EXHIBIT 10.47
CALIPER TECHNOLOGIES, CORP.
KEY EMPLOYEE AGREEMENT
FOR
XXXXX XXXXXXXX
This Employment Agreement ("Agreement") is entered into as of the 1st
day of July, 2002, by and between Xxxxx Xxxxxxxx ("Executive") and Caliper
Technologies, Corp. a Delaware corporation (the "Company").
WHEREAS, the Company has employed Executive as Chief Financial Officer
under the terms of an offer letter agreement between Executive and the Company
dated September 23, 1999 and an addendum to such letter dated September 24, 1999
(together the " 1999 Offer Letter Agreement"); and
WHEREAS, the Company now desires to employ Executive in the position of
President and Chief Operating Officer to provide personal services to the
Company, and wishes to provide Executive with certain compensation and benefits
in return for his services; and
WHEREAS, Executive wishes to be employed by the Company and provide
personal services to the Company in return for certain compensation and
benefits; and
WHEREAS, Executive and the Company agree to enter into this Agreement
and that it shall supercede the terms of the 1999 Offer Letter Agreement except
for the provisions related to the "Stock Option Related Cash Bonus" governing
Executive's initial equity grant, "Relocation" and "Loan" rights set forth
therein;
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 TITLE AND RESPONSIBILITIES. Subject to terms set forth
herein, the Company agrees to employ Executive in the position of President and
Chief Operating Officer (collectively the "President") and Executive hereby
accepts such employment effective as of July 1, 2002 (the "Employment Date").
During his continuing employment with the Company, Executive will devote his
best efforts and substantially all of his business time and attention (except
for vacation periods as set forth herein and reasonable periods of illness or
other incapacities permitted by the Company's general employment policies) to
the business of the Company.
1.2 EXECUTIVE POSITION. Executive shall report to the Company's
Chief Executive Officer ("CEO") (and the Board of Directors for final
performance evaluation and compensation determination) and serve in an executive
capacity with overall responsibility for management of the Company, consistent
with the Bylaws of the Company and as required by the CEO and the Board.
1.3 ELECTION TO THE BOARD. Executive agrees to serve as a
director and/or officer of the Company if elected by the shareholders and the
Board, as the case may be. The Company shall use its best efforts to elect
Executive to the Board at the September, 2002 Board meeting and for so long as
Executive holds the position of President.
1.4 COMPANY EMPLOYMENT POLICIES. The employment relationship
between the parties shall also be governed by the general employment policies
and practices of the Company, including those relating to protection of
confidential information and assignment of inventions, except that when the
terms of this Agreement differ from or are in conflict with the Company's
general employment policies or practices, this Agreement shall control.
2. COMPENSATION.
2.1 SALARY. Executive shall receive for services to be rendered
hereunder an annualized base salary of three hundred and fifty thousand dollars
($350,000), payable semi-monthly in accordance with the Company's payroll
policies and subject to standard deductions and withholdings.
2.2 ANNUAL INCENTIVE BONUS. Executive shall be eligible to earn
an Annual Incentive Bonus in the target amount of fifty percent (50%) of
Executive's then-current base salary, less standard withholdings and deductions.
The amount of the Annual Incentive Bonus, if any, will be determined by the
Board in its sole discretion and may be increased or reduced based on certain
performance milestones and financial targets for the calendar year, established
by mutual agreement between the Board and Executive within ninety (90) days of
the Employment Date. Any Annual Incentive Bonus Executive earns will be paid out
in accordance with the Company's standard practice. To earn the Annual Incentive
Bonus, Executive must be employed by the Company as President through the bonus
year. No prorated Annual Incentive Bonus can be earned. For calendar year 2002
only, and provided Executive is employed by the Company on December 31, 2002,
Executive shall be eligible to receive up to one-half of the Annual Incentive
Bonus, as provided in this paragraph, plus one-half of the annual bonus
Executive would have received under the bonus program applicable to Executive
prior to the Employment Date.
2.3 STANDARD COMPANY BENEFITS. Executive shall be entitled to all
rights and benefits for which he is eligible under the terms and conditions of
the standard Company benefits and compensation practices which may be in effect
from time to time and provided by the Company to its executives generally. You
will accrue vacation at a rate of four weeks per year.
2.4 STOCK OPTIONS.
(a) CURRENT STOCK OPTIONS. The parties acknowledge that
Executive has been granted certain stock options as set forth in Exhibit A. The
stock options continue in effect, and each will be subject to the terms and
conditions of the plan and stock option agreement under which it was granted, as
referenced in Exhibit A.
