EXHIBIT 10.9
EMPLOYMENT AGREEMENT
AGREEMENT by and between Packard BioScience Company (f/k/a Canberra
Industries, Inc.), a Delaware corporation with its principal office and place of
business in Meriden, Connecticut (the "Company"), and Staf van Cauter (the
"Executive"), dated as of the ___ day of _____, 1997.
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that it is in the best interests of the Company and its shareholders
to employ the Executive as a Vice President of the Company's Packard Instrument
Company, Inc. subsidiary ("Packard Instrument") and the Executive desires to
serve in that capacity or in such other capacity as may be reasonably assigned
to him by the Chief Executive Officer of the Company or the President of Packard
Instrument.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. EMPLOYMENT PERIOD. The Company shall employ the Executive, and the
Executive shall serve the Company, on the terms and conditions set forth in this
Agreement, for the period commencing on the date hereof and ending on the second
anniversary of the date hereof (the "Employment Period"); provided, however,
that commencing on the date one year after the date hereof (the "Initial Renewal
Date"), and on the first day of each calendar month following the calendar month
in which falls the Initial Renewal Date (each such date and the Initial Renewal
Date shall be hereinafter referred to as the "Renewal Date"), unless previously
terminated, the Employment Period shall be automatically extended so as to
terminate thirteen calendar months from
such Renewal Date, unless at least 60 days prior to the Renewal Date, the
Company shall give notice to the Executive that the Employment Period shall not
be so extended.
2. POSITION AND DUTIES. (a) During the Employment Period, the
Executive's position (including status, offices, titles and reporting
requirements), authority, duties and responsibilities shall be those which are
reasonably assigned to him by the Chief Executive Officer of the Company or the
President of Packard Instrument.
(b) During the Employment Period, and excluding any periods of
vacation and sick leave to which the Executive is entitled, the Executive shall
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 under this Agreement, use the
Executive's reasonable best efforts to carry out such responsibilities
faithfully and efficiently. It shall not be considered a violation of the
foregoing for the Executive to serve on corporate, civic or charitable boards
or committees 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.
(c) The Executive's services shall be performed primarily at the
Company's headquarters in Meriden, Connecticut.
3. COMPENSATION. (a) BASE SALARY. During the Employment Period, the
Executive shall receive an annual base salary ("Annual Base Salary") at least
equal to twelve times the monthly
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base salary paid or payable to the Executive immediately prior to the date
hereof. During the Employment Period, the Annual Base Salary shall be reviewed
for increase at least annually and shall be increased pursuant to each such
review by a percentage no less than the percentage increase in the United States
Consumer Price Index -- All Urban Consumers, as published by the Bureau of Labor
Statistics of the U.S. Department of Labor, for the calendar year immediately
preceding such review. Any increase in the Annual Base Salary shall not limit
or reduce any other obligation of the Company under this Agreement. The Annual
Base Salary shall not be reduced after any such increase, and the term "Annual
Base Salary" shall thereafter refer to the Annual Base Salary as so increased.
(b) ANNUAL BONUS. In addition to the Annual Base Salary, the
Executive shall be eligible to be awarded, for each fiscal year or portion of a
fiscal year ending during the Employment Period, an annual bonus (the "Annual
Bonus"), in accordance with the Company's annual incentive plans then in effect.
Each Annual Bonus shall be paid in a single cash lump sum no later than 90 days
after the end of the fiscal year or portion thereof for which the Annual Bonus
is awarded, unless the Executive elects in writing, before the beginning of the
fiscal year for which the Annual Bonus is to be awarded, to defer receipt of the
Annual Bonus.
(c) OTHER BENEFITS. During the Employment Period: (i) the
Executive shall be entitled to participate in all incentive, savings and
retirement plans, practices, policies and programs of the Company in accordance
with the plans, practices, programs and policies of the Company in effect for
the Executive as of the date hereof; and (ii) the Executive and/or the
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Executive's family, as the case may be, shall be eligible for participation in,
and shall receive all benefits under, all welfare benefit plans, practices,
policies and programs provided by the Company (including, without limitation,
medical, prescription, dental, disability, salary continuance, employee life
insurance, group life insurance, accidental death and travel accident insurance
plans and programs, and key employee insurance) in accordance with the plans,
practices, programs and policies of the Company in effect for the Executive as
of the date hereof.
