EXHIBIT 10.31
LYNX THERAPEUTICS, INC.
EMPLOYEE AGREEMENT
FOR
XXXXXX X. XXXXXXX, PH.D.
This Employment Agreement ("Agreement") by and between Xxxxxx X.
Xxxxxxx, Ph.D. ("Executive") and LYNX THERAPEUTICS, INC., a Delaware corporation
(the "Company"), is entered into and is effective as of June 10, 2002 (the
"Effective Date").
WHEREAS, the Company desires to employ Executive to provide personal
services to the Company, and wishes to provide Executive with certain
compensation and benefits in return for his services; and
WHEREAS, Executive wishes to be employed by the Company and provide
personal services to the Company in return for certain compensation and
benefits;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, it is hereby agreed by and between the parties hereto as
follows:
1. EMPLOYMENT BY THE COMPANY.
1.1 Subject to the terms set forth herein, the Company agrees to
employ Executive in the position of Vice President, Business Development,
reporting to the President and Chief Executive Officer, and Executive hereby
accepts such employment effective as of June 17, 2002. During the term of his
employment with the Company, Executive will devote his best efforts and
substantially all of his business time and attention (except for vacation
periods permitted by the Company's general employment policies, reasonable
periods of illness or other incapacities permitted by the Company's general
employment policies, and as otherwise provided herein) to the business of the
Company.
1.2 Executive shall serve in an executive capacity and shall
perform such duties as are customarily associated with his then current title.
1.3 The employment relationship between the parties is "at will,"
which means that either party may terminate the relationship at any time , with
or without cause and with or without advance notice. The employment relationship
between the parties shall also be governed by the general employment policies
and practices of the Company, including those relating to protection of
confidential information and assignment of inventions, except that when the
terms of this Agreement differ from or are in conflict with the Company's
general employment policies or practices, this Agreement shall control.
2. COMPENSATION.
2.1 SALARY. Executive shall receive for services to be rendered
hereunder an annualized base salary of Two Hundred Thousand U.S. Dollars
($200,000), payable on the
1.
Company's normal payroll schedule, and subject to standard payroll deductions
and withholdings. On the date that is one year after the Effective Date of this
Agreement, provided that Executive's performance meets the Company's reasonable
expectations, Executive's annualized base salary will increase to Two Hundred
Forty Thousand U.S. Dollars ($240,000).
2.2 SIGN-ON BONUS. The Company will pay you a sign-on bonus of
$15,000 subject to all required withholdings. This sign-on bonus must be repaid
to the Company on a pro-rata basis if your employment terminates prior to one
year of service.
2.3 STOCK OPTION. Subject to approval by the Board, the Company
will grant Executive a nonstatutory stock option (the "Option") to purchase One
Hundred Twenty Thousand (120,000) shares of the common stock of the Company (the
"Common Stock") pursuant to the Company's 1992 Stock Option Plan (the "Plan"),
as amended. The exercise price per share of the Option will be the Fair Market
Value (as defined in the Plan) per share of the Common Stock on the date of
grant. Except as otherwise provided herein, the Option will vest and become
exercisable over five (5) years, with Twenty Percent (20%) of the shares covered
by the Option vesting and becoming exercisable on the first year anniversary of
the date of grant and the remaining Eighty Percent (80%) of the shares covered
by the Option vesting and becoming exercisable in Forty-Eight (48) equal monthly
installments thereafter, in accordance with the Company's standard vesting and
exercisability policy, as long as the Executive remains in continuous service
with the Company. The Option will be subject to the terms of the Plan and
Executive's corresponding Stock Option Grant Notice and Stock Option Agreement.
2.4 TRANSACTION BONUS. For the period beginning on the Effective
Date of this Agreement and ending on the date that is one year after the
Effective Date (the "Transaction Bonus Period"), Executive shall be eligible to
receive, for identifying and completing during the Transaction Bonus Period any
transactions between third parties and the Company (a "Transaction"), a cash
bonus equal to one percent (1%) of the cash proceeds received by the Company
from any Transaction during the Transaction Bonus Period (the "Transaction
Bonus"). The Transaction Bonus payable under this provision, if any, shall be
paid within thirty (30) days after the Transaction is ratified by the Company,
less any deductions or withholdings required by law or reasonably requested by
Executive. Executive must be employed at the time that the Transaction Bonus is
paid to receive such Transaction Bonus, unless the Company has terminated
Executive's employment for a reason other than cause.
