Contract
Exhibit
10.55
THIS
AGREEMENT by and between THERMO XXXXXX SCIENTIFIC INC., a Delaware corporation
(the “Company”), and _____ (the “Executive”) is made as of
_______, 2009 (the “Effective Date”).
WHEREAS, the Company recognizes that,
as is the case with many publicly-held corporations, the possibility of a change
in control of the Company exists and that such possibility, and the uncertainty
and questions which it may raise among key personnel, may result in the
departure or distraction of key personnel to the detriment of the Company and
its stockholders; and
WHEREAS, the Board of Directors of the
Company (the “Board”) has determined that appropriate steps should be taken to
reinforce and encourage the continued employment and dedication of the Company's
key personnel without distraction from the possibility of a change in control of
the Company and related events and circumstances;
NOW, THEREFORE, as an inducement for
and in consideration of the Executive remaining in its employ, the Company
agrees that the Executive shall receive the severance benefits set forth in this
Agreement in the event the Executive's employment with the Company is terminated
under the circumstances described below subsequent to a Change in Control Date
(as defined in Section 1.2).
1. Key
Definitions.
As used herein, the following terms
shall have the following respective meanings:
1.1 “Change in Control”
means an event or occurrence set forth in any one or more of subsections (a)
through (d) below (including an event or occurrence that constitutes a Change in
Control under one of such subsections but is specifically exempted from another
such subsection):
(a) the
acquisition by an individual, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”)) (a “Person”) of beneficial ownership of any capital stock of
the Company if, after such acquisition, such Person beneficially owns (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) 50% or more of
either (i) the then-outstanding shares of common stock of the Company (the
“Outstanding Company Common Stock”) or (ii) the combined voting power of the
then-outstanding securities of the Company entitled to vote generally in the
election of directors (the “Outstanding Company Voting Securities”); provided, however, that for
purposes of this subsection (a), the following acquisitions shall not constitute
a Change in Control: (i) any acquisition by the Company, (ii) any acquisition by
any employee benefit plan (or related trust) sponsored or maintained by the
Company or any corporation controlled by the Company, or (iii) any acquisition
by any corporation pursuant to a transaction which complies with clauses (i) and
(ii) of subsection (c) of this Section 1.1; or
(b) such
time as the Continuing Directors (as defined below) do not constitute a majority
of the Board (or, if applicable, the Board of Directors of a successor
corporation to the Company), where the term “Continuing Director” means at any
date a member of the Board (i) who was a member of the Board on the date of the
execution of this Agreement or (ii) who was nominated or elected subsequent to
such date by at least a majority of the directors who were Continuing Directors
at the time of such nomination or election or whose election to the Board was
recommended or endorsed by at least a majority of the directors who were
Continuing Directors at the time of such nomination or election; provided, however, that there
shall be excluded from this clause (ii) any individual whose initial assumption
of office occurred as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or threatened
solicitation of proxies or consents, by or on behalf of a person other than the
Board; or
(c) the
consummation of a merger, consolidation, reorganization, recapitalization or
statutory share exchange involving the Company or a sale or other disposition of
all or substantially all of the assets of the Company in one or a series of
transactions (a “Business Combination”), unless, immediately following such
Business Combination, each of the following two conditions is satisfied: (i) all
or substantially all of the individuals and entities who were the beneficial
owners of the Outstanding Company Common Stock and Outstanding Company Voting
Securities immediately prior to such Business Combination beneficially own,
directly or indirectly, more than 50% of the then-outstanding shares of common
stock and the combined voting power of the then-outstanding securities entitled
to vote generally in the election of directors, respectively, of the resulting
or acquiring corporation in such Business Combination (which shall include,
without limitation, a corporation which as a result of such transaction owns the
Company or substantially all of the Company's assets either directly or through
one or more subsidiaries) (such resulting or acquiring corporation is referred
to herein as the “Acquiring Corporation”) in substantially the same proportions
as their ownership, immediately prior to such Business Combination, of the
Outstanding Company Common Stock and Outstanding Company Voting Securities,
respectively; and (ii) no Person (excluding the Acquiring Corporation or any
employee benefit plan (or related trust) maintained or sponsored by the Company
or by the Acquiring Corporation) beneficially owns, directly or indirectly, 50%
or more of the then outstanding shares of common stock of the Acquiring
Corporation, or of the combined voting power of the then-outstanding securities
of such corporation entitled to vote generally in the election of directors;
or
(d) approval
by the stockholders of the Company of a complete liquidation or dissolution of
the Company.
