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Exhibit 10.1(ab)
SAUER-DANFOSS INC.
COMPENSATION COMMITTEE
SAUER-DANFOSS INC.
CHANGE-IN-CONTROL AGREEMENT
EUROPEAN PARTICIPANTS
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CONTENTS
Section 1. Agreement Period 1
Section 2. Change In Control 2
Section 3. Definition of Employment Terminations 4
Section 4. Covenant Not to Compete 5
Section 5. Disclosure of Confidential Information 6
Section 6. Nonsolicitation 7
Section 7. Injunctive Relief and Additional Remedy;
Essential and Independent Covenants 7
Section 8. Arbitration 8
Section 9. Notices 8
Section 10. Continuation of Employment 8
Section 11. Successors 8
Section 12. Entire Agreement; Modification, Waiver and Interpretation 8
Section 13. Severability 9
Section 14. Counterparts 9
Section 15. Headings 9
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CHANGE IN CONTROL AGREEMENT
THIS CHANGE IN CONTROL AGREEMENT (the "Agreement") has been entered into
this _______ day of _________________ , 2000 (the "Effective Date") between
Sauer-Danfoss A/S, (the "Company"), and Henrik Krabsen (the "Employee").
A consolidation of business entities has been taking place on a global
basis, including entities engaged in the Company's industry. The Board of
Directors of the Company (the "Board") recognizes that the possibility of a
Change In Control (as such term is defined in Section 2 herein) of the Company's
parent, Sauer-Danfoss Inc., a Delaware Corporation ("Sauer-Danfoss") exists and
that such possibility, and the uncertainty and questions which it necessarily
raises among management, may result in the departure or distraction of
management personnel to the detriment of the Company, Sauer-Danfoss and its
stockholders. Accordingly, the Board has determined to take appropriate steps to
reinforce and encourage the continued attention and dedication of members of the
Company's and Sauer-Danfoss' management teams, including the Employee, to their
assigned duties while minimizing the natural distractions presented by the
possibility of a Change In Control of Sauer-Danfoss.
In order to induce the Employee to remain in the employ of the Company or
its subsidiaries and in consideration of the Employee's agreements set forth in
Sections 4, 5 and 6, it is mutually agreed as follows:
1. AGREEMENT PERIOD
The initial term of this Agreement shall commence as of the Effective
Date, and shall expire, subject to the earlier termination of the Employee's
employment as hereinafter provided, on December 31, 2001. The initial term of
this Agreement automatically shall be extended for one (1) additional year at
the end of the initial term, and then again after each successive year
thereafter. However, either party may terminate this Agreement at the end of the
initial term or at the end of any successive year thereafter by giving the other
party written notice of intent not to renew, delivered on or prior to September
30, 2001, or September 30 of any successive year.
In the event such notice of intent not to renew is properly delivered by
either party, this Agreement, along with all corresponding rights, duties, and
covenants, shall automatically expire at the end of the initial term or the
successive year then in progress, as the case may be.
However, regardless of the above, if at any time during the term of this
Agreement, a Change In Control of Sauer-Danfoss occurs, then this Agreement
shall be extended and become immediately irrevocable for a period of two (2)
years from the date of the Change In Control (the "Protection Period"), except
as provided in the following paragraph.
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The foregoing notwithstanding, in the event that at any time (including,
without limitation, during the Protection Period) (a) the Company terminates the
Employee's employment for Cause (as such term is defined in Section 3(b)
herein), or (b) the Employee terminates his employment with the Company without
Good Reason (as such term is defined in Section 3(a) herein), all provisions of
this Agreement shall terminate, and, without limiting the generality of the
foregoing, the Company shall have no obligation to make the payments or provide
the benefits set forth in Section 2; provided, however, that the provisions of
Sections 4, 5, 6, 7 and 8 shall survive such termination.
