EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is entered into by and
between ▇▇▇▇▇▇ Scientific International, Inc., a Delaware corporation (the
"Company") and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (the "Executive"), dated as of the 31st day of
December 2001.
1. TERM OF THE AGREEMENT. This Agreement shall commence as of
December 31,2001(the "Effective Date") and end on December 31, 2006 (the
"Initial Employment Period" and, together with any extensions thereof pursuant
to the next sentence, the "Employment Period"). As of the last day of the
Initial Employment Period and each anniversary thereof, unless either party
hereto shall have given the other party 60 days' advance notice that there shall
be no further extensions pursuant to this sentence (such notices, a "Notice of
Non-Extension"), the Employment Period shall be extended by an additional year.
2. POSITION AND DUTIES. During the Employment Period, the
Executive's position (including status, offices, titles and reporting
requirements), authority, duties and responsibilities shall be at least
commensurate in all material respects with those held, exercised and assigned to
the Executive on the day immediately preceding the Effective Date. The
Executive's services shall be performed at the location where the Executive was
employed immediately preceding the Effective Date or any office or location less
than 25 miles from such location.
During the Employment Period, and excluding any periods of vacation and sick
leave to which the Executive is entitled, the Executive agrees to devote
reasonable attention and time during normal business hours to the business and
affairs of the Company and, to the extent necessary to discharge the
responsibilities assigned to the Executive hereunder, to use the Executive's
reasonable best efforts to perform faithfully and efficiently such
responsibilities. During the Employment Period it shall not be a violation of
this Agreement for the Executive to (A) serve on corporate, civic, charitable,
governmental or religious boards or committees, (B) to manage or participate in
activities of General Chemical Group, GenTek Inc., and ▇▇▇▇▇▇ Associates, Inc.,
in a manner consistent with his current practice, (C) deliver lectures, fulfill
speaking engagements or teach at educational institutions, and (D) manage
personal investments, so long as such activities do not significantly interfere
with the performance of the Executive's responsibilities as an employee of the
Company in accordance with this Agreement. It is expressly understood and agreed
that to the extent that any such activities have been conducted by the Executive
prior to the Effective Date, the continued conduct of such activities (or the
conduct of activities similar in nature and scope thereto) subsequent to the
Effective Date shall not thereafter be deemed to interfere with the performance
of the Executive's responsibilities to the Company.
3. COMPENSATION.
(b) BASE SALARY. During the Employment Period, the Executive shall
receive an annual base salary of at least $ 600,000 ("Annual Base Salary"),
which shall be paid in accordance with the Company's generally applicable
payroll practices and policies. During the Employment Period, the Annual Base
Salary shall be reviewed at least annually. Any increase in Annual Base Salary
shall not serve to limit or reduce any other obligation to the Executive under
this Agreement. Annual Base Salary shall not be reduced after any such increase
and the term Annual Base Salary as utilized in this Agreement shall refer to
Annual Base Salary as so increased.
(c) ANNUAL BONUS. In addition to Annual Base Salary, the Executive
shall be awarded, for each fiscal year ending during the Employment Period, an
annual bonus (the "Annual Bonus") in cash at least equal to $315,000 (the
"Minimum Bonus Amount"). Each such Annual Bonus shall be paid no later than the
end of the third month of the fiscal year next following the fiscal year for
which the Annual Bonus is awarded, unless the Executive shall elect to defer the
receipt of such Annual Bonus.
(d) INCENTIVE, SAVINGS AND RETIREMENT PLANS. During the Employment
Period, the Executive shall be entitled to participate in all incentive, savings
and retirement plans, practices, policies and programs applicable generally to
other peer executives of the Company and its affiliated companies, but in no
event shall such plans, practices, policies and programs provide the Executive
with incentive opportunities (measured with respect to both regular and special
incentive opportunities, to the extent, if any, that such distinction is
applicable), savings opportunities and retirement benefit opportunities, in each
case, less favorable, in the aggregate, than the most favorable of those
provided by the Company and its affiliated companies for the Executive under
such plans, practices, policies and programs as in effect immediately preceding
the Effective Date or if more favorable to the Executive, those provided
generally at any time after the Effective Date to other peer executives of the
Company and its affiliated companies.