1.2
“Change in Control
Date” means the first date during the Term (as defined in Section 2) on
which a Change in Control occurs. Anything in this Agreement to the
contrary notwithstanding, if (a) a Change in Control occurs, (b) the Executive's
employment with the Company is terminated prior to the date on which the Change
in Control occurs, and (c) it is reasonably demonstrated by the Executive that
such termination of employment (i) was at the request of a third party who has
taken steps reasonably calculated to effect a Change in Control or (ii)
otherwise arose in connection with or in anticipation of a Change in Control,
then for all
2
purposes
of this Agreement the “Change in Control Date” shall mean the date immediately
prior to the date of such termination of employment.
1.3 “Cause” means the
Executive's willful engagement in illegal conduct or gross misconduct after the
Change in Control Date which is materially and demonstrably injurious to the
Company. For purposes of this Section 1.3, no act or failure to act
by the Executive shall be considered “willful” unless it is done, or omitted to
be done, in bad faith and without reasonable belief that the Executive's action
or omission was in the best interests of the Company.
1.4 “Good Reason” means
the occurrence, without the Executive's written consent, of any of the events or
circumstances set forth in clauses (a) through (g)
below. Notwithstanding the occurrence of any such event or
circumstance, such occurrence shall not be deemed to constitute Good Reason if,
prior to the Date of Termination specified in the Notice of Termination (each as
defined in Section 3.2(a)) given by the Executive in respect thereof, such event
or circumstance has been fully corrected and the Executive has been reasonably
compensated for any losses or damages resulting therefrom (provided that such
right of correction by the Company shall only apply to the first Notice of
Termination for Good Reason given by the Executive).
(a) the
assignment to the Executive of duties inconsistent in any material respect with
the Executive's position (including status, offices, titles and reporting
requirements), authority or responsibilities in effect immediately prior to the
earliest to occur of (i) the Change in Control Date, (ii) the date of the
execution by the Company of the initial written agreement or instrument
providing for the Change in Control or (iii) the date of the adoption by the
Board of Directors of a resolution providing for the Change in Control (with the
earliest to occur of such dates referred to herein as the “Measurement Date”) or
a material diminution in such position, authority or
responsibilities;
(b) a
reduction in the Executive's annual base salary as in effect on the Measurement
Date or as the same was or may be increased thereafter from time to
time;
(c) the
failure by the Company to (i) continue in effect any material compensation or
benefit plan or program, including without limitation any life insurance,
medical, health and accident or disability plan and any vacation or automobile
program or policy, in which the Executive participates or which is applicable to
the Executive immediately prior to the Measurement Date (a “Benefit Plan”),
unless an equitable arrangement (embodied in an ongoing substitute or
alternative plan) has been made with respect to such plan or program, (ii)
continue the Executive's participation therein (or in such substitute or
alternative plan) on a basis not materially less favorable than the basis
existing immediately prior to the Measurement Date (iii) award cash bonuses to
the Executive in amounts and in a manner substantially consistent with past
practice in light of the Company's financial performance or (iv) continue to
provide any material fringe benefit enjoyed by Executive immediately prior to
the Measurement Date;
(d) a
change by the Company in the location at which the Executive performs the
Executive’s principal duties for the Company to a new location that is both
(i)
3
outside a
radius of 50 miles from the Executive's principal residence immediately prior to
the Measurement Date and (ii) more than 30 miles from the location at which the
Executive performed the Executive’s principal duties for the Company immediately
prior to the Measurement Date; or a requirement by the Company that the
Executive travel on Company business to a substantially greater extent than
required immediately prior to the Measurement Date;
(e) the
failure of the Company to obtain the agreement from any successor to the Company
to assume and agree to perform this Agreement, as required by Section
6.1;
(f) a
purported termination of the Executive's employment which is not effected
pursuant to a Notice of Termination satisfying the requirements of Section
3.2(a); or
(g) any
failure of the Company to pay or provide to the Executive any portion of the
Executive's compensation or benefits due under any Benefit Plan within seven
days of the date such compensation or benefits are due, or any material breach
by the Company of this Agreement or any employment agreement with the
Executive.
