EXHIBIT 10.60
September 17, 2003
Xxxxxxx X. Xxxxxx III
Caliper Technologies Corp.
000 Xxxxxxxxx Xx.
Xxxxxxxx Xxxx, XX 00000-0000
Dear Xxxx:
This letter constitutes the agreement (the "Agreement") that Caliper
Technologies Corp. (Caliper) is offering to you to terminate your employment at
Caliper.
1. SEPARATION. Subject to the terms and condition contained
herein, your employment with Caliper will continue until December 31, 2003 (the
"Separation Date"), at which time your employment with Caliper will terminate.
On the Separation Date, Caliper will pay you all accrued salary and all accrued
and unused vacation and flex time earned through the Separation Date, subject to
standard payroll deductions and withholdings.
2. SEVERANCE. Provided you perform your Transition Period
obligations through the Separation Date, execute the Release on or within
forty-five (45) days after the Separation Date, allow the Release to become
effective, and have not breached this Agreement or your Proprietary Information
and Inventions Agreement, then Caliper will pay you, as Severance, the
equivalent of six (6) months of your base salary ($109,296), subject to standard
payroll deductions and withholdings. The Severance will be paid in a lump sum
within ten (10) days of the Employment Termination Release Effective Date (as
defined in the Release). Caliper will also provide you with, as Severance, the
executive outplacement package through your choice of either Xxxxxxx
Xxxxxxxxxxxx & Co. or TMS Consulting.
3. TRANSITION PERIOD.
(a) DUTIES. Between now and the Separation Date (the
"Transition Period"), you will continue to work for Caliper as its Vice
President of Partnership Operations. You will be expected to transition your job
duties, and to perform such tasks, as requested by Xxx Xxxxxxxx or Xxxxx Xxx (or
their designee). During the Transition Period, you are expected to comply with
Caliper's policies, the terms of your Employee Proprietary Information and
Inventions Agreement (which is attached hereto as Exhibit A), and the terms of
this Agreement.
(b) COMPENSATION AND BENEFITS. Caliper will continue to
compensate you for your services based on your full-time monthly base salary of
$18,216 (annualized $218,592) throughout the Transition Period. These payments
will be made on Caliper's ordinary payroll dates, and will be subject to
standard payroll deductions and withholdings. You will be eligible to continue
your current Caliper benefits subject to the terms and limitations of the
applicable plans. On the Separation Date, Caliper will pay you all accrued
salary and all accrued and
Xxxxxxx X. Xxxxxx III
September 17, 2003
Page 2
unused vacation and flex time earned through the Separation Date, subject to
standard payroll deductions and withholdings.
(c) OTHER ACTIVITIES. During the Transition Period, you
agree not to undertake or engage in any other employment, occupation or business
enterprise, other than ones in which you are a passive investor. You may engage
in civic and not-for-profit activities so long as such activities do not
materially interfere with the performance of your duties hereunder.
(d) EARLY TERMINATION OF TRANSITION PERIOD BY CALIPER. If
you do not provide the services described above, fail to comply with Caliper
policies, or breach the terms of this Agreement and/or any other agreement you
have with Caliper, including your Proprietary Information and Inventions
Agreement, Caliper will terminate the Transition Period and your employment
prior to the Separation Date. In the event of such termination, you only will
receive accrued salary and accrued but unused vacation and flex time (subject to
standard deductions and withholdings) and benefits, including stock option
vesting, through your actual employment termination date.
4. CONSULTANCY. Provided you complete the Transition Period and
execute and allow to become effective the attached Separation Date Release
(EXHIBIT B), Caliper agrees to retain you to provide consulting services, under
the terms specified below.
(a) CONSULTING PERIOD. The consulting relationship shall
commence on January 1, 2004 and continue until the earlier of: (i) September 30,
2004; (ii) the date you breach your obligations under this Agreement; or (iii)
the date you engage in any activity competitive with the interests of Caliper
(the "Consulting Period").
(b) CONSULTING DUTIES. You agree to make yourself
available during the Consulting Period, upon Caliper's reasonable request, to
provide consulting services in any area of your experience or expertise, for a
minimum of ten (10) hours per month ("Consulting Duties"). You shall perform
your Consulting Duties at the request and direction of the CEO, exercising the
highest degree of professionalism and utilizing your expertise and creative
talents.
(c) CONSULTING FEES. During the Consulting Period,
Caliper will make payments to you as earned at a rate of $200 per hour
("Consulting Fees"). These payments will be made on Caliper's ordinary payroll
dates. Caliper will pay COBRA premiums through the consulting period, provided
that you return the election form to Caliper.
