EXHIBIT 10.5
HARVARD BIOSCIENCE, INC.
EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is made as of the
6th day of December, 2000, between Harvard Bioscience, Inc., a Delaware
corporation (the "Company"), and Xxxxx Xxxxxxxx ("Executive"). For purposes of
this Agreement the "Company" shall refer to the Company and any of its
predecessors.
WHEREAS, the Company desires to employ Executive and Executive desires
to be employed by the Company on the terms contained herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. EMPLOYMENT. The term of this Agreement shall extend from December 6, 2000
(the "Commencement Date") until the second anniversary of the Commencement Date;
provided, however, that the term of this Agreement shall automatically be
extended for two additional years on each second anniversary of the Commencement
Date unless, not less than 90 days prior to each such date, either party shall
have given notice to the other that it does not wish to extend this Agreement;
provided, further, that if a Change in Control occurs during the original or
extended term of this Agreement, the term of this Agreement shall,
notwithstanding anything in this sentence to the contrary, continue in effect
for a period of not less than eighteen (18) months beyond the month in which the
Change in Control occurred. The term of this Agreement shall be subject to
termination as provided in Paragraph 6 and may be referred to herein as the
"Period of Employment."
2. POSITION AND DUTIES. During the Period of Employment, Executive shall serve
as the Chief Executive Officer and member of the Board of Directors of the
Company, and shall have supervision and control over and responsibility for the
day-to-day business and affairs of those functions and operations of the Company
and shall have such other powers and duties as may from time to time be
prescribed by the Board of Directors of the Company (the "Board"), provided that
such duties are consistent with Executive's position or other positions that he
may hold from time to time. Executive shall devote his full working time and
efforts to the business and affairs of the Company. Notwithstanding the
foregoing, Executive may serve on other boards of directors, with the approval
of the Board, or engage in religious, charitable or other community activities
as long as such services and activities are disclosed to the Board and do not
materially interfere with Executive's performance of his duties to the Company
as provided in this Agreement.
3. COMPENSATION AND RELATED MATTERS.
(a) BASE SALARY AND INCENTIVE COMPENSATION. Executive's initial annual
base salary shall be Two Hundred Seventy-Five Thousand ($275,000) Dollars.
Executive's base salary shall be redetermined annually by the Board or a
Committee thereof. The base salary in effect at any given time is referred to
herein as "Base Salary." The Base Salary shall be payable in substantially equal
bi-weekly installments. In addition to Base Salary, Executive shall be eligible
to receive cash incentive compensation as determined by the Board or a Committee
thereof from time to time, and shall also be eligible to participate in such
incentive compensation plans as the Board or a Committee thereof shall determine
from time to time for employees of the same status within the hierarchy of the
Company.
(b) EXPENSES. Executive shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by him in performing services
hereunder during the Period of Employment, in accordance with the policies and
procedures then in effect and established by the Company for its senior
executive officers.
(c) OTHER BENEFITS. During the Period of Employment, Executive shall be
entitled to continue to participate in or receive benefits under all of the
Company's Employee Benefit Plans in effect on the date hereof, or under plans or
arrangements that provide no less favorable treatment to the Executive then the
Employee Benefit Plans provided to other members of the Company's senior
management. As used herein, the term "Employee Benefit Plans" includes, without
limitation, each pension and retirement plan; supplemental pension, retirement
and deferred compensation plan; savings and profit-sharing plan; stock ownership
plan; stock purchase plan; stock option plan; life insurance plan; medical
insurance plan; disability plan; and health and accident plan or arrangement
established and maintained by the Company on the date hereof for employees of
the same status within the hierarchy of the Company. During the Period of
Employment, Executive shall be entitled to an automobile or to a lease for an
automobile (the "Company Car") for up to $1,500.00 per month and the cost of
automobile insurance for such Company Car. To the extent that the scope or
nature of benefits described in this section is determined under the policies of
the Company based in whole or in part on the seniority or tenure of an
employee's service, Executive shall be deemed to have a tenure with the Company
equal to the actual time of Executive's service with the Company. During the
Period of Employment, Executive shall be entitled to participate in or receive
benefits under any employee benefit plan or arrangement which may, in the
future, be made available by the Company to its executives and key management
employees, subject to and on a basis consistent with the terms, conditions and
overall administration of such plan or arrangement. Any payments or benefits
payable to Executive under a plan or arrangement referred to in this
Subparagraph 3(c) in respect of any calendar year during which Executive is
employed by the Company for less than the whole of such year shall, unless
otherwise provided in the applicable plan or arrangement, be prorated in
accordance with the number of days in such calendar year during which he is so
employed. Should any such payments or benefits accrue on a fiscal (rather than
calendar) year, then the proration in the preceding sentence shall be on the
basis of a fiscal year rather than calendar year.
