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EXHIBIT 10.5
FORM OF EMPLOYMENT AGREEMENT
This Agreement is made and entered into as of December 15, 2000, between
Sybron International Corporation d/b/a Apogent Technologies Inc., a Wisconsin
corporation ("Employer" or "Company"), and _______________ ("Employee").
W I T N E S S E T H:
WHEREAS, Employer desires to retain the services of Employee and is willing
to do so upon the terms and conditions set forth herein; and
WHEREAS, Employee desires to be employed by Employer upon the terms and
conditions set forth herein;
NOW, THEREFORE, Employee and Employer, in consideration of the agreements,
covenants and conditions herein, hereby agree as follows:
1. Basic Employment Provisions.
(a) Employment and Term. Employer hereby employs Employee as
_________________ and Employee agrees to be employed by Employer in such
capacity, for a period commencing on the date hereof and continuing thereafter
until terminated, by one of the means provided herein, by the Employee or
Employer.
(b) Duties. Employee shall, as the [FOR XX. XXXXXXXX ONLY: President
and CEO, be subject to the direction and supervision of the Board of Directors
of Employer (the "Board")][FOR THE OTHER EXECUTIVE OFFICERS: President of
Employer, or such other persons as determined by the President.] Employee shall
have those duties and responsibilities that are commensurate with his position
and assigned to him by the [FOR XX. XXXXXXXX ONLY: Board][FOR THE OTHER
EXECUTIVE OFFICERS: President], which duties Employee shall faithfully perform
to the best of his abilities. Employee's services shall be performed primarily
at the Company's corporate headquarters, which are currently located in
Portsmouth, New Hampshire. Employee shall be required to devote his full working
time to the performance of his duties hereunder.
2. Compensation.
(a) Salary.
(i) As base compensation for the services to be rendered by
Employee hereunder, Employer shall to pay to Employee an initial annual base
salary at the rate of $______________ per year. Such salary shall accrue and be
payable in accordance with the payroll practices of Employer in effect
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from time to time. All such payments shall be subject to any deductions and
withholdings required by applicable law.
(ii) While he continues to be employed by Employer, Employee
shall be eligible for consideration for merit salary increases. Such increases
shall be at the sole discretion of the [FOR XX. XXXXXXXX ONLY: Board][FOR THE
OTHER EXECUTIVE OFFICERS: Employer], and nothing herein contained shall be
construed as granting Employee a vested right to any such increases.
(iii) If during his employment, Employee fails to perform his
duties on account of illness or other incapacity, his base salary will be
reduced by the amount of any statutory disability benefits and disability income
benefits which he receives.
(b) Benefits. In addition to his salary, Employee shall be entitled,
while employed by Employer, to such employee benefits and other benefits as are
customarily accorded the executives of Employer, including without limitation
participation in pension, stock option, bonus and other incentive plans, group
life, hospitalization, vacations, other welfare or insurance plans, relocation
plans, and automobile plans, [FOR XX. XXXXXXXX ONLY: as well as such other
benefits approved by the Board ("Benefit Plans")].
(c) Expense Reimbursement. During his employment, Employer shall
reimburse Employee, upon the submission of properly documented expense account
reports, for all reasonable travel and entertainment expenses incurred by
Employee in the course of his employment with Employer.
3. Termination of Employment.
(a) Termination by Employee.
(i) Except as provided in Section 3(a)(ii), Employee may terminate
his employment with Employer for any reason, at any time, by providing Employer
with a written notice, at least forty-five (45) days in advance of the
termination date, of his desire to terminate his employment.
(ii) In the event a Potential Change in Control of the Company, as
hereinafter defined, occurs, Employee may not voluntarily terminate his
employment with the Company pursuant to subsection (i) above for a period of six
(6) months following the initial occurrence of a Potential Change in Control of
the Company. If more than one Potential Change in Control of the Company occurs
during the term of this Agreement, the provisions of the preceding sentence
shall be applicable to each Potential Change in Control of the Company occurring
prior to the occurrence of a Change in Control.
(iii) Employee may terminate his employment with Employer for Good
Reason at any time within sixty (60) days of the event constituting Good Reason
by providing Employer with a written notice, at least forty-five (45) days in
advance of the termination date, of his desire to terminate his employment.
