EXHIBIT 10.2(b)
PLEXUS CORP.
CHANGE OF CONTROL AGREEMENT
This AGREEMENT (the "Agreement") is made as of the 1st day of October,
2003, by and between PLEXUS CORP., a Wisconsin corporation (the "Company") and
______________________ (the "Employee").
The Board of Directors of the Company (the "Board"), has determined
that it is in the best interests of the Company and its shareholders to assure
that the Company will have the continued dedication of the Employee,
notwithstanding the possibility, threat or occurrence of a Change of Control (as
defined below) of the Company. The Board believes it is imperative to diminish
the inevitable distraction of the Employee by virtue of the personal
uncertainties and risks created by a pending or threatened Change of Control and
to encourage the Employee's full attention and dedication to the Company
currently and in the event of any threatened or pending Change of Control, and
to provide the Employee with compensation and benefits arrangements upon a
Change of Control which ensure that the compensation and benefits expectations
of the Employee will be satisfied and which are competitive with those of other
corporations. The Company and the Employee have previously entered into a Change
of Control Agreement, which they now wish to supersede in its entirety.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Certain Definitions.
(a) The "Effective Date" shall mean the first date during the Change
of Control Period (as defined in Section 1(b)) on which a Change of Control (as
defined in Section 2) occurs. Anything in this Agreement to the contrary
notwithstanding, if a Change of Control occurs and if the Employee's employment
with the Company or this Agreement is terminated prior to the date on which the
Change of Control occurs, and if it is reasonably demonstrated by the Employee
that such termination of employment or of this Agreement (i) was at the request
of a third party who has taken steps reasonably calculated to effect a Change of
Control or (ii) otherwise arose in connection with or anticipation of a Change
of Control, then for all purposes of this Agreement the "Effective Date" shall
mean the date immediately prior to the date of such termination of employment or
purported termination of this Agreement.
(b) The "Change of Control Period" shall mean the period commencing
on the date hereof and ending on the second anniversary of the date hereof;
provided, however, that commencing on the date one year after the date hereof,
and on each annual anniversary of such date (such date and each annual
anniversary thereof shall be hereinafter referred to as the "Renewal Date"),
unless previously terminated, the Change of Control Period shall be
automatically extended so as to terminate two years from such Renewal Date,
unless at least 60 days prior to the Renewal Date the Company shall give notice
to the Employee that the Change of Control Period shall not be extended.
2. Change of Control. For the purpose of this Agreement, a "Change of
Control" shall mean:
(a) any cash tender exchange offer; or
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(b) merger or other business combination; or
(c) a sale of assets or contested election; or
(d) any combination of the foregoing transactions (a "Transaction"),
and either or both of the following events occur:
(i) the persons who constituted the top management of the
Company (the Chief Executive Officer and the President) no longer serve in their
former capacity or no longer retain the authority to make decisions concerning
the employment of the Employee, and/or
(ii) the persons who were directors of the Company before the
Transaction shall cease to constitute a majority of the Board of Directors of
the Company (which term as used herein shall include any successor of the
Company), and/or
(iii) the current Board of Directors, by majority action,
declares that a Change of Control has occurred.
3. Employment Period. The Company hereby agrees to continue the
Employee in its employ, and the Employee hereby agrees to remain in the employ
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; provided, however, that on each anniversary of the Effective Date the
term of the Agreement shall automatically be extended for an additional two-year
period (restoring the initial two-year term), unless either party notifies the
other party in writing at least 60 days prior to such anniversary. The term of
employment under this Agreement as effective from time to time shall be referred
to as the "Employment Period."
4. Terms of Employment.
(a) Position and Duties.
(i) During the Employment Period, [a] the Employee's 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]
the Employee's services shall be performed at the location where the Employee
was employed immediately preceding the Effective Date or any office or location
less than 45 miles from such location.
(ii) During the Employment Period, and excluding any periods of
vacation and sick leave to which the Employee is entitled, the Employee 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 Employee hereunder, to use the Employee's
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 Employee to [a] serve on corporate, civic or charitable
boards or committees, [b] deliver lectures, fulfill speaking engagements or
teach at educational institutions and [c] manage personal investments, so long
as such activities do not significantly interfere with the
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performance of the Employee's 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 Employee 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
Employee's responsibilities to the Company.
(b) Compensation.
