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Exhibit 10.17
CALIPER TECHNOLOGIES CORP.
CONSULTING AGREEMENT
THIS AGREEMENT is made and entered into as of the 30th day of April, 1997
(the "Effective Date") by and between CALIPER TECHNOLOGIES CORP., a Delaware
corporation (the "Company"), and DR. XXXXX XXXXXXXX ("Contractor").
RECITAL
As part of its ongoing program of research and development, the Company
desires to engage individuals with business and scientific expertise to assist
the Company from time to time in projects involving business strategy and the
research and development of the Company's proposed products. Contractor is
qualified and willing to provide such services. Therefore, the Company and
Contractor desire to enter into this Agreement.
AGREEMENT
In consideration of the mutual covenants set forth below, the parties
hereby agree as follows:
1. ENGAGEMENT OF SERVICES.
Contractor, pursuant to the provisions of this Agreement, is hereby engaged
by the Company to provide services to the Company as described on Exhibit A
attached hereto (the "Services"). The Services will be provided relating to the
field described in Exhibit B hereto (the "Field"). Contractor shall perform
Services as requested by the Company from time to time to the best of his
ability, such Services to be performed at such place or places and at such times
as mutually agreed upon by the Company and Contractor. Contractor shall provide
up to four (4) days per month in person or by telephone (in addition to six days
per year for Board meetings provided in Contractor's capacity of Chairman of the
Board of the Company) for twelve (12) months from the date of this Agreement.
The Company recognizes that Contractor may be unavailable to perform Services
for certain limited amounts of time due to other commitments. Contractor shall
notify the Company in advance of any such expected periods of unavailability in
person or by telephone, which shall not be considered a breach of this Agreement
unless the duration of any such period of unavailability extends for more than
thirty (30) consecutive days.
2. COMPENSATION.
2.1 As consideration for Contractor's Services and for the discharge of
all Contractor's obligations hereunder, the Company shall (i) pay Contractor
$80,000, such amount to be paid by the Company monthly in twelve equal
installments beginning on the last business day of May 1997, and (ii) grant
Contractor a non-qualified stock option to purchase 100,000 shares (the
"Shares") of the Company's Common Stock at the current fair market value of $.30
per share under the Company's 1996 Stock Incentive Plan (the "Plan"), which
Shares shall vest over a five year period at a rate of 1,667 shares per month at
the end of each month, beginning
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with the month of May 1997, whether or not the Company requests Services. If
Contractor shall cease to be a director, officer, employee or consultant to the
Company prior to the vesting of all of the Shares, for any reason, the vesting
of the Shares shall immediately cease and any Shares which are unvested on the
date the Agreement is terminated shall remain unvested shares.
2.2 In addition to such compensation, the Company will reimburse
Contractor for travel and other out-of-pocket costs reasonably incurred by him
in the course of performing Services under this Agreement; provided however,
that the Company shall not be obligated hereunder unless (a) the Company has
agreed in advance to reimburse such costs, and (b) Contractor provides the
Company with appropriate receipts or other relevant documentation for all such
costs as part of any submission by Contractor for reimbursement.
3. INDEPENDENT CONTRACTOR.
It is understood and agreed that Contractor is an independent contractor
and not an agent or employee of the Company. Contractor has no authority to act
on behalf of the Company pursuant to this Agreement, or to obligate the Company
by contract or otherwise. Contractor will not be eligible for any employee
benefits, nor will the Company make deductions from Contractor's fees for taxes.
The payment of any taxes related to Contractor's provision of Services under
this Agreement shall be the sole responsibility of Contractor.
4. ADDITIONAL ACTIVITIES.
4.1 During the period in which Contractor provides Services to the Company
under this Agreement (the "Contracting Period"), Contractor will not directly or
indirectly (whether for compensation or without compensation), provide services
relating to the Field to any corporation or other entity which is engaged in
research in the Field, other than to those corporations or other entities to
which Contractor provides services on the date of this Agreement; provided,
however, that the foregoing shall not prevent Contractor from engaging in any
academic research, teaching or related activity in the Field.
4.2 During the Contracting Period, and for an amount of time thereafter
equal in length to the lesser of (a) two years or (b) the length of the
Contracting Period, Contractor will not, directly or indirectly (whether for
compensation or without compensation):
(i) recruit, solicit or induce, or attempt to induce, any employee or
employees of the Company to terminate their employment with, or otherwise cease
their relationship with, the Company; or
(ii) induce any other contractor, or the employee of any other
contractor to terminate its or its contractual relationship with the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take
away, the business or patronage of any of the clients, customers or accounts, or
prospective clients, customers or accounts, if any, of the Company that were
contacted, solicited or served by Contractor during the Contracting Period.
