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| 8-K - CURRENT REPORT - PALL CORP | pallcorp_8k.htm |
Exhibit 10.1
Employment
Agreement
EMPLOYMENT AGREEMENT dated as of August 18,
2010 between PALL CORPORATION, a New York corporation
(the “Company”), and Roberto Perez (“Executive”) (this “Agreement”).
In consideration of the mutual agreements
hereinafter set forth, effective as of August 18, 2010 (the “Effective Date”), the parties hereto agree as
follows.
Section 1. Employment
The Company hereby employs Executive, and
Executive hereby agrees to serve, as Chief Operating Officer of the Company with
the duties set forth in Section 2, until such time as Executive’s employment
terminates in accordance with the terms of Section 4 hereof.
Section 2. Duties
(a) Executive agrees that during
Executive’s employment Executive will perform such duties and have such
authority as is customarily assigned to and possessed by the Chief Operating
Officer, and further agrees that Executive will hold such other offices or
positions with the Company, and perform such duties and assignments relating to
the business of the Company, as the Chief Executive Officer of the Company shall
direct except that Executive shall not be required to hold any office or
position or to perform any duties or assignment inconsistent with Executive’s
experience and qualifications.
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(b) If the Chief Executive Officer
of the Company so directs, Executive shall serve as an officer of one or more
subsidiaries of the Company (provided that the duties of such office are not
inconsistent with Executive’s experience and qualifications) and part or all of
the compensation to which Executive is entitled hereunder may be paid by such
subsidiary or subsidiaries. However, such employment and/or payment of Executive
by a subsidiary or subsidiaries shall not relieve the Company from any of its
obligations under this Agreement except to the extent of payments actually made
to Executive by a subsidiary.
(c) During Executive’s employment,
Executive shall, except during customary vacation periods and periods of
illness, devote substantially all of Executive’s business time and attention to
the performance of Executive’s duties hereunder, to the business and affairs of
the Company and its subsidiaries and to promoting the best interests of the
Company and its subsidiaries, and Executive shall not, either during or outside
of such normal business hours, engage in any activity inimical to such best
interests.
Section 3. Compensation
(a) Base Salary. During
Executive’s employment, the Company shall pay Executive a base salary (“Base Salary”) at the rate of
no less than $500,000 per annum. Base Salary shall be paid in such periodic
installments as the Company may determine but not less often than monthly. The
Chief Executive Officer of the Company will review Base Salary annually and may,
in the Chief Executive Officer’s discretion, recommend to the Compensation
Committee of the Board of Directors of the Company (the “Compensation Committee”) that
an increase be made in Base Salary. Any such recommended increase shall take
effect only if, and to the extent that, it is approved by the Compensation
Committee in its sole discretion. For the avoidance of doubt, with respect to
each fiscal year of the Company (a “Fiscal Year”) beginning with
the Fiscal Year which starts on the first day of August next following the
Effective Date, the Company shall pay Executive Base Salary at such rate as the
Compensation Committee shall determine but not less than the amount of Base
Salary payable to Executive in the preceding Fiscal Year.
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(b) Bonus
Compensation.
(i) Plan Bonus. With respect to
each Fiscal Year of the Company falling in whole or in part during Executive’s
employment following the Effective Date, Executive shall be entitled to receive
a bonus pursuant to this Agreement in an amount determined in accordance with,
and subject to all of the terms of, the Pall Corporation 2004 Executive
Incentive Bonus Plan as it may be amended from time to time, a copy of which is
annexed hereto and incorporated herein by reference (the “Bonus Plan”). Words and terms
used herein with initial capital letters and not defined herein are used herein
as defined in the Bonus Plan. For purposes of determining the amount of the
bonus payable to Executive for any Fiscal Year under the Bonus Plan (the “Plan Bonus”), Executive’s
Target Bonus Percentage shall be 112.5% for such Fiscal
Year.
(ii) Payment of Plan Bonus.
Executive’s Plan Bonus shall be paid in accordance with §5 of the Bonus Plan. With respect to any Fiscal Year
which falls in part but not in whole during the period of
Executive’s employment, the pro rata portion of the Plan Bonus to which
Executive is entitled under this Section 3(b) shall be determined in accordance
with §3(c) of the Bonus Plan.
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(c) Fringe Benefits and
Perquisites. During Executive’s employment, Executive shall enjoy
the customary perquisites of office, including, but not limited to, office space
and furnishings, expense reimbursements and any similar emoluments customarily
afforded to executives of the Company at the same level. During Executive’s
employment, Executive shall also be entitled to receive or participate in all
“fringe benefits” and employee benefit plans provided or made available by the
Company to executives or management personnel generally (such as, but not
limited to, group hospitalization, medical, life and disability insurance, and
pension, 401(k) and stock option or purchase plans), at such time and on such
terms and conditions as each such plan provides.