(e) WELFARE BENEFIT PLANS. During the Employment Period, the
Executive and/or the Executive's family, as the case may be, shall be eligible
for participation in and shall receive all benefits under welfare benefit plans,
practices, policies and programs provided by the Company and its affiliated
companies (including, without limitation, medical, prescription, dental,
disability, salary continuance, employee life, group life, accidental death and
travel accident insurance plans and programs) to the extent applicable generally
to other peer executives of the Company and its affiliated companies, but in no
event shall such plans, practices, policies and programs provide the Executive
with benefits which are less favorable, in the aggregate, than the most
favorable of such plans, practices, policies and programs in effect for the
Executive immediately preceding the Effective Date or, if more favorable to the
Executive, those provided generally at any time after the Effective Date to
other peer executives of the
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Company and its affiliated companies. Without limiting the generality of the
foregoing, the Company shall continue to make all required premium payments and
fulfill its other obligations under the split-dollar insurance agreement (the
"Split-Dollar Agreement") entered into by the Company and the Executive and
effective as of February 28, 1995.
(f) EXPENSES. During the Employment Period, the Executive shall be
entitled to receive prompt reimbursement for all reasonable expenses incurred by
the Executive in accordance with the most favorable policies, practices and
procedures of the Company and its affiliated companies in effect for the
Executive immediately preceding the Effective Date or, if more favorable to the
Executive, as in effect generally at any time thereafter with respect to other
peer executives of the Company and its affiliated companies.
(g) FRINGE AND OTHER BENEFITS. During the Employment Period, the
Executive shall be entitled to fringe benefits, personal perquisites, and any
other benefits in accordance with the most favorable plans, practices, programs
and policies of the Company and its affiliated companies in effect for the
Executive immediately preceding the Effective Date or, if more favorable to the
Executive, as in effect generally at any time thereafter with respect to other
peer executives of the Company and its affiliated companies, including, without
limitation, benefits payable under the Executive's Split-Dollar Agreement.
(h) OFFICE AND SUPPORT STAFF. During the Employment Period, the
Executive shall be entitled to an office or offices of a size and with
furnishings and other appointments, and to secretarial and other assistance, in
all respects equal to that provided to the Executive by the Company immediately
preceding the Effective Date or, if more favorable to the Executive, as provided
generally at any time thereafter with respect to other peer executives of the
Company and its affiliated companies.
(i) VACATION. During the Employment Period, the Executive shall be
entitled to paid vacation in accordance with the plans, policies, programs and
practices of the Company in all respects and its affiliated companies as in
effect for the Executive immediately preceding the Effective Date or, if more
favorable to the Executive, as in effect generally at any time thereafter with
respect to other peer executives of the Company and its affiliated companies.
4. TERMINATION OF EMPLOYMENT.
(b) DEATH OR DISABILITY. The Executive's employment shall terminate
automatically upon the Executive's death during the Employment Period. If the
Company determines in good faith that the Disability of the Executive has
occurred during the Employment Period (pursuant to the definition of Disability
set forth below), it may give to the Executive written notice in accordance with
Section 10(b) of this
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Agreement of its intention to terminate the Executive's employment. In such
event, the Executive's employment with the Company shall terminate effective on
the 30th day after receipt of such notice by the Executive (the "Disability
Effective Date"), provided that, within the 30 days after such receipt, the
Executive shall not have returned to full-time performance of the Executive's
duties. For purposes of this Agreement, "Disability" shall mean the absence of
the Executive from the Executive's duties with the Company on a full-time basis
for 180 consecutive business days as a result of incapacity due to mental or
physical illness which is determined to be total and permanent by a physician
selected by the Company or its insurers and acceptable to the Executive or the
Executive's legal representative.
(c) CAUSE. The Company may terminate the Executive's employment
during the Employment Period for Cause. For purposes of this Agreement, "Cause"
shall mean:
(ii) the willful and continued failure of the Executive to
perform substantially the Executive's duties with the Company or one of its
affiliates (other than any such failure resulting from incapacity due to
physical or mental illness), after a written demand for substantial performance
is delivered to the Executive by the Board or the Chief Executive Officer of the
Company which specifically identifies the manner in which the Board or Chief
Executive Officer believes that the Executive has not substantially performed
the Executive's duties, or
(iii) the willful engaging by the Executive in illegal conduct or
gross misconduct that is materially and demonstrably injurious to the Company.
