Severance Agreement - Large Scale Biology Corp. and N. Leigh Anderson
LARGE SCALE BIOLOGY CORPORATION
3333 Vaca Valley Parkway, Suite 1000
Vacaville, California 95688
June 4, 2002
N. Leigh Anderson, Ph.D.
1759 Willard Street, N.W.
Washington, D.C. 20009
Dear Dr. Anderson:
Large Scale Biology Corporation ("LSBC") and you have agreed that
you will resign as the Chief Scientific Officer of LSBC upon the following
terms and conditions:
1. Effective June 4, 2002 (the "Termination Date"), you hereby
resign from all positions you then occupy as an employee or officer of, and you
hereby terminate your employment with, LSBC and any subsidiary or affiliate of
LSBC. As used in this Agreement, "subsidiary" and "affiliate" mean, with respect
to LSBC, any company controlled by, controlling or under common control with
LSBC.
2. Subject to the terms of this Agreement, LSBC will pay you an
amount representing your salary, at your current salary rate of $240,000.00 per
year, for the 10-month period commencing June 4, 2002, and ending April 3, 2003
(together with the Accrued Obligations (as defined below), the "Severance
Payment"). LSBC shall pay you, in a lump sum on the eighth day after you have
signed this Agreement and returned it to LSBC, the Severance Payment without any
set-off or reduction of any kind, except as provided in Section 4 hereof. The
Severance Payment shall be in lieu of any payment to which you may have been
entitled under the Employment Agreement dated January 25, 1999 (the "Employment
Agreement"), among you and LSBC (formerly known as Biosource Technologies, Inc.,
successor by merger to Large Scale Biology Corporation). We will set forth in a
separate letter your rights under COBRA to continue your medical benefits under
LSBC's group health benefit plan after the Termination Date (which will be at
the expense of LSBC until the earlier of (x) April 3, 2003 and (y) the date you
become eligible under a health benefit plan offered by a third party, and
thereafter will be at your own expense). In addition, we will, if so permitted
under the terms of the LSBC long-term disability plan, continue your coverage
under such plan for the period after the Termination Date until the earlier of
(x) April 3, 2003 and (y) the date you become eligible under a long term
disability plan offered by a third party (the "Extended Disability Coverage
Period") In the event that we are unable to continue your long-term disability
coverage under the terms of the LSBC group plan as aforesaid, we will pay to you
during the Extended Disability Coverage Period the monthly cost to LSBC that
would have been incurred in the event that we had been able to arrange for such
continued coverage under the terms of such long-term disability plan. As used in
this Agreement, "Accrued Obligations" shall mean a payment at your
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salary rate then in effect in lieu of any accrued but unused vacation through
the Termination Date, in accordance with the applicable plans, policies,
programs and practices of LSBC, which has not previously been paid.
3. The provisions of this Agreement are not intended to, nor
shall they be construed to, require that you mitigate the amount of any payment
by LSBC to you provided for in this Agreement by seeking, accepting or
performing other employment, nor shall the amount of any payment by LSBC to you
provided for in this Agreement be reduced by any compensation earned by you as a
result of your employment by another employer or otherwise, including without
limitation pursuant to the Consultancy Agreement dated the date hereof (the
"Consultancy Agreement"), between you and LSBC; provided that, if you engage or
have engaged in any activity that would be prohibited by the confidentiality and
non-solicitation provisions contained in Section 5 hereof, or engaged prior to
the Termination Date in any activity that was prohibited by the non-competition
provisions of Section 6 or Section 7 of the Employment Agreement, in addition to
any other remedies that LSBC may have in law or equity, you shall return to LSBC
the Severance Payment.
4. LSBC shall have the right to deduct from all payments under
this Agreement, whether in cash, stock or other property, amounts required to be
withheld by LSBC under applicable tax, social security or other laws requiring
such withholding.