The Executive's right to
terminate the Executive’s employment for Good Reason shall not be affected by
the Executive’s incapacity due to physical or mental illness.
1.5 “Disability” means the
Executive's inability, due to a physical or mental disability, for a period of
90 days, whether or not consecutive, during any 360-day period to perform the
Executive’s duties on behalf of the Company, with or without reasonable
accommodation as that term is defined under state or federal law. A
determination of disability shall be made by a physician satisfactory to both
the Executive and the Company, provided that if the Executive
and the Company do not agree on a physician, the Executive and the Company shall
each select a physician and these two together shall select a third physician,
whose determination as to disability shall be binding on all
parties.
2. Term of
Agreement. This Agreement, and all rights and obligations of
the parties hereunder, shall take effect upon the Effective Date and shall
expire upon the first to occur of (a) the expiration of the Term (as defined
below) if a Change in Control has not occurred during the Term, (b) the date 18
months after the Change in Control Date, if the Executive is still employed by
the Company as of such later date, or (c) the fulfillment by the Company of all
of its obligations under Sections 4 and 5.2 if the Executive's employment with
the Company terminates within 18 months following the Change in Control
Date. “Term” shall mean the period commencing as of the Effective
Date and continuing in effect through May 15, 2013.
3. Employment Status;
Termination Following Change in Control.
3.1 Not an Employment
Contract. The Executive acknowledges that this Agreement does
not constitute a contract of employment or impose on the Company any obligation
to retain the Executive as an employee and that this Agreement does not prevent
the Executive from terminating employment at any time. If the
Executive's employment with the
4
Company
terminates for any reason and subsequently a Change in Control shall occur, the
Executive shall not be entitled to any benefits hereunder except as otherwise
provided pursuant to Section 1.2.
3.2 Termination of
Employment.
(a) If
the Change in Control Date occurs during the Term, any termination of the
Executive's employment by the Company or by the Executive within 18 months
following the Change in Control Date (other than due to the death of the
Executive) shall be communicated by a written notice to the other party hereto
(the “Notice of Termination”), given in accordance with Section
7. Any Notice of Termination shall: (i) indicate the specific
termination provision (if any) of this Agreement relied upon by the party giving
such notice, (ii) to the extent applicable, set forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination of the
Executive's employment under the provision so indicated and (iii) specify the
Date of Termination (as defined below). The effective date of an
employment termination (the “Date of Termination”) shall be the close of
business on the date specified in the Notice of Termination (which date may not
be less than 15 days or more than 120 days after the date of delivery of such
Notice of Termination), in the case of a termination other than one due to the
Executive's death, or the date of the Executive's death, as the case may
be. In the event the Company fails to satisfy the requirements of
Section 3.2(a) regarding a Notice of Termination, the purported termination of
the Executive’s employment pursuant to such Notice of Termination shall not be
effective for purposes of this Agreement.
(b) The
failure by the Executive or the Company to set forth in the Notice of
Termination any fact or circumstance which contributes to a showing of Good
Reason or Cause shall not waive any right of the Executive or the Company,
respectively, hereunder or preclude the Executive or the Company, respectively,
from asserting any such fact or circumstance in enforcing the Executive's or the
Company's rights hereunder.
