EMPLOYMENT AND NON-COMPETE AGREEMENT
This Employment and Non-Compete Agreement (hereinafter referred to
collectively as the "Agreement") is entered into as of August 1, 1997,
between Xx. Xxxxxx X. Xxxxx ("Xxxxx"), on the one hand, and Bio-Rad
Laboratories, Inc., (hereinafter referred to as the "Company"), on the
other hand.
WHEREAS, Xxxxx has worked at the Company since September 1, 1963
and has extensive expertise and experience with the operations and
products of the Life Science Group and its competitors;
WHEREAS, competition by Xxxxx against the Company would prove
detrimental to the business of the Company;
WHEREAS, the parties wish to reach a mutually agreeable
arrangement regarding the continued utilization of Xxxxx'x expertise and
experience after he leaves his position as Vice President, and Group
Manager of the Life Science Group ("Present Position");
WHEREAS, the parties wish to define Xxxxx'x continued employment
relationship with the Company.
THE PARTIES HEREBY enter into the following agreement between
them, fully, finally and completely on the following terms, in
consideration of the mutual covenants and promises contained herein, and
for other good and valuable consideration, the receipt of which is
hereby acknowledged:
1. Xxxxx will continue his employment with the Company through March
18, 2001. During the time period from August 1, 1997 through March 18,
2001, he will work as an employee for the Company on a flexible-time
basis as noted hereafter. The Company will provide secretarial services
for correspondence and telephone messages for Xxxxx from August 1,
1997, to March 18, 2001. During the time from August 1, 1997, to March
18, 2001, Xxxxx will be available to the Company for an average of one
hundred thirty-five days on a reasonable flexible-time basis during each
successive twelve-month period, (except for the last period which shall
be approximately nine months) commencing on August 1, 1997. He will
be reasonably available to undertake reasonable assignments provided to
him which utilize his knowledge in the life science research market.
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Xxxxx shall use reasonable efforts, but shall not be required to
complete all projects that may be assigned. During the time of this
Agreement, Xxxxx will have the right to take reasonable amounts of time
off with adequate notice and approval by Xxxxx Xxxxxxxx or his successor
in order to engage in various personal matters. In the event the
Company requires Xxxxx to undertake assignments necessitating his
presence at other than the Company location, the Company will reimburse
Xxxxx for his reasonable out-of-pocket expenses. Xxxxx will receive
one-half of his full present salary during such period and until March
18, 2001, and will receive a check for $4,958.25, minus normal payroll
deductions, on a semi-monthly basis, and be entitled to participate in
the 401K program and the Bio-Rad Employees Deferred Profit Sharing and
Retirement Plan, and receive basic life insurance, normal medical and
dental benefits and long term disability insurance. Xxxxx shall not
participate in any bonus or stock programs.
2. Upon executing this Agreement, Xxxxx will tender to Xxxxxxx Xxxxxx
a written irrevocable letter of resignation from his employment at the
Company effective March 18, 2001, in the form attached as Exhibit 1. At
his sole option, he may resign from his employment sooner on six month's
notice, in which event, the amounts set forth under paragraph one
hereunder shall not be paid. The Company may not terminate Xxxxx'x
employment prior to March 18, 2001, unless there is good cause. Good
cause for the purpose of this Agreement shall be limited to neglect of
Xxxxx'x reasonable duties, theft, material breach of this Agreement, and
intentional misconduct. In the event that the Company claims Xxxxx has
neglected his reasonable duties, the Company must provide Xxxxx with
written notice detailing any and all such neglect of his reasonable
duties and give Xxxxx 30 days in which to correct any such alleged
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neglect of his reasonable duties before he can be terminated from his
employment for such reasons.
3. Xxxxx agrees to release and forever hold the Company harmless for
any potential obligation or liability to tax or other authorities for
any deductions, taxes, or other obligations with respect to the payment
of the aforesaid sums.
4. From August 1, 1997, to March 18, 2005, Xxxxx will not consult or
be an employee, proprietor, partner or controlling shareholder for a
direct or indirect competitor of the Company or its subsidiaries.
Further, Xxxxx will not be a party to the recruitment of any of the
Company's employees from August 1, 1997 to March 18, 2003.
5. Xxxxx shall be entitled to full COBRA rights and benefits for
continued health and dental insurance coverage following his
resignation. The Company shall do nothing to interfere with Xxxxx'x
COBRA rights and benefits or other rights to convert to individual
policies.
6. During the period between the execution of this Agreement and
Xxxxx'x final day of employment at the Company, Xxxxx shall not continue
to accrue sick leave, but shall continue to have the right to take
accrued sick leave. Xxxxx shall continue to accrue vacation and shall
have the right to take vacation; provided, however, that all vacation
must be taken in the year accrued. Xxxxx shall be paid for all of his
current accrued and unused vacation time as required by law, on August
15, 1997.
7. Xxxxx will remain a director for the remainder of his current
term.
8. Xxxxx will be permitted to exercise all vested stock options
granted prior to leaving his Present Position and all stock options
which vest during the term of this Agreement. If Xxxxx becomes unable
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to carry out his assigned duties under this Agreement, or if Xxxxx
retires, the Stock Option Committee has granted Xxxxx the right to
exercise Xxxxx s stock options for up to two years after Xxxxx ceases
employment.
