Exhibit 10.2
EMPLOYMENT
AGREEMENT
This EMPLOYMENT AGREEMENT
(this “Agreement”) is entered into by and between
Fisher Scientific International Inc., a Delaware corporation (the
“Company”), and Mark D. Roellig (the
“Executive”), this ___day of March, 2005.
1. Term of the
Agreement.
This Agreement shall
commence as of April 4, 2005 (the “Effective
Date”). The Executive’s services under Section 2
shall commence on such date and shall continue until the earlier of
April 3, 2010 or the Executive’s Date of Termination (as
defined in Section 4(e) below) (the “Initial Employment
Period” and, together with any extensions thereof pursuant to
the next sentence, the “Employment Period”), with the
exception of Sections 5 through 12, which shall remain in
effect thereafter. As of the last day of the Initial Employment
Period and each anniversary thereof, unless either party hereto
shall have given the other party 60 days’ advance notice
that there shall be no further extensions pursuant to this sentence
(“Notice of Non-Extension”), the Employment Period
shall be extended by an additional year.
2. Position and
Duties.
During the Employment
Period, the Executive’s position shall be that of Vice
President, General Counsel and Corporate Secretary, reporting to
either the Vice Chairman or Chief Executive Officer of the Company.
The Executive’s services shall be performed at Hampton, New
Hampshire. During the Employment Period, and excluding any periods
of vacation and other time off to which the Executive is entitled,
the Executive agrees to devote reasonable attention and time during
normal business hours to the business and affairs of the Company
and, to the extent necessary to discharge the responsibilities
assigned to the Executive hereunder, to use the Executive’s
reasonable best efforts to perform such responsibilities. During
the Employment Period it shall not be a violation of this Agreement
for the Executive to serve on corporate, civic, charitable,
governmental or religious boards or committees of such other
entities (including without limitation, Bulletin Network News,
Inc.) in a manner and at a time or times consistent with his
current practice, (b) participate in political activities and
fundraising and (c) manage personal investments, so long as,
in each case, such activities do not create any conflicts of
interest with the business of the Company or interfere with the
performance of the Executive’s responsibilities as an
employee of the Company in accordance with this Agreement.
3. Compensation.
(a) Base Salary. As
stated in the Executive’s offer letter of March 1, 2005
(“Offer Letter”), which is hereby incorporated by
reference, the Executive shall receive an annual base salary of at
least $400,000 (“Initial Annual Base Salary”), which
shall be paid in accordance with the Company’s
generally applicable
payroll practices and policies. During the Employment Period, the
annual base salary shall be reviewed at least annually. Any
increase in annual base salary shall not serve to limit or reduce
any other obligation to the Executive under this Agreement. The
annual base salary shall not be reduced, including after any such
increase, except pursuant to across-the-board salary reductions
similarly affecting all peer executives of the Company, and the
term “Annual Base Salary” as utilized in this Agreement
shall refer to Initial Annual Base Salary as so increased or
decreased.
(b) Incentive, Savings
and Retirement Plans Generally. During the Employment Period, and
without limiting the Executive’s rights under
Section 3(c), the Executive shall be entitled to participate
in and shall receive all benefits under all incentive, savings and
retirement plans, practices, policies and programs applicable
generally to other peer executives of the Company. Without limiting
the generality of the foregoing (including the right of Executive
to participate in and receive all benefits under any short-term or
special bonus or other incentive compensation opportunities), the
“Target Regular Annual Bonus” opportunity made
available to the Executive with respect to any calendar year shall
be at least equal to 100% of his Annual Base Salary for such year.
No portion of the bonus payable to the Executive for any calendar
year during the term of this agreement shall be guaranteed, except
as otherwise provided in Section 5.