2. CHANGE IN CONTROL.
(a) DEFINITION OF "CHANGE IN CONTROL." "Change In Control" of
Sauer-Danfoss means, and shall be deemed to have occurred upon any of the
following events:
(i) Any person or entity (other than those persons and/or
entities in control of Sauer-Danfoss as of the Effective
Date, or other than a trustee or other fiduciary holding
securities under an employee benefit plan of
Sauer-Danfoss, or a corporation owned directly or
indirectly by the stockholders of Sauer-Danfoss in
substantially the same proportions as their ownership of
stock of Sauer-Danfoss) becomes the beneficial owner,
directly or indirectly, of securities of Sauer-Danfoss
representing thirty percent (30%) or more of the combined
voting power of Sauer-Danfoss's then outstanding
securities; provided, however, that a change in control
shall not result from (a) Danfoss A/S, or (b) Klaus
Murmann, any member or members of his immediate family or
any entity or trust a majority of which is owned by Klaus
Murmann or a member or members of his immediate family,
acquiring securities of Sauer-Danfoss from the other,
either directly, or indirectly by acquiring voting control
of Danfoss Murmann Holding A/S or its successor; or
(ii) During any period of two (2) consecutive years (not
including any period prior to the Effective Date),
individuals who at the beginning of such period constitute
the Board (and any new Director, whose election by
Sauer-Danfoss's stockholders was approved by a vote of at
least two-thirds (2/3) of the Directors then still in
office who either were Directors at the beginning of the
period or whose election or nomination for election was so
approved), cease for any reason to constitute a majority
thereof; or
(iii) The stockholders of Sauer-Danfoss approve: (A) a plan of
complete liquidation of Sauer-Danfoss; or (B) an agreement
for the sale or disposition of all or substantially all of
Sauer-Danfoss's assets; or (C) a merger, consolidation, or
reorganization of Sauer-Danfoss with or involving any
other corporation, other than a merger, consolidation, or
reorganization that would result in the voting securities
of Sauer-Danfoss outstanding immediately prior thereto
continuing to represent (either by remaining outstanding
or by being
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converted into voting securities of the surviving
entity) at least fifty percent (50%) of the combined
voting power of the voting securities of Sauer-Danfoss
(or such surviving entity) outstanding immediately
after such merger, consolidation, or reorganization.
However, in no event shall a Change In Control be deemed to have
occurred, with respect to the Employee, if the Employee is part of a
purchasing group which consummates the Change In Control transaction. The
Employee shall be deemed "part of a purchasing group" for purposes of the
preceding sentence if the Employee is an equity participant in the
purchasing company or group (except for (i) passive ownership of less than
one percent (1%) of the stock of the purchasing company; or (ii) ownership
of equity participation in the purchasing company or group which is
otherwise not significant, as determined prior to the Change In Control by
a majority of the non-employee continuing Directors).
(b) EMPLOYMENT TERMINATIONS AFTER A CHANGE IN CONTROL. In the
event that (A) the Employee terminates his employment with the Company during
the Protection Period for Good Reason (as such term is defined in Section 3(a)
herein), or (B) the Employee's employment with the Company is involuntarily
terminated by the Company during the Protection Period, unless any such
termination is by the Company for Cause (as such term is defined in Section 3(b)
herein), then the Company shall pay to the Employee and provide him with the
following:
(i) A lump-sum cash amount equal to the Employee's unpaid base
salary, accrued vacation pay, unreimbursed business
expenses, and all other items earned by and owed to the
Employee through and including the date of termination (in
full satisfaction for these amounts owed to the Employee).
(ii) A lump-sum cash amount equal to the Employee's then
current annual target bonus opportunity, established under
the annual incentive plan for the bonus plan year in which
the Employee's termination occurs, multiplied by a
fraction, the numerator of which is the number of full
completed days in the bonus plan year through the
effective date of termination, and the denominator of
which is 365. This payment will be in lieu of any other
payment to be made to the Employee under the annual bonus
plan for the respective plan year.
(iii) A lump-sum cash amount equal to the Employee's then
current annual base salary and target annual bonus
opportunity multiplied by two (2).
(iv) A lump-sum cash amount equal to 10% of the Employee's then
current annual base salary in lieu of continued
participation in Company provided benefits.
The parties agree that all payments provided for in this Section 2
shall be deemed to constitute liquidated damages for the Company's breach of
this Agreement, and the Company agrees that the Employee shall not be required
to mitigate such damages by seeking other
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employment or otherwise, nor shall the amount of any payment provided for in
this Section 2 be reduced by any compensation earned by the Employee as the
result of employment by another employer or by retirement benefits after the
date of termination, or otherwise. Upon making all of the payments provided
for in this Section 2, the Company shall have fully satisfied all of its
obligations under this Agreement.
Notwithstanding the foregoing, the payments provided for in this
Section 2 shall be reduced by the amount of any payments to which the Employee
is otherwise entitled to receive upon termination of employment with the Company
pursuant to any employment agreement or any laws or rules or regulations of any
governmental agency.
The parties also agree that, in the event of a termination of
employment that obligates the Company to make the payments set forth in this
Section 2, the provisions in Sections 4, 5, 6, 7 and 8 herein shall survive such
termination.
