Offer Letter - Guilmart

Severance Agreement

Change in Control Agreement

 

 

EX-10.1 2 v193070_ex10-1.htm

Exhibit 10.1

 

August 6, 2010

  

Mr. Bruno Guilmart

 

Dear Bruno:

 

As we discussed, the principal terms of your employment with Kulicke & Soffa Pte Ltd. (the “Company”) are set forth below.  If you are in agreement, please sign, date and return a copy of this letter.

 

Start Date:

 

September 30, 2010

Title:

 

President and Chief Executive Officer

Location:

 

Singapore

 

 

 

Base Salary:

 

An amount in Singapore dollars equal to US$615,000 per annum converted using the 30 day average exchange rate on the date of this letter, payable in accordance with Company practice.

 

 

 

Incentive Cash Bonus:

 

Annual Target is 100% of Base Salary with upside up to a maximum of 200% for outstanding performance.  Bonuses are awarded and paid quarterly.  Performance targets will be determined by the Management Development and Compensation Committee of the Board of Directors of Kulicke and Soffa Industries, Inc. (“KSI”) after consultation with you.

 

Please refer Company’s Proxy Statement dated 12/31/2009 for plan details.

 

 

 

Initial Annual Equity Grant:

 

You will be granted US$1.2 Million in Performance Share Units under the KSI 2009 Equity Plan.  At the end of the three year performance period, the payout will be between zero and 200% of the number of share units granted, based upon shareholder return relative to a market index.

 


 

 

 

The vesting of Performance Share Units will be tied to total shareholder return relative to the companies comprising the Philadelphia Semiconductor Index on the date of grant, measured over the three-year performance measurement period. Performance Share Units will vest at the end of the period between zero and 200% based on performance described below. If you retire, die, become disabled, or are involuntarily terminated without cause (as defined in the 2009 Equity Plan) before the end of the three-year performance measurement period, the performance shares will vest pro rata based on your length of employment during the performance period, to the extent the performance goals are met for the performance period.

 

The final vesting of your performance-based share awards will be expressed as a full percentage point ranging from 0% to 200% ranging from 50% payout for 25th percentile performance to 200% payout for 99th percentile performance, with 100% payout at 50th percentile performance.

 

Please refer to KSI’s Proxy Statement dated 12/31/2009 and the 2009 Equity Plan for plan details.

 

 

 

New Hire Awards:

 

Singapore Assignment Bonus:

A lump sum cash payment of US$726,000 to be paid on January 3, 2011 or another date within one year of the Start Date as you may reasonably request.

Restricted Stock Units (“RSUs”)

A first grant of 428,965 KSI Restricted Stock Units (“RSUs”) on October 1, 2010, which will vest one third on each of the first, second and third anniversaries of the date of grant.  A second grant of 75,000 RSUs on October 1, 2010, which will vest on the date of grant.

 

 

 

Benefits:

 

Maintain your ASFE-Mobility Benefit Plan in effect as of the Start Date in lieu of Company’s Standard Health/Life policy. The Company will in good faith review both plans and supplement the ASFE-Mobility Benefit Plan in areas not covered sufficiently as compared to Company’s Standard Health/Life policy, including Accidental Death & Dismemberment.

 

 

 

Vacation:

 

Four (4) weeks of paid vacation per year.

 

 

 

Severance:

 

If either the Company terminates your employment for any reason other than “Cause” or if you resign for “Good Reason,” (as such terms are defined in the KSI’s officer severance policy) you will be entitled to:

·    An amount equal to 24 months’ base salary as of the last day of your employment, subject to your entering into a general release in favor of the Company, KSI, and all other KSI or Company affiliates, satisfactory to the Company.  If you do not enter into the general release, you will only be entitled to six months of base salary.  In no event will any severance be paid to you if you are employed by, a director of, or an advisor to, a competitor of the Company during the applicable severance period.  Non-competition and confidentiality will be addressed in a separate agreement between you and the Company.

·    Severance payments will be paid as follows: salary continuation on your regularly scheduled pay dates for 24 months.

·    Continuation of participation for you and your family in medical, prescription drug, dental, and vision benefit programs for any applicable severance period.  This coverage would consist of the ASFE Mobility Benefit Plan, with the supplementary coverage as described above.

 

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·    Continuation of eligibility to participate in Company life insurance program to a maximum of six months after the last day of your employment, subject to the agreement of the life insurance provider.

·    Vesting of any stock options would stop on the last day of your employment. You would have three months after such date to exercise vested stock options, unless different terms apply under the applicable stock option plan(s). Any entitlement to share awards would be determined in accordance with the terms of the applicable plan.

·           The terms of this policy are subject to modification by the KSI Board of Directors in light of, among other things, changes in applicable regulations or market practices.

 

 

 

Change-in-control:

 

We will provide to you a change-in-control agreement, which will, in general, provide that if your employment is terminated by the Company for any reason other than Cause, or you terminate your employment voluntarily for Good Reason (as such terms are defined in the change-in-control agreement), within 18 months after a Change of Control of KSI, you will receive the following payments and benefits:

·    An amount equal to 24 months of your annual base salary plus target annual incentive bonus (“target” is 100% achievement), subject to you entering into a general release in favor of the Company, KSI and its subsidiaries, acceptable to Company.  If you do not enter into the general release, you will only be entitled to six months of base salary.

·    Continuation of benefits during the severance period for your spouse and dependent children at the same premium rate as in effect prior to your termination date;

·    Continuation of eligibility to participate in the Company’s life insurance program for a maximum of six months after the last day of your employment if permitted by the life insurance provider; and

·    Please refer to the 2009 Equity Plan for the terms of equity awards upon a change in control of KSI.

·    You understand that the KSI Board of Directors may review change in control arrangements with you and other executives in the future in light of, among other things, changes in applicable regulations or market practices.

 

 

 

Relocation:

 

·     One time lump sum relocation allowance of US$250,000 on January 3, 2011 or a future date within one year of the Start Date as requested by you, to cover movement of your household goods to Singapore, set up, of new household in Singapore, and anticipated transaction related costs for sale of your current residence.

 

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·    US$10,000 per month housing allowance for 24 months, starting on January 3, 2011.

 

 

 

Equity Ownership Guideline:

  

You will be expected to reach and maintain an ownership level of 66,000 common shares of KSI within three years of the Start Date. Under the current Equity Ownership Guidelines, you must retain one half of your net restricted stock awards (“net” meaning after sales to cover tax liability incurred at vesting) until the requirement level of 66,000 shares is reached.

