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Exhibit 10.70
TERMINATION AND CHANGE OF CONTROL AGREEMENT
TERMINATION AND CHANGE OF CONTROL AGREEMENT ("Agreement"), made as of
December 15, 2000, between AMETEK, Inc. (the "Company"), and Xxxxx X. Xxxxxxxx
(the "Executive").
W I T N E S S E T H:
WHEREAS, the Executive is the President and Chief Executive Officer of
the Company on the date hereof, and also will become the Chairman of the Board
of Directors of the Company as of January 1, 2001; and
WHEREAS, the Company wishes to provide certain benefits to the
Executive in the event of a termination of the Executive's employment under
certain circumstances or in the event of a change of control of the Company;
NOW, THEREFORE, in consideration of the mutual covenants and promises
of the parties hereto, the Company and the Executive agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the following terms
shall have the meanings set forth below, unless the context clearly indicates
otherwise:
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Cash Compensation" shall mean the sum of the Executive's
base salary (equal to the rate of annual base salary for the Company's fiscal
year immediately prior to the Termination Date) plus (i) the Executive's
targeted bonus, if known, for the year in which the Termination Date occurs, or
(ii) if the targeted bonus described in clause (i) is not known, the average of
the Executive's bonuses for the two fiscal years of the Company immediately
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preceding the year in which the Termination Date occurs, including all such
salary and bonuses earned in all capacities with the Company and its
Subsidiaries, as reported for Federal income tax purposes on Form W-2, together
with any amounts which would have been included in the Executive's salary or
bonus but for a deferral election by the Executive under any plan of the Company
or its Subsidiaries, including, but not limited to, a plan qualified under
Section 401(k) or 125 of the Code.
(c) "Cause" shall mean (i) misappropriation of funds, (ii)
habitual insobriety or substance abuse, (iii) conviction of a crime involving
moral turpitude, or (iv) gross negligence in the performance of duties, which
gross negligence has had a material adverse effect on the business, operations,
assets, properties or financial condition of the Company.
(d) "Change of Control" shall mean (i) the acquisition by any
person or group, other than the Company or any of its Subsidiaries, of 20% or
more of the voting stock of the Company; (ii) the acquisition by the Company or
any of its Subsidiaries, or any Executive benefit plan of the Company or any
Subsidiary, or any person or entity organized, appointed or established by the
Company or Subsidiary for or pursuant to the terms of any such Executive benefit
plan, acting separately or in combination with each other or with other persons,
of 50% or more of the voting stock of the Company, if after such acquisition the
Shares are no longer publicly traded; (iii) the removal within any two-year
period from the Board of a sufficient number of directors such that the
individuals who constituted the Board at the beginning of the period shall cease
to constitute a majority of the Board, unless the election of each subsequent
member was approved in advance by two-thirds of the members of the Board in
office at the beginning of such two-year period; or (iv) the approval by the
shareholders of the Company of (A) a merger or consolidation, the result of
which is that the shareholders of the Company do not
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own or control at least 50% of the value of the outstanding equity or combined
voting power of the then outstanding voting securities of the Company entitled
to vote generally in the election of Directors or (B) a sale or other
disposition (in one transaction or a series of related transactions) of all or
substantially all of the Company's assets.
(e) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(f) "Good Reason" shall mean, without the written consent of
the Executive, one or more of the following occurrences:
(i) any failure of the Company to comply with and
satisfy any of the terms of this Agreement;
(ii) any reduction of the authority, duties or
responsibilities held by the Executive, or removal from, or failure to
be reelected to, the Board;
(iii) any reduction of the Executive's base
compensation, bonus opportunity or benefit entitlement; or
(iv) any transfer of the Executive to a location
which is outside the Paoli, Pennsylvania area (or the general area in
which his principal place of business immediately preceding the
transfer may be located at such time if other than Paoli, Pennsylvania)
by more than fifty miles other than on a temporary basis (less than 6
months), except for required travel on the Company's business to an
extent substantially consistent with the Executive's business travel
obligations on behalf of the Company in effect immediately prior to the
transfer;
provided, however, that in the event Executive delivers a Notice of Termination
based on one or more of the foregoing occurrences of Good Reason, the Company
may correct or cure such occurrence or occurrences within twenty (20) days of
receipt of the Notice of Termination, in
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which event the Notice of Termination shall be deemed withdrawn and of no
further force or effect.
