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EXHIBIT 10.6
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of April 14, 2000, is between IDEX CORPORATION, a
Delaware corporation with its executive offices at 000 Xxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxxx 00000 (the "Corporation"), and XXXXXX X. XXXXXXXX, an
individual residing at 00 Xxxxxx Xxx, Xxxxxxx, XX 00000 (the "Executive").
RECITALS:
A. The Executive will be employed as the Chairman of the Board, President
and Chief Executive Officer of the Corporation.
B. The Corporation and the Executive desire to set forth the terms upon
which the Executive will be employed by the Corporation.
NOW, THEREFORE, in consideration of the promises and of the covenants
contained in this Agreement, the Corporation and the Executive agree as follows:
1. DEFINITIONS. The following definitions apply for purposes of this
Agreement.
(a) "Board of Directors" or "Board" means the Board of Directors of the
Corporation.
(b) "Cause" means a finding by the Board of Directors that any of the
following conditions exist:
(i) The Executive's willful and continued failure substantially to
perform his material duties under this Agreement (other than as a result of
his Disability) if such failure is not substantially cured within 15 days
after written notice is provided to the Executive.
(ii) The Executive's willful breach in a substantive and material
manner of his fiduciary duty or duty of loyalty to the Corporation which is
injurious to the financial condition in more than a de minimus manner or
the business reputation of the Corporation.
(iii) The Executive's indictment for a felony offense under the laws
of the United States or any state thereof (other than for a violation of
motor or vehicular laws).
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(iv) A material breach by the Executive of any restrictive covenant
contained in Sections 13 and 14 of this Agreement.
For purposes of this definition, no act or failure to act will be deemed
"willful" unless effected by the Executive not in good faith and without a
reasonable belief that his action or failure to act was in or not opposed to the
Corporation's best interests.
(c) A "Change in Control " means the occurrence of (i) any transaction or
series of transactions which within a 12-month period constitute a change of
management or control where (A) at least 51 percent of the then outstanding
shares of common stock of the Corporation are (for cash, property (including,
without limitation, stock in any corporation), or indebtedness, or any
combination thereof) redeemed by the Corporation or purchased by any person(s),
firm(s) or entity(ies), or exchanged for shares in any other corporation whether
or not affiliated with the Corporation, or any combination of such redemption,
purchase or exchange, or (B) at least 51 percent of the Corporation's assets are
purchased by any person(s), firm(s) or entity(ies) whether or not affiliated
with the Corporation for cash, property (including, without limitation, stock in
any corporation) or indebtedness or any combination thereof, or (C) the
Corporation is merged or consolidated with another corporation regardless of
whether the Corporation is the survivor (except any such transaction solely for
the purpose of changing the Corporation's domicile or which does not change the
ultimate beneficial ownership of the equity interests in the Corporation), or
(ii) any substantial equivalent of any such redemption, purchase, exchange,
change, transaction or series of transactions, acquisition, merger or
consolidation constituting such a change of management or control. For purposes
hereof, the term "control" shall have the meaning ascribed thereto under the
Securities Exchange Act of 1934, as amended and the regulations thereunder, and
the term "management" shall mean the chief executive officer of the Corporation.
For purposes of clause (i)(B) above or as appropriate for purposes of clause
(ii) above, the Corporation shall be deemed to include on a consolidated basis
all subsidiaries and other affiliated corporations or other entities with the
same effect as if they were divisions.
(d) "Code" means the Internal Revenue Code of 1986, as amended.
(e) "Corporation" means IDEX Corporation.
(f) "Disability" means a disability that has existed for a period of six
(6) consecutive months and because of which the Executive is physically or
mentally unable to substantially perform his regular duties as Chairman of the
Board, President or Chief Executive Officer of the Corporation, as the case may
be.
(g) "Effective Date" means April 14, 2000, the date on which this Agreement
is executed.
(h) "Employment Date" means May 1, 2000.
(i) "Good Reason" means:
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(i) There has been a material diminution in the Executive's
responsibilities, duties, title, reporting responsibilities within the
business organization, status, role or authority which is not restored
within 15 days after written notice is provided to the Corporation.
(ii) Removal from, or failure to re-elect, the Executive to the
position of Chairman of the Board, President or Chief Executive Officer.
(iii) A requirement, in the Executive's reasonable judgment, that the
services required to be performed by the Executive would necessitate the
Executive moving his residence from the Chicago, Illinois area.
(iv) A material breach by the Corporation of any of the material terms
of this Agreement if such breach is not substantially cured within 15 days
after written notice is provided to the Corporation.