(b) NEW STOCK OPTION GRANT. Subject to the approval of the
Board, Executive shall be granted an option to purchase two hundred thousand
(200,000) shares of Company common stock on June 13, 2002, with a per share
exercise price equal to the fair market value of the Company common stock based
on the last sale price of the Company common stock on June 12, 2002, and
pursuant to the Company's 1999 Equity Incentive Plan (the "Plan") and the
related stock option agreement. The option shall vest as follows: twenty-five
percent (25%) of the option shares shall vest on the first anniversary of the
Employment Date, with the remaining option shares to vest thereafter in equal
portions on a monthly basis for thirty-six (36) months, during Executive's
active service with the Company. The option shall be an incentive stock option
to the maximum extent permitted by applicable law.
(c) SUPPLEMENTAL STOCK OPTION GRANT. Subject to the
approval of the Board, Executive shall be granted an option to purchase fifty
thousand (50,000) shares of Company common stock on June 13, 2002, with a per
share exercise price equal to the fair market value of the Company common stock
based on the last sale price of the Company common stock on June 12, 2002, and
pursuant to the Plan and the related stock option agreement. The option shall
vest as follows: one hundred percent (100%) of the option shares shall vest on
the sixth anniversary of the Employment Date; provided, however, that if the
Company achieves certain performance targets established by the Board in the
first quarter of 2003 and such targets are achieved on or before December 31,
2003, the option shall vest in 30 equal monthly installments beginning on
January 1, 2004.
3. PROPRIETARY INFORMATION OBLIGATIONS.
3.1 AGREEMENT. Executive agrees to continue to abide by the
Proprietary Information and Inventions Agreement executed on September 24, 1999
and attached hereto as Exhibit B.
3.2 REMEDIES. Executive's duties under the Proprietary
Information and Inventions Agreement shall survive termination of his employment
with the Company. Executive acknowledges that a remedy at law for any breach or
threatened breach by him of the provisions of the Proprietary Information and
Inventions Agreement would be inadequate, and he therefore agrees that the
Company shall be entitled to injunctive relief in case of any such breach or
threatened breach.
4. OUTSIDE ACTIVITIES.
4.1 ACTIVITIES. Except with the prior written consent of the
Board, Executive will not during the term of this Agreement undertake or engage
in any other
employment, occupation or business enterprise, other than ones in which
Executive is a passive investor. Executive may engage in civic and
not-for-profit activities so long as such activities do not materially interfere
with the performance of his duties hereunder.
4.2 INVESTMENTS AND INTERESTS. 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 NON-COMPETITION. During the term of his employment by the
Company, except on behalf of the Company, Executive will not directly or
indirectly, whether as an officer, director, stockholder, partner, proprietor,
associate, representative, consultant, or in any capacity whatsoever engage in,
become financially interested in, be employed by or have any business connection
with any other person, corporation, firm, partnership or other entity whatsoever
which were known by him to compete directly with the Company, throughout the
world, in any line of business engaged in (or planned to be engaged in) by the
Company; provided, however, that anything above to the contrary notwithstanding,
he may own, as a passive investor, securities of any competitor corporation, so
long as his direct holdings in any one such corporation shall not in the
aggregate constitute more than one percent (1%) of the voting stock of such
corporation.
5. TERMINATION OF EMPLOYMENT.
5.1 TERMINATION WITHOUT CAUSE.
(a) TERMINATION. The Company shall have the right to
terminate Executive's employment with the Company at any time without Cause.
(b) SEVERANCE BENEFITS. In the event Executive's
employment is terminated without Cause, Executive shall be eligible for the
following severance benefits: (i) an amount equivalent to his base salary for
twelve (12) months from the date of termination, payable as salary continuation
in accordance with the Company's ordinarily scheduled payroll; (ii)
reimbursement for his health insurance premiums at his current rate of coverage
for twelve (12) months following the termination of Company-paid group health
insurance coverage, provided Executive timely elects continued coverage under
COBRA; and (iii) accelerated vesting of Executive's unvested stock option shares
such that, in addition to the number of shares vested as of the date of
termination pursuant to terms of the applicable stock option plan and stock
option agreement(s), the number of shares that would have vested over the twelve
(12) month period following such date of termination had the Executive's
employment not been terminated without Cause, shall be deemed vested as of the
date of termination. The severance payments and health care reimbursement in
subsections (i) and (ii) above shall cease when Executive commences full-time
employment with another business entity. Executive hereby agrees to notify the
Company within three (3) business days of accepting such employment.
