Exhibit 10.2


 





 


NONCOMPETITION AGREEMENT


 


Danaher Corporation, an “at will” employer, believes that
recruiting and retaining the very best people to work in its highly competitive
businesses means treating them fairly, rewarding their contributions, and thereby
establishing a strong partnership for our collective well-being and continued
success.  Employment at Danaher and its
divisions typically provides associates with specialized and unique knowledge
and confidential information, which, if used in competition with Danaher, would
cause harm to Danaher.  As such, it is
reasonable to expect a commitment from our associates that protects Danaher’s
interests and therefore their own interests. 
You are encouraged to read and sign this Agreement in the spirit intended:
our collective long-term growth and success.


 


Danaher Corporation, a Delaware corporation headquartered at 2099 Pennsylvania Avenue,
12th Floor, Washington, D.C. 20006 (“the Company” or “Danaher”) and Daniel A.
Raskas who resides at 601
Stonington Road, Silver Spring, MD (“the
Associate”) agree as follows:


 


1.                                       General.  The Company employs the
Associate and the Associate accepts employment to render services on behalf of
the Company, subject to the supervision and direction of the President of the Company
or his duly authorized designee. Said employment shall continue until the date
on which the employment relationship is terminated at the will of either party.


 


2.                                       Noncompetition and nonsolicitation.


 


(a)                                  During the Associate’s employment with the Company,
the Associate shall not directly or indirectly:


 


(A)                              perform services of any nature or in any
capacity whatsoever for any business, person, or entity which is engaged in
product lines which compete with and/or which is in competition with Danaher or
any subsidiary of Danaher;


 


(B)                                engage in any product lines which compete
with Danaher or any subsidiary of Danaher;


 


(C)                                except on behalf of Danaher or any subsidiary
of Danaher, sell, offer to sell or solicit any orders for the purchase of any
products and/or services which are the same as or similar to those sold by
Danaher or any subsidiary of Danaher, to or from any customer, person or
entity; or


 


(D) otherwise perform any services, sell any products or engage in any
activities in any capacity whatsoever which are in competition with Danaher or
any subsidiary of Danaher.


 


(b)                                 For a 12-month period following the
termination of the Associate’s employment with the Company, whether the
termination is voluntary or involuntary, the Associate will not, directly or
indirectly, on behalf of himself or herself or for any entity, business or
person other than, Danaher or any subsidiary of Danaher:


 


(A)                              compete with Danaher anywhere in the United
States (the “Restricted Area”), or


 


(i)                                     accept employment (as a director, officer,
employee, independent contractor, representative, consultant, member or
otherwise) with a business, entity (including without limitation any business
or entity started by the Associate) or person that competes directly or
indirectly with any product or service of the Company within the Restricted
Area,


 

















 


(ii)                                  provide any services similar to the services
the Associate provided to or on behalf of the Company, or any other advice or
consulting services, to a business, entity (including without limitation any
business or entity started by the Associate) or person that competes directly
or indirectly with any product or service of the Company within the Restricted
Area, or


 


(iii)                               invest in or otherwise hold any interest in (except for passive ownership
of up to 3% of the outstanding capital stock of any publicly traded
corporation, so long as the Associate complies with clauses (i) and (ii)
above), a business, entity (including without limitation any business or entity
started by the Associate) or person that competes directly or indirectly with
any product or service of the Company within the Restricted Area.


 


(B)                                sell, offer to sell, or solicit any orders
for the purchase of, to or from any customer, any products and/or services
similar to those upon which or with which the Associate worked, or about which
the Associate acquired knowledge, while employed by Danaher or any subsidiary
of Danaher. For purposes of this Agreement, the term “customer” means any
person, business or entity, or any person, business, or entity subject to the
control of any such person, business or entity, that during the 24  months immediately preceding termination
of Associate’s employment with the Company:


 


(i)                                     sought, inquired about, or purchased any
products or services of the Company or of any Danaher entity for whom Associate
worked during such 24 month period (the Company and any such other Danaher
entity or entities are referred to as the “Employing Companies”);


 


(ii) contacted any of the Employing Companies for
the purpose of seeking or purchasing any products or services of any of the
Employing Companies;


 


(iii) was contacted by any of the Employing
Companies for the purpose of selling its products or services; and/or


 


(iv) received a written and/or verbal sales proposal
from any of the Employing Companies.