3. DEFINITION OF EMPLOYMENT TERMINATIONS. Whenever this Agreement refers
to the Employee's employment with the Company, or the termination of the
Employee's employment with the Company, the term "Company" shall include
Sauer-Danfoss and any of Sauer-Danfoss's subsidiaries that employ the Employee.
(a) TERMINATION FOR GOOD REASON. Good Reason shall mean, without
the Employee's prior written consent, the occurrence of any one or more of the
following:
(i) The assignment to the Employee of any duties significantly
different from the duties being performed by the Employee
at the time of the Change In Control, it being understood
that the Employee's duties after a Change In Control may
be performed on a divisional or subsidiary level of the
Company, its successor or the acquiring entity which shall
not be a significant change if the duties are of a similar
nature to the Employee's duties at the time of the Change
In Control;
(ii) The Company's requiring the Employee to be based more than
fifty (50) miles from the location of his principal office
at the time of the Change In Control;
(iii) A material reduction or elimination of any component of
the Employee's compensation in effect at the time of the
Change In Control; or
(iv) A breach by the Company of any provision of this Agreement
which is not remedied by the Company promptly after
receipt of notice thereof given by the Employee.
(b) TERMINATION FOR CAUSE. "Cause" shall be determined by the
Company in the exercise of good faith and reasonable judgment, and shall mean
(i) willful misconduct or fraud; (ii) conviction of a felony; (iii) consistent
gross neglect of duties or wanton negligence by the
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Employee in the performance of his duties; or (iv) the material breach by the
Employee of the terms of this Agreement, including without limitation, any of
the provisions of Sections 4, 5 and 6.
4. COVENANT NOT TO COMPETE.
(a) Without the consent of the Company, the Employee shall not,
directly or indirectly, anywhere in the world, at any time during the Employee's
employment with the Company and for a period of two (2) years following the
termination of Employee's employment with the Company for any reason, be
associated or in any way connected as an owner, investor, partner, director,
officer, employee, agent, or consultant with any business entity directly
engaged in the manufacture and/or sale of products competitive with any material
product or product lines of the Company, Sauer-Danfoss or any of Sauer-Danfoss's
subsidiaries; provided, however, that the Employee shall not be deemed to have
breached this undertaking if his sole relation with such entity consists of his
holding, directly or indirectly, an equity interest in such entity not greater
than two percent (2%) of such entity's outstanding equity interest, and the
class of equity in which the Employee holds an interest is listed and traded on
a broadly recognized national or regional securities exchange. For purposes
hereof, the term "material product or product line of the Company" shall mean
any product or product line of the Company, Sauer-Danfoss or any of
Sauer-Danfoss's subsidiaries, the consolidated gross sales of which during any
calendar year during the five (5) year period preceding the termination of
Employee's employment with the Company were at least $10 million.
(b) The Employee acknowledges that: (a) the services performed by
him for the Company are of a special, unique, unusual, extraordinary, and
intellectual character; (b) the business of the Company, Sauer-Danfoss, and its
subsidiaries is worldwide in scope and its products are marketed throughout the
world; (c) the Company, Sauer-Danfoss, and its subsidiaries compete with other
businesses that are or could be located in any part of the world; and (d) the
provisions of this Section 4 are reasonable and necessary to protect the
Company's business.
(c) If any covenant in this Section 4 is held to be unreasonable,
arbitrary, or against public policy, such covenant will be considered to be
divisible with respect to scope, time, and geographic area, and such lesser
scope, time, or geographic area, or all of them, as a court of competent
jurisdiction may determine to be reasonable, not arbitrary, and not against
public policy, will be effective, binding, and enforceable against the Employee.
(d) The period of time applicable to any covenant in this Section
4 will be extended by the duration of any violation by the Employee of such
covenant.
(e) The Employee will, while the covenants under this Section 4
are in effect, give notice to the Company, within ten days after accepting any
other employment, of the identity of the Employee's employer. The Company may
notify such employer that the Employee is bound
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by this Agreement and, at the Company's election, furnish such employer with
a copy of this Agreement or relevant portions thereof.