(i) Base Salary. During the Employment Period, the Employee
shall receive an annual base salary ("Annual Base Salary") at least equal to
base salary paid or payable, including any base salary which has been earned but
deferred, to the Employee by the Company and its affiliated companies as
reflected on the Company's records immediately prior to the Effective Date and
immediately prior to entering into an agreement with any other party that could
lead to a Change in Control, excluding any temporary salary adjustment, such as
a temporary salary reduction. During the Employment Period, the Annual Base
Salary shall be reviewed at least annually for possible increase. Any increase
in Annual Base Salary shall not serve to limit or reduce any other obligation to
the Employee under this Agreement. Annual Base Salary shall not be reduced after
any such increase and the term Annual Base Salary as utilized in this Agreement
shall refer to Annual Base Salary as so increased. As used in this Agreement,
the term "affiliated companies" shall include any company controlled by,
controlling or under common control with the Company.
(ii) Annual Bonus. In addition to Annual Base Salary, the
Employee shall be eligible to participate in any bonus plan sponsored by the
Company, on a basis consistent with that of other comparable employees.
(iii) Welfare Benefit Plans. During the Employment Period, the
Employee and/or the Employee's 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, salary continuance, employee life, group life, accidental death and
travel accident insurance plans and programs) to the extent applicable generally
to other peer Employees of the Company and its affiliated companies, but in no
event shall such plans, practices, policies and programs provide the Employee
with benefits which are less favorable in the aggregate, than the most favorable
of such plans, practices, policies and programs provided generally at any time
after the Effective Date to other peer Employees of the Company and its
affiliated companies.
(iv) Other Benefits. During the Employment Period, the Employee
shall be entitled to participate in all fringe benefits, deferred compensation
programs, expense reimbursement programs, vacation, company car or car
allowance, as applicable (if Employee was receiving such benefit prior to the
Change of Control), incentive, savings and retirement plans (including, but not
limited to the 401(k) Plan and Employee Stock Purchase Plan), practices,
policies and programs applicable generally to other peer Employees of the
Company and its affiliated companies, but in no event shall such plans,
practices, policies and programs provide the Employee with benefits which are
less favorable, in the aggregate, than the most
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favorable of those provided generally at any time after the Effective Date to
other peer Employees of the Company and its affiliated companies.
(v) Stock Option Grants. During the Employment Period, the
Employee shall receive annual stock option grants (or other types of long-term
incentive compensation) with a value no less than the value of the last stock
option grant received by the Employee immediately preceding the Effective Date.
5. Termination of Employment.
(a) Death or Disability. The Employee's employment shall terminate
automatically upon the Employee's death during the Employment Period. If the
Company determines in good faith that the Disability of the Employee has
occurred during the Employment Period (pursuant to the definition of Disability
set forth below), it may give to the Employee written notice in accordance with
Section 12(b) of this Agreement of its intention to terminate the Employee's
employment. In such event, the Employee's employment with the Company shall
terminate effective on the 30th day after receipt of such notice by the Employee
(the "Disability Effective Date"), provided that, within the 30 days after such
receipt, the Employee shall not have returned to full-time performance of the
Employee's duties. For purposes of this Agreement, "Disability" shall mean the
absence of the Employee from the Employee's 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 acceptable to the Employee
or the Employee's legal representative (such agreement as to acceptability not
to be withheld unreasonably).
(b) Cause. The Company may terminate the Employee's employment
during the Employment Period for Cause. For the sole and exclusive purposes of
this Agreement, "Cause" shall mean:
(i) The willful and continued failure of the Employee to perform
substantially the Employee's duties with the Company or one of its affiliates
(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
Employee by the Board, the Chief Executive Officer of the Company or the
President of the Company which specifically identifies the manner in which the
Board, the Chief Executive Officer or the President believes that the Employee
has not substantially performed the Employee's duties, or
(ii) The willful engaging by the Employee in illegal conduct or
gross misconduct which is materially and demonstrably injurious to the Company.
For purposes of this provision, no act or failure to act, on the
part of the Employee, shall be considered "willful" unless it is done, or
omitted to be done, by the Employee in bad faith or without reasonable belief
that the Employee's 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 Employee in good faith and in the best interests of the Company.
The cessation of employment of the Employee shall not be deemed to
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be for Cause unless and until there shall have been delivered to the Employee 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
Employee and the Employee is given an opportunity, together with counsel, to be
heard before the Board), finding that, in the good faith opinion of the Board,
the Employee is guilty of the conduct described in subparagraph (i) or (ii)
above, and specifying the particulars thereof in detail.
