Attached files
| file | filename |
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| 8-K - CURRENT REPORT - Colfax CORP | v171018_8k.htm |
| EX-10.1 - EMPLOYMENT AGREEMENT - Colfax CORP | v171018_ex10-1.htm |
| EX-99.1 - COLFAX CORPORATION PRESS RELEASE - Colfax CORP | v171018_ex99-1.htm |
EXHIBIT
10.2
SEPARATION
AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General
Release (the “Agreement”) is made and
entered as of this 9th day of
January, 2010 (the “Effective
Date”), by and among Colfax Corporation, a Delaware corporation (“Colfax” or the “Company”), and John A. Young
(hereinafter “Mr.
Young”).
WHEREAS, Mr. Young has served
Colfax as its President, Chief Executive Officer, and as a member of its Board
of Directors;
WHEREAS, Mr. Young and Colfax
are parties to an Executive Employment Agreement dated April 29, 2008, as
amended by the Amendment thereto entered into effective as of January 1, 2010
(the “Executive Employment
Agreement”); and
WHEREAS, Mr. Young and Colfax
have agreed that Mr. Young will terminate his employment relationship and resign
from all positions with Colfax, and all of its respective directly and
indirectly owned subsidiaries and affiliates, including all employment, officer
and board of directors and other positions, under the terms and conditions of
this Agreement.
NOW, THEREFORE, AND IN
CONSIDERATION of the mutual promises of the parties to this Agreement,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
1. Resignation From and
Termination of Employment. Mr. Young hereby resigns from
employment with Colfax and all of its directly and indirectly owned subsidiaries
and affiliates, and resigns from all the offices, directorships and other
positions he holds with Colfax and all of its directly and indirectly owned
subsidiaries and affiliates, including without limitation his positions as
President and Chief Executive Officer of Colfax and his position as a member of
the Board of Directors of Colfax, effective as of January 9, 2010 (the “Resignation
Date”). After the Resignation Date, Mr. Young shall not be
entitled to the receipt of any further payments or benefits from Colfax other
than those expressly provided for in this Agreement. The parties
hereto agree that this Agreement constitutes written notice to Colfax of Mr.
Young’s resignation from the Board. The parties further agree that no
additional amount shall be payable to Mr. Young on account of his resignation
under the Executive Employment Agreement.
2. Termination
Payments. Provided Mr. Young executes the General Release
Agreement described in Section 5 of this Agreement, Mr. Young shall receive the
following payments and benefits under this Agreement. The date Mr.
Young executes such General Release Agreement shall be referred to as the “General Release Effective
Date”.
(a) Compensation and
Benefits.
(i) Mr.
Young shall receive a lump sum payment of $1,265,842 within 10 business days of
the General Release Effective Date.
(ii)
Mr. Young shall receive
$300,000, payable 30 days following settlement or initial adjudication of the
Company’s insurance coverage trial in the New Jersey Superior Court, currently
in Mercer County, but in no event later than March 15, 2011.
(b) Health
Coverage. At the Company’s expense, Mr. Young and his spouse
and dependent children shall be entitled to continuation of health insurance
coverage (i.e., medical, dental and vision) under the Company’s group health
plan(s) in which Mr. Young was participating on the Effective Date of this
Agreement for a period of one (1) year from the Effective Date.
(c) Equity
Grants.
(i)
Stock
Options. As of the Effective Date, Mr. Young shall become
fully and immediately vested in 50,403 of Colfax employee stock options granted
under the Colfax Corporation 2008 Omnibus Incentive Plan (the “Stock Incentive Plan”) to Mr.
Young on March 13, 2009 and which otherwise would have vested on March 13, 2010,
in 50,403 of Colfax employee stock options granted under the Stock Incentive
Plan on March 13, 2009 and which otherwise would have vested on March 13, 2011,
and in 20,833 of Colfax employee stock options granted under the Stock Incentive
Plan on May 7, 2008 and which otherwise would have vested on May 7,
2010. Furthermore, all of Mr. Young’s outstanding vested Colfax
employee stock options, whether previously vested or becoming vested pursuant to
this Section 2(c)(i), shall be exercisable until March 31, 2012, notwithstanding
any otherwise applicable provision in the award agreement providing for
expiration of such stock options on the 90th day
after the date of termination of employment. For the avoidance of
doubt, the Company’s records indicate that 20,834 employee stock options were
previously vested without regard to this Section 2(c)(i).
