Exhibit 10.28
SEPARATION AGREEMENT AND RELEASE
THIS SEPARATION AGREEMENT AND RELEASE ("Agreement") is made and
entered into by and between ▇▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇") and Pentair, Inc.
("Pentair").
1. Consideration. In consideration for the mutual promises and the
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payments to ▇▇▇▇▇ as set forth herein, ▇▇▇▇▇ hereby acknowledges the full,
complete, and final settlement of any and all claims, actions, causes of action
or costs, including attorneys' fees, which he might have against Pentair. In
exchange, Pentair hereby acknowledges the full, complete, and final settlement
of any and all claims, actions, causes of action or costs, including attorneys'
fees which it might have against ▇▇▇▇▇.
2. Discharge of Claims. ▇▇▇▇▇, on behalf of himself, his agents,
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representatives, attorneys, assignees, heirs, executors, and administrators
("Releasor"), hereby releases and forever discharges Pentair, and all past and
present employees, agents, insurers, officials, officers, directors,
divisions, parents, subsidiaries and successors thereof ("Releasees") from any
and all claims and causes of action of any type arising, or which may have
arisen, out of or in connection with his employment or the termination of his
employment with Pentair, including but not limited to claims, demands or
actions arising under the Federal Fair Labor Standards Act, the Age
Discrimination in Employment Act of 1967, 29 U.S.C. [sec] 626, as amended by
Public Law 101.433 (1990) (the "Older Workers Benefit Protection Act"), Title
VII of the Civil Rights Act of 1964, 42 U.S.C. [sec] 2000e, et seq., the
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Americans with Disabilities Act, 29 U.S.C. [sec] 2101, et seq., the Family
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Medical Leave Act, the Minnesota Human Rights Act, Minn. Stat. [sec] 363.01, et
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seq., any other federal, state or local statute, ordinance, regulation or order
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regarding employment, compensation for employment, termination of employment, or
discrimination in employment, and the common law of any state.
Releasor further understands that this discharge of claims extends to,
but is not limited to, all claims which he may have as of the date of this
Agreement against any Releasee, based upon statutory or common law claims for
defamation, libel, slander, assault, battery, negligent or intentional
infliction of emotional distress, negligent hiring or retention, breach of
contract, promissory estoppel, fraud, wrongful discharge, or any other theory,
whether legal or equitable, including all claims for items of compensation and
benefits except as prohibited by law.
3. Confidential Information Acquired During Employment. ▇▇▇▇▇ agrees that
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he will continue to treat as private and privileged any information, data,
figures, projections, estimates, marketing plans, customer lists, lists of
contract workers, tax records, personnel records, accounting procedures,
formulas, contracts, business partners, alliances, ventures and all other
confidential information which ▇▇▇▇▇ either developed or acquired while working
for Pentair or any affiliate. Further, ▇▇▇▇▇ agrees that he will not release
any such information to any person, firm, corporation or other entity at any
time, except as may be required by law, or as agreed to in writing by Pentair.
▇▇▇▇▇ acknowledges that any violation of this non-disclosure provision shall
entitle Pentair to appropriate injunctive relief and to any damages which it
may sustain due to an improper disclosure.
4. Confidentiality. ▇▇▇▇▇ represents and agrees that he will keep the
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terms and existence of this Agreement completely confidential, and that he will
not disclose any information concerning this Agreement to anyone, except for
his counsel, tax accountant, or spouse, if any, each of whom shall also be
advised to keep the existence of this Agreement and its terms and conditions in
the strictest confidence, or except as may be required by law or otherwise
agreed to in writing by Pentair. Pentair represents and agrees that it
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will keep the terms and existence of this Agreement confidential, except as
required by law or regulation or otherwise agreed to in writing by ▇▇▇▇▇.
