EXHIBIT 10.32
SEPARATION AGREEMENT
This Separation Agreement ("Agreement") is made and entered into by and
between Xxxxxxxx X. Xxx Xxxxx ("Xx. Xxx Xxxxx") and Diversa Corporation (the
"Company"), as of the last day either party executes this Agreement (the
"Effective Date").
1. Resignation. Xx. Xxx Xxxxx has tendered and the Company has accepted
her resignation as Chief Financial Officer, Vice President, Finance and
Administration, Treasurer and Secretary and all other positions she may hold
with the Company and its subsidiaries, effective March 15, 1999 (the "Separation
Date").
2. Accrued Salary and Vacation. The Company will pay Xx. Xxx Xxxxx all
accrued salary, and all accrued and unused vacation benefits earned prior to the
Separation Date, subject to standard payroll deductions and tax withholdings.
Xx. Xxx Xxxxx is entitled to this payment regardless of whether she signs this
Agreement.
3. Expense Reimbursement. Xx. Xxx Xxxxx agrees that she will use her
best efforts to submit her final documented expense reimbursement statement
reflecting all business expenses she incurred through the Separation Date, if
any, within twenty (20) business days of the Effective Date. The Company shall
reimburse Xx. Xxx Xxxxx'x expenses pursuant to Company policy and regular
business practice. Xx. Xxx Xxxxx acknowledges and agrees that she is not
entitled to any further reimbursement from the Company for expenses relating to
her relocation to San Diego, California, including, but not limited to, expenses
related to the purchase of her new home.
4. Severance Payment. The Company agrees that it will pay Xx. Xxx Xxxxx,
as xxxxxxxxx, One Hundred Seventy-Seven Thousand Six Hundred Twenty-Four Dollars
and Ninety Five Cents ($177,624.95) subject to the following deductions (the
"Severance Payment"): (i) standard payroll deductions and tax withholdings, and
(ii) a Forty-Six Thousand Five Hundred Dollars ($46,500.00) advance that was
provided to Xx. Xxx Xxxxx in connection with the closing of her new home. The
Severance Payment will be paid to Xx. Xxx Xxxxx within three (3) business days
of the Effective Date of this Agreement.
5. Advance. Xx. Xxx Xxxxx acknowledges that she received a Four Thousand
Four Hundred Dollars ($4,400.00) advance payment from the Company in connection
with the lease of a home in 1997 (the "Advance"). The Company agrees, as part
of this Agreement, that it shall forgive Xx. Xxx Xxxxx'x obligation to repay the
Advance provided that Xx. Xxx Xxxxx does not receive reimbursement from the
landlord or any other entity. If Xx. Xxx Xxxxx receives reimbursement on the
Advance, or any portion thereof, she shall promptly send the Company a check in
the same amount. To the extent that the Advance or any portion thereof is
forgiven by the Company, Xx. Xxx Xxxxx agrees and acknowledges that she shall be
solely responsible for the income tax implications attributable to her in
connection with such forgiveness.
6. Promissory Note. The Company agrees that, in consideration of the
terms and conditions of this Agreement, it shall forgive the outstanding balance
of Thirty-Seven Thousand Five Hundred Dollars ($37,500.00) remaining on that
certain loan in the amount of Fifty
1.
Thousand Dollars ($50,000.00) granted to Xx. Xxx Xxxxx pursuant to a Secured
Promissory Note between Xx. Xxx Xxxxx and the Company dated May 31, 1997, a copy
of which is attached hereto as Exhibit A. Xx. Xxx Xxxxx agrees and acknowledges
that she shall be solely responsible for the income tax implications
attributable to her in connection with the forgiveness of this loan and shall
indemnify the Company to the fullest extent in connection with such tax
obligations.
7. Stock Options. In exchange for the promises and covenants set forth
herein, and in consideration thereof, the Company agrees that the term and
vesting of each outstanding stock option (the "Stock Options") held by Xx. Xxx
Xxxxx, as set forth on Exhibit B attached hereto, shall continue beyond the
Separation Date until March 30, 2000 (the "Vesting Period"). The Company
further agrees that Xx. Xxx Xxxxx shall have ninety (90) days after the
conclusion of the Vesting Period to exercise her vested stock options. Xx. Xxx
Xxxxx understands that her Stock Options shall terminate ninety (90) days after
the conclusion of the Vesting Period if not exercised. Xx. Xxx Xxxxx further
acknowledges that, by virtue of receiving an extension of the exercise period,
any of her Stock Options originally granted as incentive stock options will no
longer be treated as such, but will instead be treated for tax purposes as if
they are nonqualified stock options.
