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As Of Filer Filing For·On·As Docs:Size Issuer Agent 11/02/07 Ametek Inc 10-Q 9/30/07 14:1.1M Bowne - Bop/FA |
Document/Exhibit Description Pages Size 1: 10-Q Quarterly Report HTML 190K 2: EX-10.1 Amended & Restated Supplemental Sr Exec Death HTML 113K Benefit Plan 3: EX-10.2 Amended & Restated 2004 Exec Death Benefit Plan HTML 121K 4: EX-10.3 Amended & Restated Ameteck Directors' Death HTML 90K Benefit Plan 5: EX-10.4 Amended & Restated Ametek Retirement Plan for HTML 71K Directors 6: EX-10.5 Amended & Restated Ametek Supplemental Exec HTML 128K Retirement Plan 7: EX-10.6 Amended & Restated Ametek Deferred Compensation HTML 182K Plan 8: EX-10.7 Form of Amended & Restated Termination and Change HTML 77K of Control Agreement 9: EX-10.8 Amended & Restated Termination & Change of Control HTML 73K Agreement 10: EX-10.9 Form of Amended & Restated Restricted Stock HTML 29K Agreement Between Company & Certain Executives 11: EX-31.1 Certification of Ceo, SEC 302 HTML 14K 12: EX-31.2 Certification of CFO, SEC 302 HTML 14K 13: EX-32.1 Certification of Ceo, SEC 906 HTML 10K 14: EX-32.2 Certification of CFO, SEC 906 HTML 10K
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1. | Definitions. | |
For all purposes of this Agreement, the following terms shall have the meanings specified in this Section 1 unless the context clearly otherwise requires: |
(a) | Accounting Firm. “Accounting Firm” shall have the meaning given to that term under Section 10. | ||
(b) | Agreement. “Agreement” shall mean this Executive Change of Control Separation Agreement entered into by and between the Company and the Employee. | ||
(c) | Annual Bonus. “Annual Bonus” shall mean the greatest of the following: |
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(1) | the Employee’s target bonus for the fiscal year in which the Change of Control occurs; | ||
(2) | the Employee’s target bonus for the fiscal year in which the Employee’s Termination Date occurs; | ||
(3) | the average of the bonuses received by the Employee from the Company, its affiliates or subsidiaries for the two fiscal years of the Company ending immediately before the Change of Control; or | ||
(4) | the average of the bonuses received by the Employee from the Company, its affiliates or subsidiaries for the two fiscal years of the Company ending immediately before the Employee’s Termination Date. |
(d) | Base Salary. “Base Salary” shall mean the greater of: |
(1) | the rate of annual base salary in effect on the last day of the fiscal year immediately preceding the effective date of the Change of Control or, if the Employee first became employed by the Company in the year of the Change of Control, the rate of annual base salary in effect on his date of hire; or | ||
(2) | the rate of annual base salary in effect on the last day of the fiscal year immediately preceding the Employee’s Termination Date. |
(e) | Board. “Board” shall mean the Board of Directors of the Company. | ||
(f) | Cause. “Cause” shall mean (1) misappropriation of funds, (2) habitual insobriety or substance abuse, (3) conviction of a felony or a crime involving moral turpitude, or (4) gross negligence in the performance of duties that has had a |
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material adverse effect on the business, operations, assets, properties or financial condition of the Company. | |||
(g) | Change of Control. A “Change of Control” shall occur if: |
(1) | Any one person or more than one person acting as a group (as defined in section 1.409A-3(i)(5)(v)(B) of the Treasury Regulations) acquires ownership of stock of the Company that, together with the stock held by such person or group of persons, constitutes more than 50 percent of the total fair market value or total voting power of the stock of the Company. However, if such person or group of persons is considered to own more than 50 percent of the total fair market value or total voting power of the stock of the Company before this transfer of the Company’s stock, the acquisition of additional stock by the same person or persons acting as a group shall not be considered to cause a Change of Control of the Company; or | ||
(2) | Any one person or more than one person acting as a group (as defined in section 1.409A-3(i)(5)(v)(B) of the Treasury Regulations) acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or group of persons) ownership of stock of the Company possessing 30 percent or more of the total voting power of the stock of the Company. However, if such person or group of persons is considered to own 30 percent or more of the total voting power of the stock of the Company before this acquisition, the acquisition of additional control or stock of the Company by the same person or group of persons shall not cause a Change of Control of the Company; or | ||
(3) | A majority of members of the Company’s Board is replaced during any 12-month period by directors whose appointment or election is not endorsed by a majority of the members of the Company’s Board before the date of the appointment or election; or | ||
