EXHIBIT 10.68
January 22, 2004
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c/o Caliper Life Sciences, Inc.
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Dear ▇▇▇▇:
Pursuant our agreement late last year to extend your employment with Caliper,
this amended and restated agreement (the "Agreement") amends and restates the
terms and conditions of the Separation Agreement dated July 10, 2003, by and
between you and Caliper (the "Prior Agreement"). This Agreement shall be
effective as of December 31, 2003. The Prior Agreement shall have no further
force or effect as of December 31, 2003, except to the extent that certain
obligations set forth therein were performed prior to the date of this
Agreement.
1. SEPARATION. Subject to the terms and condition contained herein, your
employment with the Company will continue full-time until December 31, 2003 the
("Initial Transition Period") and will continue on a part-time, three days a
week basis, during the period (the "Second Transition Period", and together with
the Initial Transition Period, the "Transition Period") from January 1, 2004
through March 31, 2004 (the "Separation Date"), at which time your employment
with the Company will terminate. On the Separation Date, the Company 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, except to the extent such payment for accrual of unused vacation
and flex-time was previously made to you under the Prior Agreement.
2. TRANSITION PERIOD.
(a) DUTIES. During the Transition Period, you will continue to work for the
Company as its Vice President of Finance and Chief Accounting Officer. You will
be expected to transition your job duties, and to perform such tasks, as
requested by ▇▇▇ ▇▇▇▇▇▇▇▇ or the Company's Chief Executive Officer ("CEO") (or
his designee). During the Transition Period, you are expected to comply with the
Company'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. Your employment during the Transition Period will be at will,
meaning that either you or the Company may terminate your employment at any
time, with or without cause, and with or without advance notice.
(b) COMPENSATION. During the Transition Period, the Company will continue to
compensate you for your services based on your current full-time monthly base
salary of $16,575 (or annual base salary of $198,900), provided that such
compensation shall be pro-rated on a three-fifths basis during the Second
Transition Period. These payments will be made on the Company's ordinary payroll
dates, and will be subject to standard payroll deductions and withholdings. In
addition, in consideration of your agreement to remain employed by the Company
through the Second Transition Period and as a retention bonus for remaining
employed by the Company through the Second Transition Period, effective as of
January 21, 2004, the Company shall grant to you (i) fourteen thousand (14,000)
shares of restricted stock of the Company (the "Restricted Stock") and (ii) a
stock option to purchase fourteen thousand (14,000) shares of the Company's
common stock, with a per share exercise price equal to the fair market value of
the Company's common stock based on the last sale price of the Company's common
stock on January 21, 2004 (the "New Option"), in each case under the Company's
1999 Equity Incentive Plan and subject to the terms and conditions of the
applicable plan documents, such Restricted Stock and such New Option to vest
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on March 31, 2004, provided that you (A) remain as an employee of the Company in
good standing as of March 31, 2004 (unless terminated before such date by the
Company without cause) and (B) sign a second Employment Termination Release
attached hereto as Exhibit B (the "Second Release") on or after March 31, 2004,
and allow the Second Release to become effective.
(c) BENEFITS. During the Transition Period, you will be eligible to continue
your current Company benefits subject to the terms and limitations of the
applicable plans. The Company will also exempt you from the vacation accrual cap
(both retroactively and during the Transition Period), so that you will accrue
vacation during the Transition Period, and the Company will retroactively grant
you the vacation time that you did not accrue prior to the Transition Period
because of the accrual cap.
(d) STOCK OPTIONS. During the Transition Period, your stock options granted by
the Company will continue to vest according to the terms of the applicable plan
document(s) and stock option agreement(s).
(e) 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.
(f) OFFER LETTERS SUPERSEDED. During the Transition Period, the terms and
conditions of your employment will be as described herein. Accordingly, the
terms set forth in this Agreement shall supersede that certain offer letter
agreement between you and the Company dated April 7, 2000, as amended by that
certain promotion offer letter agreement between you and the Company dated
September 10, 2002 (the "Offer Letters").