2. EMPLOYMENT; DUTIES. Subject to the terms and conditions set forth in
this Agreement, the Corporation hereby agrees to employ the Executive, and the
Executive hereby accepts employment, and, as of the Employment Date, will assume
the roles as Chairman of the Board, President and Chief Executive Officer of the
Corporation, in full charge of the operation of its business and affairs,
subject to the provisions of the by-laws of the Corporation in respect of the
duties and responsibilities assigned from time to time by the Board of Directors
to the Chairman of the Board, President and Chief Executive Officer, and subject
also at all times to the control of the Board of Directors. Subject to the
yearly election by the Board of Directors in the exercise of its judgment, it is
contemplated that the Executive will continue to be elected to the positions of
Chairman of the Board, President and Chief Executive Officer. The Executive will
perform those duties and discharge those responsibilities as are commensurate
with his position, and as the Board of Directors may from time to time
reasonably direct, commensurate with his position. The Executive agrees to
perform his duties and discharge his responsibilities in a faithful manner and
to the best of his ability and to use all reasonable efforts to promote the
interests of the Corporation. The Executive may not accept other gainful
employment except with the prior consent of the Board of Directors. With the
prior consent of the Board of Directors, the Executive may become a director,
trustee or other fiduciary of other corporations, trusts or entities.
Notwithstanding the foregoing, the Executive may manage his passive investments
and be involved in charitable, civic and religious interests so long as they do
not materially interfere with the performance of the Executive's duties
hereunder.
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3. COMPENSATION.
(a) During the term of the Executive's employment under this Agreement, the
Executive will receive a base salary at the rate of $650,000 per year, payable
in equal monthly installments. On an annual basis, the Board of Directors will,
in good faith, review the base salary of the Executive to consider appropriate
increases (but not decreases) in the base salary. If the Executive dies during
the period of time of his service under this Agreement, service for any part of
the month of his death will be considered service for the entire month.
(b) During the term of the Executive's employment under this Agreement, the
Executive will be entitled to receive an annual cash bonus from the Corporation
calculated pursuant to the Corporation's Management Incentive Compensation
Program (the "MICP") in effect from time to time. The Target Incentive Amount
for the Executive, as defined in the MICP, will be 120% of his base salary for
fiscal periods of the Corporation subsequent to December 31, 2000. The maximum
bonus to be awarded under the MICP will not exceed 200% of his base salary. The
Board of Directors, in its discretion, may award bonuses to the Executive in
addition to those provided for above, as it may from time to time determine.
Notwithstanding the foregoing, for the fiscal period ending December 31, 2000
the Executive will receive an annual cash bonus from the Corporation, which will
be paid in January 2001, of an amount not less than 80% and not more than 120%
of his base salary for that period as determined in the discretion of the Board.
It is recognized and agreed to by the Executive that for fiscal periods
commencing after December 31, 2000 the MICP will need to be modified and receive
shareholder approval to preserve the deductibility of bonus payments under
Section 162(m) of the Code. The Executive will have substantial input in the
modification of the MICP which will be considered by the Board.
(c) On or before the Effective Date, the IDEX Corporation Compensation
Committee will meet and award the Executive 350,000 options on the Corporation's
common stock. The price of the options will be the closing share price of the
Corporation's common stock, as reported by the New York Stock Exchange, as of
the immediately previous business day. A copy of the Option Agreement pursuant
to which the options will be awarded to the Executive is attached hereto as
Exhibit A. It is acknowledged that the Corporation's failure to award the
options to the Executive shall constitute a material breach of this Agreement.
The Executive will be annually considered for additional awards of options
which, if awarded, will be granted on terms no less favorably than the Option
Agreement attached hereto as Exhibit A.
(d) Simultaneously with the execution of this Agreement, the Corporation
and the Executive shall enter into a Restricted Stock Award in the form attached
hereto as Exhibit B.
(e) The Corporation will reimburse the Executive for all reasonable moving
expenses incurred by the Executive in relocating to the Chicago, Illinois area.
For purposes of clarification, "reasonable moving expenses incurred" will
include lease or rental expenses on the Executive's current residence in Italy,
temporary housing expenses in the Chicago, Illinois area, travel expenses of the
Executive and his wife to or from the Chicago, Illinois area and payment of
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an amount equal to one month base salary for incidental expenses. If any such
reimbursements are not excludible from the income of the Executive because a
corresponding deduction would not be allowable under Section 217 of the Code,
then the Corporation will make an additional payment to the Executive in an
amount such that after payment by the Executive of all taxes imposed on the
additional payment and the amount of the reimbursement includable in income, the
Executive retains an amount equal to the amount of the reimbursement includable
in income.
