EXHIBIT 10.1
EMPLOYMENT AGREEMENT
AGREEMENT (the "Agreement"), dated as of this 1st day of January 2000,
by and between ARTESYN TECHNOLOGIES, INC., a Florida corporation (the
"Company"), and JOSEPH M. O'DONNELL ("Executive").
WHEREAS, the Company wishes to employ Executive as its President and
Chief Executive Officer, and Executive wishes to be employed by the Company in
such positions; and
WHEREAS, the Board of Directors of the Company has authorized the
execution of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto hereby agree as follows:
1. Employment.
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1. 1 General. The Company hereby employs Executive in the positions and
capacities of President and Chief Executive Officer, and Executive hereby
accepts such employment, subject to the terms and conditions herein contained.
In such capacities, Executive agrees faithfully to perform (i) all duties
delineated in the By-laws of the Company relating to his positions as President
and Chief Executive Officer, (ii) such duties and responsibilities as are
customary for an executive with similar titles and positions at similar
publicly-traded companies and (iii) such additional duties (consistent with his
positions as President and Chief Executive Officer ) as may reasonably be
assigned to Executive from time to time by the Board of Directors of the Company
(the "Board"). Executive shall. report directly and regularly to the Board.
Executive shall from time to time during the Employment Term (as defined in
Section 4 hereof), communicate and consult with such member(s) of the Board as
is designated by the Board. Subject to the foregoing, Executive shall not be
required to report to or take direction from any particular individual.
1.2 Boards and Committees. The Company shall cause Executive, during
the Employment Term, to continue to be renominated for election to the Board.
Executive will serve, if appointed, on any committee(s) of the Board, and on any
board(s) of directors and/or committee(s) of any subsidiaries of the Company,
all without further compensation.
1.3 Full-Time Position. Executive hereby agrees that, during the
Employment Term he shall devote all of his business time, attention and skills
to the business and affairs of the Company and its subsidiaries, except during
vacation time as provided by Section 3.4 hereof and any periods of illness.
Executive hereof agrees that, during the Employment Term, he will not seek
employment with another entity. Subject to the foregoing, nothing in this
Agreement shall restrict Executive from (i) managing his personal investments,
personal business affairs and other personal matters, (ii) serving on the boards
of directors of companies that do not compete directly or indirectly with the
Company, (iii) serving on civic or charitable boards or committees or (iv)
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delivering lectures, fulfilling speaking engagements or teaching at educational
institutions; provided that none of such activities interfere with the
performance of his duties under this Agreement. Executive must receive approval
of the Board prior to assuming any other directorships.
2. Compensation.
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2.1 Salary. Subject to the terms and conditions herein contained, the
Company shall, effective February 1, 2000, pay to Executive, and Executive shall
accept, for all services to be rendered by him pursuant to this Agreement
(including, but not limited to, any services that may be rendered by him to any
subsidiary of the Company and any services that may be rendered by him as a
member of the Board or the board of any such subsidiary or any committee(s)
thereof) a base salary of $522,000 per annum (the "Base Salary"), payable in
such installments as are in effect from time to time in accordance with the
regular payroll practices of the Company.
2.2 Incentive Payment. In addition to his Base Salary, Executive shall
be entitled to receive an incentive payment in respect of each calendar year
during the Employment Term (an "Incentive Payment") as such may be awarded
pursuant to, and in accordance with, the terms of the Company's Executive
Incentive Plan, as then in effect. For purposes of this Agreement, a payment of
one-hundred seventy (170%) percent of the Base Salary is hereinafter referred to
as the "Maximum Incentive Payment."
2.3 Stock Options. The Company hereby agrees that the Executive will,
at the sole discretion of the Compensation and Stock Option Committee, be
eligible for an annual grant of stock options under the terms of any stock
option plan, as then in effect, at a price not less than 100% of the fair market
value of the Common Stock on the date of grant.
3. Additional Benefits.
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3.1 Expenses. The Company shall reimburse Executive (upon the
submission by him of reasonably itemized accounts therefor), or advance to
Executive, where appropriate, an amount for such costs and expenses as Executive
shall reasonably incur (including, among other things, business travel and
business entertainment expenses) in connection with the performance by him of
his duties hereunder in accordance with the Company's policy with respect
thereto as in effect from time to time during the Employment Term. In addition,
the Executive shall be entitled to, and the Company shall provide, a
non-accountable pre-tax car allowance of $900 per month and reimbursement of
amounts paid by him for the annual planning and preparation of his tax returns
in an amount reasonable and customary for executives of similar status.
