AMENDMENT DATED DECEMBER 31, 2008 TO EMPLOYMENT AGREEMENT
Exhibit 10.1
AMENDMENT DATED DECEMBER 31, 2008 TO EMPLOYMENT AGREEMENT
The AMENDED AND RESTATED EMPLOYMENT AGREEMENT dated JULY 20, 2005 between PALL CORPORATION, a
New York Corporation (the “Company”) and XXXX XXXXXXXX (“Executive”) as amended by amendments dated
May 3, 2006, and July 18, 2006 (said Amended and Restated Employment Agreement as so amended being
hereinafter called the “Agreement”) is hereby further amended as follows:
| 1. | Section 1 is amended by replacing the words “executive employee” with the words “chief executive officer.” | ||
| 2. | Section 2(b) is amended by deleting the word “substantially” and adding the following phrase immediately after the phrase, “all of his business time and attention”: | ||
| “(other than time devoted to charitable and family business and/or investment activities which do not materially interfere with his duties hereunder)” | |||
| 3. | Section 3(d) is amended by adding the following phrase at the end of the first sentence thereof: | ||
| “, which shall not be less than customarily provided to senior executive officers of the Company” | |||
| 4. | Section 4(c) is amended by the addition of the following at the end of Section 4(c): | ||
| In addition, any of Executive’s restricted stock units not yet vested under the 2005 Stock Compensation Plan, as amended (the “Stock Plan”), outstanding on the date on which a Change in Control (as defined in the Stock Plan) occurs will vest on such date. | |||
| 5. | Section 5 is renamed “Payments Upon Notice and Severance” and is hereby amended to read in its entirety as follows: |
(a) Payments Upon Notice. If, in connection with any notice given under Section 1 or 4(c),
upon written consent of the Company, Executive no longer performs any services for the
Company under Section 2 of this Agreement or otherwise and Executive experiences a
“separation from service” as determined under Section 409A of the Internal Revenue Code of
1986, as amended (the “Code”) and the rules and regulations issued thereunder (“Section
409A”) (“separation from service”) then subject to Executive’s compliance with Section 13
below (where applicable) and with Executive’s other continuing obligations under Section 9
below, 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) | Any Plan Bonus or pro rata portion thereof (based on actual Company performance for the full fiscal year as certified by the Compensation Committee and taking into account any negative discretion the Compensation Committee has the right to exercise) that Executive may be entitled to receive under the Bonus Plan with respect to the year in which Executive’s separation from service takes place, less any amount Executive elected to defer under the Management Stock Purchase Plan, paid in accordance with the terms of the Bonus Plan.. | ||
| (ii) | Each month for a period of 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, divided by (Y) 12; provided that on any August 1st occurring after Executive’s separation from service, the annual rate of Base Salary set forth in (X)(1) shall be adjusted for changes in the Consumer Price Index in the manner set forth in Section 3(a) hereof). Each installment will be paid on the first business day of the applicable month. | ||
| (iii) | 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 not yet vested under the 2005 Stock Compensation Plan, as amended (the “Stock Plan”), outstanding on the date of Executive’s separation from service will not be cancelled, but will continue to vest and be settled in the manner and at the times set forth in their grant agreements and the Stock Plan as though Executive had not experienced a separation from service until such two-year anniversary. | ||
| (iv) | (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. |
(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.
| (v) | 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. |
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| (vi) | During the period beginning on the date of Executive’s separation from service and ending on the two-year anniversary thereof, Executive shall continue to participate in the Company’s Comprehensive Welfare Benefits Plan; provided however, all expenses are incurred, and in-kind benefits provided, prior to such two-year anniversary and all expenses are reimbursed within 12 months following such two-year anniversary. | ||
| (vii) | In the event that Executive gives notice under Section 4(c): |
(A) for purposes of Section 5(a)(ii), Executive will cease to receive such monthly
payments on the date specified in the notice given by Executive (and not on the
two-year anniversary of separation from service) and
(B) for purposes of Section 5(a) (iv)(A), the period of such continued vesting and
for purposes of Sections 5(a)(iii) and (iv)(A), the period of such continued
settlement shall end on the date specified in the notice given by Executive (and not
on the two-year anniversary of separation from service), provided, however, that any
units the settlement date for which under Sections 5(a)(iii) and (iv)(A) would have
been the two-year anniversary of separation from service shall continue to be
settled on such two-year anniversary.
