Exhibit 10.15
FORM OF
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement"), dated as of March 10, 2000 is
between Luminex Corporation, a Delaware corporation, and [Exhibit A]
("Executive").
R E C I T A L S
A. Executive has been employed by Employer, and Employer and Executive
desire to enter into a written agreement to specify the terms and conditions of
Executive's continued employment with Employer.
B. Employer considers the maintenance of a sound management team,
including Executive, essential to protecting and enhancing its best interests
and those of its stockholders.
C. Employer recognizes that the possibility of a change in control of
Employer may result in the departure or distraction of management to the
detriment of Employer and its stockholders.
D. Executive is an executive officer of Employer and an integral member of
its management team.
E. Employer has determined that appropriate steps should be taken to
reinforce and encourage the continued attention and dedication of selected
members of Employer's management team to their assigned duties without the
distraction arising from the possibility of a change in control of Employer.
In consideration of Executive's past and future employment with Employer
and other good and valuable consideration the parties agree as follows:
SECTION 1. Employment. Employer hereby employs Executive, and Executive
hereby accepts employment, upon the terms and subject to the conditions
hereinafter set forth.
SECTION 2. Duties. Executive shall be employed as [Exhibit A] of the
Company, or such other position of comparable or greater responsibilities and
that are within Executive's area of expertise to which he may be appointed by
the Board of Directors. Executive agrees to devote his full time and best
efforts to the performance of the duties attendant to his executive position
with Employer.
SECTION 3. Term. The term of employment of Executive hereunder shall
commence on the date of [Exhibit A] (the "Commencement Date") and continue until
March 9, 2003 unless earlier terminated pursuant to Section 6 or Section 10;
provided, however, that commencing on March 9, 2002 the term shall automatically
be extended on each day from that date for an additional year.
SECTION 4. Compensation and Benefits. In consideration for the services
of Executive hereunder, Employer shall compensate Executive as follows:
(a) Base Salary. Until the termination of Executive's employment
hereunder, Employer shall pay Executive a base salary at an annual rate of not
less than $[Exhibit A] (as may be increased from time to time, the "Base
Salary") payable in accordance with the then current payroll policies of
Employer. Any increase in the Base Salary shall be in the sole discretion of the
Board of Directors of the Company or the appropriate committee thereof.
(b) Management Incentive Bonus. Executive shall be eligible to receive
from Employer such annual management incentive bonuses as may be provided in
management incentive bonus plans adopted from time to time by Employer.
(c) Vacation. Executive shall be entitled to three weeks of paid vacation
per year at the reasonable and mutual convenience of Employer and Executive.
Unless otherwise approved by the Board of Directors of the Company or the
appropriate committee thereof, accrued vacation not taken in any applicable
period shall not be carried forward or used in any subsequent period.
(d) Group Benefits. Executive shall be entitled to participate in all
group benefit plans of Employer in accordance with Employer's regular practices
for its employees. Employer shall provide accident, health, dental, disability
and life insurance for Executive under the group accident, health, dental,
disability and life insurance plans maintained by Employer for its full-time,
salaried employees.
SECTION 5. Expenses. Executive shall be entitled to reimbursement from
Employer for reasonable out-of-pocket expenditures incurred by Executive in the
course of performing Executive's duties hereunder.
SECTION 6. Termination.
(a) General. Executive's employment hereunder shall commence on the
Commencement Date and continue until the end of the term specified in Section 3,
except that the employment of Executive hereunder shall terminate prior to such
time in accordance with the following:
(i) Death or Disability. Upon the death of Executive during the term
of his employment hereunder or, at the option of Employer, in the event of
Executive's Disability, upon 30 days' notice to Executive.
(ii) For Cause. For "Cause" immediately upon written notice by
Employer to Executive. A termination shall be for Cause if:
(1) Executive commits a criminal act involving moral turpitude;
or
(2) Executive commits a material breach of any of the covenants,
terms and provisions hereof or fails to obey lawful and proper written
directions delivered to Executive by Employer's Chairman of the Board,
President, Chief Executive Officer or its Board of Directors.
(iii) Without Cause. Without Cause upon notice by Employer to
Executive. Without limiting the foregoing, the termination of Executive's
employment hereunder upon the expiration of the term of his employment
specified in Section 3 shall be treated as a termination by Employer
without Cause pursuant to this Section 6(a)(iii).
(b) Severance Pay and Bonuses.
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(i) Termination Upon Death or Disability. Executive shall not be
entitled to any Separation Payments or any other severance pay or other
compensation upon termination of his employment hereunder pursuant to
Section 6(a)(i) except for the following (which shall be paid promptly
after termination, except as specified in subsection (4) below):
(1) his Base Salary accrued but unpaid as of the date of
termination;
(2) unpaid expense reimbursements under Section 5 for expenses
incurred in accordance with the terms hereof prior to termination;
(3) compensation for accrued, unused vacation as of the date of
termination, determined in accordance with Employer's policies and
procedures then in effect; and
(4) any bonus to which Executive would have been entitled for the
Bonus Period if he were still employed hereunder on the last day of
the Bonus Period. Any such bonus shall be paid to Executive at the
same time bonuses are paid in respect of the Bonus Period to other
employees of Employer entitled to receive bonuses for the Bonus
Period. In the event the determination of Executive's bonus in
respect of the Bonus Period involves any subjective assessment, such
assessment shall be made in a manner most favorable to Executive. For
purposes of this Agreement, the term "Bonus Period" means the full
fiscal year or other applicable bonus period during which Executive's
employment hereunder was terminated (or during which Executive became
Disabled, in the event of a termination for Disability).
