Employment Agreement - Ciphergen Biosystems Inc. and William E. Rich
CIPHERGEN BIOSYSTEMS, INC.
WILLIAM E. RICH EMPLOYMENT AGREEMENT
This Agreement is entered into as of August 24, 2000, (the
"Effective Date") by and between CIPHERGEN BIOSYSTEMS, INC. (the "Company"),
and WILLIAM E. RICH ("Executive").
1. DUTIES AND SCOPE OF EMPLOYMENT.
(a) POSITIONS AND DUTIES. As of the Effective Date,
Executive will serve as President and Chief Executive Officer of the Company.
Executive will render such business and professional services in the
performance of his duties, consistent with Executive's position within the
Company, as shall reasonably be assigned to him by the Company's Board of
Directors (the "Board"). The period of Executive's employment under this
Agreement is referred to herein as the "Employment Term."
(b) BOARD MEMBERSHIP. During the Employment Term,
Executive will serve as a member of the Board, subject to any required Board
and/or stockholder approval.
(c) OBLIGATIONS. During the Employment Term, Executive
will perform his duties faithfully and to the best of his ability and will
devote his full business efforts and time to the Company. For the duration of
the Employment Term, Executive agrees not to actively engage in any other
employment, occupation or consulting activity for any direct or indirect
remuneration without the prior approval of the Board.
2. AT-WILL EMPLOYMENT. The parties agree that Executive's
employment with the Company will be "at-will" employment and may be
terminated at any time with or without cause or notice. Executive understands
and agrees that neither his job performance nor promotions, commendations,
bonuses or the like from the Company give rise to or in any way serve as the
basis for modification, amendment, or extension, by implication or otherwise,
of his employment with the Company.
3. COMPENSATION.
(a) BASE SALARY. During the Employment Term, the Company
will initially pay Executive as compensation for his services a base salary
at the annualized rate of $225,000.00 (the "Base Salary"), plus an annual car
allowance in the amount of $10,530.60. The Base Salary will be paid
periodically in accordance with the Company's normal payroll practices and be
subject to the usual, required withholding.
(b) BONUS. Subject to the attainment of objectives as
determined by the Company's Board of Directors on a yearly basis, Executive
shall initially receive a cash bonus in the amount of 50% of the Base Salary,
or in the event that there is an initial public offering of the Company's
Common Stock during calendar year 2000, 100% of the Base Salary.
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(c) ADJUSTMENTS. The initial Base Salary, bonus and other
compensation levels shall be subject to adjustment from time to time by the
Company's Compensation Committee.
4. EMPLOYEE BENEFITS. During the Employment Term, Executive
will be entitled to participate in the employee benefit plans currently and
hereafter maintained by the Company of general applicability to other senior
executives of the Company, including, without limitation, the Company's group
medical, dental, vision, disability, life insurance, and flexible-spending
account plans. The Company reserves the right to cancel or change the benefit
plans and programs it offers to its employees at any time.
5. VACATION. Executive will be entitled to paid vacation of
four weeks per year in accordance with the Company's vacation policy, with
the timing and duration of specific vacations mutually and reasonably agreed
to by the parties hereto.
6. EXPENSES. The Company will reimburse Executive for
reasonable travel, entertainment or other expenses incurred by Executive in
the furtherance of or in connection with the performance of Executive's
duties hereunder, in accordance with the Company's expense reimbursement
policy as in effect from time to time.
7. SEVERANCE.
(a) INVOLUNTARY TERMINATION. If Executive's employment
with the Company terminates other than voluntarily or for "Cause" (as defined
herein), or if there is a "Constructive Termination" (as defined herein) of
Executive's employment, and Executive signs and does not revoke a standard
release of claims with the Company, then, subject to Section 11, Executive
shall be entitled to receive continuing payments of severance pay (less
applicable withholding taxes) at a rate equal to his Base Salary rate as then
in effect, and continued participation in the Company's employee benefit
plans, for a period of 12 months from the date of such termination, to be
paid periodically in accordance with the Company's normal payroll policies;
and (ii) any options granted by the Company to Executive shall continue to
vest in accordance with its terms during the 24-month period after the date
of such termination.
(b) VOLUNTARY TERMINATION; TERMINATION FOR CAUSE. If
Executive's employment with the Company terminates voluntarily by Executive
or for Cause by the Company, then all vesting of options granted by the
Company to Executive will terminate immediately and the Executive shall be
entitled to any accrued salary and bonus payments to the date of such
termination. Notwithstanding anything to the contrary in this Agreement, a
refusal by Executive to relocate to a work location outside of the Bay Area
shall not constitute a voluntary termination or termination for Cause.
