EMPLOYMENT AGREEMENT
BETWEEN
DENTSPLY INTERNATIONAL INC.
AND
THOMAS L. WHITING
THIS AGREEMENT is entered into as of January 1, 1996, by and between
DENTSPLY INTERNATIONAL INC., a Delaware corporation (the "Company") and Thomas
L. Whiting, ("Employee").
WHEREAS, Employee has for several years effectively served the
Company, its predecessors and Affiliates (as hereinafter defined); and
WHEREAS, it is in the best interest of the Company and Employee that the
terms and conditions of Employee's continued services be formally set forth:
NOW, THEREFORE, in consideration of the mutual covenants and agreements of
the parties hereto, it is hereby agreed as follows:
1. Services.
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1.1 The Company employs Employee and Employee accepts such employment
and agrees to serve as Senior Vice President, Pacific Rim, Latin America, Gendex
and Tulsa Dental Products and, if elected thereto, as an officer or director of
any Affiliate, for the term and on the conditions herein set forth. Employee
shall be responsible for the activities and duties presently associated with
these positions. Employee shall perform such other services not inconsistent
with his position as shall from time to time be assigned to him by the Board of
Directors or the President of the Company. Employee's services shall be
performed at a location suitable for the performance of the Employee's assigned
duties and should not present an unnecessary hardship on the Employee.
1.2 Employee shall at all times devote his full business time and
efforts to the performance of his duties and to promote the best interests of
the Company and its Affiliates.
2. Period of Employment shall continue from January 1, 1996 and
terminate on the happening of any of the following events:
2.1 Death.
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The date of death of Employee.
2.2 Termination by Employee Without Good Reason.
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The date specified in a written notice of termination given to the
Company by Employee not less than 180 days in advance of such specified date, at
which date the Employee's obligation to perform services pursuant to this
Agreement shall cease.
2.3 Termination by Employee with Good Reason.
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Thirty (30) days following the date of a written notice of
termination given to the Company by Employee within thirty (30) days after any
one or more of the following events have occurred:
(a) failure by the Company to maintain the duties, status and
responsibilities of the Employee substantially consistent
with those of Employee's position as of the date of the
Agreement, or
(b) a reduction by the Company in Employee's base salary as
in effect as of the date hereof plus all increases
therein subsequent thereto; other than any reduction
implemented as part of a formal austerity program
approved by the Board of Directors of the Company and
applicable to all continuing employees of the Company,
provided such reduction does not reduce Employee's
salary by a percentage greater than the average
reduction in the compensation of all employees
who continue as employees of the Company during such
austerity program; or
(c) the failure of the Company to maintain and to continue
Employee's participation in the Company's benefit plans as
in effect from time to time on a basis substantially
equivalent to the participation and benefits of Company
employees similarly situated to the Employee; or
(d) any substantial and uncorrected breach of the Agreement
by the Company.
2.4 Termination by the Company.
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The date of a written notice of termination given to Employee by
the Company. The Employee's obligation to perform services pursuant to this
Agreement shall cease as of the date of such notice.
3. Payments by the Company.
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3.1 During the Period of Employment, the Company shall pay to the
Employee for all services to be performed by Employee hereunder a salary of not
less than $195,000 per annum, or such larger amount as may from time to time be
fixed by the Board of Directors of the Company or, if applicable, by the
Executive Compensation Committee of the Company, payable in approximately equal
monthly installments on or about the twenty-fiftH day of each month.
3.2 During the Period of Employment, Employee shall be entitled to
participate in all plans and other benefits made available by the Company
generally to its domestic executive employees, including (without limitation)
benefits under any pension, profit sharing, employee stock ownership, stock
option, bonus, performance stock appreciation right, management incentive,
vacation, disability, annuity or insurance plans or programs provided, however,
Employee shall not be paid an annual Christmas bonus previously paid to Old
Dentsply employees. Any payments to be made to Employee under other provisions
of this section 3 shall not be
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diminished by any payments made or to be made to Employee or his designees
pursuant to any such plan, nor shall any payments to be made to Employee or his
designees pursuant to any such plan be diminished by any payment made or to be
made to Employee under other provisions of this section 3.