8. Health and Dental Insurance. To the extent provided by the federal
COBRA law or, if applicable, state insurance laws, and by the Company's current
group health and dental insurance policies, Xx. Xxx Xxxxx will be eligible to
continue her health and dental insurance benefits. Xx. Xxx Xxxxx will be
provided with a separate notice of her COBRA rights. In the event that Xx. Xxx
Xxxxx elects continued coverage under COBRA, the Company will pay her COBRA
health insurance premiums up until the earlier of (i) twelve (12) months from
the Separation Date, or (ii) the date in which Xx. Xxx Xxxxx begins employment
with another company or business entity. Thereafter, Xx. Xxx Xxxxx shall be
solely responsible for the payment of her COBRA benefits.
9. Life Insurance. The Company agrees that it will continue to provide
Xx. Xxx Xxxxx with life insurance up until the earlier of (i) twelve (12) months
from the Separation Date, or (ii) the date in which Xx. Xxx Xxxxx begins
employment with another company or business entity
10. Scope of Compensation and Benefits. Except as expressly provided
herein, Xx. Xxx Xxxxx acknowledges that she will not receive (nor is she
entitled to) any additional compensation, severance, stock options, stock,
relocation benefits or other benefits (including, but not limited to, disability
insurance) from the Company, notwithstanding any prior agreements to the
contrary.
11. Nonsolicitation. Xx. Xxx Xxxxx agrees that for one (1) year after the
Separation Date, she will not directly solicit any person (including any entity)
who is then an employee, consultant or independent contractor of the Company to
terminate his, her or its relationship with the Company in order to become an
employee, consultant or independent contractor to or for any other person or
entity.
12. Proprietary Information Obligations. Xx. Xxx Xxxxx hereby
acknowledges her continuing obligations under the Employee Invention and Non-
Disclosure
2.
Agreement not to use or disclose any confidential or proprietary information of
the Company, among other obligations described in the Employee Invention and
Non-Disclosure Agreement. A copy of Xx. Xxx Xxxxx'x Employee Invention and Non-
Disclosure Agreement is attached hereto as Exhibit C. Xx. Xxx Xxxxx acknowledges
that irreparable damage would result to the Company if she breached the
provisions of this paragraph 12, and the Company would not have an adequate
remedy at law for such a breach or threatened breach. In the event of such a
breach or threatened breach, Xx. Xxx Xxxxx agrees that the Company, may,
notwithstanding anything to the contrary herein contained, and in addition to
the other remedies which may be available to it, seek to enjoin her, together
with all those persons associated with her, from the breach or threatened breach
of such covenants.
13. Company Property. Xx. Xxx Xxxxx agrees to return to the Company,
within ten (10) days of the execution of the Agreement, all Company documents
(and all copies thereof) and other Company property in her possession, or her
control, including, but not limited to, Company files, notes, drawings, records,
business plans and forecasts, financial information, specifications, computer-
recorded information, tangible property, credit cards, entry cards,
identification badges and keys; and, any materials of any kind which contain or
embody any proprietary or confidential material of the Company (and all
reproductions thereof); provided, however, that if Xx. Xxx Xxxxx discovers any
such documents or property in her possession after the expiration of such ten
(10) day period, Xx. Xxx Xxxxx agrees to return such property to the Company as
soon as practicable following discovery.
14. Nondisparagement. Xx. Xxx Xxxxx agrees that she will not at any time
intentionally disparage the Company in any manner likely to be harmful to the
Company, its business reputation, or the personal or business reputation of its
directors, stockholders or employees, and the Company agrees that neither it nor
its executive officers and directors will at any time intentionally disparage
Xx. Xxx Xxxxx or her personal or business reputation, provided that each party
shall respond accurately and fully to any question, inquiry or request for
information when required by legal process. The Company and Xx. Xxx Xxxxx
acknowledge that irreparable damage would result if either party breaches the
provisions of this paragraph 14, and that such party would not have an adequate
remedy at law for such a breach or threatened breach. In the event of such a
breach or threatened breach, the parties agree that the affected party may,
notwithstanding anything to the contrary herein contained, and in addition to
the other remedies which may be available, seek to enjoin the other party, its
officers, directors, or agents from the breach or threatened breach of this
Section 14. The parties agree that a breach of this provision shall be deemed
to be a material breach of the Agreement.
15. Confidentiality and Publicity. The provisions of this Agreement shall
be held in strictest confidence by Xx. Xxx Xxxxx and the Company and shall not
be publicized or disclosed in any manner whatsoever other than as follows: (a)
the parties may disclose this Agreement in confidence to their respective
attorneys, accountants, auditors, tax preparers, and financial advisors (and, in
the case of Xx. Xxx Xxxxx, to members of her family); (b) the Company may
disclose this Agreement as necessary to fulfill standard or legally required
corporate reporting or disclosure requirements; and (c) the parties may disclose
this Agreement insofar as such disclosure may be necessary to enforce its terms
or as otherwise required by law. In particular (and without limitation), Xx.
