Exhibit 10.1
WILLIAM E. ROLLER
EXECUTIVE EMPLOYMENT
AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT
(this “ Agreement ”) is entered into as of
April 22, 2008, (the “ Effective Date ”) by
and between Colfax Corporation, a Delaware corporation (the “
Company ”), and William E. Roller (the “
Executive ”).
1. Positions, Duties and Term
. The Company hereby employs the Executive as its Senior Vice
President and General Manager, Colfax Americas and the Executive
hereby accepts such employment, on the terms and conditions set
forth below. The principal place of employment of Executive shall
be at the Company’s corporate offices in Monroe, NC, except
for reasonable business travel.
1.1 Term . The
Executive’s employment hereunder shall be for a term
commencing as of the Effective Date and ending as of the earliest
of (i) December 31, 2009 or such later date to which the
term of this Agreement may be extended pursuant to Subsection
(a) (ii) the date that the Executive’s employment
terminates pursuant to Subsections (c) or (d), below, or
(iii) the date of the Executive’s death. Notwithstanding
any other provision in this Agreement, this Agreement automatically
will terminate on December 31, 2008 if no initial public
offering or Change in Control Event has occurred (the “
Non-transaction ”).
(a) Extension of Term .
Unless the Executive’s employment with the Company terminates
earlier in accordance with Subsections (c) or (d), the parties
pursuant to Subsection (b) elect not to extend the term or the
Agreement terminates due to the Non-transaction, the term of this
Agreement automatically shall be extended as of December 31,
2008 and each December 31 thereafter, such that on each such
date the term of employment under this Agreement shall be for a
full two-year period. In addition, if a Change in Control shall
occur during the term of the Executive’s employment under
this Agreement, this Agreement shall not expire prior to the second
anniversary of the date of consummation of the Change in Control,
and the term of this Agreement shall automatically be extended to
the second anniversary, as necessary, to give effect to this
provision as of such consummation date.
(b) Election Not
to Extend Term . The Executive or the Board of Directors of the
Company (the “ Board ”), by written notice
delivered to the other, may at any time elect to terminate the
automatic extension provision of Subsection (a). Any such election
may be made until the December 31 st as of which the term would
otherwise be extended for an additional one year. Furthermore, the
parties agree that expiration of this Agreement in accordance with
the term end-date dictated by this Subsection (b) shall not in
any event constitute termination by the Executive for Good Reason
or by the Company without Cause under this Agreement.
(c) Early Termination . The
Company may terminate the Executive’s employment with or
without Cause or on account of Disability, with written notice
delivered to the Executive from Board. In the case of a termination
by the Company for Cause, the
Executive’s termination shall be effective
immediately upon giving notice. In the case of a termination
without Cause or on account of Disability, the termination shall be
effective as stated in such notice, but not earlier than 60 days
following the date of the notice.
(d) Early Resignation . The
Executive may resign from the Company for any reason, including
Good Reason. Executive may effect a Good Reason termination by
providing at least 30 days’ written notice to the Board of
the applicable Good Reason criteria and his termination effective
date; provided that the notice must be given within 90 days of the
occurrence of the condition that is the basis for such Good Reason;
and further provided that if the basis for such Good Reason is
correctible and the Company corrects the basis for such Good Reason
within 30 days after receipt of such notice, the Good Reason defect
shall be cured and Executive shall not then have the right to
terminate his employment for Good Reason with respect to the
occurrence addressed in the written notice. In the case of a
resignation other than for Good Reason, the termination shall be
effective as stated in the notice, but not earlier than 60 days
following the date of the notice.
(e) Termination and Offices
Held . At the time Executive ceases to be an employee of the
Company, the Executive agrees that he shall resign from any office
he holds with the Company and its subsidiaries and any
affiliate.
1.2 Duties . The Executive
shall faithfully perform for the Company the duties incident to the
office of Senior Vice President and General Manager, Colfax
Americas and shall perform such other duties of an executive,
managerial or administrative nature as shall be specified and
designated from time to time by the Board. The Executive shall
devote substantially all of the Executive’s business time and
effort to the performance of the Executive’s duties
hereunder, provided that in no event shall this sentence prohibit
the Executive from performing personal and charitable activities
and any other activities approved by the Board, so long as such
activities do not materially interfere with the Executive’s
duties for the Company.
