March 3, 2009 Stephen G. Sheehan Waltham, MA 02451 Dear Steve:
Xxxxxxx
00.0
Xxxxx 0,
0000
Xxxxxxx
X. Xxxxxxx
00 Xxxxx
Xxxxxx
Xxxxxxx,
XX 00000
Dear
Xxxxx:
This letter confirms our arrangement
regarding the termination of your employment with Thermo Xxxxxx Scientific Inc.
and any of its subsidiaries and affiliates (collectively, the “Company”). This
letter agreement is provided to you pursuant to the Thermo Xxxxxx Scientific
Inc. Executive Severance Policy effective as of January 1, 2009. The benefits
described below are contingent on your agreement to and compliance with the
provisions of this Agreement, including your signing of this Agreement, and your
written re-affirmation (by execution of the document attached hereto as Exhibit
A) of the Release of Claims at the time of your termination of employment from
the Company. Please note further that the benefits specified in paragraphs 2, 3,
6 and 8 below would increase pursuant to the terms of the Executive Change in
Control Retention Agreement between you and the Company in the event that after
the date hereof and prior to the Employment Termination Date, there is a “Change
in Control” of the Company as defined in the Executive Severance
Policy.
The following is our agreement related
to the termination of your employment with the Company:
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1.
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Termination of
Employment: Your employment with the Company will terminate on a
date to be determined by the Chief Executive Officer of the Company
(“Employment Termination Date”). You shall be provided at least ninety
(90) days prior written notice of the Employment Termination Date. The
Employment Termination Date shall be no earlier than November 9, 2009 and
no later than January 2, 2010, unless an earlier or later Employment
Termination Date is mutually agreed by you and the Company. During the
period from the date of this Agreement until March 31, 2009, you shall
continue to be paid your base salary at the rate in effect as of the date
hereof, and during the period from April 1, 2009 until the Employment
Termination Date, you will be paid your base salary at the rate of
$368,500 per annum. During the period from the date hereof until the
Employment Termination Date, you agree to perform such reasonable duties
as are assigned to you by the Chief Executive Officer of the Company and
to perform your obligations under this Agreement. You acknowledge that you
will forfeit any and all payments that you would be entitled to under this
Agreement in the event that you engage in any conduct that would entitle
the Company to terminate you for “Cause” as that term is defined under the
Executive Severance Policy.
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2.
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2008 and 2009
Bonuses: You will be entitled to receive a bonus in the amount of
$244,621 for your performance in 2008, which bonus shall be payable at the
same time in 2009 as bonuses to other executives of the Company are paid.
With respect to your performance in 2009, you shall receive a bonus at the
rate of your target bonus for 2009 ($202,675), which bonus shall be
pro-rated for the number of days worked in 2009 prior to the Employment
Termination Date. The 2009 bonus shall be payable at the same time in 2010
as bonuses to other executives of the Company are
paid.
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Xx.
Xxxxxxx X. Xxxxxxx
March 3,
2009
Page
2
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3.
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Severance
Payment: You will be entitled to receive severance of $856,762.50
(equivalent to 1.5 times (i) your annual base salary in effect at the
Employment Termination Date ($368,500) and (ii) your target bonus in
effect at the Employment Termination Date ($202,675)). In order to comply
with Section 409A of the Internal Revenue Code, you will receive the
severance payment on or shortly after the six month anniversary of the
Employment Termination Date.
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4.
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Accrued
Vacation: Payment of your accrued but unused vacation account will
be made in a lump sum on your Employment Termination Date. You will not
continue to earn vacation or other paid time off after the Employment
Termination Date.
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5.
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Full Payment:
You agree that all payments provided to you under this Agreement are in
complete satisfaction of any and all amounts due to you from the Company
through the Employment Termination Date. You agree to reimburse the
Company for all personal expenses due and owing to the Company as of the
Employment Termination Date.
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6.
