Exhibit 10(5)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into
by HYCOR BIOMEDICAL INC., a Delaware corporation ("Company"), and XXXXX
XXXXXXXXXXX, Ph.D. ("Davoudzadeh").
WHEREAS, the Company desires to employ Davoudzadeh in an
executive capacity, Davoudzadeh desires to accept such employment, and the
parties desire to document the terms and conditions of their employment
relationship,
NOW, THEREFORE, in consideration of the promises and covenants
set forth in this Agreement and for other valuable consideration, the parties
agree as follow:
1. Employment: Davoudzadeh shall be employed as a Vice President of the
Company reporting to the President, and shall faithfully and diligently perform
all duties and responsibilities required of such position or assigned by the
President from time to time, including service on behalf of the Company's
subsidiary and affiliated companies.
2. Term: This Agreement and Davoudzadeh's employment shall be for a term
of two (2) years commencing on November 15, 2002, and expiring on November 15,
2004.
3. Compensation: In consideration for all services to be performed under
this Agreement, Davoudzadeh shall receive the following compensation:
A. Salary: Davoudzadeh shall be paid a base salary at the rate of
One Hundred Seventy Thousand Dollars ($170,000) per year and be paid in
accordance with the Company's regular payroll practice. Annually, the Board of
Directors, upon the recommendation of the President, shall review Davoudzadeh's
performance with a view toward increasing his salary.
B. Bonus: Davoudzadeh shall be entitled to participate in the
Company's Annual Executive Incentive Plan, subject to all of the terms and
conditions set forth in said plan, as amended from time to time, as long as such
plan remains in effect, and to participate in any successor or similar incentive
plan available to management personnel of comparable status with the Company or
its affiliates. Nothing herein or in said plan shall constitute a guarantee of
Davoudzadeh's employment by the Company, or a limitation on the Company's rights
under this Agreement, or limitation on the Company's rights to amend or
terminate any plan.
C. Employee Benefit Plans: Davoudzadeh shall be entitled to
participate in all employee benefit plans, including group medical, dental,
visual, and life insurance, pension, profit sharing, group and individual
disability income, stock option, vacation, and other benefit plans, on terms
commensurate with the benefits awarded
management personnel of comparable status with the Company or any affiliate of
the Company.
D. Expense Reimbursement: The Company shall reimburse Davoudzadeh
for all reasonable expenses that he necessarily incurs in connection with his
employment and for which he presents adequate documentation in accordance with
Company policies in effect from time to time.
4. Termination: This Agreement and Davoudzadeh's employment are subject
to immediate termination at any time as follows:
A. Death: This Agreement shall terminate immediately upon
Davoudzadeh's death, in which event the Company's only obligations shall
be (i) to pay all compensation owing for services rendered by
Davoudzadeh prior to the date of his death; and (ii) to continue paying
Davoudzadeh's base salary to his estate for a period of thirty (30) days
after this death.
B. Disability: In the event that Davoudzadeh is disabled from
performing his assigned duties under this Agreement due to illness or
injury for a period in excess of one hundred eighty (180) days.
C. Termination for Cause: The Company may terminate this
Agreement for cause immediately upon written notice to Davoudzadeh in
the event Davoudzadeh (i) engages in any material misconduct, willful
breach, or habitual neglect of his duties as an officer of the Company,
(ii) fails to perform his duties satisfactorily after written notice and
a reasonable opportunity to perform as determined by the President, or
(iii) is finally convicted of a felony. In either event, the Company's
sole obligation to Davoudzadeh in lieu of all claims for compensation or
damages shall be to pay all compensation owing for services rendered by
Davoudzadeh prior to the date of termination under this subsection.
