EXHIBIT 10.6
AMENDED EMPLOYMENT AGREEMENT
THIS AMENDED EMPLOYMENT AGREEMENT (the "Agreement"), effective
as of the 1st day of September, 2002 ("Effective Date"), is by and between
Stratagene Holding Corporation, a Delaware corporation ("Employer"), and Xxxx X.
Xxxx ("Executive").
RECITALS
Employer wishes to exclusively contract for the managerial and
business skills possessed by Executive, and Executive desires to be employed by
Employer upon the terms and subject to the conditions herein provided.
TERMS AND CONDITIONS
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual covenants and conditions hereinafter set forth, the parties hereto
agree as follows:
ARTICLE I
EMPLOYMENT AND DUTIES
1.1 Position and Duties. Executive shall serve as Vice
President of Sales of Employer, with such duties and authority as are set forth
on Exhibit A attached hereto, and such duties as the Chief Executive Officer or
Board of Directors may reasonably prescribe. Executive shall discharge his
duties in a diligent and professional manner.
1.2 Outside Business Activities Precluded. During his
employment, Executive shall devote his full energies, interest, abilities and
productive time to the performance of this Agreement. Executive shall not,
without the prior written consent of Employer, perform other services of any
kind or engage in any other business activity, with or without compensation.
Executive shall not, without the prior written consent of Employer, engage in
any business activity adverse to Employer's interests. Employer shall not
unreasonably withhold its consent where the requested outside activity does not
detract from Executive's ability to devote his full energies, interest,
abilities and productive time to the performance of this Agreement and does not
adversely affect Employer's interests.
ARTICLE II
COMPENSATION
2.1 Salary. For Executive's services hereunder, Employer
shall pay as base salary to Executive the amount of $180,835.00 per year during
each calendar year of the Employment Term (as hereinafter defined), prorated for
any year in which this Agreement is in effect for only a portion of the calendar
year. Said base salary shall be payable in equal installments in conformity with
Employer's normal payroll period. Executive's salary shall be reviewed by
Employer from time to time at its discretion, and Executive shall receive such
salary increases, if any, as Employer, in its sole discretion, shall determine.
2.2 Bonus/Other Compensation. In addition to the base
salary set forth in Section 2.1 above, (i) Executive shall be granted deferred
compensation in an amount equal to $268,200 in accordance with the Deferred
Compensation Agreement attached hereto as Exhibit D, and (ii) Executive shall be
eligible for a bonus which is earned and calculated as of the end of each
calendar quarter, pursuant to the formula set forth on Exhibit B attached
hereto. EXECUTIVE AND EMPLOYER ACKNOWLEDGE AND AGREE THAT EXHIBIT B MAY BE
MODIFIED BY EMPLOYER, IN EMPLOYER'S SOLE DISCRETION, ON AN ANNUAL BASIS DURING
THE EMPLOYMENT TERM. Except as expressly provided in this Section 2.2, Executive
must be employed for the entire calendar quarter in order to receive any bonus
payment with respect to such calendar quarter. Thus, Executive shall not be
eligible for or entitled to any bonus or pro rata bonus if his employment is
terminated prior to the final day of the calendar quarter pursuant to Section
3.4 (Early Termination by Executive) or Section 3.5 (Termination for Cause). In
addition, in the event a condition exists which would permit a termination for
Cause under Section 3.5 hereof, if Employer elects not to terminate Executive,
Executive shall nevertheless not be entitled to any bonus payment hereunder,
unless Employer elects, in its sole discretion, to make any such bonus payment.
However, in the event that Executive's employment is terminated pursuant to
Section 3.3 (Early Termination by Employer) or Section 3.6 (Termination Due to
Death or Disability) prior to the final day of the calendar quarter, then and
only then shall Executive be entitled to a bonus for that portion of the
calendar quarter during which he was employed, pursuant to the
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formula set forth on Exhibit B attached hereto, prorated proportionately for
that percentage of the calendar quarter during which Executive was employed.