 


(C)                                use, incorporate or otherwise create any
business entity or organization or domain name using, any name confusingly
similar to the name of Danaher Corporation or of any subsidiary of Danaher, or
any other name under which any of those entities does business.


 


3.                                       Nonpiracy.  During the Associate’s
employment and for a 12-month period following the termination of the
Associate’s employment with the Company, whether the termination is voluntary
or involuntary, the Associate will not directly or indirectly, on behalf of
himself or herself, or for any other entity, business, or person:


 


(1)                                  hire, entice, induce, solicit or attempt to
hire, entice, induce or solicit any employee of the Company to leave the
Company’s employ (or the employ of any subsidiary of the Company, as
applicable) or cause any employee of the Company to become employed in any
business that is directly or indirectly competitive with the Company for any
reason whatsoever,


 


(2)                                  assist or encourage in any manner, including
without limitation through the providing of advice or information, any employee
of the Company to leave the Company’s employ (or the employ of any subsidiary
of the Company, as applicable), or


 


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(3)                                  suggest or recommend in any manner, including
through the providing of advice or information, that any business, person or
entity hire, entice, induce, solicit, cause or attempt to hire, entice, induce
or solicit or cause any employee of the Company to leave the Company’s (or the
employ of any subsidiary of the Company, as applicable).


 


 For purposes of this Agreement, the term
“employee of the Company” shall include each person who as of the date of
termination of the Associate’s employment is, or at any time within the 6-month
period preceding such date was, (1) employed by Danaher or any of its
subsidiaries whether on a full-time or part-time basis, or (2) providing
full-time services to, or working as an independent contractor for, Danaher or
any of its subsidiaries.


 


4.                                       Nondisclosure.


 


(a)                                  The Associate agrees with the Company that he
or she will not at any time during the Associate’s employment by the Company or
at any time after any termination of said employment, whether it be voluntary
or involuntary, except in performing his or her employment duties to the
Company or any affiliate of the Company under this Agreement, directly or
indirectly, use, disclose, or publish, or knowingly or negligently permit
others not so authorized to use, disclose, or publish, (1) any information,
data or other assets or property of the Company or any of its affiliates, in
whatever form, including without limitation the Danaher Business System and any
information relating to any current or former employee of the Company, or (2)
without limiting the foregoing, any Confidential Information that the Associate
may learn or become aware of, or may have learned or become aware of, because
of the Associate’s prior or continuing employment, ownership, or association
with the Company or any predecessors or affiliates thereof, or use, or
knowingly or negligently permit others not so authorized to use, any such
information in a manner detrimental to the interests of the Company or any
affiliates thereof.


 


(b)                                 The Associate agrees not to use in working
for the Company or any of its affiliates and not to disclose to the Company or
any affiliate thereof any trade secrets or other information the Associate does
not have the right to use or disclose and that the Company and its affiliates
are not free to use without liability of any kind.  The Associate agrees to inform the Company promptly in writing of
any patents, copyrights, trademarks, or other proprietary or intellectual property
rights known to the Associate that the Company or any of its affiliates might
violate because of information provided by the Associate.


 


(c)                                  The Associate confirms that all assets and
properties of the Company and its affiliates, including without limitation
Confidential Information, is and must remain the exclusive property of the
Company or the relevant affiliate thereof. 
All such assets and property, including without limitation all office
equipment (including computers) the Associate receives from the Company or any
affiliate thereof in the course of the Associate’s employment and all business
records, business papers, and business documents the Associate keeps or
creates, whether on digital media or otherwise, in the course of the
Associate’s employment relating to the Company or any affiliate thereof, must
be and remain the assets and property of the Company or the relevant
affiliate.  Upon the termination of the
Associate’s employment with the Company, whether it be voluntary or
involuntary, whenever that termination of employment may occur, or upon the
Company’s request at any time, the Associate must promptly deliver to the
Company or to the relevant affiliate all such assets and property, including
without limitation any such office equipment (including computers) and any
Confidential Information or other records or documents (written or otherwise),
and any copies, excerpts, summaries or compilations of the foregoing, made by
the Associate or that came into the Associate’s possession during the
Associate’s employment.  The Associate
agrees that he or she will not retain any such assets or property, including
without limitation copies, excerpts, summaries, or compilations of the
foregoing information, records and documents.


