Exhibit 10.2
October 30, 2001
Xx. Xxxxx Xxxxxx
000 Xxxxxxxxxxx Xxxxx
Xxxx, Xxxxxxxxxxxx 00000
Dear Colin:
This letter confirms our arrangement regarding your resignation as an
officer and director of Thermo Electron Corporation and any of its subsidiaries
and affiliates (collectively, the "Company").
The following is our agreement related to your resignation from the
Company:
1. Termination of Employment: Your employment with the Company will terminate
effective as of July 1, 2002. You will be placed on inactive status as of
November 1, 2001 and paid your regular salary through July 1, 2002. Should
you begin work at another employer as an "employee" as defined by the
United States Internal Revenue Service, including, but not limited to,
receiving W-2 type wages, before July 2, 2002, the employment termination
date will be accelerated to the day before your new employment starts. The
date you cease being an employee of the Company in accordance with the
previous two sentences is referred to herein as the "Employment Termination
Date." Until the Employment Termination Date you will continue to report to
Xxxxxx Xxxxxxx, and you agree to make yourself available to undertake
special projects and assignments determined by Xx. Xxxxxxx, it being
understood that such special projects and assignments shall not exceed 20
hours per week. Notwithstanding the provisions set forth in this paragraph,
you will be permitted to act as a consultant on an independent contractor
basis so long as the provisions set forth in Paragraph 15 and the previous
sentence are not violated.
2. 2001 Bonus: For fiscal year 2001 you shall be paid a bonus of $135,000.
Your bonus shall be payable at the same time in 2002 as bonuses to other
senior executives are paid. You will not be eligible for a bonus for fiscal
year 2002.
3. Severance Payment: You will be entitled to receive a lump sum severance
payment of $225,000 payable within 10 days after the Employment Termination
Date.
Xx. Xxxxx Xxxxxx
October 30, 2001
Page 2
4. Accrued Vacation: You will be paid an amount equal to eight weeks of
vacation. Payment will be made in a lump sum within ten days after the
Employment Termination Date. You will not continue to earn vacation or
other paid time off after the Employment Termination Date.
5. Full Payment: You agree that all payments provided to you under paragraphs
1, 2 and 4 of this Agreement are in complete satisfaction of any and all
compensation due to you from the Company through the Employment Termination
Date. You agree to reimburse the Company for all personal expenses due and
owing to the Company as of the Employment Termination Date.
6. Employee Benefit Programs: Your participation in all employee benefit
programs of the Company will cease effective as of the Employment
Termination Date in accordance with the terms of those programs. You will
have the option to elect to continue your health care coverage under COBRA
beginning on the day after the Employment Termination Date for a period of
up to 18 months, in which case the Company shall pay the full monthly
premium cost of your coverage under the applicable health care plan for 18
months. Detailed information will be provided to you under separate cover.
You will also have the option, at your sole expense, of converting your
basic (not supplemental) life insurance coverage to an individual plan
through Prudential. If interested, please let us know at least 30 days
before the Employment Termination Date and conversion information will be
furnished to you. A conversion option is not available for disability
coverage.
7. Thermo Electron Choice Plan: Your active participation in the Thermo
Electron Choice Plan shall end on the Employment Termination Date.
Information will be provided to you regarding various election options
available to you regarding your account.
8. Stock Options: No further vesting of your stock options in the Company and
no further lapsing of the Company's repurchase rights will occur after the
Employment Termination Date. If you do not exercise your vested options by
the earliest of (i) the date of the original expiration date of the
options, (ii) the date that is three months after the Employment
Termination Date (in the case of options identified with an asterisk next
to the grant ID number on the attached schedule) or (iii) the second
anniversary of the Employment Termination Date (in the case of all other
options identified on the attached schedule), your options will expire and
be canceled, and you will have no further rights with respect to your
options.
9. Taxes: All payments by the Company under this Agreement will be reduced by
all taxes and other amounts that the Company is required to withhold under
applicable law and all other deductions authorized by you.
10. Company Property: You will return to the Company any and all documents,
materials and information related to the Company, or its subsidiaries,
Xx. Xxxxx Xxxxxx
October 30, 2001
Page 3
affiliates or businesses, and all other property of the Company, including,
without limitation, equipment and files in your possession or control, on
or before the Employment Termination Date. Further, you agree that on and
after the date hereof you will not for any purpose attempt to access or use
any Company computer or computer network or system, including without
limitation its electronic mail system.