(g) "Non-Competition and Non-Solicitation Obligations" shall
mean the covenants described in Section 5(d).
(h) "Notice of Termination" shall mean a written notice which
conforms to the requirements of Section 2.
(i) "Restricted Shares" shall mean the Shares that were issued
to the Executive pursuant to the restricted stock awards granted as of December
15, 2000 under the 1997 Stock Incentive Plan of AMETEK, Inc. and the 1999 Stock
Incentive Plan of AMETEK, Inc., as adjusted pursuant to the terms of the
agreement between the Company and the Executive evidencing such awards, and
which continue to be forfeitable as of the applicable date or event referred to
herein; upon becoming vested, such Shares shall no longer be Restricted Shares
for purposes of this Agreement.
(j) "Share" shall mean a share of the common stock of the
Company or any successor, as adjusted pursuant to the terms of the agreements
between the Company and the Executive evidencing such awards.
(k) "Subsidiary" shall mean any corporation or other entity
which is deemed to be part of the affiliated group of the Company for purposes
of Section 280G(d)(5) of the Code.
(l) "Termination Date" shall mean the date specified in the
Notice of Termination, or the date of receipt of the Notice of Termination if
the Notice is sent by the Company to the Executive and asserts that the
Termination is for Cause.
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(m) "Vested" shall mean, with respect to the Restricted
Shares, that such Shares have become nonforfeitable and transferable in
accordance with the terms of the awards and restricted stock agreements, dated
as of December 15, 2000, pursuant to which they were issued.
2. NOTICE OF TERMINATION. Any termination of the Executive's employment
by either the Company or the Executive shall be communicated by a Notice of
Termination to the other party to this Agreement, given in accordance with
Section 18 hereof. For purposes of this Agreement, a "Notice of Termination"
means a written notice of the termination of the Executive's employment which
(i) in the case of a Notice of Termination from the Company, indicates whether
the termination is for Cause or without Cause, or, in the case of a Notice of
Termination from the Executive, indicates whether the resignation is for Good
Reason or not for Good Reason, (ii) refers to the specific provision in this
Agreement relied upon and briefly summarizes the facts and circumstances deemed
to provide a basis for the termination of employment under the provision so
indicated, and (iii) specifies the Termination Date, which date shall not be
less than 20 nor more than 30 days after the giving of such Notice, except for a
Notice of Termination from the Company that the Executive is being terminated
for Cause which shall be effective immediately.
3. TERMINATION NOT IN CONNECTION WITH A CHANGE OF CONTROL OR FOR CAUSE.
If the Executive's employment is terminated by the Company without Cause or by
the Executive for Good Reason, and such termination occurs prior to and not in
anticipation of a Change of Control, then the Restricted Shares, if any, shall
be forfeited on the Termination Date and the following benefits shall be
provided to the Executive:
(a) The Company shall pay to the Executive, in a lump sum
within 30 days after the Termination Date; an amount equal to two (2) times the
Executive's Cash Compensation;
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(b) The Company shall continue the Executive's current
coverage (single or family) under (or, at the election of the Company, provide a
tax equivalent monthly payment equal to the cost of) the Company's plans or
programs to provide health benefits (including, but not limited to,
hospitalization, surgical, major medical, dental and vision benefits),
disability insurance and death benefits (including, but not limited to, the
Company's Supplemental Executive Plan), as in effect from time to time for other
senior executives of the Company, until the earliest of (i) the end of the
second year following the year of the termination of employment, (ii) as applied
to health benefit coverage, the Executive's eligibility for Medicare, (iii) as
applied to health benefits, disability insurance and death benefits, considered
separately from each other, the Executive's commencement of new employment where
the Executive is eligible to participate in substantially similar plans or
programs without a pre-existing condition limitation, or (iv) the Executive's
death; and
(c) The Company shall (i) continue to provide the Executive
with the Company provided car available to him at the Termination Date (or a
comparable car, if the lease on such car should expire) and (ii) continue to
reimburse him for the cost of country club or private club dues (at the level in
effect at the Termination Date), until the earliest of the second anniversary of
the Termination Date or the Executive's death.
