EXHIBIT 10.37
LYNX THERAPEUTICS, INC.
EMPLOYEE AGREEMENT
FOR
XXXXX X. SAN ROMAN
This Employment Agreement ("Agreement") by and between XXXXX X. SAN
ROMAN ("Executive") and LYNX THERAPEUTICS, INC., a Delaware corporation (the
"Company"), is entered into and is effective as of March 20, 2003 (the
"Effective Date").
WHEREAS, the Company desires that Executive continue to
provide personal services to the Company, and wishes to provide
Executive with the compensation and benefits set forth below in return
for such services; and
WHEREAS, Executive wishes to continue to provide personal
services to the Company in return for the compensation and benefits set
forth below;
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, Executive shall be employed
in the position of Vice President, Human Resources and Administration, reporting
to the Chief Financial Officer of the Company. Executive agrees to devote her
best efforts and substantially all of her 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 her 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. As of the Effective Date, Executive shall receive for
services to be rendered hereunder an annualized base salary of One Hundred Sixty
Thousand U.S. Dollars ($160,000), payable on the Company's normal payroll
schedule, and subject to standard payroll deductions and withholdings.
2.2 STOCK OPTION. The Board granted Executive a nonstatutory stock
option (the "Option") to purchase Twenty-five Thousand (25,000) shares of the
common stock of the Company (the "Common Stock") pursuant to the Company's 1992
Stock Option Plan (the "1992 Plan"), as amended. In addition, as part of
Executive's employment by the Company before the Effective Date of this
Agreement, Executive has been granted, on one or more occasion, an Option to
purchase shares of the common stock of the Company pursuant to the Company's
1992 Plan. Any such Option(s) will continue to be subject to the terms of the
Plan and Executive's corresponding Stock Option Grant Notices and Stock Option
Agreements.
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2.3 INCENTIVE COMPENSATION. The Company does not currently have an
incentive compensation plan or program in place, and therefore the Company
cannot offer Executive incentive compensation at this time. It is the Company's
intention, however, to implement such a plan or program and to cause Executive
to be eligible for such plan or program.
2.4 STANDARD COMPANY BENEFITS. Executive shall continue to be entitled
to all rights and benefits for which she is eligible under the terms and
conditions of the standard Company benefits and compensation practices that 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 continue to 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).
3. PROPRIETARY INFORMATION OBLIGATIONS.
3.1 AGREEMENT. Executive agrees to abide by the executed Employee
Invention Agreement attached hereto as Exhibit A.
3.2 REMEDIES. Executive's duties under the Employee Invention Agreement
shall survive termination of her 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 she
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 her 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 her 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, she may
own, as a passive investor, securities of any competitor corporation, so long as
her 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),
Executive shall be eligible to receive severance compensation, calculated as
specified herein, provided that, Executive executes a general release of any and
all claims she may have against the Company, which general release shall be in a
form acceptable
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to the Company. The amount of severance compensation that Executive shall
receive is equal to three (3) months of her 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 her 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 OF MUTUAL TERMINATION.
(a) Executive may voluntarily terminate her employment with the
Company at any time, after which no further compensation will be paid to
Executive.
(b) In the event Executive voluntarily terminates her employment,
she 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 her 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 her or her employment
in order to become an employee, consultant or independent contractor to or for
any competitor of the Company.
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 President and 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.
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7.2 EXPENSES AND FEES.
The Company will reimburse Executive for reasonable out-of-pocket
expenses incurred by Executive as a result of her 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, she will be serving as an independent contractor, not a Company
employee, and she 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 her
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 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, she 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 her duties hereunder and she may not
assign any of her 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 her or its rights hereunder, the prevailing party in any such action
shall be entitled to recover her 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
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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.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year written below.
LYNX THERAPEUTICS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
Chief Executive Officer
Date: March 20, 2003
Accepted and agreed this 20th day of March 2003.
/s/ Xxxxx X. San Roman
-----------------------------
Xxxxx X. San Roman
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EXHIBIT A
LYNX THERAPEUTICS INC.