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(d) VACATIONS. Executive shall be entitled to twenty (20) paid
vacation days in each calendar year, which shall be accrued ratably during the
calendar year. Executive shall also be entitled to all paid holidays given by
the Company to its executives. To the extent that the scope or nature of
benefits described in this section are determined under the policies of the
Company based in whole or in part on the seniority or tenure of an employee's
service, Executive shall be deemed to have a tenure with the Company equal to
the actual time of Executive's service with Company.
4. UNAUTHORIZED DISCLOSURE.
(a) CONFIDENTIAL INFORMATION. Executive acknowledges that in the course
of his employment with the Company (and, if applicable, its predecessors), he
has been allowed to become, and will continue to be allowed to become,
acquainted with the Company's business affairs, information, trade secrets, and
other matters which are of a proprietary or confidential nature, including but
not limited to the Company's and its affiliates' and predecessors' operations,
business opportunities, price and cost information, finance, customer
information, business plans, various sales techniques, manuals, letters,
notebooks, procedures, reports, products, processes, services, and other
confidential information and knowledge (collectively the "Confidential
Information") concerning the Company's and its affiliates' and predecessors'
business. The Company agrees to provide on an ongoing basis such Confidential
Information as the Company deems necessary or desirable to aid Executive in the
performance of his duties. Executive understands and acknowledges that such
Confidential Information is confidential, and he agrees not to disclose such
Confidential Information to anyone outside the Company except to the extent that
(i) Executive deems such disclosure or use reasonably necessary or appropriate
in connection with performing his duties on behalf of the Company; (ii)
Executive is required by order of a court of competent jurisdiction (by subpoena
or similar process) to disclose or discuss any Confidential Information,
provided that in such case, Executive shall promptly inform the Company of such
event, shall cooperate with the Company in attempting to obtain a protective
order or to otherwise restrict such disclosure, and shall only disclose
Confidential Information to the minimum extent necessary to comply with any such
court order; (iii) such Confidential Information becomes generally known to and
available for use in the Company's industry (the "laboratory analytical
instruments industry"), other than as a result of any action or inaction by
Executive; or (iv) such information has been rightfully received by a member of
the laboratory analytical instruments industry or has been published in a form
generally available to the laboratory analytical instruments industry prior to
the date Executive proposes to disclose or use such information. Executive
further agrees that he will not during employment and/or at any time thereafter
use such Confidential Information in competing, directly or indirectly, with the
Company. At such time as Executive shall cease to be employed by the Company, he
will immediately turn over to the Company all Confidential Information,
including papers, documents, writings, electronically stored information, other
property, and all copies of them provided to or created by him during the course
of his employment with the Company.
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(b) HEIRS, SUCCESSORS, AND LEGAL REPRESENTATIVES. The foregoing
provisions of this Paragraph 4 shall be binding upon Executive's heirs,
successors, and legal representatives. The provisions of this Paragraph 4 shall
survive the termination of this Agreement for any reason.
5. COVENANT NOT TO COMPETE. In consideration for Executive's employment by the
Company under the terms provided in this Agreement and as a means to aid in the
performance and enforcement of the terms of the provisions of Paragraph 4,
Executive agrees that
(a) during the term of Executive's employment with the Company and for
a period of twelve (12) months thereafter, regardless of the reason for
termination of employment, Executive will not, directly or indirectly, as an
owner, director, principal, agent, officer, employee, partner, consultant,
servant, or otherwise, carry on, operate, manage, control, or become involved in
any manner with any business, operation, corporation, partnership, association,
agency, or other person or entity which is engaged in a business that produces
products that compete directly with any of the Company's products which are
produced by the Company or any affiliate of the Company or which the Company or
any affiliate of the Company has active plans to produce as of the date of
Executive's termination of employment with the Company, in any area or territory
in which the Company or any affiliate of the Company conducts or has active
plans to conduct operations as of the date of the Executive's termination of
employment with the Company; provided, however, that the foregoing shall not
prohibit Executive from owning up to one percent (1%) of the outstanding stock
of a publicly held company engaged in the laboratory analytical instruments
industry; and
(b) during the term of Executive's employment with the Company and for
a period of twelve (12) months thereafter, regardless of the reason for
termination of employment, Executive will not directly or indirectly solicit or
induce any present or future employee of the Company or any affiliate of the
Company to accept employment with Executive or with any business, operation,
corporation, partnership, association, agency, or other person or entity with
which Executive may be associated, and Executive will not hire or employ or
cause any business, operation, corporation, partnership, association, agency, or
other person or entity with which Executive may be associated to hire or employ
any present or future employee of the Company.