(d) EXPENSES. During the Employment Period, the Executive shall
be entitled to receive prompt reimbursement for all reasonable expenses incurred
by the Executive in carrying out the Executive's duties under this Agreement,
provided that the Executive complies with the policies, practices and procedures
of the Company for submission of expense reports, receipts, or similar
documentation of such expenses.
(e) FRINGE BENEFITS. During the Employment Period, the Executive
shall be entitled to fringe benefits in accordance with the plans, practices,
programs and policies of the Company in effect for the Executive as of the date
hereof.
(f) VACATION. During the Employment Period, the Executive shall
be entitled to paid vacation annually in accordance with the plans, policies,
programs and practices of the Company as in effect for the Executive as of the
date hereof.
4. TERMINATION OF EMPLOYMENT. (a) DEATH OR DISABILITY. The
Executive's employment shall terminate automatically upon the Executive's death
during the Employment
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Period. The Company shall be entitled to terminate the Executive's employment
because of the Executive's Disability during the Employment Period.
"Disability" means that the Executive has been unable, for a period of 180
consecutive business days, to perform the Executive's duties under this
Agreement, as a result of physical or mental illness or injury. A termination
of the Executive's employment by the Company for Disability shall be
communicated to the Executive by written notice, and shall be effective on the
30th day after receipt of such notice by the Executive (the "Disability
Effective Date"), unless the Executive returns to full-time performance of the
Executive's duties before the Disability Effective Date.
(b) BY THE COMPANY. (i) The Company may terminate the Executive's
employment during the Employment Period for Cause or without Cause. "Cause"
means: (i) the Executive's failure to perform the duties of his or her
employment in any material respect after notice from the Company and failure to
cure within ten business days after delivery of such notice, (ii) malfeasance or
gross negligence in the performance of Executive's duties of employment, (iii)
the Executive's commission of a felony under the laws of the United States or
any state thereof (whether or not in connection with his or her employment),
(iv) the Executive's disclosure of confidential information respecting the
Company's or any of its affiliated companies to any individual or entity which
is not in the performance of the duties of his or her employment and which is
harmful to the Company, or (v) any other act or omission by the Executive (other
than an act or omission resulting from the exercise by the Executive of good
faith business judgment) which is materially injurious to the financial
condition or the business reputation of the Company or any of its divisions or
affiliated
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companies. For purposes of this Agreement, the term "affiliated companies"
means all companies controlled by, controlling or under common control with the
Company.
(c) GOOD REASON. (i) The Executive may terminate employment for Good
Reason or without Good Reason. "Good Reason" means:
A. any action by the Company that results in a significant
diminution in the Executive's position and duties, other than an
isolated and inadvertent action that is not taken in bad faith and is
remedied by the Company promptly after receipt of written notice
thereof from the Executive;
B. any material failure by the Company to comply with any
provision of Section 3 of this Agreement, other than an isolated and
inadvertent failure that is not taken in bad faith and is remedied by
the Company promptly after receipt of written notice thereof from the
Executive;
C. any requirement by the Company that the Executive's services
be rendered primarily at a location or locations at a distance of more
than 50 miles from the location provided for in paragraph (c) of
Section 2 of this Agreement without the Executive's consent;
D. any purported termination of the Executive's employment by
the Company for a reason or in a manner not permitted by this
Agreement;
E. any failure by the Company to comply with paragraph (c) of
Section 11 of this Agreement; or
F. the giving of notice by the Company to the Executive
pursuant to Section 1 of this Agreement that the Employment Period
shall not be automatically extended as described in Section 1.