(iv) Employee may terminate his employment with Employer in the
event of a Constructive Termination Event, at any time within sixty (60) days of
said Constructive Termination Event, by providing Employer with a written
notice, at least forty-five (45) days in advance of the termination date,
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of his desire to terminate his employment. For purposes hereof, "Constructive
Termination Event" means (a) the assignment to Employee of any duties materially
inconsistent with his status as ________________, his removal from the position
of ________________, or a diminution in the nature or status of Employee's
responsibilities; (b) a reduction by the Company in Employee's annual base
salary; and/or (c) the failure by the Company to continue to provide Employee
with benefits substantially similar to those enjoyed by Employee under any of
the Benefit Plans in which Employee was participating, unless such changes apply
to all Company executives.
(b) Termination by Employer.
(i) The [FOR XX. XXXXXXXX ONLY: Board][FOR THE OTHER EXECUTIVE
OFFICERS: President], may terminate Employee's employment with Employer, at any
time, other than following a Change of Control or in anticipation of a Change of
Control, without cause, by providing Employee with a written notice, at least
ninety (90) days in advance of the termination date, of its desire to terminate
Employee's employment.
(ii) The [FOR XX. XXXXXXXX ONLY: Board][FOR THE OTHER EXECUTIVE
OFFICERS: President], may terminate Employee's employment with Employer for
cause, at any time, with or without advance notice. For the purposes of this
Agreement, "cause" shall be deemed to be a willful and material breach of this
Agreement, fraud, dishonesty, competition with Employer or any subsidiary or
affiliate of Employer, unauthorized use of Employer's or any of its
subsidiaries' or affiliates' trade secrets or confidential information or
continued gross neglect by Employee of the duties assigned to him (if such
neglect or breach continues for 30 days after written notice by the [FOR XX.
XXXXXXXX ONLY: Board][FOR THE OTHER EXECUTIVE OFFICERS: President of Employer],
to Employee specifying the duties being neglected or the breach of this
Agreement by Employee).
(iii) The [FOR XX. XXXXXXXX ONLY: Board][FOR THE OTHER EXECUTIVE
OFFICERS: President], may terminate the Employee's employment with Employer, at
any time, with or without advance notice, upon the total disability of the
Employee. For the purpose of this Agreement, "total disability" shall be deemed
to have occurred if Employee shall have been unable to perform his duties
hereunder due to mental or physical incapacity for a period of six consecutive
months.
(iv) The [FOR XX. XXXXXXXX ONLY: Board][FOR THE OTHER EXECUTIVE
OFFICERS: President], may terminate Employee's employment with Employer, at
anytime following a Change of Control or in anticipation of a Change of Control,
without cause, by providing Employee with a written notice, at least ninety (90)
days in advance of the termination date, of its desire to terminate Employee's
employment.
(c) Termination due to Death. Employee's employment with Employer shall
terminate automatically upon the death of Employee.
4. Compensation Upon Termination.
(a) If Employee's employment is terminated pursuant to Sections
3(a)(iv), 3(b)(i), 3(b)(iii) or 3(c), Employee (if living), or Employee's spouse
(if the employment was terminated because of the death
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of Employee and Employee's spouse survives him), or Employee's estate (if the
employment was terminated because of the death of Employee and Employee's spouse
does not survive him), shall be entitled to receive, and Employer shall pay, in
addition to any other benefits provided to them or Employee hereunder or under
any of the Benefit Plans, (i) from the date the employment terminates,
Employee's then current monthly base salary for a period [FOR XX. XXXXXXXX ONLY:
24][FOR THE OTHER EXECUTIVE OFFICERS: 12], months; (ii) an amount equal to one
year's bonus, based on the annual average of Employee's bonus(es) for the
preceding three (3) fiscal years, payable in a single lump sum within thirty
(30) days of employment termination; and (iii) an amount equal to the incentive
award that would have been earned by the Employee under the Senior Executive
Incentive Compensation Plan for the fiscal year in which the Employee's
employment is terminated; multiplied, however, by the percentage equal to the
percentage of the fiscal year in which the Employee was actively employed. The
payment of this amount shall be made at the same time as the payment to other
Company employees of the incentive award is made for the fiscal year in which
the Employee's employment is terminated. Additionally, for a [FOR XX. XXXXXXXX
ONLY: 24][FOR THE OTHER EXECUTIVE OFFICERS: 12]-month period after termination
of Employee's employment, the Company shall arrange to provide Employee, if
available under the Benefit Plans, or if not, pay to Employee an amount equal to
Employer's costs of, life, disability, accident, health insurance, and other
"executive" benefits substantially similar to those which Employee was receiving
or entitled to receive immediately prior to the termination.