For purposes of this Agreement, a termination of employment will be considered
to be in anticipation of a Change of Control if the Termination Date occurs
during the ninety (90) day period ending on the date of the Change of Control
and the substantial possibility of the Change of Control was known to the
Executive and to a majority of the Board of Directors of the Company on or
before the date the Notice of Termination was delivered.
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4. CHANGE OF CONTROL. If the Executive is employed by the Company at
the date of a Change of Control, or has been terminated without Cause or
resigned for Good Reason in anticipation of the Change of Control (within the
meaning of Section 3), the following shall apply:
(a) Subject to the limitations of Section 12 hereof, the
Company shall pay to the Executive an amount equal to the fair market value of
the Restricted Shares held by the Executive at the earlier of the Termination
Date or the date of the Change of Control (which value, if the Change of Control
is a merger, consolidation, tender offer, going private transaction, or any
other similar transaction pursuant to which shareholders of the Company
generally will receive cash, stock of another company or other consideration for
their shares of Company stock, shall be calculated on the basis of the amount
per Share received or to be received by shareholders of the Company in
connection with the Change of Control); the amount payable under this Subsection
(a) shall be paid to the Executive in a lump sum within 30 days after the Change
of Control.
(b) The number of Restricted Shares with respect to which any
payment under Subsection (a), above, has been made, after taking into account
the limitations of Section 12 hereof, shall be forfeited, notwithstanding any
other terms or conditions applicable to the Restricted Shares.
(c) The balance of the Restricted Shares shall be retained and
shall become Vested or be forfeited in accordance with the original terms and
conditions of the restricted stock awards under which they were granted. If, at
any time following a Change of Control, the Shares are not publicly traded, the
Company, at its own expense, shall cause a nationally recognized investment
banking firm mutually acceptable to the Executive and the
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Company to make an annual valuation, effective as of the first day of the
Company's fiscal year, which valuation shall establish the fair market value of
a Restricted Share or of a Share which was originally issued as a Restricted
Share and which is held by the Executive (or his beneficiary or estate following
his death) after the Restricted Shares have become vested. Copies of the
valuation shall be furnished, in writing, to the Executive and the Company.
(d) If any Restricted Shares become Vested following a Change
of Control and the Shares are not publicly traded, then
(i) the Executive (or his beneficiary or estate
following his death) shall have the right to compel the Company to buy
back some or all of the Shares which were originally Restricted Shares,
held by the Executive (or his beneficiary or estate), for the greater
of (A) their fair market value, as established for the year pursuant to
Subsection (b), above, or (B) if the Change of Control was in the form
of a merger, consolidation, tender offer, going private transaction or
any similar transaction, the amount per Share received by shareholders
of the Company in the Change of Control transaction ("Put Rights"); and
(ii) after the Executive's termination of employment
or his death, the Company shall have the right to compel the Executive
(or his beneficiary or estate, if applicable) to sell all the Shares
which were originally Restricted Shares held by the Executive (or his
beneficiary or estate), to the Company for the greater of (A) their
fair market value, as established for the year pursuant to Subsection
(b), above or (B) if the Change of Control was in the form of a merger,
consolidation, tender offer, going private transaction or any similar
transaction, the amount per Share received by shareholders of the
Company in the Change of Control transaction ("Call Rights").
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The Executive (or his beneficiary or estate) may exercise the Put Rights not
more than once during the Company's fiscal year. Neither the Executive (or his
beneficiary or estate) nor the Company may exercise the Put Rights or Call
Rights more than 90 days after the issuance of the most recent annual valuation
if the price at which the Put Rights or Call Rights are to be exercised is based
on such valuation (pursuant to clauses (i)(A) or (ii)(A), above). The provisions
of this Subsection (c) shall cease to apply if the Shares are again publicly
traded.