2.3 Other Benefits. During the Employment Term, Executive
shall be entitled to participate in and receive all other benefits of employment
generally available to Employer's other executive management personnel,
including, but not limited to, inclusion in Employer's retirement plan, medical
plan, disability plan and other similar benefit plans, subject to and on a basis
consistent with the terms, conditions and overall administration of such plans.
Executive shall not, however, be entitled to participate in the company-wide
quarterly cash bonus plan of Employer, which is available only to employees who
do not participate in a personalized bonus plan. Executive shall be entitled to
three weeks of paid vacation each year, which will accrue and be paid out in
conformity with Employer's normal vacation pay practices. Employer may, in its
sole discretion, grant such additional benefits to Executive from time to time
as Employer deems proper and desirable.
2.4 Expenses. With the exception of the automobile
allowances covered in Sections 2.5 below, during the Employment Term, Executive
shall be entitled to receive prompt reimbursement for all reasonable
business-related expenses incurred by him, in accordance with the policies and
procedures from time to time adopted by Employer, provided that Executive
properly accounts for such business expenses in accordance with Employer policy.
2.5 Automobile Allowance. Employer shall provide
Executive with an automobile allowance of $500 per month, payable in accordance
with the normal practices of Employer.
2.6 Stock Options. Executive acknowledges and agrees that
all stock options granted under the Non-Qualified Stock Option Agreement dated
as of July 1, 1996 between Executive and Employer have expired. Executive shall
be granted new stock options pursuant to the Non-Qualified Stock Option
Agreements, attached hereto as Exhibits E-1; E-2; E-3; and E-4.
2.7 Deductions and Withholdings. All amounts payable or
which become payable under any provision of this Agreement shall be subject to
any deductions authorized by Executive and any deductions and withholdings
required by law.
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ARTICLE III
TERM OF EMPLOYMENT
3.1 Term. The term of this Agreement shall commence on
the Effective Date and shall continue through June 30, 2006, unless extended as
hereinafter provided (the "Employment Term").
3.2 Extension of Term. This Agreement may be extended for
successive one-year terms by written amendment signed by both parties.
3.3 Early Termination by Employer. Executive's employment
may be terminated at any time during the Employment Term by the Chief Executive
Officer or Board of Directors of Employer, for any or no reason and without
Cause (as hereinafter defined), upon delivery of written notice by Employer.
Employer is not required to give Executive any advance notice of termination
which, in the sole discretion of Employer, may be effective immediately upon
delivery of written notice to Executive.
3.4 Early Termination by Executive. Executive may
terminate this Agreement at any time by giving Employer written notice of his
resignation ninety (90) days in advance; however, the Chief Executive Officer or
Board of Directors may determine upon receipt of such notice that the effective
date of such resignation shall be immediate or some time prior to the expiration
of the ninety-day notice period. Executive's employment shall terminate as of
the effective date of his resignation as determined by the Chief Executive
Officer or Board of Directors.
3.5 Termination for Cause. Executive's employment may be
terminated for Cause by the Chief Executive Officer or Board of Directors of
Employer, if the circumstances giving rise to such Cause continue for a period
of thirty (30) days after written notice from Employer to Executive. For these
purposes, termination for "Cause" shall mean termination because of Executive's
(a) material personal dishonesty, willful material misconduct, or breach of
fiduciary duty involving personal profit; (b) intentional or repeated material
failure to perform his duties or obligations hereunder; (c) conviction of a
felony; or (d) material breach of this Agreement or the Employee Invention and
Proprietary Information Agreement.
3.6 Termination Due to Death or Disability. Executive's
employment hereunder shall terminate immediately upon his death. In the event
that by reason of injury, illness or other physical or
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mental impairment Executive shall be: (a) completely unable to perform his
services hereunder for more than one consecutive month, or (b) unable to perform
his services hereunder for 50% or more of the normal working day throughout two
consecutive months, then Employer may terminate Executive's employment
hereunder. Executive's beneficiaries, estate, heirs, representatives or assigns,
as appropriate, shall be entitled to the proceeds, if any, due under any
Employer-paid life insurance policy held by Executive, as determined by and in
accordance with the terms of any such policy, as well as any vested benefits
such as stock options and accrued vacation benefits.
