EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
as of May 23, 2005 (the "Effective Date") by and between LUMINEX CORPORATION, a
Delaware corporation ("Luminex") and XXXXXXX X. XXXXXXX ("Executive").
RECITAL
WHEREAS, Executive is to be employed as the Vice President, Business
Development and Strategic Planning for Luminex;
WHEREAS, Luminex and Executive wish to document the terms of the
employment of Executive in such capacity; and
WHEREAS, Executive has represented to Luminex and Luminex has relied on
Executive's representation that the execution of this Agreement by Executive,
and the provision of services by Executive to Luminex as contemplated in this
Agreement, will not conflict with, or cause Executive or any other person or
entity to be in breach of, (i) any other contract to which Executive is a party
or (ii) any duty which Executive may owe to any other person or entity.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. DUTIES.
1.1 Duties. During the term of this Agreement (including all renewal
periods, if any, the "Term"), Executive agrees to be employed by and to serve
Luminex as Vice President, Business Development and Strategic Planning and
Luminex agrees to employ and retain Executive in such capacity subject to the
provisions of this Agreement. Executive shall have such powers, authority and
duties, and shall render such services of executive and administrative
character, or act in such other capacity for Luminex, as the Chief Executive
Officer or the Board of Directors of Luminex (the "Board") shall from time to
time lawfully direct and Executive shall report directly to the Chief Executive
Officer of Luminex. Executive shall devote all of his business time, energy, and
skill to the business of Luminex;
2. TERM AND TERMINATION.
2.1 Term. Subject to Section 2.2, the term of employment of
Executive by Luminex shall be one (1) year commencing on the Effective Date and
shall thereafter automatically renew for successive additional one-year terms
unless either party provides the
other with written notice of its intent not to renew this Agreement at least
sixty (60) days prior to the end of the Term (unless terminated earlier pursuant
to the provisions of this Agreement).
2.2 Termination of Employment.
2.2.1 Termination For Cause. "Termination For Cause" shall mean the
termination by Luminex of Executive's employment with Luminex as the result of
Executive's material fraud upon Luminex or Executive's continued material breach
of this Agreement after receipt of written notice from Luminex specifying such
breach and failure by Executive to cure such breach within fifteen (15) days
from receipt of such notice. Executive's inability to perform his obligations
under this Agreement despite his best efforts as a result of a permanent or
temporary disability (as evidenced by a written determination from a physician
chosen by Executive and reasonably acceptable to Luminex) shall not result in a
Termination For Cause. In the event that Executive fails to cure the breach
within the fifteen (15) day cure period, the termination shall be effective as
of the date that Luminex notifies Executive of his termination following the
expiration of the fifteen (15) day cure period. Upon any Termination For Cause,
Executive shall be paid the Accrued Obligations (defined below) within three (3)
business days following the effective date of termination.
2.2.2 Termination Other Than For Cause. "Termination Other Than For
Cause" shall mean (i) termination by Luminex of Executive's employment with
Luminex for any reason other than Termination For Cause, Termination by Reason
of Death, Termination by Reason of Incapacity or Termination Upon Expiration of
Agreement or (ii) termination by Executive upon constructive termination of
Executive's employment with Luminex by reason of (A) a reduction in Executive's
Base Salary (defined below); (B) a reduction in Executive's title from Vice
President, Business Development and Strategic Planning for Luminex (whether by
reason of Executive's removal from any of such offices or Luminex's failure to
reappoint Executive to any of such offices); (C) a Material Diminution (defined
below); (D) a requirement that Executive change his principal place of business
to a location that is outside the Office Area (defined below), or (E) Luminex's
continued material breach of this Agreement after receipt of written notice from
Executive specifying such breach and failure by Luminex to cure such breach
within fifteen (15) days from receipt of such notice. Termination Other Than For
Cause may be effected by Luminex at any time by providing Executive with written
notice of such termination. The termination shall be effective as of the date of
the notice or such later date as may be determined by Luminex. Executive may
also effect a Termination Other Than For Cause upon written notice to Luminex at
any time any of the conditions for constructive termination set forth in clause
(ii) above (including without limitation, if applicable, the expiration of the
cure period) have been met. Upon any Termination Other Than For Cause, Executive
shall be paid (i) within three (3) business days following the effective date of
termination the amount of the Accrued Obligations and (ii) all severance
compensation provided in Section 4.1. For purposes of this Agreement, "Material
Diminution" means a material diminution by Luminex of Executive's duties,
powers, authority, functions or responsibilities without Executive's consent,
such that Executive is left with such duties, powers, authority, functions and
responsibilities (when viewed in the aggregate) that are materially diminished
compared to both (i) those duties,
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powers, authority, functions and responsibilities conferred upon Executive at
the Effective Date and (ii) those duties, powers, authority, functions and
responsibilities that are most typically conferred upon the employee vice
president of business development and strategic planning of companies having
both (i) an employee vice president of business development and strategic
planning and (ii) revenues comparable to Luminex (based on the revenues of
Luminex at the time of determination). Luminex and Executive agree that in the
event there is an ambiguity with respect to the interpretation or application of
the definition of "Material Diminution", such ambiguity shall be resolved
according to the reasonable interpretation of such definition most favorable to
Luminex. For purposes of this Agreement, "Office Area" means the geographical
area within a 40 mile radius of Luminex's current principal office at 00000
Xxxxxxxxxx Xxxx., Xxxxxx, Xxxxx.