(c) Any
Notice of Termination for Cause given by the Company must be given within 90
days of the occurrence of the event(s) or circumstance(s) which constitute(s)
Cause. Prior to any Notice of Termination for Cause being given (and
prior to any termination for Cause being effective), the Executive shall be
entitled to a hearing before the Board at which the Executive may, at the
Executive’s election, be represented by counsel and at which the Executive shall
have a reasonable opportunity to be heard. Such hearing shall be held
on not less than 15 days prior written notice to the Executive stating the
Board’s intention to terminate the Executive for Cause and stating in detail the
particular event(s) or circumstance(s) which the Board believes constitutes
Cause for termination.
(d) Any
Notice of Termination for Good Reason given by the Executive must be given
within 90 days of the occurrence of the event(s) or circumstance(s) which
constitute(s) Good Reason.
5
4. Benefits to
Executive.
4.1 Compensation. If
the Change in Control Date occurs during the Term and the Executive's employment
with the Company terminates within 18 months following the Change in Control
Date, the Executive shall be entitled to the following benefits:
(a) Termination Without Cause or
for Good Reason. If the Executive's employment with the
Company is terminated by the Company (other than for Cause, Disability or death)
or by the Executive for Good Reason within 18 months following the Change in
Control Date, then the Executive shall be entitled to the following
benefits:
(i)
the Company shall pay to the Executive in a lump sum in cash
within 30 days after the Date of Termination the aggregate of the following
amounts:
(1) the
sum of (A) the Executive's base salary through the Date of Termination, (B) the
product of (x) the higher of the Executive’s target bonus as in effect
immediately prior to the Measurement Date or the Termination Date and (y) a
fraction, the numerator of which is the number of days in the current fiscal
year through the Date of Termination, and the denominator of which is 365 and
(C) the amount of any accrued vacation pay, to the extent not previously paid
(the sum of the amounts described in clauses (A), (B), and (C) shall be
hereinafter referred to as the “Accrued Obligations”); and
(2) an
amount equal to (a) two multiplied by (b) the sum of (x) the higher of the
Executive’s annual base salary as in effect immediately prior to the Measurement
Date or the Termination Date and (y) the higher of the Executive’s target
bonus as in effect immediately prior to the Measurement Date or the
Termination Date.
(ii) for
two years after the Date of Termination, or such longer period as may be
provided by the terms of the appropriate plan, program, practice or policy, the
Company shall continue to provide medical, dental and life insurance benefits to
the Executive and the Executive's family at least equal to those which would
have been provided to them if the Executive's employment had not been
terminated, in accordance with the applicable medical, dental and life insurance
Benefit Plans in effect on the Measurement Date or, if more favorable to the
Executive and the Executive’s family, in effect generally at any time thereafter
with respect to other peer executives of the Company and its affiliated
companies; provided, however, that (A) if
the terms of a medical, dental or life insurance Benefit Plan do not permit
continued participation therein by a former employee, then an equitable
arrangement shall be made by the Company (such as a substitute or alternative
plan) to provide as substantially equivalent a benefit as is reasonably possible
and (B) if the Executive becomes reemployed with another employer and is
eligible to receive a particular type of benefits (e.g., medical insurance
benefits) from such employer on terms at least as favorable to the Executive and
the Executive’s family as those being provided by the Company, then the Company
shall no longer be required to provide those particular benefits to the
Executive and the Executive’s family; and
(iii) to
the extent not previously paid or provided, the Company shall timely pay or
provide to the Executive any other amounts or benefits required to be paid
or
6
provided
or which the Executive is eligible to receive following the Executive's
termination of employment under any plan, program, policy, practice, contract or
agreement of the Company and its affiliated companies (other than severance
benefits) (such other amounts and benefits shall be hereinafter referred to as
the “Other Benefits”).