5. DISCLOSURE OF CONFIDENTIAL INFORMATION.
(a) Without the consent of the Company, the Employee shall not
disclose to any other person Confidential Information (as defined below)
concerning the Company, Sauer-Danfoss or any of Sauer-Danfoss's subsidiaries or
the Company's, Sauer-Danfoss's or any of Sauer-Danfoss's subsidiaries' trade
secrets of which the Employee has gained knowledge during his employment with
the Company. Any trade secrets of the Company, Sauer-Danfoss or any of
Sauer-Danfoss's subsidiaries will be entitled to all of the protections and
benefits under the Iowa Code Annotated Section 550.1 through 550.8 and any other
applicable law. If any information that the Company deems to be a trade secret
is found by a court of competent jurisdiction not to be a trade secret for
purposes of this Agreement, such information will, nevertheless, be considered
Confidential Information for purposes of this Agreement. The Employee hereby
waives any requirement that the Company submit proof of the economic value of
any trade secret or post a bond or other security. None of the foregoing
obligations and restrictions apply to any part of the Confidential Information
that the Employee demonstrates was or became generally available to the public
other than as a result of a disclosure by the Employee.
(b) The Employee will not remove from the premises of the Company,
Sauer-Danfoss or any of Sauer-Danfoss's subsidiaries (except to the extent such
removal is for purposes of the performance of the Employee's duties at home or
while traveling, or except as otherwise specifically authorized by the Company),
any document, record, notebook, plan, model, component, device, or computer
software or code, whether embodied in a disk or in any other form, that contains
Confidential Information (collectively, the "Proprietary Items"). The Employee
recognizes that, as between the Company and the Employee, all of the Proprietary
Items, whether or not developed by the Employee, are the exclusive property of
the Company, Sauer-Danfoss or Sauer-Danfoss's subsidiaries, as the case may be.
Upon termination of this Agreement by either party, or upon the request of the
Company during the Employment Period, the Employee will return to the Company
all of the Proprietary Items in the Employee's possession or subject to the
Employee's control, and the Employee shall not retain any copies, abstracts,
sketches, or other physical embodiment of any of the Proprietary Items.
(c) For purposes of this Agreement, Confidential Information shall
include any and all information concerning the business and affairs of the
Company or any of its subsidiaries, including, without limitation, product
specifications, data, know-how, formulae, compositions, processes, designs,
sketches, photographs, graphs, drawings, samples, inventions and ideas, past,
current, and planned research and development, current and planned distribution
methods and processes, customer lists, current and anticipated customer
requirements, price lists, market studies, business plans, computer software and
programs (including object code and source code), computer software and database
technologies, systems, structures, and architectures (and related formulae,
compositions, processes, improvements, devices, know-how, inventions,
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discoveries, concepts, ideas, designs, methods and information), historical
financial statements, financial projections and budgets, historical and
projected sales, capital spending budgets and plans, the names and backgrounds
of key personnel, agents, personnel training and techniques and materials,
insurance products, premium structures, information relating to suppliers and
supplies, sales and marketing information and strategy, notes, analysis,
compilations, studies, summaries, and other material prepared by or for the
Company, Sauer-Danfoss or any of Sauer-Danfoss's subsidiaries containing or
based, in whole or in part, on any information included in the foregoing, and
any information, however documented, that is a trade secret within the meaning
of the Iowa Code Annotated Section 550.1 through 550.8.
6. NONSOLICITATION. Without the written consent of the Company, the
Employee shall not at any time during the Employment Period and for a period of
two (2) years following the termination of Employee's employment with the
Company for any reason (a) employ or retain or arrange to have any other person,
firm, or other entity employ or retain or otherwise participate in the
employment or retention of any person who is an employee or consultant of the
Company, Sauer-Danfoss or any of Sauer-Danfoss's subsidiaries; or (b) solicit or
arrange to have any other person, firm, or other entity solicit or otherwise
participate in the solicitation of business from any entity that was a customer
of the Company, Sauer-Danfoss or any of Sauer-Danfoss's subsidiaries during the
time of the Employee's employment, whether or not the Employee had personal
contact with such person.
7. INJUNCTIVE RELIEF AND ADDITIONAL REMEDY; ESSENTIAL AND INDEPENDENT
COVENANTS.
(a) The Employee acknowledges that the injury that would be suffered by
the Company as a result of a breach of the provisions of this Agreement
(including any provision of Sections 4, 5 and 6) would be irreparable and that
an award of monetary damages to the Company for such a breach would be an
inadequate remedy. Consequently, the Company will have the right, in addition to
any other rights it may have, to obtain injunctive relief to restrain any breach
or threatened breach or otherwise to specifically enforce any provision of this
Agreement, and the employer will not be obligated to post bond or other security
in seeking such relief. Without limiting the Company's rights under this Section
7 or any other remedies of the Company, if the Employee breaches any of the
provisions of Sections 4, 5 and 6, the Company will have the right to cease
making any payments otherwise due to the Employee under this Agreement.
