EMPLOYMENT AGREEMENT
EXHIBIT 10.33
THIS EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered into as of July 1, 2009 (the
“Effective Date”) by and between Luminex Corporation, a Delaware corporation (“Luminex”) and
Xxxxxxx X. Xxxxxx (“Executive”).
RECITAL
WHEREAS,
Executive is to be employed as the Senior Vice President, Operations 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 as Senior Vice President, Operations
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 two (2) years commencing on the Effective Date and shall thereafter automatically renew
for successive additional one-year terms unless either party provides the
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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, violation of the law or Executive’s 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 Chief Operating Officer 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, 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
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the chief operating officer of companies having both (i) a chief operating officer 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 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.
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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 $13,125.00 per each semi-monthly pay period or $315,000
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 Signing Bonus. Executive shall receive an initial signing bonus in the amount of
$100,000, payable to Executive upon the Effective Date of this Agreement (the “Signing Bonus”).
Executive may receive an additional discretionary signing bonus (the “Additional Signing Bonus”) at
the sole discretion of the Compensation Committee of the Company’s Board of Directors. In addition,
the Company shall pay an additional amount to Executive, calculated as hereinafter described,
designed to reimburse Executive for any federal and state income and Medicare tax withholdings
required by applicable law on the Signing Bonus and the Additional Signing Bonus (the “Gross-up
Amount”). Executive agrees that he shall be obligated to promptly repay to Company the “pro rata
amount” of the aggregate amount of the Signing Bonus and the Additional Signing Bonus (if any) and
the Gross-up Amount (the “Total Signing Bonus”) in the event of “Termination for Cause” pursuant to
Section 2.2.1 or in the event of “Actual Voluntary Termination” pursuant to Section 2.2.3 within
three (3) years of the Effective Date. The “pro rata amount” shall be determined by multiplying
the Total Signing Bonus by a fraction determined by dividing the number of days remaining from the
date of the termination event through the date that is three (3) years from the Effective Date, by
1095. The Gross-up Amount shall be determined by dividing the aggregate amount of the Signing
Bonus and, if applicable the Additional Signing Bonus, by .635, which applies the federal income
tax at a 35% rate, Medicare tax at a 1.45% rate and no state income tax. In the event state income
tax shall be applicable to these payments, an appropriate adjustment for the net applicable state
income tax rate shall be made to this calculation.
3.3 Annual Bonus. Executive shall be eligible to receive a bonus each year in an
amount up to at least fifty percent (50%) 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
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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. 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 3.3, the terms of
such other written agreement or plan shall supersede this Section 3.3. Notwithstanding the
foregoing, Executive shall be eligible to receive a prorata portion of any bonus awarded for 2009
based on the number of months Executive is employed by the Company during 2009.
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
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(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 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
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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.
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 California 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.
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 four (4) 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.
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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).
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.
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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 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.
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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. § 15.50. Executive further
acknowledges and agrees that the limitations as to time, geographical area, and 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.
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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 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 3.4, 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,
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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,
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
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mailing or one business day after transmission of a facsimile (with confirmation of receipt)
to the respective persons named below:
If to Luminex:
|
Luminex Corporation | ||
| Attn: General Counsel | |||
| 00000 Xxxxxxxxxx Xxxx. | |||
| Xxxxxx, Xxxxx 00000 | |||
| Fax: (000) 000-0000 | |||
If to Executive:
|
Xx. Xxxxxxx X. Xxxxxx | ||
| 0 XxxXxxxxx Xxxxx | |||
| Xxxxxxxx, 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
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obligations hereunder) or (ii) a Person acquiring substantially all of Luminex’s assets if
such acquisition would constitute a Change in Control.
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: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| EXECUTIVE |
||||
| /s/ Xxxxxxx X. Xxxxxx | ||||
| XXXXXXX X. XXXXXX | ||||
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EXHIBIT “A”
GENERAL RELEASE AGREEMENT
GENERAL RELEASE AGREEMENT
THIS GENERAL RELEASE AGREEMENT (this “Agreement”) dated as of the day of
, [fill in effective
date of termination pursuant to the Employment Agreement] (the “Effective Date”), is by and between
Xxxxxxx X. Xxxxxx (“Executive”) and Luminex Corporation (“Luminex”).
WHEREAS, Executive’s employment with Luminex has terminated pursuant to that certain
Employment Agreement dated as of July 1, 2009 (the “Employment Agreement”);
NOW, THEREFORE, in consideration of the foregoing premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Termination of Employment. Executive and Luminex hereby agree that Executive’s
employment with Luminex has terminated pursuant to Section
_____
[fill in applicable section] of
the Employment Agreement effective as of the Effective Date. To the extent he continues to hold
any such positions or directorships, Executive hereby resigns all positions and directorships he
holds with Luminex and any and all of Luminex’s subsidiaries and affiliates.