(d) Vacations. Executive shall be
entitled each year to a vacation or vacations in accordance with the policies of
the Company as determined by the Board or by an authorized senior officer of the
Company from time to time. The Company shall not pay Executive any additional
compensation for any vacation time not used by Executive.
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Section 4. Separation from Service; Change in
Control
(a) Separation from Service.
Subject to Section 17 below, if for any reason Executive experiences a “separation from service” as defined under
Section 409A of the Internal Revenue Code of 1986, as amended (the
“Code”) and the rules and
regulations issued thereunder (“Section 409A”), Executive (or
Executive’s estate in the event of Executive’s death) shall be entitled to (i)
any accrued but unpaid Base Salary as of the date of such separation, (ii) any
Plan Bonus earned but unpaid for the Fiscal Year preceding the Fiscal Year that
includes the date of such separation, paid to the extent payable under and in
accordance with the terms of the Bonus Plan, (iii) any Plan Bonus or pro rata
portion thereof that Executive may be entitled to receive under the Bonus Plan
with respect to the Fiscal Year in which the separation from service takes
place, paid to the extent payable under and in accordance with the terms of the
Bonus Plan, (iv) any unreimbursed business expenses as of the date of such
separation, paid within thirty (30) days of the separation from service upon
presentation of supporting documentation in accordance with normal practice and
(v) any vested benefits as of the date of such separation under any benefit
plans maintained, or contributed to, by the Company, or any disability benefits
program sponsored by the Company, in accordance with the terms and conditions of
each such plan or program.
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(b) Disability or Death.
If Executive shall die during Executive’s employment or if Executive experiences
a separation from service because the Company terminates Executive’s employment
by reason of Executive becoming Disabled, the Company shall pay to Executive, or
to Executive’s legal representatives, or in accordance with a direction given by
Executive to the Company in writing, the following, subject, other than in the
event of death, to Executive’s compliance with Sections 5, 6, 7, 9 and 10 below
and subject, other than in the event of death, to Sections 17 and 18 below: (i)
the benefits set forth under Section 4(a), (ii) Executive’s Base Salary to
the end of the month in which a separation from service under this Section 4(b)
occurs, paid in accordance with the Company’s normal payroll practices, and
(iii) a cash payment equal to (x) 50% of Base Salary plus (y) 50% of Executive’s
Target Bonus Percentage multiplied by Base Salary, in each case, as such Base
Salary and Target Bonus Percentage were in effect for Executive immediately
prior to the date on which separation from service under this Section 4(b)
occurs, paid in twelve (12) equal monthly installments commencing on the
Company’s first regularly scheduled payroll date in the month following the
month in which separation from service under this Section 4(b) occurs and on the
Company’s first regularly scheduled payroll date in each of the next eleven (11)
months thereafter.
“Disabled” means that Executive is, by reason of physical or
mental disability, incapable of performing Executive’s principal duties
hereunder for an aggregate of one hundred thirty (130) working days out of any
period of twelve (12) consecutive months.
In the event that Executive’s employment
terminates as described in this Section 4(b), Executive shall have no right to
any compensation or any other benefits under this Agreement except as set forth
in Section 4(a) and this Section 4(b).
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(c) Involuntary Separation From
Service Without Cause; Resignation for Good Reason. In the event that
Executive experiences a separation from service with the Company due to (1) the
Company’s termination of his employment without Cause (as defined below) or (2)
Executive’s termination of his employment for Good Reason (as defined below),
then subject to Executive’s compliance with Sections 5, 6, 7, 9 and 10 below
(where applicable), subject to Sections 17 and 18 below and other than in
circumstances set forth in Sections 4(b), 4(e) or 4(f), Executive will receive
the following compensation and benefits under this Agreement in lieu of any
compensation or benefits to which he might otherwise be entitled under Section 3
of this Agreement or any benefit plans referenced therein:
| (i) | Each month for a period of twenty-four (24) consecutive months, beginning with the month following the month in which Executive’s separation from service occurs, the Company shall make a payment in an amount equal to (X) the sum of (1) Base Salary at the annual rate at which Executive’s Base Salary was payable immediately prior to Executive’s separation from service and (2) the amount determined under clause (X)(1) multiplied by 70% of the Target Bonus Percentage as in effect immediately prior to separation from service, divided by (Y) 12. Each installment will be paid on the Company’s first regularly scheduled payroll date in the applicable month. | ||
| (ii) | During the period beginning on the date of Executive’s separation from service and ending on the two-year anniversary thereof, any of Executive’s restricted stock units and stock options that are (A) not yet vested under the 2005 Stock Compensation Plan, as amended (the “Stock Plan”), and (B) outstanding, in each case as of the date of Executive’s separation from service, will not be cancelled, but will continue to vest and be settled or become exercisable, as applicable, in the manner and at the times set forth in the applicable grant agreements and the Stock Plan as though Executive had not experienced a separation from service until such two-year anniversary. | ||
