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英文合同2

2009-05-14 15页 doc 38KB 33阅读

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英文合同2 Change in Control Employment Agreement AAA INDUSTRIES Inc. In Control Employment Agreement THIS AMENDED AND RESTATED AGREEMENT is made between AAA INDUSTRIES Inc., an _________(Placename) corporation(the "Company"), and _________(the "Executive"), dated this ___...
英文合同2
Change in Control Employment Agreement AAA INDUSTRIES Inc. In Control Employment Agreement THIS AMENDED AND RESTATED AGREEMENT is made between AAA INDUSTRIES Inc., an _________(Placename) corporation(the "Company"), and _________(the "Executive"), dated this _________ day of _________, _________. 1. Purpose. The Company wishes to attract and retain well-qualified executive and key personnel. The Company and the Executive wish to assure continuity of management in the event of any actual or threatened Change in Control (as defined in Section 3) of the Company. The Agreement is entered into to accomplish these purposes and in consideration for the mutual covenants herein contained. 2. Operation of Agreement. The "effective date of this Agreement" shall be the first date during the "Change in Control Period" (as defined below) on which a Change in Control occurs. This Agreement shall terminate if the Board of Directors of the Company (the "Board") determines that the Executive is no longer a key executive who should be covered by this Agreement and so notifies the Executive; provided, however, that such a determination shall not be made, and if made shall have no effect, (i) within two years after the Change of Control or (ii) during any period of time when the Company has knowledge that any third person has taken steps reasonably calculated to effect a Change of Control until, in the opinion of the Board, the third person has abandoned or terminated his efforts to effect a Change in Control. Any decision by the Board that the third person has abandoned or terminated his efforts to effect a Change of Control shall be conclusive and binding on the Executive. The "Change in Control Period" shall mean the period commencing on the date hereof and ending on the second anniversary of the date hereof; provided, however, that commencing on the date one year after the date hereof, and on each annual anniversary of such date (such date and each annual anniversary thereof shall be hereinafter referred to as the "Renewal Date"), unless previously terminated, the Change in Control Period shall be automatically extended so as to terminate two years from such Renewal Date, unless at least 60 days prior to the Renewal Date the Company shall give notice to the Executive that the Change in Control Period shall not be so extended. 3. Change in Control. For the purposes of this Agreement, a "Change in Control" shall mean: (a) The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) (a "Person") of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of _________% or more of either (i) the then outstanding shares of common stock of the Company (the "Outstanding Company Common Stock") or (ii) the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of Directors (the "Outstanding Company Voting Securities"); provided, however, that for purposes of this subsection (a), the following acquisitions shall not constitute a Change of Control: (i) any acquisition directly from the Company, (ii) any acquisition by the Company, (iii) any acquisition by any employee benefit plan (or related trust) sponsored or main- tained by the Company or any corporation controlled by the Company or (iv) any acquisition by any corporation pursuant to a transaction which complies with clauses (i), (ii) and (iii) of subsection (c) of this Section 3; or (b) individuals who, as of the date hereof, constitute the Board (the "Incumbent Board") cease for any reason to constitute at least two-thirds of the Board; provided, however, that any individual becoming a Director subsequent to the date hereof whose election, or nomination for election by the Company's shareholders, was approved by a vote of at least three- quarters of the Directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of Directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board; or (c) consummation of a reorganization, merger or consolidation or sale or other disposition of all or substantially all of the assets of the Company (a "Business Combination"), in each case, unless, following such Business Combination, (i) all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the Outstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than _________% of, respectively, the then outstanding shares of common stock and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of Directors, as the case may be, of the corporation resulting from such Business Combination (including, without limitation, a corporation which as a result of such transaction owns the Company or all or substantially all of the Company's assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership, immediately prior to such Business Combination of the Outstanding Company Common Stock and Outstanding Company Voting Securities, as the case may be, (ii) no Person (excluding any corporation resulting from such Business Combination or any employee benefit plan (or related trust) of the Company or such corporation resulting from such Business Combination) beneficially owns, directly or indirectly, _________% or more of, respectively, the then outstanding shares of common stock of the corporation resulting from such Business Combination or the combined voting power of the then outstanding voting securities of such corporation except to the extent that such ownership existed prior to the Business Combination and (iii) at least a majority of the members of the Board of Directors of the corporation resulting from such Business Combination were members of the Incumbent Board at the time of the execution of the initial agreement, or of the action of the Board, providing for such Business Combination; or (d) approval by the shareholders of the Company of a complete liquidation or dissolution of the Company. 