Exhibit 10.1
CHANGE-IN-CONTROL AGREEMENT
AGREEMENT by and among LIFE TECHNOLOGIES, INC., a Delaware Corporation
(the "Company"), LIFE TECHNOLOGIES LIMITED, a Scottish Company (the
"Subsidiary"), and Xxxxxx X. Xxxxxx (the "Executive"), dated as of the 13th day
of February 1997.
The Boards of Directors of the Company and the Subsidiary (the
"Boards"), have determined that it is in the best interests of the Company, the
Subsidiary, and their stockholders to assure that the Company and the Subsidiary
will have the continued dedication of the Executive, notwithstanding the
possibility, threat or occurrence of a Change of Control (as defined below).
The Boards believe it is imperative to diminish the inevitable distraction of
the Executive by virtue of the personal uncertainties and risks created by a
pending or threatened Change of Control and to encourage the Executive's full
attention and dedication to the Company and the Subsidiary currently and in the
event of any threatened or pending Change of Control, and to provide the
Executive with compensation and benefits arrangements upon a Change of Control
which ensure that the compensation and benefits expectations of the Executive
will be satisfied and which are competitive with those of other corporations.
Therefore, in order to accomplish these objectives, the Boards have caused the
Company and the Subsidiary to enter into this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Certain Definitions.
(a) The "Effective Date" shall be the first date during the
"Change of Control Period" (as defined in Section l(b)) on which a Change of
Control occurs; provided that the Executive is employed by the Company or the
Subsidiary on that date. Anything in this Agreement to the contrary
notwithstanding, if the Executive's employment with the Subsidiary is terminated
or the Executive ceases to be an officer of the Subsidiary prior to the date on
which a Change of Control occurs, and it is reasonably demonstrated by the
Executive that such termination of employment or cessation of status as an
officer (i) was at the request of a third party who has taken steps reasonably
calculated to effect the Change of Control or (ii) otherwise arose in connection
with or anticipation of the Change of Control, then for all purposes of this
Agreement the "Effective Date" shall mean the date immediately prior to the date
of such termination of employment or cessation of status as an officer.
(b) The "Change of Control Period" is the period commencing on
the date hereof and ending on the second anniversary of such date, provided,
however, that commencing on the date one year after the date hereof, and on each
annual anniversary of such date (such date and each annual anniversary thereof
is hereinafter referred to as the "Renewal Date"), the Change of Control Period
shall be automatically extended so as to terminate two years from such Renewal
Date, unless at least 60 days prior to the Renewal Date the Company shall give
notice to the Executive that the Change of Control Period shall not be so
extended.
2. Change of Control. For the purpose of this Agreement;
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(a) a "Change of Control" shall mean:
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(i) Any acquisition or series of acquisitions, other than from the
Company, by any 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")) of beneficial ownership (within the meaning of Rule 13d-3 under
the Exchange Act) of 20% or more of either the then outstanding shares of common
stock of the Company (the "Outstanding Company Common Stock") or the combined
voting power of the then outstanding voting securities of the Company entitled
to vote generally in the election of directors (the "Outstanding Company Voting
Securities"), provided, however, that (A) any acquisition by the Company, The
Dexter Corporation ("Dexter") or any of their subsidiaries, (B) any acquisition
by any employee benefit plan (or related trust) sponsored or maintained by the
Company, Dexter or any of their subsidiaries, (C) any transaction or series of
transactions that results in any individual, entity or group (within the meaning
of Section 13(d)(3) or 14(d)(2) of the Exchange Act) having beneficial ownership
(within the meaning of Rule 13d-3 under the Exchange Act) of more than 20% of
the Outstanding Company Common Stock but less than the percentage of Outstanding
Company Common Stock then beneficially owned by Dexter, or (D) any acquisition
or series of acquisitions which results in any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act)
acquiring beneficial ownership (within the meaning of Rule 13d-3 under the
Exchange Act) of more than 20% of the Outstanding Company Common Stock and while
such a beneficial owner such individual, entity or group does not exercise the
voting power of his, her or its Outstanding Company Common Stock or otherwise
exercise control with respect to any matter concerning or affecting the Company
and promptly sells, transfers, assigns or otherwise disposes of that number of
shares of Outstanding Company Common Stock necessary to reduce his, her or its
beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act)
of the Outstanding Company Common Stock to below 20%, as the case may be, shall
not constitute a Change of Control; or
(ii) Individuals who as of December 1, 1996, constitute the Board of
Directors of the Company (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board of Directors of the Company,
provided that any individual becoming a director subsequent to December 1, 1996,
whose election, or nomination for election, by the Company's stockholders was
approved by a vote of at least a majority of the directors then comprising the
Incumbent Board, including a majority of the members of the Incumbent Board who