Should Executive violate any of the provisions of this Paragraph, then
in addition to all other rights and remedies available to the Company at law or
in equity, the duration of this covenant shall automatically be extended for the
period of time from which Executive began such violation until he permanently
ceases such violation.
6. TERMINATION. Executive's employment hereunder may be terminated without any
breach of this Agreement under the following circumstances:
(a) DEATH. Executive's employment hereunder shall terminate upon his
death.
(b) DISABILITY. If, as a result of Executive's incapacity due to
physical or mental illness, Executive shall have been absent from his duties
hereunder on a full-time basis for one
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hundred eighty (180) calendar days in the aggregate in any twelve (12) month
period, the Company may terminate Executive's employment hereunder.
(c) TERMINATION BY COMPANY FOR CAUSE. At any time during the Period of
Employment, the Company may terminate Executive's employment hereunder for Cause
if such termination is approved by not less than a majority of the Board at a
meeting of the Board called and held for such purpose. For purposes of this
Agreement, "Cause" shall mean: (A) conduct by Executive constituting a material
act of willful misconduct in connection with the performance of his duties,
including, without limitation, misappropriation of funds or property of the
Company or any of its affiliates other than the occasional, customary and de
minimis use of Company property for personal purposes; (B) criminal or civil
conviction of Executive, a plea of nolo contendere by Executive or conduct by
Executive that would reasonably be expected to result in material injury to the
reputation of the Company if he were retained in his position with the Company,
including, without limitation, conviction of a felony involving moral turpitude;
(C) continued, willful and deliberate non-performance by Executive of his duties
hereunder (other than by reason of Executive's physical or mental illness,
incapacity or disability) which has continued for more than thirty (30) days
following written notice of such non-performance from the Board; (D) a breach by
Executive of any of the provisions contained in Paragraphs 4 and 5 of this
Agreement; or (E) a violation by Executive of the Company's employment policies
which has continued following written notice of such violation from the Board.
(d) TERMINATION WITHOUT CAUSE. At any time during the Period of
Employment, the Company may terminate Executive's employment hereunder without
Cause if such termination is approved by a majority of the Board at a meeting of
the Board called and held for such purpose. Any termination by the Company of
Executive's employment under this Agreement which does not constitute a
termination for Cause under Subparagraph 6(c) or result from the death or
disability of the Executive under Subparagraph 6(a) or (b) shall be deemed a
termination without Cause. If the Company provides notice to Executive under
Paragraph 1 that it does not wish to extend the Period of Employment, such
action shall be deemed a termination without Cause.
(e) TERMINATION BY EXECUTIVE. At any time during the Period of
Employment, Executive may terminate his employment hereunder for any reason,
including but not limited to Good Reason. If Executive provides notice to the
Company under Paragraph 1 that he does not wish to extend the Period of
Employment, such action shall be deemed a voluntary termination by Executive and
one without Good Reason. For purposes of this Agreement, "Good Reason" shall
mean that Executive has complied with the "Good Reason Process" (hereinafter
defined) following the occurrence of any of the following events: (A) a
substantial diminution or other substantive adverse change, not consented to by
Executive, in the nature or scope of Executive's responsibilities, authorities,
powers, functions or duties; (B) any removal, during the Period of Employment,
from Executive of his title of Chief Executive Officer; (C) an involuntary
reduction in Executive's Base Salary except for across-the-board reductions
similarly affecting all or substantially all management employees; (D) a breach
by the Company of any of its other material obligations under this Agreement and
the failure of the Company to cure such breach
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within thirty (30) days after written notice thereof by Executive; (E) the
involuntary relocation of the Company's offices at which Executive is
principally employed or the involuntary relocation of the offices of Executive's
primary workgroup to a location more than 30 miles from such offices, or the
requirement by the Company that Executive be based anywhere other than the
Company's offices at such location on an extended basis, except for required
travel on the Company's business to an extent substantially consistent with
Executive's business travel obligations; or (F) the failure of the Company to
obtain the agreement from any successor to the Company to assume and agree to
perform this Agreement as required by Paragraph 10. "Good Reason Process" shall
mean that (i) Executive reasonably determines in good faith that a "Good Reason"
event has occurred; (ii) Executive notifies the Company in writing of the
occurrence of the Good Reason event; (iii) Executive cooperates in good faith
with the Company's efforts, for a period not less than ninety (90) days
following such notice, to modify Executive's employment situation in a manner
acceptable to Executive and Company; and (iv) notwithstanding such efforts, one
or more of the Good Reason events continues to exist and has not been modified
in a manner acceptable to Executive. If the Company cures the Good Reason event
in a manner acceptable to Executive during the ninety (90) day period, Good
Reason shall be deemed not to have occurred.