4. Employment. (a) The Company hereby agrees to continue the Executive in its employ and the Executive hereby agrees to remain in the employ of the Company, for the period commencing on the effective date of this Agreement and ending on the earlier to occur of (i) the second anniversary of such date or (ii) the Executive's normal retirement date under the Company's applicable retirement plans or under such other agreement as the Company may have made with the Executive (the period commencing on the effective date of this Agreement and, subject to Section 6(c), ending on the earlier to occur of dates specified in clauses (i) and (ii) is referred to herein as the ("Employment Period"). (b) During the Employment Period the Executive's position (including titles), authority and responsibilities shall be at least commensurate with those held, exercised and assigned during the 90-day period immediately preceding the effective date of this Agreement. Such services shall be performed at the location where the Executive was employed immediately prior to the effective date of this Agreement. (c) The Executive agrees that during the Employment Period he shall devote such business time during normal business hours exclusively to the business and affairs of the Company and use his best efforts to perform faithfully and efficiently the responsibilities assigned to him hereunder, in each case, to the extent necessary to discharge the responsibilities assigned to him hereunder, except for (i) services on corporate, civic or charitable boards or committees not significantly interfering with the performance of such responsibilities and (ii) periods of vacation and sick leave to which he is entitled. It is expressly understood and agreed that the Executive's continuing to serve on any boards and committees with which he shall be connected, as a member or otherwise, at the effective date of this Agreement shall not be deemed to interfere with the performance of the Executive's services to the Company. 5. Compensation. (a) Base Salary. During the Employment Period, the Executive shall receive a base salary ("Base Salary") at a monthly rate at least equal to the highest monthly salary paid to the Executive by the Company or any of its affiliated companies within one year prior to the effective date of this Agreement. The Base Salary shall be reviewed at least once each year and shall be increased at any time and from time to time by action of the Board of the Company or any committee thereof or any individual having authority to take such action in accordance with the Company's regular practices. Any increase in the Base Salary shall not serve to limit or reduce any other obligation of the Company hereunder, and after any such increase the Base Salary shall not be reduced. As used in this Agreement, the term "affiliated companies" means any company controlling, controlled by, or under common control with the Company. (b) Annual Bonus. In addition to the Base Salary the Executive shall be awarded for each fiscal year during the Employment Period an annual bonus ("Annual Bonus") (either pursuant to the Executive Bonus Plan or any other bonus or incentive plan or program of the Company or otherwise) in cash at least equal to the highest bonus paid or payable to the Executive in respect of any of the fiscal years during the three fiscal years immediately prior to the effective date of this Agreement. Each such Annual Bonus shall be payable on the last day of February of the year next following the year for which the Annual Bonus is awarded. (c) Incentive and Savings Plans. In addition to the Base Salary and Annual Bonus payable as hereinabove provided, during the Employment Period the Executive shall be entitled to participate in all applicable incentive and savings plans and programs, including, where applicable, the Executive Long-Term Incentive Compensation Plan and the Salary Deferral Plan, and in all applicable retirement and pension plans, including, where applicable, the AAA INDUSTRIES Inc. Profit-Sharing Retirement Plan, on a basis providing him with the opportunity to receive compensation (without duplication of the Annual Bonus) and benefits equal to those provided by the Company and its affiliated companies for the Executive under such plans and programs as in effect at any time during the 90-day period immediately preceding the effective date of this Agreement or, if more favorable to the Executive, as in effect at any time thereafter with respect to executives with comparable responsibilities. (d) Benefit Plans. The Executive or his spouse, as the case may be, shall be entitled to receive employee benefits (including, without limitation, all amounts which he or his spouse is or would have been entitled to receive as benefits under all medical, dental, disability, group life, accidental death and travel accident insurance plans and programs of the Company and its affiliated companies) as in effect at any time during the 90-day period immediately preceding the effective date of the Agreement, or if more favorable to the Executive, as in effect at any time thereafter with respect to executives with comparable responsibilities. (e) Expenses. During the Employment Period the Executive shall be entitled to receive prompt reimbursement for all reasonable expenses incurred by the Executive in accordance with the policies and procedures of the Company as in effect during the 90-day period immediately preceding the effective date of this Agreement or, if more favorable to the Executive, as in effect at any time thereafter with respect to executives with comparable responsibilities. (f) Vacation and Fringe Benefits. The Executive shall be entitled to paid vacation and fringe benefits in accordance with the policies of the Company as in effect during the 90-day period immediately preceding the effective date of this Agreement or, if more favorable to the Executive, as in effect at any time thereafter with respect to executives with comparable responsibilities. 