are not Dexter-related Directors (as hereinafter defined), shall be considered
as though such individual were a member of the Incumbent Board, but excluding,
for this purpose, any such individual whose initial assumption of office is in
connection with an actual or threatened election contest (as such terms are used
in Rule 14a-11 of the Regulation 14A promulgated under the Exchange Act)
relating to the election of directors of the Company; or
(iii) Approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company, or of the sale or other disposition
of all or substantially all of the assets of the Company, or of a
reorganization, merger or consolidation of the Company, in each case, with
respect to which all or substantially all of the individuals and entities who
were the respective beneficial owners of the Outstanding Company Common Stock
and Outstanding Company Voting Securities immediately prior to such
reorganization, merger or consolidation do not, following such reorganization,
merger or consolidation beneficially own, directly or indirectly, more than 60%
of, respectively, the then outstanding shares of common stock and the combined
voting power of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the corporation
resulting from such reorganization, merger or consolidation; or
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(iv) At any time when Dexter is the beneficial owner (within the
meaning of Rule 13d-3 under the Exchange Act) of 20% or more of either the
Outstanding Company Common Stock or the Outstanding Company Voting Securities
any of the events set forth in the following clauses (A), (B) or (C) below shall
occur:
(A) The acquisition, other than from Dexter, by any individual,
entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of
the Exchange Act) of beneficial ownership (within the meaning of Rule
13d-3 under the Exchange Act) of 20% or more of either the then
outstanding shares of common stock of Dexter (the "Outstanding Dexter
Common Stock") or the combined voting power of the then outstanding
voting securities of Dexter entitled to vote generally in the election
of directors (the "Outstanding Dexter Voting Securities"), provided,
however, that (I) any acquisition by the Company, Dexter or any of
their subsidiaries, (II) any acquisition by any employee benefit plan
(or related trust) sponsored or maintained by the Company, Dexter or
any of their subsidiaries, or (III) any acquisition by any corporation
with respect to which, following such acquisition, more than 60% of,
respectively, the then outstanding shares of common stock of such
corporation and the combined voting power of the then outstanding
voting securities of such corporation entitled to vote generally in
the election of directors is then beneficially owned, directly or
indirectly, by all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the
Outstanding Dexter Common Stock and Outstanding Dexter Voting
Securities immediately prior to such acquisition in substantially the
same proportion as their ownership, immediately prior to such
acquisition, of the Outstanding Dexter Common Stock and Outstanding
Dexter Voting Securities, as the case may be, shall not constitute a
Change of Control; or
(B) Individuals who, as of December 1, 1996, constitute the Board
of Directors of Dexter (the "Dexter Incumbent Board") cease for any
reason to constitute at least a majority of the Board of Directors of
Dexter, provided that any individual becoming a director subsequent to
December 1, 1996, whose election, or nomination for election, by
Dexter's stockholders was approved by a vote of at least a majority of
the directors then comprising the Dexter Incumbent Board shall be
considered as though such individual were a member of the Dexter
Incumbent Board, but excluding, for this purpose, any such individual
whose initial assumption of office is in connection with an actual or
threatened election contest (as such terms are used in Rule 14a-11 of
Regulation 14A promulgated under the Exchange Act) relating to the
election of the directors of Dexter; or
(C) Approval by the stockholders of Dexter of a complete
liquidation or dissolution of Dexter or of the sale or other
disposition of all or substantially all of the assets of Dexter, or of
a reorganization, merger or consolidation of Dexter, in each case,
with respect to which all or substantially all of the individuals and
entities who were the respective beneficial owners of the Outstanding
Dexter Common Stock and Outstanding Dexter Voting Securities
immediately prior to such reorganization, merger or consolidation do
not, following such reorganization, merger or consolidation,
beneficially own, directly or indirectly, more than
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60% of, respectively, the then outstanding shares of common stock and
the combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors, as the case
may be, of the corporation resulting from such reorganization, merger
or consolidation.
For purposes of this Agreement, a "Dexter-related Director" shall mean
any director of the Company who is or during the prior 10 years has been an
officer, director, employee or 5% or greater stockholder of Dexter or any of its
subsidiaries (other than the Company and its subsidiaries) or an officer,
director, partner, employee or 5% or greater stockholder of any law firm,
investment bank or other business organization that has been retained by Dexter
or any of its subsidiaries (other than the Company and its subsidiaries) to
provide services for an aggregate remuneration in any year of in excess of 5% of
the revenues of such law firm, investment bank or other business organization or
is otherwise controlling, controlled by or under common control with Dexter.
