Exhibit 10.16
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT
(“Agreement”) was initially entered into as of the 18th
day of July, 2000 (the “Effective Date”) and amended as
of the last date set forth on the signature page hereto which
amendment shall be effective as of January 1, 2009, by and
between Danaher Corporation, a Delaware corporation (the
“Company”), and Henry Lawrence Culp, Jr. (the
“Executive”).
WHEREAS, the Company desires to
employ the Executive, and the Executive desires to be employed by
the Company, on the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of
the mutual covenants and agreements set forth herein and other good
and valuable consideration, the receipt and sufficiency of which
hereby are acknowledged, the parties hereto agree as
follows:
1. Employment . On the terms
and conditions set forth in this Agreement, the Company agrees to
employ the Executive, and the Executive agrees to be employed by
the Company, for the term set forth in Section 2 hereof and in
the position and with the duties set forth in Section 3
hereof.
2. Term . The employment of
the Executive by the Company as provided in Section 1 hereof
shall commence on the Effective Date and, unless sooner terminated
as hereinafter set forth, shall end three (3) years
thereafter; provided that, unless sooner terminated as hereinafter
set forth, the term of this Agreement shall be extended
automatically for additional one (1) year periods on the
second anniversary of the Effective Date and each subsequent
anniversary date (the “Applicable Anniversary Notice
Date”), unless and until either party provides written notice
to the other party not less than ninety (90) days prior to the
Applicable Anniversary Notice Date that the party is terminating
this Agreement, which termination shall be effective as of the end
of the initial term or extended term, as the case may
be.
3. Position and Duties . The
Executive shall serve as the President and Chief Executive Officer
of the Company, with duties and responsibilities as the board of
directors of the Company (the “Board”) may from time to
time determine and assign to the Executive. The Executive agrees to
serve without additional compensation, if elected or appointed
thereto, as a director of the Company and any of its subsidiaries
and in one or more executive offices of any of the Company’s
subsidiaries, provided that the Executive is indemnified for
serving in any and all director capacities on a basis no less
favorable than is currently provided by the Company to any other
director of the Company or any of its subsidiaries. The Executive
shall devote the Executive’s best efforts and full business
time to the performance of the Executive’s duties and the
advancement of the business and affairs of the Company.
4. Place of Performance . In
connection with the Executive’s employment by the Company,
the Executive shall be based at the principal executive offices of
the Company which the Company retains the right to change in its
discretion or at such other place as the Company and the Executive
mutually agree and subject to Section 9(c)(iv)
hereof.
5. Compensation .
(a) Base Salary . The Company
shall pay to the Executive an annual base salary (the “Base
Salary”) at the rate of $600,000 per year. The Base Salary
shall be reviewed for increases no less frequently than annually on
the same basis as such salary reviews are made with respect to
other executive officers of the Company. If the Executive’s
Base Salary is increased, the increased amount shall be the Base
Salary for the remainder of the term of the Executive’s
employment hereunder. The Base Salary shall be payable biweekly or
in such other installments as shall be consistent with the
Company’s payroll procedures.
(b) Annual Bonus . During
2009 and each succeeding calendar year of the term, the Executive
shall have a bonus opportunity of which the baseline annual bonus
percentage shall be one hundred twenty-five percent (125%) of
the Executive’s Base Salary; provided that if the bonus
program shall thereafter be revised, the Executive’s overall
bonus opportunity shall be comparable; and further provided that
the Executive’s maximum bonus opportunity for extraordinary
performance, expressed as a percentage of the product of the
baseline annual bonus percentage and the Executive’s Base
Salary, shall be not less favorable than that provided for the
Executive on the Effective Date, or for the President and Chief
Executive Officer, following any appointment to that office (the
“Annual Bonus”). The amount of the Annual Bonus shall
be determined by the Compensation Committee of the Board in its
sole discretion, based upon the Company’s achievement of
pre-established, objective budgetary and other performance goals.
For any year in which the Company has a shareholder approved bonus
plan meeting the requirements of Section 162(m) of the
Internal Revenue Code, such bonus shall be determined by such
committee in a manner that will permit the Annual Bonus payable to
the Executive to be fully deductible by the Company. The amount of
each Annual Bonus shall be determined and paid not later than 15
days after the Company’s earnings for the preceding fiscal
year have been publicly announced.
