**Exhibit10.35****EMPLOYMENT AGREEMENT**     THIS EMPLOYMENT AGREEMENT (this “*Agreement*”) is made and entered into as of February 6, 2007by and between **Luminex Corporation**, a corporation existing under the laws of the State of Delaware(“**Luminex**”), **Tm Bioscience Corporation,**a corporation governed by the laws of the Province ofOntario (“**Tm**”) and Jeremy Bridge-Cook (“**Executive**”), and shall become effective only on the date(the “*Effective Date*”) of the closing, if and when such closing occurs, of the acquisition of Tm byLuminex.**RECITAL**     WHEREAS, Executive is to be employed as the Vice President, Molecular Diagnostics for Tm andto be appointed as an officer for Luminex;     WHEREAS, in consideration for the execution and delivery of this Agreement by Executive, Tm isproviding to the Executive certain rights in addition to those which the Executive currentlyenjoys, including acceleration of option vesting in the event of a change of control and morefavourable severance provisions;     WHEREAS, Tm and Executive wish to document the terms of the employmentof Executive in such capacity; and     WHEREAS, Executive has represented to Tm and Tm has relied on Executive’s representation thatthe execution of this Agreement by Executive, and the provision of services by Executive to Tm ascontemplated in this Agreement, will not conflict with, or cause Executive or any other person orentity to be in breach of, (i) any other contract to which Executive is a party or (ii) any dutywhich Executive may owe to any other person or entity.**AGREEMENT**     **NOW, THEREFORE,**for good and valuable consideration, the receipt and sufficiency of which ishereby acknowledged, the parties agree as follows:     **1.****Duties****.**          1.1 Duties. During the term of this Agreement, which shall commence, if at all, onthe Effective Date (the “*Term*”), Executive agrees to be employed by and to serve as Vice President,Molecular Diagnostics for Tm and to be appointed as Vice President, Molecular Diagnostics forLuminex, and each of Luminex and Tm, as the case may be, agrees to appoint, employ and retainExecutive in such capacity subject to the provisions of this Agreement. Executive shall have suchpowers, authority and duties, and shall render such services of executive and administrativecharacter, or act in such other capacity for Tm, as the Chief Executive Officer of Luminex shallfrom time to time lawfully direct and Executive shall report directly to the Chief ExecutiveOfficer of Luminex (“*CEO*”). Executive shall devote all of his business time, energy, and skill tothe business of Tm or such other matters of Luminex determined by the CEO.

 

- 2 -     **2. ****Term and Termination**.          2.1 Term. Subject to Section 2.2, the term of employment of Executive by Tm shall beindefinite.          2.2 Termination of Employment. For the purposes of this Agreement, “termination date”and “date of termination” means the effective date on which the employment of the Executivehereunder is terminated, regardless of the date on which Executive is notified of the terminationof his employment or the date on which Executive notifies Tm of the resignation of his employment,notwithstanding the fact that Executive might thereafter be entitled to notice of termination orpayment in lieu of notice, Severance Compensation or any other payment, and whether suchtermination or resignation is lawful or unlawful.               2.2.1 Termination For Cause. “*Termination For Cause*” shall mean the termination by Tmof Executive’s employment with Tm as the result of fraud or Executive’s continued material breachof this Agreement after receipt of written notice from Tm specifying such breach and failure byExecutive to cure such breach within fifteen (15) days from receipt of such notice or any otheraction or omission by Executive constituting just cause for termination at law. Executive’sinability to perform his obligations under this Agreement despite his best efforts as a result of apermanent or temporary disability (as evidenced by a written determination from a physician chosenby Executive and reasonably acceptable to Tm) shall not result in a Termination For Cause. In theevent that Executive fails to cure the breach within the fifteen (15) day cure period, thetermination shall be effective as of the date that Tm notifies Executive of his terminationfollowing the expiration of the fifteen (15) day cure period. Upon any Termination For Cause,Executive shall be paid the Accrued Obligations (defined below) within three (3) business daysfollowing the effective date of termination.               2.2.2 Termination Other Than For Cause. “*Termination Other Than For Cause*” shall mean(i) termination by Tm of Executive’s employment with Tm for any reason other than Termination ForCause, Termination by Reason of Death, Termination by Reason of Incapacity or Actual VoluntaryTermination or (ii) termination by Executive upon constructive termination of Executive’semployment with Tm by reason of (A) a reduction in Executive’s Base Salary (defined below); (B) areduction in Executive’s title from Vice President, Molecular Diagnostics for Tm (whether by reasonof Executive’s removal from any of such offices or Tm’s failure to reappoint Executive to any ofsuch offices); (C) a Material Diminution (defined below); (D) a requirement that Executive changehis principal place of business to a location that is outside the Office Area (defined below), or(E) Tm’s continued material breach of this Agreement after receipt of written notice from Executivespecifying such breach and failure by Tm to cure such breach within fifteen (15) days from receiptof such notice. Termination Other Than For Cause may be effected by Tm at any time by providingExecutive with written notice of such termination. The termination shall be effective as of thedate on which the notice of termination is received by Executive or such later date as may bedetermined by Tm without regard to any payment or notice to which Executive might be entitled orreceive. Executive may also effect a Termination Other Than For Cause upon written notice to Tm atany time any of the conditions for constructive termination set forth in clause (ii) above(including without 

