Exhibit 10.3
February 2, 1999
Xx. Xxx Xxxxxxxx
00 Xxxxx Xxxxxxx
Xxxxxx, Xxxxxxxxxxx 00000
Dear Hal:
This letter confirms our arrangement regarding your
resignation as President and Chief Executive Officer of Trex
Medical Corporation (the "Company") and as an officer and
director of any of its subsidiaries or affiliates, and your
subsequent appointment as a consultant to the Company.
The following is our agreement related to your resignation
from the Company:
1. Termination of Employment: Your employment with the
Company will be terminated effective as of December 31, 1998
(the "Employment Termination Date"). You will be paid your
regular salary through the Employment Termination Date.
2. 1998 Bonus: You will be paid a final bonus of $100,000
for the 1998 calendar year payable at such time as such
bonuses are normally paid.
3. Accrued Vacation: You will be paid one week accrued but
unused vacation time which you had earned through the
Employment Termination Date. You will not continue to earn
vacation or other paid time off after the Employment
Termination Date.
4. Full Payment: You agree that all payments provided to
you under paragraphs 1, 2 and 3 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.
5. Employee Benefit Programs: Your participation in all
employee benefit programs of the Company shall cease 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
January 1, 1999 for a period ending 18 months after the
Employment Termination Date, provided you pay the full
monthly premium cost of your coverage under the applicable
health care plans. Detailed information will be provided to
you under separate cover. You will also have the option, at
your sole expense, of converting your basic life insurance
coverage to an individual plan through Prudential. If
interested, please let us know by February 15, 1999 and
conversion information will be furnished to you. A
conversion option is not available for long term disability
coverage.
6. Money Match Plus Plan: Your active participation in
the Money Match Plus Plan shall end on the Employment
Termination Date. Information will be provided to you
regarding various election options available to you
regarding your account.
7. Stock Options: So long as you remain a director of
the Company, you shall be entitled to retain your stock
options in the Company and any of its subsidiaries and
affiliates, subject to the terms and conditions of such
options. Once you cease to be a director of the Company,
your stock options will no longer vest and no further
lapsing of the Company's and its subsidiaries' and
affiliates repurchase rights will occur. You will then
have 90 days to exercise your vested options. If you do not
exercise your vested options by the specified deadline, your
options will be canceled, and you will have no further
rights with respect to your options.
8. 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.
9. Consulting Services: You agree to provide, and make
yourself available to provide, consulting services to the
Company, on a per diem basis at such time or times as is
mutually agreeable by the parties. The term of this
consulting arrangement shall commence on January 1, 1999 and
terminate on December 31, 2000. You agree to use your best
efforts, business judgment and skill in rendering consulting
services hereunder. This Agreement shall not prohibit you
from engaging in other business activities, except as
otherwise provided under paragraph 14 hereof, during the
consulting period provided that such other activities do not
prevent you from performing your obligations under this
consulting arrangement. It is expressly agreed that you are
acting as an independent contractor in performing your
services hereunder and not as an employee or agent of the
Company and as such will not be treated as an employee for
any reason whatsoever, including but not limited to federal
or state tax purposes. In the event of your death,
disability or other incapacity resulting in your inability
to perform your consulting duties hereunder all compensation
due and owing under paragraph 10 hereof shall cease.
Further, the Company may terminate your consulting
arrangement for Cause and, in such event, in addition to any
other remedies it may have, the Company shall have no
obligation to make any further payments to you under
paragraph 10 hereof. "Cause" shall mean your (a) conviction
of a felony, or a misdemeanor involving material fraud or
material dishonesty, (b) material fraud or material
dishonesty in the course of your employment with the Company
or during the course of your consulting hereunder, and (c)
misconduct that is materially injurious to the Company or
its subsidiaries and affiliates.
10. Additional Compensation: In consideration for your
release pursuant to paragraph 12 hereof and for your
agreement to provide consulting services, the Company shall
pay you at the rate of $225,000 per year during the term of
the consulting arrangement, payable monthly in arrears.
However, you will not be entitled to receive any cash
compensation for your service as a director of the Company.
11. Company Property: You will return to the Company any
and all documents, materials and information related to the
Company, or its subsidiaries, affiliates or businesses, and
all other property of the Company, including, without
limitation, credit cards, phone and other charge cards, car
phones, fax machines and other equipment, files and personal
computers in your possession or control, on or before
February 10, 1999, provided, however, you may purchase the
Company's car phones and fax machines in your possession for
a purchase price equal to their book value. Further, you
agree that on and after February 2, 1999 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.