(b) Severance. In the event that the Term of Employment is terminated by the Company under
Section 1 hereof or by Executive under Section 2 or Section 4(c) hereof, subject to
Executive’s compliance with Section 13 below and with Executive’s other continuing
obligations under Section 9 below, in addition to any amounts Executive may be entitled to
receive pursuant to Section 5(a) above, Executive will also be entitled to receive from the
Company as severance pay, each month for a period of 24 consecutive months beginning with
the month following the month in which Executive’s separation from service occurs, an amount
equal to (A) 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 (A)(1) multiplied by 150% of the Target Bonus Percentage divided by
(B) 12. Each installment will be paid on the first business day of the applicable month.
(c) 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 65 years of age,
upon a 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.
| 6. | Section 6 is amended by the insertion of the following at the beginning of the Section: | ||
| Other than in the event that the Term of Employment ends pursuant to Section 4(b), the phrase “the end of the Term of Employment”, “the date of the Term of Employment ends” or “the last day of the Term of Employment” whenever it appears in this Section 6 will be replaced by the phrase “the two-year anniversary of Executive’s separation from service” and the phrase “five full fiscal years of the Term of Employment” will be |
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| replaced by the phrase “five full fiscal years prior to the two-year anniversary of Executive’s separation from service.” In no event shall the calculation of the Annual Contract Pension under Section 6(a) take into account any payments made to Executive under Section 5(b) hereof.” |
| 7. | Section 6(a)(ii) is amended to delete the parenthetical that reads as follows: | ||
| “(i.e., the effective date of termination of the Term of Employment under any of the provisions of ss. ss. 1, 2, or 4 hereof)” | |||
| 8. | Section 6(b) is amended to delete the word “penultimate” from the second sentence of such Section and to delete following paragraph: | ||
| “For purposes of this Section, the amount of the pension payable to the Member under any Other Retirement Program shall be deemed to be the amount payable thereunder to the Member in the form of a single life annuity for the Member’s life, whether or not the Member receives payment of such pension in such form; provided, however, that the amount of such pension shall be taken into account under (b)(i) above only on and after the date on which payment of the Member’s pension under such Other Retirement Program commences or is paid.” |
and replace it with the following paragraph:
| “For purposes of this Section, the amount of the pension payable to the Member under any Other Retirement Program shall be deemed to be the amount payable thereunder to the Member in the form of a single life annuity for the Member’s life beginning on the date the monthly pension under this Plan commences (the “Commencement Date”), whether or not the Member receives payment of such pension in such form.” | |||
| 9. | The first sentence of Section 6(f)(v) is amended and restated in its entirety as follows: | ||
| At the Company’s option, the coverages and benefits to be provided hereunder may be provided through insurance, or by the Company directly paying, or reimbursing Executive or any of his Dependents for his or her payment of, expenses covered under this Section 6(f), so long as any such reimbursements are made within 12 months of the date on which the expense was incurred. | |||
| 10. | Section 6(f) is amended by the insertion of the following at the beginning of Section 6(f): | ||
| The benefits under this Section 6(f) are conditioned upon Executive’s compliance with Section 13 below and with Executive’s other continuing obligations under Section 9 below. | |||
| 11. | Section 6(f) is further amended by the insertion of the following at the end of Section 6(f): |
(viii) The amount of expenses eligible for reimbursement or the amount of coverage or
in-kind benefits provided under this Section 6(f) during any fiscal year may not affect the
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amount of expenses eligible for reimbursement or the amount of coverage or in-kind benefits
provided under this Section 6(f) for any other fiscal year.