 

- 3 -limitation, if applicable, the expiration of the cure period) have been met. Upon anyTermination Other Than For Cause, Executive shall be paid (i) within three (3) business daysfollowing the effective date of termination the amount of the Accrued Obligations and (ii) allSeverance Compensation provided in Section 4.1. Such payments shall be inclusive of Executive’sentitlements under the Employment Standards Act, 2000, shall satisfy all of Tm’s obligations uponthe Termination Other Than For Cause and shall be accepted and received by Executive in lieu of anyother notice, pay in lieu of notice, termination pay, severance pay, claim or cause of action forwrongful dismissal damages. For purposes of this Agreement, “*Material Diminution*” means amaterial diminution by Tm of Executive’s duties, powers, authority, functions or responsibilitieswithout Executive’s consent, such that Executive is left with such duties, powers, authority,functions and responsibilities (when viewed in the aggregate) that are materially diminishedcompared to *both*(i) those duties, powers, authority, functions and responsibilities conferred uponExecutive at the Effective Date *and*(ii) those duties, powers, authority, functions andresponsibilities that are most typically conferred upon the employee of companies having both (i)an executive with the title Vice President, Molecular Diagnostics and responsibilities consistentwith that title and (ii) revenues comparable to Tm (based on the revenues of Tm at the time ofdetermination). Tm and Executive agree that in the event there is an ambiguity with respect to theinterpretation or application of the definition of “Material Diminution”, such ambiguity shall beresolved according to the reasonable interpretation of such definition most favorable to Tm. Forpurposes of this Agreement, “*Office Area*” means the geographical area within a 65 kilometre radiusof Tm’s current principal office at 439 University Avenue, Toronto, Ontario.               2.2.3 Actual Voluntary Termination. “*Actual Voluntary Termination*” shall meantermination by Executive of Executive’s employment with Tm for any reason other than TerminationFor Cause, Termination Other Than For Cause, Termination by Reason of Death or Termination byReason of Incapacity. In the event of an Actual Voluntary Termination, Executive shall be paidwithin fifteen (15) business days following the effective date of termination the amount of theAccrued Obligations.               2.2.4 Termination by Reason of Incapacity. If, during the Term, Executive shallbecome Permanently Disabled (defined below), Tm may terminate Executive’s employment with Tmeffective on the earliest date permitted under applicable law, if any, and such termination shallbe deemed “*Termination by Reason of Incapacity*”. Upon termination of employment under thisSection, Executive shall be paid (i) within three (3) business days following the effective date oftermination the amount of the Accrued Obligations and (ii) all Severance Compensation provided inSection 4.2. As used herein, Executive shall be deemed “*Permanently Disabled*” if Executive is (i)collecting long-term disability payments under a long-term disability plan established for thebenefit of Tm’s employees or executives generally or a reasonably similar plan or (ii) if, and onlyif, no such long-term disability plan is in effect at the time of determination, a physicianselected by Tm and reasonably acceptable to Executive makes a written determination that Executiveis unable to perform his obligations under this Agreement despite his best efforts by reason of anymedically determinable physical or mental impairment that can be expected to result in death orthat has lasted or can be expected to last for a continuing period of not less than 12 months. 

 

