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Exhibit 10.2
NONCOMPETITION AGREEMENT
This Noncompetition Agreement (this "Agreement") is made as of
October 31, 1997, by and among Xxxxxxx Instruments, Inc., a Delaware corporation
("Buyer"), Xxxxxxx Corporation (the "Company") and Xxxxxxx X. Xxxxxxx, Xxxxxx X.
Xxxxxxx III and Xxxxx X. Xxxxxxx-Xxxxx (each, a "Key Employee").
R E C I T A L S
Concurrently with the execution and delivery of this
Agreement, Buyer is purchasing from the stockholders of Xxxxxxx Corporation (the
"Company") all of the outstanding shares (the "Shares") of common stock of the
Company pursuant to the terms and conditions of the Stock Purchase Agreement
dated August 29, 1997, as amended on October 31, 1997, among the Company, the
stockholders of the Company listed on Annex A thereto and Buyer (the "Stock
Purchase Agreement"). The Stock Purchase Agreement requires that noncompetition
agreements be executed and delivered by each of the Key Employees as a condition
to the purchase of the Shares by Buyer.
AGREEMENT
The parties, intending to be legally bound and in
consideration of the mutual promises contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, agree as follows:
ARTICLE 1 DEFINITIONS
Capitalized terms not expressly defined in this Agreement
shall have the meanings ascribed to them in the Stock Purchase Agreement.
ARTICLE 2 ACKNOWLEDGMENTS BY SELLERS
Each Key Employee acknowledges that (a) Key Employee has
occupied a position of trust and confidence with the Company prior to the date
hereof and has become familiar with certain of the following, any and all of
which constitute confidential information of the Company, (collectively, the
"Confidential Information"): (i) any and all trade secrets concerning the
business and affairs of the Company, product specifications, data, know-how,
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formulae, compositions, processes, designs, sketches, photographs, graphs,
drawings, samples, inventions and ideas, past, current and planned research and
development, current and planned manufacturing and distribution methods and
processes, customer lists, current and anticipated customer requirements, price
lists, market studies, business plans, computer software and programs (including
object code and source code), computer software and data base technologies,
systems, structures and architectures (and related processes, formulae
compositions, improvements, devices, know-how, inventions, discoveries,
concepts, ideas, designs, methods and information, of the Company; (ii) any and
all information concerning the business and affairs of the Company (which
includes historical financial statements, financial projections and budgets,
historical and projected sales, capital spending budgets and plans, the names
and backgrounds of key personnel, personnel training and techniques and
materials, however documented); and (iii) any and all notes, analyses,
compilations, studies, summaries, and other material prepared by or for the
Company containing or based, in whole or in part, on any information included in
the foregoing, (b) the Company conducts its business and markets its products
and services throughout the world, (c) the Company competes with other
businesses that are located throughout the world, and (d) the provisions of
Articles 3 and 4 of this Agreement are reasonable and necessary to protect and
preserve the Company's business and legitimate business interests as that term
is used in the Florida Statute Section 542.335.
ARTICLE 3 CONFIDENTIAL INFORMATION
Subject to the Key Employees' rights as representatives or
affiliates of Sellers to retain documents pursuant to Sections 6.9, 7.5 and 10.3
of the Stock Purchase Agreement, Key Employee acknowledges and agrees that all
Confidential Information known or obtained by Key Employee, whether before or
after the date hereof, is the property of the Company. Therefore, Key Employee
agrees that Key Employee will not, at any time, disclose to any unauthorized
Persons or use for his own account or for the benefit of any third party any
Confidential Information, whether Key Employee has such information in Key
Employee's memory or embodied in writing or other physical form, without Buyer's
written consent, unless and to the extent that the Confidential Information is
or becomes generally known to and available for use by the public other than as
a result of Key Employee's fault or the fault of any other Person known by Key
Employee to be bound by a duty of confidentiality to Buyer or the Company or
when disclosure of such information is required by a court of law, any
governmental agency or any administrative or legislative body (including a
committee thereof) with apparent jurisdiction to order him or her to divulge,
disclose or make accessible such information. Subject to the Key Employees'
rights as representatives or affiliates of Sellers to retain documents pursuant
to
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Sections 6.9, 7.5 and 10.3 of the Stock Purchase Agreement, Key Employee agrees,
upon prior written request by Buyer, to deliver to Buyer within a reasonable
period of time following receipt of such request, all documents, memoranda,
notes, plans, records, reports, and other documentation, models, components,
devices, or computer software, whether embodied in a disk or in other form (and
all copies of all of the foregoing), relating to the businesses, operations, or
affairs of the Company and any other Confidential Information that Key Employee
may then possess or have under Key Employee's control.
