Exhibit 10.5
Execution
Version
NON-COMPETITION
AGREEMENT
THIS NON-COMPETITION AGREEMENT (this
“ Agreement ”) is made and entered into as of
April 5, 2007 by and between Agilent Technologies, Inc., a Delaware
corporation (“ Acquiror ”), and Joseph A. Sorge,
M.D. (“ Stockholder ”). The Closing Date
(as defined in the Merger Agreement (as defined below)) shall be
the “ Effective Date ” of this
Agreement.
RECITALS
A.
Acquiror, Stratagene Corporation, a
Delaware corporation (the “ Company ”) and
Jackson Acquisition Corp., a Delaware corporation and a
wholly-owned subsidiary of Acquiror (“ Merger Sub
”) have entered into an Agreement and Plan of Merger, dated
as of April 5, 2007 (the “ Merger Agreement ”)
pursuant to which Merger Sub shall merge with and into the Company
(the “ Transaction ”). Capitalized terms
used but not otherwise defined herein shall have the meanings
assigned to them by the Merger Agreement.
B.
Simultaneously with the execution
and delivery of the Merger Agreement, the Company and Catalyst
Assets LLC, a Delaware limited liability company (“
Catalyst ”) have entered into an Asset Purchase
Agreement, dated as of April 5, 2007 (the “ Asset Purchase
Agreement ”), pursuant to which the Company will sell,
transfer and assign to Catalyst and Catalyst will purchase and
assume from the Company certain assets and liabilities.
Pursuant to the Asset Purchase Agreement, Catalyst has agreed to a
restrictive covenant similar to the covenants provided by
Stockholder herein with respect to the conduct of any business
competitive with the business of the Company. Stockholder is
the majority stockholder of Catalyst.
C.
Pursuant to the terms of the Asset
Purchase Agreement and the exhibits and schedules thereto, Catalyst
covenants not to compete with the Company and its Affiliates and
not to solicit from Acquiror and the Company and their
Affiliates.
D.
Stockholder acknowledges that he is
the majority stockholder, chief executive officer and director of
the Company and that he has been privy to and has developed the
Company’s trade secrets and other Company confidential
information, customer relationships and goodwill. Stockholder
will receive substantial consideration in connection with the
Merger, including but not limited to the value attributable to
Stockholder’s equity in the Company.
E.
The execution, delivery and
performance of this Agreement by Stockholder are a material
inducement to the willingness of Acquiror to enter into the Merger
Agreement and to consummate the Transaction.
NOW, THEREFORE, in consideration of
the mutual promises made herein, Acquiror and Stockholder hereby
agree as follows:
1.
Covenant Not to Compete or
Solicit.
(a)
Beginning on the Effective Date and
ending on the third (3 rd )
anniversary of the Effective Time (the “ Non-Competition
Period ”), Stockholder shall not, directly or
indirectly, without the prior
written consent of Acquiror: (i) engage in, anywhere in the
jurisdictions in which the Company and its Affiliates has conducted
business prior to the Merger (the “ Restricted Area
”), whether as an employee, agent, consultant, advisor,
independent contractor, proprietor, partner, officer, director,
shareholder, investor, lender or guarantor or in any other capacity
of, or have any ownership interest in (except for ownership, solely
as a passive investment, of three percent (3%) or less of any
publicly-held entity), participate in the financing, operation,
management or control of, or permit Stockholder’s name to be
used in connection with, any Person or business that engages or
participates in, a Competing Business Purpose; or (ii) interfere
with the business of Acquiror or approach, contact or solicit
customers of Acquiror, the Company or their Affiliates in
connection with a Competing Business Purpose.
For purposes of this Agreement,
“ Competing Business Purpose ” shall mean (1)
any business engaged in by the Company during the
Stockholder’s employment with the Company and its
subsidiaries, including, without limitation, the development,
manufacturing and distribution of biological products, instruments,
software and systems designed for life sciences research including
molecular biology technologies used for gene transfer, gene and
protein expression, gene cloning and mutagenesis, protein and gene
functional analysis, nucleic acid and protein purification and
analysis, microarray reagents and software, DNA amplification and
quantification as well as reagents, instruments, software and
systems for clinical diagnosis focused on allergy and autoimmune
testing and urinalysis, or (2) any other business in which the
Company or any of its subsidiaries has made demonstrable
preparation to engage in during the Stockholder’s employment
and (i) in which preparation the Stockholder materially
participated or (ii) concerning which preparation the Stockholder
had actual knowledge of material confidential information regarding
such business that remains material confidential information at the
time of Stockholder’s termination of employment with the
Company, except for the Permitted Business Purpose. For
purposes of this Agreement, the “ Permitted Business
Purpose ” shall mean the Diagnostics Field, Therapeutics
Field, and Clinical Services Field (each as defined in the License
Agreement). Nothing in the restrictions outlined in
this Section 1(a) shall be construed to prohibit Stockholder from
entering into any bona-fide non-commercial Collaborations (as
defined in the License Agreement) or from prosecuting or
commercializing any of the Assigned Patents.
(b)
Beginning on the Effective Date and
for the duration of the Non-Competition Period, Stockholder shall
not, direct
