Transition & Retirement Agreement dated February 8, 2021
TRANSITION AND RETIREMENT AGREEMENT
THIS TRANSITION AND RETIREMENT AGREEMENT (“Agreement”) is entered into as of February 8, 2021 by Yuval Wasserman, residing in Denver, Colorado (“Executive”) and Advanced Energy Industries, Inc., a Delaware corporation, located at 1595 Wynkoop Street (8th Floor), Denver, Colorado 80202 (“AEI”), for and on behalf of itself and its predecessors, successors, assigns, parents, subsidiaries, branches, affiliated entities and related entities (collectively, the “Company”). Executive and Company are referred to in this Agreement as the “Parties.” This Agreement shall become effective on the Effective Date, as defined in Section 18.
WHEREAS, Executive, who is currently employed by AEI as its Chief Executive Officer, has indicated to the Company his desire to retire and voluntarily terminate his employment at some point in the future, and both Executive and the Company would like to provide for an orderly transition of Executive’s duties and responsibilities to a successor Chief Executive Officer between now and Executive’s retirement date;
WHEREAS, the Board of Directors of AEI (“Board”) are engaged in a process to identify a successor Chief Executive Officer;
WHEREAS, this Agreement sets forth the terms and conditions of Executive’s role with the Company on and after the Effective Date and any continuing obligations of the Parties to one another following the end of the employment relationship; and
WHEREAS, each of the Parties has had ample opportunity to review the facts and law relevant to the issues set forth in this Agreement, has consulted fully and freely with competent counsel of its and his choice if desired, and has entered this Agreement knowingly and intelligently without duress or coercion from any source, and Executive has had a reasonable time in which to consider whether to sign this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises contained below, it is agreed as follows:
Executive acknowledges and understands that, except as listed above, this Agreement provides no other rights to compensation or benefits for the period from the Effective Date through the Retirement Date.
|i.||if the Retirement Date occurs on or before the Transition Date, then Executive (or his estate or beneficiaries, if applicable) shall be entitled to the compensation and benefits provided for in the Severance Agreement, if any, based on the reason for Executive’s termination of employment;|
|ii.||if the Retirement Date occurs after the Transition Date:|
|A.||Due to a CIC Termination (as defined in the Severance Agreement), then Executive shall be entitled to the compensation and benefits provided for in the Severance Agreement due to such CIC Termination, provided, however, that the payment described under Section 5(a)(ii) of the Severance Agreement shall be offset by the amount of base salary and amounts paid under the STI Plans to Executive after the Transition Date; and|
|B.||For any reason other than a CIC Termination, then Executive (or his estate or beneficiaries, if applicable) shall only have the rights provided after such termination of employment, if any, as specifically provided under the terms of the Equity Plans, any equity award agreements, the STI Plans, the Integration Bonus Plan and the Benefit Plans, or as otherwise required by law.|
For clarity, if the Retirement Date occurs after the Transition Date, then Executive will not be entitled to the benefits described in Section 6 (General Severance) of the Severance Agreement.
Notwithstanding anything to the contrary herein, if Executive’s employment terminates as a result of his death (whether before or after the Transition Date), then, for twelve (12) months after the date of his death, provided Executive’s spouse timely elects COBRA continuation coverage, the Company shall continue to provide Executive’s spouse with the health insurance
benefits which Executive was enrolled as of the date of his death at active employee rates (subject to any changes to such benefits as are applied to similarly-situated actively employed executives).
Following the Retirement Date, (i) Executive will not thereafter represent himself as being an officer, director, employee, attorney, agent or representative of the Company for any purpose and (ii) Executive agrees to fully cooperate with the Company, upon the Company’s reasonable request, with respect to any and all claims, disputes, negotiations, internal or external investigations, lawsuits or administrative proceedings involving matters within the scope of Executive’s duties and responsibilities to the Company at any time during Executive’s employment with the Company, including, without limitation, Executive being available to the Company upon reasonable notice for interviews and factual investigations, appearing at the Company’s reasonable request to give testimony without requiring service of a subpoena or other legal process, and identifying for the Company all Company documents which are or may be relevant to the matter. Executive shall be entitled to indemnification and the advancement of expenses as provided in Section 43 of the Amended and Restated By-Laws (Updated Through the Fifth Amendment) of the Company, without regard to any subsequent amendments thereto. The Company shall also use commercially reasonable efforts to continue coverage for Executive under its Directors and Officers Insurance for a minimum tail period of five (5) years following Executive’s Retirement.