2.5 STANDARD COMPANY BENEFITS. Executive shall be entitled to all
rights and benefits for which he is eligible under the terms and conditions of
the standard Company benefits and compensation practices which may be in effect
from time to time and provided by the Company to its employees generally,
including but not limited to health benefit plans. Executive also shall be
eligible to participate in the Company's 401(k) Plan, including eligibility for
a monthly matching contribution by the Company on Executive's behalf, in an
amount equal to that contributed by Executive up to a maximum annual matching
contribution of Seven Hundred Fifty Dollars ($750). Executive shall be provided
specific information concerning these Company benefits upon commencement of his
employment.
2.
3. PROPRIETARY INFORMATION OBLIGATIONS.
3.1 AGREEMENT. Executive agrees to execute and abide by the
Employee Invention Agreement attached hereto as Exhibit A.
3.2 REMEDIES. Executive's duties under the Employee Invention
Agreement shall survive termination of his employment with the Company.
Executive acknowledges that a remedy at law for any breach or threatened breach
by him of the provisions of the Employee Invention Agreement would be
inadequate, and he therefore agrees that the Company shall be entitled to
injunctive relief in case of any such breach or threatened breach.
4. OUTSIDE ACTIVITIES.
4.1 Except with the prior written consent of the President and
Chief Executive Officer, Executive will not during the term of this Agreement
undertake or engage in any other employment, occupation or business enterprise,
other than ones in which Executive is a passive investor. Executive may engage
in civic and not-for-profit activities so long as such activities do not
materially interfere with the performance of his duties hereunder.
4.2 Except as permitted by Section 4.3, Executive agrees not to
acquire, assume or participate in, directly or indirectly, any position,
investment or interest known by him to be adverse or antagonistic to the
Company, its business or prospects, financial or otherwise.
4.3 During the term of his employment by the Company, except on
behalf of the Company, Executive will not directly or indirectly, whether as an
officer, director, stockholder, partner, proprietor, associate, representative,
consultant, or in any capacity whatsoever engage in, become financially
interested in, be employed by or have any business connection with any other
person, corporation, firm, partnership or other entity whatsoever which were
known by him to compete directly with the Company, throughout the world, in any
line of business engaged in (or planned to be engaged in) by the Company;
provided, however, that anything above to the contrary notwithstanding, he may
own, as a passive investor, securities of any competitor corporation, so long as
his direct holdings in any one such corporation shall not in the aggregate
constitute more than One Percent (1%) of the voting stock of such corporation.
5. TERMINATION OF EMPLOYMENT.
5.1 TERMINATION WITHOUT CAUSE.
(a) The Company shall have the right to terminate
Executive's employment with the Company at any time without cause or advance
notice.
(b) In the event Executive's employment is terminated
without Cause (as defined in section 5.2) by the Company, or by any successor or
acquiring entity upon or after an Asset Sale, Merger, Consolidation, or Reverse
Merger (as defined in the Lynx Therapeutics, Inc. 1992 Stock Option Plan, as
amended), the executive shall be eligible to receive severance compensation,
calculated as specified herein, provided that, Executive executes a general
release of any and all claims he may have against the Company, which general
release shall be in a form
3.
acceptable to the Company. The amount of severance compensation that Executive
shall receive shall be calculated pursuant to the following schedule: (a) if the
termination occurs on or prior to the first year anniversary of Executive's hire
date, he shall receive an amount equal to six (6) months of his base salary,
subject to standard payroll deductions and withholdings, and paid in a lump sum;
(b) if the termination occurs after the first year anniversary of Executive's
hire date, he shall receive an amount equal to three (3) months of his base
salary, subject to standard payroll deductions and withholdings, and paid in a
lump sum. ("Severance"). The Severance shall be the only severance, benefit, or
cash compensation, other than accrued wages, to which the Executive shall be
entitled from the Company in the event of a termination without Cause. In the
event, however, that a successor or acquiring entity is obligated to pay
Severance to Executive, such Severance shall be in addition to any equity
compensation or benefits for which the Executive may be eligible under the Lynx
Therapeutics, Inc. 1992 Stock Option Plan, as amended.
5.2 TERMINATION FOR CAUSE.
(a) The Company shall have the right to terminate
Executive's employment with the Company at any time for Cause.
(b) "Cause" for termination shall mean: (a) indictment or
conviction of any felony or of any crime involving dishonesty; (b) participation
in any fraud or act of dishonesty against the Company; (c) Executive's failure
to perform his duties to the Company in a satisfactory manner; (d) intentional
damage to any property of the Company; or (e) conduct by Executive which in the
good faith and reasonable determination of the President and Chief Executive
Officer demonstrates lack of fitness to serve.