(ii) Termination Without Cause. In the event Executive's employment
hereunder is terminated pursuant to Section 6(a)(iii), Employer shall
promptly pay Executive an amount equal to one year's Base Salary at the
then current rate plus the amount of the most recent annual cash bonus
amount in a single lump sum payment as Executive's sole remedy in
connection with such termination. Employer shall also promptly pay
Executive the following:
(1) his Base Salary accrued but unpaid as of the date of
termination;
(2) unpaid expense reimbursements under Section 5 for expenses
incurred in accordance with the terms hereof prior to termination; and
(3) compensation for accrued, unused vacation as of the date of
termination, determined in accordance with Employer's policies and
procedures then in effect.
The payments described in this Section 3(b)(ii) are referred to herein
collectively as the "Separation Payments." This Section 6(b)(ii) is
subject to the provisions of Section 10(j) dealing with the coordination of
payments in the event of a Change in Control.
(iii) Termination For Cause; Voluntary Termination. Executive shall
not be entitled to any Separation Payments or any other severance pay or
other compensation upon termination of his employment hereunder pursuant to
Section 6(a)(ii), or upon Executive's voluntary termination of his
employment hereunder, except for the following (which shall be paid
promptly after termination):
(1) his Base Salary accrued but unpaid as of the date of
termination;
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(2) unpaid expense reimbursements under Section 5 for expenses
incurred in accordance with the terms hereof prior to termination; and
(3) compensation for accrued, unused vacation as of the date of
termination, determined in accordance with Employer's policies and
procedures then in effect.
(c) Transfers of Employment. Executive's employment hereunder shall
continue until the earlier of the following:
(i) Executive's employment with all Employers terminates; or
(ii) the last Employer (other than the Company) by which Executive is
employed under this Agreement ceases to be a subsidiary or affiliate of the
Company. For purposes of Section 6(b)(ii), the termination of Executive's
employment hereunder pursuant to this Section 6(c)(ii) shall be treated as
a termination by Employer without Cause pursuant to Section 6(a)(iii).
SECTION 7. Inventions; Assignment.
(a) Inventions Defined. All rights to discoveries, inventions,
improvements, designs, work product and innovations (including without
limitation all data and records pertaining thereto) that relate to the business
of Employer, whether or not specifically within Executive's duties or
responsibilities and whether or not patentable, copyrightable or reduced to
writing, that Executive may discover, invent, create or originate during the
term of his employment hereunder or otherwise, and for a period of six months
thereafter, either alone or with others and whether or not during working hours
or by the use of the facilities of Employer ("Inventions"), shall be the
exclusive property of Employer. Executive shall promptly disclose all Inventions
to Employer, shall execute at the request of Employer any assignments or other
documents Employer may deem necessary to protect or perfect its rights therein,
and shall assist Employer, at Employer's expense, in obtaining, defending and
enforcing Employer's rights therein. Executive hereby appoints Employer as his
attorney-in-fact to execute on his behalf any assignments or other documents
deemed necessary by Employer to protect or perfect its rights to any Inventions.
(b) Covenant to Assign and Cooperate. Without limiting the generality of
the foregoing, Executive shall assign and transfer, and does hereby assign and
transfer, to Employer the world-wide right, title and interest of Executive in
the Inventions. Executive agrees that Employer may file copyright registrations
and apply for and receive patents (including without limitation Letters Patent
in the United States) for the Inventions in Employer's name in such countries as
may be determined solely by Employer. Executive shall communicate to Employer
all facts known to Executive relating to the Inventions and shall cooperate with
Employer's reasonable requests in connection with vesting title to the
Inventions and related copyrights and patents exclusively in Employer and in
connection with obtaining, maintaining, protecting and enforcing Employer's
exclusive copyrights and patent rights in the Inventions.
(c) Successors and Assigns. Executive's obligations under this Section 7
shall inure to the benefit of Employer and its successors and assigns and shall
survive the expiration of the term of this Agreement for such time as may be
necessary to protect the proprietary rights of Employer in the Inventions.
(d) Consideration and Expenses . Executive shall perform his
obligations under this Section 7 at Employer's expense, but without any
additional or special compensation therefor.
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SECTION 8. Confidential Information.
(a) Acknowledgment of Proprietary Interest. Executive acknowledges that
all Confidential Information is a valuable, special and unique asset of
Employer's business, access to and knowledge of which are essential to the
performance of Executive's duties hereunder. Executive acknowledges the
proprietary interest of Employer in all Confidential Information. Executive
agrees that all Confidential Information learned by Executive during his
employment with Employer or otherwise, whether developed by Executive alone or
in conjunction with others or otherwise, is and shall remain the exclusive
property of Employer. Executive further acknowledges and agrees that his
disclosure of any Confidential Information will result in irreparable injury and
damage to Employer.
(b) Confidential Information Defined. "Confidential Information" means
all confidential and proprietary information of Employer, written, oral or
computerized, as it may exist from time to time, including without limitation
(i) information derived from reports, investigations, experiments, research and
work in progress, (ii) methods of operation, (iii) market data, (iv) proprietary
computer programs and codes, (v) drawings, designs, plans and proposals, (vi)
marketing and sales programs, (vii) client and supplier lists and any other
information about Employer's relationships with others, (viii) historical
financial information and financial projections, (ix) network and system
architecture, (x) all other concepts, ideas, materials and information prepared
or performed for or by Employer and (xi) all information related to the business
plan, business, products, purchases or sales of Employer or any of its suppliers
and customers, other than information that is publicly available.