5. Non-Solicitation/Non-Competition Agreement. ▇▇▇▇▇ acknowledges that
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during his employment at Pentair and with its subsidiaries and affiliates, he
became familiar with trade secrets, know-how, executive personnel, business
strategies, product development and other confidential and proprietary
information concerning the business of Pentair's Enclosures Group (the
"Group"). In consideration for the benefits paid to ▇▇▇▇▇ under this Agreement
(including, but not limited to, those benefits in Paragraph 11.b hereof), ▇▇▇▇▇
agrees that he shall not, either directly or indirectly, for a period of one
(1) year from the Separation Date as defined in Paragraph 7 of this Agreement,
and without the prior written consent of Pentair:
a. own, manage, control, participate in, consult with or render
services of any kind for any concern which engages in a business which is
competitive with any business being conducted, or contemplated being
conducted, by the Group as of October 17, 2001;
b. become an employee or agent of any publicly traded
corporation or other entity, or any division or subsidiary of such a
corporation or entity, where more than ten percent (10%) of such
organization's business is in competition with any business being
conducted, or contemplated being conducted, by the Group as of the
Separation Date, unless the annual sales of such organization do not
exceed $40 million;
c. participate in any plan or attempt to acquire the business
or assets of the Group or control of the voting stock of any member
thereof, or in any manner interfere with the control of Pentair or the
Group, whether by friendly or unfriendly means;
d. induce or attempt to induce any individual to leave the
employ of Pentair or any Group member or hire any such individual who
approaches him or her for employment; or
e. engage in or sponsor the solicitation of customers of any
Group member to do business with any competitor of such organization.
In the event ▇▇▇▇▇ breaches any obligation under paragraph 5 of this
Agreement, the Company shall have no obligation to make any payments
contemplated under paragraph 11.b hereof, and, in such event, ▇▇▇▇▇ shall
forfeit any right to payments under paragraph 11.b hereof.
6. No Wrongdoing. ▇▇▇▇▇ and Pentair agree and acknowledge that the
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consideration exchanged herein does not constitute, and shall not be construed
as, an admission of liability or wrongdoing on the part of Pentair or the
Group, and that this Agreement shall not be admissible in any proceeding as
evidence of liability or wrongdoing by anyone.
7. Separation from Service. ▇▇▇▇▇'▇ employment with the Pentair and the
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Group ends effective November 30, 2001 (the "Separation Date"). ▇▇▇▇▇ ceased to
perform duties as an employee or officer of Pentair in the positions listed on
the attached Schedule A as of October 17, 2001. ▇▇▇▇▇ will not apply for or
seek employment or re-employment with Pentair or any Group member at any time
after he signs this Agreement.
8. Consulting/Transition Payments. ▇▇▇▇▇ shall receive three payments of
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$13,125.00 for remaining available to consult with the company regarding the
transition of his responsibilities, less FICA,
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income tax, and other withholding or payroll deductions as outlined in this
Agreement or which Pentair may be required by law to make. These payments shall
be payable according to Pentair's usual payroll cycle starting on October 30 or
immediately following the expiration date of the rescission period described in
Paragraph 23, whichever occurs first.
9. Severance Payment. Provided ▇▇▇▇▇ does not rescind the Agreement in
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the manner provided in Paragraph 23 of the Agreement, he will receive
twenty-four (24) semi-monthly severance payments of $ 13,125.00 each (less
FICA, income tax, and other withholding or payroll deductions as outlined in
this Agreement or which Pentair may be required by law to make). These
severance payments shall be payable according to Pentair's usual payroll cycle
starting on or immediately following the expiration date of the rescission
period described in said Paragraph 23. ▇▇▇▇▇ shall receive all such severance
payments regardless of whether he secures other employment prior to November
30, 2002. This severance payment will not be considered eligible earnings for
purposes of determining benefits under the Pentair Pension Plan or the Pentair
Retirement Savings and Stock Incentive Plan.
10. Management Incentive Plan. A payment will be made under Pentair's
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Management Incentive Plan to ▇▇▇▇▇ in March of 2002 calculated as if he had
been eligible for a prorated MIP payment as of his separation date. Such
payment will be calculated on the basis of a 1.0 multiplier and an SPF of 0.2
or such other calculation made for other officers receiving payments in March
2002, whichever is greater and, in any case, shall be not less than $26,460.