ARTICLE IV
BENEFITS AFTER TERMINATION OF EMPLOYMENT
4.1 Continuation. Upon termination of this Agreement
under Section 3.4 (Early Termination by Executive), Section 3.5 (Termination for
Cause) or Section 3.6 (Termination Due to Death or Disability), all salary and
benefits of Executive hereunder shall cease immediately. Upon termination of
this Agreement under Section 3.3 (Early Termination by Employer) when Employer
is in a bankruptcy proceeding, all salary and benefits of Executive hereunder
shall cease immediately. Upon termination of this Agreement under Section 3.3
(Early Termination by Employer) when Employer is not in a bankruptcy proceeding,
Executive shall be entitled to a severance allowance equal to the continuation
of Executive's base salary for up to one year from the date of termination.
Employer's obligation to continue Executive's base salary shall cease when
Executive accepts employment or becomes eligible for compensation (in the form
of cash or securities), comparable to the compensation provided to Executive
hereunder, from some other source in exchange for Executive's services. In no
event, however, shall Employer's obligation to Executive under this Section 4.1
exceed an amount equal to Executive's base salary minus any compensation payable
to Executive from some other source in exchange for Executive's services. This
severance pay will be payable in installments in conformity with Employer's
normal payroll period. During the period of this severance pay, Executive shall
cooperate with Employer in providing for the orderly transition of Executive's
duties and responsibilities to other individuals, as reasonably requested by
Employer.
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4.2 Rights Against Employer. The benefits payable under
this Article IV are exclusive, and no amount shall become payable to any person
(including the Executive) by reason of termination of employment for any reason,
with or without Cause, except as provided in this Article IV and as described in
Section 3.6 (Termination Due to Death or Disability). Employer shall not be
obligated to segregate any of its assets or procure any investment in order to
fund the benefits payable under this Article IV.
ARTICLE V
CONFIDENTIAL INFORMATION AND CONFLICTS OF INTEREST
5.1 Employer and Executive shall execute concurrently
herewith an Employee Invention and Proprietary Information Agreement in
substantially the form attached hereto as Exhibit C.
5.2 Executive, while employed or receiving severance pay
hereunder, shall not take any action without Employer's prior written consent to
establish, form or become employed by a competing business, other than
interviewing with a prospective employer on Executive's own time. Should
Executive violate this provision, then in addition to all other remedies
Employer may have, Employer shall be entitled to reimbursement from Executive
for any benefits or compensation paid to Executive under this Agreement on and
after the date that Executive first breached this provision.
ARTICLE VI
GENERAL PROVISIONS
6.1 Entire Agreement. This Agreement contains the entire
understanding and sole and entire agreement between the parties with respect to
the subject matter hereof and supersedes any and all prior agreements,
negotiations and discussions between the parties hereto with respect to the
subject matter covered hereby. Each party to this Agreement acknowledges that no
representations, inducements, promises or agreements, oral or otherwise, have
been made by any party, or anyone acting on behalf of any party, which are not
embodied herein, and that no other agreement, statement or promise not contained
in this Agreement shall be valid or binding. This Agreement may not be modified
or amended by oral agreement,
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but rather only by an agreement in writing signed by Executive and the Chief
Executive Officer of Employer which specifically states the intent of the
parties to amend this Agreement.
6.2 Assignment and Binding Effect. Neither this Agreement
nor the rights or obligations hereunder shall be assignable by Executive.
Employer may assign this Agreement to any successor of Employer, and upon such
assignment any such successor shall be deemed substituted for Employer upon the
terms and subject to the conditions hereof.