(c) Covenant Not To Divulge Confidential Information. Employer is
entitled to prevent the disclosure of Confidential Information. As a portion of
the consideration for the employment of Executive and for the compensation being
paid to Executive by Employer, Executive agrees at all times during the term of
his employment hereunder and thereafter to hold in strict confidence and not to
disclose or allow to be disclosed to any person, firm or corporation, other than
to persons engaged by Employer to further the business of Employer, and not to
use except in the pursuit of the business of Employer, the Confidential
Information, without the prior written consent of Employer. This Section 8 shall
survive and continue in full force and effect in accordance with its terms
after, and will not be deemed to be terminated by, any termination of this
Agreement or of Executive's employment with Employer for any reason.
(d) Return of Materials at Termination. In the event of any termination
or cessation of his employment with Employer for any reason, Executive shall
promptly deliver to Employer all property of Employer, including without
limitation all documents, data and other information containing, derived from or
otherwise pertaining to Confidential Information. Executive shall not take or
retain any property of Employer, including without limitation any documents,
data or other information, or any reproduction or excerpt thereof, containing,
derived from or pertaining to any Confidential Information. The obligation of
confidentiality set forth in this Section 8 shall continue notwithstanding
Executive's delivery of such documents, data and information to Employer.
SECTION 9. Noncompetition.
(a) Covenant Not to Compete. Executive acknowledges that during the term
of his employment Employer has agreed to provide to him, and he shall receive
from Employer, special training and knowledge, including without limitation the
Confidential Information. Executive acknowledges that the Confidential
Information is valuable to Employer and, therefore, its protection and
maintenance constitutes a legitimate
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interest to be protected by Employer by the enforcement of the covenant not to
compete contained in this Section 9. Executive also acknowledges that such
covenant not to compete is ancillary to other enforceable agreements of the
parties, including without limitation the agreements regarding Confidential
Information in Section 8 and the agreements regarding the payment of the
Separation Payments and other severance pay and of the Termination Payment in
Section 6 and Section 10, respectively. Therefore, following the termination of
Employee's employment hereunder, Executive shall not directly or indirectly:
(i) for a period of one year following the date of the termination
(unless extended pursuant to the terms of this Section 9) engage, alone or
as a shareholder, partner, member, manager, director, officer, employee of
or consultant to, any entity other than Employer that is in existence on
the date of the termination and is at that time engaged directly, or
indirectly through any subsidiary, division or other business unit
(individually, an "Entity") that engages, anywhere in North America or in
any other geographic area in or with respect to which Executive has any
duties or responsibilities during the term of his employment with Employer,
in any business activities that were conducted by Employer prior to the
date of such termination (the "Designated Industry"); or
(ii) for a period of one year following the date of the termination
(unless extended pursuant to the terms of this Section 9) solicit or
encourage any director, officer, employee of or consultant to Employer to
end his relationship with Employer and commence any such relationship with
any competitor of Employer in the Designated Industry.
(b) Exclusion. Notwithstanding the provisions of this Section 9, Employee's
noncompetition obligations hereunder shall not preclude Employee from owning
less than one percent of the voting power or economic interest in any publicly
traded corporation conducting business activities in the Designated Industry.
(c) No Offset. The representations and covenants contained in this Section
9 on the part of Executive shall be construed as ancillary to and independent of
any other provision of this Agreement, and the existence of any claim (monetary
or otherwise) or cause of action of Executive against Employer or any officer,
director or shareholder of Employer, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by Employer of the
covenants of Executive contained in this Section 9.
(d) Extension and Survival. If Executive violates any covenant contained
in this Section 9, Employer shall not, as a result of such violation or the time
involved in obtaining legal or equitable relief
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therefor, be deprived of the benefit of the full period of any such covenant.
Accordingly, the covenants of Executive contained in this Section 9 shall be
deemed to have durations as specified in Section 9(a), which periods shall be
extended by a number of days equal to the sum of (i) the total number of days
Executive is in violation of any of the covenants contained in this Section 9
prior to the commencement of any litigation relating thereto and (ii) the total
number of days the parties are involved in such litigation, through the date of
entry by a court of competent jurisdiction of a final judgment enforcing the
covenants of Executive in this Section 9. This Section 9 shall survive and
continue in full force and effect in accordance with its terms after, and will
not be deemed to be terminated by, any termination of this Agreement.
(e) Severability. If at any time the provisions of this Section 9 are
determined to be invalid or unenforceable by reason of being vague or
unreasonable as to area, duration or scope of activity, this Section 9 shall be
considered divisible and shall be immediately amended to only such area,
duration or scope of activity as shall be determined to be reasonable and
enforceable by the court or other body having jurisdiction over the matter; and
Executive agrees that this Section 9 as so amended shall be valid and binding as
though any invalid or unenforceable provision had not been included herein.
SECTION 10. Termination of Employment in Connection With a Change In
Control.
(a) Applicability. The provisions of this Section 10 shall apply in lieu
of all conflicting provisions in this Agreement in the event Executive's
employment with Employer is terminated in a Triggering Termination. Each of the
following events constitutes a "Triggering Termination" when Executive's
employment with Employer is:
(i) actually terminated by Employer during an Applicable Period for
any reason other than for Good Reason;
(ii) Constructively Terminated by Employer during an Applicable
Period;
(iii) terminated by Executive for any reason other than death, or for
no reason, within the 180 day period commencing on the date of the Change
in Control; or
(iv) terminated pursuant to Section 6(c)(ii) during an Applicable
Period.