11. Stock and Equity Awards. Outstanding awards made to ▇▇▇▇▇ under the
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Pentair Omnibus Stock Incentive Plan (the "Omnibus Plan") and other equity
awards shall be paid as described below. ▇▇▇▇▇ understands and agrees that the
payment of these awards as described herein is discretionary and not required
under the normal policies and procedures of Pentair, and that he would not be
entitled to these benefits without this Agreement.
a. Restricted Stock. Nine hundred seventy two (972) shares of
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restricted stock awarded to ▇▇▇▇▇ through the Separation Date under the
Omnibus Plan as a result of the Stock Incentive Plan shall, to the extent
not currently vested, be vested immediately following the expiration of
the rescission period described in said Paragraph 23. Rights to any other
shares of restricted stock heretofore awarded to ▇▇▇▇▇ but not vested,
including specifically but not exclusively all remaining TARSAP shares,
are hereby terminated.
b. Incentive Compensation Units ("ICUs"). All ICUs awarded to
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▇▇▇▇▇ through the Separation Date under the Omnibus Plan shall be
deemed to be fully vested immediately following the expiration of the
rescission period described in said Paragraph 23 without regard to the
vesting period stated at the time of grant. Said awards shall be valued
calculated by using a multiplier of 0.70, which value shall be not less
than $236,059, and paid to ▇▇▇▇▇ according to the usual payment
schedule.
c. Stock Options. Immediately following the expiration of the
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rescission period described in said Paragraph 23 all vested stock
options granted to ▇▇▇▇▇ through the Separation Date under the Omnibus
Plan and two-thirds of the stock Options granted to ▇▇▇▇▇ in 2001 shall
remain outstanding and exercisable by him through the earlier of their
original maturity date and three (3) years from the Separation Date;
provided, however, that the date any such option is first exercisable
shall not be accelerated. Attached as Schedule C to this Agreement is a
listing of such vested stock options, whether incentive or
non-qualified stock options, and the dates of first exercisability and
lapse thereof in accordance with the terms of this paragraph c.
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To the extent options designated as incentive stock options
are exercised within thirty (30) days of the last day of ▇▇▇▇▇'▇
employment, they shall retain their status as qualified options, to the
extent otherwise qualifying as incentive stock options; options
exercised after this thirty (30) day period shall be treated as
nonqualified options.
In the event ▇▇▇▇▇ shall sell any Pentair common stock
acquired pursuant to the exercise of an incentive stock option in a
disqualifying disposition, ▇▇▇▇▇ shall immediately notify Pentair of
such disposition and supply all information with respect to such sale
as is reasonably requested by Pentair. This notification obligation
shall apply regardless of whether such options were exercised before or
after the Separation Date. For purposes of this subparagraph, any
disposition of Pentair common stock received upon exercise of an
incentive stock option, within twelve (12) months of such exercise,
shall constitute a disqualifying disposition.
In the event ▇▇▇▇▇ should die before all such options have
been exercised or otherwise lapse, then the beneficiary designated by
▇▇▇▇▇ shall have six (6) months from ▇▇▇▇▇'▇ death to exercise any
options then outstanding. Any options not so exercised shall lapse at
the end of said six (6) month period.
12. Retirement Benefits. ▇▇▇▇▇ shall receive payment from the
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tax-qualified and non-qualified retirement plans maintained by Pentair as
follows:
a. Pentair Pension Plan. ▇▇▇▇▇ shall be entitled to receive
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payment of his vested accrued benefit under the Pentair Pension Plan,
determined as of the Separation Date, in accordance with applicable
provisions of that plan. From and after the Separation Date, ▇▇▇▇▇
shall cease to be eligible to accrue additional benefits under the
Pentair Pension Plan.