Xxx Xxxxx agrees not to discuss the contents of this Agreement with present or
former Company employees or other personnel.
3.
16. Release of Claims by Xx. Xxx Xxxxx. Except as otherwise set forth in
this Agreement, Xx. Xxx Xxxxx hereby releases, acquits and forever discharges
the Company, its officers, directors, agents, attorneys, servants, employees,
shareholders, insurers, successors, assigns and affiliates, of and from any and
all claims, liabilities, demands, causes of action, costs, expenses, attorneys'
fees, damages and obligations of every kind and nature, in law, equity, or
otherwise, known and unknown, suspected and unsuspected, disclosed and
undisclosed, arising out of or in any way related to agreements, events, acts or
conduct at any time prior to and including the Effective Date hereof, including
but not limited to: any and all such claims and demands directly or indirectly
arising out of or in any way connected with Xx. Xxx Xxxxx'x employment with the
Company or the termination of that employment; claims or demands related to
salary, bonuses, commissions, stock, stock options, or any other ownership
interests in the Company, vacation pay, fringe benefits, expense reimbursements,
sabbatical benefits, severance benefits, or any other form of compensation;
claims pursuant to any federal, state or local law or cause of action including,
but not limited to, the federal Civil Rights Act of 1964, as amended; the
federal Age Discrimination in Employment Act of 1967, as amended (the "ADEA");
the federal Americans with Disabilities Act of 1990; the California Fair
Employment and Housing Act, as amended; tort law; contract law; wrongful
discharge; discrimination; fraud; defamation; emotional distress; and breach of
the implied covenant of good faith and fair dealing.
17. Section 1542 Waiver. Xx. Xxx Xxxxx acknowledges that she has read and
understands Section 1542 of the Civil Code of the State of California 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 materially affected his settlement with
the debtor.
Xx. Xxx Xxxxx hereby expressly waives and relinquishes all rights and benefits
under that section and any law or legal principle of similar effect in any
jurisdiction with respect to the release granted in this Agreement.
18. No Admissions. It is understood and agreed by Xx. Xxx Xxxxx and the
Company that this Agreement represents a compromise settlement of various
matters, and that the promises and payments in consideration of this Agreement
shall not be construed to be an admission of any liability or obligation by
either party to the other party or to any other person.
19. Notices. All notices, instructions and other communications given
hereunder or in connection herewith shall be in writing. Any such notice,
instruction or communication shall be sent either (a) by registered or certified
mail, return receipt requested, postage prepaid, or (b) via a reputable express
courier service, in each case to the address set forth below. Any such notice,
instruction or communication shall be deemed to have been delivered three (3)
business days after it is mailed, by certified mail, postage prepaid, return
receipt requested, or one (1) business day after it is sent via a reputable
nationwide overnight courier service.
4.
If to the Company: Diversa Corporation
00000 Xxxxxxxx Xxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Attn: Chief Executive Officer
If to Xx. Xxx Xxxxx: Xxxxxxxx X. Xxx Xxxxx
0000 Xxxxxxxx Xxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Any party may give any notice, instruction or communication in connection with
this Agreement using any other means (including personal delivery, telecopy or
ordinary mail), but no such notice, instruction or communication shall be deemed
to have been delivered unless and until it is actually received by the party to
whom it was sent. Any party may change the address to which notices,
instructions or communications are to be delivered by giving the other party to
this Agreement notice thereof in the manner set forth in this paragraph 18.
20. Entire Agreement. This Agreement, including the Exhibits hereto,
constitutes the complete, final and exclusive embodiment of the entire agreement
between Xx. Xxx Xxxxx and the Company with regard to the subject matter hereof,
and supercedes that certain employment offer letter dated December 11, 1996,
between Xx. Xxx Xxxxx and the Company. It is entered into without reliance on
any promise or representation, written or oral, other than those expressly
contained herein. It may not be modified except in writing and signed by Xx.
Xxx Xxxxx and a duly authorized officer of the Company. Each party has
carefully read this Agreement, has been afforded the opportunity to be advised
of its meaning and consequences by her or its respective attorneys, and signed
the same of her or its own free will.
21. Successors and Assigns. This Agreement shall bind the heirs, personal
representatives, successors, assigns, executors, and administrators of each
party, and inure to the benefit of each party, its heirs, successors and
assigns. However, because of the unique duties under this Agreement, Xx. Xxx
Xxxxx agrees not to delegate the performance of such duties under this
Agreement.
