EMPLOYMENT AGREEMENT
BETWEEN
DENTSPLY INTERNATIONAL INC.
AND
XXXXXXX X. XXXXXXXX
THIS AGREEMENT is entered into as of April 20, 1998, by and between DENTSPLY
INTERNATIONAL INC., a Delaware corporation (the "Company") and XXXXXXX X.
XXXXXXXX, ("Employee").
WHEREAS, it is in the best interest of the Company and Employee that the terms
and conditions of Employee's services be formally set forth:
NOW, THEREFORE, in consideration of the mutual covenants and agreements of the
parties hereto, it is hereby agreed as follows:
1. Services
1.1 The Company employs Employee and Employee accepts such employment
and agrees to serve as Senior Vice President and Chief Financial
Officer, of the Company and, if elected thereto, as an officer or
director of any Affiliate, for the term and on the conditions herein
set forth. Employee shall be responsible for the activities and duties
presently associated with these positions. Employee shall perform such
other services not inconsistent with his position as shall from time to
time be assigned to him by the Board of Directors, the Chief Executive
Officer or the President of the Company. Employee's services shall be
performed at a location suitable for the performance of the Employee's
assigned duties.
1.2 Employee shall at all times devote his full business time and efforts
to the performance of his duties and to promote the best interests of the
Company and its Affiliates.
2. Period of Employment. Employment shall continue from April 20, 1998
and terminate on the happening of any of the following events:
2.1 Death. The date of death of Employee;
2.2 Termination by Employee Without Good Reason. The date specified in a
written notice of termination given to the Company by Employee not less
than 180 days in advance of such specified date, at which date the
Employee's obligation to perform services pursuant to this Agreement shall
cease.
2.3 Termination by Employee with Good Reason. Thirty (30) days following
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the date of a written notice of termination given to the Company by
Employee within thirty (30) days after any one or more of the following
events have occurred:
(a) failure by the Company to maintain the duties, status and
responsibilities of the Employee substantially consistent with
those of Employee's position as of the date of the Agreement, or
(b) a reduction by the Company in Employee's base salary as in
effect as of the date hereof plus all increases therein
subsequent thereto; other than any reduction implemented as
part of a formal austerity program approved by the Board of
Directors of the Company and applicable to all continuing
employees of the Company, provided such reduction does not
reduce Employee's salary by a percentage greater than the
average reduction in the compensation of all employees who
continue as employees of the Company during such austerity
program; or
(c) the failure of the Company to maintain and to continue Employee's
participation in the Company's benefit plans as in effect from
time to time on a basis substantially equivalent to the
participation and benefits of Company employees similarly
situated to the Employee; or
(d) any substantial and uncorrected breach of the Agreement by the
Company.
2.4 Termination by the Company. The date of a written notice of
termination given to Employee by the Company. The Employee's
obligation to perform services pursuant to this Agreement shall cease
as of the date of such notice.
3. Payments by the Company
3.1 During the Period of Employment, the Company shall pay to the
Employee for all services to be performed by Employee hereunder a
salary of not less than $210,000 per annum, or such larger amount
as may from time to time be fixed by the Board of Directors of the
Company or, if applicable, by the Executive Compensation Committee
of the Company, payable in accordance with the Company's normal
pay schedule.
3.2 During the Period of Employment, Employee shall be entitled to
participate in all plans and other benefits made available by the
Company generally to its domestic executive employees, including
(without limitation) benefits under any pension, profit sharing,
employee stock ownership, stock option, bonus, performance stock
appreciation right, management incentive, vacation, disability,
annuity or insurance plans or programs. Any payments to be made
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to Employee under other provisions of this Section 3 shall not be
diminished by any payments made or to be made to Employee or his
designees pursuant to any such plan, nor shall any payments to be
made to Employee or his designees pursuant to any such plan be
diminished by any payment made or to be made to Employee under
other provisions of this Section 3.
3.3 Upon termination of the Period of Employment for whatever reason,
Employee shall be entitled to receive the compensation accrued and
unpaid as of the date of his termination. If Employee at the time
of termination is eligible to participate in any Company incentive
or bonus plan then in effect, Employee shall be entitled to
receive a pro-rata share of such incentive or bonus award based
upon the number of days he is employed during the plan year up to
the date of his termination. Such pro-rata amount shall be
calculated in the usual way and paid at the usual time.
