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Exhibit 10.06
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this
"Agreement") is entered into by and between
Fisher Scientific International Inc., a
Delaware corporation (the "Company") and
Kevin P. Clark (the "Executive"), and dated
as of the 2nd day of August, 2005.
1. TERM OF THE AGREEMENT.
This Agreement shall commence as of the
date of this Agreement (the "Effective
Date"). The Executive's services under
Paragraph 2 shall commence on such date
and end on December 31, 2007 or any earlier
Date of Termination (as defined in
Section 4(e)) (the "Initial Employment
Period" and, together with any extensions
thereof pursuant to the next sentence, the
"Employment Period"). As of the last
day of the Initial Employment Period and
each anniversary thereof, unless either
party hereto shall have given the other
party sixty (60) days' advance notice
that there shall be no further extensions
pursuant to this sentence, the
Employment Period shall be extended by an
additional year. In the event of a
Change in Control, as defined in Paragraph
6, this Agreement will remain in
effect until the second anniversary of a
Change in Control.
2. POSITION AND DUTIES.
During the Employment Period, the
Executive's position (including status,
offices, titles and reporting
requirements), authority, duties and
responsibilities shall be at least
commensurate in all material respects with
those held, exercised and assigned to the
Executive on the day immediately
preceding the Effective Date. The
Executive's services shall be performed at the
location where the Executive was employed
on the day immediately preceding the
Effective Date or any office or location
less than fifty (50) miles from such
location. During the Employment Period, and
excluding any periods of vacation
and sick leave to which the Executive is
entitled, the Executive agrees to
devote his 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
faithfully and efficiently such
responsibilities. During the Employment
Period, it shall not be a violation of
this Agreement for the Executive to (a)
serve on corporate, civic, charitable,
governmental or religious boards or
committees, (b) deliver lectures, fulfill
speaking engagements or teach at
educational institutions, (c) participate in
political activities and fundraising, and
(d) manage personal investments, so
long as such activities do not
significantly interfere with the performance of
the Executive's responsibilities as an
employee of the Company in accordance
with this Agreement. It is expressly
understood and agreed that to the extent
that any such activities have been
conducted by the Executive prior to the
Effective Date, the continued conduct of
such activities (or the conduct of
activities similar in nature and scope
thereto) subsequent to the Effective Date
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shall not thereafter be deemed to interfere
with the performance of the
Executive's responsibilities to the
Company.
3. COMPENSATION.
(a) BASE
SALARY. During the Employment Period, the Executive shall
receive
an annual base salary of at least $375,000
("Annual Base Salary"), which amount
may be increased from time to time and
which shall be paid in accordance with
the Company's generally applicable payroll
practices and policies, except that
any portion of such base salary (taking
into account any increase therein after
the date hereof) that, if paid currently to
Executive, would not be deductible
by the Company due to the provisions of
Section 162(m) of the Internal Revenue
Code, shall be mandatorily deferred and
paid to the Executive upon termination
of employment for any reason. Any amounts
mandatorily deferred pursuant to the
immediately preceding sentence shall be
credited to a book entry account for the
Executive under a Company sponsored
deferred compensation plan and the Executive
shall have all rights and benefits as a
participant in such plan, including the
right to have deemed earnings credited on
such deferred amounts in accordance
with the term of such plan. 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 after any such increase
and the term Annual Base Salary as utilized
in this Agreement shall refer to
Annual Base Salary as so increased. The
Annual Base Salary can be reduced as
part of a similar reduction which is
applied to all similarly situated
executives.
(b)
INCENTIVE, SAVINGS AND RETIREMENT PLANS GENERALLY. During the
Employment Period, and without limiting the
Executive's rights under Paragraph
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 the
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 after 2005 shall be at least
equal to 100% of his Annual Base
Salary for such year (the "Target Regular
Annual Bonus"). 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 Paragraphs 5 or
6.
(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
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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 and time off in
accordance with the plans, policies,
programs and practices of the Company in
all respects to the extent applicable
generally to other peer executives of the
Company.
(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.
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
Paragraph 12(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:
(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
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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 most current Code of
Conduct.