(b) Termination Payment. Upon the occurrence of a Triggering Termination,
Employer shall pay Executive a lump sum payment in cash (the "Termination
Payment") equal to 2.99 times Executive's average annual base salary plus cash
bonus amount for the most recent five calendar years ending prior to the
occurrence of the Triggering Event. Employer shall pay the Termination Payment
to Executive concurrently with the Triggering Termination or, if the Triggering
Termination occurs before the Change in Control, concurrently with the Change in
Control.
(c) Change in Control. A Change in Control means the occurrence during the
term of this Agreement of any of the following events:
(i) Employer is merged, consolidated or reorganized into or with
another corporation or other legal person, and as a result of such merger,
consolidation or reorganization less than 50% of the combined voting
power of the then-outstanding securities entitled to vote generally in the
election of directors ("Voting Stock") of such corporation or person
immediately after such transaction are held in the aggregate by the holders
of Voting Stock of Employer immediately prior to
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such transaction;
(ii) Employer sells or otherwise transfers all or substantially all of
its assets to another corporation or other legal person, and less than 50%
of the combined voting power of the then-outstanding Voting Stock of such
corporation or person is held in the aggregate by the holders of Voting
Stock of Employer immediately prior to such sale or transfer;
(iii) There is a report filed on Schedule 13D or Schedule 14D-1 (or
any successor schedule, form or report), each as promulgated pursuant to
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
disclosing that any person (as the term "person" is used in Section
13(d)(3) or Section 14(d)(2) of the Exchange Act), other than a Director of
Employer on the date hereof (or any group of such Directors), has become
the beneficial owner (as the term "beneficial owner" is defined under Rule
13d-3 or any successor rule or regulation promulgated under the Exchange
Act) of securities representing 50% or more of the combined voting power of
the then-outstanding Voting Stock of Employer;
(iv) Employer files a report or proxy statement with the Securities
and Exchange Commission pursuant to the Exchange Act disclosing in response
to Form 8-K or Schedule 14A (or any successor schedule, form or report or
item therein) that a change in control of Employer has occurred or will
occur in the future pursuant to any then-existing contract or transaction;
or
(v) If, in connection with a proxy solicitation initiated by a person
or group other than the Board of Directors of Employer, individuals who at
the beginning of such proxy solicitation constitute the Directors of
Employer cease for any reason to constitute at least a majority thereof
within the one year period following the initiation of such proxy
solicitation.
Notwithstanding the foregoing provisions of Sections 10(c)(iii) or
10(c)(iv), unless otherwise determined in a specific case by majority vote of
the Board, a "Change in Control" shall not be deemed to have occurred for
purposes of Section 10(c)(iii) or 10(c)(iv) solely because (A) Employer, (B) an
entity in which Employer directly or indirectly beneficially owns 50% or more of
the outstanding Voting Stock (a "Subsidiary"), or (C) any Employer-sponsored
employee stock ownership plan or any other employee benefit plan of Employer
either files or becomes obligated to file a report or a proxy statement under or
in response to Schedule 13D, Schedule 14D-1, Form 8-K or Schedule 14A (or any
successor schedule, form or report or item therein) under the Exchange Act
disclosing beneficial ownership by it of shares of Voting Stock of Employer,
whether in excess of 50% or otherwise, or because Employer reports that a change
in control of Employer has occurred or will occur in the future by reason of
such beneficial ownership or any increase or decrease thereof.
(d) Gross Up Payment.
(i) Anything in this Agreement to the contrary notwithstanding, in the
event that it shall be determined (as hereafter provided) that all or any
portion of any payment or distribution by Employer or any of its affiliates
to or for the benefit of Executive pursuant to the terms of this Section 10
or otherwise, including under any stock option or other agreement, plan,
policy, program or arrangement (a "Payment"), would be subject to the
excise tax imposed by Section 4999 of the
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Code (or any successor provision thereto), by reason of being considered
"contingent on a change in ownership or control" of Employer, within the
meaning of Section 280G of the Code (or any successor provision thereto),
or to any similar tax imposed by state or local law, or any interest or
penalties with respect to such tax (such tax or taxes, together with any
such interest and penalties, being hereafter collectively referred to as
the "Excise Tax"), then Executive shall be entitled to receive an
additional payment or payments (collectively, a "Gross-Up Payment");
provided, however, that no Gross-Up Payment shall be made with respect to
the Excise Tax, if any, attributable to (i) any incentive stock option, as
defined by Section 422 of the Code ("ISO") granted prior to the execution
of this Agreement, or (ii) any stock appreciation or similar right, whether
or not limited, granted in tandem with an ISO described in clause (i). The
Gross-Up Payment shall be in an amount such that, after payment by
Executive of all taxes (including any interest or penalties imposed with
respect to such taxes), including any Excise Tax imposed upon the Gross-Up
Payment, the Executive retains an amount of the Gross-Up Payment equal to
the Excise Tax imposed upon the Payment.