3. Employment Period. The Subsidiary hereby agrees to continue the
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Executive in its employ, and the Executive hereby agrees to remain in the employ
of the Subsidiary, for the period commencing on the Effective Date and ending at
the end of the 24th month following the Effective Date (the "Employment
Period").
4. Terms of Employment
(a) Positions and Duties
(i) During the Employment Period, (A) 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 the most significant of those held, exercised and assigned at any
time during the 90-day period immediately preceding the Effective Date and (B)
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 50 miles from such location.
(ii) 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/or the Subsidiary 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
or charitable boards or committees, (B) deliver lectures, fulfill speaking
engagements or teach at educational institutions and (C) manage personal
investments, so long as such activities do not significantly interfere with the
performance of the Executive's responsibilities to the Company and the
Subsidiary 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 or the
Subsidiary.
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(b) Compensation.
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(i) Base Salary. During the Employment Period, the Executive shall
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receive an annual base salary ("Annual Base Salary"), which shall be paid at a
monthly rate, at least equal to the highest annualized (for any fiscal year
consisting of less than twelve full months or with respect to which the
Executive has been employed by the Subsidiary for less than twelve full months)
base salary paid or payable to the Executive by the Company and its affiliated
companies in respect of the three fiscal years immediately preceding the fiscal
year in which the Effective Date occurs. During the Employment Period, the
Annual Base Salary shall be reviewed at least annually and shall be increased at
any time and from time to time as shall be substantially consistent with
increases in base salary generally awarded in the ordinary course of business to
other peer executives of the Company and its affiliated companies. 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 the Annual Base Salary as so increased. As used in this
Agreement, the term "affiliated companies" includes any company controlled by,
controlling or under common control with the Company.
(ii) Annual Bonus. In addition to Annual Base Salary, the Executive
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shall be awarded, for each fiscal year during the Employment Period, an annual
bonus (the "Annual Bonus") in cash at least equal to the higher of either (A)
the average annualized (for any fiscal year consisting of less than twelve full
months or with respect to which the Executive has been employed by the
Subsidiary for less than twelve full months) bonus paid, or payable but for any
deferral to the Executive by the Company and its affiliated companies under the
Company's deferred compensation arrangements, in respect of the three fiscal
years immediately preceding the fiscal year in which the Effective Date occurs,
or (B) in the event the annual bonus paid, or payable but for any deferral to
the Executive by the Company and its affiliated companies under the Company's
deferred compensation arrangement, in respect of the fiscal year immediately
preceding the fiscal year in which the Effective Date occurs was based upon a
formula or plan in which the Executive participated, then such Annual Bonus
shall be at least equal to the bonus which would be payable based on such
formula or plan had the Executive's participation therein and level of
participation remained in effect following the Effective Date. 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.
(iii) Incentive, Savings and Retirement Plans. In addition to
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Annual Base Salary and Annual Bonus payable as hereinabove provided, the
Executive shall be entitled to participate during the Employment Period in all
incentive, savings and retirement plans, practices, policies and programs
generally applicable 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), savings opportunities and
retirement benefits 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 at any time during the 90-day period immediately preceding
the Effective Date.
(iv) Welfare Benefit Plans. During the Employment Period, the
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Executive and/or the Executive's family, as the case may be, shall
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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 generally
applicable to other peer executives of the Company and its affiliated companies,
but in no event shall such plans, practices, policies and programs provide
benefits which are less favorable, in the aggregate, than the most favorable of
such plans, practices, policies and programs in effect for the Executive and/or
the Executive's family at any time during the 90-day period immediately
preceding the Effective Date.
(v) Business Expenses. During the Employment Period, the Executive
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shall be entitled to receive prompt reimbursement for all reasonable business
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 at any time during the 90-day period immediately
preceding the Effective Date or, if more favorable to the Executive, as in
effect at any time thereafter generally with respect to other peer executives of
the Company and its affiliated companies.
(vi) Fringe Benefits. During the Employment Period, the Executive
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shall be entitled to fringe benefits in accordance with the most favorable
plans, practices, programs and policies of the Company and its affiliated
companies in effect for the Executive at any time during the 90-day period
immediately preceding the Effective Date or, if more favorable to the Executive,
as in effect at any time thereafter generally with respect to other peer
executives of the Company and its affiliated companies.