- 4 -               2.2.5 Termination by Reason of Death. In the event of Executive’s death during theTerm, Executive’s employment with Tm shall be deemed to have terminated as of the date on which hisdeath occurs and the estate of Executive shall be paid (i) within fifteen (15) days following theeffective date of termination the amount of the Accrued Obligations and (ii) all SeveranceCompensation provided in Section 4.3.               2.2.6 Termination of Relationship with Affiliated Entities. Unless agreed by Tm andExecutive in a separate written agreement (other than corporate minutes, resolutions, charterdocuments, bylaws and partnership agreements), upon the termination of Executive’s employment withTm for any reason, Executive shall tender a written resignation of any positions he may have withTm and its Affiliates (as that term is defined in the *Business Corporations Act*(Ontario))(“Affiliates”) and any and all of Tm’s direct and indirect subsidiaries.               2.2.7 Definition of Accrued Obligations. As used in this Agreement, “*AccruedObligations*” means all accrued but unpaid salary, accrued but unpaid vacation, sick leave, andsimilar pay (all determined in accordance with Tm’s policies then in effect), and any appropriatebusiness expenses incurred by Executive in connection with his duties hereunder, all to the date oftermination.     **3. ****Salary, Benefits and Bonus Compensation.**          3.1 Base Salary. As payment for the services to be rendered by Executive as providedin Section 1 and subject to the terms and conditions of Section 2, Tm agrees to pay to Executive a"*Base Salary*” at the rate of Cdn. $250,000 per annum payable in accordance with the then-currentpayroll policies of Tm.          3.2 Annual Bonus. Executive shall be eligible to receive a bonus each year in anamount up to fifty percent (50%) of your then-current Base Salary (or such other amount as mayotherwise be determined by the Compensation Committee of the Board of Directors of Luminex),subject to the performance criteria established annually at the discretion of Tm and payable duringthe first quarter of the following year or otherwise as consistent with the timing of otheremployee bonuses. The CEO is under no obligation to declare, and Tm is under no obligation to pay,any bonus to Executive under the terms of this Agreement. In the event Executive and Tm areparties to a written agreement or plan executed by both Tm and Executive that governs bonusarrangements, and the provisions thereof conflict with this Section 3.2, the terms of such otherwritten agreement or plan shall supersede this Section 3.2.          3.3 Change in Control. In the event that both (i) a Change in Control (defined below)of Tm occurs during the Term and (ii) Executive’s employment with Tm (or, as applicable, itssuccessor in interest) terminates for any reason (including without limitation an Actual VoluntaryTermination by Executive) at any time within six (6) months following the occurrence of the Changein Control of Tm, in lieu of any Severance Compensation then owed or that otherwise would be owedin the future to Executive under Section 4 of this Agreement, Tm (or its successor in interest)shall pay Executive both the Accrued Obligations and a lump sum payment (the “*Change in ControlPayment*”) in an aggregate amount equal to the sum of (i) the 

 

- 5 -Bonus Amount (defined below), plus (ii) an amount equal to one and one half times theExecutive’s annual Base Salary (at the highest rate in effect during the period beginning sixmonths immediately prior to the effective date of the Change of Control through the date oftermination) within three (3) business days after the date of termination of Executive’semployment. In the interest of clarity, Tm and Executive agree that, upon the termination ofExecutive’s employment at any time within six (6) months following the occurrence of the Change inControl of Tm, the provisions of Sections 4.1, 4.2, 4.3, and 4.5 shall automatically be deemed nulland void and shall not apply with respect to any termination of Executive’s employment (whethersuch termination is effected in connection with the Change in Control of Tm or at any time in thefuture following the Change in Control of Tm), and under no circumstances shall Tm ever beobligated to pay Executive both a Change in Control Payment and Severance Compensation underSection 4. For purposes of this Agreement, a “*Change in Control”*of Tm shall be deemed to haveoccurred if, after the date of this Agreement:     (A) any “*Person*” (as such term is used in Sections 13(d) and 14(d) of the U.S. SecuritiesExchange Act of 1934, as amended (the “*Exchange Act*”)) (other than an Approved Person (as definedbelow)) becomes the “*Beneficial Owner*” (as defined in Rule 13d-3 under the Exchange Act), directlyor indirectly, of a majority or more of the then outstanding Common Stock of Tm *(“CommonStock*”)(such Person, an “*Acquiring Person*”); or     (B) Tm merges or consolidates with any other corporation or other entity, in each case otherthan a merger or consolidation which results in the voting securities of Tm outstanding immediatelyprior thereto continuing to represent (either by remaining outstanding or by being converted intovoting securities of the surviving entity) at least a majority of the combined voting power of thevoting securities of Tm or such surviving entity outstanding immediately after such merger orconsolidation; or     (C) Tm sells or disposes of all or substantially all of Tm’s assets in one transaction or aseries of related transactions; or     (D) Tm files a periodic or current report or proxy statement with the Securities and ExchangeCommission (the “*SEC*”) disclosing that a “change in control” (as such term is used in Item 5.01of Form 8-K promulgated by the SEC) of Tm has occurred; or     (E) Tm is no longer controlled by Luminex, or there is a change in control of Luminex, ineither case within the meaning of subsection 1(5) of the *Business Corporations Act*(Ontario).     As used in this Agreement, “*Approved Person*” means (1) an employee benefit plan of Tm (or atrustee or other fiduciary holding securities for such a plan), or (2) a corporation owned,directly or indirectly, by the stockholders of Tm in substantially the same proportions as theirownership of stock of Tm, or (3) a Person not less than a majority of whose voting securities areBeneficially Owned by Tm after giving effect to the transaction.     As used in this Agreement, “*Bonus Amount*” means the annual bonus (if any) received or to bereceived by Executive under Section 3.2 in respect of the then most recently completed 

 