2. Compensation .
2.1 Salary . During the term
of his employment under this Agreement, the Company shall pay the
Executive a base salary at an annual rate of $247,750 (the “
Base Salary ”). The Base Salary shall be reviewed no
less frequently than annually and may be increased at the
discretion of the Board or the Compensation Committee of the Board
(the “ Committee ”), as applicable. Except as
otherwise agreed in writing by the Executive, the Base Salary shall
not be reduced from the amount previously in effect. The Base
Salary shall be payable in equal biweekly installments or in such
other installments as shall be consistent with the Company’s
payroll procedures.
2.2 Annual Cash Incentive .
During the term of his employment under this Agreement, the
Executive shall be eligible to receive an annual cash bonus based
on performance objectives established by the Committee each year
(the “ Annual Cash Incentive ”). The
Executive’s target Annual Cash Incentive amount will be the
percentage of Base Salary designated as the target by the
Committee, which amount shall be at least 45% of the Base Salary
then in effect for each applicable year. Notwithstanding the
preceding, Executive’s Annual Cash Incentive, if any, may be
below (including zero), at, or above the target based upon the
achievement of the performance objectives.
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2.3 Benefits . During the
term of his employment under this Agreement, the Executive shall be
permitted to participate in any group life, hospitalization or
disability insurance plans, health programs, pension and profit
sharing plans, long-term incentive plans and similar benefits that
may be available to other senior executives of the Company
generally, on the same terms as may be applicable to such other
executives, in each case to the extent that the Executive is
eligible under the terms of such plans or programs.
2.4 Vacation . During the
term of his employment under this agreement, the Executive shall be
entitled to vacation of twenty (20) working days per
year.
2.5 Expenses . The Company
shall pay or reimburse the Executive for all ordinary and
reasonable out-of-pocket expenses actually incurred (and, in the
case of reimbursement, paid) by the Executive during the term the
Executive’s employment under this Agreement, provided that
the Executive submits such expenses in accordance with the policies
applicable to senior executives of the Company
generally.
3. Terminations Other than
Without Cause or for Good Reason . In the event of the
Executive’s resignation other than for Good Reason, his
termination of employment with the Company on account of death or
Disability, or his termination by the Company for Cause, all
obligations of the Company under Sections 1 and 2 will immediately
cease. In connection with this resignation or termination, the
Company will pay the Executive (or, in the case of the
Executive’s death, Executive’s beneficiary or, if none
has been designated in accordance with Section 6.3,
Executive’s estate), the amount of the Executive’s
Compensation Accrued at Termination, and the Executive’s
rights, if any, under any Company benefit plan or program shall be
governed by such plan or program.
4. Terminations Without Cause or
for Good Reason . If during the term of his employment under
this Agreement, Executive is terminated by the Company without
Cause (and not on account of Disability) or resigns from the
Company for Good Reason, all obligations of the Company under
Sections 1 and 2 will immediately cease. In connection with this
resignation or termination, the Company will pay the Executive (or,
in the case of the Executive’s death, Executive’s
beneficiary or, if none has been designated in accordance with
Section 8.3, Executive’s estate), the amount of the
Executive’s Compensation Accrued at Termination, and the
Executive’s rights, if any, under any Company benefit plan or
program shall be governed by such plan or program. In addition, in
connection with a resignation or termination described in this
Section 4, and subject to the requirements of
Section 4.3, the Executive shall be entitled to the benefits
described in Section 4.1 and, if applicable,
Section 4.2.