(c) NO OTHER COMPENSATION OR BENEFITS. In the event
Executive's employment is terminated without Cause, he will not be entitled to
any
severance pay, pay in lieu of notice or other such compensation or benefits
except as provided in this Agreement.
5.2 TERMINATION FOR CAUSE.
(a) TERMINATION. The Company shall have the right to
terminate Executive's employment with the Company at any time for Cause.
(b) DEFINITION OF "CAUSE." "Cause" for termination shall
mean: (i) conduct that constitutes willful gross neglect or willful gross
misconduct in carrying out Executive's duties, resulting, in either case, in
material economic harm to the company, unless Executive believed in good faith
that such conduct was in, or not opposed to, the best interest of the Company;
(ii) any unjustified refusal to follow reasonable directives by the CEO or by
the Board; or (iii) conviction of a felony crime involving moral turpitude;
provided, however, that the Board shall provide written notice of its intent to
terminate Executive under (i) or (ii) above and Executive shall have a 30-day
period to correct Executive's actions, if such actions can be corrected.
(c) NO COMPENSATION OR BENEFITS. In the event Executive's
employment is terminated at any time with Cause, he will not be entitled to
severance pay, pay in lieu of notice, accelerated vesting of stock options, or
any other such compensation or benefits.
5.3 RESIGNATION FOR GOOD REASON.
(a) RESIGNATION. Executive may resign his employment for
Good Reason so long as he tenders his resignation of employment and membership
on the Board to the Company within sixty (60) days after the occurrence of the
event which forms the basis for termination for Good Reason. If Executive
terminates his employment for Good Reason, he shall be eligible for the
following severance benefits: (i) an amount equivalent to his base salary for
twelve (12) months from the date of termination, payable as salary continuation
in accordance with the Company's ordinarily scheduled payroll; (ii)
reimbursement for his health insurance premiums at his current rate of coverage
for twelve (12) months following the termination of Company-paid group health
insurance coverage, provided Executive timely elects continued coverage under
COBRA; and (iii) accelerated vesting of Executive's unvested stock option shares
such that, in addition to the number of shares vested as of the date of
termination pursuant to terms of the applicable stock option plan and stock
option agreement(s), the number of shares that would have vested over the twelve
(12) month period following such date of termination had Executive's employment
not terminated for Good Reason, shall be deemed vested as of the date of
termination. The severance payments and health care reimbursement in subsections
(i) and (ii) above shall cease when Executive commences full-time employment
with another business entity. Executive hereby agrees to notify the Company
within three (3) business days of accepting such employment.
(b) DEFINITION OF "GOOD REASON." For purposes of this
Agreement, "Good Reason" shall mean any one of the following events which occurs
on or
after the Employment Date without Executive's consent: (i) a substantial
reduction of Executive's then existing annual base salary; (ii) a substantial
reduction in the package of benefits and incentives, taken as a whole, provided
to Executive (although employee contributions may be raised to the extent of any
cost increases imposed by third parties), except to the extent that such
benefits and incentives of all other executive officers of the Company are
similarly reduced; or (iii) any substantial diminution of Executive's duties,
responsibilities, authority, or reporting structure; or (iv) Executive is
required to relocate to a working location such distance that a relocation from
current residence would be required.
5.4 VOLUNTARY OR MUTUAL TERMINATION.
(a) Executive may voluntarily terminate his employment
with the Company at any time, after which no further compensation will be paid
to Executive.
(b) In the event Executive voluntarily terminates his
employment without Good Reason, as defined above, he will not be entitled to
severance pay, pay in lieu of notice, accelerated vesting of stock options, or
any other such compensation or benefits.
5.5 CHANGE IN CONTROL TERMINATION.
(a) DEFINITION. For purposes of this Agreement, Change in
Control means the occurrence of any of the following:
(i) a sale of substantially all of the assets of
the Company;
(ii) a merger or consolidation in which the Company
is not the surviving corporation (other than a merger or consolidation in which
the Company's stockholders immediately before the merger or consolidation have,
immediately after the merger or consolidation, more than fifty percent (50%) of
the voting power of the surviving corporation);
(iii) a reverse merger in which the Company is the
surviving corporation but the shares of the Company's common stock outstanding
immediately preceding the merger are either not converted or by virtue of the
merger are converted into other property, whether in the form of securities,
cash or otherwise, in each case (in which the Company's stockholders immediately
before the merger do not have, immediately after the merger, more than fifty
percent (50%) of the voting power of the Company); or
(iv) any transaction or series of related
transactions in which in excess of fifty percent (50%) of the Company's voting
power is transferred.
