EXHIBIT 10.8
AGREEMENT
THIS AGREEMENT ("Agreement"), effective March 3, 1995 ("Effective
Date"), is entered into by and between Stratagene, a California corporation
("Stratagene"), and Xxxxx X. Xxxxxxx ("Employee").
WHEREAS, Stratagene recognizes the value of the services that Employee
has rendered to Stratagene and desires to be assured that Employee will continue
to provide services to Stratagene; and
WHEREAS, Employee is willing to continue to provide services to
Stratagene subject to assurances that Employee shall continue to have her
present responsibility and status with Stratagene in the event of any change in
control of the company.
NOW, THEREFORE, in consideration of the promises and mutual agreements
contained herein, Stratagene and Employee hereby agree as follows:
1. Termination Following Change in Control. In the event
Employee's employment is terminated in anticipation of or subsequent to a Change
in Control, Employee shall be entitled to the compensation and benefits set
forth in Section 2 unless such termination occurs as result of (i) Employee's
death, (ii)
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termination of Employee by Stratagene for Cause, or (iii) termination of
employment by Employee other than for Good Reason.
2. Benefits Upon Termination. If Employee's employment by
Stratagene is terminated as set forth in Section 1, Employee shall be entitled
to the following compensation and benefits:
2.1 Employee shall receive Employee's full base salary
through the Date of Termination at the salary level in effect at the
time the Notice of Termination is given plus amounts for any vacation
accrued but not taken and the amount, if any, of any bonuses which have
accrued but have not been paid to Employee under any bonus plans;
2.2 In lieu of any further salary payments to Employee
for periods subsequent to the Date of Termination, Stratagene shall pay
as a severance payment to Employee within ten (10) days following the
Date of Termination a lump sum amount equal to the product of
Employee's annual base salary at the highest rate in effect during the
twelve (12) months immediately preceding the Date of Termination
multiplied by a number to be determined by Xx. Xxxx Xxxxxxx in his sole
discretion and appended to this Agreement within thirty (30) days from
the
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Effective Date of this Agreement; provided, however, that such number
shall be no less than 1.5 and no greater than 2.0.
2.3 Stratagene shall maintain in full force and effect,
for Employee's continued benefit until the earlier of (i) two (2) years
after the Date of Termination, or (ii) Employee's commencement of full
time employment with a new employer, all health insurance, dental
insurance, life insurance and disability plans, programs or
arrangements in which Employee was entitled to participate immediately
prior to the Date of Termination, provided that Employee's continued
participation is possible under the general terms and provisions of
such plans and programs. In the event that Employee's participation in
any such plan or program is barred, Stratagene shall arrange to provide
Employee with benefits substantially similar to those which Employee
was otherwise entitled to receive under such plans and programs.
2.4 All of Employee's stock options issued under any
Stratagene stock option plan, including Stratagene's phantom stock
option plan, shall immediately vest and all options shall be
immediately exercisable. Further, upon the election of Employee, in her
sole discretion, Stratagene shall pay to Employee, in cash, an amount
equal to the excess of the fair market value of all shares of
Stratagene stock issuable upon
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exercise of any outstanding stock options granted to Employee, over the
aggregate exercise price, if any, of such stock options.
3. Notice of Termination. Any purported termination of Employee
by Stratagene for Cause or by Employee for Good Reason shall be communicated by
written Notice of Termination. For purposes of this Agreement, a "Notice of
Termination" shall mean a notice which shall set forth the termination provision
in this Agreement relied upon and reasonable detail of the facts and
circumstances claimed to provide a basis for termination of Employee's
employment.
4. Term of Agreement. The term of this Agreement shall commence
as of March 3, 1995, and shall continue for a period of three (3) years and any
extensions thereafter ("Term"). The initial term shall automatically be
extended for additional yearly periods without further action by the parties on
March 3, 1998 and on each succeeding March 3 thereafter, such that as of each
March 3, this Agreement shall have a remaining term of one (1) year. Either
party may, however, provide written notice of non-renewal ("Notice of
Non-Renewal") to the other party prior to March 3, 1998 or prior to March 3 of
any succeeding year, as the case may be, of such party's intention that this
Agreement shall expire at the end
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of the Term that began with the March 3 preceding such Notice of
Non-Renewal.
5. Stratagene's Right to Terminate. Nothing in this Agreement
shall limit Stratagene's ability to terminate Employee's employment at any time,
subject to providing the compensation and benefits provided herein.
