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EXHIBIT 10.3
Intellectual Property Agreement
This Intellectual Property Agreement (this "Agreement") is made as of
October 31, 1997, by and among ▇▇▇▇▇▇▇ Instruments, Inc., a Delaware corporation
("Buyer"), ▇▇▇▇▇▇▇ Corporation (the "Company") and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, III and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇-▇▇▇▇▇ (each, a "Related Employee").
Recitals
A. Company is the owner, either directly or indirectly, of trademark and
trade name rights with respect to the name ▇▇▇▇▇▇▇ (the "Name").
B. Company has entered into a 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").
C. Each Related Employee is a member of the ▇▇▇▇▇▇▇ family, and further, is
entering into or has entered into a noncompetition agreement (the
"Noncompetition Agreement") as a condition of the sale of the Company
shares to Buyer.
D. Company and each Related Employee are aware of the significant value of
the Name, both to the Company and to Buyer, and the Company and each
Related Employee are entering into this Agreement to restrict the use of
the Name by any Related Employee.
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, Etc.
Capitalized terms not expressly defined in this Agreement shall have the
meanings ascribed to them in the Stock Purchase Agreement.
Article 2 Restrictions, Covenants
Each Related Employee represents, warrants and covenants that he/she
shall not use the Name, whether alone or in any combination or with any other
word or character or in or with any design or device or logo or other
representation, as any trade name, company name or trademark (including without
limitation any service ▇▇▇▇ or affiliation ▇▇▇▇ or otherwise) in association
with any business, operation, activity, product or service that is: competitive
to,
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related to, associated with, or in the same field of activity as the
business, operation, activity, product or service of Buyer, the Company or
Subsidiaries of Buyer or of the Company; or that is, when used in association
with the business, operation, activity, product or service, confusingly similar
to or likely to cause confusion or mistake or to deceive with respect to any
trade name, company name or trademark (including without limitation any service
▇▇▇▇ or affiliation ▇▇▇▇ or otherwise) of Buyer, the Company or Subsidiaries of
Buyer or of the Company. By way of example only, but without limitation, a
business, operation, activity, product or service that involves or relates to
the health care industry, including but not limited to human and veterinary
medical research, clinical diagnostics, drug discovery or pharmaceuticals, the
biotechnology industry, or scientific or industrial instruments, shall be
considered as falling within the restrictions set forth herein. In addition, (i)
nothing herein shall be construed to limit the restrictions set forth in the
Noncompetition Agreement and (ii) nothing herein shall restrict ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ or, in the event of his death, his estate from using the name The
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Foundation or some such similar name as the name of a
foundation to be established for charitable purposes.
Article 3 Successors and Assigns
This Agreement will be binding upon Buyer, the Company and each of the
Related Employees and Related Employee's assigns and legal representatives, and
will inure to the benefit of Buyer and the Company and their affiliates,
successors and assigns.
Article 4 Remedies
If Related Employee breaches any covenant set forth in Article 2 of this
Agreement, Buyer and the Company will be entitled to the following remedies:
(a) In addition to the right to damages and any other rights they
may have, to obtain injunctive or other equitable relief to
restrain any breach or threatened breach or otherwise to
specifically enforce the provisions of Article 2 of this
Agreement, it being agreed that any violation of Article 2 will
result in irreparable injury to the Company, the exact amount of
which will be difficult to ascertain, and that money damages
alone would be inadequate to compensate the Company and would be
an inadequate remedy for such breach.
(b) The rights and remedies of the parties to this Agreement are
cumulative and not alternative.
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Article 5 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 either a waiver of any obligation of such party
by the party giving such notice or demand, or a waiver 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 6 Governing Law
This Agreement will be governed by the laws of the State of California without
regard to conflicts of laws principles.
Article 7 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 United States District Court seated in Dade County, Florida or in any
state court seated in Dade County, 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 8 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.
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Article 9 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 10 Section Headings, Construction
The headings 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 circumstances require. Unless otherwise
expressly provided, the word "including" does not limit the preceding words or
terms.
Article 11 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 Related Employee: The address specified in Annex A hereto.
With a copy to: ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Buyer: ▇▇▇▇▇▇▇ Instruments, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
with a copy to: ▇▇▇▇▇▇▇ Instruments, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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Company: ▇▇▇▇▇▇▇ Corporation
▇▇▇▇▇▇▇ Technology Center
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇ Instruments, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Article 12 Entire Agreement
This Agreement, together with the Noncompetition Agreement dated of even date
herewith, constitutes the entire agreement between the parties with respect to
the subject matter of this Agreement and supersedes all prior written and oral
agreements and understandings between the parties hereto with respect to the
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.
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written.
BUYER: RELATED EMPLOYEE:
By: /s/ ▇▇▇▇▇▇▇ ▇. May /s/ ▇▇▇ Van
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▇▇▇▇▇▇▇ ▇. May ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President, General Counsel By: ▇▇▇ Van
and Secretary Title: Attorney-in-fact
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇-▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇-▇▇▇▇▇
COMPANY:
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇-▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇-▇▇▇▇▇
Executive Vice President
Attachment: Annex A
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ANNEX A
ADDRESSES OF RELATED PARTIES FOR NOTICE PURPOSES
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
c/o ▇▇▇ Van
c/o H. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇ & ▇▇▇ LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇-▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