(d) TAXES AND WITHHOLDING. Because you will perform your
consulting services as an independent contractor, Caliper will not withhold from
the Consulting Fees any amount for taxes, social security or other payroll
deductions. Caliper will report your Consulting Fees on IRS Form 1099. You
acknowledge that you will be entirely responsible for payment of any taxes which
may be due with regard to the Consulting Fees, and you hereby indemnify and save
harmless Caliper from any liability for any taxes, penalties or interest that
may be assessed
Xxxxxxx X. Xxxxxx III
September 17, 2003
Page 3
by any taxing authority with respect to the Consulting Fees, with the exception
of the employer's share of social security, if any.
(e) PROTECTION OF CONSULTING INFORMATION. You agree that,
during the Consulting Period and thereafter, you will not use or disclose any
confidential or proprietary information or materials of Caliper which you obtain
or develop in the course of performing the Consulting Duties, except with the
written permission of Caliper's CEO. Any and all work product you create in
connection with the Consulting Duties will be the sole and exclusive property of
Caliper. You hereby assign to Caliper all right, title, and interest in all
inventions, techniques, processes, materials, and other intellectual property
developed in the course of performing the Consulting Duties.
(f) AUTHORITY DURING CONSULTING PERIOD. After the
Separation Date, you will have no authority, in the absence of the express
written consent of the Board and CEO, to bind Caliper (or to represent that you
have authority to bind Caliper) to any contractual obligations, whether written,
oral or implied. You agree that after the Separation Date, you will not
represent or purport to represent Caliper in any manner whatsoever to any third
party unless authorized to do so in writing by the CEO.
(g) FACILITIES USAGE DURING CONSULTING PERIOD. During the
Consulting Period, you will have access to Caliper's facilities solely to the
extent authorized in advance by Caliper's CEO in connection with the consulting
duties or projects assigned to you. In connection with any use of Caliper's
facilities, you agree to abide by all Caliper policies and procedures.
(h) OTHER ACTIVITIES. You acknowledge that in providing
consulting services to Caliper you will be an independent contractor to Caliper
and not an employee, partner, or joint venturer of Caliper. You may engage in
other employment or consulting relationships in addition to your work for
Caliper during the Consulting Period, provided that such relationships do not
involve providing services to any competitor of Caliper or unreasonably
interfere with your provision of consulting services to Caliper. If you are not
certain if an entity is a competitor of Caliper, you shall, in advance of
providing any services to such entity, notify Caliper in writing of the name of
the entity for whom services are to be provided and provide a written
description of the services to be provided. Within seven (7) days of its receipt
of such written notification, Caliper will advise you as to whether it will
consent to the proposed service arrangement. Caliper agrees to make reasonable
arrangements to enable you to perform your services for Caliper at such times
and in such a manner so that it does not unreasonably interfere with other work
activities in which you may engage.
5. STOCK OPTION VESTING. Your stock option shares will continue
to vest subject to your continuous service during the Transition Period and
Consulting Period under the terms of the applicable stock option plan(s) and
stock option agreement(s). You may exercise your vested
Xxxxxxx X. Xxxxxx III
September 17, 2003
Page 4
option shares pursuant to your written stock option agreement(s) and the
applicable plan(s) governing those agreement(s).
6. HEALTH INSURANCE. To the extent provided by the federal COBRA
law and by Caliper's current group health insurance policies, you will be
eligible to continue your group health insurance benefits at your own expense
after your Consulting Period terminates. Later, you may be able to convert to an
individual policy at your own expense, if you wish.
7. 401(k) PLAN. You will cease to be eligible to make any further
contributions to your 401(k) plan account after your employment terminates. You
will receive information concerning your distribution and rollover rights with
regard to your 401(k) plan account under separate cover.
8. EXPENSE REIMBURSEMENTS. You agree that, within thirty (30)
days of the Separation Date or your actual employment termination date,
whichever is earlier, you will submit your final documented expense
reimbursement statement reflecting all business expenses you incurred through
your last date of employment, if any, for which you seek reimbursement. Caliper
will reimburse you for these expenses pursuant to its regular business practice.
9. OTHER COMPENSATION OR BENEFITS. You acknowledge that, except
as expressly provided in this Agreement, you will not receive any additional
compensation, severance or benefits after your employment terminates.
10. RETURN OF CALIPER PROPERTY. On the Separation Date or your
actual employment termination date, whichever is earlier, you agree to return to
Caliper all Caliper documents (and all copies thereof) and other Caliper
property which you have had in your possession at any time, including, but not
limited to, all Caliper files, notes, drawings, records, business plans and
forecasts, financial information, specifications, computer-recorded information,
tangible property (including, but not limited to, computers), credit cards,
entry cards, identification badges and keys; and, any materials of any kind
which contain or embody any proprietary or confidential information of Caliper
(and all reproductions thereof) (collectively, "Caliper Property"). You agree to
conduct a good faith search of your personal belongings and home and office
areas to ensure your compliance with your obligations under this paragraph. If
you are not able to return all Caliper Property in your possession on your
actual employment termination date, you will have until three (3) days
thereafter to do so.