| (iii) | (A) During the period beginning on the date of Executive’s separation from service and ending on the two-year anniversary thereof, any of Executive’s units not yet vested under the Management Stock Purchase Plan, as amended (the “MSPP”), as of the date of Executive’s separation from service will not be cancelled, but will continue to be settled in the manner and at the times set forth under the MSPP as though Executive had not experienced a separation from service until such two-year anniversary; provided that in the event of a separation from service under this Section 4 that also qualifies as “Retirement” (as defined in the MSPP), Executive will be deemed to have Retired as of the date of separation from service under the MSPP and to have been “Involuntarily Terminated” (as defined in the MSPP) as of the second anniversary of separation from service under the MSPP. | ||
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| (B) Any vested units Executive had previously deferred under the MSPP, to the extent payable upon a Termination of Employment (as defined in the MSPP), will be paid on the two-year anniversary of Executive’s separation from service. | |||
| (iv) | Any monthly pension to which Executive is entitled under the Pall Corporation Supplementary Pension Plan (the “SPP”) will be calculated at the time of the two-year anniversary of Executive’s separation from service and will commence payment on the later of the first day of the month after Executive has attained his Early Retirement Date (as defined in the SPP) and the two-year anniversary of Executive’s separation from service. Upon separation from service, Executive shall be credited with two (2) years of age and two (2) years of service for purposes of eligibility and vesting under the SPP. | ||
| (v) | During the period beginning on the date of Executive’s separation from service and ending on the date that is eighteen (18) months after active employee group medical coverage is terminated on account of such separation from service, Executive shall, to the extent Executive elects to continue to participate in the continuation coverage under the Company’s Comprehensive Welfare Benefits Plan offered by the Company under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), be provided with a taxable reimbursement payment equal to the amount of the COBRA premium payable by Executive. All expenses shall be reimbursed within twelve (12) months following the two-year anniversary of Executive’s separation from service. | ||
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“Good Reason” shall mean any
of the following conditions arising without Executive’s written consent: (i) a
material diminution in Executive’s Base Salary, (ii) a material diminution in
Executive’s authority, duties, or responsibilities, (iii) a material diminution
in the authority, duties, or responsibilities of the person to whom Executive is
required to report (Executive’s “Direct Report”), or
Executive’s being required to report to a different person whose authority,
duties, or responsibilities are materially diminished as compared with the
authority, duties, or responsibilities of the Direct Report to
whom Executive reported immediately prior to such change, (iv) a material
diminution in the budget over which Executive retains authority, (v) a material
change in the geographic location at which Executive must perform services or
(vi) any other action or inaction that constitutes a material breach by the
Company of this Agreement; provided that (A) Executive
must provide notice to the Company of the existence of the condition described
in this paragraph within a period not to exceed ninety (90) days of the initial
existence of the condition and (B) the Company must be provided with a period of
at least thirty (30) days during which it may remedy the condition and not be
required to pay the amounts described in this Section 4(c). If the Company does
not remedy the condition during such period, Executive’s employment shall
terminate on the thirty-first (31st) day following the
initial notice.
In the event that the Company terminates
Executive’s employment without Cause, or Executive terminates his employment for
Good Reason, Executive shall have no right to any compensation or any other
benefits under this Agreement except as set forth in Section 4(a) and this
Section 4(c).
(d) Change in Control. If a
Change in Control (as defined in the MSPP or the Stock Plan, as applicable)
occurs, then any of Executive’s (i) restricted units not yet vested under the
MSPP (if the Change in Control constitutes a Change in Control as defined in the
MSPP) and/or (ii) restricted stock units and stock options not yet vested under
the Stock Plan (if the Change in Control constitutes a Change in Control as
defined in the Stock Plan), as applicable, that are outstanding on the date of
such Change in Control will vest on such date.
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(e) Voluntary Separation or Involuntary
Separation from Service For Cause. “Cause” shall mean Executive’s
(i) failure or refusal to substantially perform the material duties of
Executive’s employment or other violation of this Agreement in a material
manner, (ii) failure in a material manner to comply with the written rules and
policies of the Company that has caused or would reasonably be expected to
result in material injury to the Company, (iii) willful and serious misconduct
in connection with Executive’s employment that has caused or would reasonably be
expected to result in material injury to the Company, (iv) dishonesty or
fraudulent conduct in regards to the Company or (v) conviction of, or plea of
nolo contendere to, a crime that constitutes a felony. The Company may terminate
Executive’s employment for Cause with immediate effect; provided that, prior to
termination for any of the reasons in (i) or (ii) above, Executive shall have
thirty (30) days after notice from the Company to remedy such matter if such
matter is reasonably capable of being remedied.
In the event that the Company terminates
Executive’s employment for Cause, or Executive terminates his employment without
Good Reason, in each case except under the circumstances set forth in Sections
4(b), 4(c) or 4(f), Executive shall have no right to any compensation or any
other benefits under this Agreement except as set forth in Section
4(a).
