Employment Agreement - Applera Corp. and Kathy P. Ordonez
EMPLOYMENT AGREEMENT
AGREEMENT entered into as of December 1, 2000, between APPLERA
CORPORATION, a Delaware corporation having its principal place of business at
Norwalk, Connecticut (the "Company"), and Kathy P. Ordonez, residing at 5465
Hilltop Crescent, Oakland, CA 94618 (the "Employee").
WHEREAS, the Employee has rendered and/or will render valuable
services to the Company and it is regarded essential by the Company that it have
the benefit of Employee's services in future years; and
WHEREAS, the Board of Directors of the Company believes that
it is essential that, in the event of the possibility of a Change in Control of
the Company (as defined herein), the Employee be able to continue her attention
and dedication to her duties and to assess and advise the Board of Directors of
the Company (the "Board") whether such proposals would be in the best interest
of the Company and its stockholders without distraction regarding any
uncertainty concerning her future with the Company; and
WHEREAS, the Employee is willing to agree to continue to serve
the Company in the future;
NOW, THEREFORE, it is mutually agreed as follows:
1. Employment. The Company agrees to employ Employee, and the
Employee agrees to serve as an employee of the Company or one or more of its
subsidiaries after a Change of Control during the Period of Employment (as those
terms are defined in Section 2 hereof) in such executive capacity as Employee
served immediately prior to the Change in Control which caused the commencement
of the Period of Employment. The Employee also agrees to serve during the Period
of Employment, if elected or appointed thereto, as a Director of the Board of
Directors of the Company and as a member of any committee of the Board of
Directors. Notwith-standing anything to the contrary herein, the Period of
Employment shall not commence and the Employee shall not be entitled to any
rights, benefits, or payments hereunder unless and until a Change in Control has
occurred.
2. Definitions.
(a) Cause. During the Period of Employment, "Cause" means
termination upon (i) the willful and continued failure by the Employee to
perform substantially her duties with the Company (other than any such failure
resulting from the Employee's incapacity due to physical or mental illness)
after a demand for a substantial performance is delivered to the Employee by the
Chief Executive Officer of the Company ("CEO") which specifically identifies the
manner in which the CEO believes that the Employee has not substantially
performed her duties, or (ii) the willful engaging by the Employee in illegal
conduct which is materially and demonstrably injurious to the Company. For
purposes of this Section 2(a), no act, or failure to act, on the part of the
Employee shall be considered "willful" unless done, or omitted to be done, by
the Employee in bad faith and without reasonable belief that the Employee's
action or omission was in, or not opposed to, the best interests of the Company.
<PAGE>
-2-
Any act, or failure to act, based upon authority given pursuant to a resolution
duly adopted by the Board or based upon the advice of counsel for the Company
shall be conclusively presumed to be done, or omitted to be done, by the
Employee in good faith and in the best interests of the Company. Notwithstanding
the foregoing, the Employee shall not be deemed to have been terminated for
Cause unless and until there shall have been delivered to the Employee 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 called
and held for that purpose (after reasonable notice to the Employee and an
opportunity for her, together with counsel, to be heard before the Board),
finding that in the good faith opinion of the Board the Employee was guilty of
the conduct set forth above in (i) or (ii) of this Section 2(a) and specifying
the particulars thereof in detail.
(b) Cash Compensation. "Cash Compensation" shall mean the sum
of (i) Employee's Base Salary (determined in accordance with the provisions of
Section 4(a) hereof) and (ii) Employee's incentive compensation (provided for
under Section 4(b) hereof), which shall be an amount equal to the greatest of
(x) the average of the amount of Employee's incentive compensation for the last
three completed fiscal years immediately prior to the Employee's termination of
employment (whether or not such years occurred during the Period of Employment),
(y) the target amount of such Employee's incentive compensation for the fiscal
year in which her termination of employment occurs, or (z) the Employee's target
amount for the fiscal year in which the Change in Control occurs.
(c) Change in Control. "Change in Control" means the
occurrence of any of the following: an event that would be required to be
reported (assuming such event has not been "previously reported") in response to
Item 1(a) of the Current Report on Form 8-K, as in effect on the date hereof,
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934;
provided, however, that, without limitation, such a Change in Control shall be
deemed to have occurred at such time as (i) any "person" within the meaning of
Section 14(d) of the Securities Exchange Act of 1934 becomes the "beneficial
owner" as defined in Rule 13d-3 thereunder, directly or indirectly, of more than
25% of the Company's Common Stock; (ii) during any two-year period, individuals
who constitute the Board of Directors of the Company (the "Incumbent Board") as
of the beginning of the period cease for any reason to constitute at least a
majority thereof, provided that any person becoming a director during such
period whose election or nomination for election by the Company's stockholders
was approved by a vote of at least three quarters of the Incumbent Board (either
by a specific vote or by approval of the proxy statement of the Company in which
such person is named as a nominee for director without objection to such
nomination) shall be, for purposes of this clause (ii), considered as though
such person were a member of the Incumbent Board; or (iii) the approval by the
Company's stockholders of the sale of all or substantially all of the stock or
assets of the Company.