3.3 Upon termination of the Period of Employment for whatever reason,
Employee shall be entitled to receive the compensation accrued and unpaid as of
the date of his termination. If Employee at the time of termination is eligible
to participate in any Company incentive or bonus plan then in effect, Employee
shall be entitled to receive a pro-rata share of such incentive or bonus award
based upon the number of days he is employed during the plan year up to the date
of his termination. Such pro-rata amount shall be calculated in the usual way
and paid at the usual time.
3.4 If the Period of Employment terminates upon the death of Employee,
the Company shall continue payment of his then current salary for a period of 12
months from the date of death, together with his pro-rata share of any incentive
or bonus payments due for the period prior to his death, to Employee's
designated beneficiary or, if no beneficiary has been effectively designated,
then to Employee's estate.
3.5 If the Period of Employment is terminated by the Employee under
section 2.3, or by the Company under section 2.4, the Company shall continue to
pay compensation and provide benefits to the employee as provided in this
section 3.5 for a period (the "Termination Period") beginning on the date of the
termination notice and ending on the earlier of: (i) the second annual
anniversary of the date of such termination notice; or (ii) the date on which
the Employee would attain age 65, as follows:
(a) Compensation shall be paid to the Employee at the rate of
salary being paid to Employee under section 3.1 immediately
before the termination.
(b) Bonus and incentive compensation shall be paid to the
Employee if approved by the Board of Directors, in
accordance with plans in which the Employee participated at
time of termination, using the same formula and calculations
as if termination had not occurred.
(c) Employee shall receive the benefits that would have
been accrued by the Employee during the Termination
Period under any pension, profit sharing, employee
stock ownership plan ("ESOP") or similar retirement
plan or plans of the Company or any Affiliate in which
the Employee participated immediately before the
termination (or, if not available, in lieu thereof be
compensated for such benefits), based on service the
Employee would have had during the Termination
Period and compensation (and, if applicable, bonus and
incentive compensation) as determined under section (a)
(and, if applicable, subsection (b) above); and
(d) Employee shall receive continued coverage during the
Termination Period under all employee disability,
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annuity, insurance or other employee welfare benefit plans,
programs or arrangements of the Company or any Affiliate in
which Employee participated immediately before the notice of
termination, plus all improvements subsequent thereto (or,
if not available, in lieu thereof be compensated for such
coverage).
Except as provided in section 3.6, payment of compensation under
subsection 3.5(a) above shall be made at the same time as payments of
compensation under section 3.1, and payments of other benefits under subsection
3.5(b) and (c) shall be paid at the same time and to the same person as
compensation or benefits would have been paid under the plan, program or
arrangement to which they relate (after taking into account any election made by
the Employee with respect to payments under such plan, program or arrangement).
3.6 If at any time after a Change of Control the Period of Employment
is terminated by the Employee with good reason under section 2.3, or the Company
terminates or gives written notice of termination of the Period of Employment to
the Employee (whether or not in accordance with section 2.4), then in lieu of
the periodic payment of the amounts specified in subsections 3.5(a), (b) and (c)
(except as may be otherwise prohibited by law or by said plans), the Company, at
the written election of Employee, shall pay to Employee within five (5) business
days of such termination or notice of termination the present value of the
amounts specified in subsections 3.5(a), (b) and (c), discounted at the greatest
rate of interest then payable by Mellon Bank on any federally insured savings
account into which Employee could deposit such amount and make immediate
withdrawals therefrom without penalty, and shall provide for the remainder of
the Termination Period, if any, the benefit coverage required by subsection
3.5(d). Employee shall not be required to mitigate damages payable under this
section 3.6.
3.7 In no event will the Company be obligated to continue Employee's
compensation and other benefits under the Agreement beyond Employee's
sixty-fifth (65th) birthday or if Employee's employment is terminated because of
gross negligence or significant willful misconduct (i.e. conviction of
misappropriation of corporate assets or heinous criminal offense).
4. Non-Competition Agreement.
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During the Period of Employment and for a period of five (5) years
after the termination thereof, Employee shall not, without the written consent
of the Company, directly or indirectly be employed or retained by, or render any
services for, or be financially interested in, any firm or corporation engaged
in any business which is competitive with any business in which the Company or
any of its Affiliates may have been engaged during the Period of Employment. The
foregoing restriction shall not apply to the purchase by Employee of not to
exceed 5% of the outstanding shares of capital stock of any corporation whose
securities are listed on any national securities exchange.