3.2 General Fringe Benefits. Executive shall be entitled to, and the
Company shall provide, such fringe benefits of the Company, including, but not
limited to, participation in employee health and benefit plans and the Company's
purchase of health and/or disability insurance, which the Company may from time
to time generally offer its senior executive officers during the Employment Term
and for which the Executive is eligible. In addition, the Executive shall be
entitled to, and the Company shall provide, an annual executive physical exam
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and participation in the medical executive reimbursement plan (MERP), on a basis
consistent with the terms, conditions and administration of such plan.
3.2.1 Life Insurance/Supplemental Retirement. In order to provide a
supplemental retirement benefit for Executive, the Company shall pay, as they
become due, the premiums on the following two (2) whole life insurance policies
on the life of Executive, each policy having a face amount of $250,000: (i)
Northwestern Mutual Life Policy No. 12 758 004 (whole life policy with
adjustable term protection), which policy currently has, Executive hereby
represents, an annual premium of $14,705.00, and (ii) Northwestern Mutual Life
Policy No. 11 882 114 (whole life policy paid-up at age 100), which policy
currently has, Executive hereby represents, an annual premium of $5,295.00. The
quarterly premiums shall be timely paid by the Company upon submission of the
quarterly premium payment vouchers therefor.
3.2.2 Other Insurance Matters. Executive hereby agrees that the Company
may continue, renew and/or purchase term or other insurance (whether group or
individual) on his life pursuant to which the Company is or shall be, as the
case may be, the beneficiary and further agrees to take all reasonable actions,
including undergoing a physical examination, requested by the Company in order
to facilitate its continuing, renewing and/or obtaining such insurance.
3.3 Employee-Managed Time Off. Executive shall be entitled to
twenty-three (23) days of employee-managed time off annually during the
Employment Term. Executive shall provide the Board with reasonable prior notice
of his planned vacation(s). To the extent under the Company's Employee-Managed
Time Off Plan the Executive has accrued carry-over hours, the Executive agrees
he will only be entitled to such accrual, or the economic equivalent, in the
event of a Change of Control (as defined in Section 5.6.4 hereof) and only in an
amount not to exceed 500 hours.
3.4 Other Benefits. Nothing in this Agreement shall prevent the Company
from, or obligate the Company to, increase compensation (including without
limitation any Base Salary or Incentive Payment), any other payments or any
other benefits to Executive, or from deciding to provide Executive with any
benefits in addition to those provided for herein. Subject to the foregoing, the
Compensation Committee, will review the Executive's compensation annually.
4. Term of Employment. Executive's employment hereunder shall commence
on January 1, 2000 and, subject to the provisions of Section 5 hereof, shall
continue through December 31, 2000; provided, however, that commencing on
December 31, 2000 and on each December 31 thereafter (each, a "Renewal Date"),
the term of Executive's employment hereunder shall automatically be extended for
one (1) additional year unless, not later than 60 days prior to a Renewal Date,
Executive or the Company shall have given written notice to the other that he or
it does not wish to extend this Agreement.
The period of such employment is herein referred to as the "Employment
Term". The scheduled expiration of the Employment Term shall not be deemed to be
a termination of the Employment Term hereunder, except as provided in Section
5.6.5 hereof.
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5. Termination.
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5.1 Death. The Employment Term shall terminate automatically in the
event of Executive's death during the Employment Term and upon such termination,
the obligations, duties and liabilities of the Company to Executive shall solely
be as set forth in Section 5.6.1 hereof.
5.2 Disability. In the event of Executive's failure to perform his
duties by reason of his becoming Disabled (as defined herein) during the
Employment Term, the Company shall have the option to terminate the Employment
Term, by giving written notice of such termination to Executive, which notice
shall specify the effective date of termination. Upon such termination,
Executive shall have no further duties hereunder (except as set forth in Section
7 hereof) and the obligations, duties and liabilities of the Company to
Executive shall solely be as set forth in Section 5.6.1 hereof. For purposes of
this Agreement, the term "Disabled" shall mean the inability of Executive, for
medical reason(s) certified by a physician selected by the Company and
reasonably satisfactory to Executive, to substantially perform his duties
hereunder for an aggregate of at least 180 days during any period of 365
consecutive days.
5.3 By the Company for Cause. The Company may, at its option, terminate
the Employment Term, for any of the following reasons (each a "Cause"), upon
five (5) business days' prior written notice to Executive that a meeting of the
Board will be held to consider such action, at which meeting Executive and his
counsel shall be afforded an opportunity to be heard (a "Hearing"). Upon such
termination, Executive shall have no further duties hereunder (except as set
forth in Section 7 hereof) and the obligations, duties and liabilities of the
Company to Executive shall solely be as set forth in Section 5.6.2 hereof:
5.3.1 Violation of Law. If Executive is convicted of a felony under
Federal or state law, the Board may terminate the Employment Term by written
notice to Executive, which termination shall be effective, if not rescinded,
immediately after the date of the Hearing.