(f) The Corporation will deduct or withhold from all salary and bonus
payments, and from all other payments made to the Executive pursuant to this
Agreement, all amounts that may be required to be deducted or withheld under any
applicable Social Security contribution, income tax withholding or other similar
law now in effect or that may become effective during the term of this
Agreement.
4. OTHER BENEFITS AND TERMS. During the term of the Executive's employment
under this Agreement, the Executive will be entitled to the following other
benefits and terms:
(a) The Executive will be entitled to participate in the Corporation's
ChoiceComp health and medical benefit plans, any pension, profit sharing and
retirement plans, and any insurance policies or programs from time to time
generally offered to all or substantially all executive employees who are
employed by the Corporation. These plans, policies and programs are subject to
change at the sole discretion of the Corporation. Notwithstanding the foregoing,
life insurance benefits will be provided at an amount not less than one times
base salary. Notwithstanding anything to the contrary, for purposes of
determining the Executive's benefits under the IDEX Corporation Supplemental
Executive Retirement Plan, the Executive's "compensation" shall include income
recognized by him with respect to the Restricted Stock Award under Section 3(d)
of this Agreement.
(b) The Executive will be entitled to any other fringe benefit from time to
time generally offered to all or substantially all senior executive employees
who are employed by the Corporation.
(c) The Corporation will provide the Executive with the use of an
automobile or an auto use allowance that is commensurate with his position.
(d) The Corporation will pay on behalf of or reimburse the Executive for
personal legal and financial advice an amount not to exceed $15,000 in any
calendar year.
(e) Except as specifically provided in Sections 9(a)(i), 9(c)(i), 9(d)(i),
9(e) and 9(f)(i), or as required by law, the Executive acknowledges that he, his
spouse and dependents will not receive health and medical benefits following any
termination of his employment.
5. VACATIONS. The Executive will be entitled to five weeks of paid vacation
each year. Unused vacation in any year may not be carried over to subsequent
years.
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6. REIMBURSEMENT FOR EXPENSES. The Corporation will reimburse the Executive
for expenses which the Executive may from time to time reasonably incur on
behalf of the Corporation in the performance of his responsibilities and duties
including, but not limited to, professional dues and attendance at professional
conferences.
7. PERIOD OF EMPLOYMENT. Subject to the provisions of this Section, the
period of employment of the Executive under this Agreement will begin on the
Employment Date and continue until April 30, 2005. Upon the expiration of the
initial period, the period of employment will be automatically extended for 12
consecutive month periods thereafter, unless either party provides 120 days
prior written notice to the other party that it does not wish to extend the
Executive's employment period beyond its then present term.
Notwithstanding the foregoing:
(a) The Executive's employment will automatically terminate upon the death
or Disability of the Executive. The foregoing is subject to the duty of the
Corporation to provide reasonable accommodation under the Americans with
Disabilities Act.
(b) The Corporation may, at its sole option, terminate the Executive's
employment at any time and for any reason by delivering written notice to the
Executive.
(c) The Executive, at his sole option, may terminate his employment for
Good Reason by providing written notice to the Corporation at least 30 days
prior to the effective date of the termination of employment specified in the
notice.
(d) The Executive, at his sole option, may terminate his employment absent
Good Reason by providing written notice to the Corporation at least 90 days
prior to the effective date of the termination of employment specified in the
notice.
Any notice of termination of employment given by a party must specify the
particular termination provision of this Agreement relied upon by the party and
must set forth in reasonable detail the facts and circumstances that provide a
basis for the termination.
8. INDEMNIFICATION. The Corporation will enter into an indemnity agreement
with the Executive substantially in the form contained in Exhibit C of this
Agreement.
9. BENEFITS UPON TERMINATION. The Corporation will provide the following
benefits upon the termination of the Executive's employment with the
Corporation.
(a) Upon Termination By The Corporation Other Than For Cause Or By The
Executive With Good Reason. Upon the Executive's termination of his employment
for Good Reason or the Corporation's termination of the Executive's employment
other than for Cause, the Corporation will provide the following:
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(i) Salary And Fringe Benefits. The Executive will receive his full
salary and fringe benefits through the effective date of termination
together with any unpaid bonus for a prior period. The Executive will also
receive (i) his full salary, (ii) medical, health and life insurance, and
(iii) other miscellaneous fringe benefits (including, but not limited to,
the personal accident plan at the level in effect on the date of
termination, and the use of the Corporation provided automobile or auto use
allowance) ((ii) and (iii) are hereinafter referred to as "Fringe
Benefits") as in effect on the date of either the Corporation's or the
Executive's receipt of a notice of termination from the other party for a
period of 24 months beginning with the month next following the month
during which his employment terminates. If the Executive dies during the 24
month period, the balance of the salary payments will be paid as provided
in Section 15 and any dependent health or medical Fringe Benefits will be
provided for the balance of the 24 month period.