(f) Retirement. This Agreement
shall automatically expire and be of no further force and effect on Executive’s sixty-fifth (65th)
birthday.
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Anything hereinabove to the contrary
notwithstanding, if any provision of this Section 4(f) violates federal or
applicable state law relating to discrimination on account of age, such
provision shall be deemed modified or suspended to the extent necessary to
eliminate such violation of law. If at a later date, by reason of changed
circumstances or otherwise, the enforcement of such provision as set forth
herein would no longer constitute a violation of law, then it shall be enforced
in accordance with its terms as set forth herein.
(g) Supplementary Pension Plan.
In no event will any monthly pension to which Executive is entitled under the
SPP commence payment prior to the two-year anniversary of Executive’s separation
from service, except that on or after the date Executive attains sixty-five (65)
years of age, upon separation from service for any reason, the monthly pension
shall be payable at the time and in the form set forth under the terms of the
SPP.
Section 5. Restrictive
Covenants
During Executive’s employment and for the
longer of (a) any period for which Executive is receiving any payments or
benefits under Sections 4(b), 4(c) or 4(f) or (b) one (1) year following
Executive’s separation from service with the Company (the “Restrictive Covenant
Period”), Executive shall not, without the written permission of
the Company, render services to any corporation, individual or other entity
engaged in any activity, or himself engage directly or indirectly in any
activity, which is competitive to any material extent with the business of the
Company or any of its subsidiaries.
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Section 6. Non-Disparagement
While employed by the Company, and during
the Restrictive Covenant Period, Executive shall not make any disparaging or untruthful remarks concerning
the Company or any of its subsidiaries, or their officers, directors, employees
or agents, whether acting in their individual or representative capacities.
Executive shall not be deemed to have breached Executive’s obligations under the
foregoing sentence if during Executive’s employment with the Company Executive
criticizes the job performance of employees who report to Executive, or makes
remarks which Executive believes to be truthful about any Company employee as
part of performing his duties hereunder, as part of such employees’ performance
reviews and evaluations, provided such remarks are made in the ordinary course
of business, not malicious or unfounded, are not publicly made or widely
disseminated and are not in violation of Executive’s obligations to comply with
laws, regulations and Company policies and procedures. Additionally, in the event that Executive is requested or required (by
oral questions, interrogatories, requests for information or documents, subpoena
or similar process) to disclose during the Restrictive Covenant Period any
information that may be disparaging, Executive shall comply with such requests,
provided that Executive shall give the Company prompt notice of any such request
so that the Company may seek an appropriate protective order, and provided that
Executive shall comply with the terms of any protective order so obtained.
Similarly, during the Restrictive Covenant Period, the Company shall not make
any disparaging or untruthful remarks concerning Executive, except that the
Company shall not be deemed to have breached its obligations hereunder: (a) if
during Executive’s employment with the Company, any Company director, employee,
agent or representative criticizes Executive’s job performance as part of
performance reviews and evaluations or in response to questions from members of
management, the board of directors or Company advisors, provided such remarks
are made in the ordinary course of business, not malicious or unfounded, are not
publicly made or widely disseminated and are not in violation of laws,
regulations and Company policies and procedures, or (b) in the event that the
Company is requested or required (by oral questions, interrogatories, requests
for information or documents, subpoena or similar process) to disclose during
the Restrictive Covenant Period any information that may be disparaging, the
Company complies with such requests, provided that the Company shall give
Executive prompt notice of any such request so that Executive may seek an
appropriate protective order, and provided that the Company shall comply with
the terms of any protective order so obtained.
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Section 7. Non-Solicitation of Employees or
Customers
While employed by the Company, and during
the Restrictive Covenant Period, Executive will not (i) indirectly or directly solicit, encourage, induce,
or recruit any person who is then an employee of the Company or any of its
subsidiaries to seek or accept employment with any other employer, or (ii)
indirectly or directly solicit, encourage, or induce any customer of the Company
to become the customer of any business that is competitive to any material
extent with the business of the Company or any of its
subsidiaries.
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Section 8. Company’s Right to Injunctive
Relief
Executive acknowledges that
Executive’s services to the Company are of a unique character, which gives them
a peculiar value to the Company, the loss of which cannot be reasonably or
adequately compensated in damages in an action at law, and that therefore, in
addition to any other remedy which the Company may have at law or in equity, the
Company shall be entitled to injunctive relief for a breach of this Agreement by
Executive. The parties also acknowledge and agree that, if, in any judicial
proceeding, a court shall deem any of the restrictive covenants in Sections 5 or
7, invalid, illegal or unenforceable because its scope is considered excessive,
such restrictive covenant shall be modified so that the scope of the restrictive
covenant is reduced only to the minimum extent necessary to render the modified
covenant valid, legal and enforceable, and if any such restrictive covenant (or
portion thereof) is deemed invalid, illegal or unenforceable in any
jurisdiction, as to that jurisdiction such restrictive covenant (or portion
thereof) shall be ineffective to the extent of such invalidity, illegality or
enforceability, without affecting in any way the remaining restrictive covenants
(or portion thereof) in such jurisdiction or rendering that or any other
restrictive covenant (or portion thereof) invalid, illegal, or unenforceable in
any other jurisdiction. The parties hereto intend that the validity and
enforceability of any provision of this Agreement shall not affect or render
invalid any other provision of this Agreement.