2.2.3 Actual Voluntary Termination. "Actual Voluntary Termination"
shall mean termination by Executive of Executive's employment with Luminex for
any reason other than Termination For Cause, Termination Other Than For Cause,
Termination by Reason of Death or Termination by Reason of Incapacity. In the
event of an Actual Voluntary Termination, Executive shall be paid within fifteen
(15) business days following the effective date of termination the amount of the
Accrued Obligations.
2.2.4 Termination by Reason of Incapacity. If, during the Term,
Executive shall become Permanently Disabled (defined below), Luminex may
terminate Executive's employment with Luminex effective on the earliest date
permitted under applicable law, if any, and such termination shall be deemed
"Termination by Reason of Incapacity". Upon termination of employment under this
Section, Executive shall be paid (i) within three (3) business days following
the effective date of termination the amount of the Accrued Obligations and (ii)
all severance compensation provided in Section 4.2. As used herein, Executive
shall be deemed "Permanently Disabled" if Executive is (i) collecting long-term
disability payments under a long-term disability plan established for the
benefit of Luminex's employees or executives generally or a reasonably similar
plan or (ii) if, and only if, no such long-term disability plan is in effect at
the time of determination, a physician selected by Luminex and reasonably
acceptable to Executive makes a written determination that Executive is unable
to perform his obligations under this Agreement despite his best efforts by
reason of any medically determinable physical or mental impairment that can be
expected to result in death or that has lasted or can be expected to last for a
continuing period of not less than 12 months.
2.2.5 Termination by Reason of Death. In the event of Executive's
death during the Term, Executive's employment with Luminex shall be deemed to
have terminated as of the date on which his death occurs and the estate of
Executive shall be paid (i) within fifteen (15) days following the effective
date of termination the amount of the Accrued Obligations and (ii) all severance
compensation provided in Section 4.3.
2.2.6 Termination Upon Expiration of Agreement. In the event that
Luminex refuses for any reason to extend this Agreement by giving written notice
at least 60 days prior to the initial or any renewal period as set forth in
Section 2.1, Executive shall be paid (i) within three (3) business days
following the effective date of termination the amount of the
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Accrued Obligations and (ii) all severance compensation provided in Section 4.4.
In the event that Executive refuses for any reason (except as otherwise provided
herein) to extend this Agreement by giving written notice at least 60 days prior
to the initial or any renewal period as set forth in Section 2.1, the
termination shall be deemed an Actual Voluntary Termination.
2.2.7 Termination of Relationship with Affiliated Entities. Unless
agreed by Luminex (or a subsidiary thereof) and Executive in a separate written
agreement (other than corporate minutes, resolutions, charter documents, bylaws
and partnership agreements), upon the termination of Executive's employment with
Luminex for any reason, Executive shall tender a written resignation of any
positions he may have with Luminex and any and all of Luminex's direct and
indirect subsidiaries.
2.2.8 Definition of Accrued Obligations. As used in this Agreement,
"Accrued Obligations" means all accrued but unpaid salary, accrued but unpaid
vacation, sick leave, and similar pay (all determined in accordance with
Luminex's policies then in effect), and any appropriate business expenses
incurred by Executive in connection with his duties hereunder, all to the date
of termination.