EMPLOYEE INVENTION AGREEMENT
1. As an employee of Lynx Therapeutics Incorporated (the "Company"), and
in consideration of the compensation now and hereafter paid to me, I
agree at all times during the term of my employment and thereafter, to
hold in strictest confidence, and not to use or to disclose to any
person, firm or corporation, without express authorization of an
officer of the Company, any information, manufacturing technique,
processes, formulas, development or experimental work, work in process,
trade secrets or any other proprietary or confidential matter relating
to the products, sales or business of the Company.
2. I further agree that I will promptly make full disclosure to the
Company, will hold in trust for the sole right and benefit of the
Company, and will assign all my right, title and interest to, any and
all inventions, discoveries, developments, improvements or trade
secrets which I may solely or jointly conceive, develop or reduce to
practice, or cause to be conceived, developed or reduced to practice,
during the period of time I am in the employ of the Company, except any
invention, discovery, development, improvement or trade secret as to
which I can prove that:
a) it was developed entirely on my own time; and
b) no equipment, supplies, facility or trade secret of the
Company was used in its development; and
c) (i) it does not relate to the business or actual or
demonstrably anticipated research or development of the
Company, or (ii) it does not result from any work performed by
me for the Company.
Notwithstanding the foregoing, I also assign to or as directed by the
Company all my right, title and interest in and to any and all
inventions, discoveries, developments, improvements or trade secrets,
full title to which is required to be in the United States by a
contract between the Company and the United States or any of its
agencies.
3. I agree to execute any proper oath or verify any proper document in
connection with carrying out the terms of this agreement. In the event
the Company is unable (because of my mental or physical incapacity or
for any other reason whatsoever) to secure my signature to apply for,
or to pursue any application for any United States or foreign letters
patent, covering inventions assigned to the Company as stated above, I
hereby irrevocably designate and appoint the Company and its duly
authorized officer and agents
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as my agent and attorney in fact, to act for and in my behalf and stead
to execute and file any such applications and to do all other lawfully
permitted acts to further the prosecution and issuance of letters
patent thereon with the same legal force and effect as if executed by
me. I have attached hereto a list describing all inventions made by me
prior to my employment with the Company belonging to me, relating to
the Company's proposed business and products and not assigned to the
Company, or, if no such list is attached, I represent that there are no
such inventions. 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 patent or patents resulting from any such
applications for letters patent assigned hereunder to the Company.
4. I recognize that the Company may receive from third parties their
confidential or proprietary 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. I agree that I owe the
Company and such third parties during the term of my employment and
thereafter a duty to hold all such confidential or proprietary
information in the strictest confidence and not to disclose it to any
person, firm or corporation (except as necessary in carrying out my
work for the Company consistent with the Company's agreement with such
third party) or use it for the benefit of anyone other than for the
Company or such third party consistent with the Company's agreement
with such third party without the express authorization of an officer
of the Company.
5. I further agree that at the time of leaving the employ of the Company,
I will deliver to the Company and will not keep in my possession, nor
deliver to anyone else, any and all drawings, blueprints, notes,
memoranda, specifications, devices, documents, or any other material
containing or disclosing any of the matters referred to herein.
6. I agree that I will not during my employment at the Company improperly
use or disclose any proprietary information or trade secrets of my
former or concurrent employers or companies, if any, and that I shall
not bring onto the premises of the Company any unpublished document or
any property belonging to my former or concurrent employers or
companies, if any, unless consented to in writing by said employers or
companies.
7. The provisions of this agreement requiring assignment to the Company do
not apply to any invention which qualifies fully under the provisions
of Section 2870 of the California Labor Code. I will advise the company
promptly in writing of any inventions, discoveries, developments,
improvement or trade secrets that I believe meet the criteria in
subparagraphs 2 a, b, and c above; and I will at that time provide to
the Company in writing all evidence necessary to substantiate that
belief. I understand that the Company will keep in confidence and will
not disclose to third parties without my consent any confidential
information disclosed in writing to the company relating to inventions
which qualify fully under the provision of Section 2870 of the
California Labor Code.
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IN WITNESS WHEREOF, I have subscribed my name hereunto this
13th day of November, 1992.
/s/ Xxxxx X. San Roman
----------------------------------
Signature
/s/ Xxxxx X. San Roman
----------------------------------
Print Name
/s/ Xxxxxx X. Xxxxx
----------------------------------
Witness
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