ARTICLE 4 NONCOMPETITION
As an inducement for Buyer to enter into the Stock Purchase
Agreement, Key Employee agrees that:
(a) For a period of three years after the Closing:
(i) Key Employee will not, directly or indirectly, including
through entities which Key Employee controls, or has a
beneficial interest in, anywhere in the world, without
the prior written consent of Buyer, engage or invest in,
own, manage, operate, finance, control, or participate
in the ownership, management, operation, financing, or
control of, be employed by, associated with, or in any
manner connected with, lend Key Employee's name or any
similar name to, lend Key Employee's credit to, or
render services or advice to, any business whose
products or activities compete with the products or
activities of the Company; provided, however, that (i)
Key Employee may purchase or otherwise acquire up to
(but not more than) five percent of any class of
securities of any enterprise (but without otherwise
participating in the activities of such enterprise) if
such securities are listed on any national or regional
securities exchange or have been registered under
Section 12(g) of the Securities Exchange Act of 1934, so
long as the cumulative purchase price of any such class
of securities does not exceed $100 million at the time
of purchase; (ii) each Key Employee, and such Key
Employee's affiliates, as the case may be, shall be
entitled to continue to hold the shares of Xxxxxxx
Cellular Therapies Inc. ("CCTI") that will be
distributed to such Key Employee or such affiliates,
directly or indirectly, by dividend declared on October
20, 1997 and having a record date of October 30, 1997
(the "Distribution"), and to invest in CCTI and to sit
on the board of directors of CCTI, so long as no Key
Employees
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shall during the term of this Agreement (A) make any
additional investment in CCTI after the date hereof that
increases the percentage shareholding of such Key
Employee above the percentage that such Key Employee
holds as a result of the Distribution or (B) participate
in the day to day management of CCTI; (iii) each Key
Employee, and such Key Employee's affiliates, as the
case may be, shall be entitled to continue to hold such
Key Employee's and such affiliates', as the case may be,
current investment in Micromeretics Inc.
("Micromeretics") and to sit on the board of directors
of Micromeretics, so long as no Key Employee shall
during the term of this Agreement (A) increase such Key
Employee's percentage shareholding in Micromeretics
above the level of such Key Employee's current
percentage shareholding or (B) participate in the day to
day management of Micromeretics; (iv) each Key Employee
and such Key Employee's affiliates, as the case may be,
shall be entitled to invest in any investment fund, so
long as (A) the Key Employee making such investment does
not control the investment decisions of any such fund
and (B) no Key Employee shall make an investment in
excess of $100 million in any fund the investment
criteria of which is primarily targeted at investments
in the in vitro diagnostics industry; and (v) with
respect to Xxxxxxx X. Xxxxxxx, the parties hereto
acknowledge that in connection with his estate planning
Xxxxxxx X. Xxxxxxx may establish one or more foundations
for charitable purposes and the trustee or trustees of
such foundation or persons performing analogous
functions to a trustee or trustees shall be entitled to
invest the foundation's principal and to make grants of
its income or principal in accordance with the
applicable governing documents thereof, it being
understood that, in addition to the investments
permitted by the foregoing clauses, the foundation shall
be entitled to invest in private companies so long as
such investments do not exceed $50 million. Each of the
Key Employees agrees that this covenant is reasonable
with respect to its duration, geographical area, and
scope and is reasonably necessary to protect the
legitimate business interests of the Company.