5.3.2 Failure to Perform. If, without the prior express written consent
of the Board, Executive fails to perform, in any material respect, any of his
duties or obligations under Sections 1.1, 1.2, 1.3, 7.2, 7.3 or 7.4 hereof
(other than as a result of being Disabled as to which Section 5.2 hereof could
apply), and if such failure continues for more than thirty (30) days after a
Hearing is held in respect thereof, then the Board may terminate the Employment
Term immediately after said thirty (30) day period; provided, however, that if
such failure is incapable of being cured, in the good faith determination of the
Board, the Employment Term shall terminate immediately after the date of the
Hearing.
The parties hereto acknowledge and agree that matters of the business
judgment of Executive or the economic performance of the Company or any segment
thereof shall not be factors in determining Cause, except to the extent that
they involve gross negligence or willful misconduct.
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5.3.3 Other Actions. If, without the prior express written consent of
the Board, Executive takes actions or omits to take actions in connection with
his duties and/or responsibilities hereunder that constitute willful misconduct
or gross negligence and such actions or omissions adversely affect the business,
reputation, or financial or other condition of the Company, the Board may
terminate the Employment Term by written notice to Executive, which termination
shall be effective immediately after the date of the Hearing.
The parties hereto acknowledge and agree that matters of the business
judgment of Executive or the economic performance of the Company or any segment
thereof shall not be factors in determining Cause, except to the extent that
they involve gross negligence or willful misconduct.
5.4 By the Company Without Cause. In addition (and without prejudice)
to its right to terminate the Employment Term under the provisions of Section
5.3 hereof, the Company may, at its option, terminate the Employment Term for
any reason whatsoever by giving written notice of termination to Executive from
the Board, specifying the, date of termination. Upon such termination, Executive
shall have no further duties hereunder (except as set forth in Section 7 hereof)
and the obligations, duties and liabilities of the Company to Executive shall
solely be as set forth in Section 5.6.3 hereof.
5.5 By Executive For Cause. As used herein, "Substantial Breach" shall
mean the Company's material breach of this Agreement, including but not limited
to, without Executive's consent, the assignment to Executive of positions or
duties materially inconsistent with the provisions of this Agreement, a material
diminution of Executive's position, authority, responsibilities or benefits to
which he is then entitled hereunder, any reduction of the compensation provided
for in Section 2.1 and 2.2 hereof, the relocation of corporate headquarters
further than a fifty mile radius from the present headquarters, or the Company's
common stock no longer being publicly traded under The Nasdaq Stock Market or a
national stock exchange. In the event of a Substantial Breach by the Company,
Executive may send a written notice to the Company notifying the Company of the
breach within one hundred twenty (120) days of such breach. If such breach is
not corrected within thirty (30) days after receipt of such notice, then
Executive may, in his sole discretion, elect to terminate the Employment Term by
giving written notice of such election to the Company, and upon receipt by the
Company of such an election, the Employment Term shall terminate. Upon such
termination, Executive shall have no further duties hereunder (except as set
forth in Section 7 hereof) and the obligations, duties and liabilities of the
Company to Executive shall solely be as set forth in section 5.6.3 hereof.
5.6 Payments Upon Termination. In the event that the Employment Term is
terminated hereunder, the Company shall pay to Executive the following amounts,
and the Company shall thereupon have no liability or other obligation of any
kind or character under or in connection with this Agreement (the effective date
of any such termination is hereinafter referred to as the "Termination Date"):
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5.6.1 Death or Disability. In the event that the Employment Term is
terminated pursuant to Section 5.1 or Section 5.2 hereof, the Company shall pay
to Executive or to Executive's executor, administrator, beneficiary or personal
representative (the "Representative"), as the case may be, the following:
(i) the Base Salary due and owing through the Termination Date, payable
in accordance with the Company's regular payroll practices;
(ii) the Base Salary from the Termination Date through one year from
the date thereof, payable in accordance with the Company's then regular payroll
practices; provided, however, that any Company-funded disability or life
insurance or substantially similar disability or death benefits payable to
Executive or to his Representative, as the case may be, (excluding life
insurance provided under Section 3.2.1 hereof) solely an account of such death
or disability shall offset payments of Base Salary under this subsection (ii) if
such insurance and/or benefit amounts are payable prior to the due date(s) of
such payment(s) hereunder; and further provided, that any life insurance
proceeds shall not be utilized to offset any payments made to the Executive on
account of any disability; and
(iii) the Maximum Incentive Payment.
In addition, Executive or his Representative, as the case may be,
shall, to the extent allowable under the law, COBRA limits or the provisions of
the applicable plan, continue to receive during such twelve (12) month period
following the Termination Date all benefits and service credits for benefits
under medical, insurance and other employee benefit plans and programs described
in Sections 3.2 and 3.5 hereof and to which he was entitled at the Termination
Date (collectively, the "Benefits").