3. SALARY, BENEFITS AND BONUS COMPENSATION.
3.1 Base Salary. As payment for the services to be rendered by
Executive as provided in Section 1 and subject to the terms and conditions of
Section 2, Luminex agrees to pay to Executive a "Base Salary" at the rate of
$7,708.33 per each semi-monthly pay period or $185,000 per annum (or such
greater amount as may be determined from time to time by the Board or the
Compensation Committee thereof) payable in accordance with the then-current
payroll policies of Luminex.
3.2 Annual Bonus. Executive shall be eligible to receive a bonus
each year in an amount up to at least 40% of your then-current Base Salary (or
such other amount as may otherwise be determined by the Company's Board of
Directors), subject to the performance criteria established annually by the
Company's Board of Directors and payable during the first quarter of the
following year or otherwise as consistent with the timing of other employee
bonuses. For calendar year 2005, Executive shall be eligible to receive a bonus
of up to 60% of current Base Salary, subject to performance criteria set forth
in the Management Performance Plan approved by the Company's Board of Directors,
and provided that any such amount will be prorated based on time served during
2005. The Board is under no obligation to declare, and Luminex is under no
obligation to pay, any bonus to Executive under the terms of this Agreement. In
the event Executive and Luminex are parties to a written agreement or plan
executed by both Luminex and Executive that governs bonus arrangements, and the
provisions thereof conflict with this Section 3.2, the terms of such other
written agreement or plan shall supersede this Section 3.2.
3.3 Signing Bonus. You will be granted a signing bonus of $14,578,
payable in conjunction with Executive's first regular paycheck.
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3.4 Change in Control. In the event that both (i) a Change in
Control (defined below) of Luminex occurs during the Term and (ii) Executive's
employment with Luminex (or, as applicable, its successor in interest)
terminates for any reason (including without limitation an Actual Voluntary
Termination by Executive) at any time within six (6) months following the
occurrence of the Change in Control of Luminex, in lieu of any Severance
Compensation then owed or that otherwise would be owed in the future to
Executive under Section 4 of this Agreement, Luminex (or its successor in
interest) shall pay Executive both the Accrued Obligations and a lump sum
payment (the "Change in Control Payment") in an aggregate amount equal to the
sum of (i) the Bonus Amount (defined below), plus (ii) an amount equal to
Executive's annual Base Salary (at the highest rate in effect during the period
beginning six months immediately prior to the effective date of the Change of
Control through the date of termination) within three (3) business days after
the termination of Executive's employment. In the interest of clarity, Luminex
and Executive agree that, upon the termination of Executive's employment at any
time within six (6) months following the occurrence of the Change in Control of
Luminex, the provisions of Sections 4.1, 4.2, 4.3, 4.4, and 4.6 shall
automatically be deemed null and void and shall not apply with respect to any
termination of Executive's employment (whether such termination is effected in
connection with the Change in Control of Luminex or at any time in the future
following the Change in Control of Luminex), and under no circumstances shall
Luminex ever be obligated to pay Executive both a Change in Control Payment and
Severance Compensation under Section 4. For purposes of this Agreement, a
"Change in Control" of Luminex shall be deemed to have occurred if, after the
date of this Agreement:
(A) any "Person" (as such term is used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act")) (other
than an Approved Person (as defined below)) becomes the "Beneficial Owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of a
majority or more of the then outstanding Common Stock of Luminex ("Common
Stock") (such Person, an "Acquiring Person"); or
(B) Luminex merges or consolidates with any other corporation or other
entity, in each case other than a merger or consolidation which results in the
voting securities of Luminex outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity) at least a majority of the combined voting
power of the voting securities of Luminex or such surviving entity outstanding
immediately after such merger or consolidation; or
(C) Luminex sells or disposes of all or substantially all of Luminex's
assets in one transaction or a series of related transactions; or
(D) Luminex files a periodic or current report or proxy statement with
the Securities and Exchange Commission (the "SEC") disclosing that a "change in
control" (as such term is used in Item 1 of Form 8-K promulgated by the SEC) of
Luminex has occurred; or
(E) If, as a result of nominations made by a person or group other
than the Board of Directors of Luminex, individuals who prior to such
nominations constitute the Directors of
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Luminex cease for any reason to constitute at least a majority thereof within
the two year period following such nominations.