(b) If Employee's employment is terminated pursuant to Section 3(a)(i)
or 3(b)(ii) or in violation of 3(a)(ii), no further compensation shall be paid
to Employee after the date of termination (other than base compensation earned
up to the date of termination, exclusive of bonus); provided, however, that the
rights of Employee under any of the Benefit Plans shall be determined by the
terms of the applicable plan.
(c) Compensation in the event of Employee's termination pursuant to
Section 3(a)(iii) or 3(b)(iv) is addressed in Section 5(b) below.
5. Further Definitions; Change in Control.
(a) Definitions. For purposes of this Agreement, the following words
and phrases shall have the meaning ascribed to them.
(i) "Change in Control" shall mean a change in control of the
Company of a nature that would be required to be reported in response to Item
6(e) of Schedule 14A of Regulation 14A promulgated under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), whether or not the Company is then
subject to such reporting requirement; provided that, without limitation, such a
Change in Control shall be deemed to have occurred if (A) any "person" (as such
term is used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Company representing 25% or more of the
combined voting power of the Company's then outstanding securities; (B) during
any period of two consecutive years (not including any period prior to the
execution of this Agreement), individuals, who at the beginning of such period
constitute the Board and any new director added during the period whose election
to the Board or nomination for election to the Board by the Company's
stockholders was approved by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors at the beginning of the
period or whose election or nomination for election was approved prior to the
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beginning of the period, cease for any reason to constitute a majority of the
Board; (C) the stockholders of the Company approve a merger or consolidation of
the Company with any other corporation, other than a merger or consolidation
immediately following which the directors of the Company immediately prior to
the merger or consolidation continued to constitute at least a majority of the
board of directors of the Company, the surviving entity, or any parent thereof;
or (D) the stockholders of the Company approve a plan of complete liquidation of
the Company or an agreement for the sale or disposition by the Company of all or
substantially all of the Company's assets. For purposes hereof, "Company"
includes the ultimate parent of the Company ("Parent"), if applicable.
(ii) "Base Amount" shall have the same meaning as the term is
given in Section 280G(b)(3) of the Internal Revenue Code of 1986, as amended
(the "Code") and shall be calculated in accordance with any temporary or final
regulations promulgated under Section 280G of the Code in effect, if any. In the
absence of such regulations, if Employee was not employed by the Company (or any
corporation included in the Company's "affiliated group" (an "Affiliate") within
the meaning of Section 1504 of the Code or a predecessor of the Company) during
the entire five calendar years (the "Base Period") preceding the calendar year
in which a Change in Control of the Company occurred, Employee's average annual
compensation for the purposes of such determination shall be the least of (A)
the average of Employee's annual compensation for the complete calendar years
during the Base Period during which Employee was so employed, (B) the average of
Employee's annual compensation for both complete and partial calendar years
during the Base Period during which Employee was so employed, determined by
annualizing any compensation (other than nonrecurring items) includible in
Employee's gross income for any partial calendar year, or (C) the annual average
of Employee's total compensation for the Base Period during which Employee was
so employed, determined by dividing such total compensation by the number of
whole and fractional years included in the Base Period. Compensation payable to
Employee by the Company or any Affiliate or predecessor of the Company shall
include every type and form of compensation includible in Employee's gross
income in respect of Employee's employment by the Company or any Affiliate or
predecessor of the Company, except to the extent otherwise provided in temporary
or final regulations promulgated under Section 280G of the Code.
