EMPLOYMENT AGREEMENT
BETWEEN
DENTSPLY INTERNATIONAL INC.
AND
XXXXX X. XXXXX
THIS AGREEMENT is entered into as of November 1, 2002, by and
between
DENTSPLY International Inc., a Delaware corporation (the
"Company") and Xxxxx X. Xxxxx, ("Employee").
WHEREAS, it is in the best interest of the Company and Employee
that the terms and conditions of Employee's services be formally
set forth:
NOW, THEREFORE, in consideration of the mutual covenants and
agreements of the parties hereto, it is hereby agreed as follows:
1. Services
1.1 The Company shall employ Employee and Employee accepts such
employment and agrees to serve as a Senior Vice
President of the Company, responsible for the business
activities and operations assigned by the Chief
Executive Officer and/or the Board of Directors as set
forth in Exhibit A attached hereto, effective as of the
date stated below, and, if elected thereto, as an
officer or director of any Affiliate, for the term and
on the conditions herein set forth. Employee shall be
responsible for the activities and duties presently
associated with this position. Employee shall perform
such other services as shall from time to time be
assigned to him by the Board of Directors, the Chief
Executive Officer, or the President of the Company
depending on the needs and demands of the business and
the availability of other personnel, provided that such
services shall generally be similar in level of
position and responsibility as those set forth in this
Agreement. Employee's services shall be performed at a
location suitable for the performance of the Employee's
assigned duties.
1.2 Employee shall at all times devote his full business time
and efforts to the performance of his duties and to
promote the best interests of the Company and its
Affiliates.
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0. Period of Employment Employment as Senior Vice President
shall begin and continue from November 1, 2002, and
terminate on the happening of any of the following events:
2.1 Death The date of death of Employee;
2.2 Termination by Employee Without Good Reason The date
specified in a written notice of termination given to
the Company by Employee not less than 180 days in
advance of such specified date, at which date the
Employee's obligation to perform services pursuant to
this Agreement shall cease.
2.3 Termination by Employee with Good Reason Thirty (30) days
following the date of a written notice of termination
given to the Company by Employee within thirty (30)
days after any one or more of the following events have
occurred:
(a) failure by the Company to maintain the level of
responsibility and status of the Employee
generally similar to those of Employee's position
as of the date of the Agreement, or
(b) a reduction by the Company in Employee's base salary as in
effect as of the date hereof plus all increases
thereof subsequent thereto; other than any
reduction implemented as part of a formal
austerity program approved by the Board of
Directors of the Company and applicable to all
continuing employees of the Company, provided such
reduction does not reduce Employee's salary by a
percentage greater than the average reduction in
the compensation of all employees who continue as
employees of the Company during such austerity
program; or
(c) the failure of the Company to maintain and to continue
Employee's participation in the Company's benefit
plans as in effect from time to time on a basis
substantially equivalent to the participation and
benefits of Company employees similarly situated
to the Employee; or
(d) any substantial and uncorrected breach of the Agreement by
the Company.
2.4 Termination by the Company Upon written notice of
termination given to Employee by the Company, the
Employee's obligation to perform services pursuant to
this Agreement shall cease as of the date of such
notice.
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0. Payments by the Company
3.1 During the Period of Employment, the Company shall pay to
the Employee for all services to be performed by
Employee hereunder a salary of not less than $260,000
per annum, or such larger amount as may from time to
time be fixed by the Board of Directors of the Company
or, if applicable, by the Human Resources Committee of
the Board (or its successor), payable in accordance
with the Company's normal pay schedule.
3.2 During the Period of Employment, Employee shall be entitled
to participate in all plans and other benefits made
available by the Company generally to its domestic
executive employees, including (without limitation)
benefits under any pension, profit sharing, employee
stock ownership, stock option, bonus, performance stock
appreciation right, management incentive, vacation,
disability, annuity, or insurance plans or programs.
Any payments to be made to Employee under other
provisions of this Section 3 shall not be diminished by
any payments made or to be made to Employee or his
designees pursuant to any such plan, nor shall any
payments to be made to Employee or his designees
pursuant to any such plan be diminished by any payment
made or to be made to Employee under other provisions
of this Section 3.
3.3 Upon termination of the Period of Employment for whatever
reason, Employee shall be entitled to receive the
compensation accrued and unpaid as of the date of his
termination. If Employee at the time of termination is
eligible to participate in any Company incentive or
bonus plan then in effect, Employee shall be entitled
to receive a pro-rata share of such incentive or bonus
award based upon the number of days he is employed
during the plan year up to the date of his
termination. Such pro-rata amount shall be calculated
in the usual way and paid at the usual time.