The benefits described herein are in lieu of benefits under
either the 1988 or 1999 Supplemental Executive Retirement Plans, and
▇▇▇▇▇ has not yet earned, nor is he now entitled to, payment of a
benefit under either of said plans.
b. Retirement Savings and Stock Incentive Plan ("RSIP"). ▇▇▇▇▇
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shall be entitled to receive payment of his vested accrued benefit
under RSIP in accordance with applicable provisions of that plan. ▇▇▇▇▇
shall remain a participant in RSIP until such time as he requests and
receives payment of his vested accrued benefit. From and after the
Separation Date, ▇▇▇▇▇ shall not be entitled to make contributions to
RSIP, but shall be entitled to share in allocations of contributions
made by Pentair after such date, including matching or employer
discretionary contributions payable on account of service completed,
deferrals made or salary paid to ▇▇▇▇▇ through the Separation Date, to
the extent required by applicable provisions of RSIP.
c. Non-Qualified Deferred Compensation Plan ("Sidekick").
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▇▇▇▇▇ shall be entitled to receive payment of all amounts payable to
him under the terms and conditions of the Sidekick in accordance with
the applicable provisions of said plan. From and after the Separation
Date, ▇▇▇▇▇ shall not be entitled to make contributions to Sidekick,
but shall be entitled to share in allocations of contributions made by
Pentair after such date, including matching or employer discretionary
contributions payable on account of service completed, deferrals made
or salary paid to ▇▇▇▇▇ through the Separation Date, to the extent
required by applicable provisions of Sidekick.
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d. Other Deferred Compensation Plan. To the extent ▇▇▇▇▇ may
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have amounts payable to him by reason of his participation in the
deferred compensation plan maintained by Pentair prior to
implementation of Sidekick, ▇▇▇▇▇ shall be entitled to receive payment
of such deferred compensation in accordance with the annual payment
elections made by him during the time he elected to participate in such
plan.
13. Insurance Benefits. ▇▇▇▇▇ shall be eligible to elect to continue
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participation in various medical, dental, life and disability insurance
benefits offered by Pentair as follows:
a. Medical and Dental Insurance. In the event ▇▇▇▇▇ elects to
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continue participating in such medical and dental insurance programs as
are made available to employees of Pentair, the cost of continuing such
benefits shall be shared by Pentair and ▇▇▇▇▇ on the same basis as if
▇▇▇▇▇ had remained an employee of Pentair until the earlier of such
time as he is eligible for such coverage with a subsequent employer or
eighteen (18) months from the Separation Date. Beginning December 1,
2001 ▇▇▇▇▇ shall reimburse Pentair for his share of the applicable
premium cost. ▇▇▇▇▇ acknowledges that he would not be entitled to
continue these benefits by paying the same premium charge as is paid by
an active employee without this Agreement. For purposes of COBRA, the
continuation period shall begin on the Separation Date. At the
expiration of the maximum continuation period, ▇▇▇▇▇ shall be offered
such conversion rights as are then being made available by the then
insurer.
b. Disability and Life Insurance. ▇▇▇▇▇ will be covered under
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the Pentair group life (including dependent life), short-term
disability and long-term disability plans, as amended from time to
time, through the Separation Date. After the Separation Date, ▇▇▇▇▇ may
elect to arrange for continuation of coverage, if available under any
such plans, and all premiums for such coverage shall be paid solely by
▇▇▇▇▇.
c. Flexible Benefit Plan. ▇▇▇▇▇ shall be offered the opportunity
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to continue participation in the Pentair Flexible Benefit Plan consistent
with the terms and provisions of said plan, which requires such
continuation contributions to be made on an after-tax basis.
14. Other Benefits or Payments. ▇▇▇▇▇ shall be entitled to receive other
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payments and benefits as described below. ▇▇▇▇▇ understands and agrees that
without this Agreement, he would not be entitled to any of such benefits or
payments.
a. Flexible Perquisite Account. Pentair will pay to ▇▇▇▇▇ a
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maximum of $20,000 for the year 2001 under the Pentair Flexible
Perquisite Plan. Any amounts not theretofore paid to ▇▇▇▇▇ or for his
benefit pursuant to the plan provisions as of December 15, 2001 shall
be paid to ▇▇▇▇▇ on such date. No payments will be made until the
expiration of the rescission period described in said Paragraph 23.
b. Company Vehicle. ▇▇▇▇▇ may elect to return to Pentair the
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vehicle provided to him by Pentair which is currently in his
possession, to purchase the vehicle on the Separation Date or assume
the vehicle lease. The Flexible Perquisite Account benefit described in
the preceding paragraph may be used to offset the vehicle purchase
price if such benefit is not otherwise paid to ▇▇▇▇▇ in cash. In the
event ▇▇▇▇▇ elects to retain the vehicle, all applicable sales or other
taxes and transfer fees shall be paid by ▇▇▇▇▇.