22. Applicable Law. 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.
23. Severability. If a court of competent jurisdiction determines that
any term or provision of this Agreement is invalid or unenforceable, in whole or
in part, then the remaining terms and provisions hereof shall be unimpaired.
Such court will have the authority to modify or replace the invalid or
unenforceable term or provision with a valid and enforceable term or provision
that most accurately represents the parties' intention with respect to the
invalid or unenforceable term or provision.
24. Attorneys' Fees. In any legal action or other proceeding brought to
enforce or remedy a breach of this Agreement, the prevailing party shall be
entitled to recover reasonable attorneys' fees and documented out-of-pocket
expenses.
5.
25. Section Headings. The section and paragraph headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
26. Counterparts. This Agreement may be executed in two counterparts,
each of which shall be deemed an original, all of which together shall
constitute one and the same instrument.
In Witness Whereof, the parties have duly authorized and caused this
Agreement to be executed as follows:
Xxxxxxxx X. Xxx Xxxxx,
an individual.
/s/ Xxxxxxxx X. Xxx Xxxxx
------------------------------
Xxxxxxxx X. Xxx Xxxxx
Dated: May 10, 1999
------------------------
Xxxxxx X. Xxxxxxx,
Chairman of the Human Resources
Committee of the Board of Directors
/s/ Xxxxxx X. Xxxxxxx
------------------------------
Xxxxxx X. Xxxxxxx
Dated: May 7, 1999
------------------------
6.
EXHIBIT A
SECURED PROMISSORY NOTE
SECURED PROMISSORY NOTE
$50,000 May 31, 0000
Xxx Xxxxx, Xxxxxxxxxx
For Value Received, Xxxxxxxx X. Xxx Xxxxx (the "Maker"), residing at 00000
Xxxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxxxx 00000, promises to pay to Recombinant
BioCatalysis, Inc., a Delaware corporation qualified to do business in
California ("Holder"), or order, the principal sum of Fifty Thousand Dollars
($50,000) together with interest on the outstanding principal balance from the
date hereof until maturity at the rate of six and sixty-four one-hundredths
percent (6.64%) per annum.
Principal shall be paid in four (4) equal annual installments commencing
March 30, 1998 and continuing on the thirtieth (30/th/) day of each March
thereafter until March 30, 2001, at which time the entire remaining balance of
principal and interest shall be due and payable. Interest earned through each
annual payment date shall be paid annually at the same time as each principal
payment. Each payment shall be credited first to interest then due computed on
the amount of principal then unpaid and the remainder to principal. Should
interest not be paid when due, it shall thereafter bear like interest as the
principal. Notwithstanding anything to the contrary set forth herein, all
principal and interest hereunder shall be due and payable immediately upon the
ninetieth (90/th/) day following the cessation of the employment relationship
between Maker and Recombinant BioCatalysis, Inc.
Maker shall have the right to prepay this Note at any time and without
notice.
Payments under this Note are payable when due without demand, notice, set
off or counterclaim in lawful money of the United States at:
Recombinant BioCatalysis, Inc.
00000 Xxxxxxxx Xxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
or wherever otherwise designated in writing from time to time by the Holder of
this Note.
Whenever any payment on this Note shall be stated to be due on a day which
is not a business day, such payment shall be made on the next succeeding
business day and such extension of time shall be computed in the computation of
the payment of interest on this Note.
This Note is secured by a pledge of stock pursuant to a Pledge Agreement by
and between Maker, as debtor, and Holder, as pledgee and secured party, of even
date herewith (the "Pledge Agreement").
The following shall constitute events of default hereunder and under the
Pledge Agreement:
(a) Maker shall fail or refuse to pay within 10 days of notice by the
holder of this Note that any payment of principal of or interest upon this Note
is due and payable;
(b) any assignment is made by Maker for the benefit of creditors;
(c) any warranty, representation or statement furnished to Holder by
or on behalf of Maker under this Note, the Pledge Agreement or any other
agreement entered into contemporaneously herewith is, or at the time made or
furnished was, false in any material respect;
(d) any of the following shall occur with respect to Maker or the
security for this Note, provided that proceedings initiated by third parties
under (i), (ii) and (iii) shall not constitute defaults unless Maker shall fail
to obtain dismissal of such proceeding within sixty (60) days of initiation of
such proceeding:
(i) the appointment of a receiver, liquidator, or trustee;
(ii) the adjudication as a bankrupt of insolvent;
(iii) the filing of any voluntary or involuntary petition for
bankruptcy or reorganization; or
(iv) Maker is unable, or admits in writing an inability, to pay
their debts when due; or
(e) Maker defaults in the performance of any other covenant or the
observance of any other condition contained herein, in the Pledge Agreement or
in any other agreement entered into contemporaneously herewith.