(g) RETENTION BONUS. Provided you perform your Transition Period obligations
through December 31, 2003, execute the Employment Termination Release attached
hereto as Exhibit B (the "Initial Release") on or after December 31, 2003, allow
the Initial Release to become effective, and have not breached this Agreement or
your Proprietary Information and Inventions Agreement, then the Company will pay
you a retention bonus of $99,450, less standard payroll deductions and
withholdings ("Retention Bonus"). The Retention Bonus will be paid in a lump sum
within ten (10) days of the Initial Release's effective date. In addition, if
you perform your Second Transition Period obligations through March 31, 2004
(except as otherwise provided herein for termination without Cause, for Good
Reason, or Constructive Termination), execute Second Release on or after March
31, 2004, allow the Second Release to become effective, and have not breached
this Agreement or your Proprietary Information and Inventions Agreement, then
the Restricted Shares and New Option granted to you under Section 2(b) will
become fully vested as of March 31, 2004.
(h) SEVERANCE. Provided you perform your Transition Period obligations through
December 31, 2003, execute the Initial Release on or after December 31, 2003,
allow the Initial Release to become effective, and have not breached this
Agreement or your Proprietary Information and Inventions Agreement, then the
Company will pay you, as Severance, the equivalent of twelve (12) months of your
base salary ($198,900), subject to standard payroll deductions and withholdings.
The Severance will be paid in a lump sum within ten (10) days of the Initial
Release's effective date. The Company will also provide you with, as Severance,
the executive outplacement package through your choice of either ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ & Co. or TMS Consulting. In addition, provided you perform your
Second Transition Period obligations through March 31, 2004, execute the Second
Release on or after March 31, 2004, allow the Second Release to become
effective, and have not breached this Agreement or your Proprietary Information
and Inventions Agreement, the Company will accelerate the vesting of any stock
options that you have received from the Company, with the exception of any stock
options granted during the Transition Period (including the New
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Option described in Section 2(b) of this Agreement), such that all unvested
shares will be immediately vested and exercisable as of your employment
termination date ("Accelerated Vesting").
(i) TERMINATION DURING SECOND TRANSITION PERIOD.
(i) TERMINATION WITH CAUSE OR RESIGNATION. If, during the Second
Transition Period, your employment with the Company is terminated with
Cause, or you resign from your employment with the Company, then you
will not be eligible for any severance benefits (except for any
benefits you may be eligible to receive under the Company's Change of
Control, Sr. Management Severance/Equity Acceleration Plan (the "Change
of Control Plan"), under the circumstances and conditions described
therein), including the Accelerated Vesting.
(ii) DEFINITION OF CAUSE. For purposes of this Agreement, "Cause" shall
mean the occurrence of any of the following: (1) you engage in conduct
that constitutes willful gross neglect or willful gross misconduct in
carrying out your duties, resulting, in either case, in material
economic harm to the Company, unless you believed in good faith that
such conduct was in, or not opposed to, the best interest of the
Company; (2) any unjustified refusal to follow reasonable directives by
the CEO or duly adopted by the Board; or (3) conviction of a felony
crime involving moral turpitude; provided, however, that the Company
shall provide written notice of its intent to terminate you under (1)
or (2) above and you shall have a 30-day period to correct your
actions, if such actions can be corrected.
(iii) TERMINATION WITHOUT CAUSE. If your employment with the Company is
terminated without Cause during the Second Transition Period at any
time except following a Change of Control (as defined in the Change of
Control Plan), and provided that you sign the Second Release on or
after the last day of your employment with the Company, and allow the
Second Release to become effective, then you will be eligible to
receive Accelerated Vesting and the Consultancy. You will not be
eligible to receive any other severance benefits or other compensation.