For purposes of this provision, no act or failure to act, on the part of the
Executive, shall be considered "willful" unless it is done, or omitted to be
done, by the Executive in bad faith or without reasonable belief that the
Executive's action or omission was in the best interests of the Company. Any
act, or failure to act, based upon authority given pursuant to a resolution duly
adopted by the Board or upon the instructions of the Chief Executive Officer or
a senior officer of the Company or based upon the advice of counsel for the
Company shall be conclusively presumed to be done, or omitted to be done, by the
Executive in good faith and in the best interests of the Company. The cessation
of employment of the Executive shall not be deemed to be for Cause unless and
until there shall have been delivered to the Executive a copy of a resolution
duly adopted by the affirmative vote of not less than three-quarters of the
entire membership of the Board at a meeting of the Board called and held for
such purpose (after reasonable notice is provided to the Executive and the
Executive is given an opportunity, together with counsel, to be heard before the
Board), finding that, in the good faith opinion of the Board, the Executive is
guilty of the conduct described in subparagraph (i) or (ii) above, and
specifying the particulars thereof in detail.
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(d) GOOD REASON. The Executive's employment may be terminated by the
Executive for Good Reason at any time within 90 days after the Executive first
has actual knowledge of the occurrence of such Good Reason. For purposes of this
Agreement, "Good Reason" shall mean:
(ii) the assignment to the Executive of any duties inconsistent
in any respect with the Executive's position (including status, offices, titles
and reporting requirements), authority, duties or responsibilities as
contemplated by Section 2 of this Agreement, or any other action by the Company
which results in a diminution in such position, authority, duties or
responsibilities, excluding, for this purpose an isolated, insubstantial and
inadvertent action not taken in bad faith and which is remedied by the Company
promptly after receipt of notice thereof given by the Executive;
(iii) any failure by the Company to comply with any of the
provisions of Section 3 of this Agreement, other than an isolated, insubstantial
and inadvertent failure not occurring in bad faith and which is remedied by the
Company promptly after receipt of notice thereof given by the Executive;
(iv) the Company's requiring the Executive to be based at any
office or location other than as provided in Section 2 hereof or the Company's
requiring the Executive to travel on Company business to a substantially greater
extent than required immediately prior to the Effective Date;
(v) any purported termination by the Company of the Executive's
employment otherwise than as expressly permitted by this Agreement;
(vi) delivery by the Company of a Notice of Non-Extension; or
(vii) any failure by the Company to comply with and satisfy
Section 9 of this Agreement.
For purposes of this Section 4(c), any good faith determination of "Good Reason"
made by the Executive shall be conclusive.
(e) NOTICE OF TERMINATION. Any termination by the Company for Cause,
or by the Executive for Good Reason, shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 10(b) of
this Agreement. For purposes of this Agreement, a "Notice of Termination" means
a written notice which (I) indicates the specific termination provision in this
Agreement relied upon, (II) to the extent applicable, sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
the Executive's employment under the provision so indicated and (III) if the
Date of Termination (as defined below) is other than the date of receipt of such
notice, specifies the termination date (which date shall be not more than thirty
days after the giving of such notice). The failure by the Executive or the
Company
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to set forth in the Notice of Termination any fact or circumstance which
contributes to a showing of Good Reason or Cause shall not waive any right of
the Executive or the Company, respectively, hereunder or preclude the Executive
or the Company, respectively, from asserting such fact or circumstance in
enforcing the Executive's or the Company's rights hereunder.
(f) DATE OF TERMINATION. "Date of Termination" means (I) if the
Executive's employment is terminated by the Company for Cause, or by the
Executive for Good Reason, the date of receipt of the Notice of Termination or
any later date specified therein, as the case may be, (II) if the Executive's
employment is terminated by the Company other than for Cause or Disability, the
date on which the Company notifies the Executive of such termination, and (III)
if the Executive's employment is terminated by reason of death or Disability,
the date of death of the Executive or the Disability Effective Date, as the case
may be.