6. Mitigation. Employee shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking employment or
otherwise nor shall the amount of any payment provided for in this Agreement be
reduced by any compensation earned by Employee as a result of employment by
another employer after the Date of Termination.
7. Limitation on Payments.
Notwithstanding any other provision in this Agreement, in the
event that any severance payment by Stratagene to or for the benefit of
Employee, whether paid or payable pursuant to the terms of this Agreement or
otherwise, would be nondeductible by Stratagene for Federal income tax purposes
as a result of Section 280G of the Internal Revenue Code of 1986, as amended
(the "Code"), then the aggregate present value of the amounts payable to or for
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the benefit of Employee Pursuant to this Agreement shall be reduced to the
maximum amount that is deductible in accordance with Section 280G of the Code.
8. Definitions.
8.1 "Cause" shall mean termination of Employee by
Stratagene upon:
(i) the willful and continued failure of Employee to
substantially perform Employee's duties for or on behalf of
Stratagene (other than any failure resulting from Employee's
incapacity due to physical or mental illness), after a demand
for substantial performance is delivered to Employee by the
Chief Executive Officer of Stratagene which specifically
identifies the manner in which it is believed that Employee
has not substantially performed her duties; or
(ii) the willful engaging by Employee in misconduct
which is materially injurious to Stratagene, monetarily or
otherwise. For purposes of this paragraph 8.1, no act, or
failure to act, on Employee's part shall be deemed "willful"
if such act or omission was in good faith or with a reasonable
belief by Employee that such act or omission was in the best
interests of Stratagene.
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8.2 "Change in Control" shall occur if:
(i) there shall be consummated any consolidation,
acquisition, merger or other reorganization of Stratagene (a)
in which Stratagene is not the continuing or surviving
corporation, or its shareholders as of the Effective Date are
not in control, (b) pursuant to which shares of Stratagene's
common stock would be converted into cash, securities or other
property, other than a merger of Stratagene in which the
holders of Stratagene's common stock immediately prior to the
merger have the same proportionate ownership of common stock
of the surviving corporation immediately after the merger, or
(c) after which the directors of Stratagene immediately before
the transaction shall cease to constitute a majority of the
Board of Directors of Stratagene or of any successor to
Stratagene;
(ii) there is a sale, lease, exchange or other
transfer (in one transaction or a series of related
transactions) of all, or substantially all, of the assets of
Stratagene;
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(iii) the stockholders of Stratagene approve any plan
or proposal for the liquidation or dissolution of Stratagene;
(iv) another person or entity acquires beneficial
ownership, directly or indirectly, of securities of Stratagene
representing twenty five percent (25%) or more of the combined
voting power of Stratagene's then outstanding securities in
one or more transaction;
(v) there is any change which has the actual or
potential effect of decreasing the current level of management
authority, or control of the Chief Executive Officer of
Stratagene in office on December 8, 1994; or
(vi) during any period of twenty-four (24)
consecutive months, commencing before or after the Effective
Date, Xx. Xxxxxx X. Xxxxx, Xxxx Xxxxxxx and Xxxxx Xxxxxxx
cease for any reason to constitute at least a majority of the
Board of Directors of the Company, unless the election, or the
nomination for election, of each new director taking office
after December 8, 1994 has been approved by a vote of at least
two-thirds (2/3) of the directors in office prior to December
8, 1994.
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8.3 "Date of Termination" shall mean the date on which
Notice of Termination is given.