(vii) Office and Support Staff. During the Employment Period, the
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Executive shall be entitled to an office or offices of a size and with
furnishings and other appointments, and to personal secretarial and other
assistance, at least equal to the most favorable of the foregoing provided to
the Executive by the Company and its affiliated companies at any time during the
90-day period immediately preceding the Effective Date or, if more favorable to
the Executive, as provided at any time thereafter generally with respect to
other peer executives of the Company and its affiliated companies.
(viii) Vacation. During the Employment Period, the Executive shall be
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entitled to paid vacation in accordance with the most favorable plans, policies,
programs and practices of the Company and its affiliated companies as in effect
for the Executive at any time during the 90-day period immediately preceding the
Effective Date or, if more favorable to the Executive, as in effect at any time
thereafter generally with respect to other peer executives of the Company and
its affiliated companies.
5. Termination of Employment.
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(a) Death or Disability. The Executive's employment shall terminate
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automatically upon the Executive's death during the Employment Period. If the
Subsidiary determines in good faith that the Disability (as defined below) of
the Executive has occurred during the Employment Period, it may give to the
Executive written notice in accordance with Section 15(b) of this Agreement of
its intention to terminate the Executive's employment. In such event, the
Executive's employment with the Subsidiary 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
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duties. For purposes of this Agreement, "Disability" means the absence of the
Executive from the Executive's duties with the Company and the Subsidiary 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 the Subsidiary or their insurers and
acceptable to the Executive or the Executive's legal representative (such
agreement as to acceptability not to be withheld unreasonably).
(b) Cause. The Subsidiary may terminate the Executive's employment
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during the Employment Period for "Cause." For purposes of this Agreement,
"Cause" means (i) repeated violations by the Executive of the Executive's
responsibilities and duties under Section 4(a) of this Agreement which are
demonstrably willful and deliberate on the Executive's part and which are not
remedied in a reasonable period of time after receipt of written notice from the
Subsidiary, (ii) commission of an intentional act of fraud, embezzlement or
theft by the Executive in connection with the Executive's duties or in the
course of the Executive's employment with the Subsidiary or its affiliated
companies, (iii) causing intentional wrongful damage to property of the Company
or its affiliated companies, (iv) intentionally and wrongfully disclosing secret
processes or confidential information of the Company or its affiliated
companies, or (v) participating, without the Company's express written consent,
in the management of any business enterprise which engages in substantial and
direct competition with the Company or its affiliated companies, and any such
act shall have been materially harmful to the Company or its affiliated
companies.
(c) Good Reason. The Executive's employment may be terminated during
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the Employment Period by the Executive for "Good Reason." For purposes of this
Agreement, "Good Reason" means
(i) the assignment to the Executive of any responsibilities or 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 4(a) of this Agreement, or any other
action by the Company or the Subsidiary 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 or the Subsidiary promptly after receipt of written
notice thereof given by the Executive;
(ii) any failure by the Company or the Subsidiary to comply with any
of the provisions of Section 4(b) of this Agreement, other than an isolated,
insubstantial and inadvertent failure not occurring in bad faith and which is
remedied by the Company or the Subsidiary promptly after receipt of written
notice thereof given by the Executive;
(iii) the Company or the Subsidiary requiring the Executiveto be
based at any office or location other than that described in Section 4(a)(i)(B)
hereof or, requiring the Executive to travel away from his office in the course
of discharging responsibilities or duties in a manner which is inappropriate for
the performance of the Executive's duties hereunder and which is significantly
more frequent (in terms of either consecutive days or aggregate days in any
calendar year) than was required prior to the Change of Control;
(iv) any purported termination by the Subsidiary of the Executive's
employment otherwise than as expressly permitted by this Agreement; or
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(v) any failure by any successor to the Company or the Subsidiary to
comply with and satisfy Section 14(c) of this Agreement, provided that such
successor has received at least ten (10) days prior written notice from the
Company, the Subsidiary, or the Executive of the requirements of Section 14(c)
of this Agreement.
For the purposes of this Section 5(c), any good faith determination of "Good
Reason" made by the Executive shall be conclusive.
(d) Notice of Termination. Any termination by the Subsidiary for
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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 15(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
fifteen days after the giving of such notice). The failure by the Executive,
the Company, or the Subsidiary to set forth in the Notice of Termination any
fact or circumstance which contributes to a showing of Good Reason or Cause, as
the case may be, shall not waive any right of the Executive, the Company, or the
Subsidiary hereunder or preclude the Executive, the Company, or the Subsidiary
from asserting such fact or circumstance in enforcing the Executive's, the
Company's, or the Subsidiary's rights hereunder.