| 12. | Section 7(b) is amended and restated in its entirety as follows: | ||
| In the event that it shall be determined that any benefit provided or payment made by the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of an agreement, plan, program, arrangement or otherwise (a “Payment”), would subject Executive to an obligation to pay an excise tax imposed by Section 4999 of the Code or any interest or penalties related to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. For purposes of clarification and without limiting the effect of the foregoing, it is intended that Executive should be responsible for regular federal, state and local income and employment taxes and for any taxes incurred under Section 409A of the Code with respect to any Payment to which this Section 7 applies. | |||
| Subject to the provisions below, all determinations required to be made with respect to Executive, including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions not specified herein to be used in arriving at such determinations, shall be made by a nationally recognized accounting firm proposed by the Company and reasonably acceptable to Executive (the “Firm”). In making such determination with respect to any matter that is uncertain, the Firm shall adopt the position that it believes more likely than not would be adopted by the Internal Revenue Service (“IRS”). The Firm shall provide detailed supporting calculations with respect to its determination both to the Company and Executive. All fees and expenses of the Firm shall be borne by the Company. If the Firm determines that no Excise Tax is payable by Executive it shall furnish Executive with a written opinion that failure to report the Excise Tax on Executive’s applicable federal income tax return would not result in the imposition of a negligence or similar penalty. Any determination by the Firm shall be final, binding and conclusive upon the Company and Executive, except as provided in the following sentences of this paragraph (b). | |||
| As a result of uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”) or that Gross-Up Payments which have been made by the Company should not have been made (“Excess Gross-Up Payment”). | |||
| An Underpayment or Excess Gross-Up Payment can result from a claim by the IRS or from a redetermination by the Firm. In the event that: |
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(i) the IRS makes a claim and the Company exhausts its right to contest set out below
and Executive thereafter is required to make a payment of any Excise Tax, the Firm shall
promptly determine the amount of the Underpayment and such Underpayment shall be promptly
paid by the Company to or for the benefit of Executive
(ii) the Firm determines that an Underpayment has occurred, the Firm shall promptly
determine the amount of the Underpayment, which shall be promptly paid by the Company to or
for the benefit of Executive together with a Gross-Up Payment with respect to such
Underpayment determined in accordance with the first paragraph of this Section 7(b) hereof
in the same manner as if the Underpayment had originally been paid pursuant to such first
paragraph of this Section 7(b).
(iii) if the IRS makes an Excess Gross-Up Payment determination, or the Firm makes such
determination and furnishes Executive with a written opinion that the basis for its
determination would be accepted by the IRS, Executive shall promptly repay to the Company an
amount equal to the reduction in aggregate taxes due by Executive resulting from such
determination by the IRS or the Firm, provided that Executive shall only be required to
repay any portion of such amount that had been paid to the IRS to the extent that and when
Executive receives a refund from the IRS (or is entitled and able to utilize such amount as
a credit against other taxes due).
Executive shall notify the Company in writing of any claim (including the nature and other
details of such claim) by the IRS that, if successful, would require the payment by the
Company of a Gross-Up Payment, within 10 days of such notice. Executive shall not pay such
claim prior to the expiration of the 30-day period following the date on which Executive
gives such notice to the Company (or such shorter period ending on the date that any payment
of taxes with respect to such claim is due). If the Company notifies Executive in writing
prior to the expiration of such period that it desires to contest such claim, Executive
shall:
(i) Give the Company any information reasonably requested by the Company relating to such
claim,
(ii) Take such action in connection with contesting such claim as the Company shall
reasonably request in writing from time to time, including, without limitation, accepting
legal representation with respect to such claim by an attorney reasonably selected by the
Company,
(iii) Cooperate with the Company in good faith in order effectively to contest such claim,
and
(iv) Permit the Company to participate in any proceedings relating to such claim;
provided, however, that the Company shall bear and pay all costs and
expenses incurred in connection with such contest and shall indemnify and hold Executive
harmless, on an after-tax basis, for any taxes, including, without limitation, any Excise
Tax or income tax, including interest and penalties with respect thereto, imposed as a
result of such representation and payment of costs and expenses. Without limitation on the
foregoing
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provisions, the Company shall control all proceedings taken in connection with such contest
and, at its sole option, may pursue or forgo any and all administrative appeals,
proceedings, hearings and conferences with the taxing authority in respect of such claim and
may, at its sole option, either direct Executive to pay the tax claimed and xxx for a refund
or contest the claim in any permissible manner, and Executive agrees to prosecute such
contest to a determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Company shall determine;
provided, however, that if the Company directs Executive to pay such claim
and xxx for a refund, the Company shall advance the amount of such payment to Executive, on
an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax
basis, from any taxes, including, without limitation, any Excise Tax or income tax,
including interest or penalties with respect thereto, imposed with respect to such advance
or with respect to any imputed income with respect to such advance; and further provided
that any extension of the statute of limitations relating to payment of taxes for the
taxable year of Executive with respect to which such contested amount is claimed to be due
is limited solely to such contested amount. Furthermore, the Company’s control of the
contest shall be limited to issues with respect to which a Gross-Up Payment would be payable
hereunder and Executive shall be entitled to settle or contest, as the case may be, any
other issue raised by the IRS or any other taxing authority. Any payment pursuant to this
Section shall be paid on the same grossed-up basis as provided in the first paragraph of
this Section 7(b) hereof, and shall reflect all taxes referred to in such paragraph of this
Section 7(b)).