(ii) A termination of employment by the Executive for Good Reason
shall be effectuated by giving the Company written notice ("Notice of
Termination for Good Reason") of the termination, setting forth in reasonable
detail the specific conduct of the Company that
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constitutes Good Reason and the specific provision(s) of this Agreement on which
the Executive relies. A termination of employment by the Executive for Good
Reason shall be effective on the fifth business day following the date when the
Notice of Termination for Good Reason is given, unless the notice sets forth a
later date (which date shall in no event be later than 30 days after the notice
is given). In the event of a termination of employment by the Executive for
Good Reason pursuant to clause (F) of Section 4(c)(i) of this Agreement, the
Notice of Termination for Good Reason must be given within 90 days of the event
constituting Good Reason.
(iii) A termination of the Executive's employment by the Executive
without Good Reason shall be effected by giving the Company written notice of
the termination. If such a notice is given at any time on or after the date
that is 60 days prior to the second anniversary of the date hereof, then the
Noncompetition Period (as defined in Section 8(c) below) shall be deemed to be
the period beginning on the Date of Termination and ending on the second
anniversary thereof, notwithstanding the definition set forth in Section 8(c).
(d) NO WAIVER. The failure to set forth any fact or circumstance in
a Notice of Termination for Cause or a Notice of Termination for Good Reason
shall not constitute a waiver of the right to assert, and shall not preclude the
party giving notice from asserting, such fact or circumstance in an attempt to
enforce any right under or provision of this Agreement.
(e) DATE OF TERMINATION. The "Date of Termination" means the date of
the Executive's death, the Disability Effective Date, the date on which the
termination of the Executive's employment by the Company for Cause or by the
Executive for Good Reason is effective, or the
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date that is 60 days after the date on which the Executive gives the Company
notice of a termination of employment without Good Reason, as the case may be.
5. OBLIGATIONS OF THE COMPANY UPON TERMINATION.
(a) OTHER THAN FOR CAUSE, DEATH OR DISABILITY; GOOD REASON. If,
during the Employment Period, the Company terminates the Executive's employment,
other than for Cause, Death or Disability, or the Executive terminates
employment for Good Reason, the Company shall pay the amounts described in
subparagraph (i) below to the Executive in a lump sum in cash within 30 days
after the Date of Termination and shall continue the benefits described in
subparagraph (ii) below until at least the second anniversary of the Date of
Termination. The payments provided pursuant to this paragraph (a) of Section 5
are intended as liquidated damages for a termination of the Executive's
employment by the Company other than for Cause, Death or Disability or for the
actions of the Company leading to a termination of the Executive's employment by
the Executive for Good Reason, and shall be the sole and exclusive remedy
therefor, but shall in no way affect the Executive's rights under the agreements
(if any) set forth on Schedule A, attached hereto.
(i) The amounts to be paid in a lump sum as described above are:
A. The Executive's accrued but unpaid cash compensation (the
"Accrued Obligations"), which shall equal the sum of (1) any portion
of the Executive's Annual Base Salary through the Date of Termination
that has not yet been paid, (2) an amount (the "Accrued Bonus
Amount") equal to the product of (x) the target Annual Bonus for the
year of termination (the "Annual Bonus Amount") 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; (3) any compensation previously deferred by the Executive
(together with any accrued interest or earnings
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thereon) that has not yet been paid; and (4) any accrued but unpaid
Annual Bonuses and vacation pay;
X. Xxxxxxxxx pay equal to the product of (x) the sum of (1) the
Annual Base Salary and (2) the Annual Bonus Amount and (y) a fraction,
the numerator of which is the number of days remaining from the Date
of Termination until the end of the Employment Period, and the
denominator of which is 365;
C. An amount equal to the aggregate amounts that Company would
have contributed on behalf of Executive under the Thrift Savings Plan
of Company, if said plan shall be in effect, for two years after the
Date of Termination (plus estimated earnings thereon) as if Executive
continued in the employ of Company for such period and made
contributions under said plan at a rate, as a percentage of salary,
equal to the average rate at which Executive had made contributions to
said plan in the three (3) fiscal years of Company preceding the Date
of Termination;
D. To the extent that any form of compensation previously granted
to Executive, such as, by way of example only, restricted stock, stock
options or performance share awards, shall not be fully vested or
shall require additional service as an employee at the time of the
termination of Executive's employment, Executive shall be credited
with additional service through the period ending two years after the
Date of Termination; and
E. For two years after the Date of Termination (but not beyond
the time when Executive becomes eligible for comparable insurance
coverage offered on comparable terms by any subsequent employer),
Executive shall also continue to participate in all life, health,
disability and similar insurance plans and programs of Company to the
extent that such continued participation is possible under the general
terms and provisions of such plans and programs, with Company and
Executive paying the same portion of the cost of each such plan or
program as existed at the time of Executive's termination. In the
event that Executive's continued participation in any group plans and
programs is not permitted, then in lieu thereof, Company shall
acquire, with the same cost sharing, individual insurance policies
providing comparable coverage for Executive; provided that Company
shall not be obligated to pay for any such individual coverage more
than two times Company's cost of such group coverage; and provided
further, if any such individual coverage is unavailable, then Company
shall pay to Executive annually for two years following the Date of
Termination an amount equal to the sum of the average annual
contributions, payments, credits, or
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allocations made by Company for such insurance on Executive's behalf
over the two (2) fiscal years of Company preceding the Date of
Termination, which amount shall be pro rated for any fraction of a
year.