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Section 9. Inventions and
Patents
All inventions, ideas, concepts,
processes, discoveries, improvements and trademarks (hereinafter collectively
referred to as intangible rights), whether patentable or registrable or not,
which are conceived, made, invented or suggested either by Executive alone or by
Executive in collaboration with others during Executive’s employment with the
Company, and whether or not during regular working hours, shall be disclosed to
the Company and shall be the sole and exclusive property of the Company. If the
Company deems that any of such intangible rights are patentable or otherwise
registrable under any federal, state or foreign law, Executive, at the expense
of the Company, shall execute all documents and do all things necessary or
proper to obtain patents and/or registrations and to vest the Company with full
title thereto.
Section 10. Trade Secrets and Confidential
Information
Executive shall not, either directly
or indirectly, except as required in the course of employment by the Company,
disclose or use at any time, whether during or subsequent to Executive’s
employment with the Company, any information of a proprietary nature owned by
the Company, including but not limited to, records, data, formulae, documents,
specifications, inventions, processes, methods and intangible rights which are
acquired by Executive in the performance of Executive’s duties for the Company
and which are of a confidential information or trade-secret nature. All records,
files, drawings, documents, equipment and the like, relating to the Company’s
business, which Executive shall prepare, use, construct or observe, shall be and
remain the Company’s sole property. Upon the separation from service of
Executive’s employment or at any time prior thereto upon request by the Company,
Executive shall return to the possession of the Company any materials or copies
thereof involving any confidential information or trade secrets and shall not
take any material or copies thereof from the possession of the
Company.
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Section 11. Mergers and Consolidations;
Assignability
In the event that the Company, or
any entity resulting from any merger or consolidation referred to in this
Section 11 or which shall be a purchaser or transferee so referred to, shall at
any time be merged or consolidated into or with any other entity or entities, or
in the event that substantially all of the assets of the Company or any such
entity shall be sold or otherwise transferred to another entity, the provisions
of this Agreement shall be binding upon and shall inure to the benefit of the
continuing entity in or the entity resulting from such merger or consolidation
or the entity to which such assets shall be sold or transferred. Except as
provided in the immediately preceding sentence of this Section 11, this
Agreement shall not be assignable by the Company or by any entity referred to in
such immediately preceding sentence. This Agreement shall not be assignable by
Executive, but in the event of Executive’s death it shall be binding upon and
inure to the benefit of Executive’s legal representatives to the extent required
to effectuate the terms hereof.
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Section 12. Captions
The captions in this Agreement are
not part of the provisions hereof, are merely for the purpose of reference and
shall have no force or effect for any purpose whatsoever, including the
construction of the provisions of this Agreement, and if any caption is
inconsistent with any provisions of this Agreement, said provisions shall
govern.
Section 13. Choice of
Law
This Agreement is made in, and shall
be governed by and construed in accordance with the laws of, the State of New York, regardless of conflict of law
principles.
Section 14. Entire
Contract
This instrument contains the entire
agreement of the parties on the subject matter hereof except that the rights of
the Company hereunder shall be deemed to be in addition to and not in
substitution for its rights under the Company’s standard printed form of
“Employee’s Secrecy and Invention Agreement” or “Employee Agreement” if
heretofore or hereafter entered into between the parties hereto so that the
making of this Agreement shall not be construed as depriving the Company of any
of its rights or remedies under any such Secrecy and Invention Agreement or
Employee Agreement. This Agreement may not be changed orally, but only by an
agreement in writing signed by the party against whom enforcement of any waiver,
change, modification, extension or discharge is sought.
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Section 15. Notices
All notices given hereunder shall be
in writing and shall be sent by registered or certified mail or overnight
courier service such as Federal Express or UPS Air or delivered by hand, and, if
intended for the Company, shall be addressed to it (if sent by mail or overnight
courier service) or delivered to it (if delivered by hand) at its principal
office for the attention of the Chief Executive Officer of the Company, or at
such other address and for the attention of such other person of which the
Company shall have given notice to Executive in the manner herein provided, and,
if intended for Executive, shall be delivered to Executive personally or shall
be addressed to Executive (if sent by mail or overnight courier service) at
Executive’s most recent residence address shown in the Company’s employment
records or at such other address or to such designee of which Executive shall
have given notice to the Company in the manner herein provided. Each such notice
shall be deemed to be given on the date of mailing thereof or delivery to the
overnight courier service, or if delivered personally, on the date so
delivered.
