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EXHIBIT 10.29
SEPARATION AGREEMENT AND RELEASE
THIS SEPARATION AGREEMENT AND RELEASE ("Agreement") is made and entered
by and between Xxxxx X. Xxxxx ("White" or "Employee") and Pentair, Inc.
("Pentair" or the "Company").
1. Consideration. In consideration for the mutual promises exchanged
herein and for the payments to White set forth herein, White acknowledges the
full, complete, and final settlement of any and all claims, actions, causes of
action or costs, including attorneys' fees, against the Company and the other
persons and entities released herein.
2. Discharge of Claims. White, on behalf of himself, his agents,
representatives, attorneys, assignees, heirs, executors, and administrators,
hereby releases and forever discharges the Company, and its past and present
employees, agents, insurers, officials, officers, directors, divisions, parents,
subsidiaries and successors, and all affiliated companies and corporations
(including, without limitation, Xxxxxx-Cable Corporation) from any and all
claims and causes of action of any type arising, or which may have arisen, out
of or in connection with his employment or termination of employment with the
Company and its affiliated companies, including but not limited to claims,
demands or actions arising under the Federal Fair Labor Standards Act, the Age
Discrimination in Employment Act of 1967, 29 U.S.C. Section 626, as amended by
Public Law 101.433 (1990) (the "Older Workers Benefit Protection Act"), Title
VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e, et seq., the
Americans with Disabilities Act, 29 U.S.C. Section 2101, et seq., the Family
Medical Leave Act, the Minnesota Human Rights Act, Minn. Stat. Section 363.01,
et seq., any other federal, state or local statute, ordinance, regulation or
order regarding employment, compensation for employment, termination of
employment, or discrimination in employment, and the common law of any state.
White further understands that this discharge of claims extends to, but
is not limited to, all claims which he may have as of the date of this Agreement
against the Company and its affiliated companies, based upon statutory or common
law claims for defamation, libel, slander, assault, battery, negligent or
intentional infliction of emotional distress, negligent hiring or retention,
breach of contract, promissory estoppel, fraud, wrongful discharge, or any other
theory, whether legal or equitable, including all claims for items of
compensation and benefits except as prohibited by law.
3. Confidential Information Acquired During Employment. White agrees
that he will continue to treat, as private and privileged, any information,
data, figures, projections, estimates, marketing plans, customer lists, lists of
contract workers, tax records, personnel records, accounting procedures,
formulas, contracts, business partners, alliances, ventures and all other
confidential information which White acquired while working for the Company.
Further, White agrees that he will not release any such information to any
person, firm, corporation or other entity at any time, except as may be required
by law, or as agreed to in writing by the
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Company. White acknowledges that any violation of this non-disclosure provision
shall entitle the Company to appropriate injunctive relief and to any damages
which it may sustain due to the improper disclosure.
4. Confidentiality. White represents and agrees that he will keep the
terms and existence of this Agreement completely confidential, and that he will
not disclose any information concerning this Agreement to anyone, except for his
counsel, tax accountant, spouse or except as may be required by law or agreed to
in writing by the Company.
5. Non-Solicitation/Non-Competition Agreement. White acknowledges that
during his employment at Pentair and with its subsidiaries and affiliates, he
became familiar with trade secrets, know-how, executive personnel, business
strategies, product development and other confidential and proprietary
information concerning the business of Pentair and other members of the Pentair
controlled group of companies (the "Group"). In consideration for the benefits
paid to White under this Agreement (including, but not limited to, those
benefits in Paragraph 10.b. hereof), White agrees that he shall not, either
directly or indirectly, for a period of three (3) years from the Separation Date
as defined in Paragraph 7 of this Agreement, and without the prior written
consent of Pentair:
a. own, manage, control, participate in, consult with or
render services of any kind for any concern which engages in a business
which is competitive with any business being conducted, or contemplated
being conducted as known by Employee, by the Group as of the Separation
Date;
b. become an employee or agent of any publicly traded
corporation or other entity, or any division or subsidiary of such a
corporation or entity, where more than five percent (5%) of such
organization's business is in competition with any business being
conducted, or contemplated being conducted as known by Employee, by the
Group as of the Separation Date, unless the annual sales of such
organization do not exceed $40 million;
c. participate in any plan or attempt to acquire the business
or assets of the Group or control of the voting stock of any member
thereof, or in any manner interfere with the control of Pentair,
whether by friendly or unfriendly means;
d. induce or attempt to induce any individual to leave the
employ of Pentair or any other Group member or hire any such individual
who approaches him or her for employment; or
e. engage in, directly or indirectly, the solicitation of
customers of Pentair or any Group member to do business with any
competitor of such organization with respect to a competing product.
