Exhibit 10.69
November 26, 2003
Mr. Barry S. Howe
34 Christopher Lane
Sudbury, Massachusetts 01776
Dear Barry:
This letter confirms our arrangement regarding the termination of your
employment with Thermo Electron Corporation, and any of its subsidiaries and
affiliates (collectively, the "Company").
The following is our agreement related to the termination of your
employment with the Company:
1. Termination of Employment: Your employment with the Company will terminate
effective as of May 31, 2004. The date your employment ends is referred to
below as the "Employment Termination Date." You will be paid your current
regular base salary through the Employment Termination Date. You may
accelerate the Employment Termination Date to a date earlier than May 21,
2004 if you wish, in which case your employment and base salary payments
will cease as of that earlier date. If before May 31, 2004 you accept a job
offer from a business that competes, anywhere in the world, with a Company
business you shall be deemed to have accelerated the Employment Termination
Date to the date of such acceptance; provided, however, that those
businesses which compete with a Company business shall be excluded from
causing an acceleration of the Employment Termination Date if the Company
business has annual revenue of less than five million dollars.
During the period beginning on the date this letter agreement becomes
irrevocable and ending on the Employment Termination Date, your title will
be Vice President, New Business Development, reporting to Marijn E.
Dekkers.
You hereby resign as an officer or director of any of the Company's
subsidiaries or affiliates, effective as of the day this letter agreement
becomes irrevocable.
2. 2003 Bonus: You will be entitled to receive a bonus for your performance in
2003 in accordance with the Company's plan applicable to you, but not less
than the amount of your target bonus ($195,000), which bonus shall be
payable at the same time in 2004 as
Mr. Barry S. Howe
November 26, 2003
Page 2
bonuses to other employees are paid. You will not be eligible for a bonus
for fiscal year 2004.
3. Severance Payment: You will be entitled to receive severance of $487,500
(equivalent to 18 months of your annual base salary of $325,000). You will
receive the severance payment within 10 days after the later of the
Employment Termination Date or the date this letter agreement becomes
irrevocable.
4. Accrued Vacation: Payment of your accrued but unused vacation account will
be made in a lump sum on your Employment Termination Date. You will not
continue to earn vacation or other paid time off after the Employment
Termination Date.
5. Full Payment: You agree that all payments provided to you under paragraphs
1, 2 and 4 of this Agreement are in complete satisfaction of any and all
amounts due to you from the Company through the Employment Termination
Date, except for any business expense reimbursement payable to you by the
Company in accordance with any Company policy applicable to you. You agree
not to use your Company credit card for any personal expenses.
6. Employee Benefit Programs: Your participation in all employee benefit
programs of the Company will cease in accordance with the terms of those
programs. For example, your medical and dental coverage will terminate on
the last day of the calendar month in which your termination occurred. Your
eligibility for long term disability (LTD) and all life insurance benefits
will cease on the date of termination. Your access to the Employee
Assistance Plan (EAP) will continue for sixty (60) days from your date of
termination. Provided you have been receiving Company medical benefits at
the time of your termination, you will have the option to exercise your
COBRA rights to purchase health and dental insurance under the Company's
group plans. All COBRA premium costs shall be paid by you on a monthly
basis for as long as, and to the extent that, you remain eligible for COBRA
continuation. You should consult the COBRA materials to be provided by the
Company under separate cover for details regarding these benefits.
7. 401(k) Plan: Under the rules of the Company's 401(k) plan, your active
participation in the plan shall end on the Employment Termination Date.
Information will be provided to you regarding various election options
available to you regarding your account.
8. Stock Options: No further vesting of your stock options in the Company and
no further lapsing of the Company's repurchase rights will occur after the
Employment Termination Date. If you do not exercise your vested options by
the earlier of (i) the date of the original expiration date of the options,
or (ii) the date that is three months after the Employment Termination
Date, your options will expire and be canceled, and you will have no
further rights with respect to your options; however, if you are 55 or
older and have been employed by the Company for at least 10 years, you may
have a longer period
Mr. Barry S. Howe
November 26, 2003
Page 3
to exercise some of your options. Please consult your Human Resources
representative if you meet these criteria.
9. Taxes: All payments by the Company under this Agreement will be reduced by
all taxes and other amounts that the Company is required to withhold under
applicable law and all other deductions authorized by you.
10. Company Property: You will return to the Company any and all documents,
materials and information related to the Company, or its subsidiaries,
affiliates or businesses, and all other property of the Company, (with the
exception of your current laptop computer, which you may retain provided
you delete all Company related confidential material before the Employment
Termination Date) including, without limitation, equipment and files in
your possession or control, on or before the Employment Termination Date.
Further, you agree that on and after the Employment Termination Date you
will not for any purpose attempt to access or use any Company computer or
computer network or system, including without limitation its electronic
mail system.