If, after the receipt by Executive of an amount advanced by the Company pursuant to the
above paragraph, Executive becomes entitled to receive any refund with respect to such
claim, Executive shall (subject to the Company’s complying with the requirements of such
paragraph) promptly pay to the Company the amount of such refund (together with any interest
paid or credited thereon after taxes applicable thereto). If, after the receipt by
Executive of an amount advanced by the Company pursuant to the above paragraph, a
determination is made that Executive shall not be entitled to any refund with respect to
such claim and the Company does not notify Executive in writing of its intent to contest
such denial of refund prior to the expiration of 30 days after such determination, then such
advance shall be forgiven and shall not be required to be repaid and the amount of such
advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be
paid.
| 13. | Section 7 is amended by adding the following at the end of such Section: |
(c) Section 409A 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 and 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 the event the parties
determine that the terms of this Agreement do
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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.
| 14. | Section 9 is renamed “Restrictive Covenants”, the paragraph that currently comprises Section 9 is designated “(a) Covenant Not to Compete.”, and the following is added at the end of Section 9: |
(b) Non-Disparagement. While employed by the Company, and for a period of 18 months after
the end of the Term of Employment if the Term of Employment is terminated by notice to the
Company given by Executive under Sections 1, 2 or 4 hereof, or for a period of 12 months
after the end of the Term of Employment if the Term of Employment is terminated by notice to
Executive given by the Company under Section 1 or Section 4 hereof or terminated under
Section 4 by reason of Executive’s attaining the age of 65 (the “Non-Disparagement 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, 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
Non-Disparagement 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 Non-Disparagement 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: (i) 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 (ii) 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 Non-Disparagement 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,
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and provided that the Company shall comply with the terms of any protective order so
obtained.
(c) Non-Solicitation of Employees or Customers. While employed by the Company, and during
the Non-Disparagement 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, provided, however, that if the Company terminates under Section 1
following a Change in Control (as defined in the Bonus Plan), the foregoing non-solicitation
covenant shall not apply.
| 15. | Section 10 is amended by adding the following at the end of such Section: |
The parties also acknowledge and agree that, if, in any judicial proceeding, a court shall
deem any of the restrictive covenants in Section 9(a) or 9(c), 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 unenforceability, 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.
| 16. | Section 12 is amended by adding the following phrase immediately following the phrase “except as required in the course of his employment by the Company”: | ||
| “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 Executive will notify the Company reasonably in advance of disclosure)” | |||
| 17. | New Section 13 is hereby appended to the Agreement, and reads in its entirety as follows: | ||
| Release. | |||
| The payments and benefits under Sections 5(a)(ii), (iii), (iv), (vi) and (vii), 5(b), and 6(f) 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 that such release has become irrevocable within 30 days after the date of Executive’s separation from service. In that event, payment that otherwise 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 |
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| payable by reason of the death of Executive shall not be subject to the condition set forth in this Section 13. |
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the day and year first
above written.
PALL CORPORATION
By: Name: |
/s/ XXXXXX X. XXXXXXX, XX.
|
|||
Title:
|
Chairman, Compensation Committee |
EXECUTIVE
/s/ XXXX XXXXXXXX
|
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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 Sections
5(a)(ii), (iii), (iv), (vi) and (vii), 5(b), and 6(f) of the employment agreement (the “Employment
Agreement”) dated July 20, 2005, 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,
Xxxx Xxxxxxxx, 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.
(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
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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 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.
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.
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(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 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.
(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.
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(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.
(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.
| Date: | ||
Xxxx Xxxxxxxx |
Acknowledged before me this
, NOTARY PUBLIC
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