(f) NOTICE OF TERMINATION. Except for termination as specified in
Subparagraph 6(a), any termination of Executive's employment by the Company or
any such termination by Executive shall be communicated by written Notice of
Termination to the other party hereto. For purposes of this Agreement, a "Notice
of Termination" shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon.
(g) DATE OF TERMINATION. "Date of Termination" shall mean: (A) if
Executive's employment is terminated by his death, the date of his death; (B) if
Executive's employment is terminated on account of disability under Subparagraph
6(b) or by the Company for Cause under Subparagraph 6(c), the date on which
Notice of Termination is given; (C) if Executive's employment is terminated by
the Company under Subparagraph 6(d), sixty (60) days after the date on which a
Notice of Termination is given; and (D) if Executive's employment is terminated
by Executive under Subparagraph 6(e), thirty (30) days after the date on which a
Notice of Termination is given.
7. COMPENSATION UPON TERMINATION OR DURING DISABILITY.
(a) DEATH. If Executive's employment terminates by reason of his death,
the Company shall, within ninety (90) days of death, pay in a lump sum amount to
such person as Executive shall designate in a notice filed with the Company or,
if no such person is designated, to Executive's estate, Executive's accrued and
unpaid Base Salary to the date of his death, plus his accrued and unpaid
incentive compensation, if any, under Subparagraph 3(a). Upon the death of
Executive, all unvested stock options shall immediately vest in Executive's
estate or other legal representatives and become exercisable. All other
stock-based grants and awards held by Executive shall vest or be canceled upon
the death of Executive in accordance with their terms. For a period of one (1)
year following the Date of Termination, the Company shall pay such
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health insurance premiums as may be necessary to allow Executive's spouse and
dependents to receive health insurance coverage substantially similar to
coverage they received prior to the Date of Termination. In addition to the
foregoing, any payments to which Executive's spouse, beneficiaries, or estate
may be entitled under any employee benefit plan shall also be paid in accordance
with the terms of such plan or arrangement. Such payments, in the aggregate,
shall fully discharge the Company's obligations hereunder.
(b) DISABILITY. During any period that Executive fails to perform his
duties hereunder as a result of incapacity due to physical or mental illness,
Executive shall continue to receive his accrued and unpaid Base Salary and
accrued and unpaid incentive compensation, if any, under Subparagraph 3(a),
until Executive's employment is terminated due to disability in accordance with
Subparagraph 6(b) or until Executive terminates his employment in accordance
with Subparagraph 6(e), whichever first occurs. Upon the Date of Termination,
all unvested stock options shall immediately vest and become exercisable. All
other stock-based grants and awards held by Executive shall vest or be canceled
upon the Date of Termination in accordance with their terms. For a period of one
(1) year following the Date of Termination, the Company shall pay such health
insurance premiums as may be necessary to allow Executive and Executive's spouse
and dependents to receive health insurance coverage substantially similar to
coverage they received prior to the Date of Termination. Upon termination due to
death prior to the termination first to occur as specified in the preceding
sentence, Subparagraph 7(a) shall apply.
(c) TERMINATION OTHER THAN FOR GOOD REASON. If Executive's employment
is terminated by Executive other than for Good Reason as provided in
Subparagraph 6(e), then the Company shall, through the Date of Termination, pay
Executive his accrued and unpaid Base Salary at the rate in effect at the time
Notice of Termination is given. Thereafter, the Company shall have no further
obligations to Executive except as otherwise expressly provided under this
Agreement, provided any such termination shall not adversely affect or alter
Executive's rights under any employee benefit plan of the Company in which
Executive, at the Date of Termination, has a vested interest, unless otherwise
provided in such employee benefit plan or any agreement or other instrument
attendant thereto. In addition, all vested but unexercised stock options held by
Executive as of the Date of Termination must be exercised by Executive within
three (3) months following the Date of Termination or by the end of the option
term, if earlier. All other stock-based grants and awards held by Executive
shall vest or be canceled upon the Date of Termination in accordance with their
terms.