 

Recovery of Previously Paid Executive Compensation:

  

If the Board of Directors of KSI or the Management Development and Compensation Committee of the Board of Directors of KSI determines that any fraud, gross negligence or intentional misconduct by you was a significant factor contributing to KSI restating all or a portion of its financial statement(s), the Board or the Committee will take, in its discretion, such action as it deems necessary to remedy the fraud, gross negligence or intentional misconduct and prevent its recurrence. The Board or the Committee will also review the facts and circumstances underlying the restatement, and if any incentive award was calculated based on the achievement of financial results that were subsequently reduced due to a restatement, may in its discretion (i) require reimbursement to the Company of all or a portion of the incentive award; (ii) cancel any unvested or outstanding incentive award; and (iii) seek reimbursement of any gains realized on the exercise of the incentive awards. Under the policy, the Company may seek to recover or recoup incentive awards that were paid or vested up to 60 months prior to the date the applicable restatement is disclosed.  The terms of this policy are subject to modification by the KSI Board of Directors in light of, among other things, changes in applicable regulations or market practices.


 

We are looking forward to having you join us.


 

Very truly yours,

 

/s/ C. Scott Kulicke

For Kulicke & Soffa Pte Ltd.

 

Accepted and Agreed:

 

/s/ Bruno Guilmart

Bruno Guilmart

August 6, 2010

 

 

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EX-10.1 2 v231893_ex10-1.htm EXECUTIVE SEVERANCE PAY PLAN 

Exhibit 10.1

 

KULICKE AND SOFFA INDUSTRIES, INC.

 

EXECUTIVE SEVERANCE PAY PLAN

 

August 2011

 

 

 


 

 

TABLE OF CONTENTS

 

 

 

 

Page

 

 

 

PART 1.

DEFINITIONS

1

§1.1

Cause

1

§1.2

Code

1

§1.3

Company

1

§1.4

Good Reason

1

§1.5

Executive

1

§1.6

Plan

1

§1.7

Plan Year

2

§1.8

Separation from Service

2

§1.9

Termination Date

2

PART 2.

ELIGIBILITY FOR SEVERANCE BENEFIT

2

§2.1

Eligibility Requirements

2

PART 3.

SEVERANCE PAYMENTS and benefits

2

§3.1

Amount of Severance Pay

2

§3.2

Waiver and Release

2

§3.3

Noncompetition and Nonsolicitation

3

§3.4

Plan Not Funded

3

§3.5

Form and Time of Payment

3

§3.6

Delayed Payment Date

4

§3.7

Continuation of Health Benefits

4

§3.8

Incentive Awards and Bonuses

4

§3.9

Equity Awards

4

§3.10

401(k) Plan

4

PART 4.

OTHER PLAN FEATURES

4

§4.1

Claims Procedure

4

§4.2

Amendment of Plan

6

PART 5.

ADDITIONAL INFORMATION

6

§5.1

Name of Plan

6

§5.2

Plan Administrator

6

§5.3

Withholding

6

§5.4

No Right to Employment

6

§5.5

Construction

6

 

 

 


 

 

KULICKE AND SOFFA INDUSTRIES, INC.

 

EXECUTIVE SEVERANCE PAY PLAN

 

WHEREAS, Kulicke and Soffa Industries, Inc. desires to establish the Kulicke and Soffa Industries, Inc. Executive Severance Pay Plan in order to provide severance benefits to certain eligible officers of Kulicke and Soffa Industries, Inc.;

 

NOW, THEREFORE, effective as of the execution date set forth below, the Plan is set forth to read as follows:

 

PART 1.  DEFINITIONS

 

When the following terms are used in this document with initial capital letters, they shall have the following meanings:

 

§1.1           Cause means the Executive’s (i) intentional dishonesty, (ii) physical or mental incapacity or (iii) willful refusal to perform the duties of his or her office persisting at least 30 days after written notice specifying the respects in which such duties are not being performed.

 

§1.2           Code means the Internal Revenue Code of 1986, as amended.

 

§1.3           Company means Kulicke and Soffa Industries, Inc., a Pennsylvania corporation.

 

§1.4           Good Reason means the following actions without the Executive’s consent, (i) any substantial diminution in the position or authority of the Executive which is inconsistent with the Executive’s then current position or authority, (ii) reduction of the Executive’s base salary (other than a percentage reduction applicable to all other Executives) or exclusion of the Executive from compensation or benefit plans made available to other Executives in his or her salary grade, (iii) any requirement by the Company that the Executive relocate his primary office or location to any office or location more than 30 miles away from the Executive’s then current primary office or location, except for reassignments in connection with termination of expatriate assignments, and (iv) failure by any successor to the Company to expressly adopt this Plan.

 

§1.5           Executive means any officer actively employed by the Company who management proposes as a participant and who is approved to participate by the Management Development and Compensation Committee of the Board of Directors of the Company, other than an Executive who is covered under the Kulicke and Soffa Industries, Inc. Officer Severance Pay Plan or who has an employment agreement providing for an alternative severance arrangement.

 

§1.6           Plan means the severance pay plan established by the Company for the benefit of eligible Executives known as the “Kulicke and Soffa Industries, Inc. Executive Severance Pay Plan” as described herein and as the same may be amended from time to time hereafter.

 

 

- 1 -


 

 

§1.7           Plan Year means the twelve-consecutive-month period beginning on any January 1 and ending on the following December 31.

 

§1.8           Separation from Service means an Executive’s termination of employment which, if the Executive is subject to U.S. income tax, constitutes a separation from service with the Employer and all affiliated companies considered a single employer with the Employer, within the meaning of Treas. Reg. §1.409A-1(h) or any successor thereto.

 

§1.9           Termination Date means the date of the Executive’s Separation from Service.

 

PART 2.  ELIGIBILITY FOR SEVERANCE BENEFIT

 

§2.1           Eligibility Requirements - An Executive who has a Separation from Service as a result his or her employment being terminated by the Company without Cause or as a result of his or her voluntary termination for Good Reason within six months after the event which constitutes Good Reason shall be entitled to severance pay and benefits as provided below.  Notwithstanding anything to the contrary set forth in this Plan, the Company will not pay any severance payment or benefit of any kind to an Executive terminated by the Company in connection with a divestiture of a business of the Company if the Executive receives an offer of employment from the purchaser of the divested business (or an affiliate of the purchaser) which includes targeted annual cash compensation of at least 90% of his or her targeted annual cash compensation at the Company on the Termination Date. For purposes of this calculation, the Company targeted annual cash compensation shall not include any special bonus or other amount payable or paid to the Executive in connection with the disposition of the divested business.

 

PART 3.  SEVERANCE PAYMENTS AND BENEFITS

 

§3.1           Amount of Severance Pay - Subject to §3.2 and §3.3, an Executive shall receive severance pay equal to a specified number months of his or her base salary in effect at his or her Termination Date, as set forth below:

 

Executive

 

Number of Months

 

 

 

Chief Executive Officer

 

24

Chief Financial Officer

 

18

All other Executives

  

12

 

§3.2           Waiver and Release - The Company shall provide a release to the Executive, substantially in the form set forth in Exhibit A no later than the 10th business day following the Executive’s Termination Date.  Subject to the foregoing and notwithstanding any provision of this Plan to the contrary, the Executive shall be entitled to only six months of payments and benefits under this Plan,  unless the Executive executes such release within 45 days of the later of the date he receives the release or his Termination Date and does not revoke it within the required seven-day revocation period.