11. Restricted Stock: Your 9,547 restricted shares of the Company's common
stock shall vest on January 2, 2002.
12. Outplacement Services: You will be entitled to utilize until March 1, 2003,
at no cost to you, the services of an outplacement firm in the Pittsburgh,
Pennsylvania area selected by the Company, up to a maximum charge of
$20,000 for such services.
13. Release: In exchange for the consideration described in paragraph 3 hereof,
you hereby irrevocably and unconditionally waive, release, acquit and
forever discharge the Company and each of its respective current, former or
future officers, directors, employees, agents, representatives,
shareholders and legal predecessors and successors from any and all claims,
liabilities, damages, actions, causes of action and suits, whether known or
unknown, which you now have, own or hold, or claim to have, own or hold, or
which at any time heretofore, had owned or held, or claimed to have owned
or held, or which you at any time hereafter may have, own or hold, or claim
to have owned or held against them, based upon, arising out of or in
connection with any circumstance, matter or state of fact up to the date of
this agreement, including without limitation those based upon or arising
out of the termination of your employment and other relationships with the
Company, your service as an officer or director of the Company, your
compensation while employed by the Company, your stock options or any terms
thereof or relating thereto and any of the Company's policies, procedures
or requirements. This release includes, but is not limited to, any claims
for breach of contract, wrongful termination, or age, sex, race, disability
or other discrimination under the Civil Rights Act of 1964, as amended, the
Age Discrimination in Employment Act of 1967 or other federal, state or
local laws prohibiting such discrimination or under any other federal,
state or local employment laws.
YOU UNDERSTAND AND ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED TO SEEK THE
ADVICE OF AN ATTORNEY, IF YOU SO CHOOSE, PRIOR TO SIGNING THIS RELEASE AND
TO THE EXTENT DESCRIBED HEREIN YOU ARE GIVING UP ANY LEGAL CLAIMS YOU HAVE
AGAINST THE COMPANY AND EACH OF ITS RESPECTIVE CURRENT, FORMER OR FUTURE
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, SHAREHOLDERS,
LEGAL PREDECESSORS AND SUCCESSORS BY SIGNING THIS RELEASE. YOU FURTHER
UNDERSTAND THAT YOU MAY HAVE 21 DAYS TO CONSIDER THIS AGREEMENT, THAT YOU
MAY REVOKE IT AT ANY TIME DURING THE SEVEN DAYS AFTER YOU SIGN IT, AND THAT
Xx. Xxxxx Xxxxxx
October 30, 2001
Page 4
IT WILL NOT BECOME EFFECTIVE UNTIL THE 7-DAY REVOCATION PERIOD HAS PASSED
WITHOUT REVOCATION. YOU FULLY UNDERSTAND YOUR RIGHT TO TAKE 21 DAYS TO
CONSIDER SIGNING THIS RELEASE AND, AFTER HAVING SUFFICIENT TIME TO CONSIDER
YOUR OPTIONS, YOU HEREBY WAIVE YOUR RIGHT TO TAKE THE FULL 21-DAY PERIOD.
YOU ACKNOWLEDGE THAT YOU ARE SIGNING THIS RELEASE KNOWINGLY, WILLINGLY AND
VOLUNTARILY IN EXCHANGE FOR THE CONSIDERATION DESCRIBED IN PARAGRAPH 3
HEREOF.
14. Restriction on Purchase or Sale of Common Stock: You understand that you
will no longer be a "Reporting Person," for purposes of Section 16 of the
Securities Exchange Act of 1934 and the rules and regulations promulgated
thereunder. However, you understand that for a period of six months
following the date hereof you are required to report certain transactions
pursuant to such rules and regulations on Forms 4 and 5.
15. Non-Compete. Until November 1, 2002 (the "Non-Compete Period"), you shall
not, either directly or indirectly as a stockholder, investor, partner,
director, officer, employee or consultant, compete or engage in any
business that competes, anywhere in the world, with a business in the Life
Sciences sector of the Company; provided, however, that those businesses
that compete with a Life Sciences business shall be excluded from this
non-competition restriction if the Life Science business has annual
revenues of less than 5 million dollars. Notwithstanding the foregoing, you
may own, solely as an investor, up to 1% of the common stock of any
publicly-traded competitor. You agree that the duration and geographic
scope of this non-competition provision are reasonable. In the event that
any court determines that the duration or geographic scope, or both, are
unreasonable and that such provision is to that extent unenforceable, the
parties agree that the provision shall remain in full force and effect for
the greatest time period and in the greatest geographic area that would not
render it unenforceable. The parties intend that this non-competition
provision shall be deemed a series of separate covenants, one for each and
every county of each and every state of the U.S. and each and every
political subdivision of each and every country outside of the U.S.