Upon the occurrence of any of the foregoing events of default, the holder
of this Note may, at its option, declare all principal and interest hereunder
immediately due and payable without notice or demand, and may exercise any of
its rights under this Note and/or the Pledge Agreement.
Maker agrees to pay attorneys' fees and costs incurred by the holder of
this Note in connection with any actions to collect payments due hereunder, and
in the event suit or action is instituted to enforce or interpret this Note
(including without limitation efforts to modify or vacate any automatic stay or
injunction), the prevailing party shall be entitled to recover all expenses
reasonably incurred at, before or after trial and on appeal, whether or not
taxable as costs, or in any bankruptcy proceeding, or in connection with post-
judgment collection efforts, including, without limitation, attorneys' fees,
witness fees (expert and otherwise) deposition costs, copying charges and other
expenses.
Maker and any surety, guarantor, or endorser who may become liable for all
or any part of the obligations evidenced by this Note, jointly or severally,
hereby waive presentment, protest, and notice of protest, notice of intention to
accelerate, demand, notice of dishonor and notice of non-payment of and
formalities of any kind relative to this Note, and expressly consents to any
extension of the time of payment hereof or of any installments hereof and to the
release of any party liable for this obligation, and any such extension or
release may be made without notice to any of said parties and without in any way
affecting or discharging this liability. The right to
plead any and all statutes of limitations as a defense to this Note is hereby
waived to the fullest extent by law.
All agreements in this Note or the Pledge Agreement are expressly limited
so that in no contingency or event whatsoever, whether by reason of advancement
or acceleration of maturity of the indebtedness, or otherwise, shall the amount
paid or agreed to be paid hereunder for the use, forbearance or detention of
money exceed the highest lawful rate permitted under applicable usury laws, if
any. If, from any circumstance whatsoever, fulfillment of any provision of this
Note or the Pledge Agreement, at the time performance of such provision shall be
due, shall be prohibited by law, the obligation to be fulfilled shall be reduced
to the maximum not so prohibited and if, from any circumstance whatsoever, the
holder of this Note shall ever receive as interest under this Note or the Pledge
Agreement, an amount which would exceed the highest lawful rate, the receipt of
such excess shall be deemed a mistake and shall be credited against the
principal amount of the indebtedness to which the same may lawfully be credited,
and any portion of such excess not capable of being so credited shall be rebated
to Maker.
This Note shall be governed and construed in accordance with the laws of
the State of California.
Maker hereby irrevocably submits to the jurisdiction of any applicable
state or federal court sitting in California in any action or proceeding brought
to enforce or otherwise arising out of or relating to this Note, and hereby
waives any objection to venue in any such court and any claim that such forum is
an inconvenient forum.
TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, BOTH
HOLDER AND MAKER IRREVOCABLY WAIVE AND COVENANT THAT THEY WILL NOT ASSERT
(WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY
FORUM IN RESPECT OF ANY ISSUE, CLAIM, DEMAND, ACTION OR CAUSE OF ACTION OR
ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHT, POWER OR REMEDY UNDER, IN
CONNECTION WITH, ARISING OUT OF OR BASED UPON THIS NOTE OR THE SUBJECT MATTER
HEREOF, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING OR WHETHER IN
CONTRACT OR TORT OR OTHERWISE, HOLDER AND MAKER ACKNOWLEDGE THAT THE PROVISION
OF THIS PARAGRAPH CONSTITUTE A MATERIAL INDUCEMENT UPON WHICH EACH HAS RELIED,
IS RELYING AND WILL RELY IN ENTERING INTO THIS TRANSACTION AND RELATED
TRANSACTIONS. HOLDER OR MAKER MAY FILE AN ORIGINAL, COUNTERPART OR COPY OF THIS
PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE OTHER'S CONSENT TO THE
WAIVER OF THEIR RIGHTS TO TRIAL BY JURY.