11. Outplacement Services: You will be entitled to utilize until the first
anniversary of the Employment Termination Date, at no cost to you, the
services of an outplacement firm selected by the Company, up to a maximum
charge of $20,000 for such services.
12. Release: In exchange for a portion of the payments outlined in paragraphs 3
and 11 hereof, you hereby irrevocably and unconditionally waive, release,
acquit and forever discharge the Company and each of its respective
current, former or future officers, directors, employees, agents,
representatives, shareholders and legal predecessors and successors, from
any and all claims, liabilities, damages, actions, causes of action and
suits, whether known or unknown, which you now have, own or hold, or claim
to have, own or hold, or which at any time heretofore, had owned or held,
or claimed to have owned or held, or which you at any time hereafter may
have, own or hold, or claim to have owned or held against them, based upon,
arising out of or in connection with any circumstance, matter or state of
fact up to the date of this agreement, including without limitation those
based upon or arising out of the termination of your employment and other
relationships with the Company, your compensation while employed by the
Company, your stock options or any terms thereof or relating thereto and
any of the Company's policies, procedures or requirements, except for your
rights arising from this agreement. This release includes, but is not
limited to, any claims for breach of contract, wrongful termination, or
age, sex, race, disability or other discrimination under the Civil Rights
Act of 1964, as amended, the Age Discrimination in Employment Act of 1967
or other federal, state or local laws prohibiting such discrimination or
under any other federal, state or local employment laws.
Mr. Barry S. Howe
November 26, 2003
Page 4
YOU UNDERSTAND AND ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED TO SEEK THE
ADVICE OF AN ATTORNEY, IF YOU SO CHOOSE, PRIOR TO SIGNING THIS RELEASE AND
TO THE EXTENT DESCRIBED HEREIN YOU ARE GIVING UP ANY LEGAL CLAIMS YOU HAVE
AGAINST THE COMPANY AND EACH OF ITS RESPECTIVE CURRENT, FORMER OR FUTURE
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, SHAREHOLDERS,
LEGAL PREDECESSORS AND SUCCESSORS, BY SIGNING THIS RELEASE. YOU FURTHER
UNDERSTAND THAT YOU MAY HAVE 21 DAYS TO CONSIDER THIS AGREEMENT, THAT YOU
MAY REVOKE IT AT ANY TIME DURING THE SEVEN DAYS AFTER YOU SIGN IT, AND THAT
IT WILL NOT BECOME EFFECTIVE UNTIL THE 7-DAY REVOCATION PERIOD HAS PASSED
WITHOUT REVOCATION. YOU FULLY UNDERSTAND YOUR RIGHT TO TAKE 21 DAYS TO
CONSIDER SIGNING THIS RELEASE AND, AFTER HAVING SUFFICIENT TIME TO CONSIDER
YOUR OPTIONS, YOU HEREBY WAIVE YOUR RIGHT TO TAKE THE FULL 21-DAY PERIOD.
YOU ACKNOWLEDGE THAT YOU ARE SIGNING THIS RELEASE KNOWINGLY, WILLINGLY AND
VOLUNTARILY IN EXCHANGE FOR A PORTION OF THE CONSIDERATION DESCRIBED IN
PARAGRAPHS 3 AND 11 HEREOF.
Section 1542 Waiver - If you are employed in California, you understand and
agree that the claims released in this paragraph 12 above include not only
claims presently known to you, but also include all unknown or
unanticipated claims, rights, demands, actions, obligations, liabilities,
and causes of action of every kind and character that would otherwise come
within the scope of the released claims as described above in this
paragraph 12. You understand that you may hereafter discover facts
different from what you now believe to be true, which if known, could have
materially affected this Agreement, but you nevertheless waive any claims
or rights based on different or additional facts. You knowingly and
voluntarily waive any and all rights or benefits that you may now have, or
in the future may have, under the terms of Section 1542 of the Civil Code
of the State of California, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH A CREDITOR DOES NOT KNOW
OF OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE
WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.
13. Non-Solicitation: Until May 31, 2005 (August 1, 2004 in the case of your
executive assistant), you hereby agree that you will not induce any
employee of the Company to terminate his or her employment with the
Company, or hire or cause to be hired any such employee so induced.
Mr. Barry S. Howe
November 26, 2003
Page 5
14. Restriction on Purchase or Sale of Common Stock: You understand that as of
the date this letter agreement becomes irrevocable you will no longer be a
"Reporting Person," for purposes of Section 16 of the Securities Exchange
Act of 1934 and the rules and regulations promulgated thereunder. However,
you understand that for a period of six months following such date you are
required to report certain transactions pursuant to such rules and
regulations on Forms 4 and 5.