(e) Date of Termination. "Date of Termination" means the date of
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receipt of the Notice of Termination or any later date specified therein, as the
case may be; provided, however, that (i) if the Executive's employment is
terminated by the Subsidiary other than for Cause or Disability, the Date of
Termination shall be the date on which the Subsidiary notifies the Executive of
such termination and (ii) if the Executive's employment is terminated by reason
of death or Disability, the Date of Termination shall be the date of death of
the Executive or the Disability Effective Date, as the case may be.
6. Obligations of the Company or the Subsidiary upon Termination.
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(a) Death. If the Executive's employment is terminated by reason of
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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 the following obligations: (i) payment of the
Executive's Annual Base Salary through the Date of Termination to the extent not
theretofore paid, (ii) payment of the product of (x) the Annual Bonus paid or
payable but for any deferral (and annualized for any fiscal year consisting of
less than twelve full months or for which the Executive has been employed for
less than twelve full months) to the Executive for the most recently completed
fiscal year during the Employment Period, and (y) 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 (iii) payment of any
compensation previously deferred by the Executive (together with any accrued
interest thereon) and not yet paid by the Company or the Subsidiary, and any
accrued vacation pay not yet paid by the Subsidiary (the amounts described in
clauses (i), (ii) and (iii) above are hereafter referred to as "Accrued
Obligations"). All Accrued Obligations shall be paid to the Executive's estate
or beneficiary, as applicable, at the option of the Company or the Subsidiary
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(whichever entity is making the payment), either (x) in a lump sum in cash
within 30 days of the Date of Termination or (y) in twelve equal consecutive
monthly installments, with the first installment to be paid within 30 days of
the Date of Termination. Anything in this Agreement to the contrary
notwithstanding, the Executive's family shall be entitled to receive benefits at
least equal to the most favorable benefits provided generally by the Company and
any of its affiliated companies to surviving families of peer executives of the
Company and such affiliated companies under such plans, programs, practices and
policies relating to family death benefits, if any, as in effect generally with
respect to other peer executives and their families at any time during the 90-
day period immediately preceding the Effective Date or, if more favorable to the
Executive and/or the Executive's family as in effect on the date of the
Executive's death generally with respect to other peer executives of the Company
and its affiliated companies and their families.
(b) Disability. If the Executive's employment is terminated by reason
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of the Executive's Disability during the Employment Period, this Agreement shall
terminate without further obligations to the Executive, other than for Accrued
Obligations. All Accrued Obligations shall be paid to the Executive at the
option of the Company or the Subsidiary (whichever entity is making the
payment), either (x) in a lump sum in cash within 30 days of the Date of
Termination or (y) in twelve equal consecutive monthly installments, with the
first installment to be paid within 30 days of the Date of Termination.
Anything in this Agreement to the contrary notwithstanding, 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 provided by the Company
and its affiliated companies to disabled peer 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 90-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 through the Date of Termination
generally with respect to other peer executives of the Company and its
affiliated companies and their families.
(c) Cause. If the Executive's employment shall be terminated for
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Cause during the Employment Period, this Agreement shall terminate without
further obligations to the Executive other than the obligation to pay to the
Executive the Annual Base Salary through the Date of Termination plus the amount
of any compensation previously deferred by the Executive, in each case to the
extent theretofore unpaid. If the Executive 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. In such case, all Accrued Obligations shall be paid to the
Executive at the option of the Company or the Subsidiary (whichever entity is
making the payment), either (x) in a lump sum in cash within 30 days of the Date
of Termination, or (y) in twelve equal consecutive monthly installments, with
the first installment to be paid within 30 days of the Date of Termination.