(c) Good Reason. The Employee's employment may be terminated by the
Employee for Good Reason. For the sole and exclusive purposes of this Agreement,
"Good Reason" shall mean:
(i) The assignment to the Employee of any duties inconsistent in
any respect with the Employee's position (including status, offices, titles and
reporting requirements), authority, duties or responsibilities as contemplated
by Section 4(a) of this Agreement, 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 Employee;
(ii) Any failure by the Company to comply with any of the
provisions of Section 4(b) 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
Employee;
(iii) The Company's requiring the Employee to be based at any
office or location other than as provided in Section 4(a)(i)(b) hereof or the
Company's requiring the Employee to travel on Company business to a
substantially greater extent than required immediately prior to the Effective
Date;
(iv) Any purported termination by the Company of the Employee's
employment otherwise than as expressly permitted by this Agreement; or
(v) Any failure by the Company to comply with and satisfy
Section 11(c) of this Agreement.
For purposes of this Section 5(c), any good faith determination of "Good Reason"
made by the Employee shall be conclusive. Anything in this Agreement to the
contrary notwithstanding, a termination by the Employee for any reason during
the 30-day period immediately following the first anniversary of the Effective
Date shall be deemed to be a termination for Good Reason for all purposes of
this Agreement.
(d) Notice of Termination. Any termination by the Company for Cause,
or by the Employee for Good Reason, shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 12(b) of
this Agreement. For purposes of this Agreement, a "Notice of Termination" means
a written notice which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
the Employee's employment under the provision so indicated, and (iii) if the
Date of Termination (as
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defined below) is other than the date of receipt of such notice, specifies the
termination date (which date shall be not more than thirty days after the giving
of such notice). The failure by the Employee 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 Employee or the Company,
respectively, hereunder or preclude the Employee or the Company, respectively,
from asserting such fact or circumstance in enforcing the Employee's or the
Company's rights hereunder.
(e) Date of Termination. "Date of Termination" means (i) if the
Employee's employment is terminated by the Company for Cause, or by the Employee
for Good Reason, the date of receipt of the Notice of Termination or any later
date specified therein, as the case may be, (ii) if the Employee's 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 Employee of such
termination, and (iii) if the Employee's employment is terminated by reason of
death or Disability, the Date of Termination shall be the date of death of the
Employee or the Disability Effective Date, as the case may be.
6. 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 Employee's
employment other than for Cause, death or Disability or the Employee shall
terminate employment for Good Reason:
(i) The Company shall pay to the Employee in a lump sum in cash
within 30 days after the Date of Termination the aggregate of the following
amounts:
[a] The sum of [i] the Employee's Annual Base Salary through the
Date of Termination to the extent not theretofore paid, [ii] the Annual Target
Bonus payable as provided for in the Company's current Annual Bonus Plan,
pro-rated through the Date of Termination using a 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 and [iii] any compensation
previously deferred by the Employee (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 clauses [i], [ii] and
[iii] shall be hereinafter referred to as the "Accrued Obligations"); and
[b] An amount equal to the sum of (i) the product of two times the
Employee's Annual Base Salary and (ii) two times the Annual Target Bonus as
provided for in the Company's current Annual Bonus Plan; and
[c] An amount equal to the difference between [i] the actuarial
equivalent of the benefit (utilizing actuarial assumptions no less favorable to
the Employee than those in effect under the Retirement Plan (as defined below)
immediately prior to the Effective Date) under any qualified retirement plan in
which the Employee participates (the "Retirement Plan") and any excess or
supplemental retirement plan or nonqualified deferred compensation plan in which
the Employee participates (together, the "SERP") which the Employee would
receive if the Employee's employment continued for two years after the Date of
Termination assuming for this purpose that all accrued benefits are fully
vested, and, assuming that Employee's compensation in each of the two years is
equal to Employee's compensation in the
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last full fiscal year prior to the Date of Termination, and [ii] the actuarial
equivalent of the Employee's actual benefit (paid or payable), if any, under any
Retirement Plan and the SERP as of the Date of Termination;
(ii) For two years after the Employee's Date of Termination, or
such longer period as may be provided by the terms of the appropriate plan,
program, practice or policy, the Company shall continue benefits to the Employee
and/or the Employee's family at least equal to those which would have been
provided to them in accordance with the plans, programs, practices and policies
described in Section 4(b)(iii) of this Agreement if the Employee's employment
had not been terminated in accordance with the most favorable plans, practices,
programs or policies of the Company and its affiliated companies applicable
generally to other peer Employees and their families, provided, however, that if
the Employee becomes reemployed with another employer and is eligible to receive
medical or other welfare benefits under another employer provided plan, the
medical and other welfare benefits described herein shall be secondary to those
provided under such other plan during such applicable period of eligibility. For
purposes of determining eligibility (but not the time of commencement of
benefits) of the Employee for retiree benefits pursuant to such plans,
practices, programs and policies, the Employee shall be considered to have
remained employed until two and one-half years after the Date of Termination and
to have retired on the last day of such period;
(iii) The Company shall, at its sole expense as incurred,
provide the Employee with Employee-level outplacement services for a period of
six months, the scope and provider of which shall be selected by the Employee in
his sole discretion; and
(iv) To the extent not theretofore paid or provided, the Company
shall timely pay or provide to the Employee any other amounts or benefits
required to be paid or provided or which the Employee 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 be
hereinafter referred to as the "Other Benefits").