(iv) TERMINATION AFTER CHANGE OF CONTROL. If during the Transition
Period, your employment is terminated, either by you or the Company,
following a Change of Control (as defined in the Change of Control
Plan), then you will be eligible for benefits under the Change of
Control Plan under the terms and conditions specified therein, and you
will not be eligible to receive any other severance benefits or other
compensation following the termination of your employment, including
the Retention Bonus, Severance or Consultancy).
3. CONSULTANCY. Provided you perform your Second Transition Period obligations
through the Separation Date, execute the Second Release on or after the
Separation Date, allow the Second Release to become effective, and have not
breached this Agreement or your Proprietary Information and Inventions
Agreement, then the Company agrees to retain you to provide consulting services
under the terms specified below.
(a) CONSULTING PERIOD. The consulting relationship ("Consultancy") shall
commence on the day after your last day of employment with the Company and
continue until the earlier of (the "Consulting Period"): (i) June 30, 2006; (ii)
the date you breach your obligations under this Agreement; or (iii) the date you
engage in any activity competitive with the interests of the Company.
(b) CONSULTING DUTIES. You agree to make yourself available during the
Consulting Period, upon the Company'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
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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, the Company will pay you $400
per hour for your services, based on the actual number of hours of services
performed by you. These hourly amounts are the "Consulting Fees". These payments
will be made based on invoices submitted by you and approved by the CEO on terms
of net 30. Any stock options that you have been granted by the Company will also
continue to vest during the Consulting Period, subject to the terms and
conditions of the applicable stock option agreements(s) and plan document(s).
The Company will also pay the premiums necessary to continue your health care
coverage (and the current coverage for your wife) through the Consulting Period
if you timely elect COBRA continuation coverage; provided, however, that this
payment obligation will cease if you become eligible for comparable benefits
under another employer's medical benefit plan. You agree to notify the Company
within three (3) days of such eligibility.
(d) TAXES AND WITHHOLDING. Because you will perform the Consulting Duties as an
independent contractor, the Company will not withhold from the Consulting Fees
any amount for taxes, social security or other payroll deductions. The Company
will report your Consulting Fees on an 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 the
Company from any liability for any taxes, penalties or interest that may be
assessed 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 INFORMATION. You agree that, during the Consulting Period and
thereafter, you will not use or disclose any confidential or proprietary
information or materials of the Company that you obtain or develop in the course
of performing the Consulting Duties, except with the written permission of the
Company's CEO. Any and all work product you create directly in the course of
performing the Consulting Duties will be the sole and exclusive property of the
Company. You hereby assign to the Company all right, title, and interest in all
inventions, techniques, processes, materials, and other intellectual property
developed directly 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 the Company (or to represent that you have authority to bind the
Company) to any contractual obligations, whether written, oral or implied. You
agree that after the Separation Date, you will not represent or purport to
represent the Company 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 the Company's facilities to the extent authorized in advance
by the Company's CEO in connection with the Consulting Duties. In connection
with any use of the Company's facilities, you agree to abide by all Company
policies and procedures.
(h) OTHER ACTIVITIES. You acknowledge that in performing the Consulting Duties,
you will be an independent contractor to the Company and not an employee,
partner, or joint venturer of the Company. You may engage in other employment or
consulting relationships in addition to your work for the Company during the
Consulting Period, provided that such relationships do not involve providing
services to any competitor of the Company or unreasonably interfere with your
provision of consulting services to the Company.
4. HEALTH INSURANCE. To the extent provided by the federal COBRA law and by the
Company's current group health insurance policies, you will be eligible to
continue your group health insurance benefits at your
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own expense after the Separation Date, except as otherwise set forth herein.
Later, you may be able to convert to an individual policy at your own expense,
if you wish.
5. 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. The Company will reimburse
you for these expenses pursuant to its regular business practice.
6. 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.
7. RETURN OF COMPANY PROPERTY. On the Separation Date or your actual employment
termination date, whichever is earlier, you agree to return to the Company all
Company documents (and all copies thereof) and other Company property which you
have had in your possession at any time, including, but not limited to, all
Company 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 the Company (and all
reproductions thereof).