(4) | Any one person or more than one person acting as a group (as defined in section 1.409A-3(i)(5)(v)(B) of the Treasury Regulations) acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or group of persons) assets from the Company that have a total gross fair market value equal to substantially all but in no event less than 40 percent of the total fair market value of all assets of the Company immediately prior to such acquisition or acquisitions. For this purpose, gross fair market value means the value of the assets of the Company, or the value of the assets being disposed of, determined without regard to any liabilities associated with such assets. A transfer of assets by the Company will not result in a Change of Control under this Section 1(g)(4), if the assets are transferred to: |
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(a) | A shareholder of the Company (immediately before the asset transfer) in exchange for or with respect to its stock; | ||
(b) | An entity, 50 percent or more of the total value or voting power of which is owned, directly or indirectly, by the Company immediately after the transfer of assets; | ||
(c) | A person or more than one Person acting as a group (as defined in section 1.409A-3(i)(5)(v)(B) of the Treasury Regulations) that owns, directly or indirectly, 50 percent or more of the total value or voting power of all the outstanding stock of the Company; or | ||
(d) | An entity, at least 50 percent of the total value or voting power of which is owned directly or indirectly, by a person or group of persons described in Section 1(g)(4)(c), above. |
(h) | Code. “Code” shall mean the Internal Revenue Code of 1986, as amended. | ||
(i) | Company. “Company” shall mean AMETEK, Inc., a Delaware corporation. | ||
(j) | Compensation Committee. “Compensation Committee” shall mean the Compensation Committee of the Board of Directors of the Company. | ||
(k) | Confidential Information. “Confidential Information” shall have the meaning given to that term under Section 11. | ||
(l) | Employee. “Employee” shall mean the person designated in the first paragraph of this Agreement. | ||
(m) | Federal Rate. “Federal Rate” shall mean the applicable federal rate provided for in section 7872(f)(2) of the Code. | ||
(n) | Good Reason Termination. “Good Reason Termination” shall mean a Termination of Employment initiated by the Employee upon one or more of the following occurrences: |
(1) | Any failure of the Company to comply with and satisfy any of the terms of this Agreement without the Employee’s express written consent; | ||
(2) | Any involuntary reduction of the authority, duties or responsibilities held by the Employee immediately prior to the Change of Control; |
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(3) | Any involuntary reduction of the Employee’s total compensation from that in effect immediately prior to the Change of Control; or | ||
(4) | Any transfer of the Employee, without the Employee’s express written consent, to a location which is outside the Paoli, Pennsylvania area (or the general area in which his principal place of business immediately preceding the Change of Control may be located at such time if other than Paoli, Pennsylvania) by more than fifty miles other than on a temporary basis (less than 6 months). |
(o) | Notice of Termination. “Notice of Termination” means a written notice which (1) indicates the specific provision in this Agreement relied upon, (2) briefly summarizes the facts and circumstances deemed to provide a basis for the Employee’s Termination of Employment under the provision so indicated, and (3) specifies the Termination Date (which date shall not be more than 15 days after the giving of such notice). | ||
(p) | Overpayment. “Overpayment” shall have the meaning given to that term under Section 10. | ||
(q) | Payment. “Payment” shall have the meaning given to that term under Section 10. | ||
(r) | Reduced Amount. “Reduced Amount” shall have the meaning given to that term under Section 10. | ||
(s) | Termination Date. “Termination Date” shall mean the date specified in the Notice of Termination described in Section 2 or, if later, the date on which the Notice of Termination is deemed to be received (as provided in Section 16). | ||
(t) | Termination of Employment. “Termination of Employment” shall mean the termination of the Employee’s actual employment relationship with the Company and any of its subsidiaries, constituting a separation from service within the meaning of section 409A of the Code, upon the Employee’s Termination Date and in accordance with the Notice of Termination provisions under Section 2. | ||
(u) | Underpayment. “Underpayment” shall have the meaning given to that term under Section 10. |
2. | Notice of Termination. |
3. | Severance Benefits Upon Termination of Employment Within Two Years After a Change of Control. |
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(a) | Cash Payment. The Company shall pay to the Employee a lump sum cash amount equal to [one][two][three] times the sum of the Employee’s Base Salary and Annual Bonus, subject to customary employment taxes and deductions. The payment shall be made on the 60th day after the Employee’s Termination Date, provided that if the Employee is a “specified employee” of the Company (within the meaning of Section 409A of the Code), the cash payment shall be paid on the first day of the seventh month following the Termination Date. The Employee shall forfeit his right to the cash payment under this Section 3(a) if a release (substantially in the form attached to this Agreement) is not executed before or can still be revoked on the 60th day after the Employee’s Termination Date. | ||
