EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This Agreement is made and entered into as of April 1, 2002, between
Apogent Technologies Inc., a Wisconsin corporation ("Employer" or "Company"),
and Xxxxxx X. Xxxxxxx ("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.
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(a) Employment and Term. Employer hereby employs Employee as Group
President - Labware and Life Sciences 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 Group President - Labware and Life
Sciences, be subject to the direction and supervision of the 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 President, which duties Employee shall faithfully
perform to the best of his abilities. Employee's services shall be performed
primarily at the offices of the Company's subsidiary, Nalge Nunc International
Corporation, which are currently located in Rochester, New York. Employee shall
be required to devote his full working time to the performance of his duties
hereunder.
2. Compensation.
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(a) Salary.
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(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 $320,000 per year. Such salary shall accrue and be payable
in accordance with the payroll practices of Employer in effect 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
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
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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 ("Benefit Plans").
(c) Expense Reimbursement. During his employment, Employer shall reimburse
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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.
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(a) Termination by Employee.
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(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,
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 Group President -
Labware and Life Sciences, his removal from the position of Group President
- Labware and Life Sciences, 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
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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.
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(i) Employer 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) Employer 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 President of Employer to Employee specifying the duties being
neglected or the breach of this Agreement by Employee).
(iii) Employer 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) Employer 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
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terminate automatically upon the death of Employee.
4. Compensation Upon Termination.
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(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 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 twelve (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 (or its successor bonus plan/program) 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
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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 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 because of Employee's 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.
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(a) Definitions. For purposes of this Agreement, the following words and
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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
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 which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity) more than 66 2/3% of the combined
voting power of the voting securities of the Company or such surviving
entity outstanding immediately after such merger or consolidation; 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.
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(ii) "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)(ii), 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 Group President - Labware and Life
Sciences, his removal from the position of Group President - Labware
and Life Sciences, or a diminution in the nature or status of
Employee's responsibilities;
(2) a proposed 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;
(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, or 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 or 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 7 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.
(iii) "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
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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.
(iv) "Severance Payment" shall mean an amount equal to 2.0 times the
sum of (A) Employee's annual base salary in effect at the time notification
of termination is provided plus (B) the greater of (x) 200% of the "target"
incentive Award that could have been earned by Employee under the Senior
Executive Incentive Compensation Plan (or its successor bonus plan/program)
for the fiscal year in which Employee's employment is terminated (or such
comparable amount in the event of a different bonus plan) or (y) Employee's
average annual bonus and incentive compensation for the three complete
fiscal years of the Company immediately preceding the date of termination.
(b) Payments.
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(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 greater
of (A) the incentive award that would have been earned by the Employee
under the Senior Executive Incentive Compensation Plan (or its
successor bonus plan/program) for the fiscal year in which the
Employee's employment is terminated or (B) 200% of the "target"
incentive Award that could have been earned by Employee under the
Senior Executive Incentive Compensation Plan (or its successor bonus
plan/program) for the fiscal year in which Employee's employment is
terminated (or such comparable amount in the event of a different
bonus plan); 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 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 to Employee the Severance Payment no
later than the fifth day following the termination.
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(5) 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)
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.
(c) Mitigation. Employee shall not be required to mitigate the amount
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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. Certain Additional Payments by the Company.
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(a) Anything in this Agreement to the contrary notwithstanding, in the
event it shall be determined that any payment or distribution by the Company to
or for the benefit of the Employee (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise, but
determined without regard to any additional payments required under this Section
6) (a "Payment") would be subject to the excise tax imposed by Section 4999 of
the Code or any interest or penalties are incurred by the Employee with respect
to such excise tax (such excise tax, together with any such interest and
penalties, are hereinafter collectively referred to as the "Excise Tax"), then
the Employee shall be entitled to receive an additional payment (a "Gross-Up
Payment") in an amount such that after payment by the Employee of all taxes
(including any interest or penalties imposed with respect to such taxes),
including, without limitation, any income taxes (and any interest and penalties
imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment,
the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments.
(b) Subject to the provisions of Section 6(c), all determinations required
to be made under this Section 6, including whether and when a Gross-Up Payment
is required and the amount of such Gross-Up Payment and the assumptions to be
utilized in arriving at such determination, shall be made by such certified
public accounting firm as may be designated by the Employee (the "Accounting
Firm") which shall provide detailed supporting calculations both to the Company
and the Employee within thirty (30) business days of the receipt of notice from
the Employee that there has been a Payment, or such earlier time as is requested
by the Company. All fees and expenses of the Accounting Firm shall be borne
solely by the Company. Any Gross-Up Payment, as determined pursuant to this
Section 6, shall be paid by the Company to the Employee within thirty (30) days
of the receipt of the Accounting Firm's determination. If the Accounting Firm
determines that no Excise Tax is payable by the Employee, it shall furnish the
Employee with a written opinion that failure to report the Excise Tax on the
Employee's applicable federal income tax return would not result in the
imposition of a negligence or similar penalty. Any determination by the
Accounting Firm shall be binding upon the Company and the Employee. As a result
of the uncertainty in the application of Section 4999 of the Code at the time of
the initial determination by the Accounting Firm hereunder, it is possible that
Gross-Up Payments which will not have been made by the Company should have been
made ("Underpayment"), consistent with the calculations required to be made
hereunder. In the event
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that the Company exhausts its remedies pursuant to Section 6(c) and the Employee
thereafter is required to make a payment of any Excise Tax, the Accounting Firm
shall determine the amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Company to or for the benefit of the
Employee.