5. (a) You acknowledge and recognize your possession of secret,
confidential or proprietary information pertaining to the business of LSBC, its
affiliates or subsidiaries (including without limitation, trade secrets,
technology, know how, designs, specifications, software, source code, protocols,
algorithms, business strategies or plans, or other intellectual property) and
acknowledge the highly competitive nature of the business of LSBC and its
affiliates and subsidiaries and accordingly agree that, for and in consideration
of the payments and promises made by LSBC herein and other good and valuable
consideration, including the Severance Payment and the termination of your
obligations under the Employment Agreement, you will not, during the ten-month
period commencing on the Termination Date:
(i) either individually or as an officer, director, stockholder,
member, partner, agent, employee, co-venturer consultant or principal of
another business firm, directly or indirectly solicit (A) any current
customer or strategic partner of LSBC or any of its affiliates or
subsidiaries (other than any government agency or instrumentality thereof,
except as provided in clause (ii) below) for any purpose directly or
indirectly competitive with any aspect of the business of LSBC or any of
its affiliates or subsidiaries or (B) any employee, consultant or other
representative or agent of LSBC or any of its affiliates or subsidiaries to
leave the employment of, or otherwise cease to provide services to or on
behalf of LSBC or any of its affiliates or subsidiaries and you hereby
represent that up to and including the Termination Date, you have not
violated Section 6 or Section 7 of the Employment Agreement; or
(ii) whether directly or indirectly and whether independently or
in support of an application submitted by any entity other than LSBC, apply
for or accept funds from any grant, award, or other form of support from
any government agency or instrumentality thereof in connection with the
research, development, commercialization
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or other support for any program or technology aimed at fast response to
biological terrorism, specifically including, but without limitation, any
such grants, awards or other support issued pursuant to Section 319F(h) of
the Public Health Service Act, as amended by H.R. 3448 [PL Cite to follow
on signature by President Bush], in respect of the development of "priority
countermeasures" as defined therein, except in accordance with the
following procedure:
(A) you will submit to LSBC in writing any application or
other proposed submission seeking such funding for
LSBC's review prior to submitting any such proposal to
a prospective funding entity or agency, and
(B) if LSBC so elects within thirty days following receipt
of your written proposal, you will permit LSBC to
register on such application or other proposed
submission as a co-applicant and co-developer with you
for such funding and any services or products developed
therefrom, and in such case each of you (collectively
with any other co-applicant) and LSBC (individually)
will (unless you and LSBC may otherwise agree on
alternative ownership and development partnering
arrangements in respect of such application) share
equally (x) the research and development
responsibilities under the proposed project and (y) the
rights of ownership in respect of any intellectual
property and other results of any such research or
development project funded thereby; and
(C) if LSBC declines the opportunity to be registered as a
co-applicant and co-developer on (or fails to so notify
you within thirty days after LSBC's receipt of) your
proposed application or submission, you will be free to
submit such application or other submission and receive
any funding awarded in connection therewith without
regard to this Section 5(a)(ii) (but without prejudice
to any of your other obligations hereunder or in any
other agreement with LSBC).
For the avoidance of doubt, nothing in this Section 5(a)(ii) shall
constitute a license or other grant to you of rights to exploit or
otherwise make use of any LSBC intellectual property or other proprietary
information in connection with any such application or submission, except
on such terms as LSBC may otherwise expressly agree with you in its sole
discretion (whether in connection with a joint application described in
clause (B) above or otherwise), or otherwise require LSBC to offer to
include you, any strategic partner of yours, or any other individual or
entity with whom you are affiliated whether individually or as an officer,
director, stockholder, member, partner, agent, employee, co-venturer,
consultant or principal, in an application or other submission proposed to
be submitted by LSBC or its affiliates or other strategic partners.
(b) You further covenant and agree that you will not divulge (except
as may be permitted pursuant to the Consultancy Agreement) any secret,
confidential or proprietary information pertaining to the business of LSBC or
any of its affiliates or subsidiaries (including
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without limitation, trade secrets, technology, know how, designs,
specifications, software, source code, protocols, algorithms, business
strategies or plans, or other intellectual property), unless first approved in
writing by LSBC. For purposes of this Agreement, the term secret, proprietary or
confidential information does not include any information that is or becomes
generally available to and known by the public (other than as a result of an
unpermitted disclosure directly or indirectly by you or any third party).
(c) You recognize that LSBC, and its affiliates and subsidiaries,
have received from third parties confidential or proprietary information of such
third parties subject to a duty on the part of LSBC and its affiliates and
subsidiaries to maintain the confidentiality of such information and to use it
only for certain limited purposes. You agree that, insofar as you are aware of
the confidential status of such information, you owe LSBC and such affiliates
and subsidiaries an ongoing duty to hold all such confidential or proprietary
information in confidence and not to disclose it to any person, firm or
corporation or to use it except as necessary in connection with the Consultancy
Agreement or as required by law.
6. You hereby confirm that you are and shall remain bound by the
terms and provisions of the Proprietary Information and Inventions Agreement,
dated February 10, 1999 (the "Inventions Agreement"), between you and LSBC
(formerly known as Biosource Technologies, Inc.), a copy of which is attached as
Exhibit A hereto, and you further acknowledge and agree that the Inventions
Agreement shall be deemed an essential element of this Agreement and shall
remain in full force and effect, to the extent necessary to maintain and
preserve the effect of such Inventions Agreement in respect of matters arising
prior to the Termination Date (and, with respect to matters arising after the
Termination Date, solely as provided therein) following the execution hereof.
You represent and warrant that you have not violated any of the terms of the
Inventions Agreement.