2. Release by Executive. Executive, on his own behalf and on behalf of the Executive
Released Parties (defined below), hereby irrevocably and unconditionally releases and forever
discharges Luminex, its respective subsidiaries and other affiliated and their respective agents,
employees, representatives, officers, directors, stockholders, trustees and attorneys, past and
present, and the heirs, successors and assigns of all of the foregoing (collectively, the “Released
Parties”) from any and all debts, liabilities, claims, demands, actions or causes of action, suits,
judgments or controversies of any kind whatsoever (except as set forth below) arising from
Executive’s relationship (including without limitation as a stockholder) to, employment with or
service as an employee, officer, director, or manager of Luminex or its subsidiaries and affiliates
(collectively, the “Claims”) against the Released Parties, that now exist or that may arise in the
future out of any matter, transaction or event occurring prior to or on the Effective Date,
including without limitation, any claims of breach of contract or for severance or other
termination pay (except as set forth in Section 4 below), or claims of harassment or discrimination
(for example, on the basis of age, sex, race, handicap, disability, religion, color or national
origin) under any federal, state or local law, rule or regulation, including, but not limited to
the Age Discrimination in Employment Act of 1967, 29 U.S.C. §621, et seq. Except
as set forth below, Executive further agrees not to file or bring any claim, suit, civil action,
complaint, arbitration or administrative action (any of the foregoing, an “Action”) in any city,
state or federal court or agency or arbitration tribunal with respect to any Claim against any of
the Released Parties or (except as may be required by law) assist any other person or entity with
any Action against any of the Released Parties. Notwithstanding anything to the contrary contained
in this Agreement, Executive does not release any of the Released Parties and shall not be
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prohibited from filing or bringing an Action with respect to any right Executive otherwise may
have now or in the future to (i) receive distributions or dividends made in respect of Luminex’s
capital stock or (ii) be indemnified by Luminex under the Certificate of Incorporation or Bylaws of
Luminex (as the same are currently in effect), any resolution adopted by the Board of Directors of
Luminex, or any other separate written agreement or instrument requiring Luminex to indemnify
Executive or (iii) receive workers’ compensation claims or (iv) receive Accrued Obligations (as
such term is defined in the Employment Agreement) or (v) receive Severance Compensation (as such
term is defined in the Employment Agreement) or (vi) stock, options, and other equity-based
compensation that vested prior to the Effective Date or that vests subsequent to the Effective Date
pursuant to the Employment Agreement or an applicable Luminex long-term incentive plan (which
stock, options or other equity-based compensation shall be governed by the terms and provisions of
the applicable written agreement(s) or instrument(s) and/or the applicable Luminex incentive plan)
or (vii) vested benefits payable under retirement and other employee benefit plans covering
Executive (which benefits shall be governed by the terms and provisions of the applicable plan).
3. Release by Luminex. Luminex, on its own behalf and on behalf of the Released
Parties, hereby irrevocably and unconditionally releases and forever discharges Executive and his
heirs, successors and assigns (collectively, the “Executive Released Parties”) from any and all
Claims against the Executive Released Parties, that now exist or that may arise in the future.
Except as set forth below, Luminex further agrees not to file or bring any Action in any city,
state or federal court or agency or arbitration tribunal with respect to any Claim against any of
the Executive Released Parties or (except as may be required by law) assist any other person or
entity with any Action against any of the Executive Released Parties. Notwithstanding anything to
the contrary contained in this Agreement, Luminex does not release any of the Executive Released
Parties and shall not be prohibited from filing or bringing an Action with respect to (i) a breach
by Executive after the Effective Date of any of Executive’s obligations under the Employment
Agreement that by their terms survive termination of the Employment Agreement, including without
limitation the provisions of Article 5 of the Employment Agreement, or (ii) in connection with any
claim for indemnification by Executive, any obligation or burden of proof applicable to Executive
that is a condition to Executive’s right to be indemnified by Luminex under the Certificate of
Incorporation or Bylaws of Luminex (as the same are currently in effect), any resolution adopted by
the Board of Directors of Luminex, or any other separate written agreement or instrument requiring
Luminex to indemnify Executive or (iii) any Claims that arise out of any criminal or fraudulent
activity, willful misconduct or gross negligence of Executive.
4. Severance Compensation. In consideration of Executive’s execution of this
Agreement, Executive shall be entitled to receive from Luminex the Severance Compensation under one
of Section 4.1, 4.2 or 4.4 in the Employment Agreement. Executive acknowledges that no other
promise or agreements of any kind have been made to Executive or with Executive by any person or
entity whatsoever to cause Executive to sign this Agreement. Executive further acknowledges and
agrees that the Severance Compensation, together with any other payments or benefits that may be
due under the terms of the Employment Agreement, shall constitute full accord and satisfaction of
all obligations, including without limitation any and all severance obligations, in connection with
Executive’s employment. Executive would not be entitled to receive the Severance Compensation but
for Executive’s execution of this Agreement.
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5. Disclaimer of Liability. Executive acknowledges that this Agreement shall not in
any way be construed as an admission by Executive or any of the Released Parties of any wrongful or
illegal act against the other or any other person, and that Executive and the Released Parties
expressly disclaim any liability of any nature whatsoever arising from or related to the subject of
this Agreement.