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The Company's sole and exclusive remedy for a breach by White of any obligation
under paragraph 5 of this Agreement shall be that the Company shall have no
further obligation to make any payments contemplated under paragraph 10.b.
hereof, and, in such event, White shall forfeit all past and future payments
under paragraph 10.b. hereof.
6. No Wrongdoing. White and the Company agree and acknowledge that the
consideration exchanged herein does not constitute, and shall not be construed
as, an admission of liability or wrongdoing on the part of the Company, White or
any person, and shall not be admissible in any proceeding as evidence of
liability or wrongdoing by anyone.
7. Separation from Service. White's employment with Pentair ended
effective September 30, 2000 (the "Separation Date"). Notwithstanding the
Separation Date, White ceased to be an officer and a director of Pentair and of
each Pentair subsidiary listed on the attached Schedule A as of September 13,
2000.
8. Severance Payment. The parties acknowledge that Pentair has paid
White $14,583.34 each pay period through the Separation Date. In addition to
these payments, Pentair shall pay to White as severance (the "Severance
Payment") the sum of $87,500 (in increments of $14,583.34 per pay period from
October 1, 2000 through December 31, 2000). This amount shall be paid in
accordance with the usual payroll practices of Pentair and shall be subject to
applicable federal and state withholding taxes and any other deductions which
have been authorized by White or which Pentair may be required by law to make.
White acknowledges that without this Agreement, he would not be entitled to the
benefits set forth in this paragraph.
9. Bonus, Stock and Equity Awards. Outstanding awards made to White
under the Pentair Omnibus Stock Incentive Plan (the "Omnibus Plan") and other
equity awards shall be paid as follows:
a. Management Incentive Plan Substitute. The parties
acknowledge Employee is not eligible for a bonus under the terms of the
Company's Management Incentive Plan ("MIP"). Notwithstanding the
foregoing, as additional consideration to Employee, the Company will
pay to Employee in February 2001 the prorated portion of the annual
bonus Employee would have received if he had remained an eligible
employee under the MIP using Employee's Separation Date as the date for
calculating the prorated sum.
b. Restricted Stock. All shares of restricted stock awarded to
White under the Ownership Incentive Plan or any other shall, to the
extent not currently vested, be vested on January 22, 2001. White
acknowledges that without this Agreement, he would not be entitled to
the benefits set forth in this subparagraph.
b. Incentive Compensation Units ("ICUs") [see Annotation 1
attached]. All ICUs awarded to White through 2000 under the Omnibus
Plan shall be deemed to be fully vested on January 22, 2001 without
regard to the
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vesting period stated at the time of grant. The value of said awards
shall be calculated and paid to White as soon as administratively
feasible after the vesting date of January 22, 2001. White acknowledges
that without this Agreement, he would not be entitled to the benefits
set forth in this subparagraph.