<PAGE>
-3-
(d) Disability. "Disability" means the absence of the Employee
from her duties with the Company on a full-time basis for one hundred eighty
(180) consecutive days as a result of incapacity due to physical or mental
illness.
(e) Good Reason. During the Period of Employment, "Good
Reason" means:
(i) an adverse change in the status of the Employee (other
than any such change primarily attributable to the fact that the Company may no
longer be publicly owned) or position(s) as an officer of the Company as in
effect immediately prior to the Change in Control or the assignment to the
Employee of any duties or responsibilities which, in her reasonable judgment,
are inconsistent with such status or position(s), or any removal of the Employee
from or any failure to reappoint or reelect her to such position(s) (except in
connection with the termination of the Employee's employment for Cause,
Disability, or upon attaining age 65 or upon taking early retirement under any
of the Company's retirement plans, or as a result of death or by the Employee
other than for Good Reason);
(ii) a reduction by the Company after a Change in Control in
the Employee's Base Salary;
(iii) a material reduction after a Change in Control in the
Employee's total annual compensation; provided, however, that for these purposes
a reduction for any year of over 10% of total compensation measured by the
preceding year without a substantially similar reduction to all other executives
participating in incentive compensation plans shall be considered "material";
and the failure of the Company to adopt or renew a stock option plan or to grant
amounts of restricted stock or stock options, which are consistent with the
Company's prior practices, to the Employee shall also be considered a material
reduction, unless the Employee participates in substitute programs that provide
substantially equivalent economic value to the Employee;
(iv) the failure by the Company to continue in effect any
Benefit Plan (as hereinafter defined) in which Employee was participating at the
time of the Change in Control (or Benefit Plans providing Employee with at least
substantially similar benefits) other than as a result of the normal expiration
of any such Benefit Plan in accordance with its terms as in effect at the time
of the Change in Control, or the taking of any action, or the failure to act, by
the Company which would adversely affect Employee's continued participation in
any such Benefit Plans on at least as favorable a basis to Employee as was the
case immediately prior to the Change in Control or which would materially reduce
Employee's benefits in the future under any of such Benefit Plans or deprive
Employee of any material benefit enjoyed by Employee immediately prior to the
Change in Control;
<PAGE>
-4-
(v) the failure by the Company after a Change in Control to
provide and credit Employee with the number of paid vacation days to which
Employee was then entitled in accordance with the Company's normal vacation
policy as in effect immediately prior to the Change in Control; or
(vi) the Company's requiring the Employee after a Change in
Control to be based more than fifty miles from the Employee's principal place of
business immediately prior to the Change in Control except for required travel
on the Company's business to an extent substantially consistent with the
business travel obligations which she undertook on behalf of the Company prior
to the Change in Control.
(f) Period of Employment. (i) "Period of Employment" means,
subject to the provisions of Section 2(f)(ii), the period of thirty-six (36)
months commencing on the date of a Change in Control (as defined in Section 2(c)
hereof) and the period of any extension or extensions thereof in accordance with
the terms of this Section. The Period of Employment shall be extended
automatically by one week for each week in which the Employee's employment
continues after the date of a Change in Control.
(ii) Notwithstanding the provisions of Section 2(f)(i) hereof,
the Period of Employment shall terminate upon the occurrence of the earliest of
(A) the Employee's attainment of age 65, or the election by the Employee to
retire early from the Company under any of its retirement plans, (B) the death
of the Employee, (C) the Disability of the Employee or (D) a termination of
Employee's employment by the Company for Cause or by the Employee without Good
Reason.
(g) Termination Date. "Termination Date" means the date on
which the Period of Employment terminates.
3. Duties During the Period of Employment. While employed by
the Company during the Period of Employment, the Employee shall devote her full
business time, attention, and best efforts to the affairs of the Company and its
subsidiaries; provided, however, that the Employee may engage in other
activities, such as activities involving charitable, educational, religious, and
similar types of organizations, speaking engagements, membership on the board of
directors of other organizations, and similar types of activities to the extent
that such other activities do not prohibit the performance of her duties under
this Agreement, or inhibit or conflict in any material way with the business of
the Company and its subsidiaries.