In the event the Executive
remains continuously employed with the Company until the end of the
30 th
month after the Effective Date, the Executive shall become fully
vested in his Retirement Benefit under the Company’s
Executive Retirement and Savings Program on such date. In the event
the Executive remains continuously employed with the Company until
the fifth anniversary of the Effective Date, the Executive shall
receive an additional five years of service credit for calculation
of his Retirement Benefit under the Company’s Executive
Retirement and Savings Program. The Company shall not amend the
Company’s Executive Retirement and Savings Program in any way
that adversely affects the Executive’s Retirement Benefit
thereunder without the Executive’s prior consent.
(c) Welfare Benefit
Plans. During the Employment Period, the Executive and/or the
Executive’s eligible dependents, as the case may be, shall be
eligible for participation in and shall receive all benefits under
welfare benefit plans, practices, policies and programs provided by
the Company (including, without limitation, medical, prescription,
dental, disability, salary continuance, employee life, group life,
accidental death and travel accident insurance plans and programs)
to the extent applicable generally to other peer executives of the
Company.
(d) Expenses. During
the Employment Period, the Executive shall be entitled to receive
prompt reimbursement for all reasonable expenses incurred by the
Executive in respect of his services to the Company in accordance
with the policies, practices and procedures of the Company to the
extent applicable generally to other peer executives of the
Company.
(e) Vacation. During
the Employment Period, the Executive shall be entitled to paid
vacation in accordance with the terms of Executive’s Offer
Letter.
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(f) Perquisites.
During the Employment Period, the Executive shall be entitled to
receive perquisites in accordance with the policies, practices and
procedures of the Company to the extent applicable generally to
other peer executives of the Company.
(g) Initial Equity
Grant. Within one week of the Effective Date, the Company shall
grant to the Executive 28,125 stock options to acquire Company
stock under either the Company’s 2001 Equity and Incentive
Plan or 2003 Equity and Incentive Plan (collectively, the
“Incentive Plan”) and within the sixth week following
the Effective Date, the Company shall grant the Executive an
additional 28,125 stock options under the Incentive Plan (together,
the “Initial Options”). The Initial Options shall be
granted at a per share exercise price equal to the fair market
value of a share of Company stock as of the date of grant, shall
vest in three annual installments as described below (subject to
the other applicable terms of this Agreement or the Incentive Plan)
and shall be otherwise subject to the terms and conditions of the
Incentive Plan. Provided the Executive is employed by the Company
on such date, each Initial Option shall vest with respect to
60 percent of the shares subject thereto on the first
anniversary of the date of grant and with respect to an additional
20 percent of the shares subject to such Initial Option on
each of the second and third anniversaries of the date of
grant.
Subject to stockholder
approval of the Company’s new equity incentive plan (the
“Equity Plan”), the Company shall grant to the
Executive 22,500 shares of Company restricted stock no later than
August 1, 2005 (“Initial Restricted Stock”). The
Initial Restricted Stock shall be subject to all terms and
conditions of the Equity Plan and the applicable agreement,
including terms and conditions relating to vesting, applicable
performance criteria and transferability restrictions. If the
Company’s stockholders fail to approve the Equity Plan, the
Company shall convey a substantially similar economic benefit to
the Executive in such form the parties hereto shall negotiate in
good faith.
4. Termination of
Employment.
(a) Death or
Disability. The Executive’s employment shall terminate
automatically upon the Executive’s death during the
Employment Period. If the Company determines in good faith that the
Disability of the Executive has occurred during the Employment
Period (pursuant to the definition of Disability set forth below),
it may give to the Executive written notice in accordance with
Section 11(b) of this Agreement of its intention to terminate the
Executive’s employment. In such event, the Executive’s
employment with the Company shall terminate effective on the 30th
day after receipt of such notice by the Executive (the
“Disability Effective Date”), provided that, within the
30 days after such receipt, the Executive shall not have
returned to full-time performance of the Executive’s duties.
For purposes of this Agreement, “Disability” shall mean
the absence of the Executive from the Executive’s duties with
the Company on a full-time basis for 180 consecutive business days
as a result of incapacity due to mental or physical illness which
is determined to be total and permanent by a physician selected by
the Company or its insurers and acceptable to the Executive or the
Executive’s legal representative.