(b) Resignation without Good
Reason; Termination for Death or Disability. If the Executive
voluntarily terminates the Executive’s employment with the Company within 18
months following the Change in Control Date, excluding a termination for Good
Reason, or if the Executive's employment with the Company is terminated by
reason of the Executive's death or Disability within 18 months following the
Change in Control Date, then the Company shall (i) pay the Executive (or the
Executive’s estate, if applicable), in a lump sum in cash within 30 days after
the Date of Termination, the Accrued Obligations and (ii) timely pay or provide
to the Executive the Other Benefits.
(c) Termination for
Cause. If the Company terminates the Executive's employment
with the Company for Cause within 18 months following the Change in Control
Date, then the Company shall (i) pay the Executive, in a lump sum in cash within
30 days after the Date of Termination, the Executive's annual base salary
through the Date of Termination, and (ii) timely pay or provide to the Executive
the Other Benefits.
4.2 Taxes.
(a) Notwithstanding
any other provision of this Agreement, except as set forth in Section 4.2(b), in
the event that the Company undergoes a “Change in Ownership or
Control” (as defined below), the Company shall not be obligated to provide to
the Executive a portion of any “Contingent Compensation Payments” (as defined
below) that the Executive would otherwise be entitled to receive to the extent
necessary to eliminate any “excess parachute payments” (as defined in Section
280G(b)(1) of the Internal Revenue Code of 1986, as amended (the “Code”)) for
the Executive. For purposes of this Section 4.2, the Contingent
Compensation Payments so eliminated shall be referred to as the “Eliminated
Payments” and the aggregate amount (determined in accordance with Treasury
Regulation Section 1.280G-1, Q/A-30 or any successor provision) of the
Contingent Compensation Payments so eliminated shall be referred to as the
“Eliminated Amount.”
(b) Notwithstanding
the provisions of Section 4.2(a), no such reduction in Contingent Compensation
Payments shall be made if (i) the Eliminated Amount (computed without regard to
this sentence) exceeds (ii) 110% of the aggregate present
value (determined in accordance with Treasury Regulation Section 1.280G-1,
Q/A-31 and Q/A-32 or any successor provisions) of the amount of any additional
taxes that would be incurred by the Executive if the Eliminated Payments
(determined without regard to this sentence) were paid to the Executive
(including, state and federal income taxes on the Eliminated Payments, the
excise tax imposed by Section 4999 of the Code payable with respect to all of
the Contingent Compensation Payments in excess of the Executive’s “base amount”
(as defined in Section 280G(b)(3) of the Code), and any withholding
taxes). The override of such reduction in Contingent Compensation
Payments pursuant to this Section 4.2(b) shall be referred to as a
Section 4.2(b) Override.” For purpose of this paragraph, if any
federal or state income taxes
7
would be
attributable to the receipt of any Eliminated Payment, the amount of such taxes
shall be computed by multiplying the amount of the Eliminated Payment by the
maximum combined federal and state income tax rate provided by law.
(c) For
purposes of this Section 4.3 the following terms shall have the following
respective meanings:
(i)
“Change in Ownership or Control” shall mean a change in the ownership or
effective control of the Company or in the ownership of a substantial portion of
the assets of the Company determined in accordance with Section 280G(b)(2) of
the Code.
(ii) “Contingent
Compensation Payment” shall mean any payment (or benefit) in the nature of
compensation that is made or made available (under this Agreement or otherwise)
to a “disqualified individual” (as defined in Section 280G(c) of the Code) and
that is contingent (within the meaning of Section 280G(b)(2)(A)(i) of the Code)
on a Change in Ownership or Control of the Company.