(ii) Bonus. The Executive will receive a bonus payment equal to the
sum of (A) 240% of his base salary in effect in the year of the termination
of his employment, plus (B) an amount determined by multiplying 120% of his
base salary by a fraction the numerator of which is the number of full and
partial calendar months in the calendar year that precedes the date of the
termination of his employment and the denominator of which is 12.
(iii) Accrued Vacation. The Executive will receive payment for accrued
but unused vacation, which payment will be equitably prorated based on the
period of active employment for that portion of the fiscal year in which
the Executive's termination of employment becomes effective. Payment for
accrued but unused vacation will be payable in one lump sum on the
effective date of the termination of employment.
(b) Upon Termination By The Executive Absent Good Reason Or By The
Corporation For Cause. Upon the Executive's termination of employment absent
Good Reason or by the Corporation for Cause, the Corporation will provide the
following:
(i) Salary And Fringe Benefits. The Executive will receive his full
salary and Fringe Benefits through the effective date of termination
together with any unpaid bonus for a prior period.
(ii) Accrued Vacation. The Executive will receive payment for accrued
but unused vacation, which payment will be equitably prorated based on the
period of active employment for that portion of the fiscal year in which
the Executive's termination of employment becomes effective. Payment for
accrued but unused vacation will be payable in one lump sum on the
effective date of the termination of employment.
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(c) Upon Termination For Disability. Upon termination of the Executive's
employment because of Disability, the Corporation will provide the following:
(i) Salary And Fringe Benefits. The Executive will receive his full
salary and Fringe Benefits through the effective date of termination
together with any unpaid bonus for a prior period. The Executive will also
receive his full salary and Fringe Benefits, as in effect on the date
immediately before the Disability, for a period of 18 months commencing
with the month following the month during which his Disability commences.
If the Executive dies during the 18 month period, the balance of the salary
payments will be paid as provided in Section 15 and any dependent health or
medical Fringe Benefits will be provided for the balance of the 18 month
period.
(ii) Bonus. The Executive will receive a bonus payment equal to the
sum of (A) 180% of his base salary in effect in the year of the termination
of his employment, plus (B) an amount determined by multiplying 120% of his
base salary by a fraction the numerator of which is the number of full and
partial calendar months in the calendar year that precedes the date of the
termination of his employment and the denominator of which is 12.
(iii) Accrued Vacation. The Executive will receive payment for accrued
but unused vacation, which payment will be equitably prorated based on the
period of active employment for that portion of the fiscal year in which
the Executive's Disability commences. Payment for accrued but unused
vacation will be payable in one lump sum on the date the Disability
commences (or as soon thereafter as practicable).
(d) Upon Termination For Death. Upon termination of the Executive's
employment because of his death, the Corporation will provide the following:
(i) Salary And Fringe Benefits. The (i) Executive's full salary and
Fringe Benefits through the effective date of termination, (ii) any unpaid
bonus for a prior period and (iii) his full salary, on the date immediately
before his death, for a period of 18 months beginning with the month next
following the month during which he died will be paid as provided in
Section 15. Any dependent health or medical Fringe Benefits will be
provided for the 18-month period following the month in which he died.
(ii) Bonus. The Executive's successor as provided in Section 15 will
receive a bonus payment equal to the sum of (A) 180% of his base salary in
effect in the year of the termination of his employment, plus (B) an amount
determined by multiplying 120% of his base salary by a fraction the
numerator of which is the
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number of full and partial calendar months in the calendar year that
precedes the date of the termination of his employment and the denominator
of which is 12.
(iii) Accrued Vacation. The Executive's successor as provided in
Section 15 will receive payment for accrued but unused vacation, which
payment will be equitably prorated based on the period of active employment
for that portion of the fiscal year in which the Executive died. Payment
for accrued but unused vacation will be payable in one lump sum on the date
of the Executive's death (or as soon thereafter as practicable).
(e) Upon Termination Following A Change In Control. Upon the Executive's
termination of employment by the Corporation without Cause or the Employee's
termination with Good Reason which, in either case, occurs in contemplation of
or within the 24 month period following a Change in Control, the Corporation
will provide the Executive compensation and benefits under the agreement
attached hereto as Exhibit D, the terms of which, if in conflict with this
Agreement will be controlling.
