[Thermo Electron Letterhead]
June 15, 1999
Xxxxxxxx Xxxxx Xxxxxxx
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Dear Xxxxxxxx:
This letter confirms our agreement regarding your resignation as an
officer and director of Thermo Vision Corporation (the "Company") and any of its
subsidiaries or affiliates and your continuing employment as a non-officer
employee of the Company, or another business unit of Thermo Electron Corporation
("Thermo Electron") as reasonably designated by Thermo Electron in Waltham or
Franklin, Massachusetts.
1. Resignation: You hereby resign effective as of June 15, 1999 (the
"Resignation Date") all of your positions as an officer and director of the
Company and all of its subsidiaries and affiliates.
2. Continuation of Employment:
(a) Although you are resigning as an officer and director,
your employment with the Company in a non-executive position will continue
until Friday, November 26, 1999 (the "Employment Termination Date").
During the period from the Resignation Date through the Employment
Termination Date (the "Interim Period"), the Company shall pay to you, at
such times and at such intervals as the Company pays its employees in
general, your current base salary at a rate of $139,000 per annum. You
will not be entitled to earn a bonus for the Interim Period or any portion
thereof.
(b) During the Interim Period, you shall be entitled to participate
in the benefit programs that the Company establishes and makes available
from time to time to its non-executive employees to the extent that your
position, tenure, salary, age, health and other qualifications make you
eligible to participate.
(c) During the Interim Period, you may continue to use your current
leased vehicle and the Company shall continue to pay all associated lease
payments and automobile insurance during this period. You agree to return
the leased vehicle to the Company on the Employment Termination Date.
Xxxxxxxx Xxxxx Xxxxxxx
Xxxx 15, 1999
Page 2
(d) The Company retains the right to terminate your employment prior
to the Employment Termination Date for Cause, immediately upon notice to
you. "Cause" shall mean your (a) conviction of or entry of a plea of
guilty or nolo contendere to a felony or a misdemeanor involving material
fraud or dishonesty, (b) material fraud or dishonesty in the course of
your continuing employment by the Company, (c) gross misconduct that is
materially injurious to the Company or any of its subsidiaries or
affiliates, or (d) gross neglect of your material duties and
responsibilities as an employee of Thermo Electron or the Company. In the
event you are terminated for Cause, the Company shall pay to you the
compensation and benefits that would have otherwise been payable to you
through the last day of your actual employment as well as the amounts
specified in paragraphs 3, 4, 5, and 6 of this Agreement.
3. Severance Pay: On November 26, 1999, the Company will pay you a lump
sum severance payment of $139,000, representing one year's base salary.
4. Accrued Vacation: You will be paid for any of your accrued but unused
vacation as of the Employment Termination Date. You will cease to earn vacation
or other paid time off as of the Resignation Date.
5. Outplacement Services: The Company will reimburse you for expenses
actually incurred by you in connection with outplacement services up to an
aggregate amount of $15,000.
6. 1999 Bonus: On November 26, 1999, you will be paid a bonus of $22,500,
representing one-half of the 1999 calendar year reference bonus.
7. Full Payment: You agree that all payments to be provided to you under
paragraphs 2, 3, 4, 5, and 6 of this Agreement are in complete satisfaction of
any and all compensation due to you from the Company through the Employment
Termination Date.
8. Reference: Attached hereto is a letter of reference from Xx. Xxxxxx
Xxxxxxxxxxx. This letter will be provided upon your request in response to
inquiries by prospective employers concerning you, your employment or your
departure from the Company. Such letter shall be provided in lieu of any oral or
written comments by any officer or director of the Company or Thermo Electron in
response to such inquiries. Instructions to this effect will be displayed in
your personnel record. You will direct that all requests for information and
responses to be sent to Thermo Electron's Director of Human Resources.
9. Voice Mail: For the period from the Employment Termination Date through
March 31, 2000, your secretary or another secretary's voice on your voice mail
will state "Xxxxxxxx Xxxxxxx left the company on November 26, 1999. She may be
reached at 000-000-0000 (or such other number designated by you)."
Xxxxxxxx Xxxxx Xxxxxxx
Xxxx 15, 1999
Page 3
10. Employee Benefit Programs: Your participation in all applicable
employee benefit programs of the Company shall cease as of the Employment
Termination Date in accordance with the terms of those programs. Beginning
November 27, 1999 through May 26, 2001, medical and dental coverages will
continue under COBRA. The Company will pay the entire monthly premium cost
associated with such coverage through May 26, 2001; provided, however, the
Company's obligation to provide such coverage under COBRA, including its
obligation to pay the monthly premium costs associated therewith, shall cease in
the event of your acceptance of a position with an employer who offers you
health care insurance. You will also have the option, at your sole expense, of
converting your basic (not supplemental) life insurance coverage to an
individual plan through Prudential. If interested, please let us know within
fifteen (15) days of the Employment Termination Date and conversion information
will be furnished to you. A conversion option is not available for short or long
term disability coverage.