- 6 -calendar year, or if no determination concerning bonuses has been made for the most recentlycompleted calendar year, then the annual bonus (if any) for the previous calendar year.     Any options (“*Options*”) granted (including without limitation Options that may be granted inthe future) and restricted stock (“*Restricted Stock*”) issued (including without limitationRestricted Stock that may be issued in the future) to Executive pursuant to any incentive plan ofTm or its Affiliates shall immediately vest upon a Change in Control. Tm shall take no action tofacilitate a transaction involving a Change in Control, including without limitation redemption ofany rights issued pursuant to any rights agreement, unless it has taken such action as may benecessary 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 maythen hold, at a time and in a manner that shall give Executive the opportunity to sell or exchangethe securities of Tm acquired upon exercise of his Options and upon receipt of unrestrictedcertificates 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 ofthe same class of securities as the Acquired Securities is able to sell or exchange such securitiesin connection with such Change in Control. Tm acknowledges that its covenants in the precedingsentence (the “*Covenants*”) are reasonable and necessary in order to protect the legitimateinterests of Tm in maintaining Executive as one of its employees and that any violation of theCovenants by Tm would result in irreparable injuries to Executive, and Tm therefore acknowledgesthat in the event of any violation of the Covenants by Tm or its directors, officers or employees,or any of their respective agents, Executive shall be entitled to obtain from any court ofcompetent jurisdiction temporary, preliminary and permanent injunctive relief in order to (i)obtain specific performance of the Covenants, (ii) obtain specific performance of the exercise ofhis Options, delivery of certificates containing no restrictive legends in respect of hisRestricted Stock and the sale or exchange of the Acquired Securities in the advantageous mannercontemplated above or (iii) prevent violation of the Covenants; provided nothing in this Agreementshall be deemed to prejudice Executive’s rights to damages for violation of the Covenants. In theevent that the terms of any separate written agreement concerning Options granted or RestrictedStock issued to Executive conflict with the terms of this paragraph, the terms of this paragraphshall control.          3.4 Additional Benefits. During the Term, Executive shall be entitled to thefollowing fringe benefits:               3.4.1 One-Time Signing Bonus and Restricted Stock Grant. As further consideration forExecutive’s entry into this Agreement, Executive shall receive on the execution hereof:     (A) a one-time signing bonus in the amount of Cdn $100,000, and     (B) a one-time grant of 25,000 shares of Restricted Stock, vesting in equal one-fifthincrements on each anniversary of the grant date of such Restricted Stock, and in accordance withthe terms of the Luminex 2006 Equity Incentive Plan. 

 

- 7 -     In addition, and for greater certainty, Tm hereby confirms that in accordance with theCertificate of Arrangement to be issued in connection with the acquisition of Tm by Luminex, eachTm Option previously granted to the Executive by Tm and outstanding at the date (the *“Certificateof Arrangement Date"*) of issuance of the Certificate of Arrangement, whether or not vested, shallbe exchanged for a Luminex Option granted by Luminex to acquire (on the same terms and conditionsas were applicable to the Tm Options pursuant to the relevant Tm stock option plan under whichthose Tm Options were issued) the number (rounded down to the nearest whole share) of shares ofLuminex common stock determined by multiplying (A) the number of Tm common shares subject to eachsuch Tm Option immediately prior to the Certificate of Arrangement Date by the share exchange ratioof 0.060. The exercise price per share of Luminex common stock subject to any such Luminex Optionswill be an amount (rounded up to the nearest whole cent) equal to the quotient of (A) the exerciseprice per Tm common share subject to such Tm Options immediately prior to the Certificate ofArrangement Date and (B) the share exchange ratio, expressed in United States dollars based on thenoon buying rate of the Bank of Canada on the last trading day immediately preceding theCertificate of Arrangement Date.               3.4.2 Benefits and Vacation. Executive shall be eligible to participate in such ofTm’s benefits and deferred compensation plans as are now generally available or later madegenerally available to executive officers of Tm. Tm may, at any time and from time to time, modify,suspend, or discontinue any or all such benefits for its employees generally or for any groupthereof. A termination or expiration of this Agreement for any reason or for no reason shall notaffect any rights which Executive may have pursuant to any agreement, policy, plan, program orarrangement of Tm providing Executive benefits (including under any stock option agreement or bonusplan or agreement which may exist), which rights shall be governed by the terms thereof. Executiveshall be entitled to three (3) weeks paid vacation each calendar year (prorated for partial years).Unless approved in advance by the CEO, accrued vacation not taken in any applicable period shallnot be carried forward or used in any subsequent period.               3.4.3 Reimbursement for Expenses.                    3.4.3.1 Incidental Expenses. Tm shall reimburse Executive for reasonable and properlydocumented out-of-pocket business and/or entertainment expenses incurred by Executive in connectionwith his duties under this Agreement. Any such expenses shall be submitted by Executive to Tm on aperiodic basis and will be paid in accordance with standard Tm policies and procedures.                    3.4.3.2 Moving Expenses. In the event of the relocation of Tm’s headquarters to alocation that is outside the Office Area and Executive elects to relocate, Tm shall (i) reimburseExecutive for any reasonable, out-of-pocket and adequately documented moving expenses incurred byExecutive in connection with the transfer of his residence and (ii) pay to an Executive an amountof cash reasonably calculated by Tm to negate adverse income tax consequences to Executive of theforegoing reimbursement. 