(iii) "Good Reason" shall mean the occurrence, following a Change
in Control or in anticipation of a Change of Control, without Employee's express
written consent, of any of the following circumstances unless, in the case of
subsections (1), (5), (6), (7), or (8) of this Section 5(a)(iii), such
circumstances are fully corrected prior to the date of termination specified in
the notice given in respect thereof:
(1) the assignment to Employee of any duties materially
inconsistent with his status as ________________, his removal from the position
of ________________, or a diminution in the nature or status of Employee's
responsibilities;
(2) a reduction by the Company in Employee's annual base
salary;
(3) the relocation of the executive office in which Employee
is located to a location more than fifteen miles therefrom except for required
travel on the business of the Company and its subsidiaries to an extent
substantially consistent with Employee's present business travel obligations;
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(4) the failure by the Company to pay to Employee any
portion of an installment of deferred compensation under any deferred
compensation program of the Company within seven (7) days of the date such
compensation is due;
(5) the failure by the Company to continue in effect any
compensation plan in which Employee participates, unless an equitable
arrangement (embodied in an ongoing substitute or alternative plan) has been
made in such plan, or the failure by the Company to continue Employee's
participation therein on the same basis, both in terms of the amount of
compensation provided and the level of Employee's participation relative to
other participants,;
(6) the failure by the Company to continue to provide
Employee with benefits at least as favorable as those enjoyed by Employee under
any of the Benefit Plans in which Employee was participating, the taking of any
action by the Company or any of its subsidiaries which would directly or
indirectly materially reduce any of the benefits provided by any of the Benefit
Plans, deprive Employee of any material fringe benefit enjoyed by him;
(7) the failure of the Company to obtain a satisfactory
agreement from any successor to assume and agree to perform this Agreement, as
contemplated in Section 6 hereof; or
(8) any purported termination of Employee's employment that
is not effected pursuant to a proper notice of termination satisfying the
requirements of this Agreement; for purposes of this Agreement, no such
purported termination shall be effective.
A Change in Control of the Company shall not, by itself, constitute Good Reason.
(iv) "Potential Change in Control of the Company" shall mean the
occurrence of one or more of the following events (A) the Company enters into an
agreement, the consummation of which would result in the occurrence of a Change
in Control; (B) any person publicly announces an intention to take or to
consider taking actions which if consummated would constitute a Change in
Control; or (C) the Board adopts a resolution to the effect that, for purposes
of this Agreement, a potential Change in Control of the Company has occurred.
(v) "Unadjusted Severance Payment" shall mean an amount equal to
2.99 times Employee's Base Amount unreduced by the amount of any other payment
or the value of any benefit received or to be received by Employee in connection
with Employee's termination of employment or upon a Change in Control of the
Company (whether payable pursuant to the terms of this Agreement or any other
agreement, plan or arrangement with the Company, or an Affiliate, predecessor or
successor of the Company or any person whose actions result in a Change in
Control of the Company or an Affiliate of such person) unless (A) in the opinion
of tax counsel selected by the Company's independent auditors and reasonably
acceptable to Employee, such other payments or benefit constitutes a "parachute
payment" within the meaning of Section 280G(b)(2) of the Code, and (B) in the
opinion of such tax counsel, the Unadjusted Severance Payment plus all other
payments or benefits which constitute "parachute payments" within the meaning of
Section 280G(b)(2) of the Code would result in a portion of the Unadjusted
Severance Payment being subject to the excise tax under Section 4999 of the
Code. In such event, the amount of the Unadjusted Severance Payment shall be
reduced by the minimum amount
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necessary such that no portion thereof will be subject to the excise tax under
Section 4999 of the Code. The Unadjusted Severance Payment, as reduced, if at
all, pursuant to the provisions of this paragraph shall be referred to as the
Adjusted Severance Payment. In determining whether the Unadjusted Severance
Payment shall be reduced under this paragraph, (A) there shall not be included
in the computation any payment if Employee shall have effectively waived his
receipt or enjoyment of such payment or benefit, and (B) the value of any
non-cash benefit or any deferred cash payment shall be determined by the
Company's independent auditors in accordance with the principles of Sections
280G(d)(3) and (4) of the Code.
(b) Payments.
(i) Upon the termination of his employment (A) by Employer
following a Change in Control or in anticipation of a Change of Control as
described in Section 3(b)(iv), or (B) by Employee for Good Reason as described
in Section 3(a)(iii), Employee shall be entitled to the following payments and
benefits unless such termination is effective more than eighteen (18) months
following the occurrence of the Change in Control.