11. PROPRIETARY INFORMATION OBLIGATIONS. You hereby acknowledge
and agree to abide by your continuing obligations under your Proprietary
Information and Inventions Agreement, a copy of which is attached hereto as
EXHIBIT A.
12. NONDISPARAGEMENT. You agree not to disparage Caliper and
Caliper's officers, directors, employees, shareholders and agents, in any manner
likely to be harmful to them or their business, business reputation or personal
reputation; provided that you may respond
Xxxxxxx X. Xxxxxx III
September 17, 2003
Page 5
accurately and fully to any question, inquiry or request for information when
required by legal process.
13. NONINTERFERENCE. While employed by Caliper during the
Transition Period, and for two (2) years immediately following your employment
termination date, you agree not to interfere with the business of Caliper by
soliciting, attempting to solicit, inducing, or otherwise causing any employee
of Caliper to terminate his or her employment in order to become an employee,
consultant or independent contractor to or for a business, research enterprise
or academic institution engaged principally in the applications of microfluids
and/or nanotechnologies. Violation of the obligations in this paragraph shall
constitute a material breach of this Agreement.
14. RELEASE OF CLAIMS. In exchange for the consideration under
this Agreement to which you would not otherwise be entitled, you hereby
generally and completely release Caliper and its directors, officers, employees,
shareholders, partners, agents, attorneys, predecessors, successors, parent and
subsidiary entities, insurers, affiliates, and assigns from any and all claims,
liabilities and obligations, both known and unknown, that arise out of or are in
any way related to events, acts, conduct, or omissions occurring prior to
signing this Agreement. This general release includes, but is not limited to:
(1) all claims arising out of or in any way related to your employment with
Caliper or the termination of that employment; (2) all claims related to your
compensation or benefits from Caliper, including salary, bonuses, commissions,
vacation pay, expense reimbursements, severance pay, fringe benefits, stock,
stock options, or any other ownership interests in Caliper; (3) all claims for
breach of contract, wrongful termination, and breach of the implied covenant of
good faith and fair dealing; (4) all tort claims, including claims for fraud,
defamation, emotional distress, and discharge in violation of public policy; and
(5) all federal, state, and local statutory claims, including claims for
discrimination, harassment, retaliation, attorneys' fees, or other claims
arising under the federal Civil Rights Act of 1964 (as amended), the federal
Americans with Disabilities Act of 1990, the Age Discrimination in Employment
Act of 1967 ("ADEA"), and the California Fair Employment and Housing Act (as
amended).
15. ADEA WAIVER. You acknowledge that you are knowingly and
voluntarily waiving and releasing any rights you may have under the ADEA, and
that the consideration given for the waiver and release in the preceding
paragraph is in addition to anything of value to which you were already
entitled. You further acknowledge that you have been advised by this writing
that: (a) your waiver and release do not apply to any rights or claims that may
arise after the execution date of this Agreement; (b) you should consult with an
attorney prior to executing this Agreement (although you may choose not to do
so); (c) you have twenty-one (21) days to consider this Agreement (although you
may choose to voluntarily execute this Agreement earlier); (d) you have seven
(7) days following the execution of this Agreement by the parties to revoke the
Agreement in a writing to Caliper; and (e) this Agreement will not be effective
until the date upon which the revocation period has expired, which will be the
eighth day after the date
Xxxxxxx X. Xxxxxx III
September 17, 2003
Page 6
you execute this Agreement provided that Caliper has also executed this
Agreement by that date (the "Effective Date").
16. WAIVER. In granting the release of claims herein, you
understand that you are releasing claims that may be both known and unknown to
you. You hereby acknowledge that you have read and understand Section 1542 of
the California Civil Code which reads as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR.
You hereby expressly waive and relinquish all rights and benefits under Section
1542 and any law or legal principle of similar effect in any jurisdiction with
respect to your release of unknown and unsuspected claims.
17. SEPARATION DATE RELEASE. You agree, on or within forty-five
(45) days after the Separation Date, to execute and return to Caliper the
Separation Date Release attached hereto as EXHIBIT B.