MAKER:
/s/ Xxxxxxxx X. Xxx Xxxxx
---------------------------------
XXXXXXXX X. XXX XXXXX
EXHIBIT B
STOCK OPTIONS SCHEDULE
----------------------------------------------------------------------------------
Vesting
Date of Commencement Shares Subject to Vested as of Vested as of
Grant Date the Option 3-15-99 3-30-00
----------------------------------------------------------------------------------
12-16-97 12-30-96 350,000 175,000 284,375
----------------------------------------------------------------------------------
08-28-97 06-26-97 30,000 11,250 20,625
----------------------------------------------------------------------------------
08-28-97 12-16-97 120,000 30,000 67,500
----------------------------------------------------------------------------------
01-07-99 01-07-99 100,000 0 25,000
----------------------------------------------------------------------------------
Total: 216,250 397,500
------------------------------------
EXHIBIT C
EMPLOYEE INVENTION AND NON-DISCLOSURE AGREEMENT
DIVERSA CORPORATION
EMPLOYEE INVENTION AND NON-DISCLOSURE AGREEMENT
This Employee Invention and Non-Disclosure Agreement is made this _____ day
of __________________, 199____ ("Effective Date") by and between DIVERSA
Corporation, a Delaware corporation with a principal place of business at 00000
Xxxxxxxx Xxxxxx Xxxx, Xxx Xxxxx, XX 00000 ("Diversa"), and _________________,
an individual having an address at
_________________________
_________________________ ("Employee")
In consideration of the mutual promises and other good and valuable
consideration, and as part of the terms of employment of Employee by Diversa,
the parties agree as follows:
INVENTIONS
1. Employee agrees to disclose to Diversa promptly in writing any and all
inventions, developments, discoveries, improvements and ideas, whether
patentable or not; (a) which are made, discovered, and/or conceived by Employee
alone or with others in the course of his or her employment or provision of
services to Diversa; (b) which are based on or utilize Diversa Proprietary
Information (as defined in Paragraph 6); or (c) which result or arise from or
relate to the use of Diversa's facilities, equipment, materials, funds, or
actual or demonstrably anticipated research or development. [(As used in this
Paragraph 1, the term "invention" shall have the same meanings as "Invention" as
defined in California Labor Code (S) 2870 (see Appendix "A")]. All such
improvements, inventions, developments, discoveries, ideas, and intellectual
property rights, shall be referred to individually and collectively as
"Developed Technology." Diversa shall receive such disclosures in confidence.
Pursuant to California Labor Code (S) 2870 et seq Diversa shall also maintain a
review process for employees to determine ownership of such Developed
Technology. To the extent required by contracts between Diversa and the United
States or any of its agencies, full title to certain patents and inventions
shall be in the United States.
2. Employee agrees that all Developed Technology made, discovered or
conceived by Employee, either solely or in collaboration with any other person,
during the term of Employee's employment with Diversa, whether or not patented
or copyrighted, is and shall remain the sole and exclusive property of Diversa,
its successors and assigns. Employee irrevocably agrees to assign and does
assign to Diversa or its nominees, successors or assigns, all right, title and
interest in and to Developed Technology. Employee agrees to execute any and all
papers and perform any and all acts as may be necessary to perfect such
assignment. However, the terms of this Paragraph 2 shall not apply to any
inventions which are expressly excluded from coverage pursuant to California
Labor Code (S) 2870 (see Appendix "A").
3. With regard to the copyright laws of the United States, Diversa notes
that U.S. Copyright Act (S) 101 defines the term "work made for hire," in
pertinent part, as a "work prepared by an employee within the scope of his or
her employment." U.S. Copyright Act (S) 201(b) provides that "[i]n the case of
a work made for hire, the employer or other person for
whom the work was prepared is considered the author for purposes of this title
and, unless the parties have expressly agreed otherwise in a written instrument
signed by them, owns all of the rights comprised in the copyright." Diversa
further notes that the judicial decisions under the U.S. Copyright Act broadly
interpret the phrase "within the scope of his or her employment." This phrase
has been applied to cover, among other things, some works created by an employee
at home on his own time and for no additional pay, without any request by the
employer. Diversa intends to assert its ownership and other rights in the "work
made for hire" are to the fullest legally permissible extent.
4. In the event that Diversa makes or proposes to make any United States
or foreign patent application relating to Developed Technology owned by Diversa
pursuant to this Agreement, Employee shall cooperate fully with Diversa and its
patent counsel in preparing and prosecuting any such application. Employee
agrees to execute, acknowledge and deliver all such papers, including, but not
limited to, applications for patents, applications for copyright registration
and applications for trademark registration as may be necessary or appropriate
to enable Diversa to publish or protect Developed Technology owned by Diversa by
patents, copyrights or otherwise in the name of Diversa or its nominees,
successors or assigns. Employee further agrees to render all such assistance as
Diversa may require in any patent office, proceeding, litigation or other
administrative, judicial or related proceeding in the United States or foreign
country, involving Developed Technology owned by Diversa.
5. In the event Diversa is unable, after reasonable effort to secure
Employee's signature on any of the documents referenced in Paragraphs 2 and 4
whether because of Employee's physical or mental incapacity or for any other
reason whatsoever, Employee irrevocably designates and appoints Diversa and its
duly authorized officers and agents as Employee's agent and attorney-in-fact,
for purposes of effecting any or all prosecutions and/or issuances of any such
copyright, patent or trademark protection or other analogous protection.