 

 

- 2 -


 

 

§3.3           Noncompetition and Nonsolicitation - Commencing on the Executive’s Termination Date and continuing for the six-month or longer period during which the Executive is entitled to severance pay, the Executive shall not:

 

 

(i)

directly or indirectly, together or separately or with any third party, whether as an individual proprietor, partner, stockholder, officer, director, joint venturer, investor, or in any other capacity whatsoever actively engage in business or assist anyone or any firm in business as a manufacturer, seller, or distributor of any products or services which are the same, like, similar to, or which compete with the products and services offered by the Company (or any of its affiliates) in any geographic area over which Executive had any direct or indirect responsibility during the last two years of his employment with the Company;

 

 

(ii)

directly or indirectly recruit, solicit or encourage any employee of the Company (or any of its affiliates) or otherwise induce such employee to leave the employ of the Company (or any of its affiliates) or to become an employee or otherwise be associated with his or any firm, corporation, business or other entity with which he is or may become associated; or

 

 

(iii)

solicit, directly or indirectly, for himself or as agent or employee of any person, partnership, corporation, or other entity (other than for the Company) with the intent of actively engaging in business, any then or former customer, supplier, or client of the Company with respect to whom Executive had any direct or indirect responsibility during his last two years of employment with the Company.

 

In the event Executive breaches the foregoing terms, the Company’s obligation to make any further severance payments shall cease and the Company may, in its discretion, discontinue all future severance payments.

 

§3.4           Plan Not Funded - The Company will not make any contributions to fund this Plan.  Any severance payments made pursuant to the Plan will be paid out of the general funds of the Company.  Former Executives receiving or entitled to receive severance payments will not have any secured or preferred interest by way of trust, escrow, lien or otherwise in any specific assets and their rights shall be solely those of an unsecured general creditor of the Company.

 

§3.5           Form and Time of Payment - Severance pay will be paid in equal installments on the Executive’s regularly scheduled pay dates over six months or such longer period of months, as applicable, beginning within 60 days following the Executive’s Termination Date, except as otherwise provided under §3.6 below.  In no event, however, shall the Executive be permitted to determine the calendar year in which such payments begin.

 

 

- 3 -


 

 

§3.6           Delayed Payment Date - Notwithstanding any provisions of this Plan to the contrary, if on the Executive’s Termination Date, stock of the Company (or any other entity considered a single employer with the Company under Treas. Reg. §1.409A-1(g) or any successor thereto) is publicly traded on an established securities market or otherwise and the Executive is subject to United States income tax, severance payments shall not be made or commence to be made before the first business day following the six-month anniversary of the Executive’s Termination Date.  Any installment payments that would otherwise have been made within such six-month period shall accumulate and be paid in one lump sum on the first business day following such six-month anniversary.  Remaining severance payments shall be paid on such Executive’s regularly scheduled pay dates beginning with the first regularly scheduled pay date occurring after the six-month anniversary of the Termination Date.

 

§3.7           Continuation of Health Benefits - Provided required contributions (at the same rate as applicable to active employees) are made on a timely basis, medical, prescription drug, dental and vision insurance coverage may continue for the number of months of severance pay to which the Executive is entitled.  With respect to Executives subject to the healthcare continuation provisions of United States law (referred to as “COBRA”), the COBRA healthcare continuation coverage period under Code section 4980B shall begin to run after the continued health coverage period provided under this §3.7.  If permitted by the insurer of the Company-provided term life insurance, participation may continue for six months following the Termination Date.

 

§3.8           Incentive Awards and Bonuses.  An Executive shall be eligible for incentive awards and/or bonuses in accordance with the terms of the plans in effect at the time of the Executive’s termination of employment which provide for incentive awards and/or bonuses.

 

§3.9           Equity Awards.  Any entitlement to equity compensation with respect to any equity awards outstanding immediately prior to the Termination Date shall be determined in accordance with the terms of each applicable grant agreement and of the plan with respect thereto.

 

§3.10         401(k) Plan.  Participation in the Kulicke & Soffa Incentive Savings Plan shall cease upon the Executive’s Termination Date in accordance with the terms of such Plan.

 

PART 4.  OTHER PLAN FEATURES

 

§4.1           Claims Procedure - Benefits will be paid from the Plan to the Executive only after an eligible Separation from Service as set forth in Part 2 above.  If an Executive believes he or she is entitled to benefits, or is in disagreement with any determination that has been made, he or she may present a claim to the Company as Plan Administrator.

 

(a)           Making a Claim.  Any person who believes she or he is entitled to receive benefits or disputes the benefit amount provided under this Plan may file a claim for benefits.  A claim must be written and must be delivered to the Plan Administrator.  If the Plan Administrator denies in whole or in part any claim for a benefit under the Plan, the claimant shall be sent notice of such decision not later than 90 days after receipt of the claim by the Plan Administrator, unless special circumstances require an extension of time for processing the claim.  If such an extension of time for processing is required, written notice of the extension shall be sent to the claimant prior to the termination of initial 90-day period.  The extension notice shall indicate the special circumstances requiring an extension of time and the date by which the Plan Administrator expects to render the final decision, which date shall not be more than 180 days from the date the claim was filed; provided, however, that in the event the claimant fails to submit information necessary to decide the claim, such period shall be tolled from the date on which the extension notice is sent to the claimant until the date on which the claimant responds to the request for additional information.

 

 

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The written or electronic notice, which the Plan Administrator shall provide to every claimant who is denied a claim for benefits shall set forth in a manner calculated to be understood by the claimant:

 

(i)           the specific reason or reasons for the denial;

 

(ii)          specific reference to pertinent Plan provisions on which the denial is based;

 

(iii)         a description of any additional material or information necessary for the claimant to perfect the claim and an explanation of why such material or information is necessary; and

 

(iv)         an explanation of the review procedures and the time limits applicable to such procedures, including a statement of the claimant’s right to bring a civil action under §502(a) of ERISA following an adverse benefit determination or review.

 

(b)           Requesting Review of a Denied Claim.  A claimant or his authorized representative may request a review of the claim and its denial by the Plan Administrator.  Such request shall be made in writing and shall be presented to the Plan Administrator not more than 60 days after receipt by the claimant of notification of the denial of a claim.  The claimant shall be provided upon request, and free of charge, reasonable access to, and copies of, all documents, records and other information relating to the claim for benefits.  The claimant may submit written issues, documents and other information prepared relating to the claim and the Plan Administrator shall take into account all such information without regard to whether such information was submitted or considered in the initial benefit determination.