(ii) Subject to the provisions of Section 10(d)(vi), all
determinations required to be made under this Section 10(d), including
whether an Excise Tax is payable by Executive and the amount of such Excise
Tax and whether a Gross-Up Payment is required to be paid by Employer to
Executive and the amount of such Gross-Up Payment, if any, shall be made by
a nationally recognized accounting firm (the "Accounting Firm") selected by
Executive in his sole discretion. Executive shall direct the Accounting
Firm to submit its determination and detailed supporting calculations to
both Employer and Executive within 30 calendar days after the Termination
Date, if applicable, and any such other time or times as may be requested
by Employer or Executive. If the Accounting Firm determines that any
Excise Tax is payable by Executive, Employer shall pay the required Gross-
Up Payment to Executive within five business days after receipt of such
determination and calculations with respect to any Gross-Up Payment to
Executive. If the Accounting Firm determines that no Excise Tax is payable
by Executive, it shall, at the same time as it makes such determination,
furnish Employer and Executive a written opinion to the effect that
Executive has substantial authority not to report any Excise Tax on his
federal, state or local income or other tax return. As a result of the
uncertainty in the application of Section 4999 of the Code (or any
successor provision thereto) and the possibility of similar uncertainty
regarding applicable state or local tax law at the time of any
determination by the Accounting Firm hereunder, it is possible that Gross-
Up Payments which will not have been made by Employer should have been made
(an "Underpayment"), consistent with the calculations required to be made
hereunder. In the event that the Company exhausts or fails to pursue its
remedies pursuant to Section 10(d)(vi) and Executive thereafter is required
to make a payment of any Excise Tax, Executive shall direct the Accounting
Firm to determine the amount of the Underpayment that has occurred and to
submit its determination and detailed supporting calculations to both
Employer and Executive as promptly as possible. Any such Underpayment
shall be promptly paid by Employer to, or for the benefit of, Executive
within five business days after receipt of such determination and
calculations.
(iii) Employer and Executive shall each provide the Accounting Firm
access to and copies of any books, records and documents in the possession
of Employer or Executive, as the case may be, reasonably requested by the
Accounting Firm, and otherwise cooperate with the Accounting Firm in
connection with the preparation and issuance of the determinations and
calculations contemplated by this Section 10(d). Any determination by the
Accounting Firm as to the amount of any Gross-Up Payment or Underpayment
shall be binding upon Employer and Executive.
(iv) The federal, state and local income or other tax returns filed by
Executive shall be
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prepared and filed on a consistent basis with the determination of the
Accounting Firm with respect to the Excise Tax payable by Executive.
Executive shall make proper payment of the amount of any Excise Tax, and at
the request of Employer, provide to Employer true and correct copies (with
any amendments) of his federal income tax return as filed with the Internal
Revenue Service and corresponding state and local tax returns, if relevant,
as filed with the applicable taxing authority, and such other documents
reasonably requested by Employer, evidencing such payment. If prior to the
filing of Executive's federal income tax return, or corresponding state or
local tax return, if relevant, the Accounting Firm determines that the
amount of the Gross-Up Payment should be reduced, Executive shall within
five business days pay to Employer the amount of such reduction.
(v) The fees and expenses of the Accounting Firm for its services in
connection with the determinations and calculations contemplated by this
Section 10(d) shall be borne by Employer. If such fees and expenses are
initially paid by Executive, Employer shall reimburse Executive the full
amount of such fees and expenses within five business days after receipt
from Executive of a statement therefor and reasonable evidence of his
payment thereof.
(vi) Executive shall notify Employer in writing of any claim by the
Internal Revenue Service or any other taxing authority that, if successful,
would require the payment by Employer of a Gross-Up Payment. Such
notification shall be given as promptly as practicable but no later than 10
business days after Executive actually receives notice of such claim and
Executive shall further apprize Employer of the nature of such claim and
the date on which such claim is requested to be paid (in each case, to the
extent known by Executive). Executive shall not pay such claim prior to
the earlier of (A) the expiration of the 30-calendar-day period following
the date on which he gives such notice to Employer and (B) the date that
any payment of amount with respect to such claim is due. If Employer
notifies Executive in writing prior to the expiration of such period that
it desires to contest such claim, Executive, subject to the provisions of
Section 10(d) of this Agreement, shall:
(1) provide Employer with any written records or documents in his
possession relating to such claim reasonably requested by Employer;
(2) take such action in connection with contesting such claim as
Employer shall reasonably request in writing from time to time,
including without limitation accepting legal representation with
respect to such claim by an attorney competent in respect of the
subject matter and reasonably selected by Employer;
(3) cooperate with Employer in good faith in order effectively to
contest such claim; and
(4) permit Employer to participate in any proceedings relating to
such claim;
provided, however, that Employer shall bear and pay directly all costs
and expenses (including interest and penalties) incurred in connection
with such contest and shall indemnify and hold harmless Executive, on
an after-tax basis, for and against any Excise Tax or income tax,
including interest and penalties with respect thereto, imposed as a
result of such representation and payment of costs and expenses.
Without limiting the foregoing provisions of this Section 10(d),
Employer shall control all proceedings taken in connection with the
contest of any claim contemplated by this Section 10(d) and, at its
sole option, may pursue or forego any and all administrative appeals,
proceedings, hearings and conferences
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with the taxing authority in respect of such claim (provided, however,
that Executive may participate therein at his own cost and expense)
and may, at its option, either direct Executive to pay the tax claimed
and xxx for a refund or contest the claim in any permissible manner,
and Executive agrees to prosecute such contest to a determination
before any administrative tribunal, in a court of initial jurisdiction
and in one or more appellate courts, as Employer shall determine;
provided, however, that if Employer directs Executive to pay the tax
claimed and xxx for a refund, Employer shall advance the amount of
such payment to Executive on an interest-free basis and shall
indemnify and hold Executive harmless, on an after-tax basis, from any
Excise Tax or income or other tax, including interest or penalties
with respect thereto, imposed with respect to such advance; and
provided further, however, that any extension of the statute of
limitations relating to payment of taxes for the taxable year of
Executive with respect to which the contested amount is claimed to be
due is limited solely to such contested amount. Furthermore,
Employer's control of any such contested claim shall be limited to
issues with respect to which a Gross-Up Payment would be payable
hereunder and Executive shall be entitled to settle or contest, as the
case may be, any other issue raised by the Internal Revenue Service or
any other taxing authority.