As used in this Agreement, "Approved Person" means (1) an employee
benefit plan of Luminex (or a trustee or other fiduciary holding securities for
such a plan), or (2) a corporation owned, directly or indirectly, by the
stockholders of Luminex in substantially the same proportions as their ownership
of stock of Luminex, or (3) a Person not less than a majority of whose voting
securities are Beneficially Owned by Luminex after giving effect to the
transaction.
As used in this Agreement, "Bonus Amount" means the annual bonus (if
any) received or to be received by Executive under Section 3.2 in respect of the
then most recently completed calendar year, or if no determination concerning
bonuses has been made for the most recently completed calendar year, then the
annual bonus (if any) for the previous calendar year.
Any options ("Options") granted (including without limitation Options
that may be granted in the future) and restricted stock ("Restricted Stock")
issued (including without limitation Restricted Stock that may be issued in the
future) to Executive pursuant to any incentive plan of Luminex shall immediately
vest upon a Change in Control. Luminex shall take no action to facilitate a
transaction involving a Change in Control, including without limitation
redemption of any rights issued pursuant to any rights agreement, unless it has
taken such action as may be necessary to ensure that Executive has the
opportunity to exercise all Options he may then hold, and obtain certificates
containing no restrictive legends in respect of any Restricted Stock he may then
hold, at a time and in a manner that shall give Executive the opportunity to
sell or exchange the securities of Luminex acquired upon exercise of his Options
and upon receipt of unrestricted certificates for shares of Common Stock in
respect of his Restricted Stock, if any (collectively, the "Acquired
Securities"), at the earliest time and in the most advantageous manner any
holder of the same class of securities as the Acquired Securities is able to
sell or exchange such securities in connection with such Change in Control.
Luminex acknowledges that its covenants in the preceding sentence (the
"Covenants") are reasonable and necessary in order to protect the legitimate
interests of Luminex in maintaining Executive as one of its employees and that
any violation of the Covenants by Luminex would result in irreparable injuries
to Executive, and Luminex therefore acknowledges that in the event of any
violation of the Covenants by Luminex or its directors, officers or employees,
or any of their respective agents, Executive shall be entitled to obtain from
any court of competent jurisdiction temporary, preliminary and permanent
injunctive relief in order to (i) obtain specific performance of the Covenants,
(ii) obtain specific performance of the exercise of his Options, delivery of
certificates containing no restrictive legends in respect of his Restricted
Stock and the sale or exchange of the Acquired Securities in the advantageous
manner contemplated above or (iii) prevent violation of the Covenants; provided
nothing in this Agreement shall be deemed to prejudice Executive's rights to
damages for violation of the Covenants. In the event that the terms of any
separate written agreement concerning Options granted or Restricted Stock issued
to Executive conflict with the terms of this paragraph, the terms of this
paragraph shall control.
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3.5 Additional Benefits. During the Term, Executive shall be entitled
to the following fringe benefits:
3.5.1 Transitional Expenses. The Company will pay for the following
additional expenses upon presentation of applicable receipts: i) the costs of
your temporary living until you purchase a home, at a rate of per month to be
agreed upon by you and me for up to a period of three (3) months; ii) the costs
of a rental car until your automobile arrives in Austin or you purchase an
automobile, which is expected to be for a period of no more than one (1) month;
iii) the costs of your airfare to and from South Florida for up to two (2) trips
per month for a period of up to three (3) months, not to exceed $1,000 per
month; iv) the costs of up to two (2) house hunting trips for you and your
spouse; v) closing costs (excluding buy-down points) resulting from the purchase
of your new home in Austin.
3.5.2 Benefits and Vacation. Executive shall be eligible to
participate in such of Luminex's benefits and deferred compensation plans as are
now generally available or later made generally available to executive officers
of Luminex. A termination or expiration of this Agreement for any reason or for
no reason shall not affect any rights which Executive may have pursuant to any
agreement, policy, plan, program or arrangement of Luminex providing Executive
benefits (including under any stock option agreement or bonus plan or agreement
which may exist), which rights shall be governed by the terms thereof. Executive
shall be entitled to three (3) weeks paid vacation each calendar year (prorated
for partial years). Unless approved in advance by the Board or a committee
thereof, accrued vacation not taken in any applicable period shall not be
carried forward or used in any subsequent period.