(d) Good Reason. If, during the Employment Period, the Subsidiary
shall terminate the Executive's employment other than for Cause or Disability,
or the Executive shall terminate employment under this Agreement for Good
Reason:
(i) the Company or the Subsidiary shall pay to the Executive the
aggregate of the following amounts, such amounts to be payable in a lump sum in
cash within 30 days of the Date of Termination:
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A. all Accrued Obligations; and
B. 2 times the sum of the Executive's Annual Base Salary and the
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higher of either (i) the average annualized (for any fiscal year consisting of
less than twelve full months or with respect to which the Executive has been
employed by the Subsidiary for less than twelve full months) bonus paid, or
payable but for any deferral to the Executive by the Company and its affiliated
companies under the Company's deferred compensation arrangements, in respect of
the three fiscal years immediately preceding the fiscal year in which the
Effective Date occurs, or (ii) the targeted annual bonus payable to the
Executive pursuant to the Company's or the Subsidiary's Incentive Compensation
Plan for the fiscal year in which the Date of Termination occurs (assuming 100%
achievement of the company performance factor and 100% achievement of the
Executive's personal performance factor); and
C. the Executive shall be entitled to receive a separate lump-sum
supplemental retirement benefit equal to the difference between (a) the
actuarial equivalent (utilizing for this purpose the actuarial assumptions
utilized with respect to the Life Technologies, Inc. Retirement Plan (or any
successor plan thereto) (the "Retirement Plan") during the 90-day period
immediately preceding the Effective Date) of the benefit payable under the
Retirement Plan and any supplemental and/or excess retirement plan providing
benefits for the Executive (the "SERP") which the Executive would receive if the
Executive's employment continued at the compensation level provided for in
Section 4(b)(i) and 4(b)(ii) of this Agreement for the remainder of the
Employment Period, assuming for this purpose that all accrued benefits are fully
vested and that benefit accrual formulas are no less advantageous to the
Executive than those in effect during the 90-day period immediately preceding
the Effective Date, and (b) the actuarial equivalent (utilizing for this purpose
the actuarial assumptions utilized with respect to the Retirement Plan during
the 90-day period immediately preceding the Effective Date) of the Executive's
actual benefit (paid or payable), if any, under the Retirement Plan and the
SERP; and
D. An amount equal to that portion, if any, of the Company's or the
Subsidiary's contribution to the Executive's 401(k), savings or other similar
individual account plan which is not vested as of the Date of Termination (the
"Unvested Company Contribution"), plus an amount which when added to the
Unvested Company Contribution would be sufficient after Federal, state and local
income taxes (based on the tax returns filed by the Executive most recently
prior to the Date of Termination) to enable the Executive to net an amount equal
to the Unvested Company Contribution; and
(ii) the Company or the Subsidiary shall pay the Executive up to
$25,000 for executive outplacement services utilized by the Executive upon the
receipt by the Company or the Subsidiary (whichever entity is making the
payment) of written receipts or other appropriate documentation; and
(iii) for the remainder of the Employment Period, or such longer
period as any plan, program, practice or policy may provide, the Company and/or
the Subsidiary shall continue benefits to the Executive and, where applicable,
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 4(b)(iv) of this Agreement if the Executive's employment had not been
terminated in accordance with the most favorable plans, practices, programs or
policies of the Company and its affiliated companies generally applicable to
other peer executives and their families during the 90-day period immediately
preceding the Effective Date or, if more favorable to the Executive, as in
effect at any time thereafter generally with respect to other
20
peer executives of the Company and its affiliated companies and their families;
provided, however, that if the Executive becomes employed elsewhere during the
Employment Period and is thereby afforded comparable insurance and welfare
benefits to those described in Section 4(b)(iv), the Company's and/or the
Subsidiary's obligation to continue providing the Executive with such benefits
shall cease or be correspondingly reduced, as the case may be. For purposes of
determining eligibility of the Executive for retiree benefits pursuant to such
plans, practices, programs and policies, the Executive shall be considered to
have remained employed until the end of the Employment Period and to have
retired on the last day of such period; and
(iv) All outstanding stock options held by the Executive pursuant to
any Company stock option plan shall immediately become vested and exercisable as
to all or any part of the shares covered thereby, with the Executive being able
to exercise his stock options within a period of three months following the Date
of Termination or such longer period as may be permitted under Executive's stock
option agreements; and
(v) If, in the calendar year immediately preceding the Date of
Termination, the Executive had relocated the Executive's primary residence from
one location (the "Point of Origin") to its location at the Date of Termination
at the request of the Company or the Subsidiary, then any relocation expenses
that are actually incurred in the year immediately following the Date of
Termination by the Executive in moving the Executive's primary residence to any
location shall be reimbursed by the Company or the Subsidiary to the extent such
expenses do not exceed the cost of relocating the Executive's primary residence
to the Point of Origin, provided such expenses are substantiated by means of
written receipts. The cost of relocating the Executive's primary residence to
the Point of Origin shall be determined by averaging estimates obtained by the
Company or the Subsidiary in writing from three reputable moving companies,
selected by the Company or the Subsidiary in good faith. It shall be the
obligation of the Executive to notify the Company or the Subsidiary in advance
of any such relocation so that such estimates may be obtained.