 


(d)                                 “Confidential Information” includes, without
limitation, any matters protected under the Uniform Trade Secrets Act and any
information that neither the Company nor any of its affiliates has previously
disclosed to the public with respect to the present or future business of the
Company or of any of its affiliates, including their respective operations,
services, products, research, inventions, invention disclosures, discoveries,
drawings, designs, plans, processes, models, technical information, facilities,
methods, systems, trade secrets, copyrights, software, source code, object
code, patent applications,


 


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procedures,
manuals, specifications, any other intellectual property, confidential reports,
price lists, pricing formulas, customer lists, financial information (including
the revenues, costs, or profits associated with any products or services),
Talent Reviews and Organizational Plans, business plans, information regarding
all or any portion of the Danaher Business System, lease structure,
projections, prospects, opportunities or strategies, acquisitions or mergers,
advertising or promotions, personnel matters, legal matters,  any other confidential or proprietary
information, and any other information not generally known outside the Company
and its affiliates that may be of value to the Company or any of its
affiliates, but excludes any information already properly in the public
domain.   “Confidential Information”
also includes, without limitation, confidential and proprietary information and
trade secrets that third parties entrust to the Company or any of its
affiliates in confidence.


 


(e)                                  The Associate understands and agrees that the
rights and obligations set forth in this Nondisclosure
section will continue indefinitely and will survive termination of the Associate’s
employment with the Company.


 


5.
            Works-made-for-hire and
Intellectual Property.


 


(a)                                  The Associate agrees that all records (in
whatever media), written works, documents, papers, notebooks, drawings,
designs, technical information, source code, object code, algorithms,
processes, methods, ideas, formulas, inventions (whether patentable or not),
invention disclosures, discoveries, improvements, other copyrightable or
protected works, or any other intellectual property, developed, conceived,
acquired, created, authored, reduced to practice, from which derivative works
are prepared, made, invented, or discovered by the Associate (whether or not
during usual working hours, and whether individually or jointly with others)
that relate to, result from or are suggested by any work or task performed by
the Associate for or on behalf of the Company or any affiliate thereof, or that
arise from the use or assistance of the facilities, materials, personnel, or
Confidential Information of the Company or any affiliate thereof, or that
otherwise relate to the actual or anticipated research, development or business
of the Company or any affiliate thereof, will be and remain the absolute
property of the Company (or the relevant affiliate thereof), as will all the
worldwide patent, copyright, trademark, service mark and trade secret rights,
any associated registrations, applications, renewals, extensions,
continuations, continuations-in-part, requests for continued examination,
divisions, or reissues thereof or any foreign equivalents thereof, and all
other intellectual property rights relating to the foregoing (all items
referred to in this sentence are collectively referred to as the “Intellectual
Property”).  The Associate irrevocably
and unconditionally waives all rights, wherever in the world enforceable, that
vest in the Associate (whether before, on, or after the date of this Agreement)
in connection with any such Intellectual Property in the course of the
Associate’s employment with the Company, any affiliate thereof or any
predecessor of any of the foregoing. 
The Associate recognizes all such Intellectual Property constitutes
“works made for hire” for which the Company retains all rights, title, and
interest to any underlying rights, including copyright protections.  If for any reason any such Intellectual Property is not deemed to be a
“work made for hire,” consistent with the undertakings below, the Associate
hereby assigns all rights, title and interest in any such Intellectual Property
to the Company (or the applicable affiliate thereof, as directed by the
Company).


