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EXHIBIT 10.5(b)
EMPLOYMENT AGREEMENT
This Agreement made as of the 18th day of November, 1999, between
PerkinElmer, Inc., a Massachusetts corporation (hereinafter called the
"Company"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇
02090(hereinafter referred to as the "Employee").
WITNESSETH:
WHEREAS, the Employee is being 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
WHEREAS, the Employee hereby agrees to the compensation herein provided
and agrees to serve the Company to the best of his ability during the period of
this Agreement.
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 one year from
the date hereof and from year to year 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 devote
his full business time, best efforts, business judgment, skill and
knowledge to the advancement of the Company and its interests and to
the discharge of his duties and responsibilities hereunder. The
Employee 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, except for personal investment, charitable and
philanthropic activities.
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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 at a single rate 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 to the Employee which are related to base
salary shall also be reduced in accordance with any salary
reduction.
4.
a) So long as the Employee is employed by the Company and for a
period of one year after the termination of expiration of
employment, the Employee will not directly or indirectly: (i)
as an individual proprietor, partner, stockholder, officer,
employee, director, joint venturer, investor, lender, or in
any other capacity whatsoever (other than as the holder of not
more than one percent (1%) of the total outstanding stock of a
publicly held company), engage directly or indirectly in any
business or entity which competes with the business conducted
by the Company or its affiliates in any city or geographic
area in which the company or its affiliates conduct material
operations at the time of termination of employment under this
Agreement, except as approved in advance by the Board after
full and adequate disclosure; or (ii) recruit, solicit or
induct, or attempt to induce, any
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employee or employees of the company to terminate their
employment with, to otherwise cease their relationship with,
the Company; or (iii) solicit, divert or take away, or attempt
to divert or to take away, the business or patronage of any of
the clients, customers or accounts, of the Company that were
contacted, solicited or served by the Employee while employed
by the Company.
b) If any restriction set forth in this Section 4 is found by any
court of competent jurisdiction to be unenforceable because it
extends for too long a period of time or over too great a
range of activities or in too broad a geographical area, it
shall be interpreted to extend only over the maximum period of
time, range of activities or geographic area as to which it
may be enforceable.
c) The restrictions contained in this Section 4 are necessary for
the protection of the business and goodwill of the Company and
are considered by the Employee to be reasonable for such
purpose. The Employee agrees that any breach of this Section 4
will cause the Company substantial and irrevocable damage and
therefore, in the event of any such breach, in addition to
such other remedies which may be available, the Company shall
have the right to seek specific performance and injunctive
relief.
d) The Employee agrees to sign and be bound by the Employee
Patent and Proprietary Information Utilization Agreement in
the form attached hereto.
e) 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
resignation letter;
b) One year after written notice of termination is given by the
Company to the Employee;
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c) At the death of the Employee;
d) 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) Continuous conduct bringing notoriety to the Company
and having an adverse effect on the name or public
image of the Company;
v) Violation of the Employee's covenants as set forth in
Paragraph 4 above; or
vi) Continued failure by the Employee to observe any of
the provisions of this Agreement after being informed
of such breach.
e) Twelve months after written notice of termination (a
"Disability Termination Notice") 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). A Disability Termination
Notice shall be deemed properly delivered if 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 period following proper delivery of a
Disability Termination Notice as aforesaid, the Employee is no
longer disabled and is able to return to work, such Disability
Termination Notice shall be deemed automatically rescinded
upon the Employee's return to work, 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 received by the Employee under
the Company's Short-Term Disability Income Plan. During the
twelve-month period following proper delivery of a Disability
Termination Notice as aforesaid, the Company will make
periodic
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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 any 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 preceding sentence
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.
f) In the event of the termination of the Employee by the Company
pursuant to paragraph 5(b) above, the Employee shall, for a
period of one year from the date this agreement shall
terminate, (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.
g) In the event of a termination of employment pursuant to
paragraph 5(a), (c) or (d), the Company shall pay the Employee
his full salary through the date of termination of employment.
6. a) In the event of a Change in Control of the Company (as defined
below), the provisions of this Agreement shall be amended as
follows:
i) ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇ 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 three (3)
years 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 5f 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) prorata 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 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
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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. The determination of the Gross-Up Payment shall
be made at the Company's expense by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ &
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 5f as determined by
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & 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 Company, regardless of the outcome of such
endeavor."