(b) The covenants by the Employee in Sections 4, 5 and 6 are essential
elements of this Agreement, and without the Employee's agreement to comply with
such covenants, the Company would not have entered into this Agreement with the
Employee. The Company and the Employee have independently consulted their
respective counsel and have been advised in all respects concerning the
reasonableness and propriety of such covenants (including, without limitation,
the time period of restriction and the geographical area of restriction set
forth in Section 4), with specific regard to the nature of the business
conducted by the Company, Sauer-Danfoss and Sauer-Danfoss's subsidiaries. The
Employee's covenants in Sections 4, 5 and 6 are independent covenants and the
existence of any claim by the Employee against the Company
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under this Agreement or otherwise, will not excuse the Employee's breach of
any covenant in Sections 4, 5 and 6. If this Agreement or the Employee's
employment with the Company expires or is terminated, this Agreement will
continue in full force and effect as is necessary or appropriate to enforce
the covenants and agreements of the Employee in Sections 4, 5, 6, 7 and 8.
8. ARBITRATION. All disputes arising under this Agreement, or arising
out of the termination of Employee's employment with the Company, between the
Employee and the Company, its officers, directors, employees and agents, in
their capacity as such or otherwise, other than those disputes relating to
Employee's alleged violations of Sections 4, 5 and 6 herein, which cannot
otherwise be resolved amicably, shall be submitted to binding arbitration by the
American Arbitration Association ("AAA") in Des Moines, Iowa, pursuant to the
rules and procedures of the AAA. The fee and expense of the arbitrators shall be
split equally between the Company and Employee. The decision of the arbitrator
shall be final and binding and there shall be no appeal from any award rendered.
In any judicial enforcement proceeding, the losing party shall reimburse the
prevailing party for its reasonable costs and attorney's fees for enforcing its
rights under this Agreement, in addition to any damages or other relief granted.
This Section 8 does not apply to any action by the Company to enforce Section 4,
5 and 6 of this Agreement and does not in any way restrict the Company's rights
under Section 7(a) of this Agreement.
9. NOTICES. Notices given pursuant to this Agreement shall be in
writing and shall be deemed given when received by the Company or by
Sauer-Danfoss. Notice shall be made to the Board of Directors of
Sauer-Danfoss Inc., Attention Chairman, or if to the Employee, at
_____________________________________________ or to such other address as
either party may have previously designated by notice to the other party
given in the foregoing manner.
10. CONTINUATION OF EMPLOYMENT. This Agreement is not an employment
agreement, it shall not confer upon the Employee any right to continuation of
employment by the Company, nor shall this Agreement interfere in any way with
the Company's right to terminate the Employee's employment at any time.
11. SUCCESSORS. This Agreement may not be assigned by the Company, and
the obligations of the Company provided for in this Agreement shall be binding
legal obligations of any successor to the Company by purchase, merger,
consolidation, or otherwise. This Agreement may not be assigned by the Employee
during his life, and upon his death will be binding upon and inure to the
benefit of his heirs, legatees, and the legal representatives of his estate.
12. ENTIRE AGREEMENT; MODIFICATION, WAIVER, AND INTERPRETATION. This
Agreement contains the entire agreement between the parties with respect to the
subject matter of this Agreement and supersedes all prior agreements and
understandings, oral or written, between the parties hereto with respect to the
subject matter of this Agreement. No provision of this Agreement may be
modified, waived, or discharged unless such waiver, modification, or discharge
is agreed to in a writing signed by the Employee and an appropriate officer of
the
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Company empowered to sign same by the Board. No waiver by either party at any
time of any breach by the other party of, or compliance with, any condition
or provision of this Agreement to be performed by the other party shall be
deemed a waiver of similar or dissimilar provisions or conditions at the same
time or at any prior or subsequent time. This Agreement shall be deemed to
have been executed in Ames, Iowa and the validity, interpretation,
construction, and performance of this Agreement shall be governed by the laws
of the State of Iowa without regard to conflicts of laws principles.
13. SEVERABILITY. If any provision of this Agreement is held invalid or
unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement.
15. HEADINGS. The headings contained herein are for reference purposes
only and shall not in any way affect the meaning or interpretation of any
provision of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the day and year first written above.
THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY
THE PARTIES.
SAUER-DANFOSS INC.
By:
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Henrik Krabsen
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