c. Stock Options. All outstanding stock options granted to
White under the Omnibus Plan shall remain outstanding and exercisable
by him through the earlier of their original maturity date and five
years from the Separation Date. The date any such option is first
exercisable shall not be accelerated. In the event White should die
before all such options have been exercised or otherwise lapse, then
the beneficiary designated by White shall have six (6) months from
White's death to exercise options then outstanding. Any options not so
exercised shall lapse. [To the extent options designated as incentive
stock options are exercised within thirty (30) days of the last day of
White's employment, they shall retain their status as qualified
options; options exercised after this thirty (30) day period shall be
treated as nonqualified options.] If within two years after the
Separation Date White shall sell any Pentair common stock acquired
pursuant to the exercise of qualified options, he shall immediately
notify Pentair of such sale and shall supply all information reasonably
requested by Pentair with respect to such sale. White acknowledges that
without this Agreement, he would not be entitled to the benefits set
forth in this subparagraph.
d. Insider Status. Xxxxxx & Efron, P.A. will advise White in
writing of its understanding of his status as an insider with Pentair
for purposes of any stock transactions.
10. Retirement Benefits. White shall receive payment from the
tax-qualified and non qualified retirement plans maintained by Pentair as
follows:
a. Pentair Pension Plan. White shall be entitled to receive
payment of his vested accrued benefit under the Pentair Pension Plan in
accordance with applicable provisions of that plan. From and after the
Separation Date, White shall cease to be eligible to accrue additional
benefits under the Pentair Pension Plan.
b. Supplemental Retirement [see Annotation 2 attached]. As a
supplemental retirement benefit, White shall receive monthly benefits
of $8,616.00 beginning as early as October 1, 2000 in the form of a
fifteen (15) year certain benefit. (See Exhibit A to Annotation 2.)
This benefit is in lieu of benefits under either the 1988 or 1999
Supplemental Executive Retirement Plans (to which White is not entitled
and for which he is not eligible) and, except as otherwise provided in
the Agreement, any other non-tax qualified retirement or deferred
compensation arrangement sponsored by Pentair or any of its affiliates.
White understands and agrees that this supplemental retirement benefit
is more
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than Pentair is required to pay under its normal policies and
procedures if he had been eligible, and White acknowledges that without
this Agreement, he would not be entitled to the benefits set forth in
this subparagraph.
c. Retirement Savings and Stock Incentive Plan ("RSIP"). White
shall be entitled to receive payment of his vested accrued benefit
under the RSIP in accordance with applicable provisions of that plan.
White shall remain a participant in RSIP until such time as he requests
and receives payment of his vested accrued benefit, but from and after
the Separation Date, White shall not be entitled to make contributions
to or to share in allocations of contributions made by Pentair after
such date, including matching or employer discretionary contributions
payable on account of service completed or deferrals made during 2000.
d. Non-Qualified Deferred Compensation Plan ("Sidekick").
White shall be entitled to receive payment of all amounts payable to
him under the terms and conditions of the Sidekick in accordance with
the payment election made by him at the time he began participation in
such plan. From and after the Separation Date, White shall not be
entitled to make contributions to or to share in allocations of
contributions made by Pentair after such date, including matching or
employer discretionary contributions payable on account of service
completed or deferrals made during 2000.
e. Other Deferred Compensation Plan. To the extent White may
have amounts payable to him by reason of his participation in the
deferred compensation plan maintained by Pentair prior to
implementation of Sidekick, White shall be entitled to receive payment
of such deferred compensation in accordance with the annual payment
elections made by him during the time he elected to participate in such
plan.
11. Insurance Benefits. White shall be eligible to elect to continue
participation in various medical, dental, life and disability insurance benefits
offered by Pentair as follows:
a. Medical and Dental Insurance. In the event White elects to
continue participating in the Company's medical and dental insurance
programs as are made available to employees of Pentair, the cost of
providing such benefits shall be shared by Pentair and White on the
same basis as if White had remained an employee of Pentair until the
earlier of such time as he is eligible for such coverage with a
subsequent employer or eighteen (18) months from the Separation Date.
White's share of the premiums shall be paid directly to our external
benefits administrator, AON. For purposes of COBRA, the continuation
period shall begin on the Separation Date. At the expiration of the
maximum continuation period, White shall be offered such conversion
rights as are then being made available by the then insurer.