(ii)
Performance-Based Stock
Units. Mr. Young’s 25,000 Colfax employee stock
units granted under the Stock Incentive Plan on May 7, 2008 subject to
performance criteria, which already have been achieved, and currently unvested
based on additional service vesting criteria, shall, as of the Effective Date of
this Agreement, become fully and immediately vested. With respect to
such stock units becoming vested, the Company will withhold from the shares
deliverable to Mr. Young the number of shares necessary to satisfy the minimum
statutory federal and state tax withholding requirements which the Company
determines are applicable in connection with such vesting and issuance of common
stock of the Company.
3. Accrued
Benefits. As of his Resignation Date, Mr. Young’s
participation in the benefits programs of Colfax shall terminate in accordance
with the terms of Colfax’s benefits plans and its standard policies and
procedures, except that: (A) subject to Section 2(b), Mr. Young may
elect to continue the health insurance coverage that he had maintained as an
employee pursuant to the Consolidated Omnibus Budget Reconciliation Act as
amended (“COBRA”); (B) Mr. Young shall be entitled to payment of his pension and
retirement savings benefits accrued under the Retirement Plan for Salaried US
Employees of Imo Industries, Inc. and Affiliates, the Colfax Corporation Excess
Benefit Plan and the Colfax Corporation 401(k) Savings Plan Plus at the time and
in the form elected under the applicable plan; (C) Mr. Young’s 49,933 shares of
Colfax common stock granted on May 7, 2008 that remain subject to the Deferred
Delivery Stock Ownership Agreement between Mr. Young and Colfax (the “Stock Ownership Agreement”)
shall be delivered within 10 business days of the General Release Effective
Date; (D) Mr. Young shall be entitled to indemnification as provided in the
Indemnification Agreement he entered into with the Company at the time of the
Company’s initial public offering; and (E) Colfax shall reimburse Mr. Young for
appropriate and reasonable expenses incurred on or before the Resignation Date,
if any, in accordance with the applicable policies and
procedures.
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4. Effect on Other Agreements,
Ongoing Obligations.
(a) Section
6 of the Executive Employment Agreement (Confidentiality, Non-Competition and
Non-Disclosure; Executive Cooperation; and Non-Disparagement) is incorporated
herein by reference and shall remain in full force and effect in accordance with
its terms, except that Sections 6.2 and 6.3 shall be revised to provide as
follows:
6.2 Noncompetition. During
the term of this Agreement (including any extensions thereof) and for a period
of one (1) year following the termination of the Executive's employment under
this Agreement for any reason, the Executive shall not, except with the
Company's express prior written consent, for the benefit of any entity or person
(including the Executive) compete with the Business (as hereinafter defined)
within the Territory. For purposes of this Agreement, “Business”
shall mean a company involved in the manufacture and sale of pumps, valves or
fluid handling systems of the kind that are produced by the Company or that are
competitive with the pumps, valves or fluid handling systems that are produced
by the Company. For purposes of this Agreement, “Territory” shall
mean the United States of America.
6.3 Non-Solicitation. During
the term of this Agreement (including any extension thereof) and for a period of
three (3) years following the termination of the Executive’s termination under
this Agreement for any reason, the Executive shall not, except with the
Company’s express prior written consent, for the benefit of any entity or person
(including the Executive) solicit, induce or encourage any employee of the
Company, or any of its subsidiaries, to leave the employment of the Company or
solicit, induce or encourage any customer, or client of the Company, or any of
its subsidiaries, to cease or reduce its business with the Company or its
subsidiaries.
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(b) Mr.
Young agrees to provide reasonable cooperation in the preparation of all Colfax
Securities and Exchange Commission filings through the first fiscal quarter of
2010, including the provision of any internal certifications that the Company
may reasonably request relating to Colfax’s internal controls, results of
operations and financial condition for the periods prior to the Effective Date,
in a form similar to the certification attached hereto as Exhibit
A. Further, Mr. Young understands and agrees that his ongoing
obligations under Section 6.4 of the Executive Employment Agreement specifically
include, but are not limited to, providing testimony and other assistance that
may be requested in connection with pending asbestos-related insurance coverage
disputes. Consistent with Section 6.4 of the Executive Employment
Agreement, all expenses paid by Mr. Young in complying with this Section 4(b)
shall be promptly reimbursed to Mr. Young upon submission to the
Company.
(c) Except
to the extent otherwise expressly provided in this Agreement, the Company’s
obligations to Mr. Young under the Executive Employment Agreement shall be
deemed satisfied and cancelled.
5. General
Release. In consideration of the payments described in Section
2 of this Agreement, Mr. Young agrees to execute a General Release Agreement at
the time he executes this Agreement in exactly the form attached hereto as Exhibit B, the terms and
conditions of which are specifically incorporated herein by
reference. If Mr. Young breaches this commitment, then the Company
shall be released from any further obligation to perform hereunder (including,
but not limited to, any obligation to make any further payments to or for the
benefit of Mr. Young pursuant to Section 2).