(vii) If, after the receipt by Executive of an amount advanced by
Employer pursuant to Section 10(d), Executive receives any refund with
respect to such claim, Executive shall (subject to Employer's complying
with the requirements of Section 10(d)) promptly pay to Employer the amount
of such refund (together with any interest paid or credited thereon after
any taxes applicable thereto). If, after the receipt by Executive of an
amount advanced by Employer pursuant to Section 10(d)(vi), a determination
is made that Executive shall not be entitled to any refund with respect to
such claim and Employer does not notify Executive in writing of its intent
to contest such denial or refund prior to the expiration of 30 calendar
days after such determination, then such advance shall be forgiven and
shall not be required to be repaid and the amount of any such advance shall
offset, to the extent thereof, the amount of Gross-Up Payment required to
be paid by Employer to Executive pursuant to this Section 10(d).
(viii) Any information provided by Executive to Employer under this
Section 10(d) shall be treated confidentially by Employer and will not be
provided by Employer to any other person than Employer's professional
advisors without Executive's prior written consent except as required by
law.
(e) Term. Notwithstanding the provisions of Section 3, if a Change in
Control occurs prior to the termination of this Agreement, Sections 10, 11 and
12 shall continue in effect for a period of 24 months after the date of the
Change in Control.
(f) No Duty to Mitigate Damages. Executive's rights and privileges under
this Section 10 shall be considered severance pay in consideration of his past
service and his continued service to Employer from the Commencement Date, and
his entitlement thereto shall neither be governed by any duty to mitigate his
damages by seeking further employment nor offset by any compensation that he may
receive from future employment.
(g) Arbitration. Any controversy or claim arising out of or relating to
this Section 10, or the breach thereof, shall be settled exclusively by
arbitration in Austin, Texas, in accordance with the Commercial Arbitration
Rules of the American Arbitration Association then in effect. Judgment upon the
award rendered by the arbitrator may be entered in, and enforced by, any court
having jurisdiction thereof.
11
(h) No Right To Continued Employment. This Section 10 shall not give
Executive any right of continued employment or any right to compensation or
benefits from Employer except the rights specifically stated herein.
(i) Restricted Stock and Exercise of Stock Options. Executive may hold
options ("Options") issued under the Incentive Plan and such Options shall
become immediately exercisable upon a Change in Control. In addition, Executive
may hold restricted stock ("Restricted Stock") issued under the Incentive Plan,
and all applicable restrictions shall lapse upon a Change in Control. Employer
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 Employer
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. Employer acknowledges that its covenants in the
preceding sentence (the "Covenants") are reasonable and necessary in order to
protect the legitimate interests of Employer in maintaining Executive as one of
its employees and that any violation of the Covenants by Employer would result
in irreparable injuries to Executive, and Employer therefore acknowledges that
in the event of any violation of the Covenants by Employer or its directors,
officers or employees, or any of their respective agents, Executive shall be
entitled to obtain from any court of competent jurisdiction temporary,
preliminary and permanent injunctive relief in order to (i) obtain specific
performance of the Covenants, (ii) obtain specific performance of the exercise
of his Options, delivery of certificates containing no restrictive legends in
respect of his Restricted Stock and the sale or exchange of the Acquired
Securities in the advantageous manner contemplated above or (iii) prevent
violation of the Covenants; provided nothing in this Agreement shall be deemed
to prejudice Executive's rights to damages for violation of the Covenants.
(j) Coordination With Other Payments.
(i) After the termination of Executive's employment hereunder:
(1) if Executive is entitled to receive Separation Payments; and
(2) Executive subsequently becomes entitled to receive a
Termination Payment, Gross Up Payment or both, then,
(ii) prior to the disbursement of the Termination Payment and Gross Up
Payment:
(1) the payment date of all unpaid Separation Payments shall be
accelerated to the payment date of the Termination Payment and such
Separation Payments shall be made (in this event, Employer waives any
requirement that Executive reduce the Separation Payments by the
amount of any income earned by Executive thereafter); and
(2) the Termination Payment shall be reduced by the amount of the
Separation Payments so accelerated and made.
12
(k) Outplacement Services. If Executive becomes entitled to receive a
Termination Payment under this Section 10, Employer agrees to reimburse
Executive for the amount of any outplacement consulting fees and expenses
incurred by Executive during any Applicable Period and during the two-year
period following the Change In Control; provided that the aggregate amount
reimbursed by Employer shall not exceed 15% of the amount determined pursuant to
Section 10(b)(i)(1). In addition and as to each reimbursement payment, to the
extent that any reimbursement under this Section 10(k) is subject to federal,
state or local income taxes, Employer shall pay Executive an additional amount
such that the net amount retained by Executive, after deduction of any federal,
state and local income tax on the reimbursement and such additional amount,
shall be equal to the reimbursement payment. All amounts under this Section
10(k) shall be paid by Employer within 15 days after Executive's presentation to
Employer of any statements of such amounts and thereafter shall bear interest at
the rate of 18% per annum or, if different, the maximum rate allowed by law
until paid by Employer, and all accrued and unpaid interest shall bear interest
at the same rate, all of which interest shall be compounded daily.
