EXECUTIVE CHANGE IN CONTROL RETENTION AGREEMENT
Exhibit
10.70
THIS AGREEMENT by and between THERMO
XXXXXX SCIENTIFIC INC., a Delaware corporation (the “Company”), and Xxxxxxxxx X. Xxxxxxxxxxx (the “Executive”) is made as of November
9, 2006 (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) 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
theBoard 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
“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 purposes of this Agreement the “Change in Control Date” shall mean
the date immediately prior to the date of such termination of
employment.
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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;
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(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) 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 9,
2008.
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 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.
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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.
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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 annual
bonus paid or payable (including any bonus or portion thereof which has been
earned but deferred) for the most recently completed fiscal year 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)
the amount equal to (a) two
multiplied by (b) the sum of (x) the Executive's highest annual base salary in
any twelve-month period (on a rolling basis) during the five-year period prior
to the Change in Control Date and (y) the Executive's highest annual bonus in
any twelve-month period (on a rolling basis) during the five-year period prior
to the Change in Control 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
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(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)
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)
In the event that the Company
undergoes a “Change in Ownership or Control” (as defined below), and
thereafter, the Executive becomes eligible to receive “Contingent Compensation
Payments” (as defined below) the Company shall, as soon as administratively
feasible after the Executive becomes so eligible determine and notify the
Executive (with reasonable detail regarding the basis for its determinations)
(i) which of the payments or benefits due to the Executive following such Change
in Ownership or Control constitute Contingent Compensation Payments, (ii) the
amount, if any, of the excise tax (the “Excise Tax”) payable pursuant to Section
4999 of the Internal Revenue Code of 1986, as amended (the “Code”), by the
Executive with respect to such Contingent Compensation Payment and (iii) the
amount of the “Gross-Up Payment” (as defined below) due to the Executive with
respect to such Contingent Compensation Payment. 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 he agrees with
the Company’s determination pursuant to the preceding sentence or (B) that
he disagrees with such determination, in
which case he shall indicate which payment and/or benefits should be
characterized as a Contingent Compensation Payment, the amount of the Excise Tax
with respect to such Contingent Compensation Payment and the amount of the
Gross-Up Payment due to the Executive with respect to such Contingent
Compensation Payment. If the Executive states in the Executive
Response that he agrees with the Company’s determination, the Company shall make
the Gross-Up Payment to the Executive within three business days following
delivery to the Company of the Executive Response. If the Executive
states in the Executive Response that he 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
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 Gross-Up Payments as to which
there is no dispute between the Company and the Executive regarding whether they
should be made. The balance of the Gross-Up Payments shall be made
within three business days following the resolution of such
dispute. The amount of any payments to be made to the Executive
following the resolution of such dispute shall be increased by the 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. 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.
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(b)
For purposes of this Section 4.2,
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 supplied 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.
(iii)
“Gross-Up Payment” shall mean an
amount equal to the sum of (i) the amount of the Excise Tax payable with respect
to a Contingent Compensation Payment and (ii) the amount necessary to pay all
additional taxes imposed on (or economically borne by) the Executive (including
the Excise Taxes, state and federal income taxes and all applicable withholding
taxes) attributable to the receipt of such Gross-Up Payment. For
purposes of the preceding sentence, all taxes attributable to the receipt of the
Gross-Up Payment shall be computed assuming the application of the maximum tax
rates provided by law.
4.3
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.
4.4
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.
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4.5 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.
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.
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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 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.
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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. Notwithstanding the
foregoing sentence, if the Executive is party to an agreement with Xxxxxx
Scientific International Inc. providing for the payment of benefits in the event
employment is terminated after a “change in control” (as defined in such other
agreement) (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 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
XXXXXX SCIENTIFIC INC.
/s/ Xxxxxxx X.
Xxxxxxx
Xxxxxxx X.
Xxxxxxx
Senior Vice
President, Human Resources
EXECUTIVE
/s/
Xxxxxxxxx X.
Xxxxxxxxxxx
Xxxxxxxxx X.
Xxxxxxxxxxx
Addendum
The Executive is party to an agreement
with Xxxxxx Scientific International Inc. providing for the payment of benefits
in the event employment is terminated after a “change in control” (as defined in
such other agreement) (a “Change in Control Agreement”). In the event
a change in control occurs, the Executive shall have the right to choose to
receive benefits under either (1) the Change in Control Agreement, or (2) this
Agreement. In the event the Executive actually receives benefits
under the Change in Control Agreement, the Executive shall not also be entitled
to receive benefits under this Agreement. In the event the Executive
actually receives benefits under this Agreement, the Executive shall not also be
entitled to receive benefits under the Change in Control
Agreement.