15. Non-Disparagement: You agree that you will continue to support and promote
the interests of the Company and that you will not criticize, disparage,
defame or in any way comment negatively to anyone about the Company or any
of the people or organizations connected with it, or do or say anything
that could disrupt the good morale of the employees of the Company or
otherwise harm the interests or reputation of the Company and any of the
organizations or people connected with it. Thermo Electron Corporation
agrees to cause its officers to not criticize, disparage, defame or in any
way comment negatively about you to anyone outside of the Company. Nothing
in this paragraph shall prevent the parties from (i) complying with
compulsory legal process or otherwise making disclosures in connection with
litigation or administrative proceedings, (ii) making such disclosures as
are necessary to obtain legal advice, (iii) making disclosures as are
required by federal, state or local regulatory authorities, and (iv) making
disclosures which by law are required or cannot be prohibited.
16. Cooperation: You agree to reasonably cooperate with the Company with
respect to all matters arising during or related to your employment,
including but not limited to cooperation in connection with any
governmental investigation, litigation or regulatory or other proceeding
which may have arisen or which may arise following the signing of this
Agreement. If such cooperation requires that you travel outside the Boston
metropolitan area, the Company shall reimburse you for your travel expenses
in accordance with Company policy applicable to business travel by
executive officers, and if your cooperation requires expenditure of a
material amount of your time after the Employment Termination Date, the
Company shall compensate you at a per diem rate that reflects your current
base salary.
17. Waiver of Jury Trial: Each of the parties hereby expressly, knowingly and
voluntarily waives all benefit and advantage of any right to a trial by
jury, and agrees that neither you nor the Company will at any time insist
upon, or plead or in any manner whatsoever claim or take the benefit or
advantage of, a trial by jury in any action arising in connection with this
Agreement.
Mr. Barry S. Howe
November 26, 2003
Page 6
18. Company Information and Invention Agreement: You agree to comply with the
terms of a Company Information and Invention Agreement, a copy of which is
attached hereto as Exhibit A. Such agreement supersedes any prior agreement
covering the same subject matter, which you may have signed with the
Company previously.
19. Entire Agreement: This letter contains the entire Agreement between you and
the Company and supersedes all prior and contemporaneous agreements,
communications and understandings, whether written or oral, relating to the
subject matter of this letter, except that the Company Information and
Invention Agreement, the Executive Retention Agreement between the Company
and you dated January 17, 2001, and the Indemnification Agreement between
the Company and you dated January 18, 2001 shall survive in accordance with
their terms. If your Employment Termination Date follows a "Change in
Control Date" your termination of employment shall be deemed a termination
on the Employment Termination Date by the Company without "Cause" and you
shall be entitled to the benefits provided in the Executive Retention
Agreement in lieu of the severance payment provided in paragraph 3 of this
letter. The quoted phrases in the preceding sentence are as defined in the
Executive Retention Agreement."
20. This Agreement will be governed by and interpreted in accordance with the
laws of the Commonwealth of Massachusetts without regard to choice of law
provisions.
21. Severability: If one or more provisions of this Agreement are held to be
unenforceable under applicable law, such provision shall be excluded from
this Agreement and replaced with a provision which is enforceable and comes
closest to the intent of the parties underlying the unenforceable
provision.
22. Relief: In the event of breach of the provisions of this Agreement by any
party, in addition to any other rights that the other parties may have
under law or in equity, each party shall have the right to specific
performance and injunctive relief, it being acknowledged and agreed that
money damages will not provide an adequate remedy. In the event litigation
is brought with respect to this Agreement, the prevailing party shall be
entitled to recover from the losing party his or its reasonable attorney's
fees and expenses.
23. Successors and Assigns: This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and
assigns, including corporations with which, or into which, the Company may
be merged or which may succeed to its respective assets or business;
provided, however, that your obligations are personal and may not be
assigned.
24. Amendment: This Agreement may be amended or modified only by a written
instrument executed by you and the Company.
Mr. Barry S. Howe
November 26, 2003
Page 7
25. Voluntary Agreement: In signing this Agreement, you give the Company
assurance that you have signed it voluntarily and with a full understanding
of its terms and that you have had sufficient opportunity to consider this
Agreement and to consult with anyone of your choosing before signing it. If
the terms of this Agreement are acceptable to you, please sign and return
it to the undersigned. At the time you sign and return this Agreement, it
will take effect as a legally binding agreement between you and the Company
on the basis set forth above.
26. [OPTIONAL - For H-1B employees only] In addition, as an H-1B worker,
regardless of whether you sign and return this letter, under the
Immigration and Nationality Act, Section 214 (c)(5)(A) and 8 C.F.R. 214.2
(h)(4)(iii)(E), the Company will provide you, as an H-1B worker, with the
reasonable cost of your return transportation to , should you decide to
depart the United States. "Reasonable costs" are defined as the fair market
value of an airline ticket to your country of residence prior to coming to
the United States to assume employment with the Company. Please return the
Return Transportation Request Form attached to this Agreement, in the
enclosed envelope, to [INSERT CONTACT NAME], indicating your intention in
this regard. You are advised to consult with legal counsel regarding your
immigration status. Once the Company receives your Return Transportation
Request Form, the Company will contact you, if necessary, to make travel
arrangements.]