5. OBLIGATIONS OF THE COMPANY UPON TERMINATION.
(b) BY EXECUTIVE; OTHER THAN FOR CAUSE, DEATH OR DISABILITY. In
partial consideration for the confidential information and noncompetition
covenants of the Executive pursuant to Section 8 and in part as liquidated
damages in lieu of the payments and benefits to which the Executive would have
been entitled through the remainder of the Employment Period, if, during the
Employment Period, the Company shall terminate the Executive's employment other
than for Cause or Disability or the Executive shall terminate employment for
Good Reason:
(ii) the Company shall pay to the Executive in a lump sum in cash
within 30 days after the Date of Termination the aggregate of the following
amounts:
(i) the sum of
A. the Executive's Annual Base Salary through the Date of
Termination to the extent not theretofore paid,
B. the product of
(a) The Executive's target bonus as determined under the
applicable ▇▇▇▇▇▇ compensation plan(s) and
(b) A fraction, the numerator of which is the number of
days in the current fiscal year through the Date of
Termination, and the denominator of which is 365 and
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C. any compensation previously deferred by the Executive
(together with any accrued interest or earnings thereon) and any accrued
vacation pay, in each case to the extent not theretofore paid (the sum of
the amounts described in clauses (1), (2), and (3) shall be hereinafter
referred to as the "Accrued Obligations"); and
(ii) the amount equal to the product of
A. five and
B. the sum of
(a) the Executive's Annual Base Salary and
(b) the Executive's target bonus as determined under the
applicable ▇▇▇▇▇▇ compensation plan(s) and
(iii) an amount equal to the difference between (A) the aggregate
benefit under the Company's qualified - defined benefit retirement plans
(collectively, the "Retirement Plan") and any excess or supplemental
defined benefit retirement plans in which the Executive participates,
including without limitation the Company's Executive Retirement and Savings
Plan, (collectively, the "SERP") which the Executive would have accrued
(whether or not vested) if the Executive's employment had continued for
five years after the Date of Termination and (B) the actual vested benefit,
if any, of the Executive under the Retirement - Plan and the SERP,
determined as of the Date of Termination (with the foregoing amounts to be
computed on an actuarial present value basis, based on the assumption that
the Executive's compensation in each of the five years in following such
termination would have been that required by Section 3(a) and Section 3(b),
and using actuarial assumptions no less favorable to the Executive than the
most favorable of those in effect for purposes of computing benefit
entitlements under the Retirement Plan and the SERP at any time from the
day before the Effective Date) through the Date of Termination;
(iii) for five years after the Executive's Date of Termination,
or such longer period as may be provided by the terms of the appropriate plan,
program, practice or policy, the Company shall continue benefits to the
Executive and/or the Executive's family at least equal to those which would have
been provided to them in accordance with the plans, programs, practices and
policies described in Section 3(d), of this Agreement if the Executive's
employment had not been terminated (including without limitation pursuant to the
Split Dollar Agreement) or, if more favorable to the Executive, as in effect
generally at any time thereafter with respect to other peer
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executives of the Company and its affiliated companies and their families,
provided, however, that if the Executive becomes reemployed with another
employer and is eligible to receive medical or other welfare benefits under
another employer-provided plan, the medical and other welfare benefits described
herein shall be secondary to those provided under such other plan during such
applicable period of eligibility, and for purposes of determining eligibility
(but not the time of commencement of benefits) of the Executive for retiree
benefits pursuant to such plans, practices, programs and policies, the Executive
shall be considered to have remained employed until five years after the Date of
Termination and to have retired on the last day of such period;
(iv) the Company shall, at its sole expense as incurred, provide
the Executive with outplacement services the scope and provider of which shall
be selected by the Executive in the Executive's sole discretion (but the total
cost thereof shall not exceed $50,000); and
(v) for a period of five years following the Executive's
termination, to the extent not theretofore paid or provided, the Company shall
timely pay or provide to the Executive any other amounts or benefits required to
be paid or provided or which the Executive is eligible to receive under any
plan, program, policy or practice or contract or agreement of the Company and
its affiliated companies (such other amounts and benefits shall be hereinafter
referred to as the "Other Benefits").