5.6.2 By the Company for Cause. In the event that the Employment Term is
terminated pursuant to Section 5.3 hereof, the Company shall pay to Executive
his Base Salary due and owing to him through the Termination Date payable in
accordance with the Company's regular payroll practices.
5.6.3 By the Company without Cause or By Executive for Cause. In the
event that the Employment Term is terminated pursuant to Section 5.4 or Section
5.5 hereof, the Company shall pay to Executive (i) the balance of the Base
Salary and Maximum Incentive Payment due and owing through the Termination Date
payable in accordance with the Company's regular payroll practices; (ii) an
amount equal to two times the sum of the Base Salary and Maximum Incentive
Payment, payable in twenty-four (24) equal monthly installments after the
Termination Date, in accordance with the Company's then regular payroll
practices, provided, however, that the last twelve (12) payments shall not be
paid by the Company if the Executive is found to be in breach of Section 7
hereof; and (iii) the costs and expenses of outplacement related services which
Executive shall reasonably incur in an amount not to exceed $45,000 (upon the
submission by him or reasonably itemized invoices therefore).
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In addition, Executive shall continue to receive, to the extent
allowable by law, the Benefits during the period set forth in clause (ii) above.
To the extent such Benefits under COBRA cannot be provided by law after a period
of eighteen (18) months, the Company will reimburse the Executive an amount
equivalent to the cost of such Benefits under COBRA to the Executive for the
remaining six (6) month period.
5.6.4 Effect of Change of Control.
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(a) Payment Upon Termination.
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If a Change of Control (as hereinafter defined) occurs prior to a
termination of the Employment Term, then in the event of the subsequent
termination of the Employment Term pursuant to section 5.4 or Section 5.5
hereof, the Company shall, in lieu of the amount otherwise payable under Section
5.6.3 hereof: (i) within ten (10) days after the Termination Date, pay to
Executive a lump-sum payment equal to the sum of the Base Salary and the Maximum
Incentive Payment multiplied by three (3) and (ii) to the extent allowable under
the law, COBRA limits and the provisions of the applicable plan, maintain the
Benefits for a period of three (3) years after the Termination Date. To the
extent such Benefits under COBRA cannot be provided by law after a period of
eighteen (18) months, the Company will reimburse the Executive an amount
equivalent to the cost of such Benefits under COBRA to the Executive for the
remaining eighteen (18) month period. Notwithstanding the foregoing, the
Executive shall not be entitled to receive any payments under Section 5.6.4
hereof, in the event the Company sells its Power Conversion business but still
continues to own at least fifty one (51%) percent interest in its Communications
Products business.
In order for Executive to become entitled to the payments pursuant to
this subsection (a) as a result of a termination pursuant to Section 5.5 hereof,
he shall provide the notice referred to in such Section no later than one
hundred twenty (120) days following the Termination Date.
(b) Change of Control Defined. A "Change of Control" shall be
deemed to have occurred upon any of the following events:
(i) The consummation of any of the following transactions: (A) a
merger, recapitalization or other business combination of the Company with or
into another corporation, or an acquisition of securities or assets by the
Company, pursuant to which the Company is not the continuing or surviving
corporation or pursuant to which all shares of the Common Stock are converted
into cash, securities of another corporation or other property, other than a
transaction in which the holders of the Common Stock immediately prior to such
transaction (including any preliminary or other transactions relating to such
transaction) will continue to own at least 50% of the total voting power of the
then-outstanding securities of the surviving or continuing corporation
immediately after such transaction, (B) any sale, lease, exchange, or other
transfer (in one transaction or a series of related transactions) of all, or
substantially all, of the assets of the Company or (C) the liquidation or
dissolution of the Company, except in connection with the voluntary or
involuntary declaration of bankruptcy or insolvency under applicable Federal
and/or state law;
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(ii) A transaction in which any Person (as such term is used in
Sections 13 (d) (3) and 14 (d) (2) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), corporation or other entity (other than the
Company, an affiliate of the Company, or any profit-sharing, employee ownership
or other employee benefit or similar plan sponsored by the Company or any of its
subsidiaries, or any trustee of or fiduciary with respect to any such plan when
acting in such capacity, or any group comprised solely of such entities): (A)
shall purchase Common stock (or securities convertible into Common Stock)
representing at least 40% of the total voting power of the then-outstanding
securities of the Company for cash, securities or any other consideration
pursuant to a tender offer or exchange offer, or (B) shall become the
"beneficial owner" (as such term is defined in Rule 13d-3 under the Exchange
Act), directly or indirectly (in one transaction or a series of related
transactions), of securities of the Company representing 50% or more of the
total voting power of the then-outstanding securities of the Company ordinarily
(and apart from the rights accruing under special circumstances) having the
right to vote in the election of the Company's directors; or
(iii) if, during any period of two (2) consecutive years, individuals
who at the beginning of such period constituted the entire Board and any new
director whose election by the Board or nomination for election by the Company's
stockholders was approved by a vote of at least a majority of the directors then
still in office who either were directors at the beginning of the period or
whose election or nomination for election by the stockholders was previously so
approved, cease for any reason to constitute a majority thereof.