27. Expiration of Offer: The offer made by the Company pursuant to this letter
shall be null and void if it is not accepted in writing by you on or before
the expiration of the 21-day period described in paragraph 12.
Date Received by Addressee: November 26, 2003.
THERMO ELECTRON CORPORATION
By: /s/ Seth H. Hoogasian
---------------------------------------
Seth H. Hoogasian
Title: Vice President, General Counsel
and Secretary
Accepted and Agreed to:
/s/ Barry S. Howe
- ----------------------------------
Mr. Barry S. Howe
Return Transportation Request Form
For H-1B Worker
- - I intend to depart the United States following the termination of my
employment with THERMO ELECTRON CORPORATION on [INSERT TERMINATION DATE].
I intend to travel to _____________________________________
(City, Country)
- - I do not intend to depart the United States following the termination of my
employment with THERMO ELECTRON CORPORATION on [INSERT TERMINATION DATE].
____________________________________ ________________________________
Employee Name Date
This Form is to be returned to [INSERT CONTACT NAME] in the enclosed
envelope.
Exhibit A
COMPANY INFORMATION AND INVENTION AGREEMENT
In consideration and as a condition of my employment, or if now employed,
the continuation of my employment by Thermo Electron Corporation or a subsidiary
thereof (hereinafter collectively called the "Company") and the compensation
paid therefor:
1. I agree not to disclose to others or use for my own benefit during my
employment by the Company or thereafter any trade secrets or Company
private information pertaining to any of the actual or anticipated business
of the Company or any of its customers, consultants, or licensees acquired
by me during the period of my employment, except to such an extent as may
be necessary in the ordinary course of performing my particular duties as
an employee of the Company.
2. I agree not to disclose to the Company, or to induce the Company to use,
any confidential information or material belonging to others.
3. I understand that the making of inventions, improvements, and discoveries
is one of the incidents of my employment, or that if not I may nonetheless
make inventions while employed by the Company, and I agree to assign to
Thermo Electron Corporation or its nominee my entire right, title, and
interest in any invention, idea, device, or process, whether patentable or
not, hereafter made or conceived by me solely or jointly with others during
the period of my employment by the Company in an executive, managerial,
planning, technical, research, engineering, or other capacity and which
relates in any manner to the business of the Company, or relates to its
actual or planned research or development, or is suggested or results from
any task assigned to me or work performed by me for or in behalf of the
Company, except any invention or idea which cannot be assigned by the
Company because of a prior agreement with __________________________
effective until __________________________ (give name and date or write
"none").
4. I agree, in connection with any invention, idea, device, or process covered
by paragraph 3:
a) To disclose it promptly in writing to the proper officers or attorney of
the Company.
b) To execute promptly, on request, patent applications and assignments
thereof to Thermo Electron Corporation or its nominees and to assist the
Company in any reasonable manner to enable it to secure a patent therefor
in the United States and any foreign countries, all without further
compensation except as provided herein.
5. I further agree that all papers and records of every kind relating to any
invention or improvement included with the terms of the Agreement, which
shall at any time come into my possession shall be the sole and exclusive
property of the Company and shall be surrendered to the Company or upon
request at any other time either during or after the termination of such
employment.
6. I further agree that the obligations and undertakings stated above in
paragraph 4b shall continue beyond the termination of my employment by the
Company, but if I am called upon to render such assistance after the
termination of my employment, then I shall be entitled to a fair and
reasonable per diem in addition to reimbursement of any expenses incurred
at the request of the Company.
7. I agree to identify in an attachment to this Agreement all inventions or
ideas related to the business or actual or planned research or development
of the Company in which I have right, title, or interest, and which were
conceived either wholly or in part by me prior to my employment by the
Company but neither published nor filed in the U.S. Patent and Trademark
Office.
8. I understand that this Agreement supersedes any agreement previously
executed by me relating to the disclosure, assignment and patenting of
inventions, improvements, and discoveries made during my employment by the
Company. This Agreement shall inure to the benefits of the successors and
assigns of the Company and shall be binding upon my heirs, assigns,
administrators, and representatives.
/s/ Barry S. Howe
--------------------------------
Mr. Barry S. Howe
December 24, 2003
--------------------------------
Date
THERMO ELECTRON CORPORATION
By: /s/ Seth H. Hoogasian
--------------------------------
Seth H. Hoogasian
Title: Vice President, General Counsel
and Secretary
December 24, 2003
--------------------------------
Date