 


(b)                                 The Associate will promptly disclose, and
hereby grants, and assigns all rights, title, and interest in all Intellectual
Property, to the Company (or the applicable affiliate thereof, as specified by
the Company) for its or their sole use and benefit.  At all times, both during and after the Associate’s employment by
the Company, the Associate agrees to assist the Company in taking the proper
steps, including executing any required documents, to obtain patents,
copyrights or other legal protection for the Intellectual Property and to
assign such Intellectual Property and the rights to any applications associated
therewith to the Company, if the Company so desires, but all at the Company’s
direction and expense.  At all times,
both during and after the Associate’s employment by the Company, the Associate
agrees not to claim any rights to any Intellectual Property as having been
created, conceived or acquired by the Associate prior to the Associate’s
employment by the Company, unless such Intellectual Property is identified on a
sheet attached to this Agreement and signed by the Associate as of the date of
this agreement.


 


(c)                                  The Associate understands and agrees that the
rights and obligations set forth in this Works-made-for-hire
and Intellectual Property section will continue indefinitely
and will survive 


 


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termination
of the Associate’s employment with the Company, whether the termination is
voluntary or involuntary.


 


6.                                       Termination Payment.   In
consideration of the Associate’s promises and commitments reflected in
paragraphs 2, 3, 4, 5 and 15 herein, the Company agrees that if the Company
terminates the Associate’s employment “without cause” (as defined below) prior
to termination of this Agreement, the Associate shall be entitled to nine
months salary (excluding incentive compensation, bonus amounts, benefits and
similar items) at the rate in effect at the time of termination to be paid on
the same schedule as if Associate were still employed (the “Termination
Payments”).  The Company will reduce the
amount of any Termination Payments for withholding and FICA taxes and any other
withholdings and contributions required by law.  If the Company terminates the Associate for “cause,” or if the
Associate terminates his or her employment for any reason, the Associate shall
not be entitled to any Termination Payments. 
The Associate further acknowledges that a transfer to Danaher or a
subsidiary of Danaher shall in no event constitute a “termination” of any kind
for purposes of Sections 6 or 7 hereof.


 


(a)                                  For purposes of this Agreement, termination
“without cause” shall mean that the Company terminates the Associate’s
employment for any reason, including in a reduction-in-force, other than for
“cause.”  “Cause” shall include the
following, to be determined in the reasonable judgment of the Company:


 


(i)                                     the Associate’s fraud, misappropriation,
embezzlement, willful misconduct or gross negligence with respect to Danaher or
any subsidiary thereof, or any other action in willful disregard of the
interests of Danaher or any subsidiary thereof;


 


(ii)                                  the Associate’s conviction of, or pleading
guilty or no contest to (1) a felony, (2) any misdemeanor (other than a traffic
violation) with respect to his/her employment, or (3) any other crime or
activity that would impair his/her ability to perform his/her duties or impair
the business reputation of Danaher or any subsidiary thereof;


 


(iii)                               the Associate’s refusal or willful failure to adequately perform any
duties assigned to him/her;


 


(iv)                              the Associate’s willful failure or refusal to comply with Danaher
standards, policies or procedures, including without limitation Danaher’s
Standards of Conduct as amended from time to time;


 


(v)                                 the Associate’s material misrepresentation or
breach of any of his or her representations, obligations or agreements under
this Agreement;


 


(vi)                              the Associate’s death; or


 


(vii)                           the Associate’s incapacity due to physical or mental illness that
results in his/her absence from work on a full-time basis for twelve
consecutive months.


 


(b)                                 Notwithstanding anything in this
Section 6 to the contrary, the Associate agrees that in the event of a
breach by the Associate of any of his/her covenants contained in Sections 2, 3,
4, 5 or 15 herein, in addition to any and all other remedies available to the
Company, (1) the Associate shall return to the Company any Termination Payments
theretofore received, in addition to any other damages or remedies available to
the Company, and (2) the Company shall have no obligation to pay, and the
Associate shall have no right to receive, any and all unpaid or remaining
Termination Payments.  Notwithstanding
anything to the contrary herein, to the extent a court, governmental authority
or other administrative body invalidates or renders unenforceable all or any
portion of the covenants contained in Sections 2, 3, 4, 5 or 15 herein, the
parties hereto agree that the Termination Payments otherwise payable (including
any installments that have already been paid to Associate) shall be reduced
proportionally, up to and including eliminating the Termination Payment in its
entirety to the extent the Agreement is rendered unenforceable in its entirety.