 

The Plan Administrator shall make its decision on review not later than 60 days after receipt of the claimant’s request for review, unless special circumstances require an extension of time, in which case a decision shall be rendered as soon as possible but not later than 120 days after receipt of the request for review; provided, however, in the event the claimant fails to submit information necessary to make a benefit determination on review such period shall be tolled from the date the extension notice is sent to the claimant until the date the claimant responds to the request for additional information.  If such an extension of time for review is required because of special circumstances, written notice of the extension shall be sent to the claimant prior to the commencement of the extension.  In the event of a denial, the written or electronic notice of the decision shall include specific reasons for the decision, written in a manner calculated to be understood by the claimant, and specific references to the pertinent Plan provisions on which the decision is based.  The notice of denial shall also include (i) a statement that the claimant is entitled to receive, upon request and free of charge, reasonable access to, and copies of, all documents, records, or other information relevant to the claimant’s claim for benefits; and (ii) a statement describing any voluntary appeal procedures offered by the Plan, and a statement of the claimant’s right to bring an action under §502(a) of ERISA.

 

 

- 5 -


 

 

A claimant shall have no right to bring any action in any court regarding a claim for benefits prior to filing a claim for benefits and exhausting his or her rights to review under this §4.1 in accordance with the time frames set forth herein.  It is intended that the claims procedure of this Plan be administered in accordance with the claims procedure regulations of the Department of Labor set forth in 29 CFR §2560.503-1.

 

(c)           Plan Interpretation.  The Plan Administrator will be the sole judge of the application and interpretation of the Plan, and will have the discretionary authority to construe the provisions of the Plan, to resolve disputed issues of fact, and to make determinations regarding eligibility for benefits.  The decisions of the Plan Administrator in all matters relating to the Plan (including, but not limited to, eligibility for benefits, plan interpretations, and disputed issues of fact) will be final and binding on all parties.

 

(d)           Delegation of Authority.  The Plan Administrator reserves the right to delegate its authority to make decisions.  Any such delegate shall have all the duties and discretionary authority and power of the Plan Administrator under this §4.1.

 

§4.2           Amendment of Plan - The Company reserves the right to amend the Plan at any time by action of its Management Development and Compensation Committee of the Board of Directors.

 

PART 5.  ADDITIONAL INFORMATION

 

§5.1           Name of Plan - The Plan name is “Kulicke and Soffa Industries, Inc. Executive Severance Pay Plan.”

 

§5.2           Plan Administrator - The Plan Administrator is Kulicke and Soffa Industries, Inc.

 

§5.3           Withholding - The Company shall be entitled to withhold from any payments under the Plan any amount required by law to be withheld under federal, state and local wage withholding requirements.

 

§5.4           No Right to Employment - The establishment and maintenance of the Plan shall not confer upon any Executive the right to be continued in the employ of the Company, and the Company expressly reserves the right to terminate the employment of any Executive, whenever the interest of the Company, in its sole judgment, may so require.

 

§5.5           Construction - This Plan is intended to comply with the requirements of Code section 409A and regulations issued thereunder and shall be construed and interpreted in accordance therewith in order to avoid the imposition of additional tax thereunder.  All questions pertaining to interpretation, administration, validity and effect of the provisions of the Plan shall otherwise be determined in accordance with the laws of Pennsylvania to the extent they are not preempted by federal law.

 

 

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IN WITNESS WHEREOF, Kulicke and Soffa Industries, Inc. has caused this Plan to be duly executed this ______ day of _____________________, 2011.

 

KULICKE AND SOFFA INDUSTRIES, INC.

 

By:

 

 

 

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EXHIBIT A

FORM OF  RELEASE

 

1.           Release.  In further consideration of the compensation and benefits provided pursuant to the Kulicke and Soffa Industries, Inc. Executive Severance Pay Plan, _________________ (the “Executive”) intending to be legally bound, hereby irrevocably and unconditionally releases and forever discharges Kulicke and Soffa Industries, Inc. (the “Company”) and any and all of its parents, subsidiaries, affiliates, related entities, joint venturers and each of its and their predecessors, successors, insurers, owners, stockholders, directors, officers, employees, attorneys, and other agents (“Released Parties”) of and from any and all rights, obligations, promises, agreements, debts, losses, controversies, claims, causes of action, liabilities, damages, and expenses, including without limitation attorneys’ fees and costs, of any nature whatsoever, whether known or unknown, asserted or unasserted, which he ever had, now has, or hereafter may have against the Released Parties, or any of them, that arose at any time before or upon his signing this Release, including without limitation the right to take discovery with respect to any matter, transaction, or occurrence existing or happening at any time before or upon his signing this Release and any and all claims arising under any oral or written Company program, policy or practice, contract, agreement or understanding, any common-law principle of any jurisdiction, any federal, state or local statute or ordinance, with all amendments thereto, including without limitation the National Labor Relations Act of 1947, the Civil Rights Acts of 1866, 1871, 1964, and 1991, the Equal Pay Act, the Age Discrimination in Employment Act of 1967, the Rehabilitation Act of 1973, the Bankruptcy Code, the Fair Credit Reporting Act, the Worker Adjustment and Retraining Notification Act, the Employee Retirement Income Security Act of 1974, the Americans With Disabilities Act of 1990, the Family and Medical Leave Act of 1993, the Health Insurance Portability and Accountability Act of 1996, the Sarbanes-Oxley Act of 2002, the Pennsylvania Human Relations Act, and any other employee-protective law of any jurisdiction that may apply.  (All claims encompassed by this Paragraph are hereinafter referred to collectively as the “Claims”).

 

2.           Covenant Not To Sue.  Executive hereby represents and warrants that he has brought no complaint, claim, charge, action or proceeding against any of the Released Parties in any judicial, administrative or any other forum.  Executive covenants to the fullest extent permitted by law that he will not lodge any formal or informal complaint in court, with any federal, state or local agency or in any other forum, whether or not arising out of or related to his employment by or the performance of any services to or on behalf of the Company or the termination of that employment or those services.

 

3.           Knowing and Voluntary Agreement.  Executive acknowledges that he has carefully read and fully understands all of the provisions and effects of this Release; that the Company has advised him in writing, by this Paragraph, to consult with an attorney, and that he has consulted with an attorney of his choice, before signing this Release; that the Company has provided him with no less than forty-five days to consider this Release before signing it; that the Company has provided him with no less than seven days within which to revoke this Release after signing it; that Executive is voluntarily entering into this Release free of coercion and duress; and that neither the Company nor any of its agents or attorneys has made any representations or promises concerning the terms or effects of this Release.

 

 

 


 

 

4.           Severability.  If any provision of this Release is determined to be invalid or unenforceable, the remainder of this Release other than such provision shall not be affected and will remain in full force and effect.