6. COMPETENCY. EXECUTIVE ACKNOWLEDGES THE FOLLOWING:
a. THAT HE FULLY COMPREHENDS AND UNDERSTANDS ALL OF THE TERMS OF THIS AGREEMENT AND THEIR
LEGAL EFFECTS;
b. THAT HE IS COMPETENT TO EXECUTE THIS AGREEMENT;
c. THAT IT IS EXECUTED KNOWINGLY AND VOLUNTARILY AND WITHOUT RELIANCE UPON ANY STATEMENT OR
REPRESENTATION OF ANY RELEASED PARTY OR ITS REPRESENTATIVES;
d. THAT HE HAS BEEN ADVISED IN WRITING TO CONSULT WITH AN ATTORNEY BEFORE EXECUTING THIS
AGREEMENT AND THAT HE HAS HAD THE OPPORTUNITY TO CONSULT WITH AN ATTORNEY OF HIS CHOICE REGARDING
THIS AGREEMENT;
e. THAT EXECUTIVE DOES NOT WAIVE RIGHTS OR CLAIMS THAT MAY ARISE AFTER THE DATE THIS AGREEMENT
IS EXECUTED;
f. THAT EXECUTIVE WAIVES RIGHTS OR CLAIMS UNDER THIS AGREEMENT ONLY IN EXCHANGE FOR
CONSIDERATION IN ADDITION TO ANYTHING OF VALUE TO WHICH THE EXECUTIVE WAS ALREADY ENTITLED;
g. [THAT HE HAS BEEN PROVIDED THE MATERIALS REGARDING THE CLASS, UNIT, OR GROUP OF INDIVIDUALS
ELIGIBLE FOR THIS COMPENSATION AND THE TIME LIMITS APPLICABLE TO SUCH PROGRAM;] [This clause to be
included if required by or advisable under applicable law.]
h. [THAT HE HAS BEEN PROVIDED THE JOB TITLES AND AGES OF ALL INDIVIDUALS ELIGIBLE OR SELECTED
FOR THE PROGRAM AND THE AGES OF ALL INDIVIDUALS IN THE SAME JOB CLASSIFICATION OR ORGANIZATIONAL
UNIT WHO ARE NOT ELIGIBLE OR SELECTED FOR THE PROGRAM;] [This clause to be included if required by
or advisable under applicable law.]
i. THAT HE HAS HAD A PERIOD OF AT LEAST 21 DAYS [or 45 days, if required by or advisable under
applicable law] WITHIN WHICH TO CONSIDER THIS AGREEMENT;
j. THAT FOR A PERIOD OF SEVEN DAYS FOLLOWING THE EXECUTION OF THIS AGREEMENT, EXECUTIVE MAY
REVOKE THIS AGREEMENT AND IT SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL THE SEVEN-DAY PERIOD
HAS EXPIRED OR SUCH LATER DATE AS PROVIDED FOR HEREIN.
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7. Parties in Interest. This Agreement is for the benefit of the Released Parties and
shall be binding upon Executive and his representatives and heirs.
8. Governing Law. This Agreement and the rights and obligations of Executive
hereunder shall be governed by and construed and enforced in accordance with the substantive laws
of the State of Texas.
9. Amendment. This Agreement may not be clarified, modified, changed or amended except
in writing and signed by Executive and Luminex or a successor-in-interest of Luminex.
10. Non-disparagement. Executive agrees that he will refrain from speaking ill of or
making any disparaging comment about Luminex or Luminex’s management, other employees or
contractors, following the termination of his employment except as may be necessary or advisable,
in the reasonable judgment of Executive, to enforce his rights under this Agreement, enforce claims
arising after the Effective Date and not released in this Agreement, or defend a legal action
brought against Executive by any of the Released Party. Luminex agrees that it will refrain from
speaking ill of or making any disparaging comment about Executive following the termination of his
employment except as may be necessary or advisable, in the reasonable judgment of Luminex, to (i)
to enforce its rights under the Employment Agreement or this Agreement not released in this
Agreement or (ii) defend a legal action brought against any of the Released Parties by Executive or
(iii) comply with applicable securities laws or protect Luminex from potential liability.
11. Enforcement of Laws. Nothing in this Agreement affects the rights and
responsibilities of the Equal Employment Opportunity Commission (the “Commission”) to enforce the
anti-discrimination laws, and this waiver does not affect Executive’s right to file a charge or
participate in an investigation or proceeding with the Commission. However, Executive waives any
rights or claims, known or unknown, to participate in any recovery under any proceeding or
investigation by the Commission or any state or local commission concerned with the enforcement of
anti-discrimination laws.
12. Severability. 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
never comprised a part hereof; and the remaining provisions hereof shall remain in full force and
effect and shall not be affected by the illegal, invalid or unenforceable provision, and there
shall be added automatically as part of this Agreement a provision as similar in its terms to such
illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable.
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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: | ||||
| EXECUTIVE |
||||
| Xxxxxxx X. Xxxxxx, individually | ||||
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