(f) Upon Expiration Of Term. Upon the expiration of the term of this
Agreement pursuant to the first paragraph of Section 7, the Corporation will
provide the following:
(i) Salary And Fringe Benefits. The Executive will receive his full
salary and fringe benefits through the effective date of termination
together with any unpaid bonus for a prior period. The Executive will also
receive (i) his full salary, (ii) medical, health and life insurance, and
(iii) other miscellaneous fringe benefits (including, but not limited to,
the personal accident plan at the level in effect on the date of
termination, and the use of the Corporation provided automobile or auto use
allowance) ((ii) and (iii) are hereinafter referred to as "Fringe
Benefits") as in effect on the date of either the Corporation's or the
Executive's receipt of a notice of termination from the other party for a
period of 12 months beginning with the month next following the month
during which his employment terminates. If the Executive dies during the 12
month period, the balance of the salary payments will be paid as provided
in Section 15 and any dependent health or medical Fringe Benefits will be
provided for the balance of the 12 month period.
(ii) Bonus. The Executive will receive a bonus payment equal to (A)
120% of his base salary in effect in the year of the termination of the
Executive's employment, plus (B) an amount determined by multiplying 120%
of his base salary by a fraction the numerator of which is the number of
full and partial calendar months in the calendar year that precedes the
date of the termination of his employment and the denominator of which is
12.
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(iii) Accrued Vacation. The Executive will receive payment for accrued
but unused vacation, which payment will be equitably prorated based on the
period of active employment for that portion of the fiscal year in which
the Executive's termination of employment becomes effective. Payment for
accrued but unused vacation will be payable in one lump sum on the
effective date of the termination of employment.
(g) Reduction In Fringe Benefits. Medical and health Fringe Benefits under
this Section will be reduced to the extent of any medical and health fringe
benefits provided by and available to the Executive from any subsequent
employer.
(h) Determination Of Disability. Any question as to the existence of a
physical or mental condition which would give rise to the Disability of the
Executive upon which the Executive and the Corporation cannot agree will be
determined by a qualified independent physician selected by the Executive and
reasonably acceptable to the Corporation (or, if the Executive is unable to make
a selection, the selection of the physician will be made by any adult member of
his immediate family). The physician's written determination to the Corporation
and to the Executive will be final and conclusive for all purposes of this
Agreement.
(i) Continuation Of Healthcare Coverage. For purposes of COBRA continuation
healthcare coverage, the "qualifying event" will be deemed to have occurred at
the end of the period during which health and medical benefits are provided
under Sections 9(a)(i), 9(c)(i), 9(d)(i), 9(e) and 9(f)(i).
10. ADDITIONAL PAYMENTS. Notwithstanding anything in this Agreement or any
other agreement to the contrary, in the event it is determined that any payments
or distributions by the Corporation or any affiliate (as defined under the
Securities Act of 1933, as amended, and the regulations thereunder) thereof or
any other person to or for the benefit of the Executive, whether paid or payable
pursuant to the terms of this Agreement, or pursuant to any other agreement or
arrangement with the Corporation or any such affiliate ("Payments"), would be
subject to the excise tax imposed by Section 4999 of the Code, or any successor
provision, or any interest or penalties with respect to the excise tax (the
excise tax, together with any interest and penalties, are hereinafter
collectively referred to as the "Excise Tax"), then the Executive will be
entitled to receive an additional payment from the Corporation (a "Gross-Up
Payment") in an amount that after payment by the Executive of all taxes
(including, without limitation, any interest or penalties imposed with respect
to such taxes and any Excise Tax) imposed upon the Gross-Up Payment, the
Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments. The amount of the Gross-Up Payment will be calculated
by the Corporation's independent accounting firm, engaged immediately prior to
the event that triggered the payment, in consultation with the Corporation's
outside legal counsel. For purposes of making the calculations required by this
Section, the accounting firm may make reasonable assumptions and approximations
concerning applicable taxes and may rely on reasonable, good faith
interpretations concerning the application of Sections 280G and 4999 of the
Code, provided that the accounting firm's determinations must be made with
substantial authority (within the
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meaning of Section 6662 of the Code). The Gross-Up Payment will be paid on the
Executive's last day of employment or on the occurrence of the event that
results in the imposition of the Excise Tax, if later. If the precise amount of
the Gross-Up Payment cannot be determined on the date it is to be paid, an
amount equal to the best estimate of the Gross-Up Payment will be made on that
date and, within 10 days after the precise calculation is obtained, either the
Corporation will pay any additional amount to the Executive or the Executive
will pay any excess amount to the Corporation, as the case may be. If
subsequently the Internal Revenue Service (the "IRS") claims that any additional
Excise Tax is owing, an additional Gross-Up Payment will be paid to the
Executive within 30 days of the Executive providing substantiation of the claim
made by the IRS. After payment to the Executive of the Gross-Up Payment, the
Executive will provide to the Corporation any information reasonably requested
by the Corporation relating to the Excise Tax, the Executive will take those
actions as the Corporation reasonable requests to contest the Excise Tax,
cooperate in good faith with the Corporation to effectively contest the Excise
Tax and permit the Corporation to participate in any proceedings contesting the
Excise Tax. The Corporation will bear and pay directly all costs and expenses
(including any interest or penalties on the Excise Tax), and indemnify and hold
the Executive harmless, on an after-tax basis, from all such costs and expenses
related to such contest. Should it ultimately be determined that any amount of
an Excise Tax is not properly owed, the Executive will refund to the Corporation
the related amount of the Gross-Up Payment.