(c) Certain Additional Payments by the Company.
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(i) Anything in this Agreement to the contrary notwithstanding, in the
event it shall be determined that any payment or distribution to or for the
benefit of the Executive (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or any other plan,
arrangement or agreement with the Company, any person whose actions result in a
Change in Control or any Person affiliated with the Company or such Person, but
determined without regard to any additional payments required under this Section
5.6.4(c) (a "Payment") would be subject to the excise tax imposed by Section
4999 of the Internal Revenue Code of 1986, as amended (the "Code") or any
interest or penalties are incurred by the Executive 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 Executive
shall be entitled to receive an additional payment (a "Gross-Up Payment") in an
amount such that after payment by the Executive 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 Executive
retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon
the Payments.
(ii) Subject to the provisions of paragraph (ii) of this Section
5.6.4(c), all determinations required to be made under this Section 5.6.4(c),
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 a nationally recognized certified public
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accounting firm designated by the Executive (the "Accounting Firm"), which shall
provide detailed supporting calculations both to the Company and the Executive
within fifteen (15) business days after receipt of notice from the Executive
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
5.6.4(c), shall be paid by the Company to the Executive within five (5) days of
the receipt of the Accounting Firm's determination. Any determination by the
Accounting Firm shall be binding upon the Company and the Executive. 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
paragraph (iii) of this Section 5.6.4(c) and the Executive 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
Executive.
(iii) The Executive 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 (10) business days after the Executive 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
Executive shall not pay such claim prior to the expiration of the thirty (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 Executive in writing prior to
the expiration of such period that it desires to contest such claim, the
Executive shall:
(A) give the Company any information reasonably requested by the
Company relating to such claim;
(B) 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;
(C) cooperate with the Company in good faith in order effectively to
contest such claim; and
(D) 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 Executive harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
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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 paragraph (iii) of Section 5.6.4(c), the Company shall control all
proceedings taken in connection with such contest and, at its sole option, may
pursue or forego 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 Executive to pay the tax claimed and sue for a
refund or contest the claim in any permissible manner, and the Executive 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
Executive to pay such claim and sue for a refund, the Company shall advance the
amount of such payment to the Executive, on an interest-free basis and shall
indemnify and hold the Executive 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 provided, further, that any extension of the
statute of limitations relating to payment of taxes for the taxable year of the
Executive 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 Executive 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 Executive of an amount advanced by the
Company pursuant to paragraph (c) of this Section 5.6.4, the Executive becomes
entitled to receive any refund with respect to such claim, the Executive shall
(subject to the Company's complying with the requirements of paragraph (iii) of
this Section 5.6.4(c) promptly pay to the Company the amount of such refund
(together with interest paid or credited thereon after taxes applicable
thereto). If after the receipt by the Executive of an amount advanced by the
Company pursuant to paragraph (iii) of this Section 5.6.4(c), a determination is
made that the Executive shall not be entitled to any to any refund with respect
to such claim and the Company does not notify the Executive in writing of its
intent to contest such denial of refund prior to the expiration of thirty (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.
5.6.5 Non-Renewal By the Employer. If the Company shall give notice of
non-renewal of the Employment Term in accordance with the provisions of Section
4 hereof, the Company shall pay to Executive an amount equal to two times the
sum of the Base Salary and the Maximum Incentive Payment, payable in twenty-four
(24) equal monthly installments after the end of the Employment Term payable in
accordance with the Company's then regular payroll practices.
The parties hereto hereby agree that, for the purposes of this Section
5.6.5, the Termination Date shall be the date upon which Executive's employment
hereunder is scheduled to expire pursuant to Section 4 hereof, unless the
parties hereto mutually agree to an earlier date.
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Upon the payment of the foregoing amount to Executive, the Company
shall have no liability or other obligation of any kind or character under or in
connection with this Agreement, except with respect to Section 7 hereof.
Following Executive's attainment of the age of 65 years, all
obligations and liabilities of the Company under this Section 5.6.5 in respect
of its decision not to renew Executive shall forthwith terminate.
6. Arbitration.
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6.1 General. Any dispute under this Agreement arising out of or
relating to Section 5 hereof shall be settled by arbitration in accordance with
this Section 6.
6.2 Commencement. Either party may serve upon the other party written
notice that the dispute, specifying the nature thereof, shall be submitted to
arbitration. Within ten (10) days after the service of such notice, each of the
parties shall designate a disinterested arbitrator and serve written notice of
such appointment upon the other party. If either party fails within the
specified time to appoint such arbitrator, the other party (if such party shall
timely designate an arbitrator) shall be entitled to appoint both arbitrators.