6 No Other
Consideration. Mr. Young affirms that the terms stated herein
are the only consideration for signing this Agreement and that no other
representations, promises, or agreements of any kind have been made by any
person or entity to cause him to sign this Agreement. Mr. Young has
accepted the terms of this Agreement because he believes them to be fair and
reasonable and for no other reason.
7. No
Admission. It is understood and agreed by all parties that
this Agreement does not constitute an admission of liability or wrongdoing on
the part of Colfax and that by entering into this Agreement Colfax does not
admit that there has been any wrongdoing whatsoever against any person or
entity, and it expressly denies that any wrongdoing has occurred. It
is understood and agreed by all parties that this Agreement is purely an offer
of compromise.
8. Death. In
the event of Mr. Young’s death (regardless of whether occurring on or prior to
the Resignation Date), the Company shall provide any benefits and payments set
forth in Section 2 that have not previously been paid to Mr. Young (including
the right of such beneficiary to exercise any unexercised stock options) to the
beneficiary designated by Mr. Young in writing (which designation, where
applicable, shall be effected in accordance with the terms and conditions of the
applicable plan documents and procedures) or, if no such beneficiary shall be
named or be living at the time of his death, to his estate.
9. Withholding. All
compensation-related payments to be made to Mr. Young under this Agreement, or
otherwise by Colfax, shall be subject to withholding to satisfy required
withholding taxes and other required deductions.
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10. Modification. This
Agreement may not be released, discharged, abandoned, supplemented, changed, or
modified in any manner, orally or otherwise, except by an instrument in writing
signed and duly executed by each of the parties hereto.
11. Entire
Agreement. This Agreement contains and constitutes the entire
understanding and agreement between the parties on its subject matter, and,
except as otherwise provided herein, it supersedes and cancels all previous
negotiations, agreements, commitments, and writings in connection
herewith. If a conflict or inconsistency is found between the terms
of this Agreement and any other agreement, the terms of this Agreement shall
prevail.
12. Waiver. Failure
to insist upon strict compliance with any term, covenant, or condition of this
Agreement shall not be deemed a waiver of such term, covenant, or condition, nor
shall any waiver or relinquishment of any right or power under this Agreement at
any time or times be deemed a waiver or relinquishment of such right or power at
any other time or times.
13. Severability. Invalidity
or unenforceability of any provision of this Agreement shall in no way affect
the validity of enforceability of any other provision.
14. Assignability. Colfax
may, without the consent of Mr. Young, assign its rights and obligations under
this Agreement to any successor entity.
15. Choice of Law and Dispute
Resolution. The terms of this Agreement shall be governed by
the laws of the Commonwealth of Virginia. Any dispute or other
controversy arising from this Agreement shall be resolved in accordance with the
provisions of Sections 6.7 and 7 of the Executive Employment Agreement, which
are incorporated herein by reference.
16. Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed to be an original, but all of which together will constitute one and the
same Agreement.
17. Acknowledgements. Mr.
Young hereby acknowledges that he has carefully read and fully understands the
provisions of this Agreement, including the General Release Agreement, that he
has had the opportunity to fully discuss it with counsel, and that he knows the
contents
of the Agreement. Mr. Young further acknowledges that he is signing
this Agreement voluntarily and without coercion because he believes it is fair
and reasonable and for no other reason.
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IN WITNESS WHEREOF, the undersigned
have executed this Agreement as of the date set forth below.
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COLFAX
CORPORATION
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By:
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/s/ Steven W.
Weidenmuller
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Name:
Steven W. Weidenmuller
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Title:
Senior Vice President, Human Resources
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Date:
January 9, 2010
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JOHN
A. YOUNG
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/s/ John A. Young
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Date:
January 9, 2010
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EXHIBIT
A
CERTIFICATION
I hereby certify that I have read the
[Annual Report on Form 10-K][Quarterly Report on Form 10-Q] and that no facts
have come to my attention that cause me to believe that the Chief Executive
Officer of Colfax Corporation should not sign the certifications required under
Section 302 and Section 906 of the Sarbanes-Oxley Act of 2002.
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Dated:
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John
A. Young
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EXHIBIT
B
GENERAL
RELEASE AGREEMENT
THIS GENERAL RELEASE AGREEMENT is
entered into as of January 9, 2010 (the “Effective Date”), by John A.