Further, during the Non-Compete Period, you hereby agree you shall not,
either directly or indirectly as a stockholder, investor, partner,
director, officer, employee or otherwise, attempt to induce any employee of
the Company to terminate his or her employment with the Company, or hire or
caused to be hired any such employee so induced, or attempt to induce any
customer or supplier of the Company to terminate its relationship with the
Company.
16. Resignation. You hereby resign effective as of November 1, 2001 all of
your positions as an officer and director of the Company. Notwithstanding
the foregoing, you shall remain an employee until the Employment
Termination Date in accordance with the terms of paragraph 1 above and
shall be entitled to continue to participate until the Employment
Termination Date in the Company's automobile program for officers and its
executive supplemental medical reimbursement program.
Xx. Xxxxx Xxxxxx
October 30, 2001
Page 5
17. Non-Disparagement: You agree that you will continue to support and promote
the interests of the Company and that you will not criticize, disparage,
defame or in any way comment negatively to anyone about the Company or any
of the people or organizations connected with them, or do or say anything
that could disrupt the good morale of the employees of the Company or
otherwise harm the interests or reputation of the Company and any of the
organizations or people connected with them. The Company agrees that it
will cause the officers of the Company not to criticize, disparage or
defame you or otherwise do or say anything that xxxxx your reputation and
that the Company shall be solely responsible for any breach of the
provisions in this paragraph 17 by any such officers. Nothing in this
provision shall prevent the parties from (i) complying with compulsory
legal process or otherwise making disclosures in connection with litigation
or administrative proceedings, (ii) making such disclosures as are
necessary to obtain legal advice, (iii) making disclosures as are required
by federal, state or local regulatory authorities, and (iv) making
disclosures which by law are required or cannot be prohibited.
18. Cooperation: You agree to reasonably cooperate with the Company with
respect to all matters arising during or related to your employment,
including but not limited to cooperation in connection with any
governmental investigation, litigation or regulatory or other proceeding
which may have arisen or which may arise following the signing of this
Agreement.
19. Waiver of Jury Trial: Each of the parties hereby expressly, knowingly and
voluntarily waives all benefit and advantage of any right to a trial by
jury, and each agrees that he or it will not at any time insist upon, or
plead or in any manner whatsoever claim or take the benefit or advantage
of, a trial by jury in any action arising in connection with this
Agreement.
20. Company Information and Invention Agreement. You agree to comply with the
terms of a Thermo Electron Company Information and Invention Agreement, a
copy of which is attached hereto. Such agreement supersedes any prior
agreement covering the same subject matter, which you may have signed with
the Company previously.
21. Entire Agreement: This letter contains the entire Agreement between you and
the Company and supersedes all prior and contemporaneous agreements,
communications and understandings, whether written or oral, relating to the
subject matter of this letter, including your Executive Retention Agreement
(which is hereby canceled), except that your Indemnification Agreement
entered into with the Company on January 18, 2001, a copy of which is
attached hereto, and the Thermo Electron Company Information and Invention
Agreement shall survive in accordance with their terms. This Agreement will
be governed by and interpreted in accordance with the laws of the
Commonwealth of Massachusetts without regard to choice of law provisions.
Xx. Xxxxx Xxxxxx
October 30, 2001
Page 6
22. Severability: If one or more provisions of this Agreement are held to be
unenforceable under applicable law, such provision shall be excluded from
this Agreement and replaced with a provision which is enforceable and comes
closest to the intent of the parties underlying the unenforceable
provision.
23. Relief: In the event of breach of the provisions of this Agreement by any
party, in addition to any other rights that the other parties may have
under law or in equity, each party shall have the right to specific
performance and injunctive relief, it being acknowledged and agreed that
money damages will not provide an adequate remedy. In the event litigation
is brought with respect to this Agreement, the prevailing party shall be
entitled to recover from the losing party his or its reasonable attorney's
fees and expenses. 24. Successors and Assigns: This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, including corporations with which, or
into which, the Company may be merged or which may succeed to its
respective assets or business; provided, however, that your obligations are
personal and may not be assigned.