 

5.           Good Faith Settlement.  This Release constitutes the good faith settlement of all claims or potential claims Executive may have against the Released Parties, or any of them, and is not and shall not in any way be construed as an admission of any wrongful or discriminatory act against Executive or that the termination of Executive’s employment was in any way wrongful or unlawful.

 

6.           Effective Date.  This Release shall become effective and enforceable, unless sooner revoked pursuant to Paragraph 8, on the eighth day after Executive signs this Release.  Executive shall deliver this Release bearing his original signature to the Company at the following address:

 

[Name]

Kulicke and Soffa Industries, Inc.

1005 Virginia Drive

Fort Washington, PA   19034

 

7.           Revocation.  Executive may revoke this Release if, before 5:00 p.m. on the seventh day after Executive signs the Release, he delivers to the Company, at the address specified in Paragraph 6, written notice of his intent to revoke this Release.

 

IN WITNESS WHEREOF, intending to be legally bound, the undersigned has executed this Release this ____ day of ___________, 201__.

 

 

 

 

[Name of Executive]

 

 

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EX-10.3 4 v231893_ex10-3.htm FORM OF CHANGE OF CONTROL AGREEMENT 

Exhibit 10.3

 

FORM OF

 

CHANGE OF CONTROL AGREEMENT

 

THIS CHANGE OF CONTROL AGREEMENT (the “Agreement”), dated as of ____________ ___, 2011, is made by and between KULICKE AND SOFFA INDUSTRIES, INC., a Pennsylvania corporation (the “Company”), and _______________ (the “Executive”).

 

BACKGROUND

 

The Executive is an executive officer of the Company; and the board of directors of the Company (the “Board”) has determined that a Change of Control (as defined below) or the prospect of a Change of Control may result in the distraction or departure of key management personnel to the detriment of the Company.  For this reason, the Board has determined that it is in the best interest of the Company to reinforce and encourage the continued attention and dedication of certain key members of management to the interests of the Company in the face of a possible Change of Control by providing them with the terms and conditions set forth herein.

 

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements hereinafter set forth, and intending to be legally bound hereby, the parties hereto agree as follows:

 

1.           Definitions.  When used in this Agreement, the following terms shall have the specific meanings shown in this Section unless the context of any provision of this Agreement clearly requires otherwise:

 

(a)           “Affiliate” and “Associate” shall have the respective meanings ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).

 

(b)           “Beneficial Owner” of any securities shall mean:

 

(i)           a Person or any of such Person’s Affiliates or Associates that, directly or indirectly, has the right to acquire such securities (whether such right is exercisable immediately or only after the passage of time) pursuant to any agreement, arrangement or understanding (whether or not in writing) or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise; providedhowever, that a Person shall not be deemed the “Beneficial Owner” of securities tendered pursuant to a tender or exchange offer made by such Person or any of such Person’s Affiliates or Associates until such tendered securities are accepted for payment, purchase or exchange;

 

 

 


 

 

(ii)           a Person or any of such Person’s Affiliates or Associates that, directly or indirectly, has the right to vote or dispose of or has “beneficial ownership” of such securities (as determined pursuant to Rule 13d-3 of the General Rules and Regulations under the Exchange Act), including, without limitation, pursuant to any agreement, arrangement or understanding (whether or not in writing); providedhowever, that a Person shall not be deemed the “Beneficial Owner” of any security under this subsection (ii) as a result of an oral or written agreement, arrangement or understanding to vote such security if such agreement, arrangement or understanding (A) arises solely from a revocable proxy given in response to a public proxy or consent solicitation made pursuant to, and in accordance with, the applicable provisions of the General Rules and Regulations under the Exchange Act, and (B) is not then reportable by such Person on Schedule 13D or 13G under the Exchange Act (or any comparable successor report); or

 

(iii)           a Person or any of such Person’s Affiliates or Associates that has any agreement, arrangement or understanding (whether or not in writing) with any other Person for the purpose of acquiring, holding, voting (except pursuant to a revocable proxy described in the proviso to subsection (ii) above) or disposing of any voting securities of the Company, in which case such Person shall be the Beneficial Owner of all securities that are Beneficially Owned, directly or indirectly, by such other Person (or any Affiliate or Associate thereof) within the meaning of subsection (i) or (ii) above;

 

providedhowever, that nothing in this subsection (b) shall cause a Person engaged in business as an underwriter of securities to be the “Beneficial Owner” of any securities acquired through such Person’s participation in good faith in a firm commitment underwriting until expiration of forty (40) days after the date of such acquisition.

 

(c)           A “Change of Control” shall be deemed to have taken place if:

 

(i)           any Person (except for the Executive or the Executive’s family, the Company, any employee benefit plan of the Company or of any Affiliate, or any Person or entity organized, appointed or established by the Company for or pursuant to the terms of any such employee benefit plan), together with all Affiliates and Associates of such Person, shall become the Beneficial Owner in the aggregate of fifty percent (50%) or more of the shares of the Company then outstanding and entitled to vote generally in the election of directors;

 

(ii)           any Person (except for the Executive or the Executive’s family), together with all Affiliates and Associates of such Person, purchases all or substantially all of the assets of the Company;

 

(iii)          during any twenty-four (24) month period, individuals who at the beginning of such period constituted the Board cease for any reason to constitute a majority thereof, unless the election, or the nomination for election by the Company’s shareholders, of at least seventy-five percent (75%) of the directors who were not directors at the beginning of such period was approved by a vote of at least a majority of the directors in office at the time of such election or nomination who were directors at the beginning of such period; or

 

(iv)          the Company consummates a merger, consolidation or share exchange (a “Corporate Event”), as a result of which the shareholders of the Company immediately before such Corporate Event shall not hold, directly or indirectly, immediately after such Corporate Event at least a majority of the combined voting power of the voting securities entitled to vote generally in the election of directors of the surviving or resulting corporation, in case of a merger or consolidation, or of the acquiring corporation, in case of the share exchange.

 

 

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(d)           “Person” shall mean any individual, firm, corporation, partnership or other entity.

 

(e)           “Subsidiary” shall have the meaning ascribed to such term in Rule 12b-2 of the General Rules and Regulations under the Exchange Act.

 

(f)           “Termination Date” shall mean the date specified in the Notice of Termination described in Section 2 hereof as the date of the Executive’s Termination of Employment.

 

(g)           “Termination of Employment” shall mean the termination of the Executive’s actual employment relationship with the Company, which, if the Executive is subject to U.S. income tax, constitutes a separation from service as defined under Treas. Reg. §1.409A-1(h).