(b) TERMINATION AFTER A CHANGE IN CONTROL. In the event
that Executive's employment with the Company is terminated without Cause,
Constructive Termination or Executive resigns for Good Reason, within thirteen
(13) months following
a Change in Control (a "Change in Control Termination"), Executive shall be
eligible for the following severance benefits: (i) an amount equivalent to his
base salary for twelve (12) months from the date of termination, payable as
salary continuation in accordance with the Company's ordinarily scheduled
payroll; (ii) reimbursement for his health insurance premiums at his current
rate of coverage for twelve (12) months following the termination of
Company-paid group health insurance coverage, provided Executive timely elects
continued coverage under COBRA; and (iii) all stock options held by Executive
shall have their vesting accelerated such that all options are fully vested and
exercisable as of the date of the Change in Control Termination. The severance
payments and health care reimbursement in subsections (i) and (ii) above shall
cease when Executive commences full-time employment with another business
entity. Executive hereby agrees to notify the Company within three (3) business
days of accepting such employment.
(i) "Constructive Termination" shall mean either
(i) a material reduction in the Employee's duties, responsibilities or position;
(ii) a material reduction in the Employee's compensation or benefits, except for
reductions in compensation and benefits that are concurrent with and consistent
with reductions for all executives of the acquiring or surviving corporation; or
(iii) Employee does not maintain exact position in parent company including
title and reporting structure. Constructive Termination is triggered by the
actual resignation of the employee within 30 days of the above change.
(c) VOLUNTARY TERMINATION. In the event Executive
voluntarily terminates his employment without Good Reason subsequent to a Change
in Control, he will not be entitled to severance pay, pay in lieu of notice,
accelerated vesting of stock options, or any other such compensation or
benefits.
(d) PARACHUTE PAYMENTS. If any cash compensation payment,
employee benefits or acceleration of vesting of stock options or other stock
awards Executive would receive in connection with a Change in Control
("Payment") would (i) constitute a "parachute payment" within the meaning of
Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and
(ii) but for this sentence, be subject to the excise tax imposed by Section 4999
of the Code (the "Excise Tax"), then such Payment shall be reduced to the
Reduced Amount. The "Reduced Amount" shall be either (x) the largest portion of
the Payment that would result in no portion of the Payment being subject to the
Excise Tax or (y) the largest portion, up to and including the total, of the
Payment, whichever amount, after taking into account all applicable federal,
state and local employment taxes, income taxes, and the Excise Tax (all computed
at the highest applicable marginal rate), results in Executive's receipt, on an
after-tax basis, of the greater amount of the Payment notwithstanding that all
or some portion of the Payment may be subject to the Excise Tax. If a reduction
in payments or benefits constituting "parachute payments" is necessary so that
the Payment equals the Reduced Amount, reduction shall occur in the following
order unless the Executive elects in writing a different order (provided,
however, that such election shall be subject to Company approval if made on or
after the effective date of Executive's termination of employment): reduction of
cash payments; reduction of employee benefits; and cancellation of accelerated
vesting of stock awards. In the event that acceleration of vesting of stock
award compensation is to be
reduced, such acceleration of vesting shall be cancelled in the reverse order of
the date of grant of the Executive's stock awards unless the Executive elects in
writing a different order for cancellation.
The accounting firm engaged by the Company for general audit purposes as
of the day prior to the effective date of the Executive's termination of
employment shall perform the foregoing calculations. If the accounting firm so
engaged by the Company is serving as accountant or auditor for the individual,
entity or group effecting a change in ownership or effective control of the
Company, the Company shall appoint a nationally recognized accounting firm to
make the determinations required hereunder. The Company shall bear all expenses
with respect to the determinations by such accounting firm required to be made
hereunder.
The accounting firm engaged to make the determinations hereunder shall
provide its calculations, together with detailed supporting documentation, to
the Company and Executive within fifteen (15) calendar days after the date on
which Executive's right to a Payment arises (if requested at that time by the
Company or Executive) or at such other time as requested by the Company or
Executive. If the accounting firm determines that no Excise Tax is payable with
respect to a Payment, either before or after the application of the Reduced
Amount, it shall furnish the Company and Executive with an opinion reasonably
acceptable to Executive that no Excise Tax will be imposed with respect to such
Payment. Any good faith determination of the accounting firm made hereunder
shall be final, binding and conclusive upon the Company and Executive.