 

- 8 -      **4.****Severance Compensation.**          4.1 Severance Compensation in the Event of a Termination Other Than For Cause. In theevent Executive’s employment is terminated as a result of a Termination Other Than for Cause,Executive shall be paid (subject to Section 4.5) the Severance Compensation (defined below). SuchSeverance Compensation is inclusive of Executive’s statutory and common law rights to notice, payin lieu of notice, and, if applicable, severance pay under the Ontario *Employment Standards Act,*2000, as amended*.*          4.2 Severance Compensation for Termination by Reason of Incapacity. In the eventExecutive’s employment is terminated as a result of a Termination by Reason of Incapacity,Executive shall be paid (subject to Section 4.5) the difference represented by (i) the SeveranceCompensation less (ii) any payment or payments receivable by Executive during the twelve (12) monthperiod from the time of termination under any long-term disability plan in effect that providesbenefits to Executive.          4.3 Severance Compensation for Termination by Reason of Death. In the eventExecutive’s employment is terminated as a result of Executive’s death, the estate of Executiveshall be paid the Severance Compensation.          4.4 This section intentionally deleted.          4.5 No Severance Compensation Upon Other Termination. In the event of an ActualVoluntary Termination or Termination For Cause, Executive shall not be paid any SeveranceCompensation.          4.6 Conditions to Payment; Sole Remedy. Executive shall not be entitled to receiveany compensation or other payment pursuant to Sections 4.1 or 4.2 unless Executive shall haveexecuted and delivered to Tm a release substantially in the form attached hereto as Exhibit“A” and, provided Tm has also signed such release within two (2) business days of execution anddelivery by Executive, all revocation and waiting periods applicable to such release have expired(if Tm fails to sign such release, then such revocation and waiting periods shall not apply). Inaddition, in the event that Executive breaches any of the restrictive covenants set forth inArticle 5 at any time, Tm shall be entitled to discontinue any compensation or other paymentspursuant to Sections 4.1 or 4.2 (provided, however, that if it is finally determined by a court ofcompetent jurisdiction or an arbitrator that Tm asserted in bad faith that Executive breached anyof the restrictive covenants set forth in Article 5, the payments of the Severance Compensationshall be extended for two months for each calendar month that payments were delayed. Thecompensation to be paid to Executive pursuant to Sections 4.1, 4.2, or 4.3 shall represent the soleand exclusive remedy of Executive in connection with the termination of his employment and thisAgreement upon a Termination Other Than for Cause, a Termination by Reason of Incapacity or atermination in connection with Executive’s death.          4.7 Definition of Severance Compensation. As used in this Agreement, “*SeveranceCompensation*” means an amount equal to the sum of (i) the Bonus Amount plus (ii) an amount equal toone and one half times the Executive’s annual Base Salary (at the highest rate 

 