(1) The Company shall pay Employee his full base salary, in
effect at the time notification of the termination is provided, through the date
of termination. The salary payments shall accrue and be payable in accordance
with the payroll practices of Employer in effect at the time of termination. All
such payments shall be subject to any deductions and withholdings required by
applicable law. This payment shall be deemed to be earned as of the last day of
the Employee's employment hereunder.
(2) The Company shall pay Employee an amount equal to the
incentive award that would have been earned by the Employee under the Senior
Executive Incentive Compensation Plan for the fiscal year in which the
Employee's employment is terminated; multiplied, however, by the percentage
equal to the percentage of the fiscal year in which the Employee was actively
employed. The payment of this amount shall be made at the same time as the
payment of the incentive award is made for the fiscal year in which the
Employee's employment is terminated. This payment shall be deemed to be earned
as of the last day of the Employee's employment hereunder.
(3) The Company shall pay to Employee all amounts to which
Employee is entitled as A payment under any of the Benefit Plans. Any payments
due under a Benefit Plan shall be made, at the time the payments are due under
the terms of the Benefit Plan.
(4) The Company shall pay as severance to Employee, no later
than the fifth day following the termination, the Unadjusted Severance Payment
unless the Company in good faith believes that the Unadjusted Severance Payment
must be reduced under the provisions of Section 5(b)(i)(1) hereof, in which
event the Company shall instead pay to Employee a good faith estimate of the
Adjusted Severance Payment (the "Estimated Adjusted Severance Payment," the
computation of which shall be given to Employee in writing together with a
written explanation of the basis for making such adjustment), which amount shall
in no event be less than 50% of the Unadjusted Severance Payment. The Company
shall, within 60 days of the date of termination, either pay to Employee the
balance of the
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Unadjusted Severance Payment together with interest thereon at the Applicable
Federal Rate (as defined in Sections 1274(d) of the Code) or deliver to Employee
a copy of the opinion of the tax counsel referred to in Section 5(b)(i)(1)
hereof establishing the amount of the Adjusted Severance Payment. If the
Adjusted Severance Payment exceeds the Estimated Adjusted Severance Payment, the
difference shall be paid to Employee at such time together with interest thereon
at the applicable federal rate (as defined in Section 1274(d) of the Code).
(5) Except to the extent that the payment thereof would
subject any payment hereunder to the excise tax under Section 4999 of the Code
the Company shall also:
(a) Pay to Employee all legal fees and expenses incurred by Employee in
contesting or disputing any such termination or in seeking to obtain or enforce
any right or benefit provided by this Agreement; and
(b) For a twenty-four (24) month period after termination of Employee's
employment, the Company shall arrange to provide Employee with life, disability,
accident and health insurance benefits substantially similar to those which
Employee was receiving or entitled to receive immediately prior to the
termination. Benefits otherwise receivable by Employee pursuant to this Section
5(b)(i)(5)(b) shall be reduced to the extent comparable benefits are actually
received by Employee during the twenty-four (24) month period following
Employee's termination, and any such benefits actually received by Employee
shall be reported to the Company.
(ii) If it is established pursuant to a final determination of a
court or an Internal Revenue Service proceeding that, notwithstanding the good
faith of Employee and the Company in applying the terms of this Section
5(b)(ii), the aggregate "parachute payments" paid to or for Employee's benefit
are in an amount that would result in any portion of such "parachute payments"
being subject to the excise tax under Section 4999 of the Code, then Employee
shall have an obligation to pay the Company upon demand an amount equal to the
sum of the excess of the aggregate "parachute payments" paid to or for
Employee's benefit over the aggregate "parachute payments" that would have been
paid to or for Employee's benefit without any portion of such "parachute
payments" being subject to the excise tax under Section 4999 of the Code.
(c) Mitigation. Employee shall not be required to mitigate the amount
of any payment provided for in this Section 5 by seeking other employment or
otherwise nor shall the amount of any payment or benefit provided for in this
Section 5 be reduced by any compensation earned by Employee as the result of
employment by another employer or by retirement benefits received after the date
of termination, or otherwise except as specifically provided in this Section 5.