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4.3 The restrictions set forth in paragraphs 4.1 and 4.2 are considered by
the parties to be reasonable for the purposes of protecting the business of the
Company. However, if any such restriction is found by any court of competent
jurisdiction to be unenforceable because it extends for too long a period of
time or over too great a range of activities or in too broad a geographic area,
it shall be interpreted to extend only over the maximum period of time, range of
activities or geographic area as to which it may be enforceable.
5. ESTABLISHMENT OF CONFIDENTIAL RELATIONSHIP.
Contractor recognizes that the Company is engaged in a continuous program
of research and development respecting its present and future business
activities. Contractor understands that:
5.1 As part of Contractor's Services performed for the Company, Contractor
will be involved in discussions that relate to the Company's technology and
business strategy, and, in the course of providing Services to the Company, may
develop new ideas or inventions or make other contributions of value to the
Company.
5.2 This Agreement creates a relationship of trust and confidence between
Contractor and the Company with respect to any information which is:
(i) applicable to the business of the Company or any client or
customer of the Company; and
(ii) is made known to Contractor by the Company or by any client or
customer of the Company, or is learned by Contractor while performing Services
for the Company.
5.3 The Company possesses and will continue to possess information: (i)
that has been created, discovered, developed, or otherwise become known to the
Company; or (ii) in which property rights have been assigned or otherwise
conveyed to the Company by another entity, which information has commercial
value in the business in which the Company is engaged and is treated by the
Company as confidential. All such information is hereinafter referred to as
"Proprietary Information." By way of illustration, but not limitation,
Proprietary Information includes: (a) inventions, developments, designs,
applications, improvements, trade secrets, formulae, ideas, know-how, methods or
processes, discoveries, techniques and data (hereinafter collectively referred
to as "Inventions"); and (b) plans for research, development, new products,
marketing and selling, information regarding business plans, budgets and
unpublished financial statements, licenses, prices and costs, information
concerning suppliers and customers and information regarding the skills and
compensation of employees of the Company. Notwithstanding the above, nothing
received by Contractor will be considered to be Proprietary Information if: (a)
it has been published or is otherwise readily available to the public other than
by a breach of this Agreement; (b) it has been rightfully received by Contractor
from a third party without confidential limitations; (c) it has been
independently developed for Contractor by personnel or agents having no access
to the Proprietary Information; or (d) it was known to Contractor prior to its
first receipt from the Company.
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Certain specific obligations of Contractor arising out of Contractor's
confidential relationship with the Company are set forth in Sections 6 and 7 of
this Agreement.
6. RECOGNITION OF COMPANY'S RIGHTS; NONDISCLOSURE.
6.1 All Proprietary Information shall be the sole property of the Company
and its assigns, and the Company and its assigns shall be the sole owner of all
patents, copyrights and other rights in connection with such Proprietary
Information.
6.2 Contractor agrees to abide by the Company's document control procedure
established by the Company to ensure accurate maintenance and controls in
accessibility of all documents and information relating to the Company's
business. The Company will provide a copy of such policies to Contractor.
6.3 At all times, both during the term of this Agreement and after its
termination, Contractor will keep in confidence and trust all Proprietary
Information and shall not use or disclose to any third party any Proprietary
Information or anything related to such information without the written consent
of the Company, except as may be required in the ordinary course of performing
Services for the Company pursuant to this Agreement.
7. NONDISCLOSURE OF THIRD-PARTY INFORMATION.
Contractor understands that the Company has received and in the future will
receive from third parties information that is confidential or proprietary
("Third-Party Information") subject to a duty on the part of the Company to
maintain the confidentiality of such information and to use it only for certain
limited purposes. During the term of this Agreement and thereafter, Contractor
will hold Third-Party Information in the strictest confidence and will not
disclose or use Third-Party Information except as permitted by the agreement
between the Company and such third party, unless expressly authorized to act
otherwise by an officer of the Company in writing.
8. NO CONFLICTING OBLIGATION.
8.1 Contractor represents that his performance of all of the terms of this
Agreement and provision of Services as a contractor to the Company do not and
will not breach any agreement to keep in confidence any proprietary information
of another entity acquired by Contractor in confidence or in trust prior to the
date of this Agreement.
8.2 Contractor has not entered into, and hereby agrees not to enter into,
any agreement either written or oral in conflict with this Agreement, provided
that, absent a conflict of interest, Contractor is free to provide services to
any other entity during the performance of this Agreement.