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Employee Benefit
Programs: Your participation in all employee benefit programs of
the Company will cease in accordance with the terms of those programs. For
example, your medical and dental coverage and your eligibility for long
term disability (LTD) will cease on the Employment Termination Date. All
life insurance benefits will cease eighteen (18) months after the
Employment Termination Date. Your access to the Employee Assistance Plan
(EAP) will continue for sixty (60) days from the Employment Termination
Date. Pursuant to the Thermo Xxxxxx Scientific Inc. Executive Severance
Policy, you and your family will continue to receive under COBRA medical
and dental benefits that are substantially equivalent to the benefits that
you and your family received immediately prior to the Employment
Termination Date. Pursuant to COBRA, you will be billed the premium costs
for these benefits by the Company’s COBRA administrator on a monthly basis
and the Company will reimburse you the same portion of premiums that it
pays for active employees with the same coverage, for the 18 months after
the Employment Termination Date. Your entitlement to any type of the
aforementioned medical, dental or life insurance benefits will terminate
if within 18 months of the Employment Termination Date you become
reemployed with another employer and you become eligible to receive from
your new employer medical, dental or life insurance benefits,
respectively, on terms at least as favorable as those you currently
receive. You will receive information regarding your medical, dental and
life insurance benefits directly from the Company’s COBRA
administrator.
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7.
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401(k) Plan:
Under the rules of the Company’s 401(k) plan, your active participation in
the plan shall end on the Employment Termination Date. Information will be
provided to you regarding various election options available to you
regarding your account.
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8.
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Stock Options and
Restricted Stock Awards: Schedule 1 attached hereto lists all of
your unexercised options to purchase shares of Common Stock of the Company
as of the date hereof. After the Employment Termination Date, any
unexercised options will continue to be exercisable by you until the dates
indicated on the attached Schedule 1. Any options not exercised on or
before the dates indicated on Schedule 1 will expire and be canceled, and
you will have no further rights with respect to such options. In
accordance with the terms of the Thermo Xxxxxx Scientific Inc. Equity
Incentive Plans, any restricted stock awards that you received prior to
the date hereof and that are not vested as of the Employment Termination
Date will be forfeited on the Employment Termination Date. Please consult
the Thermo Corporate Stock Options Department if you have any
questions.
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Xx.
Xxxxxxx X. Xxxxxxx
March 3,
2009
Page
3
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9.
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Taxes: All
payments by the Company under this Agreement will be reduced by all taxes
and other amounts that the Company is required to withhold under
applicable law and all other deductions authorized by
you.
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10.
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Company
Property: You will return to the Company any and all documents,
materials and information related to the Company, or its subsidiaries,
affiliates or businesses, and all other property of the Company,
including, without limitation, equipment and files in your possession or
control, on or before the Employment Termination Date. Further, you agree
that on and after the date hereof you will not for any purpose attempt to
access or use any Company computer or computer network or system,
including without limitation its electronic mail
system.
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11.
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Outplacement
Services: Pursuant to the Thermo Xxxxxx Scientific Inc. Executive
Severance Policy, you will be entitled to utilize until twelve months
after the Employment Termination Date, at no cost to you, the services of
an outplacement firm selected by you, up to a maximum charge of $20,000
for such services.
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12.
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Deferred Compensation
Plan: Under the rules of the Company’s Deferred Compensation Plan,
your active participation in the plan shall end on the Employment
Termination Date. Your account balances in the plan shall be distributed
in accordance with the elections that you have previously made under the
plan.
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13.