(ii) The benefits to be continued as described above are benefits to
the Executive and/or the Executive's family at least as favorable as those that
would have been provided to them under clause (ii) of paragraph (c) of Section 3
of this Agreement if the Executive's employment had continued until the second
anniversary of the Date of Termination; provided, however, that during any
period when the Executive is eligible to receive such benefits under another
employer-provided plan, the benefits provided by the Company under this
subparagraph may be made secondary to those provided under such other plan. For
purposes of determining eligibility (but not the time of commencement of
benefits) of the Executive for retiree benefits under this subparagraph, the
Executive shall be deemed to have continued employment with the Company until
the second anniversary of the Date of Termination.
(b) CAUSE; OTHER THAN FOR GOOD REASON, DEATH OR DISABILITY. If the
Executive's employment is terminated by the Company for Cause during the
Employment Period, the Company shall pay the Executive the Annual Base Salary
through the Date of Termination and the amount of any compensation previously
deferred by the Executive (together with any accrued interest or earnings
thereon), in each case to the extent not yet paid, and the Company shall have no
further obligations under this Agreement. If the Executive voluntarily
terminates employment during the Employment Period, other than for
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Good Reason, the Company shall pay the Accrued Obligations other than the
Accrued Bonus Amount to the Executive in a lump sum in cash within 30 days of
the Date of Termination, and the Company shall have no further obligations under
this Agreement.
If the Executive's employment is terminated by reason of the Executive's
death or Disability 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 the Accrued Obligations.
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 for which the Executive may
qualify, nor, subject to paragraph (f) of Section 12, shall anything in this
Agreement limit or otherwise affect such rights as the Executive may have under
any contract or agreement with the Company. Vested benefits and other amounts
that the Executive is otherwise entitled to receive under any plan, policy,
practice or program of, or any contract or agreement with, the Company on or
after the Date of Termination shall be payable in accordance with such plan,
policy, practice, program, contract or agreement, as the case may be, except to
the extent provided in paragraph (f) of Section 12 of this Agreement or as
otherwise explicitly modified by this Agreement.
7. FULL SETTLEMENT. The Company's obligation to make the payments
provided for in, and otherwise to perform its obligations under, this Agreement
shall not be
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affected by any set-off, counterclaim, recoupment, defense or other claim, right
or action that 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 provisions of this Agreement, but if the Executive secures other
employment, any fringe benefits (such as medical insurance) the Company is
required to provide to the Executive following termination of the Executive's
employment shall be secondary to those provided by another employer (if any).
8. CONFIDENTIAL INFORMATION; NONCOMPETITION. (a) Executive
understands that in the course of his employment by Company, Executive will
receive confidential information concerning the business or purposes of Company,
and which Company desires to protect. Executive agrees that he will not at any
time during or after the Employment Period reveal to anyone outside Company or
use for his own benefit any such information that has been designated as
confidential by Company or reasonably should be understood by Executive to be
confidential without specific written authorization by Company. Executive
further agrees not to use any such confidential information or trade secrets in
competing with Company at any time during or after his employment by Company.