6. RELEASE. Upon the termination of Executive's employment, Executive
shall provide the Company with an executed and effective general release
substantially in the form attached hereto as Exhibit C (the "Release"), as a
condition of receipt of any severance benefits provided under Section 5 of this
Agreement. Unless the Release is executed by Executive and becomes fully
effective under the terms set forth in the Release, no severance shall be
payable to Executive, he shall not be entitled to health care reimbursement, and
any acceleration of stock options as provided in this Agreement shall not apply
and Executive's stock options in such event may be exercised following the date
of Executive's termination only to the extent provided under their original
terms in accordance with the applicable stock option plan, and the applicable
option agreements.
7. NONINTERFERENCE.
While employed by the Company, and for two (2) years immediately
following his employment termination date, Executive agrees not to interfere
with the business of the Company by:
(a) soliciting, attempting to solicit, inducing, or
otherwise causing any employee of the Company to terminate his or her employment
in order to become an employee, consultant or independent contractor to or for
any competitor of the Company; or
(b) directly or indirectly soliciting the business of any
customer of the Company which at the time of Executive's termination or one year
immediately prior thereto was listed on the Company's customer list.
8. INDEMNIFICATION. Executive shall receive indemnification as a
corporate officer and director of the Company to the maximum extent extended to
the other officers and directors of the Company. Executive will be required to
enter into the Company's standard form of Indemnification Agreement, pursuant to
which the Company agrees to advance any expenses for which indemnification is
available to the extent allowed by applicable law.
9. COOPERATION WITH COMPANY.
9.1 COOPERATION OBLIGATION. During and after the term of
Executive's employment, Executive will cooperate with the Company in responding
to the reasonable requests of the Company's Chairman of the Board, CEO 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 9 will be a material breach of the terms of this
Agreement which will result in all commitments of the Company to provide
severance benefits to Executive under Section 5 of this Agreement becoming null
and void.
9.2 EXPENSES AND FEES. The Company will reimburse Executive for
reasonable out-of-pocket expenses incurred by Executive as a result of his
cooperation with the obligations described in Section 9.1, 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 9.1 ("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 9.1, he will be serving as an independent contractor, not a
Company employee, and he will be entirely responsible for the payment of all
income taxes and any other taxes due and owing as a result of the payment of
Fees. Executive hereby indemnifies the Company, and its respective 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.
10. GENERAL PROVISIONS.
10.1 NOTICES. Any notices provided hereunder must be in writing
and shall be deemed effective upon the earlier of personal delivery (including
personal delivery by fax) or the third day after mailing by first class mail, to
the Company at its primary office location and to Executive at his address as
listed on the Company payroll.
10.2 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 to the extent possible in
keeping with the intent of the parties.
10.3 WAIVER. If either party should waive any breach of any
provisions of this Agreement, he or it shall not thereby be deemed to have
waived any preceding or succeeding breach of the same or any other provision of
this Agreement.
10.4 COMPLETE AGREEMENT. This Agreement and its Exhibits,
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, supersedes any other
agreements or promises made to Executive by anyone, whether oral or written,
including the 1999 Offer Letter Agreement, and cannot be modified or amended
except in a writing signed by an officer of the Company.
10.5 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.
10.6 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.
10.7 SUCCESSORS AND ASSIGNS. This Agreement is intended to bind
and inure to the benefit of and be enforceable by Executive and the Company, and
their respective successors, assigns, heirs, executors and administrators,
except that Executive may not assign any of his duties hereunder and he may not
assign any of his rights hereunder without the written consent of the Company,
which shall not be withheld unreasonably.
10.8 ATTORNEYS' FEES. If either party hereto brings any action to
enforce his or its rights hereunder, the prevailing party in any such action
shall be entitled to
recover his or its reasonable attorneys' fees and costs incurred in connection
with such action.
10.9 CHOICE OF LAW. All questions concerning the construction,
validity and interpretation of this Agreement will be governed by the law of the
State of California.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
CALIPER TECHNOLOGIES, CORP.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
[Name] Xxxxxx X. Xxxxxx
[Title] President & CEO
Date: 6/17/02
Accepted and agreed this
13th day of May, 2002.
XXXXX XXXXXXXX, AN INDIVIDUAL
/s/ Xxxxx X. Xxxxxxxx
EXHIBIT A
STOCK OPTIONS HELD BY EXECUTIVE
Page 1
Run Date: 06/14/02 Run Time: 5:56pm
Caliper Technologies Corp.
