COVENANT NOT TO COMPETE
THIS COVENANT NOT TO COMPETE (the "Agreement"), dated as of July 23, 1993,
is between BIEX, INC., a Delaware corporation (the "Company"), and XXXXXX
XXXXXXX ("Employee").
RECITALS
WHEREAS, Employee acknowledges that Employee is one of the principal
persons involved in the development of the Company's products and services and
Employee is an officer of the Company;
WHEREAS, Employee further acknowledges that (i) the Company's products and
services will be sold nationally and internationally, (ii) a company producing
products and services similar to those of the Company, regardless of its
geographic location, is likely to jeopardize the Company's business, and
(iii) the ability of the Company to attain its goals is likely to be materially
jeopardized and its value reduced if Employee competes with the Company or
assists other persons in competing with the Company;
WHEREAS, Employee has signed the Company's Proprietary Information and
Inventions Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
1. During her employment with the Company, and for a period of two (2)
years after the date of termination of Employee's employment with the Company
(whether voluntary or involuntary, with or without cause), Employee will not
directly or indirectly (through one or more intermediaries), whether
individually, or as an officer, director, employee or consultant, compete in
whole or in part with, or assist any corporation or business enterprise in
competing in whole or in part with, the business then engaged in by the
Company or any business in which the Company during the term of her
employment planned to engage in or conducted research or development, nor
will Employee directly or indirectly interfere with employees of the Company
or suppliers, manufacturers, distributors, wholesalers or other such
companies with which the Company transacts business for any purpose having an
adverse effect upon the Company's business activities; PROVIDED, HOWEVER,
nothing contained herein shall prevent Employee from owning less than 10% of
the outstanding equity interests of any such type of corporation, the shares
of which are publicly traded on a nationally recognized stock exchange.
2. Employee agrees not to entice, induce or encourage any of the
Company's other employees to engage in any activity which, were it done by
Employee, would violate any provision of this Covenant Not To Compete.
3. Employee acknowledges that a breach of this Agreement is likely to
result in
1.
irreparable and unreasonable harm to the Company, and that injunctive relief, as
well as damages, would be appropriate. If Employee breaches this Agreement,
Employee shall promptly reimburse the Company for all legal fees (and
disbursements) incurred by the Company to enforce this Agreement or to pursue
remedies arising as a result of such breach.
4. In the event that Employee's employment is terminated by the Company
without cause (as defined herein), Employee shall be entitled to receive
severance pay in an amount equal to six months of Employee's then-current annual
salary, such amount to be paid to Employee in full upon the effective date of
Employee's termination. For purposes of this paragraph 4, "cause" shall mean a
determination by the Company's Board of Directors in good faith that Employee
has continued to neglect the duties of Employee's employment, has engaged in
willful misconduct in connection with the performance of Employee's employment,
or has engaged in drug or alcohol abuse or any other conduct involving
dishonesty or moral turpitude.
5. This Agreement shall be binding upon Employee, her heirs, executors,
assigns and administrators and shall inure to the benefit of the Company, its
successors and assigns.
6. If Employee currently has a written employment agreement with the
Company, this Agreement will supersede those provisions of such employment
agreement that cover the same subject matter as this Agreement. Wherever there
is any conflict between any provision of this Agreement and any statute, law,
regulation or judicial precedent, the latter shall prevail, but in such event
the provisions of this Agreement thus affected shall be curtailed and limited
only to the extent necessary to bring it within the requirement of the law. In
the event that any part, section, paragraph or clause of this Agreement shall be
held by a court or proper jurisdiction to be indefinite, invalid or otherwise
unenforceable, the entire Agreement shall not fail on account thereof, but the
balance of the Agreement shall continue in full force and effect unless such
construction would clearly be contrary to the intention of the parties or would
result in an unconscionable injustice.
7. The validity, interpretation, enforceability and performance of this
Agreement shall be governed by and construed in accordance with the laws of the
State in which it is sought to be enforced. Venue for any action brought to
enforce this Agreement or as a result of a dispute hereunder shall be in
Colorado or in the State in which enforcement is sought, at the discretion of
the party seeking enforcement.
BIEX, INC. EMPLOYEE
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx
President -----------------------------------
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