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Release: In
exchange for the payments under this agreement, you hereby irrevocably and
unconditionally waive, release, acquit and forever discharge the Company
and each of its respective current, former or future officers, directors,
employees, agents, representatives, shareholders and legal predecessors
and successors, from any and all claims, liabilities, damages, actions,
causes of action and suits, whether known or unknown, which you now have,
own or hold, or claim to have, own or hold, or which at any time
heretofore, had owned or held, or claimed to have owned or held, or which
you at any time hereafter may have, own or hold, or claim to have owned or
held against them, based upon, arising out of or in connection with any
circumstance, matter or state of fact up to the date of this agreement,
including without limitation those based upon or arising out of the
termination of your employment and other relationships with the
Company, your compensation while employed by the Company, your
stock options or any terms thereof or relating thereto and any of the
Company’s policies, procedures or requirements. This release includes, but
is not limited to, any claims for breach of contract, wrongful
termination, or age, sex, race, disability or other discrimination under
the Civil Rights Act of 1964, as amended, the Age Discrimination in
Employment Act of 1967 or other federal, state or local laws prohibiting
such discrimination or under any other federal, state or local employment
laws.
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YOU
UNDERSTAND AND ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED TO SEEK THE ADVICE
OF AN ATTORNEY, IF YOU SO CHOOSE, PRIOR TO SIGNING THIS RELEASE AND TO THE
EXTENT DESCRIBED HEREIN YOU ARE GIVING UP ANY LEGAL CLAIMS YOU HAVE
AGAINST THE COMPANY AND EACH OF ITS RESPECTIVE CURRENT, FORMER OR FUTURE
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, SHAREHOLDERS,
LEGAL PREDECESSORS AND SUCCESSORS, BY SIGNING THIS RELEASE. YOU FURTHER
UNDERSTAND THAT YOU MAY HAVE 21 DAYS TO CONSIDER THIS AGREEMENT, THAT YOU
MAY REVOKE IT AT ANY TIME DURING THE SEVEN DAYS AFTER YOU SIGN IT, AND
THAT IT WILL NOT BECOME EFFECTIVE UNTIL THE 7-DAY REVOCATION PERIOD HAS
PASSED WITHOUT REVOCATION. YOU FULLY UNDERSTAND YOUR RIGHT TO TAKE 21 DAYS
TO
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Xx.
Xxxxxxx X. Xxxxxxx
March 3,
2009
Page 4
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CONSIDER
SIGNING THIS RELEASE AND, AFTER HAVING SUFFICIENT TIME TO CONSIDER YOUR
OPTIONS, YOU HEREBY WAIVE YOUR RIGHT TO TAKE THE FULL 21-DAY PERIOD. YOU
ACKNOWLEDGE THAT YOU ARE SIGNING THIS RELEASE KNOWINGLY, WILLINGLY AND
VOLUNTARILY IN EXCHANGE FOR THE CONSIDERATION DESCRIBED IN THIS
AGREEMENT.
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14.
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Non-Disparagement:
You agree that you will continue to support and promote the interests of
the Company and that you will not criticize, disparage, defame or in any
way comment negatively to anyone about the Company or any of the people or
organizations connected with it, or do or say anything that could disrupt
the good morale of the employees of the Company or otherwise harm the
interests or reputation of the Company and any of the organizations or
people connected with it. The Company agrees that it will not criticize,
disparage, defame or in any way comment negatively to anyone about
you.
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15.
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Confidentiality:
You agree that the terms of this letter agreement shall be maintained as
confidential by you and your agents and representatives, and shall not be
disclosed to any other third party except to the extent required by
law.
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16.
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Cooperation:
You agree to reasonably cooperate with the Company with respect to all
matters arising during or related to your employment, including but not
limited to cooperation in connection with any governmental investigation,
litigation or regulatory or other proceeding which may have arisen or
which may arise following the signing of this
Agreement.
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17.
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Waiver of Jury
Trial: Each of the parties hereby expressly, knowingly and
voluntarily waives all benefit and advantage of any right to a trial by
jury, and agrees that neither you nor the Company will at any time insist
upon, or plead or in any manner whatsoever claim or take the benefit or
advantage of, a trial by jury in any action arising in connection with
this Agreement.
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18.
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Confidentiality/Noncompete
Agreements: You agree to comply with the terms of any agreement
that you have previously signed relating to the confidentiality of Company
proprietary information and inventions as well as any agreement relating
to your post-termination noncompete obligations. A copy of such
agreement(s) is attached hereto as Exhibit
B.