D. Termination Without Cause: The Company in its sole discretion
may terminate this Agreement without cause or prior warning immediately
upon written notice to Davoudzadeh. For purposes of this Section 4D, any
resignation following a substantial reduction in Davoudzadeh's salary,
duties or responsibilities shall constitute an involuntary termination
without cause. In the event of a termination under this Section 4D the
Company shall pay all compensation owing for services rendered by
Davoudzadeh prior to the date of termination, shall pay a lump-sum
severance benefit equal to six (6) months after the termination, or the
remaining term of this Agreement, whichever is shorter, and shall
continue to provide Davoudzadeh at Company expense all medical,
disability and insurance benefits available to him at the time of
termination for a period of six (6) months after the termination or the
remaining term of this Agreement, whichever is shorter.
E. Company's Obligations Under this Agreement Exclusive: The
benefits set forth in subsections A through D above (which benefits, in
the event
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of termination pursuant to subsections A, C, or D, include payment for
services rendered prior to termination as provided in such subsections),
as applicable, constitute the sole obligations of the Company to
Davoudzadeh upon a termination and are in lieu of any damages or other
compensation that Davoudzadeh may claim under other Company policies in
connection with this Agreement. The benefits on termination in this
Agreement are in substitution for any severance or termination benefits
otherwise available under Company policies of general application.
Davoudzadeh expressly acknowledges that certain Company benefit or
incentive plans provide for vesting in, or award of, benefits based on
employment on or through particular dates and that nothing in this
Agreement entitles him to partial vesting or partial awards under such
plans. Any payments under Section 4D relating to any incentive or bonus
plan are expressly acknowledged to be benefits under this Agreement and
not an interpretation or modification of any such plan.
F. Resignation as Officer: In the event of any termination
pursuant to this Section 4, Davoudzadeh shall be deemed to have resigned
as an officer of the Company if he was serving in such capacity at the
time of termination.
5. Confidentiality: Davoudzadeh acknowledges and agrees that he has been
and will continue to be entrusted with certain trade and proprietary information
regarding the products, processes, methods of manufacture and delivery,
know-how, designs, formula, work in progress, research and development, computer
software and data bases, copyrights, trademarks, patents, marketing techniques,
and future business plans, as well as customer lists and information concerning
the identity, needs, and desires of actual and potential customers of the
Company and its subsidiaries, joint ventures, partners, and other affiliated
persons and entities ("Confidential Information"), all of which derive
significant economic value from not being generally known to others outside the
Company.
A. During the entire term of his employment with the Company and
for two years thereafter, Davoudzadeh shall not disclose or exploit any
Confidential Information except for the sole benefit of the Company or
with its express written consent.
B. During the entire term of his employment by the Company and
for one year thereafter, Davoudzadeh shall not directly or indirectly
solicit any actual or potential customer of the Company or its
subsidiary and affiliated companies for any business that competes
directly or indirectly with the Company, except for the sole benefit of
the Company or with its express written consent.
C. During the entire term of his employment by the Company and
for one year thereafter, Davoudzadeh shall not induce or attempt to
induce any employee of the Company to leave the Company's employ except
for the sole benefit of the Company or with its express written consent.
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D. In the event any provision in this Section 5 is more
restrictive than allowed by the law of any jurisdiction in which the
Company seeks enforcement, such provision shall be deemed amended and
shall then be fully enforceable to the extent permitted by such law.
X. Xxxxxxxxxxx acknowledges and agrees that any violation of
this Section 5 would cause immediate irreparable damage to the Company,
and that it would be extremely difficult or impossible to determine the
amount of damage caused to the Company. Davoudzadeh therefore agrees
that the Company's remedies at law are inadequate, and hereby consents
to issuance of a temporary restraining order, preliminary and permanent
injunction, and other appropriate relief to restrain any actual or
threatened violation of this Section, without limiting any remedies the
Company may have at law or in equity.
6. Inventions: Any and all patents, copyrights, trademarks, inventions,
discoveries, developments, or trade secrets developed or perfected by
Davoudzadeh during or as the result of his employment with the Company shall
constitute the sole and exclusive property of the Company. Davoudzadeh shall
disclose all such matters to the Company, assign all right, title and interest
he may have in them, and cooperate with the Company in obtaining and perfecting
any patent, copyright, trademark, or other legal protection. This Section 6
shall not apply to any invention which qualified fully under California Labor
Code Section 2870, a true copy of which is attached to this Agreement as Exhibit
A.