Effective Date, including, but not limited to any claims, under the United States Constitution, Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Equal Pay Act, the Employee Retirement Income Security Act (with respect to unvested benefits), the Civil Rights Act of 1991, 42 U.S.C. section 1981, the Sarbanes-Oxley Act of 2002, the Worker Adjustment and Retraining Notification Act, the Family Medical Leave Act, the Rehabilitation Act, the Occupational Safety and Health Act, the Fair Labor Standards Act, and/or any other federal, state or local law (statutory, regulatory or otherwise), as any of them may be amended, that may be legally waived and released and any common law tort and/or contract claims, including, but not limited to, any claims of wrongful discharge, defamation, emotional distress, tortious interference with contract, invasion of privacy, nonphysical injury, personal injury or sickness or any other harm. Except as otherwise set forth below, Executive agrees that his waiver and release of claims extends to all Claims of every nature and kind, known or unknown, suspected or unsuspected, past or present, arising from or attributable to Executive’s employment with the Company.
Nothing in this Agreement will be construed to (a) limit or affect Executive’s right to challenge the validity of this release; (b) in any way interfere with Executive’s right and responsibility to give truthful testimony under oath; or (c) prohibit Executive from participating in an investigation, filing a charge or otherwise communicating with any federal, state or local government office, official or agency, including, but not limited to, the Equal Employment Opportunity Commission, Department of Labor, National Labor Relations Board, or the Securities and Exchange Commission. However, Executive expressly promises never to seek or accept any compensatory damages, back pay, front pay, or reinstatement remedies with respect any Claim that Executive has released in this Agreement.
Furthermore, this waiver and release of claims excludes, and Executive does not waive, release or discharge, any claims under state workers’ compensation or unemployment compensation laws Executive has against the Company and/or any claims by Executive that cannot be released by a private settlement agreement. In addition, nothing in this Agreement waives, releases or discharges (i) any claim regarding rights of indemnification and receipt of legal fees and expenses to which Executive is entitled under the Company’s Certificate of Incorporation or By-laws (or similar instrument) or pursuant to applicable law, (ii) any of Executive’s vested rights under the terms of the Equity Plans, any equity award agreements, the STI Plans, the Integration Bonus Plan and the Benefit Plans, and (iii) any claim to amounts due but not yet provided under Section 3.
all of the offending provision, adding additional language to this Agreement or by making such other modifications as it deems warranted to carry out the intent and agreement of the Parties as embodied in this Agreement to the maximum extent permitted by law. However, if a court should hold that Executive’s waiver and release of claims is void or voidable, in whole or in part, the Company at its election may recover the excess Benefits paid or provided under this Agreement.
Executive understands and agrees that he has been given at least 21 days (the “Consideration Period”) within which to consider this Agreement and its ramifications and discuss the terms of this Agreement with the Company before executing it. Executive further acknowledges that any modification of this Agreement, whether material or immaterial, will not restart or change the Consideration Period. Executive further understands and agrees that once Executive signs this Agreement, he will have an additional 7 days in which to revoke his acceptance of this Agreement. To do so, Executive must provide notice of revocation prior to the expiration of the 7-day revocation period to Thomas O. McGimpsey, Executive Vice President & General Counsel in writing via hand delivery, or by e-mail to ***@***, or to his designated successor, which notice will be effective upon delivery. Provided Executive has not revoked his acceptance of this Agreement during such 7-day revocation period, this Agreement shall become effective the eighth day after Executive signs this Agreement (the “Effective Date”).
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates indicated below.
ADVANCED ENERGY INDUSTRIES, INC.EXECUTIVE
By: /s/ Tom McGimpseyBy: /s/ Yuval Wasserman
Tom McGimpseyYuval Wasserman
EVP and Chief Administrative Officer
Date: February 8, 2021Date: February 8, 2021