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Exhibit 10.5(a)
AMENDMENT TO EMPLOYMENT AGREEMENT
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This Amendment made as of the 5th day of November, 1999, to an Employment
Agreement made as of the 8th day of January, 1998 between EG&G, Inc., now
PerkinElmer, Inc., a Massachusetts corporation (hereinafter called the
"Company"), and Xxxxxxx X. Xxxxx (hereinafter referred to as the "Employee").
WITNESSETH:
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WHEREAS, the Employee and the Company entered into an Employment Agreement
dated as of the 8th day of January, 1998; and
WHEREAS, the Employee and the Company wish to amend said Employment
Agreement; and
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties agree as follows, effective as of the date hereof:
1. Paragraph 6(a)(iv) of the Employment Agreement is hereby amended to
read in its entirety as follows:
Paragraph 5g 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
duties 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
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Amendment to Employment Agreement
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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 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, so that
after the payment of all applicable income taxes and excise taxes, the
Employee will be in the same economic position in which he would have
been if the Excise Tax had not been applicable. The determination of
the Gross-Up Payment shall be made
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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 5g 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."
2. Except as provided above, the Employment Contract shall continue in
full force and effect.
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/ Xxxxxxxx X. Xxxxxxx
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Xxxxxxxx X. Xxxxxxx
SVP, Business Development & General
Counsel
Employee: /s/ Xxxxxxx X. Xxxxx
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Amendment to Employment Agreement
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EMPLOYMENT AGREEMENT
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This Agreement made as of the 8th day of January, 1998, between EG&G, Inc.,
a Massachusetts corporation (hereinafter called the "Company"), and Xxxxxxx
X. Xxxxx of Phoenix, Arizona (hereinafter referred to as the "Employee").
WITNESSETH:
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WHEREAS, the Employee will be 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
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 three years from the date hereof and for
three year terms 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 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.
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 to
all 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
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to the Employee which are related to base salary shall also be reduced
in accordance with any salary reduction.
4. a) During the period of his employment by the Company or for any period
which the Company shall continue to pay the Employee his salary under
this Agreement, whichever shall be the longer, the Employee shall not
directly or indirectly own, manage, control, operate, be employed by,
participate in or be connected with the ownership, management,
operation or control of any business which competes with the Company
or its subsidiaries, provided, however, that the foregoing shall not
apply to ownership of stock in a publicly held corporation which
ownership is disclosed to the Board of Directors nor shall it apply to
any other relationship which is disclosed to and approved by the Board
of Directors.
b) During the period of his employment by the Company and two years
following the Company's last payment of salary to him, the Employee
shall not utilize or disclose to others any proprietary or
confidential information of any type or description which term shall
be construed to mean any information developed or identified by the
Company which is intended to give it an advantage over its competitors
or which could give a competitor an advantage if obtained by it. Such
information includes, but is not limited to, product or process
design, specifications, manufacturing methods, financial or
statistical information about the Company, marketing or sales
information about the Company, sources of supply, lists of customers,
and the Company's plans, strategies, and contemplated actions.
c) 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 letter;
b) Three years after written notice of termination is given by either
party to the other party;
c) At the end of the month in which the Employee shall have attained the
age of sixty-five years;
d) At the death of the Employee;
e) 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) Violation of the Employee's covenants as set forth in Paragraph 4
above; or
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v) Continued failure by the Employee to observe any of the
provisions of this Agreement after being informed of such breach.
f) At termination of the Employee by the Company without cause.
g) Twelve months after written notice of termination 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).
Such notice shall be 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 notice period referred to
above, the Employee is no longer disabled and is able to return to
work, such notice of employment termination shall be rescinded, 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 provided by the Company's Short-Term
Disability Income Plan. During the twelve-month notice period
following 184 days of continuous disability, the Company will make
periodic 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 the employment of the Employee
terminates at the end of such twelve-month notice period, the Company
will make periodic payments to the Employee in an amount equal to the
difference between his base pay and the post-employment benefits
provided to him under the Company's Long-Term Disability Plan. Due to
the fact that 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 two preceding
sentences 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.
h) Notwithstanding the foregoing provisions, in the event of the
termination of the Employee by the Company without cause, the Employee
shall, until the expiration of his then current employment term or
three years from the date of such termination, whichever is later, (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.
6. a) In the event that there is 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 five (5) years less
one day 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 5h shall be amended to read in its entirety as follows:
"Notwithstanding the foregoing provisions, in the event of the
termination of the Employee by the Company without cause, or the
resignation of the Employee for Good Reason, the Employee shall
(i) receive, on the date of his employment termination, a cash
payment in an amount equal to his Full Salary (as defined below)
multiplied by the number of years (including any portions
thereof) remaining until the expiration of his then current
employment term or five years from the date of such termination,
whichever is later (it being agreed that such amount shall not be
discounted based upon the present value of such amount), 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. Payments under
this Paragraph 5h 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) would subject the
Employee to the federal excise tax levied on certain "excess
parachute payments" under Section 4999 of the Code; provided that
if the total of all "parachute payments" to or for the benefit of
the Employee, after reduction for all federal, state and local
taxes (including the tax described in Section 4999 of the Code,
if applicable) with respect to such payments (the "Total
After-Tax Payments"), would be increased by the limitation or
elimination of any payment under this Paragraph 5h, amounts
payable under this Paragraph 5h shall be reduced to the extent,
and only to the extent, necessary to maximize the Total After-Tax
Payments. The determination as to whether and to what extent
payments under this Paragraph 5h are required to be reduced in
accordance with the preceding sentence 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 5h 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
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Company, regardless of the outcome of such endeavor.
b) For purposes of this Agreement, a "Change in Control of the Company"
shall occur or be deemed to have occurred only if (i) any "person", as
such term is used in Section 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") (other than the
Company, any trustee or other fiduciary holding securities under an
employee benefit plan of the Company, or any corporation owned
directly or indirectly by the stockholders of the Company in
substantially the same proportion as their ownership of stock in the
Company), is or becomes the "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of securities
of the Company representing 30% or more of the combined voting power
of the Company's then outstanding securities; (i) during any period
of two consecutive years ending during the term of this Agreement,
individuals who at the beginning of such period constitute the Board
of Directors of the Company, and any new director whose election by
the Board of Directors or nomination for election by the Company's
stockholders was approved by a vote of at least two-thirds of the
directors then still in office who were either directors at the
beginning of the period or whose election or whose nomination for
election was previously so approved, cease for any reason to
constitute a majority of the Board of Directors; (iii) the
stockholders of the Company approve a merger or consolidation of the
Company with any other corporation, other than a merger or
consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity) more than 50% of the combined
voting power of the voting securities of the Company or such surviving
entity outstanding immediately after such merger or consolidation; or
(iv) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition
by the Company of all or substantially all of the Company's assets.
c) For purposes of this Agreement, "Good Reason" shall mean the
occurrence of any of the following events, except as provided in
Paragraph 3d; (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; (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, 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; or (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.
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.
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 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
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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. 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.
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) EG&G, INC.
By: /s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
Senior Vice President & General Counsel
Employee: /s/ Xxxxxxx X. Xxxxx
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