(c) GOOD
REASON. The Executive's employment may be terminated by the
Executive for Good Reason at any time
within ninety (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 Paragraph 2 of this Agreement, or any other action
by
the
Company which results in a material 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) the Company's relocation of the Executive's principal place
of
employment
to a location more than fifty (50) miles from the place of
employment
provided in Paragraph 2 hereof; or
(iii) a material breach of this Agreement by the Company that
remains
uncured for a period of thirty (30) days following the
Executive
providing
notice of such breach to the Company or any purported
termination by the Company of the Executive's employment other than
for
Cause, or
due to death or Disability.
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(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 Paragraph 12(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 (30) days after the giving of such
notice).
In the event the Executive provides the
Company with a Notice of Termination for
Good Reason under Paragraph 4(c), the
Company shall have thirty (30) days to
cure the circumstances that the Executive
alleges constitute Good Reason; and if
so cured, no Good Reason shall be deemed to
have occurred hereunder. The failure
by the Executive or the Company to set
forth in the Notice of Termination any
fact or circumstance which contributes to a
showing of Good Reason or Cause
shall not waive any right of the Executive
or the Company, respectively,
hereunder or preclude the Executive or the
Company, respectively, from asserting
such fact or circumstance in enforcing the
Executive's or the Company's rights
hereunder.
(e) DATE
OF TERMINATION. "Date of Termination" means:
(i) if the Executive's employment is terminated by the Company
for
Cause, the
date of receipt of the Notice of Termination, or any later date
specified
therein, as the case may be;
(ii) if the Executive's employment is terminated by the
Executive
for Good
Reason under Paragraph 4(c), the 30th day following the
Company's
receipt of
the Notice of Termination, provided the circumstances that the
Executive
alleges constitute Good Reason have not been cured prior to
such
date;
(iii) if the Executive's employment is terminated by the
Executive
for Good
Reason after a Change in Control, the day the Company receives
the Notice
of Termination;
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(iv) if the Executive's employment is terminated by the Company
other than
for Cause or Disability, the date on which the Company notifies
the
Executive of such termination or any other later date so
specified;
(v) if the Executive's employment is terminated by the
Executive
other than
for Good Reason, the date on which the Executive notifies the
Company of
such termination or such later date chosen by the Company
within
thirty (30) days of the date on which the Executive notifies
the
Company of
such termination; and
(vi) if the Executive's employment is terminated by reason of
death
or
Disability, the date of death of the Executive or the
Disability
Effective
Date, as the case may be.
5. OBLIGATIONS OF THE COMPANY UPON
TERMINATION.
(a) BY
EXECUTIVE FOR GOOD REASON; BY THE COMPANY OTHER THAN FOR CAUSE
OR
DISABILITY. In partial consideration for
the noncompetition covenants of the
Executive pursuant to Paragraph 9(b) and in
part as liquidated damages in lieu
of the payments and benefits to which the
Executive would have been entitled
through the remainder of the Employment
Period, if, during the Employment
Period, the Company shall terminate the
Executive's employment other than for
Cause or Disability or the Executive shall
terminate employment for Good Reason,
the Company shall pay to the Executive or
his legal representative a lump sum
in cash within thirty (30) days after the
Date of Termination equal to the sum
of the following amounts:
(i) two (2) times the Executive's then current Annual Base
Salary;
(ii) the Executive's Annual Base Salary through the Date of
Termination;
(iii) any previous years' regular annual bonus, to the extent
earned
but not
previously paid;
(iv) any earned but unpaid previous years' Annual Bonus(es);
(v) payment for any accrued vacation;
(vi) the product of (x) the Target Regular Annual Bonus and (y)
a
fraction,
the numerator of which is the number of days in the fiscal year
in which
the Date of Termination occurs through the Date of Termination
and the
denominator of which is 365; and
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(vii) the Company shall pay the Executive or his legal
representative any compensation previously deferred by the
Executive
(together
with any accrued interest or earnings thereon) as provided by
the terms
of such deferred compensation plan or program (the "Deferred
Compensation").