(d) Any
payments or other benefits otherwise due to the Executive following a Change in
Ownership or Control that could reasonably be characterized (as determined by
the Company) as Contingent Compensation Payments (the “Potential Payments”)
shall not be made until the dates provided for in this
Section 4.2(d). Within 30 days after each date on which the
Executive first becomes entitled to receive (whether or not then due) a
Contingent Compensation Payment relating to such Change in Ownership or Control,
the Company shall determine and notify the Executive (with reasonable detail
regarding the basis for its determinations) (i) which Potential Payments
constitute Contingent Compensation Payments, (ii) the Eliminated Amount and
(iii) whether the Section 4.2(b) Override is
applicable. Within 30 days after delivery of such notice to the
Executive, the Executive shall deliver a response to the Company (the “Executive
Response”) stating either (A) that the Executive agrees with the Company’s
determination pursuant to the preceding sentence or (B) that the Executive
disagrees with such determination, in which case the Executive shall set forth
(i) which Potential Payments should be characterized as Contingent Compensation
Payments, (ii) the Eliminated Amount, and (iii) whether the Section 4.2(b)
Override is applicable. In the event that the Executive fails to
deliver an Executive Response on or before the required date, the Company’s
initial determination shall be final and the Contingent Compensation Payments
that shall be treated as Eliminated Payments shall be determined by reducing or
eliminating the amounts payable under this Agreement in the following order:
(i) cash payments, (ii) taxable benefits, (iii) nontaxable
benefits and (iv) accelerated vesting of equity awards. If the
Executive states in the Executive Response that the Executive agrees with the
Company’s determination, the Company shall make the Potential Payments to the
Executive within three business days following delivery to the Company of the
Executive Response (except for any Potential Payments which are not due to be
made until after such date, which Potential Payments shall be made on the date
on which they are due). If the Executive states in the Executive
Response that the Executive disagrees with the Company’s determination, then,
for a period of 15 days following delivery of the Executive Response, the
Executive and the Company shall use good faith efforts to resolve such
dispute. If such dispute is not resolved within such 15-day period,
such dispute shall be settled exclusively by arbitration in Boston,
Massachusetts, in accordance with the rules of the American
Arbitration
8
Association
then in effect. Judgment may be entered on the arbitrator’s award in
any court having jurisdiction. The Company shall, within three
business days following delivery to the Company of the Executive Response, make
to the Executive those Potential Payments as to which there is no dispute
between the Company and the Executive regarding whether they should be made
(except for any such Potential Payments which are not due to be made until after
such date, which Potential Payments shall be made on the date on which they are
due). The balance of the Potential Payments shall be made within
three business days following the resolution of such dispute. Subject
to the limitations contained in Sections 4.2(a) and (b) hereof, the amount of
any payments to be made to the Executive following the resolution of such
dispute shall be increased by amount of the accrued interest thereon computed at
the prime rate announced from time to time by The Wall Street Journal,
compounded monthly from the date that such payments originally were
due.
4.3 Payments Subject to Section
409A.
(a) Subject
to this Section 4.3, payments or benefits under Section 4.1 shall begin only
upon the date of a “separation from service” of the Executive (determined as set
forth below) which occurs on or after the termination of the Executive’s
employment. The following rules shall apply with respect to
distribution of the payments and benefits, if any, to be provided to the
Executive under Section 4.1, as applicable:
(i)
It is intended that each installment of the payments and benefits
provided under Section 4.1 shall be treated as a separate “payment” for purposes
of Section 409A of the Code and the guidance issued thereunder (“Section
409A”). Neither the Company nor the Executive shall have the right to
accelerate or defer the delivery of any such payments or benefits except to the
extent specifically permitted or required by Section 409A.
(ii)
If, as of the date of the “separation from
service” of the Executive from the Company, the Executive is not a “specified
employee” (within the meaning of Section 409A), then each installment of the
payments and benefits shall be made on the dates and terms set forth in Section
4.1.