(c) DEATH. If the Executive's employment is terminated by reason of
the Executive's death during the Employment Period, this Agreement shall
terminate without further obligations to the Executive's legal representatives
under this Agreement, other than for payment of Accrued Obligations and the
timely payment or provision of Other Benefits. Accrued Obligations shall be paid
to the Executive's estate or beneficiary, as applicable, in a lump sum in cash
within 30 days of the Date of Termination. With respect to the provision of
Other Benefits, the term Other Benefits as utilized in this Section 5(b) shall
include, without limitation, and the Executive's estate and/or beneficiaries
shall be entitled to receive, benefits at least equal to the most favorable
benefits provided by the Company and affiliated companies to the estates and
beneficiaries of peer executives of the Company and such affiliated companies
under such plans, programs, practices and policies relating to death benefits,
if any, as in effect with respect to other peer executives and their
beneficiaries at any time during the 120-day period immediately preceding the
Effective Date or, if more favorable to the Executive's estate and/or the
Executive's beneficiaries, as in effect on the date of the Executive's death
with respect to other peer executives of the Company and its affiliated
companies and their beneficiaries.
(d) DISABILITY. If the Executive's employment is terminated by reason
of the Executive's Disability during the Employment Period, this Agreement shall
terminate without further obligations to the Executive, other than for payment
of Accrued
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Obligations and the timely payment or provision of Other Benefits. Accrued
Obligations shall be paid to the Executive in a lump sum in cash within 30 days
of the Date of Termination. With respect to the provision of Other Benefits, the
term Other Benefits as utilized in this Section 5(c) shall include, and the
Executive shall be entitled after the Disability Effective Date to receive,
disability and other benefits at least equal to the most favorable of those
generally provided by the Company and its affiliated companies to disabled
executives and/or their families in accordance with such plans, programs,
practices and policies relating to disability, if any, as in effect generally
with respect to other peer executives and their families at any time during the
120-day period immediately preceding the Effective Date or, if more favorable to
the Executive and/or the Executive's family, as in effect at any time thereafter
generally with respect to other peer executives of the Company and its
affiliated companies and their families.
(e) CAUSE; OTHER THAN FOR GOOD REASON. If the Executive's employment
shall be terminated for Cause during the Employment Period, this Agreement shall
terminate without further obligations to the Executive other than the obligation
to pay to the Executive (X) the Annual Base Salary through the Date of
Termination, (Y) the amount of any compensation previously deferred by the
Executive, and (Z) Other Benefits, in each case to the extent theretofore
unpaid. If the Executive voluntarily terminates employment during the Employment
Period, excluding a termination for Good Reason, this Agreement shall terminate
without further obligations to the Executive, other than for Accrued Obligations
and the timely payment or provision of Other Benefits. In such case, all Accrued
Obligations shall be paid to the Executive in a lump sum in cash within 30 days
of the Date of Termination
6. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall
prevent or limit the Executive's continuing or future participation in any plan,
program, policy or practice provided by the Company or any of its affiliated
companies and for which the Executive may qualify, nor, subject to Section
10(f), shall anything herein limit or otherwise affect such rights as the
Executive may have under any contract or agreement with the Company or any of
its affiliated companies. Amounts which are vested benefits or which the
Executive is otherwise entitled to receive under any plan, policy, practice or
program of or any contract or agreement with the Company or any of its
affiliated companies at or subsequent to the Date of Termination shall be
payable in accordance with such plan, policy, practice or program or contract or
agreement except as explicitly modified by this Agreement.
7. FULL SETTLEMENT; LEGAL FEES. The Company's obligation to make the
payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Executive or others. In no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to the Executive under any of the
9
provisions of this Agreement and except as specifically provided in Section
5(a)(ii), such amounts shall not be reduced whether or not the Executive obtains
other employment. The Company agrees to pay promptly as incurred, to the full
extent permitted by law, all legal fees and expenses which the Executive may
reasonably incur as a result of any contest (regardless of the outcome thereof)
by the Company, the Executive or others of the validity or enforceability of, or
liability or entitlement under, any provision of this Agreement or any guarantee
of performance thereof (whether such contest is between the Company and the
Executive or between either of them and any third party, and including as a
result of any contest by the Executive about the amount of any payment pursuant
to this Agreement), plus in each case interest on any delayed payment at the
applicable Federal rate ("Applicable Federal Rate") provided for in Section
7872(f)(2)(A) of the Internal Revenue Code of 1986, as amended (the "Code").
