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
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