6.3 Final and Binding Arbitration. Except as prohibited
by law, any dispute regarding the termination of Executive's employment, or
relating to or arising from any aspect of the employment of Executive by
Employer, or concerning the scope, interpretation or application of this
Agreement, shall be resolved through final and binding arbitration in San Diego,
California in accordance with the then existing Employment Dispute Resolution
Rules (the "Rules") of the American Arbitration Association ("AAA"). Judgment
upon the award rendered by the arbitrator in such proceeding may be entered in
any court having jurisdiction thereof; provided, however, that the law
applicable to any issues regarding the scope, effectiveness or interpretation of
this arbitration provision shall be the Federal Arbitration Act. The arbitration
shall be conducted by a single neutral arbitrator selected by the parties from a
list maintained and provided by the AAA. The arbitrator shall render his/her
decision in writing to Employer, Executive and their respective counsel within
twenty (20) days of the completion of the arbitration. The Executive shall not
be required to pay any administrative fees of the American Arbitration
Association or arbitrator's fees in any amount exceeding the then-current cost
of filing a civil action in the state court of general jurisdiction in the state
in which the Executive worked. Any administrative fees or arbitrator's fees
exceeding that amount shall be paid by Employer. The arbitrator shall have no
power to award costs and attorneys' fees except as provided by statute or by
separate written agreement between the parties. Notwithstanding the foregoing,
nothing in this Agreement shall require either Employer or Executive to
arbitrate any claim or action involving alleged breaches of this Agreement by
Executive of his/her duties to maintain the confidentiality of Proprietary
Information or to disclose and assign Inventions to Employer, which may be the
subject of a court action seeking appropriate legal or equitable relief. In the
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event any aspect of this arbitration provision is found unenforceable by a court
of competent jurisdiction, the remainder of this arbitration provision shall be
severed from the invalid portion and the remaining portion given its full effect
according to its terms. This arbitration provision supersedes any prior
agreements between the parties on the subject of arbitration of
employment-related claims and shall survive the termination of this Agreement
for any reason.
6.4 No Waiver. No waiver of any term, provision or
condition of this Agreement, whether by conduct or otherwise, in any one or more
instances shall be deemed or be construed as a further or continuing waiver of
any such term, provision or condition, or as a waiver of any other term,
provision or condition of this Agreement.
6.5 Governing Law; Rules of Construction. This Agreement
has been negotiated and executed in, and shall be governed by and construed in
accordance with the laws of, the State of California. Captions of the several
Articles and Sections of this Agreement are for convenience of reference only,
and shall not be considered or referred to in resolving questions of
interpretation with respect to this Agreement.
6.6 Notices. Any notice, request, demand or other
communication required or permitted hereunder shall be deemed to be properly
given when personally served in writing, or when deposited in the United States
mail, postage pre-paid, addressed to Employer or Executive at his last-known
address. Each party may change its address by written notice in accordance with
this Section.
Address for Employer:
Stratagene Holding Corporation
00000 Xxxxx Xxxxxx Xxxxx Xxxx
Xx Xxxxx, Xxxxxxxxxx 00000
Address for Executive:
Xxxx X. Xxxx
[Intentionally Omitted]
[Intentionally Omitted]
6.7 Severability. The provisions of this Agreement are
severable. If any provision of this Agreement shall be held to be invalid or
otherwise unenforceable, in whole or in part, the remainder of
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the provisions or enforceable parts hereof shall not be affected thereby and
shall be enforced to the fullest extent permitted by law.
6.8 Multiple Counterparts. This Agreement may be executed
in one or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
6.9 Effect on Previous and Existing Agreements. This
Agreement shall supercede and extinguish the prior Employment Agreement entered
into between Executive and Stratagene, a California corporation, dated July 1,
1996, and any other written, verbal or implied agreements between Executive and
Stratagene, except as provided in this paragraph. This Agreement shall not
affect in any way any Employee Invention and Proprietary Information Agreements
previously entered into between Executive and Stratagene or between Executive
and any other entity affiliated with Employer, which shall nonetheless remain in
full force and effect. This Agreement shall not affect or limit any obligation
of Executive, written, verbal, contractual or otherwise, with respect to the
intellectual property, trade secrets or proprietary information of Stratagene,
Stratagene Holding Corporation, BioCrest Manufacturing, L.P., or BioCrest Sales,
L.P., or any other entity affiliated therewith.
IN WITNESS WHEREOF, this Agreement has been executed and
delivered by the parties hereto as of the date first above written.