(b) Cause. The Company
may terminate the Executive’s employment during the
Employment Period for Cause. For purposes of this Agreement,
“Cause” shall mean:
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(i) the willful and continued failure of the Executive to
perform substantially the Executive’s duties hereunder with
the Company or one of its affiliates (other than any such failure
resulting from incapacity due to physical or mental illness), after
a written demand for substantial performance is delivered to the
Executive by the Vice Chairman or the Chief Executive Officer which
specifically identifies the manner in which the Vice Chairman or
Chief Executive Officer believes that the Executive has not
substantially performed the Executive’s duties, or
(ii) the willful engaging by the Executive in illegal conduct
or gross misconduct that is materially and demonstrably injurious
to the Company. For purposes of this provision, no act or failure
to act, on the part of the Executive, shall be considered
“willful” unless it is done, or omitted to be done, by
the Executive in bad faith or without reasonable belief that the
Executive’s action or omission was in the best interests of
the Company.
Any act, or failure to act,
based upon authority given by the Board, the direction of the Vice
Chairman or the Chief Executive Officer or based upon the advice of
counsel for the Company shall be conclusively presumed to be done,
or omitted to be done, by the Executive in good faith and in the
best interests of the Company, unless such authority, direction or
advice is in violation of applicable law, regulation, Company
policy or the Company’s Code of Business Conduct. The
cessation of employment of the Executive shall not be deemed to be
for Cause unless and until there shall have been delivered to the
Executive a copy of a resolution duly adopted by the affirmative
vote of not less than three-quarters of the entire membership of
the Board at a meeting of the Board (after reasonable notice is
provided to the Executive and the Executive is given an
opportunity, together with counsel, to be heard before the Board),
finding that, in the good faith opinion of the Board, the Executive
is guilty of the conduct described in subsection (i) or (ii)
above.
(c) Good Reason. The
Executive’s employment may be terminated by the Executive for
Good Reason at any time within 90 days after the Executive
first has actual knowledge of the occurrence of such Good Reason.
For purposes of this Agreement, “Good Reason” shall
mean:
(i) the assignment to
the Executive of any duties inconsistent in any respect with the
Executive’s position (including status, offices, titles and
reporting requirements), authority, duties or responsibilities as
contemplated by Section 2 of this Agreement, or any other
action by the Company which results in a diminution in such
position, authority, duties or responsibilities, excluding, for
this purpose an isolated, insubstantial and inadvertent action not
taken in bad faith and which is remedied by the Company promptly
after receipt of notice thereof given by the Executive,
(ii) any failure by the Company to comply with any of the
provisions of Section 3 of this Agreement, other than an
isolated, insubstantial and inadvertent failure not occurring in
bad faith and which is remedied by the Company promptly after
receipt of notice thereof given by the Executive,
(iii) the Company’s requiring the Executive to be based
at any office or location other than as provided in Section 2
hereof,
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(iv) any purported termination by the Company of the
Executive’s employment otherwise than for Cause, or due to
death or Disability,
(v) any delivery by the Company of a Notice of Non-Extension,
or
(vi) any failure by the Company to comply with and satisfy
Section 9 of this Agreement.
(d) Notice of
Termination. Any termination by the Company for Cause, or by the
Executive for Good Reason, shall be communicated by Notice of
Termination to the other party hereto given in accordance with
Section 11(b) of this Agreement. For purposes of this Agreement, a
“Notice of Termination” means a written notice
which:
(i) indicates the specific termination provision in this
Agreement relied upon,
(ii) to the extent applicable, sets forth in reasonable detail
the facts and circumstances claimed to provide a basis for
termination of the Executive’s employment under the provision
so indicated, and
(iii) if the Date of Termination (as defined below) is other
than the date of receipt of such notice, specifies the termination
date (which date shall be not more than thirty
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