SECTION 11. General.
(a) Notices. All notices and other communications hereunder shall be in
writing or by written telecommunication, and shall be deemed to have been duly
given if delivered personally or if mailed by certified mail, return receipt
requested or by written telecommunication, to the relevant address set forth
below, or to such other address as the recipient of such notice or communication
shall have specified to the other party in accordance with this Section 11(a):
If to Employer, to: with a copy to:
Luminex Corporation Xxxxxxxx & Xxxxxx L.L.P.
00000 Xxxxxxxxxx Xxxx. 00 Xxx Xxxxxxx Xxxx., Xxxxx 0000
Xxxxxx, Xxxxx 00000 Xxxxxx, Xxxxx 00000
Attention: General Counsel Attention: Xxxxx Xxxxx
Facsimile Number: (000) 000-0000 Facsimile Number (000) 000-0000
If to Executive, to:
00000 Xxxxxxxxxx Xxxx.
Xxxxxx, Xxxxx 00000
(b) Withholding; No Offset. All payments required to be made to Executive
by Employer under this Agreement shall be subject to the withholding of such
amounts, if any, relating to federal, state and local taxes as may be required
by law. No payments under Section 10 shall be subject to offset or reduction
attributable to any amount Executive may owe to Employer or any other person.
(c) Legal and Accounting Costs. Employer shall pay all attorneys' and
accountants' fees and costs incurred by Executive as a result of any breach by
Employer of its obligations under this Agreement, including without limitation
all such costs incurred in contesting or disputing any determination made by
Employer under Section 10 or in connection with any tax audit or proceeding to
the extent attributable to the application of Section 4999 of the Code to any
payment under Section 10. Reimbursements of such costs shall be made by
Employer within 15 days after Executive's presentation to Employer of any
statements of such costs and thereafter shall bear interest at the rate of 18%
per annum or, if different, the maximum rate allowed by law until paid by
Employer, and all accrued and unpaid interest shall bear interest at the same
rate,
13
all of which interest shall be compounded daily.
(d) Equitable Remedies. Each of the parties hereto acknowledges and agrees
that upon any breach by Executive of his obligations under any of Sections 7, 8
and 9, Employer shall have no adequate remedy at law and accordingly shall be
entitled to specific performance and other appropriate injunctive and equitable
relief.
(e) Severability. If any provision of this Agreement is held to be
illegal, invalid or unenforceable, 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 or by its severance
herefrom. Furthermore, in lieu of such illegal, invalid or unenforceable
provision, 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.
(f) Waivers. No delay or omission by either party in exercising any right,
power or privilege hereunder shall impair such right, power or privilege, nor
shall any single or partial exercise of any such right, power or privilege
preclude any further exercise thereof or the exercise of any other right, power
or privilege.
(g) Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, and all of which together shall
constitute one and the same instrument.
(h) Captions. The captions in this Agreement are for convenience of
reference only and shall not limit or otherwise affect any of the terms or
provisions hereof.
(i) Reference to Agreement. Use of the words "herein," "hereof," "hereto,"
"hereunder" and the like in this Agreement refer to this Agreement only as a
whole and not to any particular section or subsection of this Agreement, unless
otherwise noted.
(j) Binding Agreement. This Agreement shall be binding upon and inure to
the benefit of the parties and shall be enforceable by the personal
representatives and heirs of Executive and the successors and assigns of
Employer. This Agreement may be assigned by the Company or any Employer to any
Employer; provided that in the event of any such assignment, the Company shall
remain liable for all of its obligations hereunder and shall be liable for all
obligations of all such assignees hereunder. If Executive dies while any
amounts would still be payable to him hereunder, such amounts shall be paid to
Executive's estate. This Agreement is not otherwise assignable by Executive.
(k) Entire Agreement; Effect on Prior Agreement. This Agreement contains
the entire understanding of the parties, supersedes all prior agreements and
understandings relating to the subject matter hereof (including without
limitation the Prior Agreement, which is hereby terminated) and may not be
amended except by a written instrument hereafter signed by each of the parties
hereto. Executive and the Company hereby agree that, if any other employment
agreement between Executive and the Company (or any other Employer) is in
existence on the Commencement Date, then this Agreement shall supersede such
other employment agreement in its entirety, and such other employment agreement
shall no longer be of any force and effect after the date hereof.
(l) Governing Law. This Agreement and the performance hereof shall be
construed and governed in accordance with the laws of the State of Texas,
without regard to its choice of law principles.
14
(m) Gender and Number. The masculine gender shall be deemed to denote the
feminine or neuter genders, the singular to denote the plural, and the plural to
denote the singular, where the context so permits.
(n) Assistance in Litigation. During the term of this Agreement and for a
period of two years thereafter, Executive shall, upon reasonable notice, furnish
such information and proper assistance to Employer as may reasonably be required
by Employer in connection with any litigation in which Employer is, or may
become, a party and with respect to which Executive's particular knowledge or
experience would be useful. Employer shall reimburse Executive for all
reasonable out-of-pocket expenses incurred by Executive in rendering such
assistance. The provisions of this Section 11(n) shall continue in effect
notwithstanding termination of Executive's employment hereunder for any reason.
SECTION 12. Definitions. As used in this Agreement, the following terms
will have the following meanings:
(a) Accounting Firm has the meaning ascribed to it in Section 10(d)(ii).