(iii) If,
as of the date of the “separation from service” of the Executive from the
Company, the Executive is a “specified employee” (within the meaning of Section
409A), then:
(1) Each
installment of the payments and benefits due under Section 4.1 that, in
accordance with the dates and terms set forth herein, will in all circumstances,
regardless of when the separation from service occurs, be paid within the
Short-Term Deferral Period (as hereinafter defined) shall be treated as a
short-term deferral within the meaning of Treasury Regulation § 1.409A-1(b)(4)
to the maximum extent permissible under Section 409A. For purposes of
this Agreement, the “Short-Term Deferral Period” means the period ending on the
later of the 15th day of
the third month following the end of the Executive’s tax year in which the
separation from service occurs and the 15th day of
the third month following the end of the Company’s tax year in which the
separation from service occurs; and
9
(2) Each
installment of the payments and benefits due under Section 4.1 that is not
described in Section 4.3(a)(iii)(1) and that would, absent this subsection, be
paid within the six-month period following the “separation from service” of the
Executive from the Company shall not be paid until the date that is six months
and one day after such separation from service (or, if earlier, the Executive’s
death), with any such installments that are required to be delayed being
accumulated during the six-month period and paid in a lump sum on the date that
is six months and one day following the Executive’s separation from service and
any subsequent installments, if any, being paid in accordance with the dates and
terms set forth herein; provided, however, that the
preceding provisions of this sentence shall not apply to any installment of
payments and benefits if and to the maximum extent that that such installment is
deemed to be paid under a separation pay plan that does not provide for a
deferral of compensation by reason of the application of Treasury Regulation
§ 1.409A-1(b)(9)(iii) (relating to separation pay upon an involuntary
separation from service). Any installments that qualify for the
exception under Treasury Regulation § 1.409A-1(b)(9)(iii) must be paid no
later than the last day of the Executive’s second taxable year following his
taxable year in which the separation from service occurs.
(b) The
determination of whether and when a separation from service of the Executive
from the Company has occurred shall be made and in a manner consistent with, and
based on the presumptions set forth in, Treasury Regulation §
1.409A-1(h). Solely for purposes of this Section 4.3(b), “Company”
shall include all persons with whom the Company would be considered a single
employer under Section 414(b) and 414(c) of the Code.
(c) All
reimbursements and in-kind benefits provided under the Agreement shall be made
or provided in accordance with the requirements of Section 409A to the extent
that such reimbursements or in-kind benefits are subject to Section
409A.
4.4 Outplacement
Services. In the event the Executive is terminated by the
Company (other than for Cause, Disability or death), or the Executive terminates
employment for Good Reason, within 18 months following the Change in Control
Date, the Company shall provide outplacement services through one or more
outside firms of the Executive’s choosing up to an aggregate of $20,000, with
such services to extend until the earlier of (i) 12 months following the
termination of the Executive’s employment or (ii) the date the Executive secures
full time employment.
4.5 Mitigation. The
Executive shall not be required to mitigate the amount of any payment or
benefits provided for in this Section 4 by seeking other employment or
otherwise. Further, except as provided in Section 4.1(a)(ii), the amount of any
payment or benefits provided for in this Section 4 shall not be reduced by any
compensation earned by the Executive as a result of employment by another
employer, by retirement benefits, by offset against any amount claimed to be
owed by the Executive to the Company or otherwise.
4.6 Release of Claims by
Executive. The Executive shall not be entitled to any payments
or other benefits hereunder unless the Executive executes and, if applicable,
does not revoke, a full and complete release and separation agreement in the
form to be provided by the Company.
10
5. Disputes.
5.1 Settlement of Disputes;
Arbitration. All claims by the Executive for benefits under
this Agreement shall be directed to and determined by the Board and shall be in
writing. Any denial by the Board of Directors of a claim for benefits
under this Agreement shall be delivered to the Executive in writing and shall
set forth the specific reasons for the denial. The Board shall afford
a reasonable opportunity to the Executive for a review of the decision denying a
claim. Any further dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration in
Boston, Massachusetts, in accordance with the rules of the American Arbitration
Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction.
5.2 Expenses. The
Company agrees to pay as incurred, to the full extent permitted by law, all
legal, accounting and other fees and expenses which the Executive may reasonably
incur as a result of any claim or contest (regardless of the outcome thereof) by
the Company, the Executive or others regarding the validity or enforceability
of, or liability under, any provision of this Agreement or any guarantee of
performance thereof (including as a result of any contest by the Executive
regarding the amount of any payment or benefits pursuant to this Agreement),
plus in each case interest on any delayed payment at the applicable Federal rate
provided for in Section 7872(f)(2)(A) of the Code.