The two arbitrators so appointed shall appoint a third arbitrator. If the two
arbitrators appointed shall fail to agree upon a third arbitrator within ten
(l0) days after their appointment, then an application may be made by either
party hereto, upon written notice to the other party, to the American
Arbitration Association, or any successor thereto, or if the American
Arbitration Association or its successor shall fail to appoint a third
arbitrator within ten (10) days after such request. then either party may apply,
with written notice to the other, to any court of competent jurisdiction for the
appointment of a third arbitrator, and any such appointment so made shall be
binding upon both parties hereto.
6.3 Applicable Rules and Procedures. The arbitration shall be
conducted, to the extent consistent with this Section 6, in accordance with the
then prevailing rules and procedures of the American Arbitration Association or
its successor. The arbitrators shall have the right to retain and consult
experts and competent authorities skilled in the matters under arbitration, but
all consultations shall be made in the presence of both parties, who shall have
full right to cross-examine the experts and authorities.
6.4 Decision. The arbitrators shall render their award, upon the
concurrence of at least two of their number, not later than thirty (30) days
after the appointment of the third arbitrator. Their decision and award shall be
in writing, and counterpart copies shall be delivered to each of the parties.
Such decision of the arbitrators shall be final and binding upon the parties
hereto. in rendering their award, the arbitrators shall have no power to modify
any of the provisions of this Agreement, and the jurisdiction and power of the
arbitrators are expressly limited accordingly. Judgment may be entered on the
award of the arbitrators and may, be enforced in any court having jurisdiction.
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Each of the parties hereto shall bear all of its/his own fees, costs
and expenses, including attorneys, fees, incurred by it in connection with any
arbitration proceeding pursuant to this Section 6. Notwithstanding the
foregoing, in the event any party fails to comply with the decision of the
arbitrators and the other party undertakes any action(s) or proceeding(s) to
enforce such compliance, all costs and expenses (including reasonable legal
fees) incurred by the party seeking to enforce such compliance shall be borne by
the party failing to so comply.
7. Non-disclosure; Non-compete; Availability.
-----------------------------------------
7.1 "Confidential Information" Defined. "Confidential Information"
shall mean any and all information (verbal and written) of the Company or any of
its subsidiaries or with respect to any of their activities including, but not
limited to, information relating to the Company's technology; research; test
procedures and results; manufacturing machinery and equipment; manufacturing
processes; financial information; products; identity of raw materials and
services used; purchasing; trade secrets; costs; pricing; engineering; customers
and prospects; marketing; and selling and servicing; provided, that Confidential
Information shall not include information of a general, non-proprietary nature
generally known in the industry and Company specific information that in such
form is or becomes publicly available other than through improper means in which
Executive participated or of which he has knowledge.
7.2 Non-Disclosure of Confidential Information. Executive hereby agrees
that he shall not, at any time during the Employment Term (other than as may be
required in connection with the performance by him of his duties hereunder) or
thereafter, directly or indirectly, use, communicate, disclose or disseminate
any Confidential Information in any manner whatsoever (except as may be required
under legal process by subpoena or other court order), without the prior written
consent of the Company.
7.3 Non-compete Covenant. Executive hereby agrees that he shall not,
during the Employment Term and, as long as he duly receives any payments due to
him pursuant to Section 5.6.3 hereof, for a period of twelve (12) months
thereafter, directly or indirectly engage in any business (whether as owner,
manager, operator, lender, partner, stockholder, licenser, licensee, joint
venturer, employee, consultant or otherwise) in which the Company or any of its
subsidiaries, as of the Termination Date, is engaged as a significant portion of
its business [it is hereby agreed that (i) any business that constitutes at
least twenty (20%) percent of the Company's prior fiscal year's revenues and
(ii) the Company's Power Conversion, Communications Products and Repair and
Logistics business areas shall automatically be deemed "significant" hereunder
in any geographic area in which the Company or any of its subsidiaries then is
so engaged. Notwithstanding the foregoing, Executive shall be permitted to own
(as a passive investment) not more than two (2%) percent of the economic
interests of a person or entity; provided, however, that said two (2%) percent
limitation shall apply to the aggregate holdings of Executive and those of all
other persons and entities with whom Executive has agreed to act for the purpose
of acquiring, holding, voting or disposing of such securities, except pursuant
to a bona fide operating agreement in respect of such person or entity, such as
a stockholders' agreement or partnership agreement. In the event of a
termination of the Employment Term as a result of a change in a "Change of
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Control", the non-compete covenant contained in this paragraph shall not apply
to the Executive.