(ii) Key Employee will not, directly or indirectly, either
for himself or any other Person, (A) induce or attempt
to induce any employee of Company to leave the employ of
Company, (B) in any way interfere with the relationship
between the Company and any employee of the Company, (C)
employ, or otherwise engage as an employee, independent
contractor, or otherwise, any employee of the Company or
(D) induce or attempt to induce any customer, supplier,
licensee, or
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business relation of the Company to cease doing business
with Company, or in any way interfere with the
relationship between any customer, supplier, licensee,
or business relation of the Company.
(iii) Key Employee will not, directly or indirectly, either
for himself or any other Person, solicit the business of
any Person known to Key Employee to be a customer of
Company, whether or not Key Employee had personal
contact with such Person with respect to products or
activities which compete in whole or in part with the
products or activities of the Company;
(b) In the event of a breach by Key Employee of any covenant set
forth in Subarticle 4(a) of this Agreement, the term of such
covenant will be extended with respect to such Key Employee by
the period of the duration of such specific breach;
(c) Key Employee will not, at any time during or after the three
year period, disparage Buyer or the Company, or any of their
stockholders, directors, officers, employees, or agents; and
(d) Key Employee will, for a period of three years after the
Closing, within ten days after accepting any employment, advise
Buyer of the identity of any employer of Key Employee. Buyer or
Company may serve notice upon each such employer that Key
Employee is bound by this Agreement and furnish each such
employer with a copy of this Agreement or relevant portions
thereof.
ARTICLE 5 REMEDIES
If Key Employee breaches the covenants set forth in Articles 3
or 4 of this Agreement, Buyer and the Company will be entitled to the following
remedies:
(a) Buyer's sole remedy at law shall be recovery of damages from Key
Employee in an amount equal to the amount received by such Key
Employee, if any, under the Company's Special Incentive Plan;
(b) In the event that a Key Employee breaches or threatens to breach
any of the covenants contained herein, the Company or Buyer
shall be entitled to seek a temporary or permanent injunction
against such Key Employee prohibiting any further violation of
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any such covenants, it being acknowledged and agreed that any
such breach of the covenants will cause irreparable harm to the
Company and Buyer, and that the remedy specified in paragraph
(a) above for any breach or threatened breach of such covenants
would be inadequate to protect the interests of Buyer or the
Company. The injunctive or equitable relief provided herein
shall be in addition to any award pursuant to paragraph (a)
above.
(c) The rights and remedies of the parties to this Agreement are
cumulative and not alternative.
ARTICLE 6 SUCCESSORS AND ASSIGNS
This Agreement will be binding upon Buyer, the Company and
each of the Key Employees and, with respect to the provisions of Article 3, Key
Employee's assigns and legal representatives, and will inure to the benefit of
Buyer and the Company and their affiliates, successors and assigns.
ARTICLE 7 WAIVER
Neither the failure nor any delay by any party in exercising
any right, power, or privilege under this Agreement will operate as a waiver of
such right, power, or privilege, and no single or partial exercise of any such
right, power, or privilege will preclude any other or further exercise of such
right, power, or privilege or the exercise of any other right, power, or
privilege. To the maximum extent permitted by applicable law, (a) no claim or
right arising out of this Agreement can be discharged by one party, in whole or
in part, by a waiver or renunciation of the claim or right unless in writing
signed by the other party; (b) no waiver that may be given by a party will be
applicable except in the specific instance for which it is given; and (c) no
notice to or demand on one party will be deemed to be a waiver of any obligation
of such party or of the right of the party giving such notice or demand to take
further action without notice or demand as provided in this Agreement.
ARTICLE 8 GOVERNING LAW
This Agreement will be governed by the laws of the State of
Florida without regard to conflicts of laws principles.
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ARTICLE 9 JURISDICTION; SERVICE OF PROCESS
Any action or proceeding seeking to enforce any provision of,
or based on any right arising out of, this Agreement may be brought against any
of the parties in the federal courts seated in the County of Dade, State of
Florida or in any state court seated in the County of Dade, State of Florida,
and each of the parties consents to the jurisdiction of such courts (and of the
appropriate appellate courts) in any such action or proceeding and waives any
objection to venue laid therein. Process in any action or proceeding referred to
in the preceding sentence may be served on any party anywhere in the world.