Section 16. Termination of Any Existing
Agreement
Any employment agreement between the
parties hereto which is in effect on the date hereof is hereby terminated and
replaced and superseded by this Agreement, effective on the Effective Date. All
payments, of Base Salary or otherwise, made by the Company under any such
existing agreement with respect to any period commencing on or after the
Effective Date shall be credited against the corresponding payment obligations
of the Company under this Agreement with respect to such period.
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Section 17. Section 409A of the Internal Revenue
Code
(a) Compliance. This Agreement is
intended to comply with the requirements of Section 409A, or an exemption and
shall in all respects be administered and interpreted in accordance with Section
409A. Notwithstanding anything in the Agreement to the contrary, distributions
upon termination of employment may only be made upon a separation from service
(as determined under Section 409A). Each installment of any payments and
benefits provided to Executive under this Agreement that would be considered to
be deferred compensation (within the meaning of Treasury Regulation Section
1.409A-1(b)(1)) will be treated as a separate “payment” for purposes of Section
409A. In no event may Executive, directly or indirectly, designate the calendar
year of any payment to be made under this Agreement if such designation would
violate Section 409A. All reimbursements and in-kind benefits provided under
this Agreement shall be made or provided in accordance with the requirements of
Section 409A. In the event the parties determine that the terms of this
Agreement do not comply with Section 409A, they will negotiate reasonably and in
good faith to amend the terms of this Agreement such that it complies (in a
manner that attempts to minimize the economic impact of such amendment on
Executive and the Company) within the time period permitted by Section 409A. In
no event shall the Company be required to pay Executive any gross-up or other
payment with respect to any taxes or penalties imposed under Section 409A with
respect to any benefit paid to Executive hereunder.
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(b) Delay in Payment. If
Executive is a “specified employee” (as such term is defined in Section 409A) at
the time of Executive’s separation from service, any payments under this
Agreement that would be considered to be deferred compensation (within the
meaning of Treasury Regulation §1.409A-1(b)(1)) to which Executive would
otherwise be entitled during the first six (6) months following Executive’s
“separation from service” and payable as a result of such “separation from
service” shall be deferred and accumulated for a period of six (6) months and
paid in a lump sum on the first day of the seventh (7th) month following such
separation from service (or, if earlier, the date of Executive’s death) (the
“Delayed Payment Date”). On
the Delayed Payment Date, there shall be paid to Executive (or if Executive has
died, to Executive’s Successor defined below), in a single cash lump sum, an
amount equal to the aggregate amount of all payments delayed pursuant to the
preceding sentence, plus interest thereon at the Delayed Payment Interest Rate
(as defined below) computed from the date on which each such delayed payment
otherwise would have been made to Executive until the Delayed Payment Date. For
purposes of the foregoing: (i) “Executive’s Successor” shall
mean such payee or payees as Executive shall at any time designate by written
notice to the Company or in Executive’s last will and testament or, if no such
designation is made, then to the legal representatives of Executive’s estate,
and (ii) the “Delayed Payment Interest
Rate” shall mean the national average annual rate of interest
payable on jumbo six-month bank certificates of deposit, as quoted in the
business section of the most recently published Sunday edition of the New York
Times preceding the date as of which Executive is treated as having incurred a
“separation from service” for purposes of Section 409A.
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Section 18. Release
The payments and benefits under Sections 4(b)(other than in the event of
death) and 4(c) are subject to the condition that Executive has delivered to the
Company an executed copy of a release substantially in the form attached hereto
as Exhibit A (with such changes as may be required under applicable law) and
such release has become irrevocable within thirty (30) days after the date of
Executive’s “separation from service” as determined under Section 409A. In that
event, payments that would have been made within such 30-day period shall be
paid at the expiration of such 30-day period; provided that any payments or
benefits payable by reason of the death of Executive shall not be subject to the
condition set forth in this Section 18.
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IN WITNESS WHEREOF, the parties
hereto have executed this Agreement as of the day and year first above written.
| PALL CORPORATION | ||
| By: | /s/ Eric Krasnoff | |
| Name: Eric Krasnoff | ||
| Title: Chairman, Chief Executive Officer and President | ||
| EXECUTIVE | ||
| /s/ Roberto Perez | ||
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Exhibit A
GENERAL RELEASE
1. Release of Claims and Waiver of
Rights.
