Exhibit 10.39
January 25, 2001
Xx. Xxxx X. Xxxxxx
0000 Xxxxxx Xxxxxxxx
Xxxxx Xx, XX 00000
Dear Xxxx:
This letter confirms our arrangement regarding your resignation as an
officer and director of Thermo Electron Corporation and any of its subsidiaries
and affiliates (collectively, the "Company").
The following is our agreement related to your resignation from the
Company:
1. Termination of Employment: Your employment with the Company will
terminate effective as of March 31, 2001 (the "Employment Termination
Date"). You will be paid your regular salary through the Employment
Termination Date. At the discretion of the new Chief Executive Officer of
Thermo Biomedical Inc., you may be considered for part-time employment
beyond the Employment Termination Date.
2. 2000 Bonus: You will be entitled to receive a $120,000 bonus for your
performance in 2000, which bonus shall be payable at the same time in 2001
as bonuses to other senior executives are paid. You will be entitled to a
bonus of $30,000 for the first quarter of 2001, payable on the Employment
Termination Date.
3. Severance Payments: You will be entitled to receive a lump sum
severance payment of $600,000 payable within 10 days after you countersign
this letter, representing the sum of two times your current annual base
salary. You also will be entitled to receive an additional severance
payment of $75,000 on July 1, 2001.
4. Accrued Vacation: You will be paid for any accrued but unused vacation
time which you had earned through the Employment Termination Date. You
will not continue to earn vacation or other paid time off after the
Employment Termination Date.
5. Full Payment: You agree that all payments provided to you under
paragraphs 1, 2 and 4 of this Agreement are in complete satisfaction of
any and all compensation 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.
Xx. Xxxx X. Xxxxxx
January 25, 2001
Page 2
6. Employee Benefit Programs: Your participation in all employee benefit
programs of the Company will cease effective as of the Employment
Termination Date in accordance with the terms of those programs. You will
have the option to elect to continue your health care coverage under COBRA
beginning on the day after the Employment Termination Date for a period of
up to 18 months, in which case the Company will pay the full monthly
premium cost of your coverage under the applicable health care plan.
Detailed information will be provided to you under separate cover. 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 by January 31, 2001 and
conversion information will be furnished to you. A conversion option is
not available for long term disability coverage.
7. 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.
8. Stock Options: No further vesting of your stock options in the Company
and no further lapsing of the Company's repurchase rights will occur after
the Employment Termination Date. If you do not exercise your vested
options by the earliest of (i) the date of the original expiration date of
the options, (ii) the date that is three months after the Employment
Termination Date (in the case of options identified with an asterisk next
to the grant ID number on the attached schedule) or (iii) the second
anniversary of the Employment Termination Date (in the case of all other
options identified on the attached schedule), your options will expire and
be canceled, and you will have no further rights with respect to your
options.
9. 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.
10. 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,
except that you may retain your personal computer. 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.
11. Restricted Stock: Your 20,000 restricted shares of the Company's
common stock shall vest as of the Employment Termination Date.
Xx. Xxxx X. Xxxxxx
January 25, 2001
Page 3
12. Release: In exchange for the consideration described in paragraphs 3
and 11 hereof, 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 service as an
officer or director of 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. You hereby
agree not to file any lawsuit to assert such claims, which include, but
are 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.
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 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
PARAGRAPHS 3 and 11 HEREOF.
Xx. Xxxx X. Xxxxxx
January 25, 2001
Page 4
13. Restriction on Purchase or Sale of Common Stock: You understand that
you will no longer be a "Reporting Person," for purposes of Section 16 of
the Securities Exchange Act of 1934 and the rules and regulations
promulgated thereunder. However, you understand that for a period of six
months following the date hereof you are required to report certain
transactions pursuant to such rules and regulations on Forms 4 and 5. 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.
14. Non-Compete. Until July 1, 2001 (the "Non-Compete Period"), you shall
not, either directly or indirectly as a stockholder, investor, partner,
director, officer, employee or consultant, compete or engage in any
business that competes, anywhere in the world, with the business of the
Company. Notwithstanding the foregoing, you may own, solely as an
investor, up to 1% of the common stock of any publicly-traded competitor.
You agree that the duration and geographic scope of this non-competition
provision are reasonable. In the event that any court determines that the
duration or geographic scope, or both, are unreasonable and that such
provision is to that extent unenforceable, the parties agree that the
provision shall remain in full force and effect for the greatest time
period and in the greatest geographic area that would not render it
unenforceable. The parties intend that this non-competition provision
shall be deemed a series of separate covenants, one for each and every
county of each and every state of the U.S. and each and every political
subdivision of each and every country outside of the U.S. Further, during
the Non-Compete Period, you hereby agree you shall not, either directly or
indirectly as a stockholder, investor, partner, director, officer,
employee or otherwise, attempt to induce any employee of the Company to
terminate his or her employment with the Company, or hire or caused to be
hired any such employee, or attempt to induce any customer or supplier of
the Company to terminate its relationship with the Company.
15. Resignation. You hereby resign effective as of today all of your
positions as an officer and director of the Company. Notwithstanding the
foregoing, you shall remain an employee until March 31, 2001 in accordance
with the terms of paragraph 1 above and shall be entitled to continue to
participate until March 31, 2001 in the Company's automobile program for
officers and its executive supplemental medical reimbursement program.
16. 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 them, 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 them. The Company agrees
that it will cause the officers of the Company not to criticize, disparage
Xx. Xxxx X. Xxxxxx
January 25, 2001
Page 5
or defame 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 in this paragraph 16 by any such officers. Nothing in this
provision shall prevent the parties from (i) complying with compulsory
legal process or otherwise making disclosures 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.
17. 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.
18. 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 each agrees that he or it will not 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.
19. Company Information and Invention Agreement. You agree to comply with
the terms of a Thermo Electron Company Information and Invention
Agreement, a copy of which is attached hereto. Such agreement supersedes
any prior agreement covering the same subject matter which you may have
signed with the Company previously.
20. Entire Agreement: This letter contains the entire Agreement between
you and the Company and supersedes all prior and contemporaneous
agreements, communications and understandings, whether written or oral,
relating to the subject matter of this letter, including your Executive
Retention Agreement (which is hereby canceled), except that your
Indemnification Agreement with the Company and the Thermo Electron Company
Information and Invention Agreement shall survive in accordance with their
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.
21. 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.
22. 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
Xx. Xxxx X. Xxxxxx
January 25, 2001
Page 6
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.
23. Successors and Assigns: This Agreement shall be bending 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.
24. Amendment: This Agreement may be amended or modified only by a written
instrument executed by you and the Company.
25. 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.
Date Received by Addressee: January 25, 2001
THERMO ELECTRON CORPORATION
By: /s/ Xxxx Pol
-----------------------------
Title: Senior Vice President,
Human Resources
Accepted and Agreed to:
/s/ Xxxx X. Xxxxxx
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