STRATAGENE HOLDING CORPORATION
/s/ XXXX X. XXXX
----------------------------
XXXX X. XXXX
By: /s/ XXXXXX X. XXXXX
--------------------------
Name: Xxxxxx X. Xxxxx
Title: CEO
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EXHIBIT A
DUTIES AND RESPONSIBILITIES OF EXECUTIVE
1. Manage the North American sales force
- develop sales organization structure
- recruit and develop sales employees
- coordinate training programs
- define sales territories size and make-up
- implement time and territory management process
- set territory and region sales and profit goals
- construct compensation plans for sales positions
- establish performance criteria for sales employees
2. Develop and execute sales plan
- prepare sales forecasts
- develop strategic sales plan
- facilitate target account program
- manage sales profitability
- work with key customers
- coordinate contracting processes
- establish pricing policies
3. Coordinate with Marketing personnel
- standardize and synchronize marketing and sales
promotions
- monitor effectiveness of promotional activity
- supervise tele-marketing and telesales efforts
- develop field communication tool
- define sales report formats
- review and enhance PC-based sales tools
4. Manage selling expenses
- prepare draft selling expense plan
- forecast sales force additions
- assign expense budgets to sales force
- monitor performance to plan
- remain within approved expense budgets
5. Report to Chairman and Chief Executive Officer
- communicate strategic sales plan
- keep apprised of sales team performance
- review selling expense performance
- present new business opportunities
EXHIBIT B
BONUS FORMULA
FOR PERFORMANCE OF UP TO 15% GROWTH:
Bonus = [(30% * Base Salary) * ((YTD Estimated Profit
Growth - 8%)/7%) * (No. of Months/12)] - (Prior
Payments Made YTD).
For purposes of the above formula, capitalized terms shall have the
following meanings:
"Average Selling Price" means the average price at which a Product is
Sold in the Territory during any given period.
"Base Salary" means the base salary payable by Employer to Executive in
any given calendar year.
"Estimated Cost" means the estimated "standard cost" amount associated
with selling a Product in any given period, as determined in the sole discretion
of Employer. Where such estimated "standard cost" amount is not available,
Employer shall use an inflation adjusted figure based on the Estimated Cost of
such Product in the prior comparable period. Once Employer has established an
Estimated Cost for a Product in any given period, Employer shall continue to use
such Estimated Cost for such Product in future calculations with respect to such
period.
"Estimated Product Profit" means the product of (Average Selling Price
of each Product minus Estimated Cost of such Product) multiplied by the number
of units Sold of such Product in the Territory.
"Estimated Profit" means the aggregate of the Estimated Product Profits
for all Products Sold in the Territory during any given period.
"Estimated Profit Growth" means, expressed as a percentage, the
Estimated Profit for any given period divided by the Estimated Profit for the
prior comparable period minus 100%.
"No. of Months" means the number of months since the beginning of any
given calendar year.
"Prior Payments Made YTD" means any bonus payments made to Executive
since the beginning of any given calendar year.
"Products" mean the products that Employer has asked Executive to be
responsible for which are Sold directly to end-users by Employer (not through a
distributor) in the Territory.
"Sold" with respect to any Product means the completion of a sale for
which Employer has received payment net of any shipping and handling charges,
rebates, returns, credits, discounts or refunds.
"Territory" means worldwide.
"YTD" means the "year to date" (i.e., since the beginning of any given
calendar year).
In no event shall the Bonus be less than zero, nor shall the Bonus for
any given calendar year exceed Executive's Base Salary paid in such calendar
year. Bonus payments, if any, shall be calculated and paid to Executive within
sixty (60) days following the end of each calendar quarter.
By way of example:
EXHIBIT B
If Employer had two Products, Product A with an Estimated Cost of
$10/unit and Product B with an Estimated Cost of $20/unit, and if the Average
Selling Price of Product A was $20/unit and the Average Selling Price of Product
B was $30/unit and Employer Sold 50,000 units of each product in the first
quarter of a given calendar year, then Estimated Product Profit for Product A
would be $500,000 and Estimated Product Profit for Product B would also be
$500,000 and total Estimated Profit would be $1,000,000. If Estimated Profits in
the same quarter in the prior calendar year were $800,000, the final bonus
calculation for the first quarter of the given calendar year would be as
follows:
$1,000,000
Estimated Profit Growth = ---------- - 100% = 25%
$800,000
Bonus = 30% * $180,835 * 25%-8% * 3 - 0 = $30,375.