(e) The Company sponsors an irrevocable trust fund pursuant to
a trust agreement to hold assets to satisfy its obligations to certain
Executives. Funding through such trust fund of the amounts which may become due
to the Executive under Sections 4 or 5 of the Agreement shall be authorized by
the Compensation Committee of the Board, as set forth in the agreement pursuant
to which the fund has been established, no later than immediately following a
Change of Control
5. TERMINATION IN CONNECTION WITH A CHANGE OF CONTROL. If the Executive's
employment is terminated by the Company without Cause, or by the Executive for
Good Reason, in anticipation of (within the meaning of Section 3), upon or at
any time following a Change of Control (hereinafter referred to as a "Change of
Control Termination"), then, in addition to the payment under Section 4(a)
hereof, the Executive shall be entitled to additional benefits under Subsection
(a) or (b), below, whichever is applicable, and under Subsection (c).
(a) If the Restricted Shares have not become Vested and the
Change of Control Termination occurs prior to December 15, 2006, then all
Restricted Shares then outstanding shall be forfeited and, except as approved in
writing by the Board, the Executive shall be subject to the Non-Competition and
Non-Solicitation Obligations for a period of three years after the Change of
Control Termination. As consideration to the Executive for the
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restrictions set forth in this Subsection (a), the Company hereby agrees to pay
the Executive, in addition to any and all other amounts and benefits to which he
may be entitled hereunder, an amount equal to Two Million Dollars
($2,000,000.00) per year for three years, or Six Million Dollars
($6,000,000.00), which amount shall be paid to the Executive in a lump sum
within 30 days after the Termination Date. If the Executive violates any of the
covenants contained in this Subsection (a), then, in addition to the Company's
other remedies, the Executive shall repay to the Company an amount equal to Six
Million Dollars ($6,000,000.00), multiplied by a fraction, the numerator of
which is 1,095 minus the number of days between the Termination Date and the
date the Executive first violates the covenants contained in this Subsection
(a), and the denominator of which is 1,095.
(b) If the Restricted Shares have become Vested prior to the
Change of Control Termination, then upon the change of Control Termination,
except as approved in writing by the Board, the Executive shall be subject to
the Non-Competition and Non-Solicitation Obligations for a period of eighteen
(18) months after the Change of Control Termination. As consideration to the
Executive for the restrictions set forth in this Subsection (b), the Company
hereby agrees to pay the Executive, in addition to any and all other amounts and
benefits to which he may be entitled hereunder, an amount equal to Two Million
Dollars ($2,000,000.00) per year for eighteen (18) months, or Three Million
Dollars ($3,000,000.00), which amount shall be paid to the Executive in a lump
sum within 30 days after the Termination Date. If the Executive violates any of
the covenants contained in this Subsection (b), then, in addition to the
Company's other remedies, the Executive shall repay to the Company an amount
equal to Three Million Dollars ($3,000,000.00), multiplied by a fraction, the
numerator of which
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is 548 minus the number of days between the Termination Date and the date the
Executive first violates the covenants contained in this Subsection (b), and the
denominator of which is 548.
(c) The Company shall continue the Executive's current
coverage (single or family) under (or, at the election of the Company, provide a
tax equivalent monthly payment equal to the cost of) the Company's plans or
programs for health benefits (including, but not limited to, hospitalization,
surgical, major medical, dental and vision benefits), disability insurance and
death benefits (including, but not limited to the Company's Supplemental
Executive Plan), as in effect from time to time for other senior executives of
the Company, until the earliest of (i) the end of the second year (tenth year
for health benefits) following the year of the termination of employment, (ii)
as applied to health benefit coverage, the Executive's eligibility for Medicare,
(iii) as applied to health benefits, disability insurance and death benefits,
considered separately from each other, the Executive's commencement of new
employment where the Executive is eligible to participate in substantially
similar plans or programs without a pre-existing condition limitation, or (iv)
the Executive's death. The Company shall also continue to provide the Executive
with the Company provided car available to him at the Termination Date (or a
comparable car, if the lease on such car should expire) and shall continue to
reimburse him for the cost of country club or private club dues (at the level in
effect at the Termination Date) until the earliest of the second anniversary of
the Termination Date or the Executive's death.