8. CHANGE OF CONTROL BENEFITS.
(a) In the event of a "Change of Control" (as defined
below) that occurs prior to the Executive's termination of employment, any
options granted by the Company to Executive with greater than 12 months of
vesting then remaining will be accelerated immediately prior to such Change
of Control as to all shares which would otherwise vest on the date which is
one (1) year from the expiration of the vesting schedule for each option
vested. Thereafter, such options will continue to be subject to the terms,
definitions and provisions of the Company's Stock Plan (the
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"Option Plan") and the stock option agreement by and between Executive and
the Company (the "Option Plan"), both of which documents are incorporated
herein by reference.
(b) If, within 12 months after the Change of Control,
Executive's employment is terminated involuntarily pursuant to Section 7(a)
of this Agreement, any unvested options granted by the Company to Executive
will have their vesting accelerated so as to become 100% vested.
9. DEFINITIONS.
(a) CAUSE. For purposes of this Agreement, "Cause" is
defined as (i) an act of dishonesty made by Executive in connection with
Executive's responsibilities as an employee, (ii) Executive's conviction of,
or plea of NOLO CONTENDERE to, a felony, (iii) Executive's gross misconduct,
or (iv) Executive's continued substantial violations of his employment duties
after Executive has received a written demand for performance from the
Company which specifically sets forth the factual basis for the Company's
belief that Executive has not substantially performed his duties.
(b) CHANGE OF CONTROL. For purposes of this Agreement,
"Change of Control" of the Company is defined as: (i) any "person" (as such
term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of
1934, as amended) is or becomes the "beneficial owner" (as defined in Rule
13d-3 under said Act), directly or indirectly, of securities of the Company
representing 50% or more of the total voting power represented by the
Company's then outstanding voting securities; or (ii) a change in the
composition of the Board occurring within a two-year period, as a result of
which fewer than a majority of the directors are Incumbent Directors.
"Incumbent Directors" will mean directors who either (A) are directors of the
Company as of the date hereof, or (B) are elected, or nominated for election,
to the Board with the affirmative votes of at least a majority of the
Incumbent Directors at the time of such election or nomination (but will not
include an individual whose election or nomination is in connection with an
actual or threatened proxy contest relating to the election of directors to
the Company); or (iii) the date of the consummation of a merger or
consolidation of the Company with any other corporation that has been
approved by the stockholders of the Company, other than a merger or
consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) more than fifty percent (50%) of the total voting power
represented by the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation, or the
stockholders of the Company approve a plan of complete liquidation of the
Company; or (iv) the date of the consummation of the sale or disposition by
the Company of all or substantially all the Company's assets.
(c) CONSTRUCTIVE TERMINATION. For purposes of this
Agreement, a "Constructive Termination" is defined as: a significant
diminution of Executive's responsibilities without Executive's consent.
10. CONFIDENTIAL INFORMATION. Executive agrees to enter into
the Company's standard Confidential Information and Invention Assignment
Agreement (the "Confidential Information Agreement") upon commencing
employment hereunder.
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11. CONDITIONAL NATURE OF SEVERANCE PAYMENTS.
(a) NONCOMPETE. Executive acknowledges that the nature of
the Company's business is such that if Executive were to become employed by,
or substantially involved in, the business of a competitor of the Company
during the 12 months following the termination of Executive's employment with
the Company, it would be very difficult for the Executive not to rely on or
use the Company's trade secrets and confidential information. Thus, to avoid
the inevitable disclosure of the Company's trade secrets and confidential
information, Executive agrees and acknowledges that Executive's right to
receive the severance payments set forth in Section 7 (to the extent
Executive is otherwise entitled to such payments) shall be conditioned upon
the Executive not directly or indirectly engaging in (whether as an employee,
consultant, agent, proprietor, principal, partner, stockholder, corporate
officer, director or otherwise), nor having any ownership interested in or
participating in the financing, operation, management or control of, any
person, firm, corporation or business that competes with Company or is a
customer of the Company. Upon any breach of this section, all severance
payments pursuant to this Agreement shall immediately cease.
(b) NON-SOLICITATION. Until the date one year after the
termination of Executive's employment with the Company for any reason,
Executive agrees and acknowledges that Executive's right to receive the
severance payments set forth in Section 7 (to the extent Executive is
otherwise entitled to such payments) shall be conditioned upon Executive not
either directly or indirectly soliciting, inducing, attempting to hire,
recruiting, encouraging, taking away, hiring any employee of the Company or
causing an employee to leave his or her employment either for Executive or
for any other entity or person.
(c) UNDERSTANDING OF COVENANTS. The Executive represents
that he (i) is familiar with the foregoing covenants not to compete and not
to solicit, and (ii) is fully aware of his obligations hereunder, including,
without limitation, the reasonableness of the length of time, scope and
geographic coverage of these covenants.