5. Loyalty Commitments.
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During and after the Period of Employment: (a) Employee shall not
disclose any confidential business information about the affairs of the Company
or any of its Affiliates; and (b) Employee shall not, without the prior written
consent of the Company, induce or attempt to induce any employee or agency
representative of the Company or any Affiliate to leave the employment or
representation of the Company or such Affiliate.
6. Separability of Provisions.
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The terms of this Agreement shall be considered to be separable from
each other, and in the event any shall be found to be invalid, it shall not
affect the validity of the remaining terms.
7. Binding Effect.
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This Agreement shall be binding upon and inure to the benefit of (a)
the Company and its successors and assigns, and (b) Employee, his personal
representatives, heirs and legatees.
8. Entire Agreement.
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This Agreement constitutes the entire agreement between the parties
and supersedes and revokes all prior oral or written understandings between the
parties relating to Employee's employment. The Agreement may not be changed
orally but only by a written document signed by the party against whom
enforcement of any waiver, change, modification, extension or discharge is
sought.
9. Definitions.
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The following terms herein shall (unless otherwise expressly provided)
have the following respective meanings:
9.1 "Affiliate" when used with reference to the Company means any
corporations, joint ventures or other business enterprises directly or
indirectly controlling, controlled by, or under common control with the Company.
For purposes of this definition, "control" means ownership or power to vote 50%
or more of the voting stock, venture interests or other comparable participation
in such business enterprises.
9.2 "Period of Employment" means the period commencing on the date
hereof and terminating pursuant to section 2.
9.3 "Beneficiary" means the person or persons designated in
writing by Employee to Company.
9.4 "Change of Control" means any event by which (i) an Acquiring
Person has become such, or (ii) Continuing Directors cease to comprise a
majority of the members of the Board of directors of the Company or the
applicable Parent of the Company (a "Board"). For purposes of this definition:
(a) An "Acquiring Person" means any person or group (as
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defined in Section 13(d)(3) of the Securities Exchange Act
of 1934, as amended, and the rules and regulations
promulgated thereunder as in effect on the date of this
Agreement (the "Exchange Act") who or which, together with
all affiliates and associates (as defined in Rule 12B-2
under the Exchange Act) becomes, by way of any transaction,
the beneficial owner of shares of the Company, or such
Parent, having 20% or more of the total number of votes that
may be cause for the election of directors of the Company or
such Parent; and
(b) "Continuing Director" means any member of a Board,
while such person is a member of such Board who is not
an Acquiring Person, or an affiliate or associate of an
Acquiring Person or a representative of an Acquiring
Person or of any such affiliate or associate and who
(i) was a member of such Board prior to the date of
this Agreement, or (ii) subsequently becomes a member
of such Board and whose nomination for election or
election to such Board is recommended or approved by
resolution of a majority of the Continuing Directors or
who is included as a nominee in a proxy statement of
the Company or the applicable Parent distributed when a
majority of such Board consists of Continuing
Directors.
9.5 "Parent" means any Affiliate directly or indirectly controlling
(within the meaning of section 9.1) the Company.
10. Notices.
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Where there is provision herein for the delivery of written notice to
either of the parties, such notice shall be deemed to have been delivered for
the purposes of this Agreement when delivered in person or placed in a sealed,
postpaid envelope addressed to such party and mailed by registered mail, return
receipt requested to:
Thomas L. Whiting 1440 Wyndham Drive
York, PA 17404
Dentsply International Inc. 570 West College Avenue
York, PA 17405
Attention: Secretary
11. Arbitration.
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Any controversy arising from or related to the Agreement shall be
determined by arbitration in the City of Philadelphia, Pennsylvania, in
accordance with the rules of the American Arbitration Association, and judgment
upon any such determination or award may be entered in any court having
jurisdiction. In the event of any arbitration between Employee and Company
related to the Agreement, if employee shall be the successful party, Company
will indemnify and reimburse Employee against any reasonable
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legal fees and expenses incurred in such arbitration.
12. Applicable Law.
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The Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, the parties have executed the Agreement on the day and
year first above written.
DENTSPLY INTERNATIONAL INC.
By:
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President and Chief
Executive Officer
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Employee
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