(b) The Executive agrees that the Executive will not, at any time
during the Noncompetition Period (as defined in Section 8(c) below), without
the prior written consent of the Company, directly or indirectly employ, or
solicit the employment of (whether as an employee, officer, director, agent,
consultant or independent contractor), any person who
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was or is at any time during the previous twelve (12) months an employee,
representative, officer or director of the Company or any of its affiliated
companies (except for such employment by the Company or any of its affiliated
companies).
(c) During the Noncompetition Period (as defined below), the Executive
shall not, without the prior written consent of the Board, engage in or become
associated with a Competitive Activity. For purposes of this paragraph (c) of
Section 8: (i) the "Noncompetition Period" means (except as otherwise set forth
in Section 4 (c)(iii)) (A) the period during which the Executive is employed by
the Company, plus (B) if the Executive's employment is terminated other than by
reason of death or Disability, the period ending on the second anniversary of
the later of (x) the date that would have been the last day of the Employment
Period if (I) the Executive's employment had not been previously terminated and
(II) the Company had given notice to the Executive that the Employment Period
would not be extended at least 60 days prior to the last Renewal Date preceding
the Date of Termination and (y) the date on which the Executive's employment
with the Company terminates; (ii) a "Competitive Activity" means any competitor
identified by the Company from time to time prior to the termination of
Executive's employment or any other person or entity that manufactures or sells
products that compete with products manufactured or sold by the Company or any
of its affiliated companies in such jurisdiction at any time or from time to
time during the Noncompetition Period; (iii) the Executive shall be considered
to have become "associated with a Competitive Activity" if the Executive becomes
directly or indirectly involved as an owner, principal, employee, officer,
director, independent con-
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tractor, consultant, representative, stockholder, financial backer, agent,
partner, advisor, lender, or in any other individual or representative capacity
with any individual, partnership, corporation or other organization that is
engaged in a Competitive Activity. Notwithstanding the foregoing, the Executive
may make and retain investments during the Noncompetition Period in less than
one percent of the equity of any entity engaged in a Competitive Activity, if
such equity is listed on a national securities exchange or regularly traded in
an over-the-counter market.
(d) In consideration for the Executive's agreement to be bound by the
noncompetition covenant of Section 8(c), the Company shall pay to the Executive
an amount equal annually to the sum of (1) one-half the Annual Base Salary and
(2) one-half the Annual Bonus Amount (the "Noncompetition Consideration") in
cash, in equal monthly installments (the "Installments") during the portion of
the Noncompetition Period, if any, following the date on which the Executive's
employment with the Company terminates; PROVIDED, that if the Executive breaches
the noncompetition covenant of Section 8(c), then the Company shall have no
further obligation to pay any unpaid Installment, and the Executive shall be
required to return to the Company all Installments that had previously been
paid, together with interest thereon at the applicable federal rate as defined
in Section 1274(d) of the Internal Revenue Code of 1986, as amended, from the
date the Installment was paid to the Executive through the date the Executive
repays it to the Company. No Noncompetition Consideration shall be payable to
the Executive if the Executive's employment terminates by reason of death or
Disability. The Noncompetition Consideration
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shall be in addition to, and not in lieu of, any amounts otherwise payable to
Executive under this Agreement.
(e) All plans, discoveries and improvements, whether patentable or
unpatentable, made or devised by the Executive, whether alone or jointly with
others, from the date of the Executive's initial employment by the Company and
continuing until the end of the Employment Period and any subsequent period when
the Executive is employed by the Company or its affiliated companies, relating
or pertaining in any way to the Executive's employment with or the business of
the Company or any of its affiliated companies, shall be promptly disclosed in
writing to the Board of Directors of the Company and are hereby transferred to
and shall redound to the benefit of the Company, and shall become and remain its
sole and exclusive property. The Executive agrees to execute any assignments to
the Company or its nominee, of the Executive's entire right, title and interest
in and to any such discoveries and improvements and to execute any other
instruments and documents requisite or desirable in applying for and obtaining
patents or copyrights, at the expense of the Company, with respect thereto in
the United States and in all foreign countries, that may be required by the
Company. The Executive further agrees, during and after the Employment Period,
to cooperate to the extent and in the manner required by the Company, in the
prosecution or defense of any patent or copyright claims or any litigation, or
other proceeding involving any trade secrets, processes, discoveries or
improvements covered by this Agreement, but all necessary expenses thereof shall
be paid by the Company.