(d) TERMINATION FOR GOOD REASON. If Executive terminates his employment
for Good Reason as provided in Subparagraph 6(e) or if Executive's employment is
terminated by the Company without Cause as provided in Subparagraph 6(d), then
the Company shall, through the Date of Termination, pay Executive his accrued
and unpaid Base Salary at the rate in effect at the time Notice of Termination
is given and his accrued and unpaid incentive compensation, if any, under
Subparagraph 3(a). In addition, subject to signing by Executive of a general
release of claims in a form and manner satisfactory to the Company,
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(i) the Company shall pay Executive an amount equal to two (2)
times the sum of Executive's Average Base Salary and his Average
Incentive Compensation (the "Severance Amount"). The Severance Amount
shall be paid out in substantially equal bi-weekly installments over
twelve (12) months, in arrears or in a lump sum. For purposes of this
Agreement, "Average Base Salary" shall mean the average of the annual
Base Salary received by Executive for each of the three (3) immediately
preceding fiscal years or such fewer number of complete fiscal years as
Executive may have been employed by the Company or the amount of Base
Salary for the prior fiscal year, whichever is higher. For purposes of
this Agreement, "Average Incentive Compensation" shall mean the average
of the annual incentive compensation under Subparagraph 3(a) received
by Executive for the three (3) immediately preceding fiscal years or
such fewer number of complete fiscal years as Executive may have been
employed by the Company or the amount of incentive compensation for the
prior fiscal year, whichever is higher. In no event shall "Average
Incentive Compensation" include any sign-on bonus, retention bonus or
any other special bonus. Notwithstanding the foregoing, if the
Executive breaches any of the provisions contained in Paragraphs 4 and
5 of this Agreement, all payments of the Severance Amount shall
immediately cease. Furthermore, in the event Executive terminates his
employment for Good Reason as provided in Subparagraph 6(e), he shall
be entitled to the Severance Amount only if he provides the Notice of
Termination provided for in Subparagraph 6(f) within thirty (30) days
after the occurrence of the event or events which constitute such Good
Reason as specified in clauses (A), (B), (C), (D) and (E) of
Subparagraph 6(e); and
(ii) upon the Date of Termination, each unvested stock option
that would otherwise vest during the next twenty-four (24) months
shall accelerate and immediately vest. All other stock-based grants
and awards held by Executive that would otherwise vest during the next
twenty-four (24) months shall accelerate and immediately vest upon the
Date of Termination; and
(iii) in addition to any other benefits to which Executive may
be entitled in accordance with the Company's then existing severance
policies, the Company shall, for a period of one (1) year commencing on
the Date of Termination, pay such health insurance premiums as may be
necessary to allow Executive and Executive's spouse and dependents to
continue to receive health insurance coverage.
(e) TERMINATION FOR CAUSE. If Executive's employment is terminated by
the Company for Cause as provided in Subparagraph 6(c), then the Company shall,
through the Date of Termination, pay Executive his accrued and unpaid Base
Salary at the rate in effect at the time Notice of Termination is given.
Thereafter, the Company shall have no further obligations to Executive except as
otherwise expressly provided under this Agreement, provided any such termination
shall not adversely affect or alter Executive's rights under any employee
benefit plan of the Company in which Executive, at the Date of Termination, has
a vested interest, unless otherwise provided in such employee benefit plan or
any agreement or other instrument attendant thereto. In addition, all stock
options held by Executive as of the Date of Termination shall
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immediately terminate and be of no further force and effect, and all other
stock-based grants and awards shall be canceled or terminated in accordance with
their terms.
(f) Nothing contained in the foregoing Subparagraphs 7(a) through 7(e)
shall be construed so as to affect Executive's rights or the Company's
obligations relating to agreements or benefits which are unrelated to
termination of employment.
8. CHANGE IN CONTROL PAYMENT. The provisions of this Paragraph 8 set forth
certain terms of an agreement reached between Executive and the Company
regarding Executive's rights and obligations upon the occurrence of a Change in
Control of the Company. These provisions are intended to assure and encourage in
advance Executive's continued attention and dedication to his assigned duties
and his objectivity during the pendency and after the occurrence of any such
event. These provisions shall apply in lieu of, and expressly supersede, the
provisions of Subparagraph 7(d)(i) regarding severance pay upon a termination of
employment, if such termination of employment occurs within eighteen (18) months
after the occurrence of the first event constituting a Change of Control,
provided that such first event occurs during the Period of Employment. These
provisions shall terminate and be of no further force or effect beginning
eighteen (18) months after the occurrence of a Change of Control.