3.5.3 Reimbursement for Expenses.
3.5.3.1 Incidental Expenses. Luminex shall reimburse Executive
for reasonable and properly documented out-of-pocket business and/or
entertainment expenses incurred by Executive in connection with his duties under
this Agreement. Any such expenses shall be submitted by Executive to Luminex on
a periodic basis and will be paid in accordance with standard Luminex policies
and procedures.
3.5.3.2 Moving Expenses. In the event of the relocation of
Luminex's headquarters to a location that is outside the Office Area and
Executive elects to relocate, Luminex shall (i) reimburse Executive for any
reasonable, out-of-pocket and adequately documented moving expenses incurred by
Executive in connection with the transfer of his residence and (ii) pay to an
Executive an amount of cash reasonably calculated by Luminex to negate adverse
income tax consequences to Executive of the foregoing reimbursement.
4. SEVERANCE COMPENSATION.
4.1 Severance Compensation in the Event of a Termination Other Than
For Cause. In the event Executive's employment is terminated as a result of a
Termination Other Than for Cause, Executive shall be paid (subject to Section
4.6) the Severance Compensation (defined below).
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4.2 Severance Compensation for Termination by Reason of Incapacity.
In the event Executive's employment is terminated as a result of a Termination
by Reason of Incapacity, Executive shall be paid (subject to Section 4.6) the
difference of (i) the Severance Compensation less (ii) any payment or payments
received by Executive during the twelve (12) month period from the time of
termination under any long-term disability plan in effect that provides benefits
to Executive.
4.3 Severance Compensation for Termination by Reason of Death. In
the event Executive's employment is terminated as a result of Executive's death,
the estate of Executive shall be paid the Severance Compensation.
4.4 Severance Compensation In the Event Of A Failure Of Luminex To
Renew This Agreement. In the event Luminex fails or otherwise refuses for any
reason to extend this Agreement beyond the Term and any extensions thereof,
Executive shall be paid (subject to Section 4.6) the Severance Compensation.
4.5 No Severance Compensation Upon Other Termination. In the event
of an Actual Voluntary Termination or Termination For Cause, Executive shall not
be paid any severance compensation.
4.6 Conditions to Payment; Sole Remedy. Executive shall not be
entitled to receive any compensation or other payment pursuant to Sections 4.1,
4.2 or 4.4 unless Executive shall have executed and delivered to Luminex a
release substantially in the form attached hereto as Exhibit "A" and, provided
Luminex has also signed such release within two (2) business days of execution
and delivery by Executive, all revocation and waiting periods applicable to such
release have expired (if Luminex fails to sign such release, then such
revocation and waiting periods shall not apply). In addition, in the event that
Executive breaches any of the restrictive covenants set forth in Article 5 at
any time, Luminex shall be entitled to discontinue any compensation or other
payments pursuant to Sections 4.1, 4.2 or 4.4 (provided, however, that if it is
finally determined by a court of competent jurisdiction or an arbitrator that
Luminex asserted in bad faith that Executive breached any of the restrictive
covenants set forth in Article 5, the payments of the Severance Compensation
shall be extended for two months for each calendar month that payments were
delayed. The compensation to be paid to Executive pursuant to Sections 4.1, 4.2,
4.3 or 4.4 shall represent the sole and exclusive remedy of Executive in
connection with the termination of his employment and this Agreement upon a
Termination Other Than for Cause, a Termination by Reason of Incapacity, a
termination in connection with Executive's death, or a refusal by Luminex to
extend this Agreement beyond the Term and any extensions thereof.
4.7 Definition of Severance Compensation. As used in this Agreement,
"Severance Compensation" means an amount equal to the sum of (i) the Bonus
Amount plus (ii) an amount equal to Executive's annual Base Salary (at the
highest rate in effect for the six month period immediately prior to the date of
termination), paid in semi-monthly installments for a period of twelve (12)
months from the date of termination. In addition, as part of the Severance
Compensation, Luminex also shall pay (until the earlier of (A) the first annual
anniversary of the
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termination of this Agreement or (B) the date that Executive is eligible to be
covered under a comparable or more favorable health plan of another Person) (i)
COBRA payments in respect of the continuation of health benefits for Executive,
his spouse and his children and (ii) payments to fund dental coverage for
Executive, his spouse and his children comparable to the dental coverage that
they would have received if Executive had continued as an employee of Luminex.