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19.
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Entire
Agreement: This letter, and your Executive Severance Agreement
contain the entire agreement between you and the Company and supersede all
prior and contemporaneous agreements, communications and understandings,
whether written or oral, relating to the subject matter of this letter,
except that the Company Information and Invention Agreement shall survive
in accordance with its terms. This Agreement will be governed by and
interpreted in accordance with the laws of the Commonwealth of
Massachusetts without regard to choice of law
provisions.
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20.
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Severability:
If one or more provisions of this Agreement are held to be unenforceable
under applicable law, such provision shall be excluded from this Agreement
and replaced with a provision which is enforceable and comes closest to
the intent of the parties underlying the unenforceable
provision.
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21.
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Relief: In the
event of breach of the provisions of this Agreement by any party, in
addition to any other rights that the other parties may have under law or
in equity, each party shall have the right to specific performance and
injunctive relief, it being acknowledged and agreed that money damages
will not provide an adequate remedy. In the event litigation is brought
with respect to this Agreement, the prevailing party shall be entitled to
recover from the losing party his or its reasonable attorney's fees and
expenses.
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Xx.
Xxxxxxx X. Xxxxxxx
March 3,
2009
Page
5
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22.
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Successors and
Assigns: This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns,
including corporations with which, or into which, the Company may be
merged or which may succeed to its respective assets or business;
provided, however, that your obligations are personal and may not be
assigned.
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23.
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Amendment: This
Agreement may be amended or modified only by a written instrument executed
by you and the Company.
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24.
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Voluntary
Agreement: In signing this Agreement, you give the Company
assurance that you have signed it voluntarily and with a full
understanding of its terms and that you have had sufficient opportunity to
consider this Agreement and to consult with anyone of your choosing before
signing it. If the terms of this Agreement are acceptable to you, please
sign and return it to the undersigned. At the time you sign and return
this Agreement, it will take effect as a legally binding agreement between
you and the Company on the basis set forth
above.
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25.
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Expiration of
Offer: The offer made by the Company pursuant to this letter shall
be null and void if it is not accepted in writing by you on or before the
expiration of the 21-day period described in paragraph
13.
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Date
Received by Addressee: March 3, 2009
THERMO XXXXXX
SCIENTIFIC INC.
By: /s/ Xxxx X.
Xxxxxxxxx
Senior
Vice President, General Counsel and
Secretary
Accepted
and Agreed to:
/s/ Xxxxxxx X.
Xxxxxxx
Xxxxxxx
X. Xxxxxxx
March 12,
2009
Date
Accepted
Schedule
1*
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Dated
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Exp.
Date
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Xxxxx
Xxxxx
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Shares
Outstanding
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New
Expiration dates
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02/27/2006
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02/27/2013
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$34.86
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40,000
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3
months after Employment Termination Date
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11/09/2006
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11/09/2013
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$43.37
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23,040
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3
months after Employment Termination Date
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11/09/2006
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11/09/2013
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$43.37
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11,520**
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3
months after Employment Termination Date
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Total:
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74,560
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*In
the event of a “Change in Control” of the Company (as defined in the
Company’s equity incentive plans) prior to the Employment Termination
Date, the amount of
shares exercisable in the table above would increase as a result of
accelerated vesting in accordance with the terms of the Company’s equity
incentive plans.
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**These
options are scheduled to vest on November 9, 2009. In the event that the
Employment Termination Date is earlier than November 9, 2009 (for example,
by mutual
agreement of you and the Company), these options would not vest and would
be forfeited on the Employment Termination
Date.
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Exhibit
A
I hereby reaffirm in its entirety the
provisions of the Separation Agreement with the Company dated March 3, 2009
signed by me including, without limitation, the release of claims contained in
Section 13 of the Separation Agreement.
By: /s/ Xxxxxxx X.
Xxxxxxx
Xxxxxxx X. Xxxxxxx
Date:
March 12,
2009
Exhibit
B
Form of
Officer Non-Competition Agreement