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(f) The Executive acknowledges and agrees that: (i) the purpose of the
foregoing covenants, including without limitation the noncompetition covenant of
Section 8(c), is to protect the goodwill, trade secrets and other Confidential
Information of the Company; (ii) because of the nature of the business in which
Company and its affiliated companies are engaged and because of the nature of
the confidential information to which the Executive has access, it would be
impractical and excessively difficult to determine the actual damages of Company
and its affiliates in the event the Executive breached any of the covenants of
this Section 8; and (iii) remedies at law (such as monetary damages) for any
breach of the Executive's obligations under this Section 8 would be inadequate.
The Executive therefore agrees and consents that if the Executive commits any
breach of a covenant under this Section 8 or threatens to commit any such
breach, the Company shall have the right (in addition to, and not in lieu of,
any other right or remedy that may be available to it) to temporary and
permanent injunctive relief from a court of competent jurisdiction, without
posting any bond or other security and without the necessity of proof of actual
damage. With respect to any provision of this Agreement finally determined by a
court of competent jurisdiction to be unenforceable, the Executive and the
Company hereby agree that such court shall have jurisdiction to reform this
Agreement or any provision hereof so that it is enforceable to the maximum
extent permitted by law, and the parties agree to abide by such court's
determination. If any of the covenants of this Agreement are determined to be
wholly or partially unenforceable in any jurisdiction, such determination shall
not
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be a bar to or in any way diminish the Company's right to enforce any such
covenant in any other jurisdiction.
9. CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY.
(a) Anything in this Agreement to the contrary notwithstanding and
except as set forth below, in the event it shall be determined that any payment
or distribution by the Company 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, but determined without regard to any additional payments
required under this Section 9) (a "Payment") would be subject to the excise tax
imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (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 Executive shall be entitled to receive an additional payment (a "Gross-Up
Payment") in an amount such that after payment by the Executive of all taxes
(including any interest or penalties imposed with respect to such taxes),
including, without limitation, any income taxes (and any interest and penalties
imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment,
the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments. Notwithstanding the foregoing provisions of this
Section 9(a), if it shall be determined that the Executive is entitled to a
Gross-Up Payment, but that the Executive, after taking into account the Payments
and the Gross-Up Payment, would not receive a net after-tax benefit of at least
$30,000 (taking into account both income taxes and
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any Excise Tax) as compared to the net after-tax proceeds to the Executive
resulting from an elimination of the Gross-Up Payment and a reduction of the
Payments, in the aggregate, to an amount (the "Reduced Amount") such that the
receipt of Payments would not give rise to any Excise Tax, then no Gross-Up
Payment shall be made to the Executive and the Payments, in the aggregate, shall
be reduced to the Reduced Amount.
(b) Subject to the provisions of Section 9(c), all determinations
required to be made under this Section 9, including whether and when a Gross-Up
Payment is required and the amount of such Gross-Up Payment and the assumptions
to be utilized in arriving at such determination, shall be made by Xxxxxx
Xxxxxxxx LLP or such other certified public accounting firm as may be designated
by the Executive (the "Accounting Firm"), which shall provide detailed
supporting calculations both to the Company and the Executive within 15 business
days of the receipt of notice from the Executive that there has been a Payment,
or such earlier time as is requested by the Company. All fees and expenses of
the Accounting Firm shall be borne solely by the Company. Any Gross-Up
Payment, as determined pursuant to this Section 9, shall be paid by the Company
to the Executive within five days of the receipt of the Accounting Firm's
determination. Any determination by the Accounting Firm shall be binding upon
the Company and the Executive. As a result of the uncertainty in the
application of Section 4999 of the Code at the time of the initial determination
by the Accounting Firm hereunder, it is possible that Gross-Up Payments which
will not have been made by the Company should have been made ("Underpayment"),
consistent with the calculations required to be made hereunder. In the event
that the Company exhausts its
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remedies pursuant to Section 9(c) and the Executive thereafter is required to
make a payment of any Excise Tax, the Accounting Firm shall determine the amount
of the Underpayment that has occurred and any such Underpayment shall be
promptly paid by the Company to or for the benefit of the Executive.
