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Exhibit 10.5(b)
EMPLOYMENT AGREEMENT
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This Agreement made as of the 10th day of November, 1999, between
PerkinElmer, Inc., a Massachusetts corporation (hereinafter called
the "Company"), and Xxxxxx X. Xxxxxxxxxx (hereinafter referred to as the
"Employee").
WITNESSETH:
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WHEREAS, the Employee is being employed in a management position with the
Company; and
WHEREAS, the Employee hereby agrees to continue to perform such services
and duties of a management nature as shall be assigned to him; and
WHEREAS, the Employee hereby agrees to the compensation herein provided and
agrees to serve the Company to the best of his ability during the period of this
Agreement.
NOW, THEREFORE, in consideration of the sum of One Dollar, and of the
mutual covenants herein contained, the parties agree as follows:
1. a) Except as hereinafter otherwise provided, the Company agrees to employ
the employee in a management position with the Company, and the
Employee agrees to remain in the employment of the Company in that
capacity for a period of one year from the date hereof and from year
to year thereafter until such time as this Agreement is terminated.
b) The Company will, during each year of the term of this Agreement,
place in nomination before the Board of Directors of the Company the
name of the Employee for election as an Officer of the Company except
when a notice of termination has been given in accordance with
Paragraph 5(b).
2. The Employee agrees that, during the specified period of employment, he
shall, to the best of his ability, perform his duties, and shall devote his
full business time, best efforts, business judgment, skill and knowledge to
the advancement of the Company and its interests and to the discharge of
his duties and responsibilities hereunder. The Employee shall not engage in
any business, profession or occupation which would conflict with the
rendition of the agreed-upon services, either directly or indirectly,
without the prior approval of the Board of Directors, except for personal
investment, charitable and philanthropic activities.
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3. During the period of his employment under this Agreement, the Employee
shall be compensated for his services as follows:
a) Except as otherwise provided in this Agreement, he shall be paid a
salary during the period of this Agreement at a base rate to be
determined by the Company on an annual basis. Except as provided in
Subparagraph 3d, such annual base salary shall under no circumstances
be fixed at a rate below the annual base rate then currently in
effect;
b) He shall be reimbursed for any and all monies expended by him in
connection with his employment for reasonable and necessary expenses
on behalf of the Company in accordance with the policies of the
Company then in effect;
c) He shall be eligible to participate under any and all bonus, benefit,
pension, compensation, and option plans which are, in accordance with
company policy, available to persons in his position (within the
limitation as stipulated by such plans). Such eligibility shall not
automatically entitle him to participate in any such plan;
d) If, because of adverse business conditions or for other reasons, the
Company at any time puts into effect salary reductions applicable at a
single rate to management employees of the Company generally, the
salary payments required to be made under this Agreement to the
Employee during any period in which such general reduction is in
effect may be reduced by the same percentage as is applicable to all
management employees of the Company generally. Any benefits made
available to the Employee which are related to base salary shall also
be reduced in accordance with any salary reduction.
4.
a) So long as the Employee is employed by the Company and for a period of
one year after the termination of expiration of employment, the
Employee will not directly or indirectly: (i) as an individual
proprietor, partner, stockholder, officer, employee, director, joint
venturer, investor, lender, or in any other capacity whatsoever (other
than as the holder of not more than one percent (1%) of the total
outstanding stock of a publicly held company), engage directly or
indirectly in any business or entity, which competes with the business
conducted by the Company or its affiliates in any city or geographic
area in which the Company or its affiliates conduct material
operations at the time of termination of employment under this
Agreement, except as approved in advance by the Board after full and
adequate disclosure; or (ii) recruit, solicit or induct, or attempt to
induce, any
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employee or employees of the Company to terminate their employment
with, to otherwise cease their relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take
away, the business or patronage of any of the clients, customers or
accounts, of the Company that were contacted, solicited or served by
the Employee while employed by the Company.
b) If any restriction set forth in this Section 4 is found by any court
of competent jurisdiction to be unenforceable because it extends for
too long a period of time or over too great a range of activities or
in too broad a geographical areas it shall be interpreted to extend
only over the maximum period of time, range of activities or
geographic area as to which it may be enforceable.
c) The restrictions contained in this Section 4 are necessary for the
protection of the business and goodwill of the Company and are
considered by the Employee to be reasonable for such purpose. The
Employee agrees that any breach of this Section 4 will cause the
Company substantial and irrevocable damage and therefore, in the event
of any such breach, in addition to such other remedies which may be
available, the Company shall have the right to seek specific
performance and injunctive relief.
d) The Employee agrees to sign and be bound by the Employee Patent and
Proprietary Information Utilization Agreement in the form attached
hereto.
e) During the period of his employment by the Company or for any period
during which the Company shall continue to pay the Employee his salary
under this Agreement, whichever shall be longer, the Employee shall
not in any way whatsoever aid or assist any party seeking to cause,
initiate or effect a Change in Control of the Company as defined in
Paragraph 6 without the prior approval of the Board of Directors.