(d) During any period in which the Executive is subject to
Non-Competition and Non-Solicitation Obligations under Subsection (a) or (b),
the Executive covenants not to:
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(i) Engage in or carry on, directly or indirectly,
either for himself or as a member, stockholder, investor, lender,
officer, director, Executive or agent of, or consultant or advisor to,
any person, partnership, corporation, joint venture or enterprise
(other than the Company), or in any capacity on behalf of any trust or
other organization or entity, any business in competition with (as
defined below) any business then carried on by the Company as long as
any like business is carried on by the Company or by any person,
corporation, partnership, trust or other organization or entity
deriving title to the good will of such business, directly or
indirectly, from the Company; provided, however, that nothing herein
contained shall prevent the Executive from purchasing or holding
securities of any publicly owned company, the securities of which are
listed on a national securities exchange or registered pursuant to
Section 12(g) of the Securities Exchange Act of 1934 (the "Exchange
Act"), but the total holding of any single security so listed or
registered shall be limited to 1% of the amount of any such security
outstanding. For purposes of this Subsection (a), the term "any
business in competition with" shall mean any business engaged
principally or in part in any business of the Company (other than a
business which generated less than 5% of the Company's revenues and
less than 5% of the Company's pre-tax profits) as described in its
Annual Report on Form 10-K for the year prior to the Change of Control
Termination; or
(ii) Solicit, raid, entice, induce or attempt to
persuade, directly or indirectly, any person who is an Executive of the
Company at the time of the Change of Control Termination or a former
Executive of the Company who was employed at any time within the 90 day
period ended upon the Change of Control Termination, to become employed
by any person, firm, partnership, corporation or other enterprise or
entity, and
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the Executive shall not approach any such Executive (or former
Executive) for such purpose or authorize the taking of such actions by
any other person, firm, partnership, corporation or other enterprise or
entity.
6. TERMINATION FOR CAUSE OR WITHOUT GOOD REASON, ETC. If the
Executive's employment is terminated by the Company for Cause, by the Executive
without Good Reason, or because of the Executive's death or total disability,
the provisions of Sections 3 and 5 hereof shall not apply.
7. CONFIDENTIAL INFORMATION. The Executive recognizes and acknowledges
that, by reason of his employment by and service to the Company, he has had and
will continue to have access to confidential information of the Company and its
Subsidiaries, including, without limitation, information, and knowledge
pertaining to products and services offered, innovations, designs, ideas, plans,
trade secrets, proprietary information, distribution and sales methods and
systems, sales and profit figures, customer and client lists, and relationships
between the Company and its Subsidiaries and other distributors, customers,
clients, suppliers and others who have business dealings with the Company and
its Subsidiaries ("Confidential Information"). The Executive acknowledges that
such Confidential Information is a valuable and unique asset and covenants that
he will not, either during or after his employment by the Company, disclose any
such Confidential Information to any person for any reason whatsoever without
the prior written authorization of the Board, unless such information is in the
public domain through no fault of the Executive or except as may be required by
law.
8. ADDITIONAL PROVISIONS APPLICABLE TO SECTIONS 5 AND 7. The following
provisions shall apply to the covenants and restrictions contained in Sections 5
and 7 hereof:
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(a) The covenants contained in Sections 5(d) shall apply
within the territories in which the Company is actively engaged in the conduct
of business during the applicable period following the Termination Date,
including, without limitation, the territories in which customers are then being
solicited.
(b) Without limiting the right of the Company to pursue all
other legal and equitable remedies, including recovery of damages, available for
violation by the Executive of the covenants and restrictions contained in
Sections 5 or 7 hereof, the Executive agrees that monetary damages would not be
adequate compensation for any loss incurred by the Company by reason of a breach
by him of the provisions of Sections 5 or 7 hereof, and that the Company would
sustain irreparable harm and, therefore, further agrees that the Company shall
be entitled to injunctive relief to prevent any such breach or any continuing
breach thereof.
(c) The Executive irrevocably and unconditionally (i) agrees
that any suit, action or other legal proceeding arising out of an asserted
breach of Sections 5 or 7 hereof, including, without limitation, any action
commenced by the Company for preliminary and permanent injunctive relief or
other equitable relief, may be brought in the United States District Court for
the Eastern District of Pennsylvania, or if such court does not have
jurisdiction or will not accept jurisdiction, in any court of general
jurisdiction in Xxxxxxx County, Pennsylvania, (ii) consents to the non-exclusive
jurisdiction of any such court in any suit, action or proceeding, and (iii)
waives any objection which the Executive may have to the laying of venue of any
such suit, action or proceeding in any such court, The Executive also
irrevocably and unconditionally consents to the service of any process,
pleadings, notices or other papers in a manner permitted by the notice
provisions of Section 18 hereof.
