EXHIBIT (10)-2 Executive Officer Form
CHANGE-IN-CONTROL SEVERANCE AGREEMENT
THIS AMENDED AND RESTATED CHANGE-IN-CONTROL SEVERANCE AGREEMENT (this
"Agreement") by and between AEROQUIP-XXXXXXX, INC., an Ohio corporation (the
"Company"), and __________________ (the "Executive"), dated this ___ day of
June, 1998.
WITNESSETH THAT:
WHEREAS, the Company recognizes that today's business environment makes
it difficult to attract and retain highly qualified executive and key
professional personnel unless a degree of security can be offered to those
individuals against organizational and personnel changes which frequently
follow a change in control of a corporation; and
WHEREAS, even rumors of change-in-control transactions may cause key
employees to consider major career changes in an effort to assure financial
security for themselves and their families; and
WHEREAS, the Company desires to assure fair treatment of its key
employees in the event of a change in control and to allow them to make
critical career decisions without undue time pressure and financial
uncertainty, increasing their willingness to remain with the Company
notwithstanding the outcome of a possible change-in-control transaction; and
WHEREAS, the Company recognizes that many of its key management
employees will be involved in evaluating or negotiating any offers, proposals,
or other transactions which could result in a change in control of the Company
and, recognizing the fiduciary obligations of such executives, believes that
it is in the best interests of the Company and its shareholders to provide
additional assurance that such key employees are in a position, free from
personal economic and employment considerations, to be able as a practical
matter to objectively assess and aggressively pursue the interests of the
Company's shareholders in making these evaluations and carrying on such
negotiations;
NOW THEREFORE, the parties agree as follows:
1. Definitions. When used herein, the following terms shall
have the meanings set forth below:
A. "Average Total Compensation" shall mean the sum
of the amounts determined under clauses (i) and (ii) below.
(i) The higher of the Executive's annual
base salary (without giving effect to any elected
deferrals to a plan under Section 401(k) of the
Internal Revenue Code of 1986, as amended (the
"Code") or any similar qualified or nonqualified
plan) in effect on (x) the day immediately prior to
the day on which the Change in Control occurred, or
(y) the Executive's Resignation Date or Termination
Date, as the case may be.
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(ii)(a) If the Executive has been
employed by the Company for the last three full
consecutive calendar years, the average of the two
highest aggregate short-term annual incentive
awards received by the Executive under the
Incentive Compensation Plan attributable to
services performed by the Executive during any
calendar year in the last five full calendar years
(without regard to when such awards were paid or
accrued); or
(ii)(b) If the Executive has been
employed by the Company for at least one, but less
than three full consecutive calendar years, the
average of the aggregate short-term annual
incentive awards received by the Executive under
the Incentive Compensation Plan attributable to
services performed by the Executive during each
full calendar year he has been employed by the
Company (without regard to when such awards were
paid or accrued); or
(ii)(c) If the Executive has been
employed by the Company for less than one full
calendar year, the greater of (x) his guaranteed
annual incentive compensation or (y) the aggregate
short-term annual incentive awards to which the
Executive would have been entitled under the
Incentive Compensation Plan of which the Executive
was a participant on the Termination Date or
Resignation Date, as the case may be, if he had
worked for one full calendar year at the base
salary determined under clause (i) above.
B. A "Beneficial Owner" of Voting Stock is any
Person who would be deemed to beneficially own such Voting
Stock within the meaning of Rule 13d-3 promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), or any successor rules or regulations thereto.
C. "Benefit Period" shall mean a period of two
years, commencing with the Termination Date or Resignation
Date, except that if the Executive will reach age 65 within
two years after the Termination Date or Resignation Date,
the Benefit Period shall mean a period of years, including
fractional years, commencing with the Termination Date or
Resignation Date and ending on the Executive's 65th
birthday.
D. "Cause" shall mean that, prior to any
Termination, the Executive shall have committed:
(i) an intentional act of fraud,
embezzlement or theft in connection with his duties or
in the course of his employment with the Company or
any Operating Company;
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(ii) intentional wrongful damage to
property of the Company or any Operating Company;
(iii) intentional wrongful disclosure of
secret processes or confidential information of the
Company or any Operating Company; or
(iv) intentional wrongful engagement in
any Competitive Activity;
and any such act shall have been materially
harmful to the Company. For purposes of this Agreement, no
act, or failure to act, on the part of the Executive shall
be deemed "intentional" if it was due primarily to an error
in judgment or negligence, but shall be deemed "intentional"
only if done, or omitted to be done, by the Executive not in
good faith and without reasonable belief that his action or
omission was in the best interest of the Company.