5. Except for the Employee covenants set forth in Paragraph 4 which covenants
shall remain in effect for the periods stated therein, and subject to
Paragraph 6, this Agreement shall terminate upon the happening of any of
the following events and (except as provided herein) all of the Company's
obligations under this Agreement, including, but not limited to, making
payments to the Employee shall cease and terminate:
a) On the effective date set forth in any resignation submitted by the
Employee and accepted by the Company, or if no effective date is
agreed upon, the date of receipt of such resignation letter;
b) One year after written notice of termination is given by the Company
to the
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Employee;
c) At the death of the Employee;
d) At the termination of the Employee for cause. As used in the
Agreement, the term "cause" shall mean:
i) Misappropriating any funds or property of the Company;
ii) Unreasonable refusal to perform the duties assigned to him under
this Agreement;
iii) Conviction of a felony;
iv) Continuous conduct bringing notoriety to the Company and having
an adverse effect on the name or public image of the Company;
v) Violation of the Employee's covenants as set forth in Paragraph 4
above; or
vi) Continued failure by the Employee to observe any of the
provisions of this Agreement after being informed of such breach.
e) Twelve months after written notice of termination (a "Disability
Termination Notice") is given by the Company to the Employee based on
a determination by the Board of Directors that the Employee is
disabled (which, for purposes of this Agreement, shall mean that the
Employee is unable to perform his regular duties, with such
determination to be made by the Board of Directors, in reliance upon
the opinion of the Employee's physician or upon the opinion of one or
more physicians selected by the Company). A Disability Termination
Notice shall be deemed properly delivered if given by the Company to
the Employee on the 184th day of continuous disability of the
Employee. Notwithstanding the foregoing, if, during the twelve-month
period following proper delivery of a Disability Termination Notice as
aforesaid, the Employee is no longer disabled and is able to return to
work, such Disability Termination Notice shall be deemed automatically
rescinded upon the Employee's return to work, and the employment of
the Employee shall continue in accordance with the terms of this
Agreement. During the first 184 days of continuous disability of the
Employee, the Company will make periodic payments to the Employee in
an amount equal to the difference between his base salary and the
benefits received by the Employee under the Company's Short-Term
Disability Income Plan. During the twelve-month period following
proper delivery of a Disability Termination Notice as aforesaid, the
Company will make periodic
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payments to the Employee in an amount equal to the difference between
his base salary and the benefits provided by the Company's Long-Term
Disability Plan. If any payments to the Employee under the Company's
Long-Term Disability Plan are not subject to federal income taxes, the
payments to be made directly by the Company pursuant to the preceding
sentence shall be reduced such that the total amount received by the
Employee (from the Company and from the Long-Term Disability Plan),
after payment of any income taxes, is equal to the amount that the
Employee would have received had he been paid his base salary, after
payment of any income taxes on such base salary.
f) In the event of the termination of the Employee by the Company
pursuant to paragraph 5(b) above, the Employee shall, for a period of
one year from the date this agreement shall terminate, (i) continue to
receive his Full Salary (as defined below), which shall be payable in
accordance with the payment schedule in effect immediately prior to
his employment termination, and (ii) continue to be entitled to
participate in all employee benefit plans and arrangements of the
Company (such as life, health and disability insurance and automobile
arrangements) to the same extent (including coverage of dependents, if
any) and upon the same terms as were in effect immediately prior to
his termination. For purposes of this Agreement, "Full Salary" shall
mean the Employee's annual base salary, plus the amount of any bonus
or incentive payments received by the Employee with respect to the
last full fiscal year of the Company for which all bonus or incentive
payments to be made have been made.
g) In the event of a termination of employment pursuant to paragraph
5(a), (c) or (d), the Company shall pay the Employee his full salary
through the date of termination of employment.
6. a) In the event of a Change in Control of the Company (as defined below),
the provisions of this Agreement shall be amended as follows:
i) Xxxxxxxxx 0x xxxxx xx amended to read in its entirety as follows:
"Except as hereinafter otherwise provided, the Company agrees to
continue to employ the Employee in a management position with the
Company, and the Employee agrees to remain in the employment in
the Company in that capacity, for a period of three (3) years
from the date of the Change in Control. Except as provided in
Paragraph 3d, the Employee's salary as set forth in Paragraph 3a
and his other employee benefits pursuant to the plans described
in Paragraph 3c shall not be decreased during such period."