 


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7.                                       Severance Payment.  The
Company agrees that if the Company terminates the Associate’s employment
“without cause” (as defined in paragraph 6(a) above) prior to termination of
this Agreement, the Associate shall be entitled to severance pay of three
months salary  (excluding incentive
compensation, bonus amounts, benefits and similar items) at the rate in effect
at the time of termination to be paid on the same schedule as if the Associate
were still employed (the “Severance Payments”) provided the Associate
signs a release of all claims arising out of the Associate’s employment, and
discontinuance of employment, with Danaher and/or any subsidiaries of Danaher
to the extent applicable.  Such release
must be executed at the time of termination, and will be in the format of the
Company’s standard release in effect at the time of termination (a copy of the
current version is available for the Associate’s review.)  The Severance Payments will commence upon
completion of the Termination Payments provided for in paragraph 6 above, if
any.  The Company will reduce the amount
of any Severance Payments for withholding and FICA taxes and any other
withholdings and contributions required by law.  Notwithstanding anything in this Section 7 to the contrary,
the Associate agrees that in the event of a breach by the Associate of any of
his/her covenants contained in the aforementioned release, in addition to any
and all other remedies available to the Company, (1) the Associate shall return
to the Company any Severance Payments theretofore received, in addition to any
other damages or remedies available to the Company, and (2) the Company shall
have no obligation to pay, and the Associate shall have no right to receive,
any and all unpaid or remaining Severance Payments.


 


8.                                       Enforceability.  It
is the intention of the parties that the provisions of the restrictive
covenants herein shall be enforceable to the fullest extent permissible under
applicable law, but the unenforceability (or modification to conform to such
law) of any provision or provisions hereof shall not render unenforceable, or
impair, the remainder thereof.  If any
provision or provisions hereof shall be deemed invalid or unenforceable, either
in whole or in part, this Agreement shall be deemed amended to delete or
modify, as necessary, the offending provision or provisions and to alter the
bounds thereof in order to render it valid and enforceable.


 


9.                                       Damages and Relief.  The
Associate acknowledges and agrees that damages are an inadequate remedy for any
breach of the terms and conditions set forth in Sections 2, 3, 4, 5 and 15 of
this Agreement and agrees that in the event of a breach of such paragraphs, the
Company may, with or without pursuing any remedy for damages, immediately obtain
and enforce an ex parte, preliminary and permanent injunction prohibiting the
Associate from violating this policy. 
Further, in any civil action brought for a breach of this Agreement, the
Company shall be entitled to recover from the Associate all reasonable
attorneys’ fees, litigation expenses, and costs incurred by the Company if the
Company prevails in that action.


 


10                                    Consideration.  The
Associate acknowledges and agrees that this Agreement is supported by the
Termination Payment provision set forth in Section 6 above without regard
to whether the Associate receives any or all of the Termination Payment, as
well as the Associate’s offer of employment as Vice President of Corporate
Development.  The Associate further
agrees that such consideration is fair, reasonable and enforceable to its full
extent; that the Associate was given adequate time to consider this Agreement;
that the Company has an important and legitimate business interest that it is
seeking to protect with this Agreement; and that enforcement of this Agreement
would not interfere with the interests of the public.


 


11.                                 Governing Law. 
This Agreement shall be governed by and construed in accordance with the
substantive laws of the District of Columbia  without
regard for the choice of law provisions thereof.


 


12.                                 Termination.


 


(a)                                  The Associate understands, acknowledges and
agrees that the obligations and restrictions imposed upon him/her under this
Agreement shall apply regardless of whether the termination of his/her
employment is voluntary or involuntary, with or without cause.