(b) | Continued Health Coverage. The Company shall continue the Employee’s coverage under (or provide a tax equivalent monthly payment equal to the cost of) the Company’s health program, as in effect from time to time for other senior executives of the Company until the earliest of (1) the end of the 10th year following the year of the Change of Control, (2) the Employee’s eligibility for Medicare, (3) the Employee’s commencement of new employment where the Employee is eligible to participate in a health program without a pre-existing condition limitation, or (4) the Employee’s death. If the Company provides a tax equivalent monthly payment equal to the cost of the Company’s health program, (1) no payment shall affect the amount of monthly payments provided in any other calendar year, (2) payments shall not be made later than the last day of the calendar year following the calendar year in which the Employee incurs the expense to which the monthly payment relates, and (3) the right to the monthly payment shall not be subject to liquidation or exchange for any other benefit. |
4. | Other Payments. |
5. | Trust Fund. |
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6. | Enforcement. |
(a) | If the Company shall fail or refuse to make payment of any amounts due the Employee under Sections 3(a) and 4 hereof within the respective time periods provided therein, the Company shall pay to the Employee, in addition to the payment of any other sums provided in this Agreement, interest, compounded daily, on any amount remaining unpaid from the date payment is required under Section 3(a)or 4, as appropriate, until paid to the Employee, at the one-year LIBOR rate in effect at the close of business on the first business day immediately following the date on which such payment should have been made; provided that if the payments required under Section 4 are required to accrue earnings at a different rate pursuant to the terms of the documents governing those payments, the interest rate provided under those documents shall be used instead of the rate under this Section 6(a) with respect to those payments, and provided, further, that if no one-year LIBOR rate is in effect at the close of business on the first business day immediately following the date on which such payment should have been made, the Company shall substitute a comparable rate. | ||
(b) | It is the intent of the parties that the Employee not be required to incur any expenses associated with the enforcement of his rights under this Agreement by arbitration, litigation or other legal action because the cost and expense thereof would substantially detract from the benefits intended to be extended to the Employee hereunder. Accordingly, the Company shall pay the Employee on demand the amount necessary to reimburse the Employee in full for all reasonable expenses (including all attorneys’ fees and legal expenses) incurred by the Employee in enforcing any of the obligations of the Company under this Agreement, provided that the Company will have no obligation to pay any such expenses, if in the case of a legal action brought by the Employee, the Company is successful in establishing with the court that the Employee’s action was frivolous or otherwise without any reasonable legal or factual basis. |
7. | No Mitigation. |
8. | Non-exclusivity of Rights. |
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9. | No Set-Off. |
10. | Certain Reduction of Payments. |
(a) | Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment or distribution by the Company to or for the benefit of the Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would be nondeductible by reason of section 280G of the Code, the aggregate present value of amounts payable or distributable to or for the benefit of the Employee pursuant to this Agreement (such payments or distributions pursuant to this Agreement are hereinafter referred to as “Agreement Payments”) shall be reduced (but not below zero) to the Reduced Amount. The “Reduced Amount” shall be an amount expressed in present value, which maximizes the aggregate present value of Agreement Payments without causing any Payment to be (although not necessarily preventing any Payment from being) subject to the limitation on deductions under section 280G of the Code. For purposes of this Section 10, present value shall be determined in accordance with section 280G(d)(4) of the Code. | ||
(b) | All determinations to be made under this Section 10 shall be made by the Company’s independent public accountant immediately prior to the Change of Control (the “Accounting Firm”) (or, if such Accounting Firm declines to serve, the Accounting Firm shall be a nationally recognized firm of certified public accountants selected by the Company to provide such determinations). The Accounting Firm shall provide its determinations and any supporting calculations both to the Company and the Employee within 10 days of the Termination Date. Any such determination by the Accounting Firm shall be binding upon the Company and the Employee. The Company shall pay (or cause to be paid) or distribute (or cause to be distributed) to or for the benefit of the Employee such amounts as are then due to the Employee under this Agreement at the times set forth in Section 3. | ||
(c) | As a result of the uncertainty in the application of section 280G of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Agreement Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Agreement Payments which have not been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. Before the end of the first calendar year after the Employee’s Termination of Employment, the Accounting Firm shall review the determination made by it pursuant to the preceding paragraph. If the Accounting |