7.4 Certain Activities. For purposes of clarification, but not of
limitation, Executive hereby acknowledges and agrees that, in addition to the
provisions of Section 7.3 above, he shall not, during the period referred to
therein, directly or indirectly, hire, offer to hire, entice away or in any
other manner persuade or attempt to persuade any officer, employee, agent,
lessor, lessee, licenser, licensee, customer (including those that are being
actively solicited to become customers), creditor or supplier (each, a
"Solicited Person") of the Company or any of its subsidiaries to discontinue or
adversely alter his or its relationship with the Company or any of its
subsidiaries so that such person can start or develop a relationship with any
other person in which Executive has an interest as referred to in Section 7.3
hereof. For purposes of this Section 7.4, a Solicited Person shall be deemed to
include any person or entity who was an officer, employee, agent, lessor,
lessee, licenser, licensee, customer, prospective customer, creditor or supplier
at any time during the six-month period prior to the termination of the
Employment Term.
7.5 Injunctive Relief, etc. The parties hereto hereby acknowledge and
agree that (i) the Company would be irreparably injured in the event of a breach
by Executive of any of his obligations under this Section 7; (ii) monetary
damages would not be an adequate remedy for any such breach; and (iii) the
Company shall be entitled to injunctive relief, in addition to any other
remedies that it may have, in the event of any such breach. It is hereby also
agreed that the existence of any claims that Executive may have against the
Company or any of its subsidiaries, whether under this Agreement or otherwise,
shall not be a defense to the enforcement by the Company of any of its rights
under this Section 7.
If the Company shall commence an injunctive action against Executive in
a court of competent jurisdiction, Executive may commence an action in such
court, in lieu of the arbitration of claims under Section 6 hereof, and upon
Executive's commencement of such action, the provisions of Section 6 hereof
shall be null and void and of no further effect.
7.6 Scope of Restrictions. It is the intent of the parties hereto that
the covenants and restrictions contained in this Section 7 shall be enforced to
the fullest extent permissible under the laws and public policies of each
jurisdiction in which enforcement is sought. Executive hereby acknowledges that
said restrictions are reasonably necessary for the protection of the Company.
Accordingly, it is hereby agreed that if any provision of this Section 7 shall
be adjudicated to be invalid or unenforceable for any reason whatsoever, said
provision shall be (only with respect to the operation thereof in the particular
jurisdiction in which such adjudication is made) construed by limiting and
reducing it so as to be enforceable to the fullest extent permissible, without
invalidating or limiting the remaining provisions of this Agreement or affecting
the validity or enforceability of said provision in any other jurisdiction.
7.7 Non-exclusivity. The undertakings and obligations of Executive
contained in this Section 7 shall be in addition to, and not in lieu of, any
obligations which he may have with respect to the subject matter hereof, whether
by contract, as a matter of law or otherwise.
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7.8 Availability. Reasonably subject to his employment commitments
elsewhere, Executive hereby agrees to make himself available to the Company
after the termination of the Employment Term, at such reasonable time or times
as may be required by the Company in connection with any pending or threatened
litigation or governmental investigation involving the Company, not to exceed
five (5) days in any calendar quarter unless otherwise mutually agreed. The
Company shall advance or reimburse Executive for any out-of-pocket expenses
reasonably incurred by him in fulfilling his obligations under this Section 7.8
upon the submission by him of reasonably itemized accounts therefor, and shall
pay Executive a mutually agreed upon per diem fee for any days in excess of two
(2) hereunder, including reasonable preparation time.
7.9 Survival of Provisions of Section 7. It is understood and agreed
that the provisions of this Section 7 shall survive the date of termination or
expiration of the Employment Term.
8. Miscellaneous Provisions.
------------------------
8.1 Withholding. All payments required to be made to Executive by the
Company hereunder shall be subject to any applicable withholding under
applicable Federal, state and local income tax laws. Any such withholding shall
be based upon the most recent Form W-4 filed by Executive with the Company, and
Executive may from time to time revise such filing.
8.2 Severability. If in any jurisdiction any term or provision hereof
is adjudicated to be invalid or unenforceable, (i) the remaining terms and
provisions hereof shall be unimpaired, (ii) any such invalidity or
unenforceability in any jurisdiction shall not invalidate, limit or render
unenforceable such provision in any other jurisdiction and (iii) the invalid or
unenforceable term or provision shall, for purposes of such jurisdiction, be
deemed replaced by a term or provision that is valid and enforceable and that
comes closest to expressing the intention of the invalid or unenforceable term
or provision.
8.3 Indemnification. The Company shall indemnify Executive to the
fullest extent permitted by applicable law for all amounts (including without
limitation, judgments, fines, settlement payments, costs, expenses and
attorneys' fees and expenses) reasonably incurred or paid by Executive in
connection with any claim, action, suit, investigation or proceeding arising out
of or relating to performance by Executive of services for, or actions of
Executive as (or Executive's serving in the position of) a director, officer or
employee of, the Company, any subsidiary or affiliate of the Company or any
enterprise at the Company's request, and shall advance to Executive (subject to
Executive's undertaking to repay any advances if it is determined that he is not
entitled to them) the reasonable costs, including attorneys fees, of defending
any such notion. The provisions of this Section 8.3 shall survive the
termination of this Agreement.