25. Amendment: This Agreement may be amended or modified only by a written
instrument executed by you and the Company.
26. Voluntary Agreement: In signing this Agreement, you give the Company
assurance that you have signed it voluntarily and with a full understanding
of its terms and that you have had sufficient opportunity to consider this
Agreement and to consult with anyone of your choosing before signing it. If
the terms of this Agreement are acceptable to you, please sign and return
it to the undersigned. At the time you sign and return this Agreement, it
will take effect as a legally binding agreement between you and the Company
on the basis set forth above.
Date Received by Addressee: November 1, 2001
THERMO ELECTRON CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Title: Vice President, Human Resources
Accepted and Agreed to:
/s/ Xxxxx Xxxxxx
------------------------
COMPANY INFORMATION AND INVENTION AGREEMENT
In consideration and as a condition of my employment, or if now employed,
the continuation of my employment by Thermo Electron Corporation or a subsidiary
thereof (hereinafter collectively called the "Company") and the compensation
paid therefor:
1. I agree not to disclose to others or use for my own benefit during my
employment by the Company or thereafter any trade secrets or Company
private information pertaining to any of the actual or anticipated business
of the Company or any of its customers, consultants, or licensees acquired
by me during the period of my employment, except to such an extent as may
be necessary in the ordinary course of performing my particular duties as
an employee of the Company.
2. I agree not to disclose to the Company, or to induce the Company to use,
any confidential information or material belonging to others.
3. I understand that the making of inventions, improvements, and discoveries
is one of the incidents of my employment, or that if not I may nonetheless
make inventions while employed by the Company, and I agree to assign to
Thermo Electron Corporation or its nominee my entire right, title, and
interest in any invention, idea, device, or process, whether patentable or
not, hereafter made or conceived by me solely or jointly with others during
the period of my employment by the Company in an executive, managerial,
planning, technical, research, engineering, or other capacity and which
relates in any manner to the business of the Company, or relates to its
actual or planned research or development, or is suggested or results from
any task assigned to me or work performed by me for or in behalf of the
Company, except any invention or idea which cannot be assigned by the
Company because of a prior agreement with __________None____________
effective until __________________________ (give name and date or write
"none").
4. I agree, in connection with any invention, idea, device, or process covered
by paragraph 3:
a) To disclose it promptly in writing to the proper officers or attorney of
the Company.
b) To execute promptly, on request, patent applications and assignments
thereof to Thermo Electron or its nominees and to assist the Company in any
reasonable manner to enable it to secure a patent therefor in the United
States and any foreign countries, all without further compensation except
as provided herein.
5. I further agree that all papers and records of every kind relating to any
invention or improvement included with the terms of the Agreement, which
shall at any time come into my possession shall be the sole and exclusive
property of the Company and shall be surrendered to the Company or upon
request at any other time either during or after the termination of such
employment.
6. I further agree that the obligations and undertakings stated above in
paragraph 4b shall continue beyond the termination of my employment by the
Company, but if I am called upon to render such assistance after the
termination of my employment, then I shall be entitled to a fair and
reasonable per diem in addition to reimbursement of any expenses incurred
at the request of the Company.
7. I agree to identify in an attachment to this Agreement all inventions or
ideas related to the business or actual or planned research or development
of the Company in which I have right, title, or interest, and which were
conceived either wholly or in part by me prior to my employment by the
Company but neither published nor filed in the U.S. Patent and Trademark
Office.
8. I understand that this Agreement supersedes any agreement previously
executed by me relating to the disclosure, assignment and patenting of
inventions, improvements, and discoveries made during my employment by the
Company. This Agreement shall inure to the benefits of the successors and
assigns of the Company and shall be binding upon my heirs, assigns,
administrators, and representatives.
9. I understand that this Agreement does not apply to an invention which
qualifies fully under the provisions of any statute or regulation which
renders unenforceable the required assignment or transfer of certain
inventions made by an employee such as, but not limited to, Section 2870 of
the California Labor Code.
/s/ Xxxxx Xxxxxx
-----------------------------------
Employee
/s/ X. X. Xxxxxx November 1, 2001
----------------------- -----------------------------------
Witness Date
THERMO ELECTRON CORPORATION
/s/ Xxxx Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------- -------------------------------
Witness
October 31, 2001
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Date