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b. Supplemental Disability and Supplemental Life Insurance.
White will be covered under the Company's group life (including
dependent life), short-term disability and long-term disability plans,
as amended from time to time, through the Separation Date. After the
Separation Date, White may elect to arrange for continuation of
coverage and direct premium payment at his sole cost and expense.
c. Flexible Benefit Plan (125C). White shall be offered the
opportunity to continue participation in the Pentair Flexible Benefit
Plan consistent with the terms and provisions of said plan.
d. Retiree Flex Plan. White may elect to begin participation
in the Retiree Flex Plan consistent with the terms and provisions of
said plan at the end of the COBRA continuation period. The Company
established the Retiree Flex Plan to offset a portion of a retiree's
cost for medical coverage through cash credits which reimburse premiums
paid or are applied against the retiree's contributions and make
available a good selection of retiree medical coverage at group rates,
where possible.
12. Other Benefits or Payments. White shall be entitled to receive
other payments and benefits as follows:
a. Flexible Perquisite Account. To the extent White does not
allocate the funds toward the purchase of the Company vehicle pursuant
to Section 12.b. hereof, Pentair will pay to White the sum of
$11,531.78, the remaining available amount under the Pentair Flexible
Perquisite Plan. White acknowledges that without this Agreement, he
would not be entitled to the benefits set forth in this subparagraph.
b. Company Vehicle. White may elect to turn in the
Company-provided vehicle currently in his possession or purchase the
vehicle for $18,046.62. The remaining Flexible Perquisite Account funds
identified in Section 12.a. hereof may be used toward the vehicle
purchase price, or Employee may elect to pay in cash. All applicable
sales or other taxes and transfer fees shall be paid by White.
c. Business Expenses. Pentair will reimburse White for all
business expenses incurred by him in the active performance of his
duties on behalf of Pentair through September 30, 2000, provided White
submits proper documentation for such expenses.
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d. Relocation Services. Pentair will make available to
Employee as an additional benefit the relocation services in the form
attached hereto as Schedule B.
13. Future Employment. White will not apply for or seek employment or
re-employment with the Company or its affiliated companies at any time after he
signs this Agreement.
14. Executive Placement. The Company will provide to White $20,000
which may be used toward outplacement or other services.
15. Cooperation. White agrees that at the request of the Company, White
will cooperate with and assist the Company (including cooperation and assistance
in any matters involving claims or lawsuits against the Company) as requested by
the Company where White has knowledge of the facts involved. In addition, White
agrees that he will, at the reasonable request of the Company, execute, if
necessary, nunc pro tunc, any further documents or instruments necessary or
appropriate to evidence his separation from service as an officer or director of
the Company, its subsidiaries, or its affiliates, including but not necessarily
limited to the forms attached hereto as Schedule X. Xxxxx further agrees that he
will not voluntarily aid, assist, or cooperate with anyone who has claims
against the Company, its affiliates or with their attorneys or agents in any
claims or lawsuits which such person may bring against the Company or its
affiliates. Nothing in this Agreement prevents White from testifying at an
administrative hearing, arbitration, deposition, or in court, in response to a
lawful and properly served subpoena.
16. Minnesota Law Applies. The terms of this Agreement will be governed
by the laws of the State of Minnesota, and shall be construed and enforced
thereunder.
17. Merger. This Agreement, and the employee benefit plans in which
White participates as described herein supersede and replace all prior oral and
written agreements and understandings. White understands and agrees that all
claims which he has or may have against the Company are fully released and
discharged by this Agreement. The only claims which White may hereafter assert
against the Company are limited to an alleged breach of this Agreement.
18. Invalidity. If any one or more of the terms of this Agreement are
deemed to be invalid or unenforceable by a court of law, the validity,
enforceability, and legality of the remaining provisions of this Agreement will
not in any way be affected or impaired thereby.