CONFIDENTIAL INFORMATION
6. For purposes of this Agreement, the phrase "Diversa Proprietary
Information" includes without limitation the following:
(a) technical information, including patent strategy, information
encompassed by Developed Technology or trade secrets, locations and sources of
bio-material, methods of harvesting bio-material, experiment and research
design, results, techniques and processes; biological materials, including but
not limited to enzymes and clones; work in progress; manufacturing and process
know-how; laboratory notebooks, research journals, idea notebooks, notes and
letters; concepts; ideas; apparatus and equipment design; and computer software;
(b) technical management information, including technical manuals,
product proposals, status reports, performance objectives and criteria and
analyses of areas for business development; and
(c) business information, including cost, pricing, project,
financial, accounting and personnel information, notes, letters, business
strategies, plans, proposals, projections and
forecasts, customer lists, customer information and sales and marketing plans,
proposals, projections, efforts, information and data.
"Diversa Proprietary Information" shall also include any and all
information and materials received by Diversa or Employee from a third party
subject to an obligation of confidentiality and/or non-disclosure.
7. Developed Technology owned by Diversa and Diversa Proprietary
Information shall be considered confidential and trade secret and shall not be
disclosed to any person or entity or used by Employee for any purpose at any
time during or following the termination or cessation of Employee's employment
with Diversa, except as required in Employee's performance of job duties for
Diversa. Nothing in this Agreement shall restrict Employee's ability to make
such disclosures during the course of his or her employment as may be necessary
or appropriate to the effective and efficient discharge of the duties and
responsibilities of Employee or as such disclosures may be required by law.
Failure by Diversa to xxxx any of Diversa Proprietary Information as
"confidential" or "proprietary" shall not affect its status as Diversa
Proprietary Information under the terms of this Agreement.
COMPETITIVE ACTIVITIES
8. During the term of Employee's employment with Diversa, Employee shall
not, without the prior written approval of Diversa, alone or as a partner,
officer, director, consultant, employee, stockholder, agent, contractor or
otherwise, engage in any employment, consulting, business or other activity or
occupation competitive with Diversa.
9. During the term of Employee's Employment with Diversa, and for a
period of two (2) years after the termination or cessation of Employee's
employment with Diversa, Employee shall not directly or indirectly disrupt,
damage, impair or interfere with Diversa, whether by way of interfering with,
raiding, hiring, soliciting its employees, disrupting its relationships with
customers, agents, representatives or vendors, or otherwise or by attempting to
do any of the foregoing.
10. Employee acknowledges that the identifies of Diversa's customers, of
customer leads, contracts with customers and other related customer information
gained during Employee's employment with Diversa about those customers is secret
and confidential and constitutes a trade secret and Employee agrees that during
the term of Employee's employment with Diversa, and for a period of two (2)
years after termination or cessation of Employee's employment with Diversa,
Employee shall not use, rely on or exploit, directly or indirectly, such
information to solicit business from any such customers.
11. Employee acknowledges that Employee has carefully read and construed
the provision of the preceding paragraphs and believes that Employee has
received and will receive sufficient consideration and other benefits in
connection with Employee's employment relationship with Diversa to justify such
restrictions.
DIVERSA PROPERTY
12. At the request of Diversa, and in any event at the time of leaving
Diversa's employment, Employee shall return to Diversa any and all materials and
documents, and copies thereof, in the possession of or under the control of
Employee, whether prepared by Diversa. Employee or anyone else, when such
materials or documents are, include, incorporate or refer to Diversa Proprietary
Information or Developed Technology. The term document is used in its broadest
sense, and includes, without limitation, drawings, blueprints, laboratory
notebooks, binders, research journals, idea notebooks, memoranda,
specifications, formulas, devices, documents, list and files (including those
pertaining to employees, customers and suppliers), equipment, apparatus,
correspondence, computer hardware, systems, programs, software, storage media
(whether on or in the form of computer discs, tapes, hard drives, or other
method whether now known or devised in the future), manuals, printouts,
routines, sub-routines, price lists, pricing information, devices, and writings
of any and every kind or nature.
13. During the term of Employee's employment with Diversa, Employee shall
not remove from Diversa's offices or premises any documents, records, files,
correspondence, reports, memoranda or similar materials of or containing Diversa
Proprietary Information, or other materials or property of any kind belonging to
Diversa, unless necessary or appropriate in accordance with the duties and
responsibilities of Employee. In the event that such materials or property are
removed, all of the above-referenced documents and materials shall be returned
to their proper files or places of safekeeping as promptly as possible after the
removal shall service its specific purpose. Notwithstanding the foregoing,
laboratory notebooks shall not be removed from Diversa's offices or premises at
anytime for any reason, other than for off site storage of the notebooks.