4.1 Severance and Pro-Rata
Bonus . The benefit under this Section 4.1 shall consist
of the following:
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(i)
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A single sum severance payment in
cash equal to the sum of: (x) one (1) times the
Executive’s Base Salary plus (y) one (1) times the
Executive’s target Annual Cash Incentive in effect for the
year; provided, however,
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that the Annual Cash Incentive
component shall instead be the average of the two highest actual
Annual Cash Incentive payments made in the three most recent
performance periods, if this amount is greater and the Executive
has received two such payments; and provided, further, that the
multiplier under the provisions of (x) and (y) shall be
“two (2) times” in the event the applicable
termination of employment occurs within 3 months prior to a Change
in Control Event or two (2) years after a Change in
Control;
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(ii)
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In lieu of any
annual cash incentive under Section 2.2 for the year in which
Executive’s employment terminates, a single sum cash payment
equal to the Partial Year Bonus (as defined in Section 10.6);
and
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(iii)
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At
Company’s expense, Executive 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 the Executive was
participating on the date of termination or if such plan(s) have
been terminated, in the plan(s) in which senior executives of the
Company participate for a period of one (1) year or two
(2) years in the event the applicable termination of
employment occurs within 3 months prior to a Change in Control
Event or two (2) years after a Change in Control.
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4.2 Change in Control Termination
Accelerated Vesting . If the resignation or termination under
this Section 4 shall occur within 3 months prior to a Change
in Control Event or two (2) years after a Change in Control,
the following provisions shall apply:
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(i)
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All equity or
equity based awards held by Executive at termination of employment,
including but not limited to, stock options, restricted stock and
restricted stock units, and which time-vest based on service shall
become vested and non-forfeitable, and all other terms of such
awards shall be governed by the plans and programs and the
agreements and other documents pursuant to which such options were
granted; and
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(ii)
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Any performance
objectives upon which the earning of performance-based restricted
stock, restricted stock units, and other equity or equity-based
awards and other long-term incentive awards (including cash
awards,) is conditioned shall be deemed to have been met at the
greater of (A) target level at the date of termination, or
(B) actual performance at the date of termination, and such
amounts shall become fully vested and non-forfeitable as a result
of termination of employment at the date of such termination, and,
in other respects, such awards shall be governed by the plans and
programs and the agreements and other documents pursuant to which
such awards were granted;
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4.3 Waiver and Release
Agreement . In consideration of the severance payments
described in Section 4.1 or Section 4.2, to which
severance payments the Executive would otherwise not be entitled,
and as a pre-condition to the Executive becoming entitled to such
severance payments under this Agreement, the Executive agrees to
execute at the time of Executive’s termination a Waiver and
Release Agreement in exactly the form provided to the Executive by
the Company without alteration or addition (the “ Waiver
and Release Agreement ”), attached hereto as Exhibit
A , the terms and conditions of which are specifically
incorporated herein by reference.
5. Golden Parachute Excise Tax
Provisions . In the event it is determined that any payment or
benefit (within the meaning of Section 280G(B)(2) of the
Internal Revenue Code of 1986, as amended (the “ Code
”)), to the Executive or for his or her benefit paid or
payable or distributed to or distributable pursuant to the terms of
this Agreement or otherwise in connection with, or arising out of,
his or her employment (“ Payments ”), would be
subject to the excise tax imposed by Section 4999 of the Code
or any interest or penalties are incurred by the Executive with
respect to such excise tax (such excise tax, together with any such
interest and penalties, are hereinafter collectively referred to as
the “ Excise Tax ”), then the total Payments
shall be reduced to the extent the payment of such amounts would
cause the Executive’s total termination benefits to
constitute an “excess” parachute payment under
Section 280G of the Internal Revenue Code of 1986, as amended
(the “ Code ”) and by reason of such excess
parachute payment the Executive would be subject to an excise tax
under Section 4999(a) of the Code, but only if the Executive
(or the Executive’s tax advisor) determines that the
after-tax value of the termination benefits calculated with the
foregoing restriction exceed those calculated without the foregoing
restriction. Except as otherwise expressly provided herein, all
determinations under this Section 5 shall be made at the
expense of the Company by a nationally recognized public accounting
or consulting firm selected by the Company and subject to the
approval of Executive, which approval shall not be unreasonably
withheld. Such determination shall be binding upon Executive and
the Company.
5.1 Company Withholding .
Notwithstanding anything contained in this Agreement to the
contrary, in the event that, according to the Determination, an
Excise Tax will be imposed on any Payment or Payments, the Company
shall pay to the applicable government taxing authorities as Excise
Tax withholding, the amount of the Excise Tax that the Company has
actually withheld from the Payment or Payments.