 


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(b)                                 Unless the Associate is sooner terminated
pursuant to the terms of Section 6 of this Agreement, terminated by the
Company for cause or the Associate terminates his or her employment for any
reason, the Company shall upon prior written notice to the Associate have the
right to terminate this Agreement (1) on the second anniversary of this
Agreement and on every second anniversary thereafter, and (2) in connection
with any promotion of the Associate or transfer of the Associate to Danaher or
any subsidiary of Danaher; provided, that in connection with any such
termination the Company (or a subsidiary of Danaher, as applicable) shall offer
to the Associate an agreement containing terms substantially similar to the
terms set forth herein but taking into account the then-current status of the
applicable law.


 


(c)                                  Notwithstanding anything to the contrary set
forth herein, all of the Company’s obligations under this Agreement shall
terminate upon the earliest of the termination of the Associate’s employment
for cause, the Associate’s termination of his or her employment for any reason,
or the Company’s fulfillment of its obligations, if any, as set forth in
Sections 6 and 7 hereof.


 


13.                                 Amendment and  Waiver; Entire Agreement. This
Agreement shall not be amended except by a written instrument hereafter signed
by the Company and the Associate.  The
failure of the Company to enforce, or delay in enforcing, any term of this
Agreement shall not constitute a waiver of any rights or deprive the Company of
the right to insist thereafter upon strict adherence to that or any other term
of this Agreement, nor shall a waiver of any breach of this Agreement
constitute a waiver of any preceding or succeeding breach.  No waiver of a right under any provision of
this Agreement shall be binding on the Company unless made in writing and
signed by the President of the Company. 
This Agreement contains the entire understanding of Danaher and the
Associate relating to the subject matter hereof and supersedes all prior
agreements and understandings relating to the subject matter hereof between the
Associate on the one hand and Danaher and/or any current or former subsidiary
of Danaher on the other hand, including without limitation any similar
agreement entered into prior to the date hereof between the Associate on the
one hand and Danaher and/or any current or former subsidiary of Danaher on the
other hand.


 


14.                                 Successors and Assigns. This Agreement shall be binding upon the
Associate and his/her heirs, successors, assigns and personal representatives,
and inure to the benefit of the Company, its successors and its assigns. The
Associate may not assign any rights or duties under this Agreement; the Company
may assign any or all of its rights and/or duties herein to any subsidiary or
subsidiaries of the Company.  The term
“affiliate,” when used herein, shall not include any officers or directors of
the Company.


 


15.                                 Nondisparagement.  The
Associate agrees that except as required under the law, the Associate will
refrain from making derogatory or disparaging written or oral comments
regarding the Company, any of its affiliates or any of their respective
products, services or personnel.


 


16.                                 Right of Set-Off.  The
Company shall have the right, but not the obligation, to set off, in whole or
in part, against any obligation it owes to the Associate under this Agreement
or under any release, amounts owed to Danaher or any Danaher subsidiary by the
Associate.


 


17.                                 Acknowledgment of Understanding; Livelihood. The Associate acknowledges that s/he has
read this Agreement in its entirety and understands all of its terms and
conditions, that s/he has had the opportunity to consult with legal counsel of
his/her choice regarding his/her agreement to the provisions contained herein,
that s/he is entering into this Agreement of his/her own free will, without
coercion from any source, and that s/he agrees to abide by all of the terms and
conditions herein contained. The Associate further acknowledges that in
consideration of the Associate’s right to terminate his/her employment with the
Company at any time for any reason, Associate agrees that s/he is employed by
the Company on an at-will basis. 
Nothing contained in this Agreement or elsewhere shall be construed as
limiting the effect of this paragraph. 
The Associate acknowledges that Associate’s knowledge, skills and
abilities are sufficient to enable the Associate, in the event of the
termination of employment with the Company, to earn a satisfactory livelihood
without violating this Agreement.


 


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  Associate:

  	
   /s/ Daniel A. Raskas

  	
   

  	
   

  	
  Date:

  	
  September 30, 2004

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Company:

  	
  By:

  	
  /s/ Daniel L. Comas

  	
   

  	
  Date:

  	
  September 30, 2004

  
	
   

  	
   

  	
   Name:

  	
   

  	
   

  
	
   

  	
   

  	
   Title:

  	
   

  	
   

  
							



 


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