b) For purposes of this Agreement, a "Change in Control of the
Company" means an event or occurrence set forth in any one or
more of clauses (i) through (iv) below (including an event or
occurrence that constitutes a Change in Control under one or
such clauses but is specifically exempted from another such
clause):
(i) the acquisition by an individual, entity or
group (within the meaning of Section 13(d)(3) or 14(d)(2) of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act") (a "Person") of beneficial ownership of any capital
stock or the Company if, after such acquisition, such Person
beneficially owns (within the meaning of Rule 13d-3
promulgated under the Exchange Act) 20% or more of either (1)
the then-outstanding shares of common stock of the Company
(the "Outstanding Company Common Stock") or (2) the combined
voting power of the then-outstanding securities of the Company
entitled to vote generally in the election of directors (the
"Outstanding Company Voting Securities"); provided, however,
that for purposes of this paragraph (i), the following
acquisitions shall not constitute a Change in Control: (1) any
acquisition directly from the Company
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(excluding an acquisition pursuant to the exercise, conversion
or exchange of any security exercisable for, convertible into
or exchangeable for common stock or voting securities of the
Company, unless the Person exercising, converting or
exchanging such security acquired such security directly from
the Company or an underwriter or agent of the Company), (2)
any acquisition by the Company, (3) any acquisition by any
employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the
Company, or (4) any acquisition by any corporation pursuant to
a transaction which complies with subclauses (1) and (2) or
clause(iii) of this Section 6b; or
(ii) such time as the Continuing Directors (as
defined below) do not constitute a majority of the Board (or,
if applicable, the Board of Directors of a successor
corporation to the Company), where the term "Continuing
Director" means at any date a member of the Board (1) who was
a member of the Board on the date of the execution of this
Agreement or (2) who was nominated or elected subsequent to
such date by at least a majority of the directors who were
Continuing Directors at the time of such nomination or
election or whose election to the Board was recommended or
endorsed by at least a majority of the directors who were
Continuing Directors at the time of such nomination or
election; provided, however, that there shall be excluded from
this clause (2) any individual whose initial assumption of
office occurred as a result of an actual or threatened
election contest with respect to the election or removal of
directors or other actual or threatened solicitation of
proxies or consents, by or on behalf of a person other than
the Board; or
(iii) the consummation of a merger, consolidation,
reorganization, recapitalization or statutory share exchange
involving the Company or a sale or other disposition of all or
substantially all of the assets of the Company (a "Business
Combination"), unless, immediately following such Business
Combination, each of the following two conditions is
satisfied: (1) all or substantially all of the individuals and
entities who were the beneficial owners of the Outstanding
Company Common Stock and Outstanding Company Voting Securities
immediately prior to such Business Combination beneficially
own, directly or indirectly, more than 50% of the
then-outstanding shares of common stock and the combined
voting power of the then-outstanding securities entitled to
vote generally in the election of directors, respectively, of
the resulting or acquiring corporation in such Business
Combination (which shall include, without limitation, a
corporation which as a result of such transaction owns the
Company or substantially all of the Company's assets either
directly or through one or more subsidiaries) (such resulting
or acquiring corporation is referred to herein as the
"Acquiring Corporation") in substantially the same proportions
as their ownership, immediately prior to such
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Business Combination, of the Outstanding Company Stock and
Outstanding Company Voting Securities, respectively; and (2)
no Person (excluding the Acquiring Corporation or any employee
benefit plan (or related trust) maintained or sponsored by the
Company or by the Acquiring Corporation) beneficially owns,
directly or indirectly, 20% or more of the then outstanding
shares of common stock of the Acquiring Corporation, or of the
combined voting power of the then-outstanding securities of
such corporation entitled to vote generally in the election of
directors (except to the extent that such ownership existed
prior to the Business Combination); or
(iv) approval by the stockholders of the Company
or a complete liquidation or dissolution of the Company.
c) For purposes of this Agreement, "Good Reason" shall mean the
occurrence of any of the following events: (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, except as
provided in Paragraph 3d; (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, authorities, 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;(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 or
(vii) the failure of the Company to obtain the agreement, in a
form reasonably satisfactory to the Employee, from any
successor to the Company to assume and agree to perform this
Agreement. 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. The Employee's right to terminate his employment
for Good Reason shall not be affected by his incapacity due to
physical or mental illness.
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
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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 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
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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. This Agreement constitutes and embodies the entire
understanding and agreement of the parties and, except as otherwise
provided herein, there are no other agreements or understandings,
written or oral, in effect between the parties hereto relating to the
employment of the Employee by 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.
12. The Company shall require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially
all of the business or assets of the Company to assume expressly in
writing and to agree to perform its obligations under this
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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.
Failure of the Company to obtain an assumption of this Agreement prior
to the effectiveness of succession shall be a breach of this Agreement.
As used in this Agreement, "the Company" shall mean the Company as
defined above and any successor to its business or assets as aforesaid
which assumes and agrees to perform this Agreement by operation of law,
or otherwise.
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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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Chairman and Chief Executive Officer
Employee: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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