 

(h)           “Qualifying Termination” shall mean a Termination of Employment for reasons other than death or disability within 18 months after a Change of Control that is either:

 

(i)           initiated by the Company for any reason other than (A) intentional dishonesty, (B) physical or mental incapacity or (C) willful refusal to perform the duties of Executive’s office persisting for at least 30 days after written notice thereof specifying the respects in which such duties are not being performed; or

 

(ii)           initiated by the Executive upon or within six (6) months after one or more of the following which occurs without the consent of the Executive:

 

(A)          any failure of the Company to comply with and satisfy any of the material terms or conditions of this Agreement;

 

(B)           any substantial diminution in the position or authority of the Executive which is inconsistent with the Executive’s then current position or authority;

 

(C)           reduction of the Executive’s base salary (other than a percentage reduction applicable to all other Executives) or exclusion of the Executive from compensation or benefit plans made available to other executives in Executive’s salary grade;

 

(D)           any requirement by the Company that the Executive relocate Executive’s primary office or location to any office or location more than 30 miles away from the Executive’s then current primary office or location, except for relocations in connection with termination of expatriate assignments; or

 

(E)           the failure by any successor to the Company to expressly adopt this Agreement as provided in Section 12.

 

 

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2.           Notice of Termination.  A party initiating a Qualifying Termination shall deliver a Notice of Termination to the other party in accordance with Section 14 hereof.  For purposes of this Agreement, a “Notice of Termination” means a written notice that (a) indicates the specific termination provision in this Agreement relied upon, (b) briefly summarizes the facts and circumstances that provide a basis for a Qualifying Termination under the provision so indicated, and (c) specifies the Termination Date (which date shall not be more than fifteen days after the giving of such notice).

 

3.           Benefits Upon Change of Control and Qualifying Termination.  In the event of a Qualifying Termination:

 

(a)           Subject to the conditions set forth in this Section 3, the Company shall pay to the Executive an amount in cash equal to ___ (___) times the sum of (i) the Executive’s annual base salary and (ii) an amount equal to the Executive’s target percentage as of the Termination Date under the Officer Incentive Compensation Plan times the Executive’s annual base salary.  Annual base salary shall be the annual base salary in effect for the Company’s fiscal year in which the Termination Date occurs.  Such amount shall be paid in the form of salary continuation in equal installments over ____ months payable on such Executive’s regularly scheduled pay dates beginning within 60 days following such Termination Date.  In no event shall the Executive be permitted to determine the calendar year in which such payments begin.  If, however, the Company provides a release, substantially in the form attached as Exhibit A, no later than the 10th business day following the Executive’s Termination Date, the Executive shall be entitled to only one-fourth of such amount payable over six months unless the Executive executes such release within 21 days or 45 days, as provided therein, of the later of the date he receives the release or his Termination Date and does not revoke it within the required seven-day revocation period.  Notwithstanding the foregoing regarding the time of payment, if on the Executive’s Termination Date, stock of Kulicke & Soffa (or any other entity considered a single employer with Kulicke & Soffa under Treas. Reg. §1.409A-1(g) or any successor thereto) is publicly traded on an established securities market or otherwise and the Executive is subject to U.S. income tax, severance payments otherwise payable during the period beginning on the Termination Date and ending on the six-month anniversary of the Termination Date shall be paid in a lump-sum on the first business day after such six-month anniversary.  Remaining severance payments shall be paid on such Executive’s regularly scheduled pay dates beginning with the first regularly scheduled pay date occurring after the six-month anniversary of the Termination Date.

 

(b)           Notwithstanding the foregoing, if the foregoing payment alone or together with any other payments and/or benefits to be made to, or for the benefit of, the Executive, whether pursuant to this Agreement or otherwise, would subject Executive to excise tax under Section 4999 of the Code by virtue being deemed an excess parachute payment, such payments and/or benefits (jointly, “Parachute Payments”) shall be reduced so that the aggregate payments are ten dollars less than three times the Executive’s base amount, as defined in Section 280G of the Code, if such reduction would result in the Executive retaining on an after-tax basis, an amount greater than the Executive would retain after payment of all taxes, including the parachute excise tax, if such payments were not reduced.  Any reduction in Parachute Payments caused by reason of this subsection (b) shall be applied in the manner least economically detrimental to the Executive.  In the event reduction of two or more types of payments would be economically equivalent, the reduction shall be applied pro-rata to such types of payments.

 

 

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(c)           The Executive and the Executive’s spouse and dependent children shall be eligible for medical, prescription drug, dental and vision insurance coverage at the same rate of premium payment as in effect before the Qualifying Termination for the number of months for which severance is payable under Section 3(a).  The continued coverage provided to Executive under this subsection, including cost-sharing, shall be substantially identical to the coverage provided during such period by the Company for its employees generally, as if Executive had continued in employment during such period and shall meet the requirements for COBRA health care continuation coverage.  The COBRA health care continuation coverage period under section 4980B of the Code shall begin to run after the continued health coverage period provided under this Section 3(c).  Notwithstanding the foregoing, if as a result of any nondiscrimination requirements applicable to health plans the Company would be subject to an excise tax or the Executive would be subject to federal income tax on benefits received, the Company and the  Executive agree to amend this provision to the extent necessary to avoid such excise tax or income tax respectively, provided the terms of such amendment comply with, and do not result in any adverse tax consequences under, section 409A of the Code and regulations and other guidance issued thereunder.  If permitted by the insurer of the Company-provided term life insurance, participation may continue for six months following the Termination Date.

 

(d)           The Executive shall be entitled to equity compensation with respect to any outstanding equity awards as provided under the terms of each applicable grant agreement and of the plan with respect thereto governing such equity awards.

 

4.           Non-Exclusivity of Rights.  Nothing in this Agreement shall prevent or limit the Executive’s continuing or future participation in or rights under any benefit, bonus, incentive or other plan or program provided by the Company or any of its Subsidiaries or Affiliates and for which the Executive may qualify; providedhowever, that with respect to a Qualifying Termination, the Executive hereby waives the Executive’s right to receive any payments under any severance pay plan or similar program applicable to other employees of the Company, and agrees to accept the payment provided in Section 3 hereof in lieu of any other severance pay plan or similar program.  Subject to the foregoing, the payments due hereunder shall be in addition to and not in lieu of any payments or other benefits due to the Executive under any other plan, policy or program of the Company.

 

5.           No Set-Off.  The Company’s obligation to make the payments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any circumstances, including, without limitation, any set-off, counterclaim, recoupment, defense or other right that the Company may have against the Executive or others.

 

6.           Death.  If the Executive dies after a Change of Control and Qualifying Termination occurs, (a) any payments due to the Executive under this Agreement and not paid before the Executive’s death shall continue to be made to the person or persons designated by the Executive in writing (or Executive’s personal representative in the absence of such a designation), and (b) the Executive’s spouse and dependents then covered under the benefit plans referred to in Section 3(c) shall be eligible for continued coverage in accordance with Section 3(c).