5. PROTECTION OF LUMINEX.
5.1 Non-Competition. Ancillary to the otherwise enforceable
agreements set forth in this Agreement, Executive agrees that during Executive's
employment with Luminex and for a period of one year following termination of
employment, whether such termination occurs at the insistence of Executive or
Luminex for any reason, Executive shall not compete directly or indirectly in
any way with the business of Luminex anywhere in the world where Luminex
conducted business during the Term. For purposes of this Agreement, "compete
directly or indirectly in any way with the business of Luminex" means to become
an employee, consultant, advisor, manager, member, director of or beneficially
own more than three percent of any individual, company or entity that competes
with Luminex in the Core Business (defined below) at the time of determination.
Executive agrees that the assertion or existence of any claim by Executive
against Luminex shall not be a defense to the enforcement of this paragraph by
injunction or otherwise. As used in this Agreement, "Core Business" means the
development, manufacturing and/or marketing of multiplexing biological testing
technologies with applications in the life-sciences industry.
5.2 Nonsolicitation. Ancillary to the otherwise enforceable
agreements set forth in this Agreement, Executive agrees that, for a period of
one (1) year subsequent to the termination of Executive's employment with
Luminex, whether such termination occurs at the insistence of Executive or
Luminex for any reason, Executive shall not recruit, hire, or attempt to recruit
or hire, directly or by assisting others, any other employees of Luminex, nor
shall Executive contact or communicate with any other employees of Luminex for
the purpose of inducing other employees to terminate their employment with
Luminex. For purposes of this covenant, "other employees of Luminex" shall refer
to employees who are still actively employed by, or doing business with, Luminex
or a subsidiary of Luminex at the time of the attempted recruiting or hiring.
5.3 Remedies. Due to the irreparable and continuing nature of the
injury which would result from a breach of the covenants described in Sections
5.1 and 5.2, Executive agrees that Luminex may, in addition to any remedy which
Luminex may have at law or in equity, apply to any court of competent
jurisdiction for the entry of an immediate order to restrain or enjoin the
breach of this covenant and to otherwise specifically enforce the provisions of
the covenants set forth in Sections 5.1 and 5.2.
5.4 Acknowledgment. Executive acknowledges and agrees that the
restrictions set forth above are ancillary to an otherwise enforceable agreement
and supported by independent valuable consideration as required by TEX. BUS. &
COMM. CODE XXX. Section 15.50. Executive further acknowledges and agrees that
the limitations as to time, geographical area, and
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scope of activity to be restrained by Sections 5.1 and 5.2 are reasonable and
acceptable to Executive, and do not impose any greater restraint than is
reasonably necessary to protect the goodwill and other business interests of
Luminex.
5.5 Reformation and Severance. If a judicial determination is made
that any of the provisions of the above restriction constitutes an unreasonable
or otherwise unenforceable restriction against Executive, it shall be rendered
void only to the extent that such judicial determination finds such provisions
to be unreasonable or otherwise unenforceable. In this regard, the parties
hereby agree that any judicial authority construing this Agreement shall be
empowered to sever any portion of the prohibited business activity from the
coverage of this restriction and to apply the restriction to the remaining
portion of the business activities not so severed by such judicial authority.
Moreover, notwithstanding the fact that any provisions of this restriction are
determined by a court not to be specifically enforceable through injunctive
relief, Luminex shall nevertheless be entitled to seek to recover monetary
damages as a result of the breach of any provision which is not reformed by a
court. The time period during which the restrictions shall apply shall be tolled
and suspended as to Executive for a period equal to the aggregate quantity of
time during which Executive violates such prohibitions in any respect.