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c. Business Expenses. Pentair will reimburse ▇▇▇▇▇ for all
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business expenses incurred by him in the active performance of his duties
on behalf of Pentair through November 30, 2001, provided ▇▇▇▇▇ submits
proper documentation for such expenses.
15. Non-Disparagement. Pentair agrees that neither it nor any of its
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executive officers shall disparage or defame ▇▇▇▇▇ in any respect concerning
the employment relationship between them.
16. Vacation Pay. Pentair will pay to ▇▇▇▇▇ vacation pay for nine
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(9) accrued but unused vacation days. No payments will be made until the
expiration of the rescission period described in said Paragraph 23.
17. Executive Outplacement. Pentair will pay $31,500 for the purpose
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of obtaining outplacement services with ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ for ▇▇▇▇▇'▇ benefit.
18. Cooperation. ▇▇▇▇▇ agrees that, at the request of Pentair, ▇▇▇▇▇
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will cooperate with and assist Pentair or any other Group member in any matters
involving claims or lawsuits by or against Pentair or any Group member as
requested by Pentair where ▇▇▇▇▇ has knowledge of the facts involved; provided,
however, that to be extent that such cooperation and assistance requires more
than nominal time, ▇▇▇▇▇ will be compensated for his time reasonably required
to render such assistance, at the hourly rate of $200. In addition, ▇▇▇▇▇
agrees that he will, at the reasonable request of Pentair, execute, if and as
necessary, any further documents or instruments necessary or appropriate to
evidence his separation from service as an officer or director of any Group.
▇▇▇▇▇ further agrees that he will not voluntarily aid, assist, or cooperate
with anyone who has claims against Pentair or any Group member or with their
attorneys or agents in any claims or lawsuits which such person may bring
against Pentair or any Group member. Nothing in this Agreement prevents ▇▇▇▇▇
from testifying at an administrative hearing, arbitration, deposition, or in
court, in response to a lawful and properly served subpoena.
19. Releases under Other Agreements. ▇▇▇▇▇ acknowledges that the
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following agreements:
(a) Key Executive Employment and Severance Agreement entered
into as of August 23, 2000 between ▇▇▇▇▇ and Pentair (the "KEESA"); and
(b) Retention Agreement entered into as of April 8, 2001 between
▇▇▇▇▇ and Pentair (the "Retention Agreement");
were terminated on October 17, 2001, the date of cessation of his active duties
with Pentair and that he has no claims under the KEESA and the Retention
Agreement against Pentair or any other person. Further ▇▇▇▇▇ agrees to execute
the Key Executive Employment and Severance Agreement and Retention Agreement
Release in the form attached as Schedule B.
20. Minnesota Law Applies. The terms of this Agreement will be
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governed by the substantive laws of the State of Minnesota, without regard or
any choice or conflict of laws provisions thereof, and shall be construed and
enforced thereunder. All disputes arising out of or relating to this Agreement
shall be subject to the jurisdiction of the state court sitting in the County
of Hennepin, State of Minnesota, and both parties hereby irrevocably submit to
the jurisdiction of such court.
21. Merger. This Agreement supersedes and replaces all prior oral and
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written agreements and understandings between ▇▇▇▇▇ and Pentair or any
affiliate. ▇▇▇▇▇ understands and agrees that all claims which he has or may have
against Pentair or any affiliate are fully released and discharged by this
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Agreement. Except to the extent otherwise required by law, the only claims which
▇▇▇▇▇ may hereafter assert against Pentair are limited to an alleged breach of
this Agreement.