19. White Understands the Terms of this Agreement. White warrants that
(a) other than stated herein, no promise or inducement has been offered for this
Agreement; (b) this Agreement is executed without reliance upon any statement or
representation of the Company or its representatives concerning the nature and
extent of any claims or liability therefor, if any; (c) White is legally
competent to execute this Agreement and accepts full responsibility therefor;
(d) the Company, by this Agreement, has advised White to consult with an
attorney, and White has
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consulted with his attorney, _______________________, Esq. regarding the purpose
and effect of this Agreement; (e) the Company has allowed White at least
twenty-one (21) days within which to consider this Agreement, specifically White
may sign this Agreement any time prior to _____________, 2000, at which time it
will be automatically withdrawn without further notice; (f) White understands
that he may nullify and rescind this Agreement as far as it extends to his
release of claims arising under Minn. Stat. Section 363.01 et seq., the
Minnesota Human Rights Act, and under the Age Discrimination in Employment Act
of 1967, 29 U.S.C. Section 626, as amended by Public Law 101.433 (1990) (the
"Older Workers Benefit Protection Act") at any time within fifteen (15) days
from the date of his signature below and, in the event of such election, White
shall only be entitled to receive $1,000 which the parties acknowledge is
consideration for White's release of all claims other than those arising under
Minn. Stat. Section 363.01 et seq., the Minnesota Human Rights Act, and under
the Age Discrimination in Employment Act of 1967, 29 U.S.C. Section 626, as
amended by Public Law 101.433 (1990) (the "Older Workers Benefit Protection
Act"); (g) in the event White elects to nullify and rescind portions of his
release under this Agreement pursuant to (f) of this paragraph, he must indicate
his desire to do so in writing and deliver that writing to Xxx X. Xxxxxxx, Vice
President, Human Resources, Pentair, Inc., Xxxxx Fargo Center, 90 So. 0xx
Xxxxxx, 00xx Xxxxx, Xxxxxxxxxxx, XX 00000 by hand or by certified mail; and (g)
White further understands that if he exercises his rescission rights hereunder,
the Company will not be bound by the terms of this Agreement (except the
obligation to pay White $1,000), and White will have to disgorge in full any
monies and benefits received pursuant to this Agreement other than the $1,000
sum.
Dated: November 27, 2000
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Xxxxx X. Xxxxx
Subscribed and sworn to before
me this ____ day of ___________, 2000.
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Notary Public
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Dated: PENTAIR, INC.
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By
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Its
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Subscribed and sworn to before
me this ____ day of ________, 2000.
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Notary Public
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SCHEDULE A
POSITIONS HELD BY XXXXX X. XXXXX
AT PENTAIR AND SUBSIDIARIES
COMPANY TITLE
------- -----
Pentair, Inc. EVP; President, Professional
Tools and Equipment Group
Pentair, Inc. Employee
Xxxxxx-Cable Corporation Chairman, Director
Pentair Tools & Equipment Sales Co. Chairman, Director
Delta International Machinery Corporation Chairman, Director
Biesemeyer Manufacturing Corporation Chairman, Director
Flex Elektrowerkzeuge GmbH Geschaftsfuhrer
Xxxxxx-Cable de Mexico SrL decv Chairman, Director
Xxxxxx-Cable Argentina SrL Chairman, Manager
Xxxxxx-Cable Chile Chairman, Manager
Xxxxxx-Cable Argentina LLC Chairman, Governor
Century Manufacturing Company Chairman, Director
Lincoln Automotive Company Chairman, Director
Apno S.A. de C.V. Chairman, Director
DeVilbiss Air Power Company Chairman, Director
Falcon Manufacturing, Inc. President, Director
Pentair Canada, Inc. Chairman, President, Director
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SCHEDULE B
Relocation Sheets
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SCHEDULE C
Separation Forms
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ANNOTATION 1 [ICUs]
ANNOTATION 2 [SERP]