(b) Acquired Securities has the meaning ascribed to it in Section 10(i).
(c) Agreement has the meaning ascribed to it in the heading of this
document.
(d) Applicable Period means, with respect to any Change In Control, the
period of 27 months commencing 3 months before the Change In Control and ending
24 months after the Change In Control.
(e) Base Salary has the meaning ascribed to it in Section 4(a).
(f) Cause has the meaning ascribed to it in Section 6(a)(ii).
(g) Change In Control has the meaning ascribed to it in Section 10(c).
(h) Code means the Internal Revenue Code of 1986, as amended.
(i) Commencement Date has the meaning ascribed to it in Section 3.
(j) Company means Luminex Corporation, a Delaware corporation.
(k) Confidential Information has the meaning ascribed to it in Section
8(b).
(l) Constructively Terminated with respect to an Executive's employment
with Employer will be deemed to have occurred if Employer:
(i) demotes Executive to a lesser position, either in title or
responsibility, than the highest position held by Executive with Employer
at any time during Executive's employment with Employer;
(ii) decreases Executive's compensation below the highest level in
effect at any time during Executive's employment with Employer or reduces
Executive's benefits and perquisites
15
below the highest levels in effect at any time during Executive's
employment with Employer (other than as a result of any amendment or
termination of any employee or group or other executive benefit plan, which
amendment or termination is applicable to all executives of Employer); or
(iii) requires Executive to relocate to a principal place of business
more than 30 miles from the principal place of business occupied by
Employer on the first day of an Applicable Period.
(m) Covenants has the meaning ascribed to it in Section 10(i).
(n) Designated Industry has the meaning ascribed to it in Section
9(a)(i)(1).
(o) Determination has the meaning ascribed to such term in Section 1313(a)
of the Code.
(p) Disability with respect to Executive shall be deemed to have occurred
whenever Executive is rendered unable to engage in any substantial gainful
activity 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. In the case of any
dispute, the determination of Disability will be made by a licensed physician
selected by Employer, which physician's decision will be final and binding.
(q) Executive has the meaning ascribed to it in the heading of this
Agreement.
(r) Employer refers collectively to the Company and its subsidiaries and
other affiliates. In Section 10, the term "Employer" shall be deemed to refer
to the Company, and for purposes of Section 10, Executive shall be deemed to be
employed by the Company and all compensation and benefits paid or provided to
Executive by any Employer under this Agreement at any time shall be deemed to
have been paid or provided to Executive by the Company.
(s) Entity has the meaning ascribed to it in Section 10(l)(i)(1).
(t) Exchange Act has the meaning ascribed to it in Section 10(c)(iii).
(u) Excise Tax has the meaning ascribed to it in Section 10(d)(i).
(v) Good Reason means the termination of Executive's employment with
Employer as a result of Executive's commission of a felony or failure to obey
lawful and proper written directions delivered to Executive by Employer's
Chairman of the Board, President, Chief Executive Officer or its Board of
Directors.
(w) Gross Up Payment has the meaning ascribed to it in Section 10(d)(i).
(x) Incentive Plans means any stock option or equity incentive plan adopted
by Employer from time to time.
(y) Inventions has the meaning ascribed to it in Section 7(a).
(z) ISO has the meaning ascribed to it in Section 10(d)(i).
(aa) Options has the meaning ascribed to it in Section 10(i).
16
(bb) Parachute Payments has the meaning ascribed to such term in Section
280G(b)(2) of the Code.
(cc) Payment has the meaning ascribed to it in Section 10(d)(i).
(dd) Restricted Stock has the meaning ascribed to it in Section 10(i).
(ee) Separation Payment Period has the meaning ascribed to it in Section
6(b)(ii).
(ff) Separation Payments has the meaning ascribed to it in Section 6(b)(ii).
(gg) Target Bonus means, with respect to each Executive, the dollar amount
that is equal to the established percentage of such Executive's Base Salary that
would be paid to Executive under the management incentive bonus plan of Employer
assuming the measurement criteria contained in such plan with respect to
Executive were achieved for the Bonus Period in which the Change In Control
occurred.
(hh) Termination Payment has the meaning ascribed to it in Section
10(b)(i).
(ii) Triggering Termination has the meaning ascribed to it in Section
10(a).
(jj) Underpayment has the meaning as ascribed to it in Section 10(d)(ii).
17
EXECUTED as of the date and year first above written.
LUMINEX CORPORATION
By: ______________________________________
Xxxx Xxxxxxxx
President and Chief Executive Officer
______________________________________
18
Executive Office Commencement Date Base Salary
--------- ------ ----------------- -----------
Xxxx X. Xxxxxxxx, Ph.D. President and Chief this Agreement 275,000
Executive Officer
Xxxxxxx X. Xxxxxxxx Executive Vice President, that certain Underwriting 250,000
General Counsel and Secretary Agreement between Warburg
Dillon Read LLC, Xxxxxx
Brothers Inc. and Xxxx Xxxxxxxx
Incorporated, as representatives
of the underwriters, and the
Company
Xxxxx X. XxXxxx, M.D. Vice President of Scientific Affairs this Agreement 190,000
Van X. Xxxxxxxx Vice President of Instruments this Agreement 190,000
Xxxxxxx X. Spain, M.D. Vice President of Clinical Affairs this Agreement 190,000
Xxxxx X. Xxxxxx Vice President, Treasurer and this Agreement 180,000
Chief Financial Officer
Xxxxxx X. Xxxxxx Vice President of Business Development this Agreement 160,000