11. Money Match Plus Plan: Your active participation in the Money Match
Plus Plan shall end on the Employment Termination Date. Information will be
provided to you regarding various election options available to you regarding
your account. Subject to compliance with all applicable legal requirements, the
Company agrees to cooperate with you and your advisors in the transfer of your
Money Match Plus Plan account balance to another plan or account designated by
you.
12. Stock Options: During the Interim Period, you will be entitled to
retain your current stock options in the Company and any of its subsidiaries or
affiliates, all of which shall continue to operate in accordance with their
respective terms. As of the Employment Termination Date, such options shall
cease vesting and no further lapsing of repurchase rights shall occur.
Subsequently, if you do not exercise your vested options within ninety (90) days
of your Employment Termination Date, your options will expire and be canceled,
and you will have no further rights with respect to your options.
13. 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.
14. Company Property: On or before the Employment Termination Date, 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, credit cards, the
leased company car, files, telephones, and personal computers in your possession
or control. Further, you agree that after the Employment Termination Date you
will not for any purpose attempt to access or use any computer or computer
network or system, including without limitation any electronic mail system, of
the Company or any of its subsidiaries or affiliates.
Xxxxxxxx Xxxxx Xxxxxxx
Xxxx 15, 1999
Page 4
15. Release: In exchange for the consideration described in paragraphs 3
and 6 hereof, you hereby release and discharge the Company, Thermo Electron and
their respective subsidiaries and affiliates, and each of their respective
current, former or future officers, directors, employees, shareholders, employee
benefit plans and plan administrators, agents, representatives and legal
predecessors and successors (the "Releasees") from all claims, liabilities and
causes of action, whether known or unknown, which you have, may have, or claim
to have against any of them as of the date hereof, including, without limitation
those based upon or arising out of your employment with the Company, Thermo
Electron or any of their respective subsidiaries or affiliates, the termination
of your employment and other relationships with the Company, Thermo Electron and
any of their subsidiaries or affiliates, your service as an officer or director
of the Company, Thermo Electron or any of their subsidiaries or affiliates, or
any of the Company's or Thermo Electron's policies, procedures or requirements;
provided, however, nothing in this Agreement is intended to, or shall have the
effect of terminating your rights to indemnification, if any, from the Company
pursuant to applicable law (including but not limited to Delaware corporate
law), the Certificate of Incorporation of the Company, the Indemnification
Agreement between you and the Company dated November 14, 1997 (the
"Indemnification Agreement"), or any insurance coverage available to you
pursuant to policies covering Thermo Electron and its subsidiaries and
affiliates, including the Company. You agree not to assert or file, or
participate in, encourage or instigate, any claim or lawsuit against the
Company, Thermo Electron or any of their subsidiaries or affiliates or any of
the other Releasees, including, but not limited to any claims arising from tort
or breach of contract, wrongful termination, fraudulent inducement of employment
or age, sex, race, disability or other discrimination under the Civil Rights Act
of 1964, as amended by the Civil Rights Act of 1991, the Fair Employment and
Housing Act, the Age Discrimination in Employment Act of 1967, as amended by the
Older Workers Benefit Protection Act of 1991, the Americans with Disabilities
Act, ERISA, or any other federal, state or local laws prohibiting discrimination
or under any other federal, state or local employment laws, each as amended and
in effect from time to time. You warrant that you have not filed or participated
in any lawsuits, complaints, claims, proceedings or charges against the Company,
Thermo Electron or any of their subsidiaries or affiliates or any of the other
Releasees with any local, state or federal court or agency.
YOU UNDERSTAND AND ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED TO SEEK THE
ADVICE OF AN ATTORNEY PRIOR TO SIGNING THIS AGREEMENT AND RELEASE AND TO THE
EXTENT DESCRIBED HEREIN YOU ARE GIVING UP ANY LEGAL CLAIMS YOU HAVE AGAINST
COMPANY, THERMO ELECTRON AND THEIR SUBSIDIARIES AND AFFILIATES AND EACH OF THEIR
RESPECTIVE CURRENT, FORMER OR FUTURE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS,
REPRESENTATIVES, LEGAL PREDECESSORS AND SUCCESSORS BY SIGNING THIS AGREEMENT AND
RELEASE. YOU FURTHER UNDERSTAND THAT YOU MAY HAVE 21 DAYS TO CONSIDER THIS
AGREEMENT AND RELEASE, 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 ACKNOWLEDGE THAT YOU FULLY
UNDERSTAND YOUR RIGHT TO TAKE 21 DAYS TO CONSIDER SIGNING THIS AGREEMENT AND
Xxxxxxxx Xxxxx Xxxxxxx
Xxxx 15, 1999
Page 5
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 AGREEMENT AND RELEASE KNOWINGLY, WILLINGLY AND VOLUNTARILY IN
EXCHANGE FOR THE CONSIDERATION DESCRIBED IN PARAGRAPHS 3 AND 6 OF THIS
AGREEMENT.