The sum of all of the amounts described in
subparagraphs (ii), (iii), (iv), (v)
and (vii) of this Paragraph 5(a) shall be
hereinafter referred to as the
"Accrued Obligations." Notwithstanding
anything herein to the contrary, no
payments shall be made or benefits provided
to the Executive under Paragraph 5
or 6 unless the Executive shall have
executed a release and waiver of claims in
the form acceptable to the Company (the
"Release") and the last day of any
applicable revocation period ("Revocation
Date") under such Release shall have
expired.
(b) DEATH.
If the Executive's employment is terminated by reason of the
Executive's death during the Employment
Period, this Agreement shall terminate
without further obligations to the
Executive, other than for payment of Accrued
Obligations to the Executive, his estate
and/or beneficiaries.
(c)
DISABILITY. If the Executive's employment is terminated by reason
of
the Executive's Disability during the
Employment Period, this Agreement shall
terminate without further obligations to
the Executive, other than for payment
of Accrued Obligations, except that the
Executive shall be entitled to receive
disability and other benefits at a level
generally provided by the Company to
disabled executives and/or their families
in accordance with such plans,
programs, practices and policies relating
to disability, if any, as in effect
generally for other peer executives and
their families.
(d) BY THE
COMPANY FOR CAUSE. If the Executive's employment is terminated
by the Company for Cause during the
Employment Period, this Agreement shall
terminate without further obligations to
the Executive, other than for payment
of Accrued Obligations.
6. CHANGE IN CONTROL.
(a) For
purposes of this Agreement, a "Change in Control" of the
Company
shall have the meaning in the Fisher
Scientific International Inc. 2005 Equity
and Incentive Plan, as that plan may be
amended from time to time prior to any
Change in Control.
(b)
TERMINATION OF EMPLOYMENT FOLLOWING A CHANGE IN CONTROL. Upon a
termination of employment by the Executive
for Good Reason (as defined in
Paragraph 6(c) below) or by the Company
without Cause, in each case within two
(2) years immediately following a Change in
Control of the Company, then in lieu
of any payments or benefits set forth in
Paragraph 5 of this Agreement, the
Executive shall be
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entitled to receive and the Company shall
provide to the Executive those
payments and benefits set forth in
Paragraph 6(d) below. Notwithstanding
anything in this Agreement to the contrary,
if a Change in Control of the
Company occurs and if the Executive's
employment with the Company is terminated
prior to the date on which the Change in
Control of the Company occurs, and if
there is a reasonable basis that such
termination of employment (1) was at the
request of a third party that has taken
steps reasonably calculated to effect a
Change in Control of the Company or (2)
otherwise arose in connection with or
anticipation of a Change in Control of the
Company and in each of (1) and (2) a
Change in Control occurs within one (1)
year following the Executive's
termination of employment as set forth in
this Paragraph 6(b), then such
termination of employment shall be treated
as a termination of the Executive's
employment following a Change in Control of
the Company and the Executive shall
be entitled to receive the compensation and
benefits set forth in Paragraph
6(d).
(c) The
Executive may terminate Executive's employment for Good Reason
at
any time after a Change in Control either
by resignation or by retirement (if
eligible). For purposes of this Agreement,
"Good Reason" after a Change in
Control shall mean any of the
following:
(i) a
material adverse change in the Executive's position, duties, or
responsibilities with the Company as in effect immediately prior to
a
Change in
Control of the Company;
(ii) a
reduction by the Company in the Executive's remuneration as in
effect
immediately prior to the time of a Change in Control of the
Company,
unless a similar reduction is applied to all similarly situated
executives
or the Company's failure to increase (within twelve (12) months
of the
Executive's last increase in base salary) the Executive's base
salary
after a Change in Control of the Company in an amount similar
to
other similarly
situated executives at the Company receiving an increase
in base
salary after the Change in Control;
(iii) any
failure by the Company to continue in effect any material plan
or
arrangement, including without limitation benefit and incentive
plans,
in which
the Executive is participating immediately prior to the time of
a
Change in
Control of the Company (hereinafter referred to as "Plans"),
unless the
Company prov