8.4 "Good Reason" shall mean termination of employment by
Employee based on:
(i) The assignment by Stratagene of any duties
inconsistent with Employee's position, duties,
responsibilities and status within Stratagene immediately
prior to a Change in Control, or a change in Employee's
reporting responsibilities, status or titles in effect
immediately prior to a Change in Control, or any removal of
Employee from any such positions, except in connection with
the termination of Employee's employment as a result of
Employee's death or for Cause;
(ii) A reduction by Stratagene in Employee's base
salary in effect as of the Effective Date;
(iii) The failure of Stratagene to increase
Employee's base salary on January 1 of each year subsequent to
a Change in control by a percentage amount at least equal to
the average percentage increases given to Employee in the
three (3) years prior to a Change in Control;
(iv) The failure by Stratagene to provide
Employee with any incentive or bonus compensation, stock
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options, stock awards and other employee benefits or plans at
levels not less than those applicable to comparable employees
of Stratagene immediately prior to a Change in Control, or to
provide their equivalents;
(v) The requirement by stratagene that Employee
be based anywhere other than at Stratagene's executive offices
in La Jolla, California, except for required travel for
business to an extent substantially consistent with Employee's
present business travel obligations;
(vi) The failure by Stratagene to obtain the
assumption to perform this Agreement by any successor in
interest as contemplated in Section 10.1;
(vii) Any purported termination of Employee's
employment which is not effected pursuant to the Notice of
Termination in accordance with the requirements of Section 3,
which for purposes of this Agreement, shall not be effective;
or
(viii) The failure by stratagene after a Change
in Control to continue in effect any benefit or compensation
plan, stock ownership plan, stock purchase plan, stock option
plan, health insurance plan, life insurance plan, or
disability plan in which Employee is participating at the time
of a Change in control of
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Stratagene (or plans providing Employee with substantially
similar benefits), the taking of any action by Stratagene
which would adversely affect Employee's participation in or
materially reduce Employee's benefits under any of such plans
or deprive Employee of any material fringe benefit enjoyed by
Employee at the time of the Change in Control, or the failure
by Stratagene to provide Employee with the number of paid
vacation days to which Employee is then entitled in accordance
with Stratagene's normal vacation policy in effect as of the
Effective Date.
9. Federal Income Tax Withholding. Stratagene may withhold from
any compensation or benefits payable under this Agreement all federal, state and
other withholding taxes required.
10. Miscellaneous.
10.1 Stratagene Successors. Stratagene 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 Stratagene, by agreement to expressly assume and agree
to perform this Agreement in the same manner and to the same extent
that Stratagene would be
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required to perform as if no such succession had taken place. Failure
of Stratagene to obtain such an agreement prior to the effectiveness of
any such succession shall be a breach of this Agreement and shall
entitle Employee to compensation from Stratagene in the same amount and
on the same terms as Employee would be entitled hereunder if Employee
terminated Employee's employment for Good Reason, except that for
purposes of implementing the foregoing, the date on which any such
succession becomes effective shall be deemed the Date of Termination.
10.2 Successors. 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.
10.3 Notice. For purposes of this Agreement notices and
all other communications provided for in the Agreement shall be in
writing and shall be deemed to have been duly given when delivered or
mailed by certified or registered mail, return receipt requested,
postage prepaid, addressed to the respective addresses set forth below,
or to such other address as either party may have furnished to the
other in writing in
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accordance herewith, except that notice of change of address shall be
effective only upon receipt.
Stratagene: Stratagene
00000 Xxxxx Xxxxxx Xxxxx Xxxx
Xx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Chief Executive Officer
Employee: Xxxxx X. Xxxxxxx
[Intentionally Omitted]
[Intentionally Omitted]
10.4 Waiver. No provisions of this Agreement may be
modified, waived or discharged unless such waiver, modification or
discharge is agreed to in writing signed by Employee and Stratagene;
provided, however, that this Agreement shall not supersede or in any
way limit the rights, duties or obligations Employee may have under any
other written agreement with Stratagene.
10.5 Severability. If, for any reason, any provision of
this Agreement is held invalid, such invalidity shall not
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affect any other provision of the Agreement not held so invalid and
each such other provision shall, to the full extent consistent with
law, continue in full force and effect.
If any provision of this Agreement shall be held invalid in part, such
invalidity shall in no way affect the rest of such provision not held
so invalid, and the rest of such provision together with all other
provisions of this Agreement shall, to the full extent consistent with
law, continue in full force and effect.
10.6 Legal Fees. Stratagene shall pay to Employee all
legal fees and expenses incurred by Employee as a result of any
termination of employment as set forth in Section 1, including any fees
and expenses, if any, incurred in contesting or disputing any such
termination or in seeking to obtain or enforce any right or benefit
provided by this Agreement.
10.7 Release. Employee hereby agrees that in the event of
any termination of employment which results in the payments and
benefits to Employee as set forth in this Agreement, Employee shall
execute a mutually acceptable severance agreement and release with
stratagene.
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IN WITNESS WHEREOF, Stratagene and Employee have executed this
Agreement as of the date first written above.
STRATAGENE:
By: /s/ XXXXXX X. XXXXX
--------------------------------------------
EMPLOYEE:
/s/ XXXXX X. XXXXXXX
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