(c) The Executive shall notify the Company in writing of any claim by
the Internal Revenue Service that, if successful, would require the payment by
the Company of the Gross-Up Payment. Such notification shall be given as soon
as practicable but no later than ten business days after the Executive is
informed in writing of such claim and shall apprise the Company of the nature of
such claim and the date on which such claim is requested to be paid. The
Executive shall not pay such claim prior to the expiration of the 30-day period
following the date on which he gives such notice to the Company (or such shorter
period ending on the date that any payment of taxes with respect to such claim
is due). If the Company notifies the Executive in writing prior to the
expiration of such period that it desires to contest such claim, the Executive
shall:
(i) give the Company any information reasonably requested by the
Company relating to such claim,
(ii) take such action in connection with contesting such claim as the
Company shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to such
claim by an attorney reasonably selected by the Company,
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(iii) cooperate with the Company in good faith in order effectively to
contest such claim, and
(iv) permit the Company to participate in any proceedings relating to
such claim; provided, however, that the Company shall bear and pay directly all
costs and expenses (including additional interest and penalties) incurred in
connection with such contest and shall indemnify and hold the Executive
harmless, on an after-tax basis, for any Excise Tax or income tax (including
interest and penalties with respect thereto) imposed as a result of such
representation and payment of costs and expenses. Without limitation on the
foregoing provisions of this Section 9(c), the Company shall control all
proceedings taken in connection with such contest and, at its sole option, may
pursue or forgo any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim and may, at its
sole option, either direct the Executive to pay the tax claimed and xxx for a
refund or contest the claim in any permissible manner, and the Executive agrees
to prosecute such contest to a determination before any administrative tribunal,
in a court of initial jurisdiction and in one or more appellate courts, as the
Company shall determine; provided, however, that if the Company directs the
Executive to pay such claim and xxx for a refund, the Company shall advance the
amount of such payment to the Executive, on an interest-free basis and shall
indemnify and hold the Executive harmless, on an after-tax basis, from any
Excise Tax or income tax (including interest or penalties with respect thereto)
imposed with respect to such advance or with respect to any imputed income with
respect to such advance; and further provided that any extension of the statute
of limita-
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tions relating to payment of taxes for the taxable year of the Executive with
respect to which such contested amount is claimed to be due is limited solely to
such contested amount. Furthermore, the Company's control of the contest shall
be limited to issues with respect to which a Gross-Up Payment would be payable
hereunder and the Executive shall be entitled to settle or contest, as the case
may be, any other issue raised by the Internal Revenue Service or any other
taxing authority.
(d) If, after the receipt by the Executive of an amount advanced by
the Company pursuant to Section 9(c), the Executive becomes entitled to receive
any refund with respect to such claim, the Executive shall (subject to the
Company's complying with the requirements of Section 9(c)) promptly pay to the
Company the amount of such refund (together with any interest paid or credited
thereon after taxes applicable thereto). If, after the receipt by the Executive
of an amount advanced by the Company pursuant to Section 9(c), a determination
is made that the Executive shall not be entitled to any refund with respect to
such claim and the Company does not notify the Executive in writing of its
intent to contest such denial of refund prior to the expiration of 30 days after
such determination, then such advance shall be forgiven and shall not be
required to be repaid and the amount of such advance shall offset, to the extent
thereof, the amount of Gross-Up Payment required to be paid.