5.6 Confidential Information and Trade Secrets. As used herein,
"Confidential Information" means any data or information that is important,
competitively sensitive, and not generally known by the public or persons
involved in the biological testing or life sciences industries, including, but
not limited to, Luminex's business plans, Prospective Customers, training
manuals, proprietary software, product development plans, bidding and pricing
procedures, market plans and strategies, projections, internal performance
statistics, financial data, confidential personnel information concerning
employees of Luminex, operational or administrative plans, policy manuals, and
terms and conditions of contracts and agreements. The term "Confidential
Information" shall not apply to information which is (i) already in Executive's
possession (unless such information was obtained by Executive from Luminex in
the course of Executive's employment by Luminex); (ii) received by Executive
from a third party with, to Executive's knowledge, no restriction on disclosure
or (iii) required to be disclosed by any applicable law or by an order of a
court of competent jurisdiction.
Executive recognizes and acknowledges that the Confidential Information
constitutes valuable, special and unique assets of Luminex and its affiliates.
Except as required to perform Executive's duties as an Executive of Luminex,
until such time as they cease to be Confidential Information through no act of
Executive in violation of this Agreement, Executive will not use or disclose any
Confidential Information of Luminex. Upon the request of Luminex and, in any
event, upon the termination of this Agreement for any reason, Executive will
surrender to Luminex (i) all memoranda, notes, records, drawings, manuals or
other documents pertaining to Luminex's business including all copies and/or
reproductions thereof and (ii) all materials involving any Confidential
Information of Luminex.
5.7 Preservation of Luminex Property. Executive acknowledges that
from time to time in the course of employment with Luminex, Executive has had
the opportunity to inspect and use certain property of Luminex, both tangible
and intangible, including but not
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limited to files, records, documents, drawings, specifications, lists,
equipment, graphics, designs, and similar items relating to the business of
Luminex. Executive acknowledges and agrees that all such property, including but
not limited to any and all copies thereof, whether prepared by Executive or
otherwise in the possession of Executive, are and shall remain the exclusive
property of Luminex, that Executive shall have no right or proprietary interest
in such property and that Executive will safeguard and return to Luminex all
such property upon the earlier of (i) Luminex's request and (ii) the termination
of Executive's employment with Luminex.
5.8 Assignment of Inventions to Luminex. All computer software,
compilations, programs, improvements, inventions, notes, copyrightable works,
and opportunities for additional Luminex business, made, fixed, conceived, or
acquired by Executive during the Term are exclusively owned by Luminex, are
Luminex's works for hire, and fully assigned to Luminex including without
limitation all rights to renewals, extensions, causes of action, reproduce,
prepare derivative works, distribute, display, perform, transfer, make, use and
sell and may never be copied, used, or disclosed without Luminex's express
written consent. Executive will sign on request any documents affirming the same
for any particular item. In addition, Executive agrees to execute Company's
standard Confidentiality and IP Assignment Agreement by the Effective Date.
5.9 Notice to Subsequent Employers. Executive agrees that, prior to
commencing any new employment in the Core Business within twelve months after
the termination of this Agreement, Executive will furnish the new employer with
a copy of this Agreement. Executive also agrees that Luminex may advise any new
or prospective employer of the existence and terms of this Agreement and furnish
the employer with a copy of this Agreement.
6. DISCLOSURE OF INVESTMENTS. Commencing upon Executive's execution of
this Agreement and at all times during the Term, Executive shall keep the Board
informed in writing of the nature and extent of Executive's investments, stock
holdings, or retention as a director, advisor or any similar interest in any
business or enterprise involved in the Core Business other than Luminex;
provided, however, that Executive shall not be required to disclose any such
investments or stock holdings that constitute less than 1% of such entity's
total obligations or total voting power.
7. ARBITRATION.
7.1 Exclusive Remedy. Arbitration shall be the sole and exclusive
remedy for resolving any claim or dispute which cannot be mutually resolved
between the parties to this Agreement with the exception of disputes arising out
of Executive's obligations under Article 5 or disputes arising out of Luminex's
obligations under the last paragraph of Section 3.3, which are not subject to
this arbitration provision; provided however, that the parties hereto agree that
they may bring action in any court of competent jurisdiction to enforce any
award granted pursuant to arbitration or to otherwise enforce this Article 7.
This includes, but is not limited to, termination, interpretation or application
of this Agreement or any other agreement or policy of Luminex, any claim of
violation of law relating to the employment relationship, including,
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without limitation, any claim of employment discrimination or sexual harassment,
or harassment based on any other prohibited basis, or any claim by Luminex
against Executive. This Agreement is a waiver of the right to trial by a jury or
court.