7. Conflict of Interest:During the term of this Agreement, Davoudzadeh
shall devote his time, ability, and attention to the business of the Company,
and shall not accept other employment or engage in any other outside business
activity which interferes with the performance of his duties and
responsibilities under this Agreement or which involves actual or potential
competition with the business of the Company, except with the express written
consent of the President.
8. Employee Benefit Plans: All of the employee benefit plans referred to
or contemplated by this Agreement shall be governed solely by the terms of the
underlying plan documents and by applicable law. Nothing in this Agreement shall
impair the Company's right to amend, modify, replace and terminate any and all
such plans in its sole discretion as provided by law, or to terminate this
Agreement in accordance with its terms. This Agreement is for the sole benefit
of Davoudzadeh and the Company, and is not intended to create an employee
benefit plan to modify the term of existing plans.
9. Assignment: This Agreement may not be assigned by Davoudzadeh, but
may be assigned by the Company to any successor in interest to its business. In
the event the Company does not survive any merger, acquisition, or other
reorganization, it shall make a reasonable effort to obtain an assumption of
this Agreement by the surviving entity in such merger, acquisition, or other
reorganization, but the failure to obtain such assumption shall not prevent or
delay such merger, acquisition, or other reorganization or relieve the Company
of its other obligations under this Agreement. This Agreement shall
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bind and inure to the benefit of the Company's successors and assigns, as well
as Davoudzadeh's heirs, executors, administrators, and legal representatives.
10. Notices: All notices required by this Agreement may be delivered by
first-class mail at the following addresses:
To the Company: Hycor Biomedical Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxx Xxxxx, XX 00000
To Davoudzadeh: Xxxxx Xxxxxxxxxxx, Ph.D
0000 Xxxxxx Xxxxx Xx.
Xxxxxxxxxx, XX 00000
11. Amendment: This Agreement may be modified only by written agreement
signed by the party against whom any amendment is to be enforced.
12. Choice of Law: This Agreement shall be governed by the laws of the
state of California.
13. Partial Invalidity: In the event any provision of this Agreement is
void or unenforceable, the remaining provisions shall continue in full force and
effect.
14. Waiver: No waiver of any breach of this Agreement shall constitute a
waiver of any subsequent breach.
15. Complete Agreement: This Agreement and the Employment Offer letter
by the Company contain the entire agreement between the parties, and supersedes
any and all prior and contemporaneous oral and written agreements, including
Davoudzadeh's previous employment contracts, which shall have no further force
and effect.
XXXXX XXXXXXXXXXX, Ph.D,
/s/ Xxxxx Xxxxxxxxxxx Dated: October 21,2002
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HYCOR BIOMEDICAL INC.
By: /s/ J. Xxxxx Xxxxxx Dated: October 22, 2002
------------------------------------ ----------------
J. Xxxxx Xxxxxx
President and Chief Executive Officer
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EXHIBIT A
CALIFORNIA LABOR CODE SECTION 2870
EMPLOYMENT AGREEMENTS; ASSIGNMENT OF RENTS
(a) Any provision in an employment agreement which provides that an employee
shall assign, or offer to assign, any of his or her rights in an invention to
his or her employer shall not apply t an invention that the employee developed
entirely on his or her own time without using the employer's equipment,
supplies, facilities, or trade secret information except for those inventions
that either:
(1) Relate at the time of conception or reduction to practice of the
invention to the employer's business, or actual or demonstrably
anticipated research or development of the employer; or
(2) Result from any work performed by the employee for the employer.
(b) To the extent a provision in an employment agreement purports to require an
employee to assign an invention otherwise excluded from being required to be
assigned under subdivision (a), the provision is against the public policy of
this state and is unenforceable.
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