ARTICLE 10 SEVERABILITY
Whenever possible each provision and term of this Agreement
will be interpreted in a manner to be effective and valid but if any provision
or term of this Agreement is held to be prohibited or invalid, then such
provision or term will be ineffective only to the extent of such prohibition or
invalidity, without invalidating or affecting in any manner whatsoever the
remainder of such provision or term or the remaining provisions or terms of this
Agreement. If any of the covenants set forth in Article 4 of this Agreement are
held to be unreasonable, arbitrary, or against public policy, such covenants
will be considered divisible with respect to scope, time, and geographic area,
and in such lesser scope, time and geographic area, will be effective, binding
and enforceable against Key Employee.
ARTICLE 11 COUNTERPARTS
This Agreement may be executed in one or more counterparts,
each of which will be deemed to be an original copy of this Agreement and all of
which, when taken together, will be deemed to constitute one and the same
agreement.
ARTICLE 12 ARTICLE HEADINGS, CONSTRUCTION
The headings of Articles in this Agreement are provided for
convenience only and will not affect its construction or interpretation. All
references to "Article" or "Articles" refer to the corresponding Article or
Articles of this Agreement unless otherwise specified. All words used in this
Agreement will be construed to be of such gender or number as the
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circumstances require. Unless otherwise expressly provided, the word "including"
does not limit the preceding words or terms.
ARTICLE 13 NOTICES
All notices, consents, waivers, and other communications under
this Agreement must be in writing and will be deemed to have been duly given
when (a) delivered by hand (with written confirmation of receipt), (b) sent by
facsimile (with written confirmation of receipt), provided that a copy is mailed
by registered mail, return receipt requested, or (c) when received by the
addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and facsimile
numbers set forth below (or to such other addresses and facsimile numbers as a
party may designate by notice to the other parties):
If to a Key Employee: The address specified in Annex A hereto.
With a copy to: Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
Buyer: Xxxxxxx Instruments, Inc.
0000 Xxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: President
with a copy to: Xxxxxxx Instruments, Inc.
0000 Xxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
Company: Xxxxxxx Corporation
Xxxxxxx Technology Center
00000 Xxxxxxxxx 000xx Xxxxxx
Xxxxx, Xxxxxxx 00000-0000
Attention: General Counsel
Facsimile: (000) 000-0000
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with a copy to: Xxxxxxx Instruments, Inc.
0000 Xxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
ARTICLE 14 ENTIRE AGREEMENT
This Agreement, together with the Intellectual Property
Agreement dated of even date herewith, constitutes the entire agreement between
the parties with respect to the specific subject matter of this Agreement and
supersedes all prior written and oral agreements and understandings between
Buyer the Company, and each Key Employee with respect to the specific subject
matter of this Agreement. To the extent this Agreement is inconsistent with the
terms of the Stock Purchase Agreement, the terms of this Agreement shall govern.
This Agreement may not be amended except by a written agreement executed by the
party to be charged with the amendment.
(signature page follows)
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written.
BUYER: KEY EMPLOYEE:
By: /s/ Xxxxxxx X. May /s/ Xxx Van
---------------------------- --------------------------
Xxxxxxx X. May Xxxxxxx X. Xxxxxxx
Vice President, General By: Xxx Van
Counsel and Secretary Title: Attorney-in-fact
/s/ Xxxxxx X. Xxxxxxx III
---------------------------
Xxxxxx X. Xxxxxxx III
/s/ Xxxxx X. Xxxxxxx-Xxxxx
---------------------------
Xxxxx X. Xxxxxxx-Xxxxx
COMPANY:
By: /s/ Xxxxx X. Xxxxxxx-Xxxxx
----------------------------
Xxxxx X. Xxxxxxx-Xxxxx
Executive Vice President
Attachment: Annex A
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ANNEX A
ADDRESSES OF RELATED PARTIES FOR NOTICE PURPOSES
Xxxxxxx X. Xxxxxxx
c/o Xxx Van
c/o H. Xxxxxxxx Xxxxxxxx, Esq.
Xxxxxxxx & Xxx LLC
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Xxxxxx X. Xxxxxxx III
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxxxxx, XX 00000
Xxxxx X. Xxxxxxx-Xxxxx
0000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000
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