14. During the term of Employee's employment with Diversa, Employee shall
not make, retain, remove and/or distribute any copies of any of the above-
referenced documents and materials for any reason whatsoever, except as may be
necessary in the discharge of his or her assigned duties. Employee shall not
divulge to any third person the nature of an/or contents of any of the above-
referenced documents and materials, or of any other oral or written information
to which he or she may have access or with which for any reason he or she may
become familiar, except as disclosure shall be necessary in the performance of
the duties and responsibilities of Employee.
GENERAL PROVISIONS
15. Employee represents and warrants to Diversa that there are no
restrictions, agreements or understandings whatsoever to which Employee is a
party which would prevent or make unlawful Employee's execution of this
Agreement or Employee's employment. Employee further represents and warrants
that there are no restrictions, agreements or understandings whatsoever to which
Employee is a party, which are, or would be inconsistent or in conflict with,
this Agreement or Employee's employment or would prevent, limit or impair in any
way the performance by Employee of the obligations set forth in this Agreement.
16. No rights or licenses, expressed or implied, in or to any Diversa
Proprietary information or Developed Technology are granted to Employee under
this Agreement.
17. This Agreement constitutes the entire and exclusive Agreement between
Employee and Diversa with respect to the subject matter and supersedes and
mergers any and all prior or contemporaneous discussions, agreements,
representations and understandings of the parties with respect to the employment
of Employee with Diversa. No supplement, modification or amendment of this
Agreement shall be binding upon Diversa or Employee unless set forth in a
written agreement executed by Diversa and Employee, which agreement specifically
references this Agreement.
18. No provision of this Agreement may be waived orally. Waivers of any
terms of this Agreement shall be in writing and shall be signed by the party
sought to be bound by such waiver.
19. Neither this Agreement, nor any benefits of this Agreement, are
assignable by employee, however, Diversa may assign this Agreement to, and this
Agreement's terms and provisions shall insure to the benefit of, any parent,
subsidiary, affiliate, successor or other assignee of Diversa.
20. The waiver of the breach of any term or provision of this Agreement
shall not operate as or be construed to be a waiver of any other or subsequent
breach of this Agreement.
21. Employee acknowledges that it is impossible to measure fully in money
the injury that will be caused to Diversa in the event of a breach or threatened
breach of any of the provisions of this Agreement, and therefore agrees and
acknowledges that Diversa has no adequate remedy at law. Accordingly, Employee
shall not, in any action or proceeding to enforce any of the provisions of this
Agreement, assert the claim or defense that such an adequate remedy at law
exists. Diversa shall be entitled to injunctive relief to enforce the
provisions of this Agreement, without prejudice to any other remedy Diversa may
have at law or in equity.
22. The periods of time set forth in Paragraphs 8, 9 and 10 of this
Agreement shall not include, and shall be deemed extended by, any time required
for litigation to enforce the relevant covenant periods, provided that Diversa
is successful on the merits in any such litigation. The "time required for
litigation" is defined to mean the period of time from service of process upon
Employee through the expiration of all appeals related to such litigation.
23. If an action at law or in equity is brought to enforce or interpret
the terms of this Agreement, the prevailing party shall be entitled to recover,
in addition to any other relief, reasonable attorney's fees, costs and
disbursements.
24. The language of this Agreement shall be construed as a whole according
to its fair meaning and not strictly for or against any of the parties hereto.
25. If any provision of this Agreement is adjusted to be void or otherwise
unenforceable, in whole or in part, such adjudication shall not affect the
validity of the remainder of the Agreement.
26. This agreement shall be interpreted and governed by the laws of the
State of California without reference to its choice of law principles.
27. Any notice by either party shall be given by personal delivery or by
sending such notice by certified mail, return-receipt requested, or telecopied,
addressed or telecopied as the case may be, to the other party at its address
set forth below or at such other address designated by notice in the manner
provided in this Paragraph 27. Such notice shall be deemed to have been
received upon the date of actual delivery or personally delivered or, in the
case of mailing, two (2) days after deposit with the U.S. mail, or, in the case
of facsimile transmission, when confirmed by the facsimile machine report.
If to Diversa, to: If to Employee, to:
Diversa Corporation ___________________________
00000 Xxxxxxxx Xxxxxx Xxxxx ___________________________
Xxx Xxxxx, XX 00000 ___________________________
Telecopier: (000) 000-0000 Telecopier_________________
In Witness Whereof, the parties have executed this Agreement effective as
of the date referenced above.
Diversa Corporation Employee
By: /s/ Xxx X. Xxxxx By: /s/ Xxxxx Xxx Xxxxx
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Title: Human Resources Manager Title: CFO
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Attachments: Appendix "A": California Labor Code (S) 2870