OPTIONEE ACTIVITY for Xx. Xxxxx X Xxxxxxxx
All Types - All Plans, All Grants, As Of Thursday, June 13, 2002
Expired, Out- Out-
Subject Cancell- standing standing
Option Holder Name Grant to Repur- ed or Out- Un- Exer-
Plan / Next Vest Grant No. Type Date Shares Price Vested Exercised chase Amended standing Vested cisable
------------------- --------- --------- --------- ------ ------ --------- --------- ------- -------- -------- --------
Xxxxxxxx, Xxxxx L (Tax ID:xxx-xx-0596) - Form 144
000 Xxxxxxx Xxxxx
Xxx Xxxxxxxxx XX 00000
239 NQ 10/01/99 108,974.0 $3.12 67,947.0 6,500.0 0 0.0 102,474.0 41,027.0 61,447
1999 Equity / Next Vest: 1,816 - 07/31/02
238 ISO 10/01/99 160,255.0 $3.12 80,127.0 20,000.0 0 0.0 140,255.0 80,128.0 60,127
1999 Equity / Next Vest: 2,671 - 07/31/02
238A NQ 10/01/99 1.0 $3.12 0.0 0.0 0 0.0 1.0 1.0 0
1999 Equity / Next Vest: 1 - 09/30/04
96-59 NQ 03/17/00 8,000.0 $77.00 4,666.0 0.0 0 0.0 8,000.0 3,334.0 4,666
1999 Equity / Next Vest: 167 - 08/17/02
96-360 ISO 01/12/01 730.0 $33.625 0.0 0.0 0 0.0 730.0 730.0 0
1999 Equity / Next Vest: 730 - 01/12/05
96-360A NQ 01/12/01 34,270.0 $33.625 13,124.0 0.0 0 0.0 34,270.0 21,146.0 13,124
1999 Equity / Next Vest: 729 - 08/12/02
96-375 ISO 04/04/01 2,084.0 $15.00 0.0 0.0 0 0.0 2,084.0 2,084.0 0
1999 Equity / Next Vest: 521 - 01/04/05
96-375A NQ 04/04/01 22,916.0 $15.00 7,812.0 0.0 0 0.0 22,916.0 15,104.0 7,812
1999 Equity / Next Vest: 521 - 08/04/02
96-645 ISO 09/26/01 4,437.0 $9.96 0.0 0.0 0 0.0 4,437.0 4,437.0 0
1999 Equity / Next Vest: 729 - 01/26/05
96-645A NQ 09/26/01 30,563.0 $9.96 0.0 0.0 0 0.0 30,563.0 30,563.0 0
1999 Equity / Next Vest: 8,750 - 09/26/02
96-683 ISO 01/09/02 625.0 $16.65 0.0 0.0 0 0.0 625.0 625.0 0
1999 Equity / Next Vest: 625 - 01/09/06
96-683A NQ 01/09/02 29,375.0 $16.65 0.0 0.0 0 0.0 29,375.0 29,375.0 0
1999 Equity / Next Vest: 7,500 - 01/09/03
--------- ----------- --------- -------- ---- ----- --------- --------- -------
Totals for Xxxxxxxx, Xxxxx L: 402,230.0 {$9.58648684} 167,606.0 26,500.0 0 0.0 375,730.0 234,624.0 141,106
Page 2
Run Date: 06/14/02 Run Time: 5:56pm
Caliper Technologies Corp.
OPTIONEE ACTIVITY for Xx. Xxxxx X Xxxxxxxx
All Types - All Plans, All Grants, As Of Monday, June 13, 2002
If your employment is terminated, Outstanding Un-Vested shares as of the date of
termination are automatically cancelled. If you have more than one grant,
numbers in brackets represent Weighted Average Price per Share.
EXHIBIT B
PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
CALIPER TECHNOLOGIES CORP.
EMPLOYEE PROPRIETARY INFORMATION
AND INVENTIONS AGREEMENT
In consideration of my employment or continued employment by CALIPER
TECHNOLOGIES CORP. (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
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disclosure of any such Prior Invention would cause me to violate any prior
confidentiality agreement, I understand that I am not to list such Prior
Inventions in Exhibit B but am only to disclose a cursory name for each such
invention, a listing of the party(ies) to whom it belongs and the fact that full
disclosure as to such inventions has not been made for that reason. A space is
provided on Exhibit B for such purpose. If no such disclosure is attached, I
represent that there are no Prior Inventions. If, in the course of my employment
with the Company, I incorporate a Prior Invention into a Company product,
process or machine, the Company is hereby granted and shall have a nonexclusive,
royalty-free, irrevocable, perpetual, worldwide license (with rights to
sublicense through multiple tiers of sublicensees) to make, have made, modify,
use and sell such Prior Invention. Notwithstanding the foregoing, I agree that I
will not incorporate, or permit to be incorporated, Prior Inventions in any
Company Inventions without the Company's prior written consent.
