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EXHIBIT 10.21
August 3, 0000
XXX XXXXXXXXX
Xx. Xxxxxxx X. Xxxxx
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
RE: OPTION TO ACQUIRE THE OUTSTANDING STOCK
OF CALIPER MICROANALYTIC SYSTEMS, INC.
Gentlemen:
This letter sets forth the terms pursuant to which Caliper Technologies Corp., a
Delaware corporation ("Purchaser"), shall have the right to purchase from
Xxxxxxx X. Xxxxx ("Stockholder") all of the outstanding capital stock of Caliper
Microanalytic Systems, Inc., a Maryland corporation ("Caliper").
1. OPTION. Subject to the terms of this letter, Stockholder hereby grants
to Purchaser an irrevocable option (the "Option") to purchase all, but not less
than all, of the outstanding capital stock of Caliper (the "Caliper Stock"). The
Option shall be exercisable at anytime during the eight (8) month period
following the date of this letter (referred to as the "Option Period") pursuant
to written notice delivered to Stockholder hereunder (with a copy to the Escrow
Agent provided for below) specifying the date, place and time for the Closing
provided for in paragraph 2 below.
2. EXERCISE PRICE. Upon exercise of the Option, and as consideration for
purchase of the Caliper Stock, Purchaser shall deliver to Stockholder an
aggregate of sixty thousand shares of Common Stock of Purchaser (the "Initial
Exercise Price"). Further, as additional consideration for the purchase of the
Caliper Stock following exercise of the Option, Purchaser shall deliver to
Stockholder a Warrant to purchase additional shares of Purchaser's Common Stock
upon the achievement of each of the milestones set forth below as follows:
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MILESTONE NUMBER OF
ADDITIONAL SHARES
SUBJECT TO WARRANT
1. Issuance to Caliper of a U.S. patent covering major claims 60,000
related to the Caliper biochemical analysis technology
(claims 1, 2, 11 and 21 in the present U.S. patent
application).
2. The first commercial launch of a product incorporating the 60,000
Caliper biochemical analysis technology or the consummation
of a significant strategic partnership between Caliper and
a major industry participant regarding such technology.
The Warrant issuable upon the achievement of Milestone No. 1 above shall have an
exercise price equal to the price at which shares of preferred stock are issued
to investors in Purchaser's first round of financing (subsequent to the seed
financing by Avalon Ventures). The Warrant issuable upon the achievement of
Milestone No. 2 above shall have an exercise price equal to the price at which
shares of preferred stock are issued to investors in Purchaser's most recent
round of financing prior to the achievement of such milestone. Such Warrants
shall be exercisable for ten (10) years from the date of exercise of the Option
and shall otherwise contain such terms and conditions relating to the purchase
of shares on exercise thereof as are customarily found in similar warrants.
Neither the Initial Exercise Price nor the Warrant shares shall be subject to
vesting.
3. CLOSING. The closing of the purchase and sale of the Stock hereunder
(the "Closing") shall take place on the date and at the place and time specified
in the notice of exercise delivered pursuant to paragraph 1 above. At the
Closing, Purchaser shall deliver the Initial Exercise Price to Stockholder as
provided in Section 2 above and Stockholder shall deliver to Purchaser a
certificate representing the Caliper Stock duly executed for transfer.
4. EMPLOYMENT FOLLOWING OPTION EXERCISE. Upon exercise of the Option, if
applicable, Stockholder will be offered employment with Purchaser on terms
substantially as outlined on Exhibit A attached hereto. In the event the Option
expires without being exercised or Purchaser notifies Stockholder in writing
that Purchaser does not intend to exercise the option before the end of the
Option Period, Avalon will retain Stockholder as a consultant pursuant to
Avalon's standard form of consulting agreement for 4-months at his then current
rate of pay, or such shorter period if he gets another job before the end of the
4-month period, and as a
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consultant, he will assist Avalon wit other projects as Avalon may reasonably
request.
