Exhibit 10.66
THERMO ELECTRON CORPORATION
EXECUTIVE SEVERANCE AGREEMENT
THIS AGREEMENT by and between THERMO ELECTRON CORPORATION, a Delaware
corporation (the "Company"), and ____________ (the "Executive") is made as of
November 19, 2003 (the "Effective Date").
WHEREAS, the Company recognizes that the uncertainty regarding the future
employment prospects for 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 such uncertainty 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.
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) 40% 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
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(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 60% 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, 40% 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 "Cause" means the Executive's willful engagement in illegal
conduct or gross misconduct which is materially and demonstrably injurious to
the Company. For purposes of this Section 1.2, 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
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reasonable belief that the Executive's action or omission was in the best
interests of the Company.
1.3 "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) or
(b) 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 prior to the
expiration of the Term. "Term" shall mean the period commencing as of the
Effective Date and continuing in effect through December 31, 2008; provided,
however, that on January 1, 2009 and each January 1 thereafter, the Term shall
be automatically extended for one additional year unless, not later than six
months prior to the scheduled expiration of the Term (including any extension)
thereof, the Company shall have given the Executive written notice that the Term
will not be extended.
3. 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.
4. Benefits to Executive.
4.1 Compensation.
(a) Termination Without Cause. If the Executive's employment with
the Company is terminated by the Company (other than for Cause, Disability or
death) 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) one and one-half (1.5) times the
Executive's annual base salary as in effect immediately prior to the date of
termination, and (B) the amount of any accrued vacation pay, to the extent not
previously paid; and
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(ii) for 18 months 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 benefit
plans in effect on the date of termination 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 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 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) Termination for Cause, Disability or Death. If the Company
terminates the Executive's employment with the Company because of the
Executive's disability, the Executive's death or for Cause, then the Company
shall (i) pay the Executive or the Executive's estate, in a lump sum in cash
within 30 days after the date of termination, the Executive's base salary
through the date of termination and (ii) timely pay or provide to the Executive
the Other Benefits.
4.2 Outplacement Services. In the event the Executive is terminated by
the Company (other than for Cause, Disability or death), 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.
4.3 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,
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by retirement benefits, by offset against any amount claimed to be owed by the
Executive to the Company or otherwise.
4.4. 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 of
claims and separation agreement, in the form to be provided by the Company.
5. Disputes. 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 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.
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. 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) 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
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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, except as provided in the next sentence. Notwithstanding the
foregoing sentence, if the Executive is party to an agreement with the Company
providing for the payment of benefits in the event employment is terminated
after a Change in Control (a "Change in Control Agreement"), such Change in
Control Agreement shall not be terminated or cancelled by this Agreement and
such Change in Control Agreement shall survive and remain in effect in
accordance with its own terms. In the event the Executive
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actually receives benefits under the Change in Control Agreement, the Executive
shall not also be entitled to receive benefits under this Agreement.
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 ELECTRON CORPORATION
By:________________________________
EXECUTIVE:
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