12. ASSIGNMENT. This Agreement will be binding upon and inure
to the benefit of (a) the heirs, executors and legal representatives of
Executive upon Executive's death and (b) any successor of the Company. Any
such successor of the Company will be deemed substituted for the Company
under the terms of this Agreement for all purposes. For this purpose,
"successor" means any person, firm, corporation or other business entity
which at any time, whether by purchase, merger or otherwise, directly or
indirectly acquires all or substantially all of the assets or business of the
Company. None of the rights of Executive to receive any form of compensation
payable pursuant to this Agreement may be assigned or transferred except by
will or the laws of descent and distribution. Any other attempted assignment,
transfer, conveyance or other disposition of Executive's right to
compensation or other benefits will be null and void.
13. NOTICES. All notices, requests, demands and other
communications called for hereunder shall be in writing and shall be deemed
given (i) on the date of delivery if delivered personally, (ii) one (1) day
after being sent by a well established commercial overnight service, or (iii)
four (4) days after being mailed by registered or certified mail, return
receipt requested, prepaid and addressed to the parties or their successors
at the following addresses, or at such other addresses as the parties may
later designate in writing:
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If to the Company:
Ciphergen Biosystems, Inc.
490 San Antonio Road
Palo Alto, CA 94306
ATTN: President
If to Executive:
at the last residential address known by the Company.
14. SEVERABILITY. In the event that any provision hereof
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement will continue in full force and effect
without said provision.
15. ARBITRATION.
(a) Executive agrees that any dispute or controversy
arising out of, relating to, or in connection with this Agreement, or the
interpretation, validity, construction, performance, breach, or termination
thereof, shall be settled by binding arbitration to be held in Santa Clara
County, California accordance with the National Rules for the Resolution of
Employment Disputes then in effect of the American Arbitration Association
(the "Rules"). The arbitrator may grant injunctions or other relief in such
dispute or controversy. The decision of the arbitrator will be final,
conclusive and binding on the parties to the arbitration. Judgment may be
entered on the arbitrator's decision in any court having jurisdiction.
(b) The arbitrator(s) will apply California law to the
merits of any dispute or claim, without reference to rules of conflicts of
law. The arbitration proceedings will be governed by federal arbitration law
and by the Rules, without reference to state arbitration law. The Executive
hereby consents to the personal jurisdiction of the state and federal courts
located in California for any action or proceeding arising from or relating
to this Agreement or relating to any arbitration in which the parties are
participants.
(c) EXECUTIVE HAS READ AND UNDERSTANDS THIS SECTION,
WHICH DISCUSSES ARBITRATION. EXECUTIVE UNDERSTANDS THAT BY SIGNING THIS
AGREEMENT, EXECUTIVE AGREES TO SUBMIT ANY CLAIMS ARISING OUT OF, RELATING TO,
OR IN CONNECTION WITH THIS AGREEMENT, OR THE INTERPRETATION, VALIDITY,
CONSTRUCTION, PERFORMANCE, BREACH OR TERMINATION THEREOF TO BINDING
ARBITRATION, AND THAT THIS ARBITRATION CLAUSE CONSTITUTES A WAIVER OF
EXECUTIVE'S RIGHT TO A JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL
DISPUTES RELATING TO ALL ASPECTS OF THE EMPLOYER/EMPLOYEE RELATIONSHIP,
INCLUDING BUT NOT LIMITED TO, DISCRIMINATION CLAIMS.
16. INTEGRATION. This Agreement, together with the Option
Plan, Option Agreement and the Confidential Information Agreement represents
the entire agreement and understanding between the parties as to the subject
matter herein and supersedes all prior or contemporaneous agreements whether
written or oral. No waiver, alteration, or modification of any of the
provisions of this
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Agreement will be binding unless in writing and signed by duly authorized
representatives of the parties hereto.
17. TAX WITHHOLDING. All payments made pursuant to this
Agreement will be subject to withholding of applicable taxes.
18. GOVERNING LAW. This Agreement will be governed by the laws
of the State of California (with the exception of its conflict of laws
provisions).
19. ACKNOWLEDGMENT. Executive acknowledges that he has had the
opportunity to discuss this matter with and obtain advice from his private
attorney, has had sufficient time to, and has carefully read and fully
understands all the provisions of this Agreement, and is knowingly and
voluntarily entering into this Agreement.
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IN WITNESS WHEREOF, each of the parties has executed this Agreement,
in the case of the Company by their duly authorized officers, as of the day
and year first above written.
CIPHERGEN BIOSYSTEMS, INC.
By: /s/ Daniel M. Caserza Date: August 24, 2000
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Title: CORPORATE CONTROLLER AND
INTERIM CHIEF FINANCIAL OFFICER
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EXECUTIVE
/s/ William E. Rich Date: August 24, 2000
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WILLIAM E. RICH