22. Invalidity. If any one or more of the terms of this Agreement are
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deemed to be invalid or unenforceable by a court of competent jurisdiction, the
validity, enforceability, and legality of the remaining provisions of this
Agreement will not in any way be affected or impaired thereby.
23. ▇▇▇▇▇ Understands the Terms of this Agreement. ▇▇▇▇▇ warrants
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that (a) other than as stated herein, no promise or inducement has been offered
for this Agreement; (b) this Agreement is executed without reliance upon any
statement or representation of any representatives of Pentair concerning the
nature and extent of any claims or liability therefor, if any; (c) ▇▇▇▇▇ is
legally competent to execute this Agreement and accepts full responsibility
therefor; (d) Pentair, by this Agreement, has advised ▇▇▇▇▇ to consult with an
attorney of his choice regarding the purpose and effect of this Agreement; (e)
Pentair has allowed ▇▇▇▇▇ at least twenty-one (21) days within which to
consider this Agreement, after which time it will be automatically withdrawn
without further notice; (f) ▇▇▇▇▇ understands that he may nullify and rescind
this Agreement as far as it extends to his release of claims arising under
Minn. Stat.[sec] 363.01 et seq., the Minnesota Human Rights Act, and under the
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Age Discrimination in Employment Act of 1967, 29 U.S.C.[sec] 626, as amended by
Public Law 101.433 (1990) (the "Older Workers Benefit Protection Act") at any
time within fifteen (15) days from the date of his signature below and, in the
event of such election, ▇▇▇▇▇ shall only be entitled to receive $1,000 which the
parties acknowledge is consideration for ▇▇▇▇▇'▇ release of all claims other
than those arising under Minn. Stat.[sec] 363.01 et seq., the Minnesota Human
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Rights Act, and under the Age Discrimination in Employment Act of 1967, 29
U.S.C.[sec] 626, as amended by Public Law 101.433 (1990) (the "Older Workers
Benefit Protection Act"); (g) in the event ▇▇▇▇▇ elects to nullify and rescind
portions of his release under this Agreement pursuant to (f) of this paragraph,
he must indicate his desire to do so in writing and deliver that writing to ▇▇▇
▇. ▇▇▇▇▇▇▇, Vice President, Human Resources, Pentair, Inc., Waters Edge Plaza,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, by hand or by certified mail;
and (g) ▇▇▇▇▇ further understands that if he exercises his rescission rights
hereunder, Pentair will not be bound by the terms of this Agreement (except the
obligation to pay ▇▇▇▇▇ $1,000), and ▇▇▇▇▇ will have to disgorge in full any
monies and benefits received pursuant to this Agreement other than the $1,000
sum.
Dated: December 4, 2001
______________________________________
▇▇▇▇▇▇ ▇▇▇▇▇
Subscribed and sworn to before me
this 4 th day of December, 2001.
_____________________________________
Notary Public
Dated: December 3, 2001 PENTAIR, INC.
By________________________________________
Its_______________________________________
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Subscribed and sworn to before me
this 3 rd day of December, 2001.
___________________________________
Notary Public
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SCHEDULE A
Positions Held by ▇▇▇▇▇▇ ▇▇▇▇▇
at Pentair and Subsidiaries
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Company Title
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Pentair, Inc. President and COO,
Enclosures Group, Employee
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▇▇▇▇▇▇▇ Enclosures Inc. Chairman, Director
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▇▇▇▇▇▇▇ Engineering, S. A. de Chief Executive Officer,
C. V. de SrL Director
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Pentair Electronic Packaging Chairman, Director
Company
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▇▇▇▇▇▇▇, Inc. Chairman, Director
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Web Tool & Manufacturing, Chairman, Director
Inc.