Notwithstanding anything in this Agreement to the contrary,
the Executive shall not be deemed to have been terminated
for "Cause" hereunder 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 Board of Directors of the Company (the
"Board") then in office at a meeting of the Board called and
held for such purpose (after reasonable notice to the
Executive and an opportunity for the Executive, together
with his counsel, to be heard before the Board), finding
that, in the good faith opinion of the Board, the Executive
had committed an act set forth above in this Paragraph 1.D
and specifying the particulars thereof in detail. Nothing
herein shall limit the right of the Executive or his
beneficiaries to contest the validity or propriety of any
such determination.
E. A "Change in Control" shall have occurred if any
of the following events shall occur:
(i) The Company is merged, consolidated
or reorganized into or with another corporation or
other legal person, and as a result of such merger,
consolidation or reorganization less than a majority
of the combined voting power of the then-outstanding
securities of such corporation or person immediately
after such transaction are held in the aggregate by
the holders of Voting Stock immediately prior to such
transaction;
(ii) The Company sells or otherwise
transfers all or substantially all of its assets to
another corporation or other legal person and less
than a majority of the combined voting power of the
then-outstanding securities of such corporation or
person immediately after such transactions are held in
the aggregate by the holders of Voting Stock
immediately prior to such sale;
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(iii) There is a report filed on Schedule
13D or Schedule 14D-1 (or any successor schedule, form
or report), each as promulgated pursuant to the
Exchange Act, disclosing that any Person has become
the Beneficial Owner of 20% or more of the Voting
Stock;
(iv) The Company files a report or proxy
statement with the Securities and Exchange Commission
pursuant to the Exchange Act disclosing in response to
Form 8-K or Schedule 14A (or any successor schedule,
form or report or item therein) that a change in
control of the Company has or may have occurred or
will or may occur in the future pursuant to any then-
existing contract or transaction;
(v) If during any period of two
consecutive years, individuals who at the beginning of
any such period constitute the Directors of the
Company cease for any reason to constitute at least a
majority thereof, unless the election, or the
nomination for election by the Company's shareholders,
of each Director of the Company first elected during
such period was approved by a vote of at least two-
thirds of the Directors of the Company then still in
office who were Directors of the Company at the
beginning of any such period; or
Notwithstanding the foregoing provisions of
Paragraph 1.E(iii) or 1.E(iv) hereof, a "Change in Control"
shall not be deemed to have occurred for purposes of this
Agreement solely because (i) the Company, (ii) an entity in
which the Company directly or indirectly beneficially owns
50% or more of the voting securities, or (iii) any Company-
sponsored employee stock ownership plan or any other
employee benefit plan of the Company or any Operating
Company, either files or becomes obligated to file a report
or a proxy statement under or in response to Schedule 13D or
Schedule 14D-1 (or any successor schedule, form or report or
item therein) under the Exchange Act, disclosing beneficial
ownership by it of shares of Voting Stock, whether in excess
of 20% or otherwise, or because the Company reports that a
change in control of the Company has or may have occurred or
will or may occur in the future by reason of such beneficial
ownership.
F. "Competitive Activity" means the Executive's
participation, without the written consent of an officer of
the Company, in the management of any business enterprise if
such enterprise engages in substantial and direct
competition with the Company and such enterprise's sales of
any product or service competitive with any product or
service of the Company amounted to 10% of such enterprise's
net sales for its most recently completely fiscal year and
if the Company's consolidated net sales of said product or
service amounted to 10% of the Company's consolidated net
sales for
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its most recently completed fiscal year.
"Competitive Activity" will not include (i) the mere
ownership of securities in any such enterprise and the
exercise of rights appurtenant thereto or (ii) participation
in the management of any such enterprise other than in
connection with the competitive operations of such
enterprise.