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(d) Each party intends and agrees that if, in any action
before any court or agency legally empowered to enforce the covenants contained
in Sections 5 or 7 hereof, any term, restriction, covenant or promise contained
therein is found to be unreasonable and accordingly unenforceable, then such
term, restriction, covenant or promise shall be deemed modified to the extent
necessary to make it enforceable by such court or agency.
(e) If the Executive shall be the prevailing party in any
action brought by the Company for damages, injunction or other equitable relief
based upon an alleged breach of Sections 5 or 7, the Company shall reimburse the
Executive for all costs and expenses related to the defense of the action
(including reasonable attorneys fee and expenses).
9. NO MITIGATION. The Executive shall not be required to mitigate the
amount of any payment or benefit provided for in this Agreement by seeking other
employment or otherwise, nor shall the amount of any payment or benefit provided
for herein be reduced by any compensation earned by other employment or
otherwise, except as provided in Sections 3(b) and 5(c).
10. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall prevent
or limit the Executive's continuing or future participation in or rights under
any benefit, bonus, incentive or other plan or program provided by the Company,
or any of its Subsidiaries, and for which the Executive may qualify, other than
severance benefits.
11. NO SET-OFF. 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. CERTAIN REDUCTION OF PAYMENTS.
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(a) Anything in this Agreement to the contrary
notwithstanding, in the event that it shall be determined that any payment or
distribution by the Company to or for the benefit of the Executive, whether paid
or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise (a "Payment"), would constitute an "excess parachute
payment" within the meaning of Section 280G of the Code, and thus be subject to
the excise tax imposed by Section 4999 of the Code, and that it would be
economically advantageous to the Executive on an after-tax basis to reduce the
Payment to avoid or reduce the excise tax on excess parachute payments under
Section 4999 of the Code, the aggregate present value of amounts payable or
distributable to or for the benefit of the Executive pursuant to this Agreement
(such payments or distributions pursuant to this Agreement being hereinafter
referred to as "Agreement Payments") shall be reduced (but not below zero) to
the Reduced Amount. The "Reduced Amount" shall be an amount expressed in present
value which maximizes the aggregate net amount available to the Executive from
Agreement Payments after reduction for all Federal, state and local income and
payroll taxes, Social Security taxes (including Medicare) and the excise tax
under Section 4999. In applying this Subsection (a), the Agreement Payments
shall be reduced before reducing any other Payments to be made to the Executive.
For purposes of this Section 12, present value shall be determined in accordance
with Section 280G(d)(4) of the Code.
(b) All determinations to be made under this Section 12 shall
be made by the Company's independent public accountant immediately prior to the
Change of Control (the "Accounting Firm"), which firm shall provide its
determinations and any supporting calculations both to the Company and the
Executive within 10 days of the Termination Date. Any such determination by the
Accounting Firm shall be binding upon the Company and the Executive. Within five
days after this determination, the Company shall pay (or cause to be
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paid) or distribute (or cause to be distributed) to or for the benefit of the
Executive such amounts as are then due to the Executive under this Agreement;
provided, however, that the Executive shall have the right to determine which of
the Agreement Payments shall be reduced to satisfy the requirements of this
Section 12.