16. Restriction on Purchase or Sale of Common Stock: You understand and
acknowledge that you will continue to be a "Reporting Person," for purposes of
Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder, and you will remain subject to xxxxxxx
xxxxxxx regulations under the federal securities laws for a period of six months
following the Resignation Date and that during that period you are required to
preclear transactions in the Company and its affiliates' securities with the
Company's Stock Transaction Coordinator, Xx. Xxxxxxx X. Xxxxxxxx. You are also
urged to contact the Corporate Secretary of the Company, Xx. Xxxxxx X. Xxxxxxx,
should you have any questions regarding compliance with the xxxxxxx xxxxxxx
regulations under the federal securities laws.
17. No Hiring. For the period beginning on the Resignation Date and ending
on November 26, 2000, you hereby agree you shall not, either directly or
indirectly as a stockholder, investor, partner, director, officer, employee or
otherwise, solicit or attempt to induce any employee of the Company or Thermo
Optek Corporation ("Optek"), or any of their respective subsidiaries or
affiliates (other than clerical or administrative personnel) to terminate his or
her employment with such entity, or attempt to induce any customer or supplier
of the Company, Thermo Electron or Optek or any of their respective subsidiaries
or affiliates to terminate its relationship with such entity.
18. Non-Disparagement: You agree that you will continue to support and
promote the interests of the Company, Thermo Electron and their respective
subsidiaries and affiliates and that you will not disparage the Company, Thermo
Electron or their respective subsidiaries or affiliates, or any of the people or
organizations connected with them, or do or say anything that xxxxx their
interests or reputation. The Company agrees that it will cause the officers of
Thermo Electron, Optek, and the Company not to disparage you or otherwise do or
say anything that xxxxx your reputation and that the Company shall be solely
responsible for any breach of the provisions contained in this paragraph 18 by
any such officers. Nothing in this paragraph 18 shall prevent the parties from
(i) complying with compulsory legal process or otherwise making disclosure in
connection with litigation or administrative proceedings, (ii) making such
disclosures as are necessary to obtain legal advice, (iii) making disclosures as
are required by federal, state or local regulatory authorities, and (iv) making
disclosures which by law are required or cannot be prohibited.
Xxxxxxxx Xxxxx Xxxxxxx
Xxxx 15, 1999
Page 6
19. Cooperation: You agree to reasonably cooperate with Thermo Electron
and 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.
20. Waiver of Jury Trial: Each of the parties hereby expressly, knowingly,
and voluntarily waives all benefit and advantage and any right to a trial by
jury, and each agrees that she or it will not at any time insist upon, or plead
or in any manner whatsoever claim a trial by jury in any action arising in
connection with this Agreement.
21. Entire Agreement: This Agreement contains the entire agreement between
you, the Company, Thermo Electron and their respective subsidiaries and
affiliates and replaces all prior and contemporaneous agreements, communications
and understandings, whether written or oral, with respect to your employment,
resignation, and termination of your employment and all related matters. 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.
22. Severability: If one or more provisions of this Agreement are held to
be invalid or unenforceable under applicable law by any court of competent
jurisdiction, such provision or provisions 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 or provisions. In
such event, all remaining provisions of this Agreement shall remain in full
force and effect. Any provisions held invalid or unenforceable only in part or
degree will remain in full force and effect to the extent not held invalid or
unenforceable.
23. 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.
24. Successors and Assigns: No party hereto may assign any of its rights
under this Agreement without the prior written consent of the other party. This
Agreement is binding on each of the parties' permitted assigns, successors,
heirs, administrators and executors.
25. Company Information and Invention Agreement. You agree to execute and
comply with the terms of the Company Information and Invention Agreement, a copy
of which is attached hereto. Such agreement supercedes any prior agreement
covering the same subject matter that you may have signed with the Company or
any of its affiliates or subsidiaries.
26. 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.
Xxxxxxxx Xxxxx Xxxxxxx
Xxxx 15, 1999
Page 7
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.
THERMO VISION CORPORATION
By: /s/ Xxxx X. Xxxxx
--------------------------------
Name: Xxxx X. Xxxxx
Title: Chairman of the Board
THERMO ELECTRON CORPORATION
By: /s/ Xxxx Xxx
--------------------------------
Name: Xxxx Xxx
Title: Senior Vice President
Accepted and Agreed to:
/s/ Xxxxxxxx Xxxxx Xxxxxxx
--------------------------
Xxxxxxxx Xxxxx Xxxxxxx