G. "Incentive Compensation Plan" shall mean the
plan approved by shareholders of the Company on April 19,
1984 (or any Operating Company Incentive Plan) and any
amendments thereto and restatements thereof, or any
successor plan that may become effective subsequent to the
date of this Agreement and prior to a Change in Control.
H. "Operating Company" shall mean any corporation
of which the Company owns directly or indirectly more than
50% of the outstanding stock having by its terms ordinary
voting power to elect a majority of the board of directors
of such corporation, irrespective of whether at the time
stock of any other class or classes of such corporation
shall have or might have voting power by reason of the
happening of any contingency.
I. "Person" shall mean any "person," as the term
"person" is used and defined in Section 14(d)(2) of the
Exchange Act, and any "affiliate" or "associate" of any such
person, as the terms "affiliate" and "associate" are defined
in Rule 12b-2 of the General Rules and Regulations under the
Exchange Act as in effect on the date of this Agreement.
J. "Resignation" shall mean resignation by the
Executive of his employment with the Company if any of the
following has occurred:
(i) Failure to elect or reelect the
Executive to the office or the position, or a
substantially equivalent office or position of or with
the Company and/or an Operating Company which the
Executive held immediately prior to the Change in
Control, or the removal of the Executive as a Director
of the Company (or any successor thereto), if the
Executive shall have been a Director of the Company
immediately prior to the Change in Control;
(ii) A significant adverse change in the
nature or scope of the authorities, powers, functions,
responsibilities or duties attached to the position
with the Company or any Operating Company which the
Executive held immediately prior to the Change in
Control, a reduction in the aggregate Total
Compensation received by the Executive from the
Company and any Operating Company in any calendar year
following the Change in Control, or the termination of
the Executive's rights to any employee benefits to
which he was entitled
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immediately prior to the Change in
Control or a reduction in scope or value thereof
without the prior written consent of the Executive,
any of which is not remedied within 10 calendar days
after receipt by the Company of written notice from
the Executive of such change, reduction or
termination, as the case may be;
(iii) A determination by the Executive
(which determination will be conclusive and binding
upon the parties hereto provided it has been made in
good faith and in all events will be presumed to have
been made in good faith unless otherwise shown by the
Company by clear and convincing evidence) that as a
result of the Change in Control and a change in
circumstances thereafter significantly affecting his
position, including without limitation, a change in
the scope of the business or other activities for
which he was responsible immediately prior to the
Change in Control, he has been rendered substantially
hindered in the performance of, or has suffered a
substantial reduction in, any of the authorities,
powers, functions, responsibilities or duties attached
to the position held by the Executive immediately
prior to the Change in Control, which situation is not
remedied within 10 calendar days after written notice
to the Company from the Executive of such
determination;
(iv) The liquidation, dissolution,
merger, consolidation or reorganization of the Company
or transfer of all or a significant portion of its
business and/or assets, unless the successor or
successors (by liquidation, merger, consolidation,
reorganization or otherwise) to which all or a
significant portion of its business and/or assets have
been transferred (directly or by operation of law)
shall have assumed all duties and obligations of the
Company under this Agreement pursuant to Paragraph 8
hereof;
(v) The Company shall relocate its
principal executive offices, or requires the Executive
to have his principal location of work changed to any
location which is in excess of 25 miles from the
location thereof immediately prior to the Change in
Control or to travel away from his office in the
course of discharging his responsibilities or duties
hereunder significantly more (in terms of either
consecutive days or aggregate days in any calendar
year or in any calendar quarter when annualized for
purposes of comparison to any prior year) than was
required of the Executive prior to the Change in
Control without in either case, his or her prior
written consent; or
(vi) Without limiting the generality or
effect of the foregoing, any material breach of this
Agreement by the Company or any successor thereto.
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K. "Resignation Date" shall be the last day worked
by an Executive who resigns his employment with the Company
as provided in Paragraph 1.J of this Agreement.
L. "Savings Plans" shall mean the Aeroquip-Xxxxxxx
Savings and Profit Sharing Plan and the Aeroquip-Xxxxxxx
Supplemental Benefit Plan and any amendments thereto and
restatements thereof, or any successor plans that may become
effective subsequent to the date of this agreement and prior
to a Change in Control.
M. "Termination" shall mean termination by the
Company of the Executive's employment for any reason other
than the following:
(i) death;
(ii) Total Disability, as defined in the
Company's long-term disability plan then in effect,
and the Executive begins actually to receive
disability benefits pursuant to such disability plan;
or
(iii) Cause.