6. Successors.
6.1
Successor to
Company. The Company shall require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Company expressly to assume
and agree to perform this Agreement to the same extent that the Company would be
required to perform it if no such succession had taken place. Failure
of the Company to obtain an assumption of this Agreement at or prior to the
effectiveness of any succession shall be a breach of this Agreement and shall
constitute Good Reason if the Executive elects to terminate employment, except
that for purposes of implementing the foregoing, the date on which any such
succession becomes effective shall be deemed the Date of
Termination. As used in this Agreement, “Company” shall mean the
Company as defined above and any successor to its business or assets as
aforesaid which assumes and agrees to perform this Agreement, by operation of
law or otherwise.
6.2
Successor to
Executive. This Agreement shall inure to the benefit of and be
enforceable by the Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and
legatees. If the Executive should die while any amount would still be
payable to the Executive or the Executive’s family hereunder if the Executive
had continued to live, all such amounts, unless otherwise provided herein, shall
be paid in accordance with the terms of this Agreement to the executors,
personal representatives or administrators of the Executive's
estate.
7. Notice. All
notices, instructions and other communications given hereunder or in connection
herewith shall be in writing. Any such notice, instruction or
communication shall be sent either (i) by registered or certified mail, return
receipt requested, postage prepaid, or (ii)
11
prepaid
via a reputable nationwide overnight courier service, in each case addressed to
the Company, at 00 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx and to the Executive at
the Executive’s principal residence as currently reflected on the Company’s
records (or to such other address as either the Company or the Executive may
have furnished to the other in writing in accordance herewith). Any
such notice, instruction or communication shall be deemed to have been delivered
five business days after it is sent by registered or certified mail, return
receipt requested, postage prepaid, or one business day after it is sent via a
reputable nationwide overnight courier service. Either party may give any
notice, instruction or other communication hereunder using any other means, but
no such notice, instruction or other communication shall be deemed to have been
duly delivered unless and until it actually is received by the party for whom it
is intended.
8. Miscellaneous.
8.1 Severability. The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement,
which shall remain in full force and effect.
8.2 Injunctive
Relief. The Company and the Executive agree that any breach of
this Agreement by the Company is likely to cause the Executive substantial and
irrevocable damage and therefore, in the event of any such breach, in addition
to such other remedies which may be available, the Executive shall have the
right to specific performance and injunctive relief.
8.3 Governing
Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the internal laws of the
Commonwealth of Massachusetts, without regard to conflicts of law
principles.
8.4 Waivers. No
waiver by the Executive at any time of any breach of, or compliance with, any
provision of this Agreement to be performed by the Company shall be deemed a
waiver of that or any other provision at any subsequent time.
8.5 Counterparts. This
Agreement may be executed in counterparts, each of which shall be deemed to be
an original but both of which together shall constitute one and the same
instrument.
8.6 Tax
Withholding. Any payments provided for hereunder shall be paid
net of any applicable tax withholding required under federal, state or local
law.
8.7 Entire
Agreement. This Agreement sets forth the entire agreement of
the parties hereto in respect of the subject matter contained herein and
supersedes all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, employee or representative of any party hereto in respect of the
subject matter contained herein; and any prior agreement of the parties hereto
in respect of the subject matter contained herein is hereby terminated and
cancelled.
12
8.8 Amendments. This
Agreement may be amended or modified only by a written instrument executed by
both the Company and the Executive.
IN WITNESS WHEREOF, the parties hereto
have executed this Agreement under seal as of the day and year first set forth
above.
|
|
THERMO
XXXXXX SCIENTIFIC INC.
|
|
|
________________________________
|
|
|
By:
|
|
|
EXECUTIVE
|
|
|
___________________________________
|
13