6. Confidentiality;
Non-Competition and Non-Disclosure; Executive Cooperation;
Non-Disparagement .
6.1 Confidential Information
. The Executive acknowledges that, during the course of his
employment with the Company, the Executive may receive special
training and/or may be given access to or may become acquainted
with Confidential Information (as hereinafter defined) of the
Company. As used in this Section 6.2, “Confidential
Information” of the Company means all trade practices,
business plans, price lists, supplier lists, customer lists,
marketing plans, financial information, software and all other
compilations of information which relate to the business of the
Company, or to any of its subsidiaries, and which have not been
disclosed by the Company to the public, or which are not otherwise
generally available to the public.
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The Executive acknowledges that the
Confidential Information of the Company, as such may exist from
time to time, are valuable, confidential, special and unique assets
of the Company and its subsidiaries, expensive to produce and
maintain and essential for the profitable operation of their
respective businesses. The Executive agrees that, during the course
of his employment with the Company, or at any time thereafter, he
shall not, directly or indirectly, communicate, disclose or divulge
to any Person (as such term is hereinafter defined), or use for his
benefit or the benefit of any Person, in any manner, any
Confidential Information of the Company or its subsidiaries
acquired during his employment with the Company or any other
confidential information concerning the conduct and details of the
businesses of the Company and its subsidiaries, except as required
in the course of his employment with the Company or as otherwise
may be required by law. For purposes if this Agreement,
“Person” shall mean any individual, partnership,
corporation, trust, unincorporated association, joint venture,
limited liability company or other entity or any government,
governmental agency or political subdivision.
All documents relating to the
businesses of the Company and its affiliates including, without
limitation, Confidential Information of the Company, whether
prepared by the Executive or otherwise coming into the
Executive’s possession, are the exclusive property of the
Company and such respective subsidiaries, and must not be removed
from the premises of the Company, except as required in the course
of the Executive’s employment with the Company. The Executive
shall return all such documents (including any copies thereof) to
the Company when the Executive ceases to be employed by the Company
or upon the earlier request of the Company or the Board.
6.2 Noncompetition . During
the term of this Agreement (including any extensions thereof) and
for a period of one (1) year or, in the case of a termination
described in Section 4.2, two (2) years 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, directly or
indirectly, in any capacity, for the benefit of any entity or
person (including the Executive) become employed by, own, operate,
manage, direct, invest in (except through a mutual fund), or
otherwise, directly or indirectly, engage in, or be employed by,
any entity or person which competes 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. 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 two (2) years or, in the case of a termination
described in Section 4.2, 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, directly or
indirectly, in any capacity, for the benefit of any entity or
person (including the Executive) solicit, service, divert, take
away, or contact any customer, client or employee of the Company,
or any of its subsidiaries, or promote a competing service to any
customer, client or employee of the Company, its subsidiaries or
any of its respective businesses.
6.4 Cooperation With Regard to
Litigation . Executive agrees to cooperate with the Company,
during the term and thereafter (including following
Executive’s termination
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of employment for any reason), by making himself
available to testify on behalf of the Company or any subsidiary or
affiliate of the Company, in any action, suit, or proceeding,
whether civil, criminal, administrative, or investigative, and to
assist the Company, or any subsidiary or affiliate of the Company,
in any such action, suit, or proceeding, by providing information
and meeting and consulting with the Board or its representatives or
counsel, or representatives or counsel to the Company, or any
subsidiary or affiliate of the Company, as may be reasonably
requested and after taking into account Executive’s
post-termination responsibilities and obligations. The Company
agrees to reimburse Executive, on an after-tax basis, for all
reasonable expenses actually incurred in connection with his
provision of testimony or assistance.
6.5 Non-Disparagement .
Executive shall not, at any time during the Term and thereafter
make statements or representations, or otherwise communicate,
directly or indirectly, in writing, orally, or otherwise, or take
any action which may, directly or indirectly, disparage or be
damaging to the Company, its subsidiaries