7. You further agree and covenant that:
(a) unless required by law, and until such time (if ever) as this
Agreement is filed by LSBC with the United States Securities and Exchange
Commission, you shall not disclose the terms and conditions of this Agreement to
anyone other than your immediate family, tax advisor, lender or legal counsel
(each a "permitted person"), or a governmental taxing authority or auditor;
provided that if you are asked about the terms of your separation from LSBC you
may say that you and LSBC have agreed to a fair severance arrangement in
connection with a restructuring of the proteomics division of LSBC;
(b) upon making any such permitted disclosure, you shall
immediately instruct your immediate family, tax advisor, lender and legal
counsel not to disclose the terms and conditions of this Agreement to anyone
other than LSBC or a government taxing authority or auditor;
(c) on or promptly after the Termination Date, you will provide
to LSBC a reasonably detailed inventory of all records, files, notes, memoranda,
reports, work product and similar items, and any manuals, drawings, sketches,
plans, tape recordings, computer programs, disks, cassettes and other physical
representations of any information, relating to LSBC or any of its affiliates or
subsidiaries, or to the business of LSBC or any of its affiliates or
subsidiaries,
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whether or not constituting confidential information (the "Data Inventory"). You
hereby represent and warrant that the Data Inventory shall upon delivery
represent a complete and accurate inventory of the aforesaid materials in your
possession. Within five business days following your receipt from the Chairman
of LSBC of a return copy of such Data Inventory specifying those elements that
are to be returned to LSBC, you shall return to LSBC all of the items so marked
for return on such Data Inventory, together with any other property then in your
possession belonging to LSBC or any of its affiliates or subsidiaries, except as
LSBC may otherwise expressly agree be retained for your temporary use in
connection with the performance of the Consultancy Agreement; and
(d) you shall not make any untruthful, defamatory or disparaging
statements about LSBC or any of its affiliates or subsidiaries, or their
respective management teams, employees, intellectual property, business methods,
strategies, plans or prospects to any clients, competitors, suppliers, employees
or former employees of LSBC or any of its affiliates or subsidiaries or to any
other persons (including but not limited to government agencies, health-related
professionals, researchers or other members of the academic or scientific
communities, the press or other media).
(e) LSBC shall not make any untruthful, defamatory or disparaging
statements about you to any of your clients, competitors, suppliers, employers
or prospective employers or other persons (including but not limited to the
press or other media); it being understood that LSBC shall have the right to
issue press releases in connection with this Agreement and the Consulting
Agreement; provided that LSBC shall use its reasonable efforts to provide you
with advance drafts of any such press releases for your reasonable review and
comment prior to their release.
8. From and after the date of this Agreement until the close of the
next annual meeting of the stockholders of LSBC, including all adjournments
thereof, you agree that:
(a) in exercising the voting rights with respect to any securities of
LSBC (whether common stock, preferred stock or other equity securities of LSBC
or securities, rights, options or warrants convertible into or exchangeable or
exercisable therefor now outstanding or outstanding at any time after the date
of this Agreement, including without limitation upon the conversion, exercise or
exchange of such securities or options or warrants or preemptive rights to
acquire the same) owned by you or in respect of which you have the power to
direct the voting, on the election of directors, whether at an annual or special
meeting of the Company, whether by written consent, proxy or otherwise, and
whether or not at an adjourned meeting, you shall not vote such securities, or
cause such securities to be voted, in opposition to the election of any director
endorsed by the board of directors of LSBC; and
(b) you will not, either individually or together with any other
"person" (as such term is used in Section 13(d) of the Securities Exchange Act
of 1934, as amended) (i) acquire or seek to acquire, directly or indirectly,
beneficial ownership (as defined in Rule 13d-3 under the Securities Exchange Act
of 1934, as amended, except that for purposes of this Section 8(b) such person
shall be deemed to have "beneficial ownership" of all shares that any such
person has the right to acquire, whether such right is exercisable immediately
or only after the passage of time), directly or indirectly, of more than 50% of
the total voting power of the voting
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securities of LSBC or (ii) tender any LSBC securities owned by you in connection
with any transaction not endorsed by the board of directors of LSBC; it being
understood that you are not otherwise prohibited from selling LSBC securities in
the open market in accordance with law, other than in any transaction or series
of transactions not endorsed by the board of directors of LSBC by which any
individual or group acquires or seeks to acquire control of LSBC or its
management, board of directors or policies.