 

 

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7.           Indemnification.  Until the sixth anniversary of a Change of Control and for so long thereafter as any bona fide claim based on the Executive’s actions or failures to act in his capacity as a service provider of the Company which was asserted on or before such date shall not have been fully adjudicated (the “Indemnification Period”), the Company shall provide to the Executive such rights to indemnification, including payment of expenses incurred with respect to such claim, as are set forth in the Company’s articles of incorporation and bylaws on the date hereof (or, if more favorable to the Executive, as set forth in the Company’s articles of incorporation and bylaws immediately before the Change of Control).  In addition, the Company shall maintain director’s and officer’s liability insurance (from an insurance company rated not less than A by A.M. Best Company) and, if Executive served or has served as a fiduciary of any pension or benefit plan, ERISA fiduciary insurance, on behalf of Executive, at the level in effect immediately before the Change of Control, for the Indemnification Period.

 

8.           Code Section 409A.  This Agreement is intended to comply with Code section 409A with respect to compensation subject to Code section 409A and shall be administered, interpreted and construed in accordance therewith to avoid the imposition of additional tax under Code section 409A.  If any in-kind benefit or expense eligible for reimbursement under this Agreement is subject to Code section 409A, (i) the benefits provided or the amount of expenses eligible for reimbursement during any calendar year shall not affect the benefits provided or expenses eligible for reimbursement in any other calendar year, except as otherwise provided in Treas. Reg. §1.409A-3(i)(1)(iv)(B), and (ii) any reimbursement shall be made no later than the December 31 following the calendar year in which the expense was incurred.

 

9.           Confidential Information and Non-Solicitation.

 

(a)           For purposes of this Agreement, the Executive acknowledges and agrees that the terms “Confidential Information” and “Trade Secrets” shall mean information that the Company or any of its Subsidiaries owns or possesses, that it uses or is potentially useful in its business, that it treats as proprietary, private or confidential, and that is not generally known to the public.  The Executive further acknowledges that the Executive’s relationship with the Company is one of confidence and trust such that the Executive has in the past been, and may in the future be, privy to Confidential Information and Trade Secrets of the Company or any of its Subsidiaries.

 

(b)           The Executive covenants and agrees that during the term of the Executive’s employment by the Company and at all times thereafter the Executive shall keep all Confidential Information and Trade Secrets strictly confidential and that the Executive shall safeguard the Confidential Information and Trade Secrets from exposure to, or appropriation by unauthorized Persons, and that the Executive shall not, without the prior written consent of the Company, divulge, reveal, report, publish, transfer or use, for any purpose whatsoever, such Confidential Information and Trade Secrets.

 

(c)           The Executive acknowledges and agrees that the Company’s business is highly competitive, that the Confidential Information and Trade Secrets have been developed by the Company at significant expense and effort, and that the restrictions contained in this Section 9 are reasonable and necessary to protect the Company’s legitimate business interests.

 

 

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(d)           The parties to this Agreement acknowledge and agree that any breach by the Executive of any of the covenants or agreements contained in this Section 9 will result in irreparable injury to the Company for which money damages could not adequately compensate the Company and therefore, in the event of any such breach, the Company shall be entitled (in addition to any other rights and remedies which it may have at law or in equity) to have an injunction issued by any competent court enjoining and restraining the Executive and any other Person involved therein from continuing such breach.  The existence of any claim or cause of action which the Executive may have against the Company or any other Person (other than a claim for the Company’s breach of this Agreement for failure to make payments hereunder) shall not constitute a defense or bar to the enforcement of such covenants.

 

(e)           If any portion of the covenants or agreements contained in this Section 9, or the application hereof, is construed to be invalid or unenforceable, the other portions of such covenant(s) or agreement(s) or the application thereof shall not be affected and shall be given full force and effect without regard to the invalid or unenforceable portions to the fullest extent possible.  If any covenant or agreement in this Section 9 is held to be unenforceable because of the duration thereof or the scope thereof, then the court making such determination shall have the power to reduce the duration and limit the scope thereof, and the covenant or agreement shall then be enforceable in its reduced form.

 

10.           Taxes.  Any payment required under this Agreement shall be subject to all requirements of law with regard to the withholding of taxes, filing, making of reports and the like, and the Company shall use its best efforts to satisfy promptly all such requirements.

 

11.           Term of Agreement.  The term of this Agreement shall be three (3) years from the date hereof and shall be automatically renewed for successive one-year periods unless the Company notifies the Executive in writing that this Agreement will not be renewed at least sixty (60) days prior to the end of the current term; providedhowever, that (a) from and after a Change of Control during the term of this Agreement, this Agreement shall remain in effect until all of the obligations of the parties hereunder are satisfied or have expired, and (b) this Agreement shall terminate if, before the Change of Control, the employment of the Executive with the Company or any of its Subsidiaries, as the case may be, shall terminate for any reason, or if the Executive shall cease to be an executive officer of the Company.

 

12.           Successor Company.  The Company shall require any successor or successors (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Company, by agreement in form and substance satisfactory to the Executive, to acknowledge expressly that this Agreement is binding upon and enforceable against the Company in accordance with the terms hereof, and to become jointly and severally obligated with the Company to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no such succession or successions had taken place.  Failure of the Company to obtain such agreement prior to the effectiveness of any such succession shall be a breach of this Agreement.  As used in this Agreement, the Company shall mean the Company as hereinbefore defined and any successor or successors to its business or assets, jointly and severally.

 

 

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13.           Disputes.  All disputes and contested claims arising out of, or in connection with, this Agreement shall be decided by arbitration in Philadelphia, Pennsylvania in accordance with the Commercial Arbitration Rules of the American Arbitration Association as then in effect.  The decision or decisions reached in such arbitration shall be final and binding upon the parties, and judgment thereon may be entered in any court of competent jurisdiction.  The Company shall pay the expenses of arbitration other than the fees and expenses of the Executive’s counsel and expert witnesses; providedhowever, that the Company shall pay the Executive the reasonable fees and expenses of counsel incurred in enforcing any of the obligations of the Company under this Agreement if the Executive is awarded any sum in such arbitration, but in no event may such payment be made later than March 15 of the calendar year following the calendar year in which such arbitration award was issued.

 

14.           Notice.  All notices and other communications required or permitted hereunder or necessary or convenient herewith shall be in writing and shall be delivered personally or mailed by registered or certified mail, return receipt requested, or by overnight express courier service, as follows:

 

If to the Company, to:

 

Kulicke and Soffa Pte Ltd

No 6 Serangoon North Avenue 5

#03-16 Singapore 554910

Attention:  Lester Wong, General Counsel and Senior Vice President, Legal Affairs

 

With a copy to:

 

Drinker Biddle & Reath LLP

One Logan Square

Suite 2000

Philadelphia, PA  19103-6996

Attention:  F. Douglas Raymond III, Esq.