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ii) Paragraph 5a shall be amended by the addition of the following
provision at the end of such paragraph:
"provided that the Employee agrees not to resign, except for Good
Reason (as defined below), during the one-year period following
the date of the Change in Control."
iii) Paragraph 5b shall be deleted in its entirety.
iv) Paragraph 5f shall be amended to read in its entirety as follows:
"Notwithstanding the foregoing provisions, if, within 36 months
following the occurrence of a Change in Control, the Employee's
employment by the Company is terminated (A) by the Company other
than for Cause, which shall not include any failure to perform
his dudes hereunder after giving notice or termination for Good
Reason, disability or death or (B) by the Employee for Good
Reason, (1) the Company shall pay to the Employee, on the date of
his employment termination, a lump sum cash payment in an amount
equal to the sum of (x) his unpaid base salary through the date
of termination, (y) pro rata portion of prior year's bonus and
(z) his Full Salary (as defined below) multiplied by three and
(2) the Employee shall for 36 months following the occurrence of
the Change in Control be eligible to participate in all employee
benefit plans and arrangements of the Company (such as life,
health and disability insurance and automobile arrangements but
excluding incentive arrangements and grants of stock options) to
the same extent (including coverage of dependents, if any) and
upon the same terms as were in effect immediately prior to his
termination. For purposes of this Agreement, "Full Salary" shall
mean the Employee's annual base salary, plus the amount of any
bonus or incentive payments received by the Employee with respect
to the last full fiscal year of the Company for which all bonus
or incentive payments to be made have been made. Payments under
this Paragraph 5f shall be made without regard to whether the
deductibility of such payments (or any other "parachute
payments," as that term is defined in Section 280G of the
Internal Revenue Code of 1986, as amended (the "Code"), to or for
the benefit of the Employee) would be limited or precluded by
Section 280G and without regard to whether such payments (or any
other "parachute payments" as so defined in said Section 280G)
would subject the Employee to the federal excise tax levied on
certain "excess parachute payments" under Section 4999 of the
Code (the "Excise Tax"). In addition, the Employee shall be
entitled to receive a payment (the "Gross-Up Payment") which
shall be an amount equal to the sum of (a) the Excise Tax imposed
on any parachute payment, whether or not
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payable under this Agreement, and (b) the amount necessary to pay
all additional taxes imposed on (or economically borne by) the
Employee (including the Excise Tax, state and federal income
taxes and all applicable withholding taxes) attributable to the
receipt of the Gross-Up Payment, computed assuming the
application of the maximum tax rates provided by law. The
determination of the Gross-Up Payment shall be made at the
Company's expense by Xxxxxx Xxxxxxxx & Co. or by such other
certified public accounting firm as the Board of Directors of the
Company may designate prior to a Change in Control of the
Company. In the event of any underpayment or overpayment under
this Paragraph 5f as determined by Xxxxxx Xxxxxxxx & Co. (or such
other firm as may have been designated in accordance with the
preceding sentence), the amount of such underpayment or
overpayment shall forthwith be paid to the Employee or refunded
to the Company, as the case may be, with interest at the
applicable federal rate provided for in Section 7872(f)(2) of the
Code."
v) Paragraph 8 shall be amended to read in its entirety as follows:
"The Employee may pursue any lawful remedy he deems necessary or
appropriate for enforcing his rights under this Agreement
following a Change in Control of the Company, and all costs
incurred by the Employee in connection therewith (including
without limitation attorneys' fees) shall be promptly reimbursed
to him by the Company, regardless of the outcome of such
endeavor."
b) For purposes of this Agreement, a "Change in Control of the Company"
means an event or occurrence set forth in any one or more of clauses
(i) through (iv) below (including an event or occurrence that
constitutes a Change in Control under one or such clauses but is
specifically exempted from another such clause):
(i) 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 or the Company if, after
such acquisition, such Person beneficially owns (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) 20% or more of either
(1) the then-outstanding shares of common stock of the Company (the
"Outstanding Company Common Stock") or (2) 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
paragraph (i), the following acquisitions shall not constitute a
Change in Control: (l) any acquisition directly from the Company
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(excluding an acquisition pursuant to the exercise, conversion or
exchange of any security exercisable for, convertible into or
exchangeable for common stock or voting securities of the Company,
unless the Person exercising, converting or exchanging such security
acquired such security directly from the Company or an underwriter or
agent of the Company), (2) any acquisition by the Company, (3) any
acquisition by any employee benefit plan (or related trust) sponsored
or maintained by the Company or any corporation controlled by the
Company, or (4) any acquisition by any corporation pursuant to a
transaction which complies with subclauses (1) and (2) or clause (iii)
of this Section 6b; or
(ii) 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 (1) who was a member of the Board on the date of the execution
of this Agreement or (2) 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 (2) 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
(iii) 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 (a "Business Combination"), unless,
immediately following such Business Combination, each of the following
two conditions is satisfied: (1) 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
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Business Combination, of the Outstanding Company Stock and Outstanding
Company Voting Securities, respectively; and (2) 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, 20% 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 (except to the extent that such ownership
existed prior to the Business Combination); or
(iv) approval by the stockholders of the Company or a
complete liquidation or dissolution of the Company.