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Firm determines that an Overpayment has been made, the Employee shall promptly repay the Overpayment amount to the Company; provided, however, that no amount shall be payable by the Employee to the Company if and to the extent such payment would not reduce the amount which is subject to the limitation of deduction under section 280G of the Code. If the Accounting Firm determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of the Employee together with interest at the Federal Rate, provided, however, that any such Underpayment shall be paid no later than the end of the first calendar year after the Employee’s Termination of Employment. | |||
(d) | All of the fees and expenses of the Accounting Firm in performing the determinations referred to in subsections (b) and (c) above shall be borne solely by the Company. The Company agrees to indemnify and hold harmless the Accounting Firm of and from any and all claims, damages and expenses resulting from or relating to its determinations pursuant to subsections (b) and (c) above, except for claims, damages or expenses resulting from the gross negligence or willful misconduct of the Accounting Firm. |
11. | Confidential Information. |
12. | Equitable Relief. |
(a) | The Employee acknowledges that the restrictions contained in Section 11 hereof are reasonable and necessary to protect the legitimate interests of the Company and its affiliates, that the Company would not have entered into this Agreement in the absence of such restrictions, and that any violation of any provision of those Sections will result in irreparable injury to the Company. The Employee further represents and acknowledges that (1) he has been advised by the Company to consult his own legal counsel in respect of this Agreement and (2) that he has had |
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full opportunity, prior to execution of this Agreement, to review thoroughly this Agreement with his counsel. | |||
(b) | The Employee agrees that the Company shall be entitled to preliminary and permanent injunctive relief, without the necessity of proving actual damages, as well as an equitable accounting of all earnings, profits and other benefits arising from any violation of Section 11 hereof, which rights shall be cumulative and in addition to any other rights or remedies to which the Company may be entitled. | ||
(c) | The Employee irrevocably and unconditionally (1) agrees that any suit, action or other legal proceeding arising out of Section 11 hereof, including without limitation, any action commenced by the Company for preliminary and permanent injunctive relief or other equitable relief, may be brought in the United States District Court for the Eastern District of Pennsylvania, or if such court does not have jurisdiction or will not accept jurisdiction, in any court of general jurisdiction in Chester County, Pennsylvania, (2) consents to the non-exclusive jurisdiction of any such court in any such suit, action or proceeding, and (3) waives any objection which the Employee may have to the laying of venue of any such suit, action or proceeding in any such court. The Employee also irrevocably and unconditionally consents to the service of any process, pleadings, notices or other papers in a manner permitted by the notice provisions of Section 16 hereof. | ||
(d) | The provisions of this Section 12 shall survive the Employee’s Termination of Employment. |
13. | Taxes. |
14. | Term of Agreement. |
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15. | Successor Company. |
16. | Notice. |
17. | Governing Law. |
18. | Contents of Agreement, Amendment and Assignment. |
19. | No Right to Continued Employment. |
20. | Successors and Assigns. |
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21. | Severability. |
22. | No Waiver. |
23. | Arbitration. |
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ATTEST: | AMETEK, INC. | |||||||
By | ||||||||
Witness | Employee |
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1. | The benefits I am receiving under the Agreement constitute consideration over and above any benefits that I might be entitled to receive without executing this Release. |
2. | The Company advised me in writing to consult with an attorney prior to executing a copy of the Agreement and the Release. |
3. | I was given a period of at least [21] days within which to consider the Agreement and the Release. |
4. | The Company has advised me of my statutory right to revoke my acceptance of the terms of the Agreement and this Release at any time within seven (7) days of my signing of this Release. |
5. | I warrant and represent that my decision to accept the Agreement (including this Release) was (a) entirely voluntary on my part; (b) not made in reliance on any inducement, promise or representation, whether express or implied, other than the inducements, representations and promises expressly set forth in the Agreement or in the Release; and (c) did not result from any threats or other coercive activities to induce acceptance of the Agreement or Release. |
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As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 2/22/24 AMETEK, Inc. 10-K 12/31/23 119:13M 2/21/23 AMETEK, Inc. 10-K 12/31/22 112:14M 2/22/22 AMETEK, Inc. 10-K 12/31/21 113:14M 2/18/21 AMETEK, Inc. 10-K 12/31/20 116:14M |