11. NON-EXCLUSIVITY OF RIGHTS. Except as otherwise specifically provided,
nothing in this Agreement will prevent or limit the Executive's continued or
future participation in any benefit, incentive, or other plan, practice, or
program provided by the Corporation and for which the Executive may qualify. Any
amount of vested benefit or any amount to which the Executive is otherwise
entitled under any plan, practice, or program of the Corporation will be payable
in accordance with the plan, practice, or program, except as specifically
modified by this Agreement.
12. NO OBLIGATION TO SEEK OTHER EMPLOYMENT. The Executive will not be
obligated to seek other employment or to take other action to mitigate any
amount payable to him under this Agreement and, except as provided in Section
9(g), amounts owed to him hereunder shall not be reduced by amounts he may
receive from another employer.
13. CONFIDENTIALITY. During the course of his employment, the Executive
will have access to confidential information relating to the lines of business
of the Corporation, its trade secrets, marketing techniques, technical and cost
data, information concerning customers and suppliers, information relating to
product lines, and other valuable and confidential information relating to the
business operations of the Corporation not generally available to the public
(the "Confidential Information"). The parties hereby acknowledge that any
unauthorized disclosure or misuse of the Confidential Information could cause
irreparable damage to the Corporation. The parties also agree that covenants by
the Executive not to make unauthorized use or disclosures of the Confidential
Information are essential to the growth and stability of the business of the
Corporation. Accordingly, the Executive agrees to the confidentiality covenants
set forth in this Section.
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The Executive agrees that, except as required by his duties with the
Corporation or as authorized by the Corporation in writing, he will not use or
disclose to anyone at any time, regardless of whether before or after the
Executive ceases to be employed by the Corporation, any of the Confidential
Information obtained by him in the course of his employment with the
Corporation. The Executive shall not be deemed to have violated this Section 13
by disclosure of Confidential Information that at the time of disclosure (a) is
publicly available or becomes publicly available through no act or omission of
the Executive, or (b) is disclosed as required by court order or as otherwise
required by law, on the condition that notice of the requirement for such
disclosure is given to the Corporation prior to making any disclosure.
The Executive agrees that since irreparable damage could result from his
breach of the covenants in this Section, in addition to any and all other
remedies available to the Corporation, the Corporation will have the remedies of
a restraining order, injunction or other equitable relief to enforce the
provisions thereof. The Executive consents to jurisdiction in Lake County,
Illinois on the date of the commencement of any action for purposes of any
claims under this Section. In addition, the Executive agrees that the issues in
any action brought under this Section will be limited to claims under this
Section, and all other claims or counterclaims under other provisions of this
Agreement will be excluded.
In addition, the Executive will sign and be bound by the terms of the
attached "Employee Inventions and Proprietary Information Agreement" attached
hereto as Exhibit E. To the extent that the provisions of Exhibit E conflict
with this Agreement, the terms of this Agreement will be controlling.