(b) Death. If the Employee's employment is terminated by reason of
the Employee's death during the Employment Period, this Agreement shall
terminate without further obligations to the Employee's 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 Employee's 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 Other Benefits as utilized in this Section 6(b) shall
include, without limitation, and the Employee's 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 Employees of the Company and such affiliated companies
under such plans, programs, practices and policies relating to death benefits,
if any, as in effect as of the date of the Employee's death.
(c) Disability. If the Employee's employment is terminated by reason
of the Employee's Disability during the Employment Period, this Agreement shall
terminate without further obligations to the Employee, other than for payment of
Accrued Obligations and the timely payment or provision of Other Benefits.
Accrued Obligations shall be paid to the Employee in a lump sum in cash within
30 days of the Date of Termination. With respect to the
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provision of Other Benefits, the term Other Benefits as utilized in this Section
6(c) shall include, and the Employee 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 Employees 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 Employees and their families at any
time after the Effective Date.
(d) Cause; Other than for Good Reason. If the Employee's employment
shall be terminated for Cause during the Employment Period, this Agreement shall
terminate without further obligations to the Employee other than the obligation
to pay to the Employee (i) his Annual Base Salary through the Date of
Termination, (ii) the amount of any compensation previously deferred by the
Employee, and (iii) Other Benefits, in each case to the extent theretofore
unpaid. If the Employee voluntarily terminates employment during the Employment
Period, excluding a termination for Good Reason, this Agreement shall terminate
without further obligations to the Employee, other than for Accrued Obligations
and the timely payment or provision of Other Benefits. In such case, all Accrued
Obligations shall be paid to the Employee in a lump sum in cash within 30 days
of the Date of Termination.
7. Nonexclusivity of Rights. Nothing in this Agreement shall prevent or
limit the Employee's 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 Employee may qualify, nor shall anything herein limit or
otherwise affect such rights as the Employee may have under any contract or
agreement with the Company or any of its affiliated companies. Amounts which are
vested benefits or which the Employee 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.
8. Full Settlement. 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 set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Employee or others. The Employee shall not be obligated to seek other employment
or take any other action by way of mitigation of the amounts payable to the
Employee under any of the provisions of this Agreement. The Company agrees to
pay as incurred, to the full extent permitted by law, all legal fees and
expenses which the Employee may reasonably incur as a result of any contest
(regardless of the outcome thereof) by the Company, the Employee or others of
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 Employee about the amount of any payment pursuant to this
Agreement), plus in each case interest on any delayed payment at the applicable
Federal rate provided for in Section 7872(f)(2)(A) of the Internal Revenue Code
of 1986, as amended (the "Code").
9. Certain Additional Payments by the Company.
(a) Anything in this Agreement to the contrary notwithstanding, in
the event it shall be determined that any payment or distribution by the Company
to or for the benefit of the Employee (whether paid or payable or distributed or
distributable pursuant to the terms of this
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Agreement or otherwise, but determined without regard to any additional payments
required under this Section 9) (a "Payment") would be subject to the excise tax
imposed by Section 4999 of the Code or any interest or penalties are incurred by
the Employee with respect to such excise tax (such excise tax, together with any
such interest and penalties, are hereinafter collectively referred to as the
"Excise Tax"), then the Employee shall be entitled to receive an additional
payment (a "Gross-Up Payment") in an amount such that after payment by the
Employee 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 Employee retains an amount of the Gross-Up Payment
equal to the Excise Tax imposed upon the Payments.