(c) Other Benefits . The
Company shall maintain in full force and effect, and the Executive
shall be entitled to participate in, all of the employee benefit
and fringe benefit plans and arrangements in effect on the date
hereof in which executives of the Company participate or plans or
arrangements providing the Executive with at least equivalent
benefits thereunder (including, without limitation, the Executive
Deferred Incentive Program, and each group life insurance and
accident plan, medical and dental insurance plans, and disability
plan); provided, however, that, changes in such plans or
arrangements may be made, including termination of such plans or
arrangements if it occurs pursuant to a program applicable to all
executives of the Company and does not result in a proportionately
greater reduction in the rights of or benefits to the Executive as
compared with any other executive of the Company. Nothing paid to
the Executive under any fringe plan or arrangement presently in
effect or made available in the future shall be deemed to be in
lieu of the salary payable to the Executive pursuant to
Section 5(a). Any payments or benefits payable to the
Executive under this Section 5(c) in respect of any calendar
year during which the Executive is employed by the Company for less
than the entire such year shall, unless otherwise provided in the
applicable plan or arrangement be pro-rated in accordance with the
number of days in such calendar year during which he is so
employed.
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(d) Vacation; Holidays . The
Executive shall be entitled to all public holidays observed by the
Company and vacation days in accordance with the applicable
vacation policies in effect for senior executives of the Company,
which shall be taken at a reasonable time or times.
(e) Withholding Taxes and Other
Deductions . To the extent required by law, the Company shall
withhold from any payments due Executive under this Agreement any
applicable federal, state or local taxes and such other deductions
as are prescribed by law or Company policy.
(f) Club Memberships . During
the term of the Executive’s employment hereunder, the Company
shall reimburse the Executive for the cost of maintaining annual
membership during the term in his existing club and the cost of
joining and maintaining annual membership during the term in a club
of his choosing located within the District of Columbia, or the
suburban Maryland or Virginia area adjacent to the District of
Columbia.
(g) Tax and Financial
Planning . During the term of the Executive’s employment
hereunder, the Company shall reimburse the Executive for the
reasonable expenses incurred by the Executive in connection with
obtaining professional tax and financial planning
advice.
(h) Annual Physical
Examination . During the term of the Executive’s
employment hereunder, the Company shall reimburse the Executive for
the reasonable expenses incurred by the Executive in undergoing an
annual physical examination by a licensed physician.
(i) Compensation During
Disability . During any period that the Executive fails to
perform the Executive’s duties hereunder as a result of
incapacity due to physical or mental illness (the “Disability
Period”), the Executive shall be treated as fully employed
and shall continue to receive, or receive the benefit of (as the
case may be) all items described in Section 5 hereof at the
rate then in effect for such period until his employment is
terminated pursuant to Section 9(b)(i) hereof; provided
, that payments made to the Executive during the first 180 days of
the Disability Period shall be reduced by the sum of the amounts,
if any, payable to the Executive at or prior to the time of any
payment under disability benefit plans of the Company and which
amounts were not previously applied to reduce any
payment.
6. Expenses . During the term
of the Executive’s employment hereunder, the Executive shall
be entitled to receive prompt reimbursement for all reasonable and
customary expenses incurred by the Executive in performing services
hereunder, including all expenses of travel and living expenses
while away from home on business or at the request of and in the
service of the Company, provided that all such expenses are
accounted for in accordance with the policies and procedures
established by the Company. The Company shall also provide the
Executive during the term of his employment hereunder with an
automobile allowance of $2,000 per month.
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7. Confidential Information
.
(a) The Executive covenants and
agrees that the Executive will not ever, without the prior written
consent of the Board or a person authorized by the Board or except
as may be ordered by a court of competent jurisdiction, publish or
disclose to any unaffiliated third party or use for the
Executive’s personal benefit or advantage any confidential
information with respect to the Company’s past, present, or
planned business, including but not limited to all information and
materials related to any Company business, business plan, product,
service, procedure, strategy, method (including the Danaher
Business System), technique, technology, research, strategy, plan,
customer or supplier information, customer or supplier list,
financial data, technical data, computer files, and computer
software, including any of the foregoing that is in any stage of
research, development, or planning, and any other information which
the Executive obtained while employed by, or otherwise serving or
acting on behalf of, the Company or which the Executive may possess
or have under his control, that is not generally known (except for
unauthorized disclosures) to the public or within the industry in
which the Company does business. This covenant shall not limit the
Executive’s use of such confidential information in the
normal course of his performance of services for the
Company.
(b) The Executive acknowledges that
the restrictions contained in Section 7(a) hereof are
reasonable and necessary, in view of the nature of the
Company’s business, in order to protect the legitimate
interests of the Company, and that any violation thereof would
result in irreparable injury to the Company. Therefore, the
Executive agrees that in the event of a breach or threatened breach
by the Executive of the provisions of Section 7(a) hereof, the
Company shall be entitled to obtain from any court of competent
jurisdiction, preliminary or permanent injunctive relief
restraining the Executive from disclosing or using any confidential
information. Nothing herein shall be construed as prohibiting the
Company from pursuing any other remedies available to it for breach
or threatened breach, including, without limitation, recovery of
damages from the Executive.