<PAGE>
-5-
4. Current Cash Compensation.
(a) Base Salary. The Company will pay to the Employee while
employed by the Company during the Period of Employment an annual base salary
("Base Salary") in an amount determined by the Board of Directors or its
Compensation Committee which shall never be less than the greater of (i) the
Employee's Base Salary prior to the commencement of the Period of Employment or
(ii) her Base Salary during the preceding year of the Period of Employment;
provided, however, that it is agreed between the parties that the Company shall
review annually the Employee's Base Salary, and in light of such review may, in
the discretion of the Board of Directors or its Compensation Committee, increase
such Base Salary taking into account the Employee's responsi-bilities, inflation
in the cost of living, increase in salaries of executives of other corporations,
performance by the Employee, and other pertinent factors. The Base Salary shall
be paid in substantially equal biweekly installments while Employee is employed
by the Company.
(b) Incentive Compensation. While employed by the Company
during the Period of Employment, the Employee shall continue to participate in
such of the Company's incentive compensation programs for executives as the
Employee participated in prior to the commencement of the Period of Employment.
Any amount awarded to the Employee under such programs shall be paid to Employee
in accordance with the terms thereof.
5. Employee Benefits.
(a) Vacation and Sick Leave. The Employee shall be entitled
during the Period of Employment to a paid annual vacation of not less than
twenty (20) business days during each calendar year while employed by the
Company and to reasonable sick leave.
(b) Regular Reimbursed Business Expenses. The Company shall
reimburse the Employee for all expenses and disbursements reasonably incurred by
the Employee in the performance of her duties during the Period of Employment.
(c) Employment Benefit Plans or Arrangements. While employed
by the Company, Employee shall be entitled to participate in all employee
benefit plans, programs, or arrangements ("Benefit Plans") of the Company, in
accordance with the terms thereof, as in effect from time to time, which provide
benefits to senior executives of the Company. For purposes of this Agreement,
Benefit Plans shall include, without limitation, any compensation plan such as
an incentive, deferred, stock option or restricted stock plan, or any employee
benefit plan such as a thrift, pension, profit sharing, pre-tax savings,
medical, dental, disability, salary continuation, accident, life insurance plan,
or a relocation plan or policy, or any other plan, program, or policy of the
Company intended to benefit employees.
<PAGE>
-6-
6. Termination of Employment.
(a) Termination by the Company for Cause or Termination by the
Employee Other Than for Good Reason. If during the Period of Employment the
Company terminates the employment of the Employee for Cause or if the Employee
terminates her employment other than for Good Reason the Company shall pay the
Employee (i) the Employee's Base Salary through the end of the month in which
the Termination Date occurs, (ii) any incentive compensation payable to her
pursuant to Section 4(b) hereof, including a pro rata share for any partial
year, (iii) any accrued vacation pay, and (iv) benefits payable to her pursuant
to the Company's Benefit Plans as provided in Section 5(c) hereof through the
end of the month in which the Termination Date occurs. The amounts and benefits
set forth in clauses (i), (ii), (iii) and (iv) of the preceding sentence shall
hereinafter be referred to as "Accrued Benefits."
(b) Termination by the Company Without Cause or by the
Employee for Good Reason. If during the Period of Employment the Company
terminates the Employee's employment with the Company without Cause or the
Employee terminates her employment with the Company for Good Reason, the Company
will pay to Employee all Accrued Benefits and, in addition, pay or provide to
the Employee the following:
(i) within thirty (30) days after the date of termination, a
lump sum equal to the greater of (A) the Employee's Cash
Compensation for the remainder of the Period of
Employment or (B) two times the Employee's Cash
Compensation;
(ii) for the greater of two years or the remainder of the
Period of Employment immediately following the
Employee's date of termination, the Employee and
Employee's family shall continue to participate in any
Benefit Plans of the Company (as defined in Section 5(c)
hereof) in which Employee or Employee's family
participated at any time during the one-year period
ending on the day immediately preceding Employee's
termination of employment, provided that (a) such
continued participation is possible under
<PAGE>
-7-
the terms of such Benefit Plans, and (b) the Employee
continues to pay contributions for such participation at
the rates paid for similar participation by active
Company employees in similar positions to that held by
the Employee immediately prior to the date of
termination. If such continued participation is not
possible, the Company shall provide, at its sole cost
and expense, substantially identical benefits to the
Employee plus pay an additional amount to the Employee
equal to the Employee's liability for federal, state and
local income taxes on any amounts includible in the
Employee's income by virtue of the terms of this Section
6(b)(ii) so that Employee does not have to personally
pay any federal, state and local income taxes by virtue
of the terms of this Section 6(b)(ii);
(iii) three additional years of service credit under the
Company's Non-Qualified Plans and, for purposes of such
plans, Employee's final average pay shall be deemed to
be her Cash Compensation for the year in which the date
of termination occurs;
(iv) the Company shall take all reasonable actions to cause
any Company restricted stock ("Restricted Stock")
granted to Employee to become fully vested and any
options to purchase Company stock ("Options") granted to
Employee to become fully exercisable, and in the event
the Company cannot effect such vesting or acceleration
within sixty (60) days, the Company shall pay within
thirty (30) days thereafter to Employee (i) with respect
to each Option, an amount equal to the product of (x)
the number of unvested shares subject to such Option,
multiplied by (y) the excess of the fair market value of
such a share of Company common stock on the date of
Employee's termination of employment, over the per share
exercise price of such Option and (ii) with respect to
each unvested share of Restricted Stock an amount equal
to the fair market value of such a share of Company
common stock on the date of Employee's termination of
employment.