9. In consideration for the payments and benefits to be paid to him
by the Company and in consideration of the Company's agreement to
perform under this Agreement, Xxxxx hereby releases and waives and
absolutely and forever discharges the Company, its officers, directors,
employees, subsidiaries, parent and related companies, predecessors,
successors and assigns, and any and all of them, from any and all
claims, liabilities, demands, debts, accounts, obligations, actions, and
causes of action, known or unknown, suspected or unsuspected, at law or
in equity, in arbitration, or in any state or federal administrative
proceeding, which relate to or arise out of, in any way, his employment
with the Company, or the separation of his regular employment which
Xxxxx claims to have or has against any or all of them, whether known or
unknown, as of the date of the Agreement, including without limitation,
contract, tort, age discrimination claims under the Age Discrimination
Act, the California Fair Employment and Housing Act or other
discrimination claims of any kind.
10. The Company hereby expressly releases and waives, and absolutely
and forever discharges Xxxxx, his agents, and his family, and any and
all of them, from any and all claims, liabilities, demands, debts,
accounts, obligations, actions, and causes of action, past, present or
future, known or unknown, suspected or unsuspected, at law or in equity,
or in any arbitration, of any kind or nature whatsoever which the
Company has or claims to have against either Xxxxx, his agents, or his
family, arising on or before the date of this Agreement.
11. As part of the above releases and not by way of limitation, Xxxxx
and the Company expressly, absolutely, and forever release and waive all
of their rights under Section 1542 of the Civil Code of the State of
California. Said Section states:
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"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
EFFECTED THE SETTLEMENT WITH THE DEBTOR."
12. In connection with such waiver and relinquishment, the parties
hereto acknowledge that they are aware that they may later discover
facts in addition to those which they currently know or believe to be
true with respect to the subject matters of this Agreement, but that it
is their intent to hereby fully, finally, and forever settle and release
all of these matters which now exist, may exist, previously existed
between the parties, whether known or unknown, suspected or unsuspected.
In furtherance of such intent, the release given herein shall be and
shall remain in effect as a complete and full release, notwithstanding
the discovery or existence of such additional or different facts.
13. Xxxxx will at all times during the term of this Agreement and
thereafter hold in strictest confidence, and not use or disclose to
anyone outside of the Company without expressed written authorization of
an officer of the Company any confidential or propriety information of
the Company, including know-how, formulae, secret processes or
machines, inventions, and matters of a business nature, such as
information about costs, profits, markets, sales, lists of customers,
and information of a similar nature, to the extent not available to the
public. Xxxxx agrees to consult with his supervisor at the Company
concerning any questions that Xxxxx may have as to what comprises such
confidential or propriety information.
14. In the event that any action, suit or other proceeding is
instituted to remedy, prevent, or obtain relief from a breach of this
Agreement, or arising out of a breach of this Agreement, the prevailing
party shall recover all costs and expenses, including all reasonable
attorneys fees incurred by such party in each and every action, suit or
other proceeding, including any and all appeals or petitions therefrom.
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15. This Agreement constitutes and contains the entire agreement and
understanding concerning the subject matters between the parties hereto,
and supersedes and replaces all prior negotiations, all proposed
agreements, and all agreements, whether written or oral, express or
implied, concerning the subject matters hereof. Each party acknowledges
that she or it has not signed this Agreement in reliance on any promise,
representation, or warranty whatsoever, express or implied, written or
oral, not contained therein concerning the subject matters hereof except
the advice of their own legal counsel. The parties hereto further agree
that any oral representations or modifications of this Agreement shall
be of no force or effect unless agreed to in writing by each party
hereto.
16. This Agreement is executed and delivered within the State of
California and shall in all respects be interpreted, enforced, and
governed by and under the laws of the State of California applicable to
instruments, persons, and transactions which have legal contacts and
relationships solely within the State of California.
17. The language of this Agreement shall be construed as a whole
according to its fair meaning and not strictly for or against any of the
parties hereto. If any provision or a portion of this instrument shall
be held for any reason to be unenforceable or illegal, that provision
shall be severed from the instrument and the remainder shall be valid
and enforceable between the parties just as if the provision held to be
illegal or enforceable and never been included.
18. The parties hereto acknowledge that they have been represented by
competent counsel in connection with this matter, and that they have
executed this Agreement with the consent of and on the advice of such
counsel. All parties acknowledge that they have read this Agreement,
and fully understand and consent to all their terms and conditions
without any reservation whatsoever. All parties acknowledge that they
have had adequate opportunity to make whatever investigation or inquiry
they deem necessary and advisable in connection with the subject
matters of this Agreement prior to the execution thereof.
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19. The Agreement may be executed in any number of copies by the
parties hereto in several counterparts, and when each party has signed
and delivered at least one such counterpart to the other parties hereto,
each counterpart shall be deemed an original and taken together shall
constitute one and the same Agreement, which shall be binding and
effective as to all the parties hereto.
20. Xxxxx acknowledges that he has read each and every paragraph of
this Agreement and that he understands his respective rights and
obligations and has been advised that he can consult an attorney of his
choice. Further, Xxxxx acknowledges that he has been given the
opportunity to consider and review this Agreement for a period of at
least twenty-one (21) days and has the opportunity to revoke this
Agreement within seven (7) days of its execution. Should Xxxxx revoke
this Agreement, all monies and benefits provided herein shall cease and
benefits provided to Xxxxx under this Agreement prior to such revocation
shall be recoverable by the Company.
IN WITNESS WHEREOF, the parties hereto have set their hands on the
day or days and year written below:
Dated: July 16, 1997 /s/ Xxxxxx X. Xxxxx
XXXXXX X. XXXXX
Dated: 16 July 1997 BIO-RAD LABORATORIES, INC.
By: /s/ Xxxxx Xxxxxxxx, Pres.
XXXXX XXXXXXXX
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EXHIBIT 1
(Date)
TO WHOM IT MAY CONCERN:
I hereby voluntarily resign my employment with Bio-Rad
Laboratories, to be effective ______________, 19 ___.
Very truly yours,
Xxxxxx X. Xxxxx
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