18. ARBITRATION. To ensure rapid and economical resolution of any
disputes which may arise under this Agreement, you and Caliper agree that any
and all disputes or controversies of any nature whatsoever arising from or
regarding the interpretation, performance, enforcement or breach of this
Agreement shall be resolved, to the fullest extent permitted by law, by
confidential, final and binding arbitration conducted before a single arbitrator
with Judicial Arbitration and Mediation Services, Inc. ("JAMS") in San
Francisco, California, under the then-existing JAMS rules. BY AGREEING TO THIS
ARBITRATION PROCEDURE, BOTH YOU AND CALIPER WAIVE THE RIGHT TO RESOLVE ANY SUCH
DISPUTE THROUGH A TRIAL BY JURY, JUDGE OR ADMINISTRATIVE PROCEEDING. The parties
shall bear equally the costs and fees of the arbitration; however, the
arbitrator, in his or her sole discretion, shall be authorized to determine
whether and to what extent a party is the prevailing party, and if so, to award
to that prevailing party reimbursement for its reasonable attorneys' fees,
disbursements (including, without limitation, expert witness fees and expenses),
and costs arising from the arbitration. The arbitrator, and not a court, shall
also be authorized to determine whether the provisions of this paragraph apply
to a dispute, controversy or claim sought to be resolved in accordance with
these arbitration procedures. Nothing in this Agreement is intended to prevent
either you or Caliper from obtaining injunctive relief in court to prevent
irreparable harm pending the conclusion of any such arbitration.
19. MISCELLANEOUS. This Agreement, including Exhibits A and B,
constitutes the complete, final and exclusive embodiment of the entire agreement
between you and Caliper with regard to this subject matter. It is entered into
without reliance on any promise or representation, written or oral, other than
those expressly contained herein, and it supersedes any other such promises,
warranties or representations. This Agreement may not be modified or amended
except in a writing signed by both you and a duly authorized officer of Caliper.
This Agreement
Xxxxxxx X. Xxxxxx III
September 17, 2003
Page 7
shall bind the heirs, personal representatives, successors and assigns of both
you and Caliper, and inure to the benefit of both you and Caliper, their heirs,
successors and assigns. If any provision of this Agreement is determined to be
invalid or unenforceable, in whole or in part, this determination will not
affect any other provision of this Agreement and the provision in question shall
be modified by the court so as to be rendered enforceable. This Agreement shall
be deemed to have been entered into and shall be construed and enforced in
accordance with the laws of the State of California as applied to contracts made
and to be performed entirely within California.
If this Agreement is acceptable to you, please sign below and return the
original to me. On the Separation Date, please sign Exhibit B and return the
original to me.
I wish you luck in your future endeavors.
Sincerely,
CALIPER TECHNOLOGIES CORP.
By: /s/ Xxxxx Xxxxxxxxx
----------------------------------
XXXXX XXXXXXXXX
PRESIDENT AND CHIEF EXECUTIVE OFFICER
Exhibit A - Proprietary Information and Inventions Agreement
Exhibit B - Separation Date Release
AGREED:
/s/ Xxxxxxx X. Xxxxxx III
------------------------------------------
XXXXXXX X. XXXXXX III
Date: 9//18/2003
EXHIBIT A
PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
CALIPER TECHNOLOGIES CORP.
EMPLOYEE PROPRIETARY INFORMATION
AND INVENTIONS AGREEMENT
In consideration of my employment or continued employment by CALIPER
TECHNOLOGIES CORP. (the "COMPANY"), and the compensation now and hereafter paid
to me, I hereby agree as follows:
I. NONDISCLOSURE
1.1 RECOGNITION OF COMPANY'S RIGHTS; NONDISCLOSURE. At all times
during my employment and thereafter, I will hold in strictest confidence and
will not disclose, use, lecture upon or publish any of the Company's Proprietary
Information (defined below), except as such disclosure, use or publication may
be required in connection with my work for the Company, or unless an officer of
the Company expressly authorizes such in writing. I will obtain Company's
written approval before publishing or submitting for publication any material
(written, verbal, or otherwise) that relates to my work at Company and/or
incorporates any Proprietary Information. I hereby assign to the Company any
rights I may have or acquire in such Proprietary Information and recognize that
all Proprietary Information shall be the sole property of the Company and its
assigns.
1.2 PROPRIETARY INFORMATION. The term "PROPRIETARY INFORMATION"
shall mean any and all confidential and/or proprietary knowledge, data or
information of the Company. By way of illustration but not limitation,
"PROPRIETARY INFORMATION" includes (a) trade secrets, inventions, ideas,
processes, formulas, products, formulations, developmental or experimental work,
publications, clinical data, test data, methods, samples, media and/or call
lines, other works of authorship, know-how, improvements, discoveries,
developments, designs and techniques (hereinafter collectively referred to as
"INVENTIONS"); and (b) information regarding plans for research, development,
new products, marketing and selling, business plans, budgets and unpublished
financial statements, licenses, prices and costs, suppliers and customers; and
(c) information regarding the skills and compensation of other employees of the
Company. Notwithstanding the foregoing, it is understood that, at all such
times, I am free to use information which is generally known in the trade or
industry, which is not gained as result of a breach of this Agreement, and my
own, skill, knowledge, know-how and experience to whatever extent and in
whichever way I wish.