(c) In the event Executive's employment is terminated at any
time for Cause, Executive will not be entitled to Severance or any other
compensation or benefit other than accrued wages.
5.3 VOLUNTARY OR MUTUAL TERMINATION.
(a) Executive may voluntarily terminate his employment with
the Company at any time, after which no further compensation will be paid to
Executive.
(b) In the event Executive voluntarily terminates his
employment, he will not be entitled to Severance or any other such compensation
or benefit, other than accrued wages.
6. NONINTERFERENCE.
While employed by the Company, and for two (2) years immediately
following the termination of his employment, Executive agrees not to interfere
with the business of the Company by soliciting, attempting to solicit, inducing,
or otherwise causing any employee of the Company to terminate his or her
employment in order to become an employee, consultant or independent contractor
to or for any competitor of the Company.
4.
7. COOPERATION WITH COMPANY.
7.1 COOPERATION OBLIGATION. During and after Executive's
employment, Executive will cooperate with the Company in responding to the
reasonable requests of the Company's Chairman of the Board, Chief Executive
Officer or General Counsel, in connection with any and all existing or future
litigation, arbitrations, mediations or investigations brought by or against the
Company or its affiliates, agents, officers, directors or employees, whether
administrative, civil or criminal in nature, in which the Company reasonably
deems Executive's cooperation necessary or desirable. In such matters, Executive
agrees to provide the Company with reasonable advice, assistance and
information, including offering and explaining evidence, providing sworn
statements, and participating in discovery and trial preparation and testimony.
Executive also agrees to promptly send the Company copies of all correspondence
(for example, but not limited to, subpoenas) received by Executive in connection
with any such legal proceedings, unless Executive is expressly prohibited by law
from so doing. The failure by Executive to cooperate fully with the Company in
accordance with this Section 7 will be a material breach of the terms of this
Agreement which will result in all commitments of the Company to pay Severance
to Executive under Section 5.1 (b) becoming null and void.
7.2 EXPENSES AND FEES. The Company will reimburse Executive for
reasonable out-of-pocket expenses incurred by Executive as a result of his
cooperation with the obligations described in Section 7.1, within thirty (30)
days of the presentation of appropriate documentation thereof, in accordance
with the Company's standard reimbursement policies and procedures. After
termination of Executive's employment, the Company will also pay Executive a
reasonable fee in the amount of $200 per hour for the time Executive devotes to
matters as requested by the Company under Section 7.1 ("the Fees"). The Company
will not deduct or withhold any amount from the Fees for taxes, social security,
or other payroll deductions, but will instead issue an IRS Form 1099 with
respect to the Fees. Executive acknowledges that in cooperating in the manner
described in Section 7.1, he will be serving as an independent contractor, not a
Company employee, and he will be entirely responsible for the payment of all
income taxes and any other taxes due and owing as a result of the payment of
Fees. Executive hereby indemnifies the Company and its officers, directors,
agents, attorneys, employees, shareholders, subsidiaries, and affiliates and
holds them harmless from any liability for any taxes, penalties, and interest
that may be assessed by any taxing authority with respect to the Fees, with the
exception of the employer's share of employment taxes subsequently determined to
be applicable, if any.
8. GENERAL PROVISIONS.
8.1 NOTICES. Any notices provided hereunder must be in writing
and shall be deemed effective upon the earlier of personal delivery (including
personal delivery by facsimile) or the third day after mailing by first class
mail, to the Company at its primary office location and to Executive at his
address as listed on the Company payroll.
8.2 SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will
5.
not affect any other provision or any other jurisdiction, but this Agreement
will be reformed, construed and enforced in such jurisdiction in order to most
closely effectuate the parties' intentions.
8.3 WAIVER. If either party should waive any breach of any
provisions of this Agreement, he or it shall not thereby be deemed to have
waived any preceding or succeeding breach of the same or any other provision of
this Agreement.
8.4 COMPLETE AGREEMENT. This Agreement and its Exhibit constitute
the entire agreement between Executive and the Company and it is the complete,
final, and exclusive embodiment of their agreement with regard to this subject
matter. It is entered into without reliance on any promise or representation
other than those expressly contained herein, and it cannot be modified or
amended except in writing signed by a member of the Company's Board.
8.5 COUNTERPARTS. This Agreement may be executed in separate
counterparts, any one of which need not contain signatures of more than one
party, but all of which taken together will constitute one and the same
Agreement.
8.6 HEADINGS. The headings of the sections hereof are inserted
for convenience only and shall not be deemed to constitute a part hereof nor to
affect the meaning thereof.