- 9 -in effect for the six month period immediately prior to the date of termination), paid insemi-monthly installments for a period of eighteen (18) months from the date of termination. Inaddition, as part of the Severance Compensation, Tm also shall pay (until the earlier of (A) thefirst anniversary of the date of termination or (B) the date that Executive is eligible to becovered under a comparable or more favorable health plan of another Person, at which time all suchbenefits shall cease) (i) payments in respect of the continuation of health benefits for Executive,his spouse and his children and (ii) payments to fund dental coverage for Executive, his spouse andhis children, in each case comparable to the dental coverage that they would have received andsubject to any exclusions under applicable plans and policies or required by the insurer, ifExecutive had continued as an employee of Tm.     **5. ****Protection of Tm**.          5.1 Non-Competition. Ancillary to the otherwise enforceable agreements set forth inthis Agreement, Executive agrees that during Executive’s employment with Tm and for a period of one(1) year following termination of employment, whether such termination occurs at the insistence ofExecutive or Tm for any reason, Executive shall not compete directly or indirectly in any way withthe business of Tm or its Affiliates anywhere in the world where Tm conducted business during theTerm. For purposes of this Agreement, “compete directly or indirectly in any way with the businessof Tm or its Affiliates” means to become an employee, consultant, advisor, manager, member,director of or beneficially own more than three percent of any individual, company or entity thatcompetes with Tm or its Affiliates in the Core Business (defined below) at the time ofdetermination. Executive agrees that the assertion or existence of any claim by Executive againstTm or its Affiliates shall not be a defense to the enforcement of this paragraph by injunction orotherwise. As used in this Agreement, “*Core Business*” means the development, manufacturing and/ormarketing of multiplexing biological testing technologies with applications in the life-sciencesindustry.          5.2 Nonsolicitation. Ancillary to the otherwise enforceable agreements set forth inthis Agreement, Executive agrees that, for a period of one (1) year subsequent to the terminationof Executive’s employment with Tm or its Affiliates, Executive shall not recruit, hire, or attemptto recruit or hire, directly or by assisting others, any other employees of Tm or its Affiliates,nor shall Executive contact or communicate with any other employees of Tm or its Affiliates for thepurpose of inducing other employees to terminate their employment with Tm or its Affiliates. Forpurposes of this covenant, “other employees of Tm or its Affiliates” shall refer to employees whoare still actively employed by, or doing business with, Tm or its Affiliates at the time of theattempted recruiting or hiring, with whom Executive had contact in the twenty-four (24) monthspreceding the termination of Executive’s employment (or for the period of Executive’s employment ifless than twenty-four (24) months).          5.3 Remedies. Due to the irreparable and continuing nature of the injury which wouldresult from a breach of the covenants described in Sections 5.1 and 5.2, Executive agrees that Tmmay, in addition to any remedy which Tm may have at law or in equity, apply to any court ofcompetent jurisdiction for the entry of an immediate order to restrain or enjoin the breach of thiscovenant and to otherwise specifically enforce the provisions of the covenants set forth inSections 5.1 and 5.2. 

 

- 10 -          5.4 Acknowledgment. Executive acknowledges and agrees that the restrictions set forthabove are ancillary to an otherwise enforceable agreement and supported by independent valuableconsideration. Executive further acknowledges and agrees that the limitations as to time,geographical area, and scope of activity to be restrained by Sections 5.1 and 5.2 are reasonableand acceptable to Executive, and do not impose any greater restraint than is reasonably necessaryto protect the goodwill and other business interests of Tm or its Affiliates.          5.5 Reformation and Severance. If a judicial determination is made that any of theprovisions of the above restriction constitutes an unreasonable or otherwise unenforceablerestriction against Executive, it shall be rendered void only to the extent that such judicialdetermination finds such provisions to be unreasonable or otherwise unenforceable. In this regard,the parties hereby agree that any judicial authority construing this Agreement shall be empoweredto sever any portion of the prohibited business activity from the coverage of this restriction andto apply the restriction to the remaining portion of the business activities not so severed by suchjudicial authority. Moreover, notwithstanding the fact that any provisions of this restriction aredetermined by a court not to be specifically enforceable through injunctive relief, Tm shallnevertheless be entitled to seek to recover monetary damages as a result of the breach of anyprovision which is not reformed by a court. The time period during which the restrictions shallapply shall be tolled and suspended as to Executive for a period equal to the aggregate quantity oftime during which Executive violates such prohibitions in any respect.          5.6 Confidential Information and Trade Secrets. As used herein, “*ConfidentialInformation*” means any data or information that is important, competitively sensitive, and notgenerally known by the public or persons involved in the biological testing or life sciencesindustries, including, but not limited to, Tm’s business plans, Prospective Customers, trainingmanuals, proprietary software, product development plans, bidding and pricing procedures, marketplans and strategies, projections, internal performance statistics, financial data, confidentialpersonnel information concerning employees of Tm, operational or administrative plans, policymanuals, and terms and conditions of contracts and agreements. The term “*Confidential Information*”shall not apply to information which is (i) already in Executive’s possession (unless suchinformation was obtained by Executive from Tm in the course of Executive’s employment by Tm); (ii)received by Executive from a third party with, to Executive’s knowledge, no restriction ondisclosure or (iii) required to be disclosed by any applicable law or by an order of a court ofcompetent jurisdiction.     Executive recognizes and acknowledges that the Confidential Information constitutes valuable,special and unique assets of Tm and its Affiliates. Except as required to perform Executive’sduties as an Executive of Tm, until such time as they cease to be Confidential Information throughno act of Executive in violation of this Agreement, Executive will not use or disclose anyConfidential Information of Tm or its Affiliates. Upon the request of Tm or its Affiliates and, inany event, upon the termination of this Agreement for any reason, Executive will surrender to Tm orits Affiliates (i) all memoranda, notes, records, drawings, manuals or other documents pertainingto Tm or its Affiliates’ business including all copies and/or 

 