3.4 If the Period of Employment terminates upon the death of
Employee, the Company shall continue payment of his
then current salary for a period of 12 months from the
date of death, together with his pro-rata share of any
incentive or bonus payments due for the period prior to
his death, to Employee's designated beneficiary or, if
no beneficiary has been effectively designated, then to
Employee's estate.
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3.5 If the Period of Employment is terminated by the Employee
under Section 2.3, or by the Company under Section 2.4,
the Company shall continue to pay compensation and
provide benefits to the employee as provided in this
Section 3.5 for a period (the "Termination Period")
beginning on the date of the termination notice and
ending on the earlier of: (i) the second annual
anniversary of the date of such termination notice; or
(ii) the date on which the Employee would attain age
65, as follows:
(a) Compensation shall be paid to the Employee at the rate of
salary being paid to Employee under Section 3.1
immediately before the termination;
(b) Bonus and incentive compensation shall be paid to the
Employee in accordance with plans approved by the
Board of Directors and similar to those in which
the Employee participated at time of termination,
using the same formula and calculations as if
termination had not occurred. The Employee shall
not be entitled to receive any further grants of
stock options under any stock option or similar
such plan subsequent to the date of termination,
but outstanding stock options shall continue to
vest during the Termination Period in accordance
with the applicable stock option plan;
(c) Employee shall receive the benefits that would have been
accrued by the Employee during the Termination
Period from participation by the Employee under
any pension, profit sharing, employee stock
ownership plan ("ESOP") or similar retirement plan
or plans of the Company or any Affiliate in which
the Employee participated immediately before the
termination, in accordance with the terms of any
such plan (or, if not available, in lieu thereof
be compensated for such benefits), based on
service the Employee would have had during the
Termination Period and compensation (and, if
applicable, bonus and incentive compensation) as
determined under Section (a) (and, if applicable,
Subsection (b) above);
(d) Employee shall receive continued coverage during the
Termination Period under all employee disability,
annuity, insurance, or other employee welfare
benefit plans, programs or arrangements of the
Company or any Affiliate in which Employee
participated immediately before the notice of
termination, plus all improvements subsequent
thereto (or, if not available, in lieu thereof be
compensated for such coverage); and
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(e) In the event of the death of Employee during the Termination
Period, the Company shall continue to make
payments under Subsection 3.5(a) for the period
that is the lesser of the remainder of the
Termination Period or twelve (12) months, and
shall pay any bonuses due under Subsection 3.5(b)
on a pro-rata basis until the date of Employee's
death, to Employee's designated beneficiary or, if
no beneficiary has been effectively designated,
then to Employee's estate.
Except as provided in Section 3.6, payment of
compensation under Subsection 3.5(a) above shall be
made at the same time as payments of compensation under
Section 3.1, and payments of other benefits under
Subsections 3.5(b) and (c) shall be paid at the same
time and to the same person as compensation or benefits
would have been paid under the plan, program, or
arrangement to which they relate (after taking into
account any election made by the Employee with respect
to payments under such plan, program, or arrangement),
and shall be pro-rated for any partial year through the
date of expiration of the Termination Period.
3.6 If at any time after a Change of Control the Period of
Employment is terminated by the Employee under Section
2.3, or the Company terminates or gives written notice
of termination of the Period of Employment to the
Employee (regardless of whether in accordance with
Section 2.4), then in lieu of the periodic payment of
the amounts specified in Subsections 3.5(a), (b), and
(c) (except as may be otherwise prohibited by law or by
said plans), the Company, at the written election of
Employee, shall pay to Employee within five (5)
business days of such termination or notice of
termination the present value of the amounts specified
in Subsections 3.5(a), (b), and (c), discounted at the
greatest rate of interest then payable by Mellon Bank
(or its successor) on any federally insured savings
account into which Employee could deposit such amount
and make immediate withdrawals therefrom without
penalty, and shall provide for the remainder of the
Termination Period, if any, the benefit coverage
required by Subsection 3.5(d). Employee shall not be
required to mitigate damages payable under this Section
3.6.
3.7 In no event will the Company be obligated to continue
Employee's compensation and other benefits under
Section 3.5 of this Agreement beyond Employee's
sixty-fifth (65th) birthday or if Employee's employment
is terminated because of gross negligence or
significant willful misconduct (e.g. conviction of
misappropriation of corporate assets or serious
criminal offense).
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0. Non-Competition Agreement During the Period of Employment
and for a period of five (5) years after the termination
thereof, Employee shall not, without the written consent of
the Company, directly or indirectly be employed or retained
by, or render any services for, or be financially interested
in, any firm or corporation engaged in any business which is
competitive with any business in which the Company or any of
its Affiliates may have been engaged during the Period of
Employment. The foregoing restriction shall not apply to
the purchase by Employee of up to 5% of the outstanding
shares of capital stock of any corporation whose securities
are listed on any national securities exchange.
