EMPLOYMENT AGREEMENT
BETWEEN
DENTSPLY INTERNATIONAL INC.
AND
XXXXX X. XXXXXXX
THIS AGREEMENT is entered into as of September 10, 1998, by and between DENTSPLY
International Inc., a Delaware corporation (the "Company") and XXXXX X. XXXXXXX,
("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 employs Employee and Employee accepts such employment and
agrees to serve as Vice President, Secretary and General Counsel, of the Company
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 not inconsistent with his position 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. 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.
2. Period of Employment. Employment shall continue from September 10, 1998 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
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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 duties, status and
responsibilities of the Employee substantially consistent with 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 therein 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
(c) any substantial and uncorrected breach of the Agreement
by the Company.
2.5 Termination by the Company. The date of a 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.
3. 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
$150,000 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 Executive
Compensation Committee of the Company, 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
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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.
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
if approved by the Board of Directors, in accordance with plans in which
the Employee participated at time of termination, using the same formula
and calculations as if termination had not occurred.
(c) Employee shall receive the benefits that would have been
accrued by the Employee during the Termination Period 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 (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); and
(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
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termination, plus all improvements subsequent thereto (or, if not
available, in lieu thereof be compensated for such coverage).
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 Subsection 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).
3.6 If at any time after a Change of Control the Period of Employment is
terminated by the Employee with good reason under Section 2.3, or the Company
terminates or gives written notice of termination of the Period of Employment to
the Employee (whether or not 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 the 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).
4. 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 not to exceed 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
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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. 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:
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 the
total number of votes that may be cause for the election of directors
of the Company or such Parent; and
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(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.
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 or the most recent address as
may be on the Company records for the Employee:
Xxxxx X. Xxxxxxx 0000 Xxxxxxxx Xxx Xxxx
Xxxx, XX 00000
DENTSPLY International Inc. 000 Xxxx Xxxxxxx Xxxxxx
Xxxx, XX 00000
11. Arbitration. Any controversy arising from or related to the 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 Chairman and Chief Executive Officer
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XXXXX X. XXXXXXX
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