 

If to the Executive, to:

 



 

or to such other names or addresses as the Company or the Executive, as the case may be, shall designate by notice to the other party hereto in the manner specified in this Section 14; providedhowever, that if no such notice is given by the Company following a Change of Control, notice at the last address of the Company or to any successor pursuant to Section 12 hereof shall be deemed sufficient for the purposes hereof.  Any such notice shall be deemed delivered and effective when received in the case of personal delivery; five days after deposit, postage prepaid, with the U.S. Postal Service in the case of registered or certified mail; or on the next business day in the case of an overnight express courier service.

 

15.           Governing Law.  This Agreement shall be governed by and construed by and interpreted under the laws of the Commonwealth of Pennsylvania without giving effect to any conflict of laws provisions thereof.

 

 

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16.           Contents of Agreements, Amendment and Assignment.

 

(a)           This Agreement supersedes all prior agreements, and sets forth the entire understanding between the parties hereto, with respect to the subject matter hereof and cannot be changed, modified, extended or terminated except upon written amendment executed by the Executive and approved by the Board and executed on the Company’s behalf by a duly authorized officer.

 

(b)           Nothing in this Agreement shall be construed as giving the Executive any right to be retained in the employ of the Company.

 

(c)           All of the terms and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective heirs, representatives, successors and assigns of the parties hereto, except that the duties and responsibilities of the Executive hereunder shall not be assignable in whole or in part by the Executive or the Company, except to the extent provided in Section 12 hereof.

 

17.           Severability.  If any provision of this Agreement or application thereof to anyone or under any circumstances shall be determined to be invalid or unenforceable, such invalidity or unenforceability shall not affect any other provisions or applications of this Agreement that can be given effect without the invalid or unenforceable provision or application.

 

18.           No Mitigation.  The Executive shall not be required to mitigate the amount of any payment or benefit provided for in this Agreement by seeking other employment or otherwise.  Except as provided in Section 3, the amount of any payment or benefit provided for herein shall not be reduced by any compensation earned by other employment or otherwise.

 

19.           Previous Agreements.  By entering into this Agreement, the parties agree that any previous agreements or understandings regarding the Executive in connection with a change of control are hereby terminated.

 

20.           Miscellaneous.  All section headings are for convenience only.  This Agreement may be executed in several counterparts, each of which is an original.  It shall not be necessary in making proof of this Agreement or any counterpart hereof to produce or account for any of the other counterparts.

 

IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have executed this Agreement as of the date first above written.

 

KULICKE AND SOFFA INDUSTRIES, INC.

 

By:

 

Name:

Title:

 

 

Executive

 

 

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EXHIBIT A

FORM OF RELEASE

 

           1.            Release.  In further consideration of the compensation and benefits provided pursuant to the Change of Control Agreement between Kulicke and Soffa Industries, Inc. (the “Company”) and _________________ (the “Executive”) and intending to be legally bound, Executive hereby irrevocably and unconditionally releases and forever discharges the Company and any and all of its parents, subsidiaries, affiliates, related entities, joint venturers and each of its and their predecessors, successors, insurers, owners, stockholders, directors, officers, employees, attorneys, and other agents (“Released Parties”) of and from any and all rights, obligations, promises, agreements, debts, losses, controversies, claims, causes of action, liabilities, damages, and expenses, including without limitation attorneys’ fees and costs, of any nature whatsoever, whether known or unknown, asserted or unasserted, which he ever had, now has, or hereafter may have against the Released Parties, or any of them, that arose at any time before or upon his signing this Release, including without limitation the right to take discovery with respect to any matter, transaction, or occurrence existing or happening at any time before or upon his signing this Release and any and all claims arising under any oral or written Company program, policy or practice, contract, agreement or understanding (except and only as set forth in the Change in Control Agreement), any common-law principle of any jurisdiction, any federal, state or local statute or ordinance, with all amendments thereto, including without limitation the National Labor Relations Act of 1947, the Civil Rights Acts of 1866, 1871, 1964, and 1991, the Equal Pay Act, the Age Discrimination in Employment Act of 1967, the Rehabilitation Act of 1973, the Bankruptcy Code, the Fair Credit Reporting Act, the Worker Adjustment and Retraining Notification Act, the Employee Retirement Income Security Act of 1974, the Americans With Disabilities Act of 1990, the Family and Medical Leave Act of 1993, the Health Insurance Portability and Accountability Act of 1996, the Sarbanes-Oxley Act of 2002, the Pennsylvania Human Relations Act, and any other employee-protective law of any jurisdiction that may apply.  (All claims encompassed by this Paragraph are hereinafter referred to collectively as the “Claims”).

 

2.           Covenant Not To Sue.  Executive hereby represents and warrants that he has brought no complaint, claim, charge, action or proceeding against any of the Released Parties in any judicial, administrative or any other forum.  Executive covenants to the fullest extent permitted by law that he will not lodge any formal or informal complaint in court, with any federal, state or local agency or in any other forum, whether or not arising out of or related to his employment by or the performance of any services to or on behalf of the Company or the termination of that employment or those services.

 

3.           Knowing and Voluntary Agreement.  Executive acknowledges that he has carefully read and fully understands all of the provisions and effects of this Release; that the Company has advised him in writing, by this Paragraph, to consult with an attorney, and that he has consulted with an attorney of his choice, before signing this Release; that the Company has provided him with no less than [twenty-one] [forty-five] days to consider this Release before signing it; that the Company has provided him with no less than seven days within which to revoke this Release after signing it; that Executive is voluntarily entering into this Release free of coercion and duress; and that neither the Company nor any of its agents or attorneys has made any representations or promises concerning the terms or effects of this Release.

 

 

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4.           Severability.  If any provision of this Release is determined to be invalid or unenforceable, the remainder of this Release other than such provision shall not be affected and will remain in full force and effect.

 

5.           Good Faith Settlement.  This Release constitutes the good faith settlement of all claims or potential claims Executive may have against the Released Parties, or any of them, and is not and shall not in any way be construed as an admission of any wrongful or discriminatory act against Executive or that the termination of Executive’s employment was in any way wrongful or unlawful.

 

6.           Effective Date.  This Release shall become effective and enforceable, unless sooner revoked pursuant to Paragraph 7, on the eighth day after Executive signs this Release.  Executive shall deliver this Release bearing his original signature to the Company at the following address:

 

[Name]

Kulicke and Soffa Industries, Inc.

1005 Virginia Drive

Fort Washington, PA   19034

 

7.           Revocation.  Executive may revoke this Release if, before 5:00 p.m. on the seventh day after Executive signs the Release, he delivers to the Company, at the address specified in Paragraph 6, written notice of his intent to revoke this Release.

 

IN WITNESS WHEREOF, intending to be legally bound, the undersigned has executed this Release this ____ day of ___________, 20___.

 

 

 

 

[Name of Executive]

 

 

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