8. CONFIDENTIAL INFORMATION; NONCOMPETITION.
(b) CONFIDENTIAL INFORMATION. The Executive shall hold in a fiduciary
capacity for the benefit of the Company all secret, proprietary or confidential
information, knowledge or data relating to the Company or any of its affiliated
companies, and their respective businesses, which shall have been obtained by
the Executive during the Executive's employment by the Company or any of its
affiliated companies. During the period the Executive is employed with the
Company, and for a period of 24 months after termination of the Executive's
employment with the Company, the Executive shall not, without the prior written
consent of the Company or as may otherwise be required by law or legal process,
communicate or divulge any such information, knowledge or data to anyone other
than the Company and those designated by it. The restrictions set forth in this
Section 8 will not apply to information that is generally known to the public or
in the trade, unless such knowledge results from an unauthorized disclosure by
the Executive or representatives of the Executive in violation of this
Agreement. This exception will not affect the application of any other
provisions of this Agreement to such information in accordance with the terms of
such provision. All documents and tangible things embodying or containing
confidential information are the Company's exclusive property. The Executive
will protect the confidentiality of their content and will return all copies,
facsimiles and specimens of them and any other form of confidential information
in the Executive's possession, custody or control to the Company before leaving
the employment with the Company.
(c) NONCOMPETITON. In consideration of the benefits described in
Section 5 and the Put Right set forth in Section 11, during the Executive's
employment with the Company, and for a period of 36 months thereafter, the
Executive shall not, directly or indirectly, engage, participate or invest in or
be employed by any business which is engaged in the scientific and clinical
laboratory research distribution business in the United States. The foregoing
restriction shall apply regardless of the capacity in which the Executive
engages or engaged, participates or participated, or invests or invested in or
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is or was employed by a given business, whether as owner, partner, shareholder,
consultant, agent, employee, co-venturer or otherwise. The provisions of this
Section 8(b) shall not prevent the Executive from acquiring or holding publicly
traded stock or other publicly traded securities of a business, so long as the
Executive's ownership does not exceed 2 percent of the outstanding securities of
such company of the same class as those held by the Executive or from engaging
in any activity or having an ownership interest in any business that is reviewed
by the Board of Directors. The Executive understands that the restrictions set
out in this Section 8(b) are intended to protect the Company's interest in its
secret, proprietary or confidential information and established customer
relationships and goodwill, and agrees that such restrictions are reasonable and
appropriate for this purpose.
(d) INJUNCTIVE RELIEF. The Executive agrees that it would be
difficult to measure any damages caused to the Company that might result from
any breach by the Executive of the promises set forth in this Agreement, and
that in any event money damages would be an inadequate remedy for any such
breach. Accordingly, the Executive agrees that in the case of breach, or
proposed breach, of any portion of this Agreement, the Company shall be
entitled, in addition to all other remedies that it may have, to an injunction
or other appropriate equitable relief to restrain any such breach without
showing or proving any actual damage to the Company. However, in no event shall
an asserted violation of the provisions of this Section 8 constitute a basis for
deferring or withholding any amounts otherwise payable to the Executive under
this Agreement.
9. SUCCESSORS. This Agreement is personal to the Executive and
without the prior written consent of the Company shall not be assignable by the
Executive otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal representatives. This Agreement shall inure to the benefit of and be
binding upon the Company and its successors and assigns. The Company will
require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or
assets of the Company to assume expressly and agree to perform this 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. As used in this Agreement,
"Company" shall mean the Company as hereinbefore defined and any successor to
its business and/or assets as aforesaid which assumes and agrees to perform this
Agreement by operation of law, or otherwise.
10. MISCELLANEOUS.
(b) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, without reference to
principles of conflict of laws. The captions of this Agreement are not part of
the provisions hereof and
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shall have no force or effect. This Agreement may not be amended or modified
otherwise than by a written agreement executed by the parties hereto or their
respective successors and legal representatives.
(c) NOTICES. All notices and other communications hereunder shall be
in writing and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
IF TO THE EXECUTIVE:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
IF TO THE COMPANY:
Attention: General Counsel
▇▇▇▇▇▇ Scientific International Inc.
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(d) SEVERABILITY. The invalidity or uneforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
(e) WITHHOLDING. The Company may withhold from any amounts payable
under this Agreement such Federal, state, local or foreign taxes as shall be
required to be withheld pursuant to any applicable law or regulation.
(f) WAIVER. The Executive's or the Company's failure to insist upon
strict compliance with any provision hereof or any other provision of this
Agreement or the failure to assert any right the Executive or the Company may
have hereunder, including, without limitation, the right of the Executive to
terminate employment for Good Reason, shall not be deemed to be a waiver of such
provision or right or any other provision or right of this Agreement.