5. ESCROW. Concurrently herewith, Stockholder, Purchaser and the Escrow
Agent defined therein shall execute and deliver the Escrow Agreement in the form
attached hereto as Exhibit B, and Stockholder shall deliver to the Escrow Agent
a certificate representing the Stock together an assignment separate from
certificate in the form attached hereto as Exhibit C, to be held pursuant to the
terms of such Escrow Agreement.
6. CONSIDERATION. As consideration for the Option, Purchaser shall
deliver a check payable to Stockholder for $100 concurrently with Stockholder's
execution of this letter as provided for below. This payment is nonrefundable.
7. CONDUCT DURING OPTION PERIOD. During the Option Period, Caliper shall
conduct its business in good faith in the ordinary course, and Stockholder shall
ensure that it does so. Without limiting the forgoing, during the Option Period,
Caliper shall (i) not enter into any material agreements or take any other
action that could adversely affect the purposes of this letter, (ii) act
diligently to protect its patent, copyright, trade secret and other intellectual
property rights (collectively referred to as the Technology) and (iii) supply
the Purchaser with all available information reasonably necessary for
consideration of the exercise of the Option.
8. AGREEMENT NOT TO SOLICIT. During the Option Period Caliper will not,
and Stockholder shall ensure that it does not, directly or indirectly, (i)
solicit, initiate or encourage submission of proposals or offers from any other
person relating to any purchase of all or any part of the Assets, whether by
means of the acquisition of an equity interest, merger, consolidation or
business combination or otherwise, or (ii) participate in any discussions or
negotiations regarding, or furnish to any other person any information with
respect to, or otherwise cooperate or assist in any way with any attempt by any
other person to do any of the foregoing. Stockholder will promptly notify the
undersigned of any proposal, offer or inquiry of or contact with any person with
respect thereto, including the identity of the offeror and the terms of any
proposal.
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9. CONFIDENTIAL INFORMATION. Each of us acknowledge that during the
Option Period, we may have access to information that is confidential to one
another and that is marked "confidential" (referred to as Confidential
Information). Caliper and Purchaser agree, both during the Option Period and for
three (3) years thereafter, to hold each other's Confidential Information in
confidence, and not to disclose or make each other's Confidential Information
available, in any form, to any third party or to use each other's Confidential
Information for any purpose other than as contemplated in this letter. The term
Confidential Information shall not include information which is or becomes a
part of the public domain through no act of the other party, was in the other
party's rightful possession prior to disclosure to that party, is legally
disclosed to the other party by a third party without restriction on disclosure
or is independently developed by the other party.
10. MISCELLANEOUS.
(a) Stockholder acknowledges that monetary damages are insufficient
to compensate for breach of his obligations under this letter, and that the
measure of damages is difficult to determine. Accordingly, without limitation on
any other remedies that may be available, in the event of any breach of
Stockholder's obligations under this letter, Purchaser shall be entitled to
specific performance, injunctive relief and any other equitable remedy that may
be appropriate.
(b) Stockholder hereby confirm that he is the legal and beneficial
owner of all the Stock, that there are no restrictions on his ability to vote
the Stock, that he has all requisite rights and authority to execute and deliver
this letter and that the Stock is not subject to any liens, security interests
or encumbrances of any kind.
(c) In the event of any change in Caliper's capital stock by reason
of stock dividends, splits, recapitalizations, or the like, the number and kind
of shares or securities subject to the Option and the purchase price per share
of Stock (but not the total purchase price) shall be appropriately and equitably
adjusted.
(d) This letter shall be construed in accordance with and governed by
the law of the State of California as applied to contracts entered into and
performed entirely within the State of California by California residents. This
letter may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
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If you are in agreement with respect to the matters discussed above, please so
indicate by executing this letter in the space provided below and delivering it
to me no later than 5:00 p.m. California time on August 9, 1995.
Sincerely,
CALIPER TECHNOLOGIES CORP.
/s/ XXXXXXXX X. XXXX
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XXXXXXXX X. XXXX
Chairman of the Board and Acting President
and Chief Executive Officer
THE FOREGOING IS AGREED TO AND ACCEPTED IN FULL:
CALIPER MICROANALYTIC SYSTEMS, INC.
/s/ XXXXXXX X. XXXXX
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XXXXXXX X. XXXXX
President