2.3 ASSIGNMENT OF INVENTIONS. Subject to Sections 2.4, and 2.6, I hereby
assign and agree to assign in the future (when any such Inventions or
Proprietary Rights are first reduced to practice or first fixed in a tangible
medium, as applicable) to the Company all my right, title and interest in and to
any and all Inventions (and all Proprietary Rights with respect thereto) whether
or not patentable or registrable under copyright or similar statutes, made or
conceived or reduced to practice or learned by me, either alone or jointly with
others, during the period of my employment with the Company. Inventions assigned
to the Company, or to a third party as directed by the Company pursuant to this
Section 2, are hereinafter referred to as "COMPANY INVENTIONS."
2.4 NONASSIGNABLE INVENTIONS. This Agreement does not apply to an
Invention which qualifies fully as a nonassignable Invention under Section 2870
of the California Labor Code (hereinafter "SECTION 2870"). I have reviewed the
notification on Exhibit A (Limited Exclusion Notification) and agree that my
signature acknowledges receipt of the notification.
2.5 OBLIGATION TO KEEP COMPANY INFORMED. During the period of my
employment and for six (6) months after termination of my employment with the
Company, I will promptly disclose to the Company fully and in writing all
Inventions authored, conceived or reduced to practice by me, either alone or
jointly with others. In addition, I will promptly disclose to the Company all
patent applications filed by me or on my behalf within a year after termination
of employment. At the time of each such disclosure, I will advise the Company in
writing of any Inventions that I believe fully qualify for protection under
Section 2870; and I will at that time provide to the Company in writing all
evidence necessary to substantiate that belief. The Company will keep in
confidence and will not use for any purpose or disclose to third parties without
my consent any confidential information disclosed in writing to the Company
pursuant to this Agreement relating to Inventions that qualify fully for
protection under the provisions of Section 2870. I will preserve the
confidentiality of any Invention that does not fully qualify for protection
under Section 2870.
2.6 GOVERNMENT OR THIRD PARTY. I also agree to assign all my right,
title and interest in and to any particular 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.
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3. RECORDS. I agree to keep and maintain adequate and current records (in the
form of notes, sketches, drawings and in any other form that may be required by
the Company) of all Proprietary Information developed by me and all Inventions
made by me during the period of my employment at the Company, which records
shall be available to and remain the sole property of the Company at all times.
4. ADDITIONAL ACTIVITIES. I agree that during the period of my employment by the
Company I will not, without the Company's express written consent, engage in any
employment or business activity which is competitive with, or would otherwise
conflict with, my employment by the Company. I agree further that for the period
of my employment by the Company and for one (l) year after the date of
termination of my employment by the Company I will not 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 San Diego County, California for any lawsuit filed there against me
by Company arising from or related to this Agreement.
10.2 SEVERABILITY. In case any one or more of the provisions contained
in this Agreement shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect the other provisions of this Agreement, and this Agreement
shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein. If moreover, any one or more of the provisions
contained in this Agreement shall for any reason be held to be excessively broad
as to duration, geographical scope, activity or subject, it shall be construed
by limiting and reducing it, so as to be enforceable to the extent compatible
with the applicable law as it shall then appear.
10.3 SUCCESSORS AND ASSIGNS. This Agreement will be binding upon my
heirs, executors, administrators and other legal representatives and will be for
the benefit of the Company, its successors, and its assigns.
10.4 SURVIVAL. The provisions of this Agreement shall survive the
termination of my employment and the assignment of this Agreement by the Company
to any successor in interest or other assignee.
10.5 EMPLOYMENT. I agree and understand that nothing in this Agreement
shall confer any right with respect to continuation of employment by the
Company, nor shall it interfere in any way with my right or the Company's right
to terminate my employment at any time, with or without cause.
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10.6 WAIVER. No waiver by the Company of any breach of this Agreement
shall be a waiver of any preceding or succeeding breach. No waiver by the
Company of any right under this Agreement shall be construed as a waiver of any
other right. The Company shall not be required to give notice to enforce strict
adherence to all terms of this Agreement.