7.2 Limitations. The request for arbitration must be made within one
(1) year from the date of the occurrence giving rise to the dispute or claim;
or, in the event of a statutory claim, the time set forth by statute.
7.3 Rules and Procedures. The arbitration will be conducted under
the rules and procedures for arbitration of employment disputes of the American
Arbitration Association. The arbitration shall take place in Austin, Texas
unless the parties mutually agree to another location.
7.4 Arbitrator's Authority. Upon finding that a claim is meritorious
or in favor of one of the parties to the dispute, the arbitrator or arbitrators
shall have the authority to order legal and equitable remedies appropriate as
permitted by law.
7.5 Expenses. Costs of obtaining and paying the arbiter and the
costs associated with conducting the arbitration, including obtaining a facility
to be used during the arbitration, shall be paid by Luminex. Other costs of the
arbitration or any litigation associated with any dispute arising under or in
connection with this Agreement including, without limitation, reasonable
attorneys' and experts' fees and expenses of Luminex and the Executive shall be
borne by the party incurring such expense unless the arbiter or court of law, as
the case may be, awards costs to one of the parties.
8. MISCELLANEOUS.
8.1 Waiver. The waiver of the breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent breach
of the same or other provision hereof.
8.2 Entire Agreement; Modifications. Except as otherwise provided
herein, this Agreement represents the sole, entire, and complete understanding
among the parties with respect to the subject matter hereof, and this Agreement
supersedes any and all prior understandings, agreements, plans and negotiations,
whether written or oral, with respect to the subject matter hereof, including
without limitation any understandings, agreements or obligations respecting any
past or future compensation, bonuses, reimbursements or other payments to
Executive from Luminex. All modifications to the Agreement must be in writing
and signed by both Executive and Luminex.
8.3 Notices. All notices and other communications under this
Agreement shall be in writing and shall be given by facsimile or first class
mail, certified or registered with return receipt requested, and shall be deemed
to have been duly given three business days after mailing or one business day
after transmission of a facsimile (with confirmation of receipt) to the
respective persons named below:
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If to Luminex: Luminex Corporation
Attn: General Counsel
00000 Xxxxxxxxxx Xxxx.
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
If to Executive: Xx. Xxxxxxx X. Xxxxxxx
2566 Jardin
Xxxxxx, XX 00000
Any party may change such party's address for notices by notice duly given
pursuant to this Section 8.3.
8.4 Headings. The Section headings herein are intended for reference
and shall not by themselves determine the construction or interpretation of this
Agreement.
8.5 Governing Law; Venue. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas. Subject in all
respects to Section 7 generally and Section 7.3 in particular, any dispute
arising out of or relating to this Agreement may be brought in a court of
competent jurisdiction located in Austin, Texas, and both of the parties to this
Agreement irrevocably submit to the exclusive jurisdiction of such courts in any
such dispute, waives any objection it may now or hereafter have to venue or to
convenience of forum, agrees that all claims in respect of the dispute shall be
heard and determined only in any such court, and agrees not to bring any dispute
arising out of or relating to this Agreement in any other court. The parties
agree that either or both of them may file a copy of this paragraph with any
court as written evidence of the knowing, voluntary and bargained agreement
among the parties irrevocably to waive any objections to venue or to convenience
of forum. Process in any dispute may be served on any party anywhere in the
world.
8.6 Severability. Should any court of competent jurisdiction
determine that any provision of this Agreement is illegal or unenforceable to
any extent, such provision shall be enforced to the extent permissible and all
other provisions of this Agreement shall continue to be enforceable to the
extent possible.
8.7 Counterparts. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one and the same
Agreement.
8.8 Assignment. Neither this Agreement nor any duties or obligations
hereunder may be assigned by either party without the other party's prior
written consent; provided, however, that Luminex may assign this Agreement to
either (i) a wholly-owned subsidiary of Luminex (provided, however, that such
assignment shall not relieve Luminex of its obligations hereunder) or (ii) a
Person acquiring substantially all of Luminex's assets if such acquisition would
constitute a Change in Control.
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8.9 Withholding. All compensation and benefits payable to Executive
hereunder shall be reduced by all federal, state, local and other withholdings
and similar taxes and payments required by applicable law.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
LUMINEX CORPORATION
By:
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EXECUTIVE
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Xxxxxxx X. Xxxxxxx
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