause
or (y) by the Executive for Good Reason, the Executive shall be
entitled to the compensation and benefits described in subsections
(1) through (3) in Section 3.1(b) above.
(d) After the expiration of the Window Period and
prior to the expiration of 15 months after the occurrence of the
Change of Control, if the Executive's employment with the Company
shall be terminated by the Executive other than for Good Reason,
the Company shall pay to the Executive the Accrued Compensation
plus the Pro Rata Bonus.
(e) After the expiration of the Window Period and
prior to the expiration of 15 months after the occurrence of the
Change of Control, if the Executive's employment with the Company
shall be terminated by the Company for Cause, the Company shall
pay to the Executive the Accrued Compensation.
3.2 Payment Form. The amounts provided for in Sections 3.1 and
3.1(b)(1) and (2) shall be paid in a single lump sum cash payment
within five days after the Executive's Termination Date (or earlier, if
required by applicable law).
3.3 No Mitigation. 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 the Executive in any subsequent employment except as
provided in Section 3.1(b)(3).
3.4 Other Severance Arrangements. Whether or not any Change in
Control shall occur, the following shall apply:
(a) The Existing Employment Agreement shall continue
in full force and effect in accordance with its terms.
(b) The Executive's entitlement to any other
compensation or benefits or any indemnification shall be
determined in accordance with the Company's employee benefit
plans, bonus plan and other applicable programs, policies and
practices or any indemnification agreement then in effect.
4. Notice of Termination. Following a Change in Control, any purported
termination of the Executive's employment by either party shall be communicated
by Notice of Termination to the other party. For purposes of this Agreement, no
such purported termination shall be effective without such Notice of
Termination.
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5. Excise Tax Limitation.
5.1 Notwithstanding anything contained in this Agreement to
the contrary, to the extent that any payment or distribution of any
type to or for the benefit of the Executive (the "Severance Benefit")
would be subject to the excise tax (the "Excise Tax") imposed under
Section 4999 of the Internal Revenue Code of 1986, as amended (the
"Code"), the Severance Benefit shall be reduced (but not below zero) if
and to the extent that a reduction in the Severance Benefit would
result in the Executive retaining a larger amount, on an after-tax
basis (taking into account federal, state and local income taxes and
the Excise Tax), than if the Executive received the entire amount of
such Severance Benefit. Unless the Executive shall have given prior
written notice specifying a different order to the Company to
effectuate the foregoing, the Company shall reduce or eliminate the
Severance Benefit, by first reducing or eliminating the portion of the
Severance Benefit which is not payable in cash and then by reducing or
eliminating cash payments, in each case in reverse order beginning with
payments or benefits which are to be paid the farthest in time from the
Determination (as hereinafter defined).
5.2 The initial determination of whether the Severance Benefit
shall be reduced as provided in Section 5.1 and the amount of such
reduction shall be made at the Company's expense by an accounting firm
selected by the Company from among the six largest accounting firms in
the United States (the "Accounting Firm"). The Accounting Firm shall
provide its determination (the "Determination"), together with detailed
supporting calculations and documentation to the Company and the
Executive within ten days of the Termination Date. If the Accounting
Firm determines that no Excise Tax is payable by the Executive with
respect to a Severance Benefit, it shall furnish the Executive with an
opinion reasonably acceptable to the Executive that no Excise Tax will
be imposed with respect to any such Severance Benefit, and such
Determination shall be binding, final and conclusive upon the Company
and the Executive. If the Accounting Firm determines that an Excise Tax
would be payable, the Executive shall have the right to accept the
Determination of the Accounting Firm to the extent of the reduction, if
any, pursuant to Section 5.1, or to have such Determination reviewed by
an accounting firm selected by the Executive, at the expense of the
Company, in which case the determination of such second accounting firm
shall be binding, final and conclusive upon the Company and Executive.
6. Successors; Binding Agreement.
6.1 This Agreement shall be binding upon and shall inure to
the benefit of the Company, its Successors and Assigns, and the Company
shall require any
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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 the Executive, his 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 the Executive's legal personal representative.
7. Fees and Expenses. The Company shall pay all legal fees and related
expenses (including the costs of experts, evidence and counsel) reasonably
incurred by the Executive as they become due as a result of (a) the Executive
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 the Dispute, and (b) the Executive's hearing before the Board as
contemplated in Section 2.4 of this Agreement; provided, however, that the
circumstances set forth in clause (a) (other than as a result of the Executive's
termination of employment under circumstances described in Section 2.5(d))
occurred on or after a Change in Control.
8. Notice. For the purposes of this Agreement, notices and all other
communications provided for in the 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, by overnight courier or by facsimile, addressed to the
respective addresses and facsimile numbers 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 limit the 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 (other than
such policies, plans, programs or practices set forth in the Existing Employment
Agreement, which in accordance with Section 3.4(a) and subject to Section 16,
shall continue in full force and effect)) and for which the Executive may
qualify, nor shall anything herein limit or reduce such rights as the Executive
may have under any other agreements with the Company (except for any severance
or termination agreement (other than the Existing Employment Agreement, which in
accordance with Section 3.4(a) and subject to Section 16, shall continue in full
force and effect)). Amounts which are vested benefits or which the Executive is
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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. No Guaranteed Employment. The Executive and the Company acknowledge
that, except as may otherwise be provided under any other written agreement
between the Executive and the Company, the employment of the Executive by the
Company is "at will" and may be terminated by either the Executive or the
Company at any time.
11. Settlement of Claims. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any circumstances, including, without
limitation, any set-off, counterclaim, recoupment, defense or other right which
the Company may have against the Executive or others.
12. Mutual Non-Disparagement. The Executive agrees that it will not
make or publish any statement critical of the Company, its affiliates and their
respective executive officers and directors, or in any way adversely affecting
or otherwise maligning the business or reputation of any member of the Company,
its affiliates and subsidiaries and their respective officers, directors and
employees. The Company, its affiliates and subsidiaries agree and the Company
shall use its best efforts to cause their respective executive officers and
directors to agree, that they will not make or publish any statement critical of
the Executive, or in any way adversely affecting or otherwise maligning the
Executive's reputation.
13. Miscellaneous. 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 the 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
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not expressly set
forth in this Agreement.
14. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of California without
giving effect to the conflict of laws principles thereof. Any action brought by
any party to this Agreement shall be brought and maintained in a court of
competent jurisdiction in San Diego county in the State of California.
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15. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof, and, in
such event, such provision shall be changed and interpreted so as to best
accomplish the objectives of such invalid or unenforceable provision within the
limits of applicable law or applicable court decisions.
16. Entire Agreement. This Agreement, together with the Existing
Employment Agreement, constitutes the entire agreement between the parties
hereto and supersedes all prior agreements (other than the Existing Employment
Agreement), if any, understandings and arrangements, oral or written, 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 the Executive has executed this
Agreement as of the day and year first above written.
TYLAN GENERAL, INC.
ATTEST: By: /s/ Xxx X. Xxxxxxx
------------------------
Xxx X. Xxxxxxx
Vice Chairman and Chief
Administrative Officer
By: /s/ Xxxxx X. Xxxxxx
------------------------
Xxxxx X. Xxxxxx