The Executive may also deem himself to have been
terminated under this Paragraph 1.M if the aggregate cash
compensation (including base salary) (without giving effect
to any elected deferrals to a plan under Section 401(k) of
the Code) plus awards under the Incentive Compensation Plan)
received by the Executive in any calendar year following a
Change in Control is an amount less than the aggregate cash
compensation (including base salary (without giving effect
to any elected deferrals to a plan under Section 401(k) of
the Code) plus awards under the Incentive Compensation Plan)
received by the Executive in the full calendar year
immediately preceding the Change in Control; provided
however, if the Executive was not employed by the Company
during all of the full calendar year immediately preceding
the Change in Control, the amount referred to above with
respect to the full calendar year immediately preceding the
Change in Control shall be the sum of the amounts determined
pursuant to Paragraphs 1.A(i) and 1.A(ii)(c).
N. "Termination Date" shall be the last day worked
by an Executive whose employment with the Company is
terminated by the Company other than for the reasons set
forth in Subparagraphs 1.M(i), (ii) or (iii) of this
Agreement.
O. "Voting Stock" means all outstanding securities
of the Company entitled to vote generally in the election of
directors of the Company at the time in question.
2. Operation of Agreement. This Agreement will be effective
and binding immediately upon its execution, but, anything in this
Agreement to the contrary notwithstanding, this Agreement will not
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be operative unless and until a Change in Control occurs.
Upon the occurrence of a Change in Control at any time during the
Term, without further action, this Agreement shall become
immediately operative.
3. Payments Upon Termination. In the event of Termination
within three years after a Change in Control or Resignation
between six months and two years after a Change in Control, the
Executive shall receive:
A. An amount equal to the Executive's Average Total
Compensation, multiplied by the length in years, including
fractional years, of the Benefit Period. This payment shall
be made by the Company within thirty calendar days after the
Executive's Termination Date or Resignation Date as the case
may be.
B. A payment by the Company (or, if applicable, the
Company shall cause the appropriate Operating Company to
make a payment) in an amount equal to two times the
Company's average aggregate contribution to the Executive's
accounts in the Savings Plans for the last three full years
preceding the Change in Control, to be made within thirty
calendar days after the Executive's Termination Date or
Resignation Date, as the case may be.
C. During the Benefit Period, the benefits
associated with continued participation in the employee
health, life insurance, disability income and other welfare
benefit plans of the Company and/or any Operating Company in
which he was participating immediately prior to the Change
in Control, upon provisions substantially similar to or more
favorable to the Executive than those contained in the
respective plans as of the Termination Date or the
Resignation Date; provided, however, that if participation
by the Executive in any of such plans is not permitted, due
to the requirements for eligibility for participation
contained therein, the Company shall (or shall cause the
applicable Operating Company to) pay or provide for the
payment of the benefits described in those plans to the
Executive and/or his dependents, or, if applicable, to his
beneficiaries or estate as if he were employed by the
Company during the Benefit Period in the position held by
him immediately prior to the Change in Control.
D. Reimbursement for the cost of outplacement
services rendered to the Executive as part of efforts made
by the Executive to obtain employment following his
Termination Date or Resignation Date.
E. If the Executive is a Disqualified Individual
(as the term "Disqualified Individual" is defined in Section
280G of the Code, or any successor provision thereto) and if
any payment to the Executive, whether under this Agreement
or otherwise,
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would be an Excess Parachute Payment (as the
term "Excess Parachute Payment" is defined in Section 280G
of the Code or any successor provision thereto) but for the
application of this sentence, then the amount of the
payments otherwise payable to the Executive pursuant to this
Agreement shall be reduced to the minimum extent necessary
(but in no event to less than zero) so that no portion of
the payments made to the Executive, as so reduced,
constitutes an Excess Parachute Payment. The reduction, if
any, contemplated by the immediately preceding sentence
shall be effected by reducing to the extent necessary the
benefits otherwise to be provided by Paragraph 2.C hereof,
and then, if necessary, by reducing the benefits otherwise
to be provided by Paragraph 2.B hereof, and then, if
necessary, by reducing the benefits provided by Paragraph
2.A hereof.