(a) CHANGE IN CONTROL.
(i) If within eighteen (18) months after the occurrence of the
first event constituting a Change in Control, Executive's employment is
terminated by the Company without Cause as provided in Subparagraph
6(d) or Executive terminates his employment for Good Reason as provided
in Subparagraph 6(e), then the Company shall pay Executive a lump sum
in cash in an amount equal to three (3) times the sum of (A)
Executive's current or most recent Base Salary plus (B) Executive's
most recent annual incentive compensation under Subparagraph 3(a) for
the most recent fiscal year, excluding any sign-on bonus, retention
bonus or any other special bonus; and
(ii) Notwithstanding anything to the contrary in any
applicable option agreement or stock-based award agreement, upon a
Change in Control, all stock options and other stock-based awards
granted to Executive by the Company shall immediately accelerate and
become exercisable or non-forfeitable as of the effective date of such
Change in Control. Executive shall also be entitled to any other rights
and benefits with respect to stock-related awards, to the extent and
upon the terms provided in the employee stock option or incentive plan
or any agreement or other instrument attendant thereto pursuant to
which such options or awards were granted; and
(iii) The Company shall, for a period of one (1) year
commencing on the Date of Termination, pay such health insurance
premiums as may be necessary to allow Executive, Executive's spouse and
dependents to continue to receive health insurance coverage
substantially similar to the coverage they received prior to the Date
of Termination.
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(b) GROSS UP PAYMENT.
(i) Anything in this Agreement to the contrary
notwithstanding, in the event it shall be determined that any
compensation, payment or distribution by the Company to or for the
benefit of Executive, whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise (the
"Severance Payments"), 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 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 Executive shall be entitled to receive an
additional payment (a "Gross-Up Payment") such that the net amount
retained by Executive, after deduction of any Excise Tax on the
Severance Payments, any Federal, state, and local income tax,
employment tax and Excise Tax upon the payment provided by this
subsection, and any interest and/or penalties assessed with respect to
such Excise Tax, shall be equal to the Severance Payments.
(ii) Subject to the provisions of Subparagraph 8(b)(iii), all
determinations required to be made under this Subparagraph 8(b)(ii),
including whether a Gross-Up Payment is required and the amount of such
Gross-Up Payment, shall be made by KPMG LLP or any other nationally
recognized accounting firm selected by the Company (the "Accounting
Firm"), which shall provide detailed supporting calculations both to
the Company and Executive within fifteen (15) business days of the Date
of Termination, if applicable, or at such earlier time as is reasonably
requested by the Company or Executive. For purposes of determining the
amount of the Gross-Up Payment, Executive shall be deemed to pay
federal income taxes at the highest marginal rate of federal income
taxation applicable to individuals for the calendar year in which the
Gross-Up Payment is to be made, and state and local income taxes at the
highest marginal rates of individual taxation in the state and locality
of Executive's residence on the Date of Termination, net of the maximum
reduction in federal income taxes which could be obtained from
deduction of such state and local taxes. The initial Gross-Up Payment,
if any, as determined pursuant to this Subparagraph 8(b)(iii), shall be
paid to Executive within five (5) days of the receipt of the Accounting
Firm's determination. Any determination by the Accounting Firm shall be
binding upon the Company and 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 (an "Underpayment"). In the event that the
Company exhausts its remedies pursuant to Subparagraph 8(b)(iii) and
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, consistent with the calculations required to be made
hereunder, and any such Underpayment, and any interest and penalties
imposed on the Underpayment and required to be paid by
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Executive in connection with the proceedings described in Subparagraph
8(b)(iii), shall be promptly paid by the Company to or for the benefit
of Executive.
(iii) 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 (10) business days after Executive knows 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. 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 Executive in writing prior to the
expiration of such period that it desires to contest such claim,
provided that the Company has set aside adequate reserves to cover the
Underpayment and any interest and penalties thereon that may accrue,
Executive shall:
(A) give the Company any information reasonably
requested by the Company relating to such claim,
(B) 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
selected by the Company,
(C) cooperate with the Company in good faith in order
to effectively contest such claim, and
(D) 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
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 Subparagraph 8(b)(iii), the
Company shall control all proceedings taken in connection with
such contest and, at its sole option, may pursue or forego 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 Executive to pay
the tax claimed and xxx for a refund or contest the claim in
any permissible manner, and 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 Executive to pay such
claim and xxx for a refund, the Company shall advance the
amount of such payment to Executive on
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an interest-free basis and shall indemnify and hold
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 limitations relating to payment of taxes for the
taxable year of 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 Executive
shall be entitled to settle or contest, as the case may be,
any other issues raised by the Internal Revenue Service or
any other taxing authority.