10.7 ENTIRE AGREEMENT. The obligations pursuant to Sections 1 and 2 of
this Agreement shall apply to any time during which I was previously employed,
or am in the future employed, by the Company as a consultant if no other
agreement governs nondisclosure and assignment of inventions during such period.
This Agreement is the final, complete and exclusive agreement of the parties
with respect to the subject matter hereof and supersedes and merges all prior
discussions between us. No modification of or amendment to this Agreement, nor
any waiver of any rights under this Agreement, will be effective unless in
writing and signed by the party to be charged. Any subsequent change or changes
in my duties, salary or compensation will not affect the validity or scope of
this Agreement.
This Agreement shall be effective as of the first day of my employment
with the Company, namely: September 24, 1999.
I HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS. I HAVE
COMPLETELY FILLED OUT EXHIBIT B TO THIS AGREEMENT.
Dated: September 24, 1999
/s/ Xxxxx X. Xxxxxxxx
---------------------------------
SIGNATURE
Xxxxx X. Xxxxxxxx
---------------------------------
(PRINTED NAME)
ACCEPTED AND AGREED TO:
CALIPER TECHNOLOGIES CORP.
By: /s/ X. Xxxxxxx Parce
------------------------------
X. Xxxxxxx Parce
Title: VP Research
---------------------------------
(Address)
---------------------------------
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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: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------------
Xxxxx X. Xxxxxxxx (Printed Name of Employee)
Date: 9/29/99
WITNESSED BY:
/s/ Xxxxxxx X. Xxxxx
-------------------------------------------------
(Printed Name of Representative) Xxxxxxx X. Xxxxx
Dated: 9/29/1999
A-1.
EXHIBIT B
TO: CALIPER TECHNOLOGIES CORP.
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 Technologies Corp. (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:
[X] 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.
B-1.
EXHIBIT C
RELEASE AGREEMENT
I understand that my position with Caliper Technologies, Corp. (the
"Company") terminated effective ___________, 20__ (the "Separation Date"). The
Company has agreed that if I choose to sign this Release, the Company will
provide me with certain severance benefits pursuant to the terms of the
Executive Employment Agreement (the "Agreement") between myself and the Company,
and any agreements incorporated therein by reference. I understand that I am not
entitled to such benefits unless I sign this Release and it becomes fully
effective. I understand that, regardless of whether I sign this Release, the
Company will pay me all of my accrued salary and vacation through the Separation
Date, to which I am entitled by law.
In consideration for the severance benefits I am receiving under the
Agreement, I hereby release the Company, its affiliates and its and their
respective officers, directors, agents, attorneys, employees, shareholders,
parents, subsidiaries, and affiliates from any and all claims, liabilities,
demands, causes of action, attorneys' fees, damages, or obligations of every
kind and nature, whether they are now known or unknown, arising at any time
prior to and including the date I sign this Release. This general release
includes, but is not limited to: all federal and state statutory and common law
claims related to my employment or the termination of my employment or related
to all claims for breach of contract, tort, wrongful termination,
discrimination, wages or benefits, or claims for any form of equity or
compensation. Notwithstanding the release in the preceding sentence, I am not
releasing any right of indemnification I may have in my capacity as an employee,
officer and/or director of the Company pursuant to any express indemnification
agreement, nor am I releasing any rights I may have as an owner and/or holder of
the Company's common stock and stock options.
In releasing claims unknown to me at present, I am waiving all rights
and benefits under Section 1542 of the California Civil Code, and any law or
legal principle of similar effect in any jurisdiction: "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
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
If I am forty (40) years of age or older as of the Separation Date, I
acknowledge that I am knowingly and voluntarily waiving and releasing any rights
I may have under the Federal Age Discrimination in Employment Act of 1967, as
amended ("ADEA"). I also acknowledge that the consideration given for the
release and waiver in the above paragraphs is in addition to anything of value
to which I was already entitled. I have been advised by this writing, as
required by the ADEA that: (a) my waiver and release do not apply to any claims
that may arise after my signing of this Release; (b) I should consult with an
attorney prior to executing this Release; (c) I have twenty-one (21) days within
which 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; and (e) this Release will not be effective until
the eighth day after this Release has been signed both by me and by the Company
("Effective Date").
Agreed:
CALIPER TECHNOLOGIES, CORP. XXXXX XXXXXXXX, AN INDIVIDUAL
By:
------------------------------- -----------------------------
[Name]
[Title]
Date: Date:
2