F. The determinations under Paragraph 2.E hereof
shall be made by the Company's independent accounting firm.
4. Interest. Without limiting the rights of the Executive at
law or in equity, if the Company fails to make any payment or
provide any benefit required to be made or provided hereunder on a
timely basis, the Company will pay interest on the amount or
value thereof at an annualized rate of interest equal to the
so-called composite "prime rate" as quoted from time to time
during the relevant period in the Midwest Edition of The Wall
Street Journal. Such interest will be payable as it accrues on
demand. Any change in such prime rate will be effective on and as
of the date of such change.
5. No Mitigation Obligation. The Company hereby acknowledges
that it will be difficult, and may be impossible, for the
Executive to find reasonably comparable employment following the
Resignation Date or Termination Date, and the parties desire to
avoid possible disputes with respect to mitigation and offset
matters. The Company also acknowledges that, particularly in
light of Paragraph 3.E hereof, its Board of Directors has,
following due consideration of the matter, determined that the
benefits provided by Paragraph 3 hereof are reasonable.
Accordingly, the parties hereto expressly agree that the payment
of the amounts specified in Paragraph 3 hereof by the Company to
the Executive in accordance with the terms of this Agreement will
be liquidated damages, and that the Executive shall not be
required to mitigate the amounts provided for in Paragraph 3 of
this Agreement by seeking other employment or otherwise, nor shall
any profits, income, earnings or other benefits from any source
whatsoever create any mitigation, offset, reduction or any other
obligation on the part of the Executive hereunder or otherwise,
except that the welfare benefits provided by Paragraph 3.C hereof
shall be reduced to the extent comparable welfare benefits are
actually received by the Executive from another employer following
the Executive's Resignation Date or Termination Date, as the case
may be, until the expiration of the Benefit Period.
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6. Arbitration and Legal Expenses. Any controversy or claim
arising out of or relating to this Agreement or the breach
thereof, shall be settled by arbitration in the City of Toledo,
Ohio, in accordance with the laws of the State of Ohio by three
arbitrators, one of whom shall be appointed by the Company, one by
the Executive and the third of whom shall be appointed by the
first two arbitrators. If the first two arbitrators cannot agree
on the appointment of a third arbitrator, then the third
arbitrator shall be appointed by the Chief Judge of the United
States District Court for the Northern District of Ohio. The
arbitration shall be conducted in accordance with the rules of the
American Arbitration Association, except with respect to the
selection of arbitrators, which shall be as provided in this
Paragraph 6. Judgment upon the award rendered by the arbitrators
may be entered in any court having jurisdiction thereof. In the
event that the Executive determines in good faith to retain legal
counsel and/or incur other reasonable costs or expenses in
connection with any such arbitration or to enforce any or all of
the Executive's rights under this Agreement or under any
arbitration award, the Company shall pay 50% of the first $10,000
of attorneys' fees, costs and expenses incurred by the Executive
in connection with the enforcement of his rights, including the
enforcement of any arbitration award in court, regardless of the
final outcome. The Company shall pay all such costs and expenses
in excess of $10,000 incurred by the Executive.
7. Competitive Activity. During a period ending one year
following the Termination Date or Resignation Date, if the
Executive shall have received or shall be receiving benefits under
Section 3, the Executive shall not, without the prior written
consent of the Company, which consent shall not be unreasonably
withheld, engage in any Competitive Activity.
8. Withholding of Taxes. The Company may withhold from any
amounts payable under this Agreement all federal, state, city or
other taxes as the Company is required to withhold pursuant to any
law or government regulation or ruling.
9. Notices. Any notices, requests, demands and other
communications, provided for in or pertinent to this Agreement
shall be sufficient if delivered to the other party hereto by
means of a written notice, mailed by United States registered or
certified mail, return receipt requested, postage prepaid to
either the Executive's last known address, or to the Company's
principal executive offices, as the case may be.
10. Governing Law. The provisions of this Agreement shall be
construed and governed in accordance with the laws of the State of
Ohio without giving effect to the principles of conflict laws of
such State.
11. Amendment. This Agreement may be amended or canceled by
mutual agreement of the parties in writing without the consent of
any other person and, so long as the Executive lives, no person,
other than the parties hereto shall have any rights under or
interest in this Agreement or the subject matter hereof.