3.4 If the Period of Employment terminates upon the death of Employee,
the Company shall continue payment of his then current salary for
a period of 12 months from the date of death, together with his
pro-rata share of any incentive or bonus payments due for the
period prior to his death, to Employee's designated beneficiary
or, if no beneficiary has been effectively designated, then to
Employee's estate.
3.5 If the Period of Employment is terminated by the Employee under
Section 2.3, or by the Company under Section 2.4, the Company
shall continue to pay compensation and provide benefits to the
employee as provided in this Section 3.5 for a period (the
"Termination Period") beginning on the date of the termination
notice and ending on the earlier of: (i) the second annual
anniversary of the date of such termination notice; or (ii) the
date on which the Employee would attain age 65, as follows:
(a) Compensation shall be paid to the Employee at the rate of
salary being paid to Employee under Section 3.1 immediately
before the termination.
(b) Bonus and incentive compensation shall be paid to the
Employee if approved by the Board of Directors, in
accordance with plans in which the Employee participated at
time of termination, using the same formula and calculations
as if termination had not occurred.
(c) Employee shall receive the benefits that would have been
accrued by the Employee during the Termination Period
under any pension, profit sharing, employee stock
ownership plan ("ESOP") or similar retirement plan or
plans of the Company or any Affiliate in which the
Employee participated immediately before the termination
(or, if not available, in lieu thereof be compensated
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for such benefits), based on service the Employee would
have had during the Termination Period and compensation
(and, if applicable, bonus and incentive compensation)as
determined under Section (a) (and, if applicable,
Subsection (b) above); and
(d) Employee shall receive continued coverage during the
Termination Period under all employee disability,
annuity, insurance or other employee welfare benefit
plans, programs or arrangements of the Company or any
Affiliate in which Employee participated immediately
before the notice of termination, plus all improvements
subsequent thereto (or, if not available, in lieu
thereof be compensated for such coverage).
Except as provided in Section 3.6, payment of compensation under Subsection
3.5(a) above shall be made at the same time as payments of compensation under
Section 3.1, and payments of other benefits under Subsection 3.5(b) and (c)
shall be paid at the same time and to the same person as compensation or
benefits would have been paid under the plan, program or arrangement to which
they relate (after taking into account any election made by the Employee with
respect to payments under such plan, program or arrangement).
3.6 If at any time after a Change of Control the Period of Employment
is terminated by the Employee with good reason under Section 2.3,
or the Company terminates or gives written notice of termination
of the Period of Employment to the Employee (whether or not in
accordance with Section 2.4), then in lieu of the periodic payment
of the amounts specified in Subsections 3.5(a), (b) and (c)
(except as may be otherwise prohibited by law or by said plans),
the Company, at the written election of Employee, shall pay to
Employee within five (5) business days of such termination or
notice of termination the present value of the amounts specified
in Subsections 3.5(a), (b) and (c), discounted at the greatest
rate of interest then payable by Mellon Bank (or its successor) on
any federally insured savings account into which Employee could
deposit such amount and make immediate withdrawals therefrom
without penalty, and shall provide for the remainder of the
Termination Period, if any, the benefit coverage required by
Subsection 3.5(d). Employee shall not be required to mitigate
damages payable under this Section 3.6.
3.7 In no event will the Company be obligated to continue Employee's
compensation and other benefits under the Agreement beyond Employee's
sixty-fifth (65th) birthday or if Employee's employment is terminated
because of gross negligence or significant willful misconduct (e.g.
conviction of misappropriation of corporate assets or serious criminal
offense).
4. Non-Competition Agreement. During the Period of Employment and
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for a period of five (5) years after the termination thereof,
Employee shall not, without the written consent of the Company,
directly or indirectly be employed or retained by, or render any
services for, or be financially interested in, any firm or
corporation engaged in any business which is competitive with any
business in which the Company or any of its Affiliates may have
been engaged during the Period of Employment. The foregoing
restriction shall not apply to the purchase by Employee of not to
exceed 5% of the outstanding shares of capital stock of any
corporation whose securities are listed on any national
securities exchange.