(a) In consideration of any payments
and benefits being provided to me under Section 4(b)(other than in the event of
death) or 4(c) of the amended and restated employment agreement (the “Employment Agreement”) dated
August 18, 2010, as it may have been amended to the date hereof, between me and
Pall Corporation (the “Company”), those payments and
benefits being good and valuable consideration, the adequacy and sufficiency of
which are acknowledged by me (the “Payments”), I, Roberto Perez,
hereby release, remise and acquit Company, its present and past parents,
subsidiaries and affiliates, their successors, assigns, benefit plans and/or
committees, and their respective present or past officers, directors, managers,
supervisors, employees, shareholders, attorneys, advisors, agents and
representatives in their individual and corporate capacity, and their successors
and assigns (the “Releasees”), from, and hold
them harmless against, any and all claims, obligations, or liabilities
(including attorneys, fees and expenses), asserted or unasserted, known or
unknown, that I, my heirs, successors or assigns have or might have, which have
arisen by reason of any matter, cause or thing whatsoever on or prior to the
date on which this General Release is signed.
(b) The terms “claims, obligations,
or liabilities” (whether denominated claims, demands, causes of action,
obligations, damages or liabilities) include, but are not limited to, any and
all claims under any contract with the Company, claims of age, disability, race,
religion, national origin, sex, retaliation, and/or other forms of employment
discrimination, breach of express or implied contract, breach of employee
handbook, practices or procedures, libel, slander, intentional tort or wrongful
dismissal, claims for reinstatement or reemployment, arising under any federal,
state, or local common or statutory law; claims for unpaid salary, commission or
fringe benefits; or any other statutory claim before any state or federal court,
tribunal or administrative agency, arising out of or in any way related to my
employment relationship with the Company and its affiliates and the termination
of that relationship. I will not file or permit to be filed on my behalf any
such claim.
(c) This General Release
constitutes, among other things, a waiver of all rights and claims I may have
under the Age Discrimination in Employment Act of 1967 (29 U.S.C. 621, et seq.)
(“ADEA”), the Americans with
Disabilities Act of 1990, the Family and Medical Leave Act of 1993, Title VII of
the United States Civil Rights Act of 1964, all as amended including the
amendment set forth in 42 U.S.C. § 1981 concerning damages in cases of
intentional discrimination in employment, the New York State Human Rights Law,
including N.Y. Exec. Law § 296, the New York City Human Rights Law, including §
8-107 of the Administration Code and Charter of New York City,
and the New York Labor Law, and any other comparable national or state laws, all
as amended.
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(d) Notwithstanding the preceding
paragraph (c) or any other provision of this Agreement, this General Release is
not intended to interfere with my right to file a charge with the Equal
Employment Opportunity Commission (the “EEOC”) in connection with any
claim I believe I may have against the Company or its affiliates. However, by
executing this General Release, I hereby waive the right to recover in any
proceeding I may bring before the EEOC or any state human rights commission or
in any proceeding brought by the EEOC or any state human rights commission on my
behalf. In addition, this General Release is not intended to interfere with my
right to challenge that my waiver of any and all ADEA claims pursuant to this
General Release is a knowing and voluntary waiver, notwithstanding my specific
representation that I have entered into this General Release knowingly and
voluntarily.
(e) This General Release is for any
relief, no matter how denominated, including, but not limited to, injunctive
relief, wages, back pay, front pay, compensatory damages, or punitive
damages.
(f) This General Release shall not
apply to any rights in the nature of indemnification which I may have with
respect to claims against me relating to or arising out of my employment with
the Company and its affiliates or my service on their respective boards of
directors, or any vested benefit to which I am entitled under any tax qualified
pension plan of the Company or its affiliates, COBRA continuation coverage
benefits or any other similar benefits required to be provided by statute.
Notwithstanding anything to the contrary contained in this Section 1, I do not
release any of the Releasees from the Company’s obligation to timely provide me
with all payments and benefits to which I am entitled pursuant to the terms of
the Employment Agreement, or any other obligations of the Company under the
Employment Agreement.
2. Continued
Cooperation. In consideration of the
Payments, I also agree to fully cooperate with the Company with respect to any
reasonable assistance the Company may request from me upon reasonable notice to
me, including but not limited to in connection with any legal claims, demands,
or causes of action against the Company which relate to or are based on events
that arose during the period of my employment with the Company. The Company
shall pay me for such cooperation, at an hourly rate, calculated on the basis of
my regular salary (not including bonus or any benefits) immediately prior to the
termination of my employment with the Company, for each hour of assistance that
I provide to the Company at its request, and shall reimburse me for all expenses
I reasonably incur in connection with such cooperation, provided I deliver to
the Company an invoice(s) in respect of such amounts, which invoice details with
reasonable sufficiency the assistance provided and the number of hours spent
providing such assistance. Notwithstanding the foregoing, in no case shall the
Company require me to provide such assistance on more than 20 (twenty) days in
any year, nor shall the Company require me to travel outside the United States
to provide such assistance. A condition for me providing any such assistance is
that the Company shall agree to indemnify me for any and all liability I may
incur in connection with providing such assistance to the same extent as if I
was still an executive officer of the Company.