(c) The Executive shall deliver
promptly to the Company on termination of employment, or at any
other time the Company may so request, all confidential materials,
memoranda, notes, records, reports and other documents and
materials (and all copies thereof), in whatever form or medium,
that contain any of the foregoing, including but not limited to
computer data, files, software, and hardware, relating to the
Company’s or its affiliates’ respective businesses
which the Executive obtained while employed by, or otherwise
serving or acting on behalf of, the Company or which the Executive
may then possess or have under his control.
8. Non-Competition
.
(a) Non-Competition . The
Executive covenants and agrees that the Executive will not, during
the Executive’s employment hereunder and for a period of
three (3) years thereafter (to the extent permitted by law),
at any time and in the United States or any other jurisdiction in
which the Company is engaged or has reasonably firm plans to engage
in business, enter into any competitive endeavors and not undertake
any commercial activity which is contrary to the best interests of
the Company or its subsidiaries or affiliates, including becoming
an employee, owner (except for passive investments of not more than
three percent (3%) of the outstanding shares of, or any other
equity interest in, any company or entity listed or traded on a
national securities exchange or in an over-the-counter securities
market), officer, agent, advisor, consultant or director of any
firm or person which directly competes with a line or lines of
business of the Company.
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(b) Injunctive Relief . In
the event the restrictions against engaging in a competitive
activity contained in Section 8(a) hereof shall be determined
by any court of competent jurisdiction to be unenforceable by
reason of their extending for too great a period of time or over
too great a geographical area or by reason of their being too
extensive in any other respect, Section 8(a) hereof shall be
interpreted to extend only over the maximum period of time for
which it may be enforceable and over the maximum geographical area
as to which it may be enforceable and to the maximum extent in all
other respects as to which it may be enforceable, all as determined
by the court in the action.
(c) Non-Solicitation . The
Executive covenants and agrees that the Executive will not, during
the Executive’s employment hereunder and for a period of
three (3) years thereafter solicit, induce, entice, or
encourage or attempt to solicit, induce, entice, or encourage any
employee of the Company or any of the Company’s affiliates to
render services for any other person, firm, entity, or corporation
or to terminate his or her employment with the Company.
9. Termination of Employment
.
(a) Death . The
Executive’s employment hereunder shall terminate upon the
Executive’s death.
(b) By the Company . The
Company may terminate the Executive’s employment hereunder
under the following circumstances:
(i) The Company may terminate the
Executive’s employment hereunder for
“Disability.” For purposes of this Agreement, the
Company shall have the right to terminate the Executive’s
employment by reason of “Disability” if, as a result of
the Executive’s incapacity due to physical or mental illness,
the Executive shall have been absent from his duties hereunder on a
full-time basis for the entire period of six (6) consecutive
months, and within thirty (30) days after written notice of
termination is given shall not have returned to the performance of
his duties hereunder on a full-time basis.
(ii) The Company may terminate the
Executive’s employment hereunder with or without
“Cause.” For purposes of this Agreement,
“Cause” shall mean (A) the willful and continued
failure by the Executive to substantially perform his duties
hereunder (other than any such failure resulting from the
Executive’s incapacity due to physical or mental illness or
any such actual or anticipated failure after the issuance of a
Notice of Termination, as defined in Section 9(e), by the
Executive for Good Reason, as defined in Section 9(c)), after
demand for substantial performance is delivered by the Company that
specifically identifies the manner in which the Company believes
the Executive has not substantially performed his duties, which is
not cured within thirty (30) days after notice of such failure
has been given to the Executive by the Company, (B) the
willful engaging by the Executive in misconduct which is materially
injurious to the Company, monetarily or otherwise (including, but
not limited to, conduct that violates Section 8(a) hereof), or
(C) the Executive’s conviction of any felony. For
purposes of this paragraph, no act, or failure to act, on the
Executive’s part shall be considered “willful”
unless done, or omitted to be done by him not in good faith and
without reasonable belief that his action or omission was in the
best interest of the Company.
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(iii) The Company, in the sole
discretion of the Board, may terminate the Executive’s
employment hereunder at any time other than for Disability or
Cause, for any reason or for no reason at all.
(c) By the Executive . The
Executive may terminate the Executive’s employment hereunder
at any time, with or without “Good Reason”, provided
that any termination for Good Reason shall in no event occur more
than two years following the initial existence of the condition
alleged to constitute Good Reason. For purposes of this Agreement,
“Good Reason” shall mean any one or more of the
following circumstances:
(i) A failure by the Company to
comply with a