- 11 -reproductions thereof and (ii) all materials involving any Confidential Information of Tm orits Affiliates.          5.7 Preservation of Tm Property. Executive acknowledges that from time to time in thecourse of employment with Tm, Executive has had the opportunity to inspect and use certain propertyof Tm and its Affiliates, both tangible and intangible, including but not limited to files,records, documents, drawings, specifications, lists, equipment, graphics, designs, and similaritems relating to the business of Tm and its Affiliates. Executive acknowledges and agrees thatall such property, including but not limited to any and all copies thereof, whether prepared byExecutive or otherwise in the possession of Executive, are and shall remain the exclusive propertyof Tm or its Affiliates, that Executive shall have no right or proprietary interest in suchproperty and that Executive will safeguard and return to Tm and its Affiliates all such propertyupon the earlier of (i) Tm or its Affiliates’ request and (ii) the termination of Executive’semployment with Tm.          5.8 Assignment of Inventions to Tm. All computer software, compilations, programs,improvements, inventions, notes, copyrightable works, and opportunities for additional Tm business,made, fixed, conceived, or acquired by Executive during the Term are exclusively owned by Tm, areTm’s works for hire, and fully assigned to Tm including without limitation all rights to renewals,extensions, causes of action, reproduce, prepare derivative works, distribute, display, perform,transfer, make, use and sell and may never be copied, used, or disclosed without Tm’s expresswritten consent. Executive will sign on request any documents affirming the same for anyparticular item. In addition, Executive agrees to execute Company’s standard Confidentiality and IPAssignment Agreement by the Effective Date.          5.9 Notice to Subsequent Employers. Executive agrees that, prior to commencing anynew employment in the Core Business within twelve months after the termination of this Agreement,Executive will furnish the new employer with a copy of this Agreement. Executive also consents tothe disclosure by Tm to any new or prospective employer of the existence and terms of thisAgreement and that Tm may furnish the employer with a copy of this Agreement.          5.10 Survival. The provisions of this Section 5 shall survive termination of thisAgreement by any party hereto for any reason.     **6. ****Disclosure of Investments****.**Commencing upon Executive’s execution of this Agreementand at all times during the Term, Executive shall keep the CEO informed in writing of the natureand extent of Executive’s investments, stock holdings, or retention as a director, advisor or anysimilar interest in any business or enterprise involved in the Core Business other than Tm;provided, however, that Executive shall not be required to disclose any such investments or stockholdings that constitute less than 1% of such entity’s total obligations or total voting power. 

 

- 12 -     **7. ****Arbitration**.          7.1 Exclusive Remedy. Arbitration shall be the sole and exclusive remedy forresolving any claim or dispute which cannot be mutually resolved between the parties to thisAgreement with the exception of disputes arising out of Executive’s obligations under Article 5 ordisputes arising out of Tm’s obligations under the last paragraph of Section 3.3, which are notsubject to this arbitration provision; provided however, that the parties hereto agree that theymay bring action in any court of competent jurisdiction to enforce any award granted pursuant toarbitration or to otherwise enforce this Article 7. This includes, but is not limited to,termination, interpretation or application of this Agreement or any other agreement or policy ofTm, any claim of violation of law relating to the employment relationship, including, withoutlimitation, any claim of employment discrimination or sexual harassment, or harassment based on anyother prohibited basis, or any claim by Tm against Executive. This Agreement is a waiver of theright to trial by a jury or court.          7.2 Limitations. The request for arbitration must be made within one (1) year fromthe date of the occurrence giving rise to the dispute or claim; or, in the event of a statutoryclaim, the time set forth by statute.          7.3 Rules and Procedures. The arbitration will be referred to and finally settled byprivate and confidential binding arbitration before a single arbitrator held in Ontario in Englishand governed by the Ontario *Arbitration Act*, *1991*, as amended from time to time.          7.4 Arbitrator’s Authority. Upon finding that a claim is meritorious or in favor ofone of the parties to the dispute, the arbitrator shall have the authority to order legal andequitable remedies appropriate as permitted by law.          7.5 Expenses. Costs of obtaining and paying the arbiter and the costs associated withconducting the arbitration, including obtaining a facility to be used during the arbitration, shallbe paid by Tm. Other costs of the arbitration or any litigation associated with any disputearising under or in connection with this Agreement including, without limitation, reasonableattorneys’ and experts’ fees and expenses of Luminex, Tm and the Executive shall be borne by theparty incurring such expense unless the arbiter or court of law, as the case may be, awards coststo one of the parties.     **8. ****Miscellaneous**.          8.1 Waiver. The waiver of the breach of any provision of this Agreement shall notoperate or be construed as a waiver of any subsequent breach of the same or other provision hereof.          8.2 Entire Agreement; Modifications. Except as otherwise provided herein, thisAgreement represents the sole, entire, and complete understanding among the parties with respect tothe subject matter hereof, and this Agreement supersedes any and all prior understandings,agreements, plans and negotiations, whether written or oral, with respect to the subject matterhereof, including without limitation any understandings, agreements or obligations 

 