8.7 SUCCESSORS AND ASSIGNS. This Agreement is intended to bind
and inure to the benefit of and be enforceable by Executive and the Company, and
their respective successors, assigns, heirs, executors and administrators,
except that Executive may not assign any of his duties hereunder and he may not
assign any of his rights hereunder without the written consent of the Company,
which shall not be withheld unreasonably.
8.8 ATTORNEY'S FEES. If either party hereto brings any action to
enforce his or its rights hereunder, the prevailing party in any such action
shall be entitled to recover his or its reasonable attorneys' fees and costs
incurred in connection with such action.
8.9 GOVERNING LAW. All questions concerning the construction,
validity and interpretation of this Agreement will be governed by the law of the
State of California. Executive hereby expressly consents to the personal
jurisdiction of the state and federal courts located in Alameda County,
California for any lawsuit filed there against Executive by the Company arising
from or related to this Agreement.
6.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year written below.
LYNX THERAPEUTICS, INC.
By: /s/ Xxxxx X. San Roman
---------------------------------
Xxxxx X. San Roman
Vice President, Human Resources &
Administration
Date: June 7, 2002
--------------------------------
Accepted and agreed this
11 day of June 2002.
---- ----
/s/ Xxxxxx X. Xxxxxxx, Ph.D.
--------------------------------
Xxxxxx X. Xxxxxxx, Ph.D.
June 11, 2002
--------------------------------
Date
7.
EXHIBIT A
LYNX THERAPEUTICS, INC.
EMPLOYEE PROPRIETARY INFORMATION
AND INVENTIONS AGREEMENT
In consideration of my employment or continued employment by Lynx
Therapeutics, Inc. (the "Company"), and the compensation now and hereafter paid
to me, I hereby agree as follows:
1. 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 tangible and intangible information relating to antibodies
and other biological materials, cell lines, samples of assay components, media
and/or cell lines and procedures and formulations for producing any such assay
components, media and/or cell lines, formulations, products, processes,
know-how, designs, formulas, methods, developmental or experimental work,
clinical data, improvements, discoveries, plans for research, new products,
marketing and selling, business plans, budgets and unpublished financial
statements, licenses, prices and costs, suppliers and customers, and 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 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 Company 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.
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, either directly or
through others, solicit or attempt to solicit any employee, independent
contractor or consultant of the company to terminate his or her relationship
with the Company in order to become an employee, consultant or independent
contractor to or for any other person or entity.
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 Alameda
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 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: June 17, 2002.
I HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS. I HAVE
COMPLETELY FILLED OUT EXHIBIT B TO THIS AGREEMENT.
Dated: June 17, 2002
/s/ Xxxxxx X. Xxxxxxx
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(SIGNATURE)
Xxxxxx X. Xxxxxxx, Ph. D.
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(PRINTED NAME)
ACCEPTED AND AGREED TO:
LYNX THERAPEUTICS, INC.
By: /s/ Xxxxxxxx Xxxxx
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Title: Human Resources Coordinator
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00000 Xxxxxxxxxx Xxxx.
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(Xxxxxxx)
Xxxxxxx, XX 00000
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Dated: June 17, 2002
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; or
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: Xxxxxx X. Xxxxxxx
------------------------------------------
(PRINTED NAME OF EMPLOYEE)
Date: June 17, 2002
----------------------------------------
WITNESSED BY:
Xxxxxxxx Xxxxx
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(PRINTED NAME OF REPRESENTATIVE)
EXHIBIT B
PRIOR WORK PRODUCT DISCLOSURE
1. Except as listed in Section 2 below, the following is a complete
list of all Prior Work Product that have been made or conceived or first reduced
to practice by Contractor alone or jointly with others prior to my engagement by
Lynx Therapeutics, Inc.:
[ ] No inventions or improvements.
[X] See below:
Methods for preparing and storing DNA and RNA from fresh,
frozen and preserved tissues as well as whole organisms, and
microbial pellets
Methods for manufacture, use, and analysis of DNA arrays
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[ ] Additional sheets attached.
2. Due to a prior confidentiality agreement, Contractor 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 Contractor owes to the following party(ies):
INVENTION OR IMPROVEMENT PARTY(IES) RELATIONSHIP
1.
---------------------------- ------------------------ -----------------------
2.
---------------------------- ------------------------ -----------------------
3.
---------------------------- ------------------------ -----------------------
[ ] Additional sheets attached.
BACKGROUND TECHNOLOGY DISCLOSURE
The following is a list of all Background Technology which Contractor
intends to use in performing under this Agreement:
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