AMENDMENT TO CHANGE-IN-CONTROL SEVERANCE AGREEMENT
EXHIBIT
10.1
AMENDMENT
TO CHANGE-IN-CONTROL SEVERANCE AGREEMENT
THIS
AMENDMENT, dated as of July 29, 2005, by and between American Power Conversion
Corporation, with its principal place of business at 000 Xxxxxxxxxxx Xxxx,
Xxxx
Xxxxxxxx, XX (the “Company”) and ________________ (the
“Executive”).
WHEREAS,
the Company and the Executive have entered into a Change-In-Control Severance
Agreement dated as of __________, 2000 (the “Agreement”);
WHEREAS,
the Compensation and Stock Option Committee of the Board of Directors of the
Company has authorized the amendment of such Agreements to comply with Section
409A of the Internal Revenue Code;
NOW,
THEREFORE, in consideration of the mutual covenants and agreements hereinafter
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Company and the Executive agree as
follow:
1. Paragraph
(i) in the definition of “Change in Control” in Section 1 of the Agreement is
deleted in its entirety and the following is substituted in its
place:
“(i) the
members of the Board at the beginning of any consecutive 12-calendar-month
period (the “Incumbent Directors”) cease for any reason other than due to death
to constitute at least a majority of the members of the Board; provided that
any
director whose election, or nomination for election by the Company’s
stockholders, was approved by a vote of at least a majority of the members
of
the Board then still in office who were members of the Board at the beginning
of
such 12-calendar-month period, shall be deemed to be an Incumbent
Director;”
2. The
following is added as a new paragraph following Paragraph (iii) in the
definition of “Change in Control” in Section 1 of the Agreement:
“Notwithstanding
the foregoing, none of the foregoing event(s) shall constitute a Change in
Control unless such event(s) constitute a “change in the ownership or effective
control” or a change “in the ownership of a substantial portion of the assets,”
in each case within the meaning of Section 409A(a)(2)(A)(v) of the Code and
any
regulations and other guidance in effect from time to time thereunder including
without limitation Notice 2005-1.”
3. The
following is added as new Section 2.6:
“Notwithstanding
any other provision of this Agreement, if the Executive is a “key employee” as
defined in Section 416(i) of the Code without regard to paragraph 5 thereof,
no
payment under this Agreement with respect to separation from service shall
be
made before the date which is six months after the date of separation from
service (or, if earlier, the date of death of the Executive).”
4. In
all
other respects, the Agreement shall remain in full force and
effect.
IN
WITNESS WHEREOF, the undersigned have caused this instrument to be executed
as
of the day and year first set forth above.
| AMERICAN POWER CONVERSION CORPORATION | ||
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