(c) As a result of the uncertainty in the application of
Section 280G of the Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Agreement Payments, as the case
may be, will have been made by the Company which should not have been made
("Overpayment") or that additional Agreement Payments which have not been made
by the Company could have been made ("Underpayment"), in each case, consistent
with the calculations required to be made hereunder. Accordingly, within two
years after the Termination Date, the Accounting Firm shall review the
determination made by it pursuant to Subsection (b), above. In the event that
the Accounting Firm determines that an Overpayment has been made, any such
Overpayment shall be treated for all purposes as a loan by the Company to the
Executive, which the Executive shall repay to the Company, together with
interest at the applicable federal rate provided for in Section 7872(f)(2) of
the Code (the "Federal Rate"); provided, however, that no amount shall be
payable by the Executive to the Company if and to the extent such payment would
not reduce the amount which is subject to the excise tax under Section 4999 of
the Code. In the event that the Accounting Firm determines that an Underpayment
has occurred, any such Underpayment shall be promptly paid by the Company to or
for the benefit of the Executive together with interest at the rate announced
from time to time by the Chase Manhattan Bank (or any successor) as its prime
rate, plus one percent (1%), each change in such rate to take effect on the
effective date of the change in such prime rate; provided, however, that no such
amount shall be payable by the Company to the Executive to the extent the
Underpayment is attributable to an
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Agreement Payment under Section 4 hereof and Restricted Shares having a value
equal to the Underpayment, as of the date of the Change of Control, subsequently
became Vested. In the event the Executive repays to the Company an Overpayment
(or any portion thereof) which is attributable to an Agreement Payment made
pursuant to Section 4 hereof, then upon receipt of the repayment, the Company
shall cause to be reissued to the Executive the number of Restricted Shares
which were forfeited on account of such Overpayment (or the applicable portion
thereof) and such Restricted Shares shall be subject to the same terms and
conditions as the award and the restricted stock agreement under which they were
originally issued. In the event the Company makes payment to the Executive of an
Underpayment (or any portion thereof) which is attributable to an Agreement
Payment made pursuant to Section 4 hereof, and as of the date of such payment
the Restricted Shares have not become Vested, then an additional number of
Restricted Shares having a value, as of the date of the Change of Control, equal
to the Underpayment (or the applicable portion thereof) shall be forfeited.
(d) All of the fees and expenses of the Accounting Firm in
performing the determinations referred to in Subsections (b) and (c), above,
shall be borne solely by the Company. The Company agrees to indemnify and hold
harmless the Accounting Firm of and from any and all claims, damages and
expenses resulting from or relating to its determinations pursuant to
Subsections (b) and (c), above, except for claims, damages or expenses resulting
from the gross negligence or willful misconduct of the Accounting Firm.
13. AMENDMENTS. No amendment or modification of this Agreement or of
any covenant, condition or limitation herein contained shall be valid, unless in
writing and duly executed by both parties.
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14. WAIVERS. A waiver by any party hereto of any breach of this
Agreement or the failure by a party to insist upon strict adherence to any term
of this Agreement shall not be considered a waiver of any other breach or
deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement.
15. SEVERABILITY. All agreements and covenants contained herein are
severable, and in the event any of them shall be held to be invalid by any court
of competent jurisdiction, this Agreement shall be interpreted as if such
invalid agreements or covenants were not contained herein. Nothing contained in
this Agreement shall be construed so as to require the commission of any act
contrary to law, and whenever there is any conflict between any provision of
this Agreement and any statute, law, ordinance, order or regulation, contrary to
which the parties hereto have no legal right to contract, the latter shall
prevail, but in such event any provision of this Agreement so affected shall be
curtailed and limited only to the extent necessary to bring it within the legal
requirements.
16. ASSIGNMENT. The Executive may not assign his rights or obligations
under this Agreement. This Agreement shall inure to the benefit of and be
binding upon the Executive, his heirs, executors and administrators, and the
Company, its successors and assigns.
17. CANCELLATION OF PRIOR AGREEMENT. This Agreement supersedes and
cancels that certain agreement dated May 1, 1997, between the Company and the
Executive.
18. NOTICES. All notices, requests, consents and other communications
which either party is required or may desire to serve upon the other shall be in
writing (including facsimile or similar writing) and shall be deemed to have
been given at the time when personally delivered or, if mailed, when deposited
in the United States mail, enclosed in a registered or certified postpaid
envelope, addressed to the other party at the address stated below or to such
changed address as
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such party may have fixed by notice, or, if given by facsimile, when electronic
confirmation of the transmission is received:
To the Company: AMETEK, Inc.