14. NON-COMPETITION. In consideration of the compensation and other
benefits to be paid to the Executive under and in connection with this
Agreement, the Executive agrees that, beginning on the date of this Agreement
and continuing until the Covenant Expiration Date (as defined in Subsection (b)
below), he will not, directly or indirectly, for his own account or as agent,
employee, officer, director, trustee, consultant, partner, stockholder or equity
owner of any corporation or any other entity (except that he may passively own
securities constituting less than 1% of any class of securities of a public
company), or member of any firm or otherwise, (i) engage or attempt to engage,
in the Restricted Territory (as defined in Subsection (d) below), in any
business activity which is directly or indirectly competitive with the business
conducted by the Corporation or any Affiliate at the Reference Date (as defined
in Subsection (c) below), (ii) employ or solicit the employment of any person
who is employed by the Corporation or any Affiliate at the Reference Date or at
any time during the six-month period preceding the Reference Date, except that
the Executive will be free to employ or solicit the employment of any such
person whose employment with the Corporation or any Affiliate has terminated for
any reason (without any interference from the Executive) and who has not been
employed by the Corporation or any Affiliate for at least six (6) months, (iii)
canvass or solicit business in competition with any business conducted by the
Corporation or any Affiliate at the Reference Date from any person or entity who
during the six-month period preceding the Reference Date was a customer of the
Corporation or any Affiliate or from any person or entity which the Executive
has reason to
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believe might in the future become a customer of the Corporation or any
Affiliate as a result of marketing efforts, contacts or other facts and
circumstances of which the Executive is aware, (iv) willfully dissuade or
discourage any person or entity from using, employing or conducting business
with the Corporation or any Affiliate or (v) intentionally disrupt or interfere
with, or seek to disrupt or interfere with, the business or contractual
relationship between the Corporation or any Affiliate and any supplier who
during the six-month period preceding the Reference Date shall have supplied
components, materials or services to the Corporation or any Affiliate.
Notwithstanding the foregoing, the restrictions imposed by this Section
shall not in any manner be construed to prohibit, directly or indirectly, the
Executive from serving as an employee or consultant of the Corporation or any
Affiliate.
For purposes of this Agreement, the following terms have the meanings given
to them below:
(a) "Affiliate" means any joint venture, partnership or subsidiary now or
hereafter directly or indirectly owned or controlled by the Corporation. For
purposes of clarification, an entity shall not be deemed to be indirectly or
directly owned or controlled by the Corporation solely by reason of the
ownership or control of such entity by shareholders of the Corporation.
(b) "Covenant Expiration Date" means the date which is two (2) years after
the Termination Date (as defined in this Section).
(c) "Reference Date" means (A) for purposes of applying the covenants set
forth in this Section at any time prior to the Termination Date, the then
current date, or (B) for purposes of applying the covenants set forth in this
Section at any time on or after the Termination Date, the Termination Date.
(d) "Restricted Territory" means anywhere in the world where the
Corporation or any Affiliate conducts or plans to conduct the business of the
Corporation or any other business activity, as the case may be, at the Reference
Date.
(e) "Termination Date" means the date of termination of the Executive's
employment with the Corporation; provided however that the Executive's
employment will not be deemed to have terminated so long as the Executive
continues to be employed or engaged as an employee or consultant of the
Corporation or any Affiliate, even if such employment or engagement continues
after the expiration of the term of this Agreement, whether pursuant to this
Agreement or otherwise.
15. SUCCESSORS. This Agreement is personal to the Executive and may not be
assigned by the Executive other than by will or the laws of descent and
distribution. This Agreement will inure to the benefit of and be enforceable by
the Executive's legal representatives or successors in interest. Notwithstanding
any other provision of this Agreement, the Executive
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may designate a successor or successors in interest to receive any amounts due
under this Agreement after the Executive's death. If he has not designated a
successor in interest, payment of benefits under this Agreement will be made to
his wife, if surviving, and if not surviving, to his estate. A designation of a
successor in interest must be made in writing, signed by the Executive, and
delivered to the Employer in accordance with Section 19. Except as otherwise
provided in this Agreement, if the Executive has not designated a successor in
interest, payment of benefits under this Agreement will be made to the
Executive's estate. This Section will not supersede any designation of
beneficiary or successor in interest made by the Executive or provided for under
any other plan, practice, or program of the Employer. This Agreement will inure
to the benefit of and be binding upon the Corporation and its successors and
assigns. The Corporation will require any successor (whether direct or indirect,
by acquisition of assets, merger, consolidation or otherwise) to all or
substantially all of the operations or assets of the Corporation or any
successor and without regard to the form of transaction used to acquire the
operations or assets of the Corporation, to assume and agree to perform this
Agreement in the same manner and to the same extent that the Corporation would
be required to perform it if no succession had taken place. As used in this
Agreement, "Corporation" means the Corporation and any successor to its
operations or assets as set forth in this Section that is required by this
clause to assume and agree to perform this Agreement or that otherwise assumes
and agrees to perform this Agreement.