6. Assignment.
(a) The Company will require any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially all of
the business and/or assets of the Company to assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place. Failure of the
Company to obtain such assumption and agreement prior to the effectiveness of
any such succession shall be a
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breach of this Agreement and shall entitle Employee to compensation from the
Company in the same amount and on the same terms as Employee would be entitled
hereunder if Employee had terminated his employment for Good Reason following a
Change in Control, except that for purposes of implementing the foregoing, the
date on which any such succession becomes effective shall be deemed the date of
termination. As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise.
(b) This Agreement shall inure to the benefit of and be enforceable by
Employee's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If Employee should die
while any amount would still be payable to him hereunder if Employee had
continued to live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to Employee's spouse or, if
there is no spouse, to Employee's estate.
7. Confidential Information.
(a) Non-Disclosure. During Employee's employment or at any time
thereafter, irrespective of the time, manner or cause of the termination of this
Agreement, Employee will not directly or indirectly, reveal, divulge, disclose
or communicate to any person or entity other than authorized officers, directors
and employees of Employer, in any manner whatsoever, any Confidential
Information (as hereinafter defined) of Employer without the prior written
consent of the Company, except in connection with the fulfillment of his duties
hereunder.
(b) Definition. As used herein, "Confidential Information" means
information disclosed to or known by Employee as a direct or indirect
consequence of or through his association with Employer and its subsidiaries and
affiliates, about Employer or any subsidiary or affiliate of Employer, their
businesses, products and practices, including but not limited to trade secrets,
know-how, technical information, and financial information, which information is
not generally known in the business in which Employer or any subsidiary of
Employer is or may become engaged. However, Confidential Information shall not
include any information which is (i) available to the public from a source other
than Employee, (ii) released in writing by Employer to the public or to persons
who are not under a similar obligation of confidentiality to Employer and who
are not parties to this Agreement, (iii) obtained by Employee from a third party
not under a similar obligation of confidentiality to Employer, or (iv) required
to be disclosed by any court process or any government or agency or department
of any government.
(c) Return of Property. Upon termination of Employee's employment,
Employee will surrender to Employer all Confidential Information, including
without limitation, all lists, charts, schedules, reports, financial statements,
books and records of Employer and all subsidiaries and affiliates of Employer,
and all copies thereof, and all other property belonging to Employer and all
subsidiaries and affiliates of Employer, provided that Employee shall be
accorded reasonable access to such materials subsequent thereto for any proper
purpose as determined in the reasonable judgment of Employer.
8. Agreement Not to Solicit Employees. Employee agrees that, for a period
of three (3) years following the termination of his employment, neither he nor
any affiliate shall, either alone or on behalf of any business engaged in a
business competitive with Employer or any subsidiary of Employer, solicit
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or induce, or in any manner attempt to solicit or induce, any person employed
by, an agent of, Employer or any subsidiary of Employer to terminate his or its
employment, agency, or business relationship, as the case may be, with the
Employer or such subsidiary.
9. Assignment of Inventions. Employee agrees that he will assign to
Employer or its appropriate subsidiary all inventions, discoveries and
improvements relating to its lines of business, conceived or made by him solely
or jointly with others during his employment, and to execute, upon request,
whether during his employment or thereafter, any and all applications for
patents, assignments and other papers which Employer or its counsel may deem
necessary or appropriate for securing to it in all countries, exclusive rights
in all such inventions, discoveries and improvements.