The amounts required to be paid under this Section 6(d) shall be reduced by any
other amount of severance (i.e., relating solely to salary or bonus continuation
or actual or deemed pension or insurance continuation) received by the Executive
upon such termination of employment under any severance plan, policy or
arrangement of the Company or the Subsidiary applicable to the Executive or a
group of employees of the Company, including the Executive, and applicable
without regard to the occurrence of a Change of Control prior to such
termination of employment. The amounts payable to the Executive pursuant to this
Agreement will not be subject to any requirement of mitigation, nor, except as
specifically set forth herein, will they be offset or otherwise reduced by
reason of the Executive's receipt of compensation from any source other than the
Company or the Subsidiary.
7. Non-exclusivity of Rights. Nothing in this Agreement shall
-------------------------
prevent or limit the Executive's continuing or future participation in any
benefit, bonus, incentive or other plans, programs, policies or practices
provided by the Company or any of its affiliated companies and for which the
Executive may qualify, nor shall anything herein limit or otherwise affect such
rights as the Executive may have under any other agreements 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 the Company or any of its affiliated companies at or subsequent to
21
the Date of Termination shall be payable in accordance with such plan, policy,
practice or program except as explicitly modified by this Agreement.
8. Full Settlement. The Company's and/or the Subsidiary's
---------------
obligation to make the payments provided for in this Agreement and otherwise to
perform their obligations hereunder, except as provided in the last sentence of
Section 6(d), shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company or the Subsidiary 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 provisions of this
Agreement. The Company agrees to pay, to the full extent permitted by law, all
legal fees and expenses which the Executive may reasonably incur, including the
costs and expenses of any arbitration proceeding, as a result of any contest
(regardless of the outcome thereof) by the Company or others of the validity or
enforceability of, or liability under, any provision of this Agreement or any
guarantee of performance thereof (including as a result of any content 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
provided for in Section 7872(f)(2) of the Internal Revenue Code of 1986, as
amended (the "Code"); provided that the Executive's claim is not determined by a
--------
court of competent jurisdiction or an arbitrator to be frivolous or otherwise
entirely without merit.
9. Release. Upon fulfillment of the obligations of the Company
-------
and/or the Subsidiary to make the payments provided for in this Agreement and
otherwise to perform their obligations hereunder, the Executive fully and
unconditionally releases and discharges all claims and causes of action which
the Executive or his heirs, personal representatives, successors, or assigns
ever had, now have, or hereafter may have against the Company and/or the
Subsidiary and any of their affiliated companies on account of any claims and
causes of action arising out of or relating to this Agreement, any other
document relating hereto or delivered in connection with the transactions
contemplated hereby.
10. Certain Additional Payments
(a) Anything in this Agreement to the contrary notwithstanding, in the
event it shall be determined that, as a result, directly or indirectly, of the
operation of any of the Company's or the Subsidiary's existing stock option
plans, or any successor option or restricted stock plans (collectively, the
"Option and Restricted Stock Acceleration"), either standing alone or taken
together with the receipt of any other payment or distribution by the Company
and/or the Subsidiary to or for the benefit of the Executive whether paid or
payable or distributed or distributable pursuant to the terms of this Agreement
or otherwise (a "Payment") the Executive would be subject to the excise tax
imposed by Section 4999 of the Code or any interest or penalties are incurred by
the Executive with respect to such excise tax (such excise tax, together with
any such interest and penalties, are hereinafter collectively referred to as the
"Excise Tax"), then the amount payable to the Executive hereunder or as a result
of the Option and Restricted Stock Acceleration shall be reduced in an amount
that would result in the Executive being in the most advantageous net after-tax
position (taking into account both income taxes and any Excise Tax). For
purposes of this determination, the "base amount" as defined in Section
280G(b)(3)(A) of the Code shall be allocated between the Option and Restricted
Stock Acceleration, on the one hand, and Payments, on the other hand, in
accordance with Section 280G(b)(3)(B) of the Code.
22
(b) All determinations required to be made under this Section,
including the amount of any reduction that will be made in the payments made
pursuant to this Agreement and the assumptions to be utilized in arriving at
such determinations, shall be made by Coopers & Xxxxxxx L.L.P. (the "Accounting
Firm") which shall provide detailed supporting calculations both to the Company,
the Subsidiary and the Executive. All fees and expenses of the Accounting Firm
for tax and accounting advice provided to the Executive, up to a maximum of
$15,000, shall be borne solely by the Company. If the Accounting Firm determines
that no Excise Tax is payable by the Executive, it shall furnish the Executive
with an opinion that failure to report the Excise Tax on the Executive's
applicable federal income tax return would not result in the imposition of a
negligence or similar penalty. Any determination by the Accounting Firm shall
be binding upon the Company and the Executive.