16. BENEFIT CLAIMS. In the event the Executive, or his beneficiaries, as
the case may be, and the Corporation disagree as to their respective rights and
obligations under this Agreement, and the Executive or his beneficiaries are
successful in establishing, privately or otherwise, that his or their position
is substantially correct, or that the Corporation's position is substantially
wrong or unreasonable, or in the event that the disagreement is resolved by
settlement, the Corporation will pay all costs and expenses, including counsel
fees, which the Executive or his beneficiaries may incur in connection therewith
directly to the provider of the services or as may otherwise be directed by the
Executive or his beneficiaries. The Corporation will not delay or reduce the
amount of any payment provided for hereunder or setoff or counterclaim against
any such amount for any reason whatsoever; it is the intention of the
Corporation and the Executive that the amounts payable to the Executive or his
beneficiaries hereunder will continue to be paid in all events in the manner and
at the times herein provided. All payments made by the Corporation hereunder
will be final and the Corporation will not seek to recover all or any part of
any portion of any payments hereunder for any reason.
17. FAILURE, DELAY OR WAIVER. No course of action or failure to act by the
Corporation or the Executive will constitute a waiver by the party of any right
or remedy under this Agreement, and no waiver by either party of any right or
remedy under this Agreement will be effective unless made in writing.
18. SEVERABILITY. Whenever possible, each provision of this Agreement will
be interpreted in such a manner as to be enforceable under applicable law.
However, if any provision of this Agreement is deemed unenforceable under
applicable law by a court having jurisdiction, the provision will be
unenforceable only to the extent necessary to make it enforceable without
invalidating the remainder thereof or any of the remaining provisions of this
Agreement.
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19. NOTICE. All written communications to parties required hereunder must
be in writing and (a) delivered in person, (b) mailed by registered or certified
mail, return receipt requested, (such mailed notice to be effective four (4)
days after the date it is mailed) or (c) sent by facsimile transmission, with
confirmation sent by way of one of the above methods, to the party at the
address given below for the party (or to any other address as the party
designates in a writing complying with this Section, delivered to the other
party):
If to the Corporation:
IDEX Corporation
Xxxxx 000
000 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Vice President - General Counsel
Telephone: 000-000-0000
Telecopier: 000-000-0000
with a copy to:
Xxxxxxx, Xxxx, Xxxxxxx, Xxxxx & Goodyear, LLP
0000 Xxx X&X Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq. and Xxxxxxx X. Xxxxxx, Esq.
Telephone: 000-000-0000
Telecopier: 000-000-0000
If to the Executive:
Xxxxxx X. Xxxxxxxx
00 Xxxxxx Xxx
Xxxxxxx, XX 00000
Telephone: 000-000-0000
Telecopier: 000-000-0000
with a copy to:
Kronish Xxxx Xxxxxx & Xxxxxxx, LLP
1114 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. Xxxxxx, Esq.
Telephone: 000-000-0000
Telecopier: 000-000-0000
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20. MISCELLANEOUS. This Agreement (a) may not be amended, modified or
terminated orally or by any course of conduct pursued by the Corporation or the
Executive, but may be amended, modified or terminated only by a written
agreement duly executed by the Corporation and the Executive, (b) is binding
upon and inures to the benefit of the Corporation and the Executive and each of
their respective heirs, representatives, successors and assignees, except that
the Executive may not assign any of his rights or obligations pursuant to this
Agreement, (c) except as provided in Sections 4 and 11 of this Agreement,
constitutes the entire agreement between the Corporation and the Executive with
respect to the subject matter of this Agreement, and supersedes all oral and
written proposals, representations, understandings and agreements previously
made or existing with respect to such subject matter, and (d) will be governed
by, and interpreted and construed in accordance with, the laws of the State of
Illinois, without regard to principles of conflicts of law.
21. TERMINATION OF THIS AGREEMENT. This Agreement will terminate when the
Corporation has made the last payment provided for hereunder; provided, however,
that the obligations set forth under Sections 8, 9, 10, 12, 13, 14 and 16 of
this Agreement will survive any termination and will remain in full force and
effect.
22. MULTIPLE COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Any party may execute
this Agreement by facsimile signature and the other party shall be entitled to
rely on such facsimile signature as evidence that this Agreement has been duly
executed by such party. Any party executing this Agreement by facsimile
signature shall immediately forward to the other party an original page by
overnight mail.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first above written.
IDEX CORPORATION
By /s/ Xxxxx X. Xxxxxx
----------------------------------------
Xxxxx X. Xxxxxx
Vice President - General Counsel
and Secretary
EMPLOYEE
/s/ Xxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxxx
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EXHIBIT A
Stock Option Award Agreement
18
EXHIBIT B
Restricted Stock Award
19
EXHIBIT C
Indemnity Agreement
20
EXHIBIT D
Policy on Change in Control
21
EXHIBIT E
Employee Inventions and Proprietary Information Agreement