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WTM, Inc. Chairman, Director
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Electronic Enclosures, Inc. Chairman, Director
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▇▇▇▇▇▇▇ GmbH Geschaftsfuhrer
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Pentair Enclosures Ltd. Director
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Optima Enclosures Limited Director
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Eraba Holdings Limited Director
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Optima Holdings Limited Director
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Eraba Limited Director
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Eraba Engineering Limited Director
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▇▇▇▇▇▇▇ Enclosures (MEX) Director
LLC
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇, inc. Chairman, Director
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SCHEDULE B
KEY EXECUTIVE EMPLOYMENT AND SEVERANCE AGREEMENT
AND RETENTION AGREEMENT RELEASE
WHEREAS, the undersigned ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ("▇▇▇▇▇") and Pentair, Inc.,
a Minnesota corporation, ("Pentair") entered into a Separation Agreement and
Release executed by ▇▇▇▇▇ on December 4, 2001 and by Pentair on December 3,
2001 (the "Separation Agreement").
WHEREAS, ▇▇▇▇▇ was a party to a Key Executive Employment and Severance
Agreement, dated August 23, 2000, with Pentair (the "KEESA") and a Retention
Agreement, dated April 8, 2001, with Pentair (the "Retention Agreement").
WHEREAS, Section 18 of the Separation Agreement provides that ▇▇▇▇▇'▇
▇▇▇▇▇ and the Retention Agreement terminated on the date of termination of his
active duties with Pentair, October 17, 2001.
NOW, THEREFORE, in consideration of the benefits and payments provided
under the Separation Agreement in connection with the cessation of ▇▇▇▇▇'▇
employment with Pentair and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, ▇▇▇▇▇ hereby agrees
as follows:
▇▇▇▇▇ agrees that each of the KEESA and the Retention Agreement was
terminated and ceased to be effective as of October 17, 2001 and are and shall
be of no further force and effect. Without limiting the foregoing, ▇▇▇▇▇ agrees
that, in the event of a Change in Control of the Company (as such term is
defined in the KEESA) after October 17, 2001, the cessation of ▇▇▇▇▇'▇
employment with the Company shall not be deemed to be a Covered Termination (as
such term is defined in the KEESA) for purposes of the KEESA and Section 2(b) of
the KEESA is hereby amended to reflect such agreement.
▇▇▇▇▇, on behalf of himself, his spouse, heirs, executors,
administrators, agents, successors, assigns and representatives of any kind
(hereinafter collectively referred to as the "Releasors") hereby absolutely,
unconditionally and irrevocably releases and discharges, its subsidiaries,
affiliates, their employees, successors, assigns, executors, trustees,
directors, advisors, agents and representatives, and all their respective
predecessors and successors (hereinafter collectively referred to as the
"Releasees"), from (a) any and all obligations whatsoever under the KEESA and
the Retention Agreement, including, without limitation, with respect to salary,
bonus or incentive compensation, fringe benefits, vacation and holiday
payments, termination or severance payments, insurance, outplacement services,
vesting of benefits and employment Pentair, and (b) any and all actions, causes
of action, demands, suits, charges, damages, attorneys' fees, costs, expenses,
damages, judgments, orders and liabilities and claims of any kind whatsoever
arising out of the KEESA and the Retention Agreement, whether in law or equity,
whether known or unknown, whether fixed or contingent, which any of the
Releasors ever had, now has or hereafter can, shall or may have against any of
the Releasees.
▇▇▇▇▇ agrees that the provisions of this Release are contractual and
not a mere recital and that ▇▇▇▇▇ enters into this Release as a result of
consideration given under the Separation Agreement. ▇▇▇▇▇ acknowledges that
before signing this Release he has received and reviewed in detail this
Release, that he fully understands the terms, content and effect of this Release
and that he has had the opportunity to obtain advice from an attorney of his
own choosing and has had an opportunity to ask questions of, and receive
answers from Pentair, with respect to the matters covered by this Release.
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This Release will be subject to and interpreted pursuant to the
internal laws of the State of Minnesota.
This Release shall extend to and be binding upon ▇▇▇▇▇ and his
successors and assigns, and shall inure to the benefit of Pentair and its
successors and assigns.
IN WITNESS WHEREOF, ▇▇▇▇▇ has executed this Release as of the 4 th day
of December, 2001.
Pentair, Inc.
_____________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
By: ________________________________
Its:_______________________________
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