Young (the “Executive”)
in consideration of the severance pay provided to the Executive by Colfax
Corporation (the “Company”) pursuant to the
Separation Agreement and General Release (the “Employment Agreement”) by and
between the Company and the Executive (the “Severance
Payment”).
1. General
Release. The Executive, on
his own behalf and on behalf of his heirs, executors, administrators, attorneys
and assigns, to the fullest extent permitted by law, hereby unconditionally and
irrevocably releases, waives and forever discharges the Company and each of its
affiliates, parents, successors, predecessors, and the subsidiaries, directors,
owners, members, shareholders, officers, agents, and employees of the Company
and its affiliates, parents, successors, predecessors, and subsidiaries
(collectively, all of the foregoing are referred to as the “Employer”), from any and all
causes of action, claims and damages, including attorneys’ fees, whether known
or unknown, foreseen or unforeseen, presently asserted or otherwise arising
through the date of his signing of the General Release Agreement, concerning his
employment or separation from employment. This release includes, but
is not limited to, any claim or entitlement to salary, bonuses (but not
including payment of any remaining bonus under the Employment Agreement), any
other payments, benefits or damages arising under any federal law (including,
but not limited to, Title VII of the Civil Rights Act of 1964, the Americans
with Disabilities Act, Executive Order 11246, the Family and Medical Leave Act,
and the Worker Adjustment and Retraining Notification Act, each as amended); any
claim arising under any state or local laws, ordinances or regulations
(including, but not limited to, any state or local laws, ordinances or
regulations requiring that advance notice be given of certain workforce
reductions); and any claim arising under any common law principle or public
policy, including, but not limited to, all suits in tort or contract, such as
wrongful termination, defamation, emotional distress, invasion of privacy or
loss of consortium.
The Executive understands that by
signing this General Release Agreement he is not waiving any claims or
administrative charges. He is waiving, however, any right to monetary
recovery or individual relief should any federal, state or local agency
(including the Equal Employment Opportunity Commission) pursue any claim on his
behalf arising out of or related to his employment with and/or separation from
employment with the Company.
The Executive further agrees without
any reservation whatsoever, never to sue the Employer or become a party to a
lawsuit on the basis of any and all claims of any type lawfully and validly
released in this General Release Agreement.
2. Acknowledgments. The Executive is
signing this General Release Agreement knowingly and voluntarily. He
acknowledges that:
(a) He
is hereby advised in writing to consult an attorney before signing this General
Release Agreement;
(b) He
has relied solely on his own judgment and/or that of his attorney regarding the
consideration for and the terms of this General Release Agreement and is signing
this General Release Agreement knowingly and voluntarily of his own free
will;
(c) He
is not entitled to the Severance Payment unless he agrees to and honors the
terms of this General Release Agreement;
(d) He
has read and understands the General Release Agreement and further understands
that it includes a general release of any and all known and unknown, foreseen or
unforeseen claims presently asserted or otherwise arising through the date of
his signing of this General Release Agreement that he may have against the
Employer; and
(e) No
statements made or conduct by the Employer has in any way coerced or unduly
influenced him to execute this General Release Agreement.
3. No
Admission of Liability. This General
Release Agreement does not constitute an admission of liability or wrongdoing on
the part of the Employer, the Employer does not admit there has been any
wrongdoing whatsoever against the Executive, and the Employer expressly denies
that any wrongdoing has occurred.
4. Entire
Agreement. There are no
other agreements of any nature between the Employer and the Executive with
respect to the matters discussed in this General Release Agreement, except as
expressly stated herein, and in signing this General Release Agreement, the
Executive is not relying on any agreements or representations, except those
expressly contained in this General Release Agreement.
5. Execution. It is not
necessary that the Employer sign this General Release Agreement following the
Executive's full and complete execution of it for it to become fully effective
and enforceable.
6. Severability. If any provision
of this General Release Agreement is found, held or deemed by a court of
competent jurisdiction to be void, unlawful or unenforceable under any
applicable statute or controlling law, the remainder of this General Release
Agreement shall continue in full force and effect.
7. Governing
Law. This General
Release Agreement shall be governed by the laws of the State of Delaware,
excluding the choice of law rules thereof.
8. Headings. Section and
subsection headings contained in this General Release Agreement are inserted for
the convenience of reference only. Section and subsection headings
shall not be deemed to be a part of this General Release Agreement for any
purpose, and they shall not in any way define or affect the meaning,
construction or scope of any of the provisions hereof.
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IN
WITNESS WHEREOF, the undersigned has duly executed this Agreement as of the day
and year first herein above written.
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EXECUTIVE:
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/s/ John A. Young
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JOHN
A. YOUNG
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