5. Loyalty Commitments. During and after the Period of Employment:
(a) Employee shall not disclose any confidential business
information about the affairs of the Company or any of its Affiliates;
and (b) Employee shall not, without the prior written consent of the
Company, induce or attempt to induce any employee or agency
representative of the Company or any Affiliate to leave the employment
or representation of the Company or such Affiliate.
6. Separability of Provisions. The terms of this Agreement shall be
considered to be separable from each other, and in the event any shall
be found to be invalid, it shall not affect the validity of the
remaining terms.
7. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of (a) the Company and its successors and assigns, and
(b) Employee, his personal representatives, heirs and legatees.
8. Entire Agreement. This Agreement constitutes the entire agreement
between the parties and supersedes and revokes all prior oral or
written understandings between the parties relating to Employee's
employment except with respect to matters addressed in the offer
letter dated February 11, 1998 between the parties to the extent
such matters are not covered in this Agreement. The Agreement may
not be changed orally but only by a written document signed by the
party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
9. Definitions. The following terms herein shall (unless otherwise
expressly provided) have the following respective meanings:
9.1 "Affiliate" when used with reference to the Company means any
corporations, joint ventures or other business enterprises directly or
indirectly controlling, controlled by, or under common control with
the Company. For purposes of this definition, "control" means
ownership or power to vote 50% or more of the voting stock, venture
interests or other comparable participation in such business
enterprises.
9.2 "Period of Employment" means the period commencing on the date
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hereof and terminating pursuant to Section 2.
9.3 "Beneficiary" means the person or persons designated in writing by
Employee to Company.
9.4 "Change of Control" means any event by which (i) an Acquiring
Person has become such, or (ii) Continuing Directors cease to comprise
a majority of the members of the Board of Directors of the Company or
the applicable Parent of the Company (a "Board").
For purposes of this definition:
(a) An "Acquiring Person" means any person or group (as
defined in Section 13(d)(3) of the Securities Exchange
Act of 1934, as amended, and the rules and regulations
promulgated thereunder as in effect on the date of this
Agreement (the "Exchange Act") who or which, together
with all affiliates and associates (as defined in Rule
12B-2 under the Exchange Act) becomes, by way of any
transaction, the beneficial owner of shares of the
Company, or such Parent, having 20% or more of the total
number of votes that may be cause for the election of
directors of the Company or such Parent; and
(b) "Continuing Director" means any member of a Board, while
such person is a member of such Board who is not an
Acquiring Person, or an affiliate or associate of an
Acquiring Person or a representative of an Acquiring
Person or of any such affiliate or associate and who (i)
was a member of such Board prior to the date of this
Agreement, or (ii) subsequently becomes a member of such
Board and whose nomination for election or election to
such Board is recommended or approved by resolution of a
majority of the Continuing Directors or who is included
as a nominee in a proxy statement of the Company or the
applicable Parent distributed when a majority of such
Board consists of Continuing Directors.
9.5 "Parent" means any Affiliate directly or indirectly controlling
(within the meaning of Section 9.1) the Company.
10. Notices. Where there is provision herein for the delivery of written
notice to either of the parties, such notice shall be deemed to have
been delivered for the purposes of this Agreement when delivered in
person or placed in a sealed, postpaid envelope addressed to such
party and mailed by registered mail, return receipt requested to the
address set forth below or the most recent address as may be on the
Company records for the Employee:
Xxxxxxx X. Xxxxxxxx 000 Xxxx Xxxx Xxxx
Xxxxxxx, XX 00000
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DENTSPLY International Inc. 000 Xxxx Xxxxxxx Xxxxxx
Xxxx, XX 00000
11. Arbitration. Any controversy arising from or related to the
Agreement shall be determined by arbitration in the City of
Philadelphia, Pennsylvania, in accordance with the rules of the
American Arbitration Association, and judgment upon any such
determination or award may be entered in any court having
jurisdiction. In the event of any arbitration between Employee
and Company related to the Agreement, if employee shall be the
successful party, Company will indemnify and reimburse Employee
against any reasonable legal fees and expenses incurred in such
arbitration.
12. Applicable Law. The Agreement shall be governed by and construed
in accordance with the laws of the Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, the parties have executed the Agreement on the day
and year first above written.
Attest: DENTSPLY INTERNATIONAL INC.
By:
------------------------------ -----------------------------------------
Secretary Vice-Chairman and Chief Executive Officer
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XXXXXXX X. XXXXXXXX
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