1.3 THIRD PARTY INFORMATION. I understand, in addition, that the
Company has received and in the future will receive from third parties
confidential or proprietary information ("THIRD PARTY INFORMATION") subject to a
duty on the Company's part to maintain the confidentiality of such information
and to use it only for certain limited purposes. During the term of my
employment and thereafter, I will hold Third Party Information in the strictest
confidence and will not disclose to anyone (other than Company personnel who
need to know such information in connection with their work for the Company) or
use, except in connection with my work for the Company, Third Party Information
unless expressly authorized by an officer of the Company in writing.
1.4 NO IMPROPER USE OF INFORMATION OF PRIOR EMPLOYERS AND OTHERS.
During my employment by the Company I will not improperly use or disclose any
confidential information or trade secrets, if any, of any former employer or any
other person to whom I have an obligation of confidentiality, and I will not
bring onto the premises of the Company any unpublished documents or any property
belonging to any former employer or any other person to whom I have an
obligation of confidentiality unless consented to in writing by that former
employer or person. I will use in the performance of my duties only information
which is generally known and used by persons with training and experience
comparable to my own, which is common knowledge in the industry or otherwise
legally in the public domain, or which is otherwise provided or developed by the
Company.
2. ASSIGNMENT OF INVENTIONS.
2.1 PROPRIETARY RIGHTS. The term "PROPRIETARY RIGHTS" shall mean
all trade secret, patent, copyright, mask work and other intellectual property
rights throughout the world.
2.2 PRIOR INVENTIONS. Inventions, if any, patented or unpatented,
which I made prior to the commencement of my employment with the Company are
excluded from the scope of this Agreement. To preclude any possible uncertainty,
I have set forth on Exhibit B (Previous Inventions) attached hereto a complete
list of all Inventions that I have, alone or jointly with others, conceived,
developed or reduced to practice or caused to be conceived, developed or reduced
to practice prior to the commencement of my employment with the Company, that I
consider to be my property or the property of third parties and that I wish to
have excluded from the scope of this Agreement (collectively referred to as
"PRIOR INVENTIONS"). If disclosure of any such Prior Invention would cause me to
violate any prior confidentiality agreement, I understand that
1
I am not to list such Prior Inventions in Exhibit B but am only to disclose a
cursory name for each such invention, a listing of the party(ies) to whom it
belongs and the fact that full disclosure as to such inventions has not been
made for that reason. A space is provided on Exhibit B for such purpose. If no
such disclosure is attached, I represent that there are no Prior Inventions. If,
in the course of my employment with the Company, I incorporate a Prior Invention
into a Company product, process or machine, the Company is hereby granted and
shall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide
license (with rights to sublicense through multiple tiers of sublicensees) to
make, have made, modify, use and sell such Prior Invention. Notwithstanding the
foregoing, I agree that I will not incorporate, or permit to be incorporated,
Prior Inventions in any Company Inventions without the Company's prior written
consent.
2.3 ASSIGNMENT OF INVENTIONS. Subject to Sections 2.4, and 2.6, I
hereby assign and agree to assign in the future (when any such Inventions or
Proprietary Rights are first reduced to practice or first fixed in a tangible
medium, as applicable) to the Company all my right, title and interest in and to
any and all Inventions (and all Proprietary Rights with respect thereto) whether
or not patentable or registrable under copyright or similar statutes, made or
conceived or reduced to practice or learned by me, either alone or jointly with
others, during the period of my employment with the Company. Inventions assigned
to the Company, or to a third party as directed by the Company pursuant to this
Section 2, are hereinafter referred to as "COMPANY INVENTIONS."
2.4 NONASSIGNABLE INVENTIONS. This Agreement does not apply to an
Invention which qualifies fully as a nonassignable Invention under Section 2870
of the California Labor Code (hereinafter "SECTION 2870"). I have reviewed the
notification on Exhibit A (Limited Exclusion Notification) and agree that my
signature acknowledges receipt of the notification.