10. ARBITRATION. (a) CLAIMS SUBJECT TO ARBITRATION. Company and
Executive mutually consent to the resolution by arbitration in Hartford,
Connecticut of all
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claims or controversies ("Claims"), whether or not arising out of Executive's
employment (or its termination), that Company may have against Executive or that
Executive may have against the Company or against its officers, directors,
shareholders, employees or agents in their capacity as such. Any such
arbitration shall be conducted in accordance with the employment dispute
resolution rules and procedures of the American Arbitration Association. The
claims covered by this Agreement include, but are not limited to, claims for
wages or other compensation due; claims for breach of any contract or covenant
(express or implied); tort claims; claims for discrimination (including, but not
limited to, race, sex, religion, national origin, age, marital status, or
medical condition, handicap or disability); claims for benefits (except where an
employee benefit or pension plan specifies that its claims procedure shall
culminate in an arbitration procedure different from this one), and claims for
violation of any federal, state, or other governmental law, statute, regulation,
or ordinance, except claims excluded in the following Subparagraph.
(b) CLAIMS NOT SUBJECT TO ARBITRATION. Claims Executive may have for
workers' compensation or unemployment compensation benefits are not covered
under this Section 10. Also not covered are claims by the Company for
injunctive and/or other equitable relief for breach of the Executive's covenant
not to compete, for unfair competition or for the use or unauthorized disclosure
of trade secrets or confidential information, as to which Executive understands
and agrees that the Company may seek and obtain relief from a court of competent
jurisdiction, without any obligation on the part of the Company to submit any
related issue to arbitration before seeking such relief.
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11. SUCCESSORS. (a) 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.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns.
(c) The Company shall 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 expressly to
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would have been required to perform it if no such
succession had taken place. As used in this Agreement, "Company" shall mean
both the Company as defined above and any such successor that assumes and agrees
to perform this Agreement, by operation of law or otherwise.
12. MISCELLANEOUS. (a) This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Connecticut, 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 except by a written agreement executed
by the parties hereto or their respective successors and legal representatives.
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Subject to the provisions of Section 10 of this Agreement, the courts
of record of the State of Connecticut or the Courts of the United States located
in the State of Connecticut shall have exclusive jurisdiction over any suit,
action or other proceeding arising out of this Agreement and, in the event that
it is brought, any such suit, action or other proceeding arising out of this
Agreement shall be filed in the Hartford Superior Court of the State of
Connecticut or the United States District Court in Hartford, Connecticut. The
parties hereto hereby irrevocably consent to the jurisdiction of each such court
in any such suit, action or proceeding.
(b) All notices and other communications under this Agreement 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:
Staf van Cauter
000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
IF TO THE COMPANY:
Packard BioScience Company
000 Xxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
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or to such other address as either party furnishes to the other in writing in
accordance with this paragraph (b) of Section 12. Notices and communications
shall be effective when actually received by the addressee.
(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. If any provision of this Agreement shall be held invalid or
unenforceable in part, the remaining portion of such provision, together with
all other provisions of this Agreement, shall remain valid and enforceable and
continue in full force and effect to the fullest extent consistent with law.
(d) Notwithstanding any other provision of this Agreement, the Company
may withhold from amounts payable under this Agreement all federal, state, local
and foreign taxes that are required to be withheld by applicable laws or
regulations.
(e) The Executive's or the Company's failure to insist upon strict
compliance with any provision of, or to assert any right under, this Agreement
(including, without limitation, the right of the Executive to terminate
employment for Good Reason pursuant to paragraph (c) of Section 4 of this
Agreement) shall not be deemed to be a waiver of such provision or right or of
any other provision of or right under this Agreement.
(f) The Executive and the Company acknowledge that this Agreement
supersedes any other agreement between them concerning the subject matter
hereof,
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including, without limitation, the Employment Agreement by and between the
Company and the Executive dated as of May 29, 1996, as amended, except that the
agreements set forth on Schedule A, attached hereto, shall not be superseded.
(g) This Agreement may be executed in several counterparts, each of
which shall be deemed an original, and said counterparts shall constitute but
one and the same instrument.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand
and, pursuant to the authorization of 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.
___________________________
Staf van Cauter
PACKARD BIOSCIENCE COMPANY
By:________________________
Its _______________________
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