12. Release: In exchange for the consideration described
in paragraph 10 hereof, you hereby release and discharge
Thermo Electron Corporation and its subsidiaries and
affiliates, including the Company, and each of their
respective current, former or future officers, directors,
employees, agents, representatives and legal predecessors
and successors from all claims, liabilities and causes of
action, whether known or unknown, which you have, may have,
or claim to have against any of them, including without
limitation those based upon or arising out of your
employment with the Company, the termination of your
employment and other relationships with the Company, your
service as an officer, director or shareholder of Thermo
Electron Corporation or any of its subsidiaries or
affiliates, including the Company, and any of such
companies' policies, procedures or requirements. You hereby
agree not to file any lawsuit to assert such claims, which
include, but are 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 Connecticut Fair Employment Practices Act,
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 THAT YOU HAVE BEEN ADVISED TO SEEK THE ADVICE
OF AN ATTORNEY, IF YOU SO CHOOSE, PRIOR TO SIGNING THIS
RELEASE AND THAT TO THE EXTENT DESCRIBED HEREIN YOU ARE
GIVING UP ANY LEGAL CLAIMS YOU HAVE AGAINST THERMO ELECTRON
CORPORATION AND ITS SUBSIDIARIES AND AFFILIATES, INCLUDING
THE COMPANY, AND EACH OF THEIR RESPECTIVE CURRENT, FORMER
OR FUTURE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS,
REPRESENTATIVES, 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 IT WILL NOT BECOME EFFECTIVE UNTIL THE 7-DAY REVOCATION
PERIOD HAS PASSED. YOU FULLY UNDERSTAND YOUR RIGHTS 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 10 HEREIN.
13. Restriction on Purchase or Sale of Common Stock: You
understand that you will continue to be a "Reporting
Person," for purposes of Section 16 of the Securities
Exchange Act of 1934 and the rules and regulations
promulgated thereunder, and you will remain subject to
xxxxxxx xxxxxxx regulations under the federal securities
laws for as long as you remain a director of the Company and
for a period of six months following the termination of such
position and that you are required to preclear transactions
in the Company and its affiliates' securities with the
Company's Stock Transaction Coordinator, Xx. Xxxxxxx X.
Northern. You are also urged to contact the Corporate
Secretary of the Company, Xx. Xxxxxx X. Xxxxxxx, should you
have any questions regarding compliance with the xxxxxxx
xxxxxxx regulations under the federal securities laws.
14. Non-Compete. For the period beginning on the
Employment Termination Date and ending on December 31, 2000
(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 the
business of the Company or any of its direct or indirect
subsidiaries or any affiliates of the Company in which the
Company has a direct or indirect equity interest, it being
understood that providing consulting services to, or serving
as a director of, a corporation that develops, manufactures
or sells products that are merely complimentary to, but are
not substitutes or replacements for, the Company's products
shall not be deemed competition for purposes of this
paragraph 14. 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.
where this provision is intended to be effective. 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,
solicit or attempt to induce any employee of the Company or
any of its subsidiaries or affiliates to terminate his or
her employment with such entity, or attempt to induce any
customer or supplier of the Company or any of its
subsidiaries or affiliates to terminate its relationship
with such entity.
15. Resignation. You hereby resign effective as of
December 13, 1998 your positions as President and Chief
Executive Officer of the Company and effective as of January
1, 1999 all of your other positions as an officer and
director of all of the Company's subsidiaries and affiliates.
16. Non-Disparagement: You agree that you will continue to
support and promote the interests of Thermo Electron
Corporation and its subsidiaries and affiliates, including
the Company, and that you will not criticize, disparage,
defame or in any way comment negatively to anyone about
Thermo Electron Corporation or its subsidiaries or
affiliates, including 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
Thermo Electron Corporation and its subsidiaries and
affiliates, including the Company, and any of the
organizations or people connected with them. Nothing in this
provision shall prevent you 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.
17. 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.
18. 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.
19. Entire Agreement: This letter contains the entire
Agreement between you and the Company and replaces all prior
and contemporaneous agreements, communications and
understandings, whether written or oral, with respect to
your resignation, and employment and its termination and
all related matters other than your Information and
Invention Agreement with the Company. 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.
20. 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.
21. 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.
22. Successors and Assigns: No party hereto may
assign any of its rights under this Agreement without the
prior written consent of the other party. This Agreement is
binding on each of the parties' permitted assigns,
successors in interest, heirs, administrators and executors.
23. 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: February 2, 1999
TREX MEDICAL CORPORATION
By: /s/ Xxxx X. Xxxxxxxxx
Title: Chairman
Accepted and Agreed to:
/s/ Xxx Xxxxxxxx