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12. Successors and Binding Agreement.
A. The Company shall require any successor (whether
direct or indirect, by purchase, merger, consolidation,
reorganization or otherwise) to all or substantially all of
the business and/or assets of the Company, by agreement in
form and substance satisfactory to the Executive, expressly
to assume and agree to perform this Agreement in the same
manner and to the same extent the Company would be required
to perform if no such succession had taken place. This
Agreement shall be binding upon and inure to the benefit of
the Company and any successor to the Company, including
without limitation any persons acquiring directly or
indirectly all or substantially all of the business and/or
assets of the Company whether by purchase, merger,
consolidation, reorganization or otherwise (and such
successor shall thereafter be deemed the "Company" for the
purposes of this Agreement), but shall not otherwise be
assignable, transferable or delegable by the Company.
B. This Agreement shall inure to the benefit of and
be enforceable by the Executive's personal or legal
representatives, executors administrators, successors,
heirs, distributees and/or legatees.
C. This Agreement is personal in nature and neither
of the parties hereto shall, without the consent of the
other, assign, transfer or delegate this Agreement or any
rights or obligations hereunder except as expressly provided
in Paragraph 12.A hereof. Without limiting the generality
of the foregoing, the Executive's right to receive payments
hereunder shall not be assignable, transferrable or
delegable, whether by pledge, creation of a security
interest or otherwise, other than by a transfer by his will
or by the laws of descent and distribution and, in the event
of any attempted assignment or transfer contrary to this
Paragraph 12.C, the Company shall have no liability to pay
any amount so attempted to be assigned, transferred or
delegated.
13. Validity. If any provision of this Agreement or the
application of any provision hereof to any person or circumstances
is held invalid, unenforceable or otherwise illegal, the remainder
of this Agreement and the application of such provision to any
other person or circumstances shall not be affected, and the
provision so held to be invalid, unenforceable or otherwise
illegal shall be reformed to the extent (and only to the extent)
necessary to make it enforceable, valid and legal.
14. Scope of Agreement. This Agreement is not a contract for
employment for any period of time, does not constitute a guarantee
of employment and shall not be deemed to confer any benefit on the
Executive in the absence of a Change in Control.
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15. Survival. Notwithstanding any provision of this Agreement
to the contrary, the parties' respective rights and obligations
under Sections 3, 4 and 6 will survive any termination or
expiration of this Agreement or the termination of the Executive's
employment following a Change in Control for any reason
whatsoever.
16. Term. The period during which this Agreement shall be in
effect (the "Term") shall commence as of the date hereof and shall
expire as of the latest of (i) December 31 of the second calendar
year after the calendar year in which this Agreement is executed;
(ii) the expiration of the Benefit Period; and (iii) three years
after the date of the first Change in Control; provided, however,
in the absence of a Change in Control that (A) commencing on
January 1 of the calendar year after the calendar year in which
this Agreement is executed and each January 1 thereafter, the date
specified in clause (i) above shall be automatically extended for
an additional year unless, not later than September 30 of the
immediately preceding year, the Company or the Executive shall
have given notice that it or he, as the case may be, does not wish
to have the Term extended and (B) subject to Paragraph 14 hereof,
if, prior to a Change in Control, the Executive ceases for any
reason to be an employee of the Company, whether or not the
Executive then becomes or continues to be an employee of an
Operating Company, thereupon the Term shall be deemed to have
expired and this Agreement shall immediately terminate and be of
no further effect.
17. Prior Agreement. This Agreement amends and restates the
Agreement, dated as of _______________, ____ (the "Prior
Agreement"), between the Company and the Executive, which Prior
Agreement shall, without further action, be superseded as of the
date first above written.
IN WITNESS WHEREOF, the Executive has hereunto set his hand and,
pursuant to the authorization from its Board of Directors, the Company has
caused these presents to be executed in its name on its behalf, and its
corporate seal to be hereunto affixed and attested by its assistant secretary,
all as of the day and year first above written.
___________________________________
Executive
ATTEST: AEROQUIP-XXXXXXX, INC.
__________________________________ By: ______________________________
Assistant Secretary Xxxxxx X. Xxxxx
Chairman, President &
Chief Executive Officer
(Seal)
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