9. NO IMPROPER USE OF MATERIALS.
Contractor agrees not to bring to the Company or to use in the performance
of Services any materials or documents of a present or former employer of
Contractor or of Contractor's
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employee, or any materials or documents obtained by Contractor under a binder of
confidentiality imposed by reason of another of Contractor's contracting
relationships, unless such materials or documents are generally available to the
public or Contractor has authorization from such present or former employer or
client for the possession and unrestricted use of such materials. Contractor
understands that Contractor is not to breach any obligation of confidentiality
that Contractor has to present or former employers or clients, and agrees to
fulfill all such obligations during the term of this Agreement.
10. TERM AND TERMINATION.
10.1 Unless previously terminated as set forth in Sections 10.2 or 10.3
below, the term of this Agreement shall commence on the Effective Date and shall
terminate twelve (12) months thereafter (the "Initial Term") unless extended by
mutual agreement of both parties hereto, which extension or extensions, if made,
shall be for an additional twelve months and which in the aggregate may extend
the term of this Agreement to up to five years from the Effective Date.
10.2 Either party may terminate this Agreement in the event of a material
breach by the other party of this Agreement, if such breach continues uncured
for a period of thirty (30) days after written notice of such breach by the
nonbreaching party.
10.3 The Company may terminate this Agreement if at any time Contractor
shall cease to be a director of the Company.
11. EFFECT OF TERMINATION.
11.1 Upon the expiration or termination of this Agreement, each party shall
be released from all obligations and liabilities to the other occurring or
arising after the date of such termination, except that any termination of this
Agreement shall not relieve Contractor of Contractor's obligations under
Sections 4, 5, 6 and 7 hereof, nor shall any such termination relieve Contractor
or the Company from any liability arising from any breach of this Agreement.
11.2 Upon termination of this Agreement for any reason whatsoever,
Contractor shall promptly surrender and deliver to the Company all documents,
notes and other materials of any nature pertaining to Contractor's work with the
Company, and any documents or data of any description (or any reproduction of
any documents or data) containing or pertaining to any Proprietary Information.
12. ASSIGNMENT.
The rights and liabilities of the parties hereto shall bind and inure to
the benefit of their respective successors, assigns, heirs, executors and
administrators, as the case may be; provided that Contractor may not assign or
delegate Contractor's obligations under this Agreement either in whole or in
part without the prior written consent of the Company.
13. LEGAL AND EQUITABLE REMEDIES.
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Because Contractor's services are personal and unique and because
Contractor 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 prejudice to any other rights and remedies that the
Company may have for a breach of this Agreement.
14. GOVERNING LAW; SEVERABILITY.
This Agreement shall be governed by the laws of the State of California as
those laws are applied to contracts entered into and to be performed entirely in
California by California residents. If one or more of the provisions in this
Agreement are deemed unenforceable by law, then such provision will be deemed
stricken from this Agreement and the remaining provisions will continue in full
force and effect.
15. COMPLETE UNDERSTANDING; MODIFICATION.
This Agreement and all other documents mentioned herein, with the exception
of that certain Consulting Agreement dated as of September 11, 1996 between the
Company and Contractor and all stock option agreements between the Company and
Contractor, constitute the final, exclusive and complete understanding and
agreement of the parties hereto and supersedes all prior understandings and
agreements, and is entered into without reliance upon any representation,
whether oral or written, not stated herein. Any waiver, modification or
amendment of any provision of this Agreement shall be effective only if in
writing and signed by a Company officer.
16. 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 sent by certified or registered mail,
three days after the date of mailing.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the Effective Date.
CALIPER TECHNOLOGIES CORP. CONTRACTOR
By: XXXXX X. XXX By: XXXXX XXXXXXXX
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Dr. Xxxxx Xxxxxxxx
Title: PRESIDENT AND CEO Address:
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EXHIBIT A
SERVICES
Consultation and advice concerning:
1. the on-going review of Caliper's core competitive strengths;
2. the review and development of optimal growth strategies, in particular
partnering relationships; and
3. the identification and development of product and partnership strategies,
particularly in pharmaceuticals and diagnostics.
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EXHIBIT B
THE FIELD
The following fields, excluding the development of miniature chemical or
biochemical systems for the analysis of DNA or RNA:
a. microfabrication and micromachining as these disciplines apply to the
development of miniature chemical or biochemical systems for analysis
or synthesis;
b. analytical chemistry or biochemistry as these disciplines apply to the
development of miniature chemical or biochemical systems for analysis
or synthesis;
c. chemical or biochemical detection methods as they apply to the use of
these technologies in the development of miniature chemical or
biochemical systems for analysis or synthesis.
d. molecular separations sciences as it applies to the development of
miniature chemical or biochemical systems for analysis; and
e. biological, biochemical or chemical assays as they apply to the
development of miniature chemical or biochemical systems for analysis
or synthesis.