------ --
7% 12
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EXHIBIT C
[INTENTIONALLY OMITTED]
EXHIBIT D
DEFERRED COMPENSATION AGREEMENT
THIS AGREEMENT, effective as of September 1, 2002, is made by
and between Stratagene Holding Corporation, a Delaware corporation, hereinafter
referred to as the "COMPANY," and Xxxx Xxxx, an employee of the Company,
hereinafter referred to as "EMPLOYEE."
WHEREAS, the Company and Employee are parties to that certain
Employment Agreement, dated as of September 1, 2002 (the "EMPLOYMENT
AGREEMENT");
WHEREAS, the Company and Employee have agreed to modify the
Employment Agreement to their mutual satisfaction; and
WHEREAS, in consideration of the amendment of the Employment
Agreement and the continued employment of Employee with the Company, the Company
and Employee wish to enter into this Deferred Compensation Agreement (the
"AGREEMENT").
NOW, THEREFORE, in consideration of the mutual covenants
herein contained and other good and valuable consideration, the parties hereto
do hereby agree as follows:
1. Effective Date. This Agreement shall be effective as of the
date indicated above (the "EFFECTIVE DATE").
2. Deferred Compensation. Effective as of the Effective Date, the
Company shall credit to an account maintained for Employee (the "ACCOUNT") an
amount equal to $268,200.00 (the "PRINCIPAL AMOUNT"). The Account shall be
credited with interest credits on the Principal Amount at a simple interest rate
of 6.25% per annum for the period commencing on the Effective Date and ending on
June 30, 2004 (the "DISTRIBUTION DATE").
3. Distribution. The Principal Amount credited to the Account
shall be paid to Employee (or in the event of Employee's death, to Employee's
estate) in the form of a one-time lump-sum payment payable on the Distribution
Date, or as soon thereafter as administratively feasible. Interest credits on
the Principal Amount shall be paid to Employee (or in the event of Employee's
death, to Employee's estate) on (i) the first anniversary of the Effective Date
(or as soon thereafter as administratively feasible), (ii) the second
anniversary of the Effective Date (or as soon thereafter as administratively
feasible) and (iii) the Distribution Date (or as soon thereafter as
administratively feasible).
4. No Right to Continued Employment; Termination of Employment.
Nothing contained herein shall be construed to give Employee the right to be
retained in the service of the Company. This Agreement shall remain binding upon
and inure to the benefit of the parties in the event of the termination of
Employee's employment with the Company. In the event of Employee's termination
from employment prior to payment of benefits hereunder, payment shall be made by
the Company pursuant to Section 3 hereunder at the last known mailing address of
Employee on file with the Company or at such other place as Employee designates
in writing for such purpose from time to time.
5. Release. The Company previously granted to Employee a
Non-Qualified Option (as defined in the Stock Option Plan of Stratagene Holding
Corporation) (the "OPTION") to purchase 52,500 shares (as adjusted for a 4:1
stock split of the Company's common stock effected in March 2000) of the
Company's Class B non-voting Common Stock, as evidenced by the "STOCK OPTION
AGREEMENT" dated as
EXHIBIT D
of July 1, 1996 and attached hereto as Exhibit 1. Employee acknowledges that the
Option has expired by its terms and that the obligations of the Company
thereunder terminated upon the expiration of the Option. Employee waives any and
all rights, claims, benefits and awards under the Stock Option Agreement and
releases the Company from liability for any and all rights, claims, benefits or
awards due Employee thereunder.
6. Severability. If it is determined that any of the provisions
of this Agreement are invalid or unenforceable, the remainder of the provisions
of this Agreement shall not thereby be affected and shall be given full effect,
without regard to the invalid portions.