10. Noncompetition. During the term of Employee's employment with the
Company and for a [FOR XX. XXXXXXXX ONLY: two][FOR THE OTHER EXECUTIVE OFFICERS:
one] year period thereafter (unless Employee's employment is terminated pursuant
to [FOR XX. XXXXXXXX: Sections 3(a)(i) or 3(b)(ii), in which case the noncompete
period shall be for one year)][FOR THE OTHER EXECUTIVE OFFICERS: Section
3(b)(iv))], Employee will not, directly or indirectly, within the Territory
described below:
(a) engage in, continue in or carry on any business which competes with
the business conducted by the Company, including owning or controlling any
financial interest in any corporation, partnership, firm or other form of
business organization which is so engaged;
(b) consult with, advise or assist in any way, whether or not for
consideration, any corporation, partnership, firm or other business organization
which is a competitor of the Company in any aspect with respect to the business
conducted by the Company including, but not limited, to, advertising or
otherwise endorsing the products of any such competitor; soliciting customers or
otherwise serving as an intermediary for any such competitor; loaning money or
rendering any other form of financial assistance to or engaging in any similar
form of business transaction with any such competitor;
provided, however, the foregoing prohibition does not extend to passive
ownership of less than 1% of the outstanding stock of any entity whose stock is
traded on an established stock exchange or quoted on NASDAQ. For purposes
hereof, "Territory" is defined as any county or similar geographic subdivision
in which Company conducts business. The parties intend that this noncompete
covenant shall be construed as separate covenants, one for each county and
subdivision to which the covenant applies. In the event a court of competent
jurisdiction determines that the provisions of this covenant not to compete are
excessively broad as to duration, geographic scope or activity, it is expressly
agreed that this covenant not to compete shall be construed so that the
remaining provisions shall not be affected, but shall remain in full force and
effect, and any such over broad provisions shall be deemed, without further
action on the part of any person, to be modified, amended and/or limited, but
only to the extent necessary to render the same valid and enforceable in such
jurisdiction.
11. No Violation. Employee represents and warrants to Employer that the
execution, delivery and performance of this Agreement by Employee does not, with
or without the giving of notice or the passage
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of time, or both, conflict with, result in a default, right to accelerate or
loss of rights under any provision of any agreement or understanding to which
Employee or his affiliates are a party or by which Employee, or to the best
knowledge of Employee, Employee's affiliates may be bound or affected.
12. Captions. The captions, headings and arrangements used in this
Agreement are for convenience only and do not in any way affect, limit or
amplify the provisions hereof.
13. Notices. All notices required or permitted to be given hereunder shall
be in writing and shall be deemed delivered when actually received or, if
mailed, whether or not actually received, two days after deposited in the United
States mail, postage prepaid, registered or certified mail, return receipt
requested, addressed to the party to whom notice is being given at the specified
address or at such other address as such party may designate by notice:
Employer: Apogent Technologies Inc.
00 Xxxxxxxx Xxxxxx Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: General Counsel
Employee:
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14. Invalid Provisions. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws, such provision
shall be fully severable, and this Agreement shall be construed and enforced as
if such illegal, invalid or unenforceable provision had never comprised a part
of this Agreement, provided that if any of the limitations set forth in Sections
7, 8, 9 or 10 shall be determined to be unreasonable by any court, the parties
agree that the provisions of such Section shall be reduced to such lessor
limitations as are determined to be reasonable; the remaining provisions of this
Agreement shall remain in full force and effect and shall not be affected by the
illegal, invalid or unenforceable provision or by its severance from this
Agreement.
15. Amendments. This Agreement may be amended only by an instrument in
writing duly executed by an officer of Employer expressly authorized by the
Board to do so and by Employee.
16. Waiver. No delay or omission by either party hereto to exercise any
right or power hereunder shall impair such right or power or be construed as a
waiver thereof including without limitation employee's continued employment
shall not constitute consent to, or a waiver of rights with respect to, any
circumstance constituting Good Reason hereunder. A waiver by either of the
parties hereto of any of the covenants to be performed by the other or of any
breach thereof shall not be construed to be a waiver of any succeeding breach
thereof or of any other covenant herein contained. All remedies provided for in
this Agreement shall be cumulative and in addition to and not in lieu of any
other remedies available to either party at law, in equity or otherwise.
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17. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall constitute an original, and all of which together shall
constitute one and the same agreement.
18. Governing Law. This Agreement shall be construed and enforced according
to the laws of the State of New Hampshire.
19. Legal Fees. Employer shall pay to Employee all legal fees and expenses
incurred by Employee in seeking to obtain or enforce any right or benefit
provided by this Agreement.
20. Final Agreement. This Agreement supercedes any other employment
agreement that Employee may have with the Company or any affiliate thereof.
*****
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
SYBRON INTERNATIONAL CORPORATION
d/b/a Apogent Technologies Inc.
By:
----------------------------
Name:
EMPLOYEE:
By:
----------------------------