Except as provided in the following sentence, the amounts payable to
the Employee under this Section 6(b) shall be absolutely owing and shall not be
subject to reduction or mitigation as a result of employment of the Employee
elsewhere after the date of termination. Notwithstanding any provision herein to
the contrary, the benefits described in clauses (i), (ii) and (iii) of this
Section 6(b) shall only be payable with respect to the period ending upon the
earlier of (i) the end of the period specified in each such clause or (ii)
Employee's attainment of age 65.
<PAGE>
-8-
7. Gross-Up. In the event any amounts due to the Employee
under this Agreement after a Change in Control, under the terms of any Benefit
Plan, or otherwise payable by the Company or an affiliate of the Company are
subject to excise taxes under Section 4999 of the Internal Revenue Code of 1986,
as amended ("Excise Taxes"), the Company shall pay to the Employee, in addition
to any other payments due under other provisions of this Agreement, an amount
equal to the amount of such Excise Taxes plus the amount of any federal, state
and local income or other taxes and Excise Taxes attributable to all amounts,
including income taxes, payable under this Section 7, so that after payment of
all income, Excise and other taxes with respect to the amounts due to the
Employee under this Agreement, the Employee will retain the same net after tax
amount with respect to such payments as if no Excise Taxes had been imposed.
8. Governing Law. This Agreement is governed by, and is to be
construed and enforced in accordance with, the laws of the State of Connecticut.
If under such laws any portion of this Agreement is at any time deemed to be in
conflict with any applicable statute, rule, regulation, or ordinance, such
portion shall be deemed to be modified or altered to conform thereto or, if that
is not possible, to be omitted from this Agreement, and the invalidity of any
such portion shall not affect the force, effect, and validity of the remaining
portion hereof.
9. Notices. All notices under this Agreement shall be in
writing and shall be deemed effective when delivered in person (in the Company's
case, to its Secretary) or seventy-two (72) hours after deposit thereof in the
U.S. mail, postage prepaid, for delivery as registered or certified mail --
addressed, in the case of the Employee, to the Employee at Employee's
residential address, and in the case of the Company, to its corporate
headquarters, attention of the Secretary, or to such other address as the
Employee or the Company may designate in writing at any time or from time to
time to the other party. In lieu of personal notice or notice by deposit in the
U.S. mail, a party may give notice by telegram, fax or telex.
10. Miscellaneous. This Agreement may be amended only by a
subsequent written agreement of the Employee and the Company. This Agreement
shall be binding upon and shall inure to the benefit of the Employee, the
Employee's heirs, executors, administrators, beneficiaries, and assigns and to
the benefit of the Company and its successors. Notwithstanding anything in this
Agreement to the contrary, nothing herein shall prevent or interfere with the
ability of the Company to terminate the employment of the Employee prior to a
Change in Control nor be construed to entitle Employee to be continued in
employment prior to a Change in Control and this Agreement shall terminate if
Employee or the Company terminates Employee's employment prior to a Change in
Control. Similarly, nothing herein shall prevent the Employee from retiring
under any of the Company's retirement plans and receiving the corresponding
benefits thereunder consistent with the treatment of other Company employees.
<PAGE>
-9-
11. Fees and Expenses. The Company shall pay all reasonable
legal fees and related expenses incurred by the Employee in connection with this
Agreement following a Change in Control of the Company, including without
limitation, all such fees and expenses, if any, incurred in connection with (i)
contesting or disputing any termination of the Employee's employment hereunder,
or (ii) the Employee seeking to obtain or enforce any right or benefit provided
by the Agreement.
12. Arbitration. Any dispute or controversy arising under or
in connection with this Agreement shall be settled exclusively by arbitration in
Connecticut by three arbitrators in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction; provided, however, that the
Employee shall be entitled to be paid as if his or her employment continued
during the pendency of any dispute or controversy arising under or in connection
with this Agreement. The Company shall bear all costs and expenses arising in
connection with any arbitration pursuant to this Section 12.
<PAGE>
-10-
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the year and day first above written.
APPLERA CORPORATION
By: /s/ Tony L. White
------------------------------
Tony L. White
Chairman, President and
Chief Executive Officer
ATTEST:
By: /s/ William B. Sawch
----------------------------
William B. Sawch
Senior Vice President and
General Counsel
ACCEPTED AND AGREED:
/s/ Kathy P. Ordonez
-----------------------------------
Kathy P. Ordonez