8. PROPRIETARY INFORMATION OBLIGATIONS. You hereby acknowledge and agree to
abide by your continuing obligations under your Proprietary Information and
Inventions Agreement.
9. NONDISPARAGEMENT. You agree not to disparage the Company and the Company'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 accurately and fully to any question,
inquiry or request for information consistent with your obligations under this
Agreement.
10. NONINTERFERENCE. During the Transition Period and Consulting Period, and for
a one (1) year period following the conclusion of the Consulting Period, you
agree not to interfere with the business of the Company by soliciting or
attempting to solicit any employee or consultant of the Company to terminate his
or her employment or relationship with the Company in order to become an
employee, consultant or independent contractor to or for any other entity.
11. MISCELLANEOUS. This Agreement, including Exhibits A and B, constitutes the
complete, final and exclusive embodiment of the entire agreement between you and
the Company 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 the
Company. This Agreement shall bind the heirs, personal representatives,
successors and assigns of both you and the Company, and inure to the benefit of
both you and the Company, 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. Additionally, if you sign the Second Release attached hereto as
Exhibit B on or after your final date of employment with the Company, please
return the signed original of the Second Release to me.
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Sincerely,
CALIPER LIFE SCIENCES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President & General Counsel
Exhibit A - Proprietary Information and Inventions Agreement
Exhibit B - Employment Termination Release
AGREED:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
--------------------------------
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Dated: January 22, 2004
EXHIBIT A
PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
CALIPER LIFE SCIENCES, INC.
EMPLOYEE PROPRIETARY INFORMATION
AND INVENTIONS AGREEMENT
In consideration of my employment or continued employment by CALIPER
LIFE SCIENCES, INC. (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 I am not to list
such Prior Inventions in Exhibit B but am only to disclose a
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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.
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
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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 Santa ▇▇▇▇▇ 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 the employment
relationship between me and the company is voluntary and without any fixed term
and therefore may be terminated with or without cause by either party at any
time in its sole discretion.
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.
3
This Agreement shall be effective as of the first day of my employment
with the Company, namely: _____________, 20____.
I HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS. I HAVE
COMPLETELY FILLED OUT EXHIBIT B TO THIS AGREEMENT.
Dated:
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SIGNATURE
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(PRINTED NAME)
ACCEPTED AND AGREED TO:
CALIPER LIFE SCIENCES, INC.
By:
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Title:
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▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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(▇▇▇▇▇▇▇)
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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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:
--------------------------------------
(Printed Name of Employee)
Date:
------------------------------------
WITNESSED BY:
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(Printed Name of Representative)
Dated:
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A-1.
EXHIBIT B
TO: CALIPER LIFE SCIENCES, INC.
FROM:
--------------------------
DATE:
--------------------------
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 Life Sciences, Inc. (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:
------------------------
------------------------
------------------------
[ ] 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.
A-2.
EXHIBIT B
EMPLOYMENT TERMINATION RELEASE
(to be signed on or after the employment termination date)
I understand that my employment with Caliper Life Sciences, Inc. (the "Company")
terminated effective ____________, 200_. I also understand that, pursuant to the
separation letter agreement between me and the Company, which I signed on
________________________, 2003 (the "Agreement"), I am required to sign this
Employment Termination Release ("Release") in exchange for certain benefits
under the Agreement. I further understand that, regardless of whether I sign
this Release, the Company 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 the Company 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 the Company or the termination of that employment;
(2) all claims related to my compensation or benefits from the Company,
including salary, bonuses, commissions, vacation pay, expense reimbursements,
severance pay, fringe benefits, stock, stock options, or any other ownership
interests in the Company; (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 the Employment Agreement or the Company'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 the Company; (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) the Company 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
3.
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 the Company.
HAVING READ AND UNDERSTOOD THE FOREGOING, I HEREBY AGREE TO THE TERMS AND
CONDITIONS STATED ABOVE.
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Date
4.