(iv) If, after the receipt by Executive of an amount advanced
by the Company pursuant to Subparagraph 8(b)(iii), Executive becomes
entitled to receive any refund with respect to such claim, Executive
shall (subject to the Company's complying with the requirements of
Subparagraph 8(b)(iii)) 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 Executive of an amount
advanced by the Company pursuant to Subparagraph 8(b)(iii), a
determination is made that Executive shall not be entitled to any
refund with respect to such claim and the Company does not notify
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.
(c) DEFINITIONS. For purposes of this Paragraph 8, the following terms
shall have the following meanings:
"CHANGE IN CONTROL" shall mean any of the following:
(a) any "person," as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the "Act")
(other than the Company, any of its subsidiaries, or any trustee,
fiduciary or other person or entity holding securities under any
employee benefit plan or trust of the Company or any of its
subsidiaries), together with all "affiliates" and "associates" (as such
terms are defined in Rule 12b-2 under the Act) of such person, shall
become the "beneficial owner" (as such term is defined in Rule 13d-3
under the Act), directly or indirectly, of securities of the Company
representing twenty-five percent (25%) or more of either (A) the
combined voting power of the Company's then outstanding securities
having the right to vote in an election of the Company's Board ("Voting
Securities") or (B) the then outstanding shares of Company's common
stock, par value $0.01 per share ("Common Stock") (other than as a
result of an acquisition of securities directly from the Company); or
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(b) persons who, as of the Commencement Date, constitute the
Company's Board (the "Incumbent Directors") cease for any reason,
including, without limitation, as a result of a tender offer, proxy
contest, merger or similar transaction, to constitute at least a
majority of the Board, provided that any person becoming a director of
the Company subsequent to the Commencement Date shall be considered an
Incumbent Director if such person's election was approved by or such
person was nominated for election by a vote of at least a majority of
the Incumbent Directors; but provided further, that any such person
whose initial assumption of office is in connection with an actual or
threatened election contest relating to the election of members of the
Board or other actual or threatened solicitation of proxies or consents
by or on behalf of a person other than the Board, including by reason
of agreement intended to avoid or settle any such actual or threatened
contest or solicitation, shall not be considered an Incumbent Director;
or
(c) the stockholders of the Company shall approve (A) any
consolidation or merger of the Company where the stockholders of the
Company, immediately prior to the consolidation or merger, would not,
immediately after the consolidation or merger, beneficially own (as
such term is defined in Rule 13d-3 under the Act), directly or
indirectly, shares representing in the aggregate more than fifty
percent (50%) of the voting shares of the Company issuing cash or
securities in the consolidation or merger (or of its ultimate parent
corporation, if any), (B) any sale, lease, exchange or other transfer
(in one transaction or a series of transactions contemplated or
arranged by any party as a single plan) of all or substantially all of
the assets of the Company or (C) any plan or proposal for the
liquidation or dissolution of the Company.
Notwithstanding the foregoing, a "Change of Control" shall not be
deemed to have occurred for purposes of the foregoing clause (a) solely as the
result of an acquisition of securities by the Company which, by reducing the
number of shares of Common Stock or other Voting Securities outstanding,
increases the proportionate number of shares beneficially owned by any person to
twenty-five percent (25%) or more of either (A) the combined voting power of all
of the then outstanding Voting Securities or (B) Common Stock; PROVIDED,
HOWEVER, that if any person referred to in this sentence shall thereafter become
the beneficial owner of any additional shares of Voting Securities or Common
Stock (other than pursuant to a stock split, stock dividend, or similar
transaction or as a result of an acquisition of securities directly from the
Company) and immediately thereafter beneficially owns twenty-five percent (25%)
or more of either (A) the combined voting power of all of the then outstanding
Voting Securities or (B) Common Stock, then a "Change of Control" shall be
deemed to have occurred for purposes of the foregoing clause (a).
9. NOTICE. For purposes of this Agreement, notices and all other communications
provided for in the Agreement shall be in writing and shall be deemed to have
been duly given when delivered or mailed by United States certified mail, return
receipt requested, postage prepaid, addressed as follows:
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if to the Executive:
At his home address as shown
in the Company's personnel records;
if to the Company:
Harvard Bioscience, Inc.