- 13 -respecting any past or future compensation, bonuses, reimbursements or other payments toExecutive from Tm.          For greater certainty, Executive acknowledges and agrees that:               8.2.1 this Agreement supersedes in its entirety the agreement made as of September 5, 2006between Tm and Executive (the “September 5 Agreement”),               8.2.2 the September 5 Agreement is terminated and of no further force or effect as of theEffective Date, and               8.2.3 notwithstanding the termination of the September 5 Agreement and the provisions ofArticle 4 thereof, in consideration of the payments and benefits being provided by Luminex and Tmto Executive under this Agreement, Executive has voluntarily accepted and agreed to the terms setout in the Agreement in full and final satisfaction of and in substitution for all claims that hemight have as a result of the termination of the September 5 Agreement and, in particular,Executive expressly waives all entitlement to any payments that might otherwise be payable to himunder the September 5 Agreement as a result of its termination, including, without limitation, thepayments contemplated by paragraph 4.2(c) thereof.          All modifications to the Agreement must be in writing and signed by each of Luminex, Executiveand Tm.          8.3 Notices. All notices and other communications under this Agreement shall be inwriting and shall be given by facsimile or first class mail, certified or registered with returnreceipt requested, and shall be deemed to have been duly given three business days after mailing orone business day after transmission of a facsimile (with confirmation of receipt) to the respectivepersons named below:         If to Luminex or Tm: Luminex Corporation      Attn: General Counsel      12212 Technology Blvd.      Austin, Texas 78727      Fax: (512) 219-6325           If to Executive: Jeremy Bridge-Cook      150 Browning Ave.      Toronto, ON, Canada      M4K 1W5  Any party may change such party’s address for notices by notice duly given pursuant to this Section8.3.          8.4 Headings. The Section headings herein are intended for reference and shall not bythemselves determine the construction or interpretation of this Agreement. 

 

- 14 -          8.5 Governing Law; Venue. This Agreement shall be governed by and construed inaccordance with the laws of the Province of Ontario. Subject in all respects to Section 7generally and Section 7.3 in particular, any dispute arising out of or relating to this Agreementmay be brought in a court of competent jurisdiction located in Toronto, Ontario, and each of theparties to this Agreement irrevocably submits to the exclusive jurisdiction of such courts in anysuch dispute, waives any objection it may now or hereafter have to venue or to convenience offorum, agrees that all claims in respect of the dispute shall be heard and determined only in anysuch court, and agrees not to bring any dispute arising out of or relating to this Agreement in anyother court. The parties agree that any one or all of them may file a copy of this paragraph withany court as written evidence of the knowing, voluntary and bargained agreement among the partiesirrevocably to waive any objections to venue or to convenience of forum. Process in any disputemay be served on any party anywhere in the world.          8.6 Severability. Should any court of competent jurisdiction determine that anyprovision of this Agreement is illegal or unenforceable to any extent, such provision shall beenforced to the extent permissible and all other provisions of this Agreement shall continue to beenforceable to the extent possible.          8.7 Counterparts. This Agreement may be executed in one or more counterparts, all ofwhich taken together shall constitute one and the same Agreement.          8.8 Assignment. Neither this Agreement nor any duties or obligations hereunder may beassigned by any party without the prior written consent of the other parties; provided, however,that Luminex and/or Tm may assign this Agreement to either (i) a wholly-owned subsidiary of Luminexand/or Tm (provided, however, that such assignment shall not relieve Luminex or Tm of itsobligations hereunder) or (ii) a Person acquiring substantially all of Luminex’s or Tm’s assets ifsuch acquisition would constitute a Change in Control.          8.9 Withholding. All compensation and benefits payable to Executive hereunder shallbe reduced by all federal, state, local and other withholdings and similar taxes and paymentsrequired by applicable law.          8.10 Acknowledgment. The Executive acknowledges that: (a) the Executive has had sufficient time to reviewthis Agreement thoroughly;  (b) the Executive has read and understands theterms of this Agreement and the obligations hereunder;  (c) the Executive has been given an opportunity toobtain independent legal advice concerning the interpretation andeffect of this agreement; and, 

 

- 15 - (d) the Executive has received a fully executedcounterpart copy of this Agreement.          8.11 No Conflicts. The execution, delivery and performance of this Agreement by theExecutive will not conflict with, or result in the breach or termination of, or constitute adefault under, any agreement, commitment or other instrument, or any order, judgment or decree, towhich the Executive is a party or by which the Executive is bound. 

 

- 16 -     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and yearfirst above written.             LUMINEX CORPORATION               By: /s/ Patrick J. Balthrop                Tm BIOSCIENCE CORPORATION               By: /s/ Richard Janeczko                EXECUTIVE           /s/ Donna Ford   /s/ Jeremy Bridge-Cook           WITNESS   JEREMY BRIDGE-COOK