2.5 OBLIGATION TO KEEP COMPANY INFORMED. During the period of my
employment and for six (6) months after termination of my employment with the
Company, I will promptly disclose to the Company fully and in writing all
Inventions authored, conceived or reduced to practice by me, either alone or
jointly with others. In addition, I will promptly disclose to the Company all
patent applications filed by me or on my behalf within a year after termination
of employment. At the time of each such disclosure, I will advise the Company in
writing of any Inventions that I believe fully qualify for protection under
Section 2870; and I will at that time provide to the Company in writing all
evidence necessary to substantiate that belief. The Company will keep in
confidence and will not use for any purpose or disclose to third parties without
my consent any confidential information disclosed in writing to the Company
pursuant to this Agreement relating to Inventions that qualify fully for
protection under the provisions of Section 2870. I will preserve the
confidentiality of any Invention that does not fully qualify for protection
under Section 2870.
2.6 GOVERNMENT OR THIRD PARTY. I also agree to assign all my
right, title and interest in and to any particular Invention to a third party,
including without limitation the United States, as directed by the Company.
2.7 WORKS FOR HIRE. I acknowledge that all original works of
authorship which are made by me (solely or jointly with others) within the scope
of my employment and which are protectable by copyright are "works made for
hire," pursuant to United States Copyright Act (17 U.S.C., Section 101).
2.8 ENFORCEMENT OF PROPRIETARY RIGHTS. I will assist the Company
in every proper way to obtain, and from time to time enforce, United States and
foreign Proprietary Rights relating to Company Inventions in any and all
countries. To that end I will execute, verify and deliver such documents and
perform such other acts (including appearances as a witness) as the Company may
reasonably request for use in applying for, obtaining, perfecting, evidencing,
sustaining and enforcing such Proprietary Rights and the assignment thereof. In
addition, I will execute, verify and deliver assignments of such Proprietary
Rights to the Company or its designee. My obligation to assist the Company with
respect to Proprietary Rights relating to such Company Inventions in any and all
countries shall continue beyond the termination of my employment, but the
Company shall compensate me at a reasonable rate after my termination for the
time actually spent by me at the Company's request on such assistance.
In the event the Company is unable for any reason, after reasonable
effort, to secure my signature on any document needed in connection with the
actions specified in the preceding paragraph, I hereby irrevocably designate and
appoint the Company and its duly authorized officers and agents as my agent and
attorney in fact, which appointment is coupled with an interest, to act for and
in my behalf to execute, verify and file any such documents and to do all other
lawfully permitted acts to further the purposes of the preceding paragraph with
the same legal force and effect as if executed by me. I hereby waive and
quitclaim to the Company any and all claims, of any nature whatsoever, which I
now or may hereafter have for infringement of any Proprietary Rights assigned
hereunder to the Company.
2
3. RECORDS. I agree to keep and maintain adequate and current records (in
the form of notes, sketches, drawings and in any other form that may be required
by the Company) of all Proprietary Information developed by me and all
Inventions made by me during the period of my employment at the Company, which
records shall be available to and remain the sole property of the Company at all
times.
4. ADDITIONAL ACTIVITIES. I agree that during the period of my employment
by the Company I will not, without the Company's express written consent, engage
in any employment or business activity which is competitive with, or would
otherwise conflict with, my employment by the Company. I agree further that for
the period of my employment by the Company and for one (l) year after the date
of termination of my employment by the Company I will not induce any employee of
the Company to leave the employ of the Company.
5. NO CONFLICTING OBLIGATION. I represent that my performance of all the
terms of this Agreement and as an employee of the Company does not and will not
breach any agreement to keep in confidence information acquired by me in
confidence or in trust prior to my employment by the Company. I have not entered
into, and I agree I will not enter into, any agreement either written or oral in
conflict herewith.
6. RETURN OF COMPANY DOCUMENTS. When I leave the employ of the Company, I
will deliver to the Company any and all drawings, notes, memoranda,
specifications, devices, formulas, and documents, together with all copies
thereof, and any other material containing or disclosing any Company Inventions,
Third Party Information or Proprietary Information of the Company. I further
agree that any property situated on the Company's premises and owned by the
Company, including disks and other storage media, filing cabinets or other work
areas, is subject to inspection by Company personnel at any time with or without
notice. Prior to leaving, I will cooperate with the Company in completing and
signing the Company's termination statement.
7. LEGAL AND EQUITABLE REMEDIES. Because my services are personal and
unique and because I may have access to and become acquainted with the
Proprietary Information of the Company, the Company shall have the right to
enforce this Agreement and any of its provisions by injunction, specific
performance or other equitable relief, without bond and without prejudice to any
other rights and remedies that the Company may have for a breach of this
Agreement.
8. NOTICES. Any notices required or permitted hereunder shall be given to
the appropriate party at the address specified below or at such other address as
the party shall specify in writing. Such notice shall be deemed given upon
personal delivery to the appropriate address or if sent by certified or
registered mail, three (3) days after the date of mailing.