c) For purposes of this Agreement, "Good Reason" shall mean the
occurrence of any of the following events: (i) a reduction in the
Employee's base salary as in effect on the date hereof or as the same
may be increased from time to time, except as provided in Paragraph
3d; (ii) a failure by the Company to pay annual cash bonuses to the
Employees in an amount at least equal to the most recent annual cash
bonuses paid to the Employee; (iii) a failure by the Company to
maintain in effect any material compensation or benefit plan in which
the Employee participated immediately prior to the Change in Control,
unless an equitable arrangement has been made with respect to such
plan, or a failure to continue the Employee's participation therein on
a basis not materially less favorable than existed immediately prior
to the Change in Control; (iv) any significant and substantial
diminution in the Employee's position, duties, authorities,
responsibilities or title as in effect immediately prior to the Change
in Control; (v) any requirement by the Company that the location at
which the Employee performs his principal duties be changed to a new
location outside a radius of 25 miles from the Employee's principal
place of employment immediately prior to the Change in Control; (vi)
any requirement by the Company that the Employee travel on an
overnight basis to an extent not substantially consistent with the
Employee's business travel obligations immediately prior to the Change
in Control or (vii) the failure of the Company to obtain the
agreement, in a form reasonably satisfactory to the Employee, from any
successor to the Company to assume and agree to perform this
Agreement. Notwithstanding the foregoing, the resignation shall not be
considered to be for Good Reason if any such circumstances are fully
corrected prior to the date of resignation. The Employee's right to
terminate his employment for Good Reason shall not be affected by his
incapacity due to physical or mental illness.
7. Neither the Employee nor, in the event of his death, his legal
representative, beneficiary or estate, shall have the power to transfer,
assign, mortgage or otherwise encumber in advance
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any of the payments provided for in this Agreement, nor shall any payments
nor assets or funds of the Company be subject to seizure for the payment of
any debts, judgments, liabilities, bankruptcy or other actions.
8. Any controversy relating to this Agreement and not resolved by the Board of
Directors and the Employee shall be settled by arbitration in the City of
Boston, Commonwealth of Massachusetts, pursuant to the rules then obtaining
of the American Arbitration Association, and judgment upon the award may be
entered in any court having jurisdiction, and the Board of Directors and
Employee agree to be bound by the arbitration decision on any such
controversy. Unless otherwise agreed by the parties hereto, arbitration
will be by three arbitrators selected from the panel of the American
Arbitration Association. The full cost of any such arbitration shall be
borne by the Company.
9. Failure to insist upon strict compliance with any of the terms, covenants,
or conditions hereof shall not be deemed a waiver of such term, covenant,
or condition, nor shall any waiver or relinquishment of any right or power
hereunder at any one or more times be deemed a waiver or relinquishment of
such right or power at any other time or times by either party.
10. All notices or other communications hereunder shall be in writing and shall
be deemed to have been duly given when delivered personally to the Employee
or to the General Counsel of the Company or when mailed by registered or
certified mail to the other party (if to the Company, at 00 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000, attention General Counsel; if to the
Employee, at the last known address of the Employee as set forth in the
records of the Company).
11. This Agreement has been executed and delivered and shall be construed in
accordance with the laws of the Commonwealth of Massachusetts. This
Agreement is and shall be binding on the respective legal representatives
or successors of the parties, but shall not be assignable except to a
successor to the Company by virtue of a merger, consolidation or
acquisition of all or substantially all of the assets of the Company. This
Agreement constitutes and embodies the entire understanding and agreement
of the parties and, except as otherwise provided herein, there are no
other agreements or understandings, written or oral, in effect between the
parties hereto relating to the employment of the Employee by the Company.
All previous employment contracts between the Employee and the Company or
any of the Company's present or former subsidiaries or affiliates is hereby
canceled and of no effect.
12. 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 to assume expressly in writing and
to agree to perform its obligations under this
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Agreement in the same manner and 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 prior to the
effectiveness of succession shall be a breach of this Agreement. As used in
this Agreement, "the 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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IN WITNESS WHEREOF, the Company has caused its seal to be hereunto affixed
and these presents to be signed by its proper officers, and the Employee has
hereunto set his hand and seal the day and year first above written.
(SEAL) PERKINELMER, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
Chairman and Chief Executive Officer
Employee: /s/ Xxxxxx X. Xxxxxxxxxx
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Xxxxxx X. Xxxxxxxxxx
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