8.4 Execution in Counterparts. This Agreement may be executed in one or
more counterparts, and by each of the parties hereto in separate counterparts,
each of which shall be deemed to be an original but all of which taken together
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shall constitute one and the same agreement, and this Agreement shall become
effective when one or more counterparts has been signed by each of the parties
hereto and delivered to the other party hereto.
8.5 Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed duly given when delivered by
hand, or when delivered if mailed by registered or certified mail or private
courier service, postage prepaid, to the respective addresses as follows:
If to the Company, to:
Artesyn Technologies, Inc.
7900 Glades Road - Suite 500
Boca Raton, FL 33434
Attn: Vice President - Chief Financial Officer
If to Executive, to:
Joseph M. O'Donnell
3681 Carlton Place
Boca Raton, Florida 33496
or to such other address(es) as either party hereto shall have designated by
like notice to the other Party hereto.
8.6 Amendment. No provision of this Agreement may be modified, amended
or discharged in any manner, except by a written instrument executed by each of
the parties hereto.
8.7 Entire Agreement. This Agreement constitutes the entire agreement
of the parties hereto with respect to the subject matter hereof, and supersedes
all prior agreements and understandings of the parties hereto, oral and written.
Each party hereto hereby acknowledges and agrees that, other than as contained
herein, no other representations or warranties, oral or written, have been made,
expressly or impliedly, by the other party hereto.
8.8 Applicable Law. This Agreement shall be governed by the laws of the
State of Florida applicable to contracts made and to be wholly performed
therein.
8.9 Headings. The headings contained herein are for the sole purpose of
convenience of reference, and shall not in any way limit or affect the meaning
or interpretation of any of the terms or provisions of this Agreement.
8.10 Non-assignability.
-----------------
8.10.1 By Executive. Neither this Agreement nor any right, duty,
obligation or interest hereunder shall be assignable or delegable by Executive
without the Company's prior written consent; however, that Executive may
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designate any of his beneficiaries to receive (and such beneficiaries shall
receive) any compensation, payments or other benefits payable hereunder upon or
after his death, or the foregoing may be transferred by the laws of descent or
distribution.
8.10.2 By the Company. This Agreement and all of the Company's rights
and obligations hereunder may be assigned or transferred by it through a merger,
consolidation or other business combination, including a Change of Control. Upon
the occurrence of such a transaction, any such successor company resulting
therefrom shall be deemed to be substituted for all purposes as the Company
hereunder.
8.11 Binding Effect; Benefits. This Agreement shall inure to the
benefit of, and be binding upon, the parties hereto and their respective heirs,
legal representatives, successors and permitted assigns.
8.12 Waiver. The failure of either of the parties hereto at any time to
enforce any provision of this Agreement shall not be deemed or construed to be a
waiver of any such or any other provision, nor to in any way affect the validity
of this Agreement or any provision hereof or the right of either of the parties
hereto to thereafter enforce each and every provision of this Agreement. No
waiver of any breach of any of the provisions of this Agreement shall be
effective unless set forth in a written instrument executed by the party against
whom or which enforcement of such waiver is sought, and no waiver of any such
breach shall be construed or deemed to be a waiver of any other or subsequent
breach.
8.13 Capacity, etc. Executive hereby represents and warrants to the
Company and the Company hereby represents and warrants to Executive that: (i) he
(or it) has full power, authority and capacity to execute and deliver this
Agreement, and to perform his (or its) obligations hereunder, (ii) said
execution, delivery and performance will not (and with the giving of notice or
lapse of time, or both, would not) result in the breach of any agreement or
other obligation to which he (or it) is a party or is otherwise bound and (iii)
this Agreement is his (or its) valid and binding obligation enforceable in
accordance with its terms.
8.14 Entire Agreement. This Agreement constitutes the entire agreement between
the parties hereto with respect to the subject matter hereof, and supersedes all
prior agreements, including the Employment Agreement, dated June 24, 1994,
understandings, oral and written, among the parties hereto with respect to the
subject matter thereof.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the parties hereto as of the date first above written.
ARTESYN TECHNOLOGIES, INC.
BY: Richard J. Thompson
--------------------------------
TITLE:Vice President, Chief
Financial Officer
------------------------------
Joseph M. O'Donnell
------------------------------
Joseph M. O'Donnell
AGREED AND ACCEPTED:
Phillip A. O'Reilly
---------------------------------
Phillip A. O'Reilly
Chairman - Compensation Committee
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