00 Xxxxxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000-0000
Attention: Board of Directors of Harvard Bioscience, Inc.
with a copy to:
H. Xxxxx Xxxxxx, P.C.
Xxxxxxx, Procter & Xxxx XXX
Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
10. SUCCESSOR TO COMPANY. The Company shall require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Company expressly to assume
and agree to perform this Agreement to the same extent that the Company would be
required to perform it if no succession had taken place. Failure of the Company
to obtain an assumption of this Agreement at or prior to the effectiveness of
any succession shall be a breach of this Agreement and shall constitute Good
Reason if the Executive elects to terminate employment.
11. MISCELLANEOUS. No provisions of this Agreement may be modified, waived, or
discharged unless such waiver, modification, or discharge is agreed to in
writing and signed by Executive and such officer of the Company as may be
specifically designated by the Board. No waiver by either party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, unless specifically
referred to herein, with respect to the subject matter hereof have been made by
either party which are not set forth expressly in this Agreement. The validity,
interpretation, construction, and performance of this Agreement shall be
governed by the laws of the Commonwealth of Massachusetts (without regard to
principles of conflicts of laws).
12. VALIDITY. The invalidity or unenforceability of any provision or provisions
of this Agreement shall not affect the validity or enforceability of any other
provision of this
14
Agreement, which shall remain in full force and effect. The invalid portion of
this Agreement, if any, shall be modified by any court having jurisdiction to
the extent necessary to render such portion enforceable.
13. COUNTERPARTS. This Agreement may be executed in several counterparts, each
of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
14. ARBITRATION; OTHER DISPUTES. In the event of any dispute or controversy
arising under or in connection with this Agreement, the parties shall first
promptly try in good faith to settle such dispute or controversy by mediation
under the applicable rules of the American Arbitration Association before
resorting to arbitration. In the event such dispute or controversy remains
unresolved in whole or in part for a period of thirty (30) days after it arises,
the parties will settle any remaining dispute or controversy exclusively by
arbitration in Boston, Massachusetts, in accordance with the rules of the
American Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction. Notwithstanding the above,
the Company shall be entitled to seek a restraining order or injunction in any
court of competent jurisdiction to prevent any continuation of any violation of
Paragraph 4 or 5 hereof. Furthermore, should a dispute occur concerning
Executive's mental or physical capacity as described in Subparagraph 6(b), 6(c)
or 7(b), a doctor selected by Executive and a doctor selected by the Company
shall be entitled to examine Executive. If the opinion of the Company's doctor
and Executive's doctor conflict, the Company's doctor and Executive's doctor
shall together agree upon a third doctor, whose opinion shall be binding.
15. THIRD-PARTY AGREEMENTS AND RIGHTS. Executive represents to the Company that
Executive's execution of this Agreement, Executive's employment with the Company
and the performance of Executive's proposed duties for the Company will not
violate any obligations Executive may have to any employer or other party, and
Executive will not bring to the premises of the Company any copies or other
tangible embodiments of non-public information belonging to or obtained from any
such previous employment or other party.
16. LITIGATION AND REGULATORY COOPERATION. During and after Executive's
employment, Executive shall reasonably cooperate with the Company in the defense
or prosecution of any claims or actions now in existence or which may be brought
in the future against or on behalf of the Company which relate to events or
occurrences that transpired while Executive was employed by the Company;
provided, however, that such cooperation shall not materially and adversely
affect Executive or expose Executive to an increased probability of civil or
criminal litigation. Executive's cooperation in connection with such claims or
actions shall include, but not be limited to, being available to meet with
counsel to prepare for discovery or trial and to act as a witness on behalf of
the Company at mutually convenient times. During and after Executive's
employment, Executive also shall cooperate fully with the Company in connection
with any investigation or review of any federal, state or local regulatory
authority as any such investigation or review relates to events or occurrences
that transpired while Executive was employed by the Company. The Company shall
also provide Executive with compensation on
15
an hourly basis at a rate of $147.53 for requested litigation and regulatory
cooperation that occurs after his termination of employment, and reimburse
Executive for all costs and expenses incurred in connection with his performance
under this Paragraph 16, including, but not limited to, reasonable attorneys'
fees and costs.
17. GENDER NEUTRAL. Wherever used herein, a pronoun in the masculine gender
shall be considered as including the feminine gender unless the context clearly
indicates otherwise.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
on the date and year first above written.
HARVARD BIOSCIENCE, INC.
By: /s/ Xxxxx Xxxxx
----------------------------------
Name : Xxxxx Xxxxx
--------------------------
Title: President
--------------------------
EXECUTIVE
/s/ Xxxxx Xxxxxxxx
-------------------------------------
Xxxxx Xxxxxxxx
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