(g) ENTIRE AGREEMENT. From and after the Effective Date this
Agreement shall supersede any other employment agreement between the parties
with respect to the subject matter hereof. For the avoidance of doubt, this
Agreement shall not supersede the Split Dollar Agreement, nor shall it amend the
Split Dollar Agreement except to the
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extent specifically provided herein, nor shall it amend, modify or alter in any
way any existing agreement between the Company and the Executive regarding any
equity interest in the Company, regardless of form.
11. PUT/CALL RIGHT.
(b) EXECUTIVE'S PUT. In partial consideration of the Executive's
noncompetition covenant pursuant to Section 8(b), at any time following the
Effective Date, the Executive and/or any Permitted Transferee (as defined below)
shall have the right (the "Put Right"), exercisable by delivery of a written
notice (the "Put Notice") to the Company, to require the Company to purchase
all, but not less than all, of the 51,666 Executive Performance Options (the
"Put Options") granted to the Executive pursuant to the ▇▇▇▇▇▇ Scientific
International Inc. 1998 Equity and Incentive Plan (the "1998 Option Plan"), for
an aggregate purchase price (the "Put Price") of $5,000,000 in cash, subject to
the provisions of this Section 11. Following receipt of the Put Notice, the
Company shall be required to pay the Put Price to the Executive or the Permitted
Transferee, as applicable, upon the second business day following the first
anniversary of the date the Put Notice is received by the Company; PROVIDED,
that if on such second business day, the Executive is a "covered employee" whose
compensation is subject to the limitation on deductibility imposed by Section
162(m) of the Code, such payment shall be delayed until the first date on which
the Executive is no longer such a "covered employee." For purpose of this
Section 11, "Permitted Transferee" shall mean any heir, executor, administrator,
testamentary trustee, legatee or beneficiary of the Executive and any party who
is a legitimate transferee of the Put Options in accordance with the instruments
governing their transfer. The Company shall pay the Executive interest on the
$5,000,000 cash payment due to the Executive following exercise of the Put Right
at a rate equal to the prime rate published by The Chase Manhattan Bank on the
business day nearest to the date on which the Put Right is exercised, compounded
daily. Such interest shall accrue from the date of exercise until the date the
$5,000,000 payment is made to the Executive, and shall be paid to the Executive
concurrently with such $5,000,000 payment.
(c) COMPANY'S CALL RIGHT. Upon termination of the Executive's
employment with the Company for any reason (a "Call Event"), the Company shall
have the right (the "Call Right"), exercisable by delivery of a written notice
(the "Call Notice") to the Executive and any Permitted Transferees who then own
any Put Options within a period of 180 days after the date of occurrence of the
Call Event (subject to extension for up to 12 months in the event the Company is
legally prohibited or contractually prohibited, by virtue of its debt or other
obligations, from exercising its Call Rights) (the "Call Notice Period"), to
require the Executive and any such Permitted Transferees to sell all, but not
less than all, of the Put Options owned by the Executive and such Permitted
Transferees on the date of occurrence of the Call Event at an aggregate price
equal to the Put Price, allocated among the Executive and such Permitted
Transferees (if any) in the
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same proportions as their ownership of the Put Options. Upon receipt of such
notice the Executive and any such Permitted Transferees shall sell such Put
Options, subject to the terms hereof.
(d) CLOSING. The closing of the acquisition by the Company of Put
Options following exercise of the Put Right or the Call Right shall take place
at the principal office of the Company on the tenth business day after the date
of the Put Notice or the Call Notice. At such closing, the Company shall pay the
Put Price by wire transfer to the account or accounts designated by the
Executive or Permitted Transferee, as applicable, in writing to the Company or,
if the Executive or Permitted Transferee, as applicable, fails to designate any
such account, the Company shall deliver a certified check or checks in the
amount of the applicable Put Price to the Executive or such Permitted
Transferee, as applicable, in each case against delivery of duly endorsed
certificates representing such Put Options (to the extent issued in certificated
form).
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's
hand and, pursuant to the authorization from its Board of Directors, the Company
has caused this Agreement to be executed in its name on its behalf, all as of
the day and year first above written.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ SCIENTIFIC INTERNATIONAL, INC.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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By: ▇▇▇▇▇ ▇. ▇▇▇▇▇
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