9. NOTIFICATION OF NEW EMPLOYER. In the event that I leave the employ of
the Company, I hereby consent to the notification of my new employer of my
rights and obligations under this Agreement.
10. GENERAL PROVISIONS.
10.1 GOVERNING LAW; CONSENT TO PERSONAL JURISDICTION. This
Agreement will be governed by and construed according to the laws of the State
of California, as such laws are applied to agreements entered into and to be
performed entirely within California between California residents. I hereby
expressly consent to the personal jurisdiction of the state and federal courts
located in San Diego County, California for any lawsuit filed there against me
by Company arising from or related to this Agreement.
10.2 SEVERABILITY. In case any one or more of the provisions
contained in this Agreement shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect the other provisions of this Agreement, and
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein. If moreover, any one or more of the
provisions contained in this Agreement shall for any reason be held to be
excessively broad as to duration, geographical scope, activity or subject, it
shall be construed by limiting and reducing it, so as to be enforceable to the
extent compatible with the applicable law as it shall then appear.
10.3 SUCCESSORS AND ASSIGNS. This Agreement will be binding upon my
heirs, executors, administrators and other legal representatives and will be for
the benefit of the Company, its successors, and its assigns.
10.4 SURVIVAL. The provisions of this Agreement shall survive the
termination of my employment and the assignment of this Agreement by the Company
to any successor in interest or other assignee.
10.5 EMPLOYMENT. I agree and understand that nothing in this
Agreement shall confer any right with respect to continuation of employment by
the Company, nor shall it interfere in any way with my right or the Company's
right to terminate my employment at any time, with or without cause.
10.6 WAIVER. No waiver by the Company of any breach of this
Agreement shall be a waiver of any
3
preceding or succeeding breach. No waiver by the Company of any right under this
Agreement shall be construed as a waiver of any other right. The Company shall
not be required to give notice to enforce strict adherence to all terms of this
Agreement.
10.7 ENTIRE AGREEMENT. The obligations pursuant to Sections 1 and 2
of this Agreement shall apply to any time during which I was previously
employed, or am in the future employed, by the Company as a consultant if no
other agreement governs nondisclosure and assignment of inventions during such
period. This Agreement is the final, complete and exclusive agreement of the
parties with respect to the subject matter hereof and supersedes and merges all
prior discussions between us. No modification of or amendment to this Agreement,
nor any waiver of any rights under this Agreement, will be effective unless in
writing and signed by the party to be charged. Any subsequent change or changes
in my duties, salary or compensation will not affect the validity or scope of
this Agreement.
This Agreement shall be effective as of the first day of my employment
with the Company, namely: September 23, 1998.
I HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS. I HAVE
COMPLETELY FILLED OUT EXHIBIT B TO THIS AGREEMENT.
Dated: September 23, 1998
----------------------------
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------
SIGNATURE
Xxxxxxx X. Xxxxxx
-----------------------------------
(PRINTED NAME)
ACCEPTED AND AGREED TO:
CALIPER TECHNOLOGIES CORP.
By: /s/ Xxxxxx Xxxx
--------------------------------
Title: COO
-----------------------------
------------------------------------
(Address)
------------------------------------
4
EXHIBIT A
LIMITED EXCLUSION NOTIFICATION
THIS IS TO NOTIFY you in accordance with Section 2872 of the California
Labor Code that the foregoing Agreement between you and the Company does not
require you to assign or offer to assign to the Company any invention that you
developed entirely on your own time without using the Company's equipment,
supplies, facilities or trade secret information except for those inventions
that either:
(1) Relate at the time of conception or reduction to practice of
the invention to the Company's business, or actual or demonstrably anticipated
research or development of the Company;
(2) Result from any work performed by you for the Company.
To the extent a provision in the foregoing Agreement purports to
require you to assign an invention otherwise excluded from the preceding
paragraph, the provision is against the public policy of this state and is
unenforceable.
This limited exclusion does not apply to any patent or invention
covered by a contract between the Company and the United States or any of its
agencies requiring full title to such patent or invention to be in the United
States.
I ACKNOWLEDGE RECEIPT of a copy of this notification.
By: Xxxxxxx X. Xxxxxx
-------------------------------------
(Printed Name of Employee)
Date: 9/23/98
-----------------------------------
WITNESSED BY:
Xxxx Xxxxxxx
---------------------------------------
(Printed Name of Representative)
Dated: 9/23/98
--------------------------------
A-1.
EXHIBIT B
TO: CALIPER TECHNOLOGIES CORP.