(c) The Employee shall notify the Company in writing of any claim by the
Internal Revenue Service that, if successful, would require the payment by the
Company of the Gross-Up Payment. Such notification shall be given as soon as
practicable but no later than ten business days after the Employee is informed
in writing of such claim and shall apprise the Company of the nature of such
claim and the date on which such claim is requested to be paid. The Employee
shall not pay such claim prior to the expiration of the 30-day period following
the date on which it gives such notice to the Company (or such shorter period
ending on the date that any payment of taxes with respect to such claim is due).
If the Company notifies the Employee in writing prior to the expiration of such
period that it desires to contest such claim, the Employee shall:
(i) Give the Company any information reasonably requested by the
Company relating to such claim,
(ii) Take such action in connection with contesting such claim as the
Company shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to such
claim by an attorney reasonably selected by the Company,
(iii) Cooperate with the Company in good faith in order effectively to
contest such claim, and
(iv) Permit the Company to participate in any proceedings relating to
such claim; provided, however, that the Company shall bear and pay directly
all costs and expenses (including additional interest and penalties)
incurred in connection with such contest and shall indemnify and hold the
Employee harmless, on an after-tax basis, for any Excise Tax or income tax
(including interest and penalties with respect thereto) imposed as a result
of such representation and payment of costs and expenses. Without
limitation on the foregoing provisions of this Section 6(c), the Company
shall control all proceedings taken in connection with such contest and, at
its sole option, may pursue or forgo any and all administrative appeals,
proceedings, hearings and conferences with the taxing authority in respect
of such claim and may, at its sole option, either direct the Employee to
pay the tax claimed and xxx for a refund or contest the claim in any
permissible manner, and the Employee agrees to prosecute such contest to a
determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Company shall
determine; provided, however, that if the Company directs the Employee to
pay such claim and xxx for a refund, the Company shall advance the amount
of such payment to the Employee, on an interest-free basis and shall
indemnify and hold the Employee harmless, on an after-tax basis, from any
Excise Tax or income tax (including interest or penalties with respect
thereto) imposed with respect to such advance or with respect to any
imputed income with respect to such advance. Furthermore, the Company's
control of the contest shall be limited to issues with respect to which a
Gross-Up Payment would be payable hereunder and the Employee shall be
entitled to settle or contest, as the case may be, any other issue raised
by the Internal Revenue Service or any other taxing authority.
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(d) If, after the receipt by the Employee of an amount advanced by the
Company pursuant to Section 6(c), the Employee becomes entitled to receive any
refund with respect to such claim, the Employee shall (subject to the Company's
complying with the requirements of Section 6(c)) promptly pay to the Company the
amount of such refund (together with any interest paid or credited thereon after
taxes applicable thereto). If, after the receipt by the Employee of an amount
advanced by the Company pursuant to Section 6(c), a determination is made that
the Employee shall not be entitled to any refund with respect to such claim and
the Company does not notify the Employee in writing of its intent to contest
such denial of refund prior to the expiration of 30 days after such
determination, then such advance shall be forgiven and shall not be required to
be repaid and the amount of such advance shall offset, to the extent thereof,
the amount of Gross-Up Payment required to be paid.
7. Assignment.
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(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 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.
8. Confidential Information.
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(a) Non-Disclosure. During Employee's employment or at any time
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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
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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-
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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,
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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.
9. Agreement Not to Solicit Employees. Employee agrees that, for a period
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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 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.
10. Assignment of Inventions. Employee agrees that he will assign to
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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.
11. Noncompetition. During the term of Employee's employment with the
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Company and for a one-year period thereafter (unless Employee's employment is
terminated pursuant to 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,
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"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.
12. No Violation. Employee represents and warrants to Employer that the
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execution, delivery and performance of this Agreement by Employee does not, with
or without the giving of notice or the passage 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.
13. Captions. The captions, headings and arrangements used in this Agreement
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are for convenience only and do not in any way affect, limit or amplify the
provisions hereof.
14. 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 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: General Counsel
Employee: Xxxxxx X. Xxxxxxx
c/o Nalge Nunc International Corporation
00 Xxxxxxxx Xxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000-0000
15. 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
8, 9, 10, and 11 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.
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16. 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.
17. 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.
18. 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.
19. Governing Law. This Agreement shall be construed and enforced according to
-------------
the laws of the State of New Hampshire.
20. Legal Fees. Employer shall pay to Employee all legal fees and expenses
----------
incurred by Employee in contesting or disputing any termination or in seeking to
obtain or enforce any right or benefit provided by this Agreement.
21. 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.
APOGENT TECHNOLOGIES INC.
By:
------------------------
Name: Xxxxx X. Xxxxxxxx, Xx.
----------------------
Title: President and CEO
---------------------
EMPLOYEE:
By:
------------------------
Xxxxxx X. Xxxxxxx
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