00 Xxxxx Xxxxxx Xxxx - Xxxxxxxx 4
X.X. Xxx 0000
Xxxxx, XX 00000
Facsimile: 000-000-0000
Attention: Xxxxx Xxxxxxxx,
General Counsel
and
Xxxx Xxxxxxxxx,
Chief Financial Officer
To the Executive: Xxxxx X. Xxxxxxxx
0000 Xxxxxx Xxxx
Xxxxxx, XX 00000
Facsimile: 000-000-0000;
provided that any notice of change of address shall be effective only when
received.
19. SUCCESSOR COMPANY. The Company shall require any successor or
successors (whether direct or indirect, by purchase, merger, spin-off or
otherwise) to all or substantially all of the business and/or assets of the
Company, by written agreement in form and substance satisfactory to the
Executive, to acknowledge expressly that this Agreement is binding upon and
enforceable against the successor or successors in accordance with the terms
hereof, and to become jointly and severally obligated with the Company to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform if no such succession or successions had
taken place. Failure of the Company to notify the Executive in writing as to
such successorship, to provide the Executive the opportunity to review and agree
to the successor's assumption of this Agreement or to obtain such agreement
prior to the effectiveness of any such succession shall be a breach of this
Agreement. As used in this
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Agreement, the Company shall mean the Company as hereinbefore defined and any
such successor or successors to its business and/or assets, jointly and
severally.
20. TAXES. The Company may withhold from or with respect to any payment
of compensation or taxable benefit provided for under this Agreement any
federal, state or local tax (including any applicable payroll tax or excise tax)
to the extent required by law.
21. ERISA TOP HAT PLAN. To the extent that this Agreement is considered
to be a plan for purposes of the Executive Retirement Income Security Act of
1974, as amended ("ERISA"), it shall be considered an unfunded plan maintained
primarily for the purpose of providing benefits for a select group of management
or highly compensated Executives, within the meaning of U.S. Department of Labor
Regulations Section 2520.104-23 or Section 2520.104-24, as applicable.
22. NO RIGHT OF EMPLOYMENT. This Agreement shall not be construed as
creating any contract of employment between the Company and the Executive.
23. RELEASE. Notwithstanding anything to the contrary contained herein,
the Executive's entitlement to the payment of any amount or receipt of any
benefit coverage under this Agreement, upon or following his termination of
employment, is expressly conditioned upon his execution of a release in the form
required by the Company of its terminating executives prior to the Termination
Date.
24. ARBITRATION. In the event of any dispute under the provisions of
this Agreement, other than a dispute involving an alleged violation by the
Executive of Sections 5 or 7, or a dispute in which the sole relief sought is an
equitable remedy such as an injunction, the parties shall be required to have
the dispute, controversy or claim settled by arbitration in Philadelphia,
Pennsylvania, in accordance with the National Rules for the Resolution of
Employment Disputes
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then in effect of the American Arbitration Association, before one arbitrator
who shall be an executive officer or former executive officer of a publicly
traded corporation, selected by the parties. Any award entered by the arbitrator
shall be final, binding and nonappealable and judgment may be entered thereon by
either party in accordance with applicable law in any court of competent
jurisdiction. This arbitration provision shall be specifically enforceable. The
arbitrator shall have no authority to modify any provision of this Agreement or
to award a remedy for a dispute involving this Agreement other than a benefit
specifically provided under or by virtue of the Agreement; provided, however,
that if the arbitrator finds that the Company has breached this Agreement and,
as a result of any such breach, the Executive has incurred an excise tax under
Section 4999 of the Code, then, in addition to such other remedies as the
arbitrator may award, the arbitrator shall direct the Company to pay the
Executive an amount (the "gross-up payment") which will reimburse the Executive
for the cost of the excise tax, as well as for all federal, state and local
income, excise and payroll taxes incurred by the Executive on the gross-up
payment. The Company shall be responsible for all of the fees of the American
Arbitration Association and the arbitrator and any expenses relating to the
conduct of the arbitration (including reasonable attorney's fees and expenses).
25. GOVERNING LAW. This Agreement shall be subject to, and construed in
accordance with, the laws of the Commonwealth of Pennsylvania, except to the
extent that such laws are preempted by Federal law.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
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AMETEK, INC.
By: /s/ Xxxx X. Xxxxxxxxx
---------------------------------
Xxxx X. Xxxxxxxxx
/s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxxx
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