7. Arbitration. Any controversy or claim arising out of or
relating to this Agreement or the breach of this Agreement that is not resolved
by Employee and the Company shall be submitted to arbitration in San Diego
County, California, in accordance with California law (without regard to
principles of choice of law) and the procedures of the American Arbitration
Association. The determination of the arbitrators shall be conclusive and
binding on the Company and Employee and judgment may be entered on the
arbitrators' award in any court having jurisdiction. Each party shall be
responsible for its own legal fees and expenses incurred as a result of such
arbitration.
8. Unfunded Obligations of the Company. The obligations of the
Company under this Agreement shall be unfunded and unsecured, and nothing
contained herein shall be construed as providing for assets to be held in trust
or escrow or any other form of segregation of the assets of the Company for the
benefit of Employee. The interest of Employee shall be limited to the right to
receive the benefits as set forth herein. Employee's rights hereunder shall be
no greater than the right of an unsecured general creditor of the Company, and,
except to the extent prohibited by applicable law, Employee's rights shall be
wholly subordinate and junior in right of payment to any and all Senior
Indebtedness of the Company, whether outstanding as of the date hereof or
incurred after such date. For purposes of the foregoing, "SENIOR INDEBTEDNESS"
shall mean the principal of, premium, if any, and accrued interest on any
indebtedness of the Company and all fees, expenses, reimbursements, indemnities
and other amounts payable with respect to such indebtedness, whether such
indebtedness is outstanding on the date hereof or thereafter created, incurred,
assumed or guaranteed by the Company unless, in the case of any particular
indebtedness, (a) the instrument creating or evidencing the same or the
assumption or guarantee thereof expressly provides that such indebtedness shall
not be senior, or (b) such indebtedness is pari passu or subordinate, in right
of payment to the obligations of the Company under this Agreement.
9. Assignments, etc. Prohibited. This Agreement, and Employee's
rights and obligations hereunder, may not be assigned by Employee, and any
purported assignment by Employee in violation hereof shall be null and void. In
the event of any sale, transfer or other disposition of all or substantially all
of the Company's assets or business, whether by merger, consolidation or
otherwise, the Company will require any successor or assignee (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, by agreement in
form and substance satisfactory to Employee, expressly, absolutely and
unconditionally 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 or assignment had taken place.
10. Entire Agreement. This Agreement contains the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior agreements, written or oral, with respect thereto.
EXHIBIT D
11. Waivers and Amendments. This Agreement may be amended,
superseded, canceled, renewed or extended, and the terms hereof may be waived,
only by a written instrument signed by each of the parties hereto or, in the
case of a waiver, by the party waiving compliance. No delay on the part of any
party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any waiver on the part of any party of any such right,
power or privilege nor any single or partial exercise of any such right, power
or privilege, preclude any other or further exercise thereof or the exercise of
any other such right, power or privilege. All remedies, rights, undertakings,
obligations and agreements contained in this Agreement shall be cumulative, and
none of them shall be in limitation of any other remedy, right, undertaking,
obligation or agreement of either party.
12. Governing Law. This Agreement shall be governed by and
construed in accordance with California law without regard to principles of
choice of law. The parties hereto hereby expressly consent to be subject to the
jurisdiction of the courts of the State of California and to arbitration in the
County of San Diego, State of California.
13. Withholding. The Company shall be entitled to withhold from
any payments or deemed payments any amount of tax withholding it determines to
be required by law.
14. Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the parties and their respective successors, permitted
assigns, heirs, executors or legal representatives.
15. Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original but all such counterparts together shall constitute one and
the same instrument. Each counterpart may consist of two copies hereof each
signed by one of the parties hereto.
16. Headings. The headings in this Agreement are for reference
only and shall not affect the interpretation of this Agreement.
EXHIBIT D
IN WITNESS WHEREOF, the parties hereto have signed their names as of the day and
year first above written.
STRATAGENE HOLDING CORPORATION
By: _______________________
Name: _______________________
Title: _______________________
EMPLOYEE
By: _______________________
Name: Xxxx Xxxx
EXHIBIT E-1
[INTENTIONALLY OMITTED]
EXHIBIT E-2
[INTENTIONALLY OMITTED]
EXHIBIT E-3
[INTENTIONALLY OMITTED]
EXHIBIT E-4
[INTENTIONALLY OMITTED]