(b) Subject to the provisions of Section 9(c), all determinations
required to be made under this Section 9, 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 such
certified public accounting firm as may be designated by the Employee (the
"Accounting Firm") which shall provide detailed supporting calculations both to
the Company and the Employee within 15 business days of the receipt of notice
from the Employee that there has been a Payment, or such earlier time as is
requested by the Company. All fees and expenses of the Accounting Firm shall be
borne solely by the Company. Any Gross-Up Payment, as determined pursuant to
this Section 9, shall be paid by the Company to the Employee within five days of
the receipt of the Accounting Firm's determination. If the Accounting Firm
determines that no Excise Tax is payable by the Employee, it shall furnish the
Employee with a written opinion that failure to report the Excise Tax on the
Employee's applicable federal income tax return would not result in the
imposition of a negligence or similar penalty. Any determination by the
Accounting Firm shall be binding upon the Company and the Employee. As a result
of the uncertainty in the application of Section 4999 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 ("Underpayment"), consistent with the calculations required to be made
hereunder. In the event that the Company exhausts its remedies pursuant to
Section 9(c) and the Employee 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 Employee.
(c) The Employee 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 Employee 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 Employee
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 Employee in writing prior to the expiration of such
period that it desires to contest such claim, the Employee shall:
(i) Give the Company any information reasonably requested by the
Company relating to such claim,
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(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
Employee 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 Section 9(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 Employee to pay the tax claimed and xxx for a
refund or contest the claim in any permissible manner, and the Employee 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
Employee to pay such claim and xxx for a refund, the Company shall advance the
amount of such payment to the Employee, on an interest-free basis and shall
indemnify and hold the Employee 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; and further provided that any extension of the statute of
limitations relating to payment of taxes for the taxable year of the Employee
with respect to which such contested amount is claimed to be due is limited
solely to such contested amount. Furthermore, the Company's control of the
contest shall be limited to issues with respect to which a Gross-Up Payment
would be payable hereunder and the Employee 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 Employee of an amount
advanced by the Company pursuant to Section 9(c), the Employee becomes entitled
to receive any refund with respect to such claim, the Employee shall (subject to
the Company's complying with the requirements of Section 9(c)) 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
Employee of an amount advanced by the Company pursuant to Section 9(c), a
determination is made that the Employee shall not be entitled to any refund with
respect to such claim and the Company does not notify the Employee 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.
10. Confidential Information. The Employee 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
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been obtained by the Employee during the Employee's 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 Employee or representatives of the Employee
in violation of this Agreement). After termination of the Employee's employment
with the Company, the Employee 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 Section 10 constitute a basis for deferring or
withholding any amounts otherwise payable to the Employee under this Agreement.
11. Successors.
(a) This Agreement is personal to the Employee and without the prior
written consent of the Company shall not be assignable by the Employee otherwise
than by will or the laws of descent and distribution. This Agreement shall inure
to the benefit of and be enforceable by the Employee's legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns.
(c) The Company 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, "Company" 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.
12. Miscellaneous.
(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of Wisconsin, without reference to principles of
conflict of laws. The captions of this Agreement are not part of the provisions
hereof and shall have no force or effect. 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) All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Employee:
_________________________
_________________________
_________________________
If to the Company:
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PLEXUS CORP.
00 Xxxxxxxx Xxxx Xxxxx
Xxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxxx
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
(d) The Company may withhold from any amounts payable under this
Agreement such Federal, state, local or foreign taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
(e) The Employee's or the Company's failure to insist upon strict
compliance with any provision hereof or any other provision of this Agreement or
the failure to assert any right the Employee or the Company may have hereunder,
including, without limitation, the right of the Employee to terminate employment
for Good Reason pursuant to Section 5(c)(i)-(v) of this Agreement, shall not be
deemed to be a waiver of such provision or right or any other provision or right
of this Agreement.
(f) The Employee and the Company acknowledge that, except as may
otherwise be provided under any other written agreement between the Employee and
the Company, the employment of the Employee by the Company is "at will" and,
prior to the Effective Date, the Employee's employment and this Agreement may be
terminated by either the Employee or the Company at any time prior to the
Effective Date, in which case the Employee 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.
IN WITNESS WHEREOF, the Employee has hereunto set the Employee's 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, all as of the
day and year first above written.
_________________________________
[Employee]
PLEXUS CORP.
By:______________________________
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