AMENDMENT DATED DECEMBER 31, 2008 TO
EMPLOYMENT AGREEMENT
The
AMENDED AND RESTATED EMPLOYMENT AGREEMENT dated September 12,
2005 between PALL CORPORATION, a New York Corporation (the
“Company”) and Roberto Perez (“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:
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1.
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Section 3(b)(i) is hereby
amended to replace “45%” with
“105%”.
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2.
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Section 3(b)(ii) is hereby
deleted, and Section 3(b)(iii) is renumbered Section
3(b)(ii).
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3.
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Section 4(c) is amended by the
addition of the following at the end of
Section 4(c):
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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.
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4.
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Section 4 is amended to add
paragraph (d) and (e) as follows:
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(d) Payments
Upon Notice . If, in connection with any notice given under
Section 1 or 4(c), upon written consent of the Company, the
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 16 below (where applicable) and with
Executive’s other continuing obligations under Section 5
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:
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(i)
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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..
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(ii)
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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
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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 1 st 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.
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(iii)
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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 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.
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(iv)
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(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.
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(B) Any
vested units Executive had previously deferred under the MSPP, to
the extent payable upon a Termination of Employment (as defined in
the MSPP), will be paid on the two-year anniversary of
Executive’s separation from service.
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(v)
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Any
monthly pension to which Executive is entitled under the Pall
Corporation Supplementary Pension Plan (the “SPP”) will
be calculated at the time of the two-year anniversary of
Executive’s separation from service and will commence payment
on the later of the first day of the month after Executive has
attained his Early Retirement Date (as defined in the SPP) and the
two-year anniversary of Executive’s separation from service.
Upon separation from service, Executive shall be credited with two
years of age and two years of service for purposes of eligibility
and vesting under the SPP.
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(vi)
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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, to the extent permitted by such Plan and applicable law;
provided 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.
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(vii)
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In
the event that Executive gives notice under
Section 4(c):
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(A) for
purposes of Section 4(d)(ii), Executive will cease to receive
such monthly payments on the date specified in the notice given by
the Executive (and not on the two-year anniversary of separation
from service) and
(B) for
purposes of Section 4(d)(iv)(A), the period of such continued
vesting and, for purposes of Sections 4(d)(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 4(d)(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.
(e)
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.
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5.
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Section 5 is renamed “
Restrictive Covenants ”, the paragraph that currently
comprises Section 5 is designated “(a) Covenant Not to
Compete.”, and the following is added at the end of
Section 5:
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(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 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 the Executive, except
that the Company
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shall not be
deemed to have breached its obligations hereunder: (i) if
during the Executive’s employment with the Company, any
Company director, employee, agent or representative criticizes the
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 the Executive
prompt notice of any such request so that the Executive may seek an
appropriate protective order, 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, Exe
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