5. Loyalty Commitments During and after the Period of
Employment: (a) Employee shall not disclose any
confidential business information about the affairs of the
Company or any of its Affiliates; and (b) Employee shall
not, without the prior written consent of the Company,
induce or attempt to induce any employee or agency
representative of the Company or any Affiliate to leave the
employment or representation of the Company or such
Affiliate.
6. Separability of Provisions The terms of this Agreement
shall be considered to be separable from each other, and in
the event any shall be found to be invalid, it shall not
affect the validity of the remaining terms.
7. Binding Effect This Agreement shall be binding upon and
inure to the benefit of (a) the Company and its successors
and assigns, and (b) Employee, his personal representatives,
heirs, and legatees.
8. Entire Agreement This Agreement constitutes the entire
agreement between the parties and supersedes and revokes all
prior oral or written understandings between the parties
relating to Employee's employment, except with respect to
matters addressed in the offer letter dated
October , 2002 between the parties to the extent such
matters are not covered in this Agreement. The Agreement
may not be changed orally but only by a written document
signed by the party against whom enforcement of any waiver,
change, modification, extension, or discharge is sought.
9. Definitions The following terms herein shall (unless
otherwise expressly provided) have the following respective
meanings:
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9.1 "Affiliate" when used with reference to the Company means
any corporations, joint ventures, or other business
enterprises directly or indirectly controlling,
controlled by, or under common control with the
Company. For purposes of this definition, "control"
means ownership or power to vote 50% or more of the
voting stock, venture interests, or other comparable
participation in such business enterprises.
9.2 "Period of Employment" means the period commencing on the
date hereof and terminating pursuant to Section 2.
9.3 "Beneficiary" means the person or persons designated in
writing by Employee to Company.
9.4 "Change of Control" means any event by which (i) an
Acquiring Person has become such, or (ii) Continuing
Directors cease to comprise a majority of the members
of the Board of Directors of the Company or the
applicable Parent of the Company (a "Board"). For
purposes of this definition:
(a) An "Acquiring Person" means any person or group (as defined
in Section 13(d)(3) of the Securities Exchange Act
of 1934, as amended, and the rules and regulations
promulgated thereunder as in effect on the date of
this Agreement (the "Exchange Act") who or which,
together with all affiliates and associates (as
defined in Rule 12B-2 under the Exchange Act)
becomes, by way of any transaction, the beneficial
owner of shares of the Company, or such Parent,
having 20% or more of (i) the then outstanding
shares of Common Stock of the Company, or such
Parent, or (ii) the voting power of the then
outstanding voting securities of the Company, or
such Parent, entitled to vote generally in the
election of directors of the Company or such
Parent; and
(b) "Continuing Director" means any member of a Board, while
such person is a member of such Board who is not
an Acquiring Person, or an affiliate or associate
of an Acquiring Person or a representative of an
Acquiring Person or of any such affiliate or
associate and who (i) was a member of such Board
prior to the date of this Agreement, or (ii)
subsequently becomes a member of such Board and
whose nomination for election or election to such
Board is recommended or approved by resolution of
a majority of the Continuing Directors or who is
included as a nominee in a proxy statement of the
Company or the applicable Parent distributed when
a majority of such Board consists of Continuing
Directors.
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9.5 "Parent" means any Affiliate directly or indirectly
controlling (within the meaning of Section 9.1) the
Company.
10. Notices Where there is provision herein for the delivery of
written notice to either of the parties, such notice shall
be deemed to have been delivered for the purposes of this
Agreement when delivered in person or placed in a sealed,
postpaid envelope addressed to such party and mailed by
registered mail, return receipt requested to the address set
forth below for the Company and the most recent address as
may be on the Company records for the Employee:
For Company: DENTSPLY International
Inc.
000 Xxxx Xxxxxxx Xxxxxx
Xxxx, XX 00000
Attention: Secretary
11. Arbitration Any controversy arising from or related to this
Agreement shall be determined by arbitration in the City of
Philadelphia, Pennsylvania, in accordance with the rules of
the American Arbitration Association, and judgment upon any
such determination or award may be entered in any court
having jurisdiction. In the event of any arbitration
between Employee and Company related to the Agreement, if
employee shall be the successful party, Company will
indemnify and reimburse Employee against any reasonable
legal fees and expenses incurred in such arbitration.
12. Applicable Law The Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of
Pennsylvania.
IN WITNESS WHEREOF, the parties have executed the Agreement on
the day and year first above written.
Attest: DENTSPLY INTERNATIONAL INC.
------------ -------------------
By:____________________________________
Secretary President and Chief Operating
Officer
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Xxxxx X. Xxxxx
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EXHIBIT A
BUSINESS RESPONSIBILITIES
o Australia
o Brazil
o Canada
o Gendex worldwide
o Latin America
o Xxxxxx
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