11. Confidential Information. The Executive shall hold in a
------------------------
fiduciary capacity for the benefit of the Company and the Subsidiary all secret
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 Subsidiary or
any of its affiliated companies and which shall not be or become public
knowledge (other than by acts by the Executive or representatives of the
Executive in violation of this Agreement). After termination of the Executive's
employment with the Subsidiary, the Executive shall not, without the prior
written consent of the Company and the Subsidiary, communicate or divulge any
such information, knowledge or data to anyone other than the Company, the
Subsidiary and those designated by them. In addition, to the extent that the
Executive is a party to any other agreement relating to confidential
information, inventions or similar matters with the Company or the Subsidiary,
the Executive shall continue to comply with the provisions of such agreements.
In no event shall an asserted violation of the provisions of this Section
constitute a basis for deferring or withholding any amounts otherwise payable to
the Executive under this Agreement.
12. Public Announcements. The Executive shall consult with the
--------------------
Company and the Subsidiary before issuing any press release or otherwise making
any public statement with respect to the Company or any of its affiliated
companies, this Agreement or the transactions contemplated hereby, and the
Executive shall not issue any such press release or make any such public
statement without the prior written approval of the Company and the Subsidiary,
except as may be required by applicable law, rule or regulation or any self
regulatory agency requirements, in which event the Company and the Subsidiary
shall have the right to review and comment upon any such press release or public
statement prior to its issuance.
13. Arbitration. Any dispute, controversy or claim arising out of or
-----------
relating to this Agreement, or any breach thereof, shall be determined and
settled by arbitration to be held in the City of New York pursuant to the labor
rules of the American Arbitration Association or any successor organization.
Any award rendered thereunder shall be final, conclusive and binding on the
parties. Subject to the provisions of Section 8 hereof, each party shall pay
one-half of all costs and expenses of any arbitration proceeding brought
pursuant to this Section, and each party shall pay its own attorneys' fees and
expenses.
14. Successors.
----------
(a) This Agreement is personal to the Executive and without the prior
written consent of the Company and the Subsidiary shall not be
23
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.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company, the Subsidiary, and their successors and assigns.
(c) The Company and the Subsidiary, respectively, 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 or the Subsidiary to assume expressly and agree to perform this
Agreement in the same manner and to the same extent that the Company or the
Subsidiary, respectively, 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, and "Subsidiary" shall mean the Subsidiary 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.
15. Miscellaneous.
-------------
(a) This Agreement shall be governed by and construed in accordance
with the laws of the Sate of New York, without reference to principles of
conflict of laws. The captions of this Agreement are not part of the provisions
hereof and 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.
(b) 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:
-------------------
Xxx Xxxxxxx
Xxxxx Xxxxxxxx
Xxxxx XX00 0XX
Xxxxxxxx
If to the Company:
-----------------
Life Technologies, Inc.
Post Office Box 6482
0000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
ATTN: President
If to the Subsidiary:
--------------------
Life Technologies Limited
3 Fountain Drive
Inchinnan Business Park
Paisley, PA4 9RF, Scotland
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.
24
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
(d) The Company and/or the Subsidiary may withhold from any amounts
payable under this Agreement such Federal, state or local taxes as shall be
required to be withheld pursuant to any applicable law or regulation.
(e) A party's failure to insist upon strict compliance with any
provision hereof in any particular instance shall not be deemed to be a waiver
of such provision or any other provision thereof.
(f) This Agreement shall replace and supersede the Executive's
Employment Agreement dated 23 June 1989 between the Executive and the Company
and, upon execution hereof by the parties hereto, such prior employment
agreement shall become null and void.
IN WITNESS WHEREOF, the Executive has hereunto set his hand, and,
pursuant to the authorization from their Boards of Directors, the Company and
the Subsidiary have caused these presents to be executed in their names on their
behalf, all as of the day and year first above written.
/s/ Xxxxxx X. Xxxxxx LIFE TECHNOLOGIES, INC.
--------------------
LIFE TECHNOLOGIES LIMITED By: /s/ Xxxxxx X. Xxxxxx, Xx.
--------------------------
Senior Vice President and
Chief Financial Officer
By: /s/ X. X. Xxxxxxxx
-----------------------
Director and Secretary
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