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3. Representations and
Covenants. I hereby represent and agree
to all of the following:
(a) I
have carefully read this General Release.
(b) I
understand it fully.
(c) I
am freely, voluntarily and knowingly releasing the Releasees in accordance with
the terms contained above.
(d)
Before executing this General Release, I had twenty-one (21) days to consider my
rights and obligations under this General Release.
(e)
The period of time I had to consider my rights and obligations under this
General Release was reasonable.
(f)
Before signing this General Release, I was advised to consult with an attorney
and given a reasonable period of time to do so and in executing this General
Release have not relied on any representation or statement not set forth
herein.
(g)
Execution of this General Release and the General Release becoming enforceable
(in accordance with paragraph (h) below) within thirty (30) days from the date
of my “separation from service” (as determined under Section 409A of the
Internal Revenue Code of 1986, as amended, and the rules and regulations issued
thereunder) is a condition to the Payments, which payments and benefits are in
addition to anything of value to which I am already entitled to receive from the
Company and its affiliates.
(h)
For a period of seven (7) days following the date on which I sign this General
Release, I may revoke it. Any such revocation must be made in writing and
received by the Corporate Secretary of the Company, by the seventh day following
the date on which I sign this General Release. The Company’s obligation to pay
the consideration as set forth in Section 1 above shall not become effective or
enforceable until this seven (7) day revocation period has expired without my
having exercised my right to revoke.
(i) I
have reported to the Company any and all work-related injuries incurred by me
during my employment by the Company.
(j)
There are no pending lawsuits, charges, employee dispute resolution proceedings,
administrative proceedings or other claims of any nature whatsoever, that I have
brought (and which are pending) against any Releasee, in any state or federal
court, before any agency or other administrative body or in any other
forum.
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(k) I am not aware of any material
violation of any laws or Company policies or procedures by a Company employee or
officer that has not been reported to Company officials.
(l) My
obligations under the Employee Agreement (attached hereto) including my
obligations under the sections entitled Covenant Not to Compete,
Non-Disparagement, Non-Solicitation, Inventions and Patents, Trade Secrets and
Confidential Information, are reasonable, are necessary to protect legitimate
interests of the Company, and continue beyond the termination of my employment
and the execution of this General Release. If I violate my obligations under the
Employee Agreement and such violation causes material harm to the Company, I
understand that, in addition to other relief to which the Company may be
entitled, the Company shall be entitled to cease providing the Payments and
benefits provided to me pursuant to Section 1 above unless such violation is
cured (if capable of being cured) within 30 days of notification by the Company
to me of such violation (and, following such cure, all suspended payments shall
be made in a single lump sum), and this General Release will remain in full
force and effect.
(m) If
I should hereafter make any claim or demand or commence or threaten to commence
any action, claim or proceeding against the Releasees with respect to any
matter, cause or thing which is the subject of the release under Section 1 of
this General Release, this General Release may be raised as a complete bar to
any such action, claim or proceeding, and the applicable Releasee may recover
from me all costs incurred in connection with such action, claim or proceeding,
including attorneys’ fees.
(n) If
any provision of this General Release is declared illegal, invalid, or
unenforceable by any court of competent jurisdiction and cannot be modified to
be enforceable, such provisions will immediately become null and void, leaving
the remainder of this General Release in full force and effect, provided,
however, that if the general release of all claims given by me herein is
declared illegal, invalid, or unenforceable, this General Release will become
null and void and, to the fullest extent permitted by law, any Payments (which
are being provided to me as a result of my execution of this General Release)
which have not yet been made by the Company to me shall no longer be required to
be made.
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(o)
Except as necessary to enforce my rights under this General Release or except as
required to comply with requirements of applicable law or an order or subpoena
of a court of competent jurisdiction (as to which I will notify the Company
reasonably in advance of disclosure) or except to the extent such information
has become public knowledge, I shall keep confidential and not disclose to any
person, other than my spouse or attorneys, accountants and/or tax advisors who
shall be obligated to and agree to keep confidential, the existence, nature and
terms of this General Release, the amount and fact of any payment to me, any and
all discussions, communications, and correspondence leading to this General
Release and any and all events, conduct, statements and/or communications giving
rise to or relating in any way to any and all claims, obligations or
liabilities, I have or may have. This General Release shall not be construed as
an admission by the Company or any other Releasee of any liability whatsoever
for any damages, injuries or other claims, obligations or liabilities alleged or
which may be alleged by me.
(p)
This General Release shall be governed by and construed in accordance with the
laws of the State of New York, without regard to conflicts of laws
principles.
4. Declaration. I declare under penalty of
perjury under the laws of the State of New York that the foregoing is true and correct.
| Signature: | ||
| Date: | ||
| Name: Roberto Perez | ||
| Acknowledged before me this | ||
| ____ day of ___________, ________ | ||
| NOTARY PUBLIC | ||
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