FROM: Xxxxxxx X. Xxxxxx
DATE: 9/23/98
SUBJECT: PREVIOUS INVENTIONS
1. Except as listed in Section 2 below, the following is a
complete list of all inventions or improvements relevant to the subject matter
of my employment by Caliper Technologies Corp. (the "COMPANY") that have been
made or conceived or first reduced to practice by me alone or jointly with
others prior to my engagement by the Company:
[ ] No inventions or improvements.
[ ] See below:
Pump Qualification Program
--------------------------
--------------------------
--------------------------
[ ] Additional sheets attached.
2. Due to a prior confidentiality agreement, I cannot complete
the disclosure under Section 1 above with respect to inventions or improvements
generally listed below, the proprietary rights and duty of confidentiality with
respect to which I owe to the following party(ies):
INVENTION OR IMPROVEMENT PARTY(IES) RELATIONSHIP
1. ________________________ __________________ __________________
2. ________________________ __________________ __________________
3. ________________________ __________________ __________________
[ ] Additional sheets attached.
B-1.
EXHIBIT B
SEPARATION DATE RELEASE
I understand that my employment with Caliper Technologies Corp. (the "Caliper")
terminated effective December 31, 2003 (the "Separation Date"). I also
understand that, pursuant to the separation letter agreement between me and
Caliper, which I signed on ________________________, 2003 (the "Agreement"), I
am required to sign this Separation Date Release ("Release") in exchange for the
consideration I receive under the Agreement. I further understand that,
regardless of whether I sign this Release, Caliper will pay me all accrued
salary and vacation earned through my termination date, to which I am entitled
by law.
I hereby generally and completely release Caliper and its directors, officers,
employees, shareholders, partners, agents, attorneys, predecessors, successors,
parent and subsidiary entities, insurers, affiliates, and assigns from any and
all claims, liabilities and obligations, both known and unknown, that arise out
of or are in any way related to events, acts, conduct, or omissions occurring
prior to my signing this Release. This general release includes, but is not
limited to: (1) all claims arising out of or in any way related to my employment
with Caliper or the termination of that employment; (2) all claims related to my
compensation or benefits from Caliper, including salary, bonuses, commissions,
vacation pay, expense reimbursements, severance pay, fringe benefits, stock,
stock options, or any other ownership interests in Caliper; (3) all claims for
breach of contract, wrongful termination, and breach of the implied covenant of
good faith and fair dealing, including claims arising under or relating to
Caliper's Change of Control, Sr. Mgmt. Severance/Equity Acceleration Plan; (4)
all tort claims, including claims for fraud, defamation, emotional distress, and
discharge in violation of public policy; and (5) all federal, state, and local
statutory claims, including claims for discrimination, harassment, retaliation,
attorneys' fees, or other claims arising under the federal Civil Rights Act of
1964 (as amended), the federal Americans with Disabilities Act of 1990, the Age
Discrimination in Employment Act of 1967 ("ADEA"), and the California Fair
Employment and Housing Act (as amended).
I acknowledge that I am knowingly and voluntarily waiving and releasing any
rights I may have under the ADEA, as amended. I also acknowledge that the
consideration given for the waiver and release in the preceding paragraph hereof
is in addition to anything of value to which I was already entitled. I further
acknowledge that I have been advised by this writing, as required by the ADEA,
that: (a) my waiver and release do not apply to any rights or claims that may
arise after the execution date of this Release; (b) I have been advised hereby
that I have the right to consult with an attorney prior to executing this
Release (although I may choose not to do so); (c) I have forty-five (45) days to
consider this Release (although I may choose to voluntarily execute this Release
earlier); (d) I have seven (7) days following the execution of this Release to
revoke the Release in a writing to Caliper; (e) this Release will not be
effective until the date upon which the revocation period has expired, which
will be the eighth day after this Release is executed by me ("Employment
Termination Release Effective Date"); and (f) Caliper has provided to me,
pursuant to 29 U.S.C. Section 626(f)(1)(H), a disclosure concerning the
availability of this employment termination program to other employees.
I UNDERSTAND THAT THIS AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN
CLAIMS. In giving this release, which includes claims that may be unknown to me
at present, I acknowledge that I have read and understand Section 1542 of the
California Civil Code which reads as follows: "A GENERAL RELEASE DOES NOT EXTEND
TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT
THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR." I expressly waive and relinquish all
rights and benefits under that section and any law of any jurisdiction of
similar effect with respect to my release of any unknown or unsuspected claims I
may have against Caliper.
HAVING READ AND UNDERSTOOD THE FOREGOING, I HEREBY AGREE TO THE TERMS AND
CONDITIONS STATED ABOVE.
____________________________________ ______________________________________
Xxxxxxx X. Xxxxxx III Date