6. Termination. (a) Death or Disability. This Agreement shall terminate automatically upon the Executive's death. The Company may terminate Executive's employment, after having established the Executive's Disability, by giving to the Executive written notice of its intention to terminate his employment, and his employment with the Company shall terminate effective on the 90th day after receipt of such notice (the "Disability Effective Date") if within 90 days after such receipt the Executive shall fail to return to full-time performance of his duties (and if the Executive's Disability has been established pursuant to the definition of "Disability" set forth below). For purposes of this Agreement, "Disability" means disability which after the expiration of more than 26 weeks after its commencement is determined to be total and permanent by a physician selected by the Company or its insurers and acceptable to the Executive or his legal representative (such agreement to acceptability not to be withheld unreasonably). (b) Cause. The Company may terminate the Executive's employment for Cause. For purposes of this Agreement, "Cause" means (i) an act or acts of disAAAesty on the Executive's part which are intended to result in his substantial personal enrichment at the expense of the Company or (ii) repeated violations by the Executive of his obligations under Section 4 of this Agreement which are demonstrably willful and deliberate on the Executive's part and which resulted in material injury to the Company. For purposes of this provision, no act or failure to act, on the part of the Executive, shall be considered to constitute "Cause" unless it is done, or omitted to be done, by the Executive in bad faith or without reasonable belief that the Executive's action or omission was in the best interests of the Company. Any act, or failure to act, based upon authority given pursuant to a resolution duly adopted by the Board or upon the instructions of the Chief Executive Officer or a senior officer of the Company or based upon the advice of counsel for the Company shall be conclusively presumed to be done, or omitted to be done, by the Executive in good faith and in the best interests of the Company. The cessation of employment of the Executive shall not be deemed to be for Cause unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters of the entire membership of the Board at a meeting of the Board called and held for such purpose (after reasonable notice is provided to the Executive and the Executive is given an opportunity, together with counsel, to be heard before the Board), finding that, in the good faith opinion of the Board, the Executive is guilty of the conduct described in subparagraph (i) or (ii) above, and specifying the particulars thereof in detail. (c) Good Reason. The Executive may terminate his employment for Good Reason. For purposes of this Agreement, "Good Reason" means: (i) without the express written consent of the Executive, (A) the assignment to the Executive of any duties inconsistent in any substantial respect with the Executive's position, authority or responsibilities as contemplated by Section 4(b) of this Agreement, or (B) any other substantial change in such position (including titles), authority or responsibilities; (ii) any failure by the Company to comply with any of the provisions of Section 5 of this Agreement, other than an insubstantial and inadvertent failure remedied by the Company promptly after receipt of notice thereof given by the Executive; (iii) the Company's requiring the Executive to be based at any office or location other than that at which the Executive is based at the effective date of this Agreement, except for travel reasonably required in the performance of the Executive's responsibilities; (iv) a purported termination by the Company of the Executive's employment otherwise than as permitted by this Agreement, it being understood that any such purported termination shall not be effective for any purpose of this Agreement; (v) any failure by the Company to obtain the assumption and agreement to perform this Agreement by a successor as contemplated by Section 16; or (vi) any good faith determination by the Executive that the Change in Control has resulted in a change of circumstances rendering the Executive substantially unable to carry out authorities or responsibilities attached to his position held prior to the Change in Control. (d) Notice of Termination. Any termination by the Company for Cause or by the Executive for Good Reason shall be communicated by Notice of Termination to the other party hereto given in accordance with Section 12. For purposes of this Agreement, a "Notice of Termination" means a written notice which (i) indicates the specific termination provision in this Agreement relied upon, (ii) sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Executive's employment under the provision so indicated and (iii) if the termination date is other than the date of receipt of such notice, specifies the termination date of this Agreement (which date shall be not more than 15 days after the giving of such notice). (e) Date of Termination. "Date of Termination" means the date of receipt of the Notice of Termination or the date specified therein, as the case may be. 7. Obligation of the Company upon Termination. (a) Death. If the Executive's employment is terminated by reason of the Executive's death, this Agreement shall terminate without further obligations to the Executive's legal representatives under this Agreement other than those obligations accrued or vested hereunder at the date of his death. (b) Disability. If the Executive's employment is terminated by reason of the Executive's Disability, the Executive shall be entitled to receive disability and other benefits after the Disability Effective Date at least equal to those provided in accordance with Section 5(d). (c) Cause. If the Executive's employment shall be terminated for Cause, the Company shall pay the Executive his full Base Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given, and the Company shall have no further obligations to the Executive under this Agreement, except that such termination shall not modify or affect in any way any accrued right of the Executive to any other compensation payable pursuant to Section 5 or to any vested or accrued benefits payable in accordance with such Section. (d) Good Reason; Other Than for Cause or Disability. (i) Termination Payments. Subject to clause (ii) hereof, if the Company shall terminate the Executive's employment other than for Cause or Disability, or if the Executive shall terminate his employment for Good Reason, the Company shall pay to the Executive the following amounts and provide him with the following benefits: (A) If not theretofore paid, the Executive shall be paid (x) his Base Salary through the Date of Termination at the rate in effect (or, if greater, the rate required by Section 5(a)) at the time the Notice of Termination was given, and (y) a lump-sum cash payment equal to product of
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