9. (a) (i) For and in consideration of the payments and promises
made by LSBC herein and other good and valuable consideration, you hereby
waive, release and forever discharge LSBC and its affiliates and
subsidiaries, and LSBC's and its affiliates' and subsidiaries' divisions,
branches, predecessors, successors, assigns, directors, officers,
employees, agents, partners, members, controlling stockholders,
representatives and attorneys, in their individual and representative
capacities (collectively, the "LSBC Releasees") of and from any and all
actions, causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, extents,
executions, claims and demands whatsoever, in law, admiralty or equity,
whether known or unknown, suspected or unsuspected, of every kind and
nature whatsoever, which may now exist or which may later arise, including
without limitation under Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C.ss.2000 et seq.; the Fair Labor Standards Act, as
amended, 29 U.S.C.ss.201 et seq.; the Age Discrimination in Employment Act,
29 U.S.C. ss.621 et seq.; the Americans With Disabilities Act, 42
U.S.C.ss.1001 et seq. andss.12,112 et seq.; the Employee Retirement Income
Security Act of 1974, as amended, 29 U.S.C.ss.1001 et seq.; the
Reconstruction Era Civil Rights Act, as amended, 42 U.S.C.ss.1981 et seq.;
the Maryland Fair Employment Practices Act, and all other federal, state,
county and local laws, statutes, rules or regulations of any type or
description, including contract law, tort law, employment discrimination
law, civil rights laws, express or implied covenants of good faith or fair
dealing, and otherwise, regarding employment discrimination or the
employment of labor, or otherwise, which you or your heirs, executors,
administrators, successors and assigns ever had, now have or hereafter can,
shall or may have against the LSBC Releasees or any of them for, upon or by
reason of any matter, cause or thing whatsoever, from the beginning of the
world to the day of the date of this Agreement, including, without
limitation, anything arising from or related to your employment
relationship with LSBC or any of its affiliates or subsidiaries, or the
termination thereof, except as otherwise provided in this Agreement.
Without limiting the generality of the foregoing, except as expressly set
forth in this Agreement, you expressly waive any claim under the Employment
Agreement, or for reinstatement of employment, backpay, interest, bonuses,
damages, accrued vacation, accrued sick leave, medical, dental, optical or
hospitalization benefits, accidental death and dismemberment coverage, long
term disability coverage, stock, options or other interests in LSBC or any
affiliate or subsidiary, life insurance benefits, overtime, severance pay
and/or attorneys' fees or costs with respect to or derivative of such
employment with LSBC or its affiliates or subsidiaries, or the termination
thereof.
(ii) For and in consideration of the payments and promises made by you
herein and other good and valuable consideration, LSBC hereby waives,
releases and
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forever discharges you, your heirs, legatees, executors, administrators and
legal representatives (collectively, the "Employee Releasees") of and from
any and all actions, causes of action, suits, debts, dues, sums of money,
accounts, reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses, damages,
judgments, extents, executions, claims and demands in law, admiralty or
equity, whether known or unknown, suspected or unsuspected, of every kind
and nature whatsoever, from the beginning of the world to the day of the
date of this Agreement, but specifically excluding from the scope of such
waiver, release and discharge any matter sounding in fraud or
misappropriation or arising out of your criminal conduct or your other
knowing and intentional infliction of material harm to LSBC or its
business.
(b) Notwithstanding anything to the contrary set forth in this
Section 9, (i) you do not release, waive or discharge the LSBC Releasees from
(x) any claims to enforce this Agreement or the Consultancy Agreement or (y) any
claims for indemnification (including, without limitation, reasonable attorneys'
fees and expenses) or contribution with respect to any liability or expense
incurred by you as a director, officer or employee of LSBC in accordance with
the terms of any indemnity provided to you during your service in such positions
as in effect on the Termination Date; and (ii) LSBC does not release, waive or
discharge any Employee Releasee from (x) any claims to enforce this Agreement,
the Consultancy Agreement or the Inventions Agreement or (y) any claims for
indemnification (including, without limitation, reasonable attorney's fees and
expenses) or contribution with respect to your service as a director, officer or
employee of LSBC in accordance with the terms of LSBC's policies as in effect on
the Termination Date.
(c) For the purpose of implementing a full and complete release and
discharge of the LSBC Releasees, you expressly acknowledge that this Agreement
is intended to include in its effect, without limitation, all claims or other
matters described in this Section 9 that you do not know or suspect to exist in
your favor at the time of execution hereof, and that this Agreement contemplates
the extinguishment of any and all such claims or other such matters.
10. (a) You hereby represent that you have not filed or commenced any
proceeding against any of the LSBC Releasees, and except as provided in Section
9(b), hereby covenant and agree not to file or commence any proceeding against
LSBC or any other LSBC Releasee with respect to your employment with LSBC or any
affiliate or subsidiary of LSBC, or the termination thereof, or otherwise,
arising on or prior to the date of execution of this Agreement. You also agree
that if you breach these representations or covenants, then you authorize each
LSBC Releasee, and each LSBC Releasee shall have the right, to cause any such
proceeding to be dismissed on the grounds that you have completely released and
waived such proceeding.
(b) LSBC hereby represents that it has not filed or commenced any
proceeding against any of the Employee Releasees, and except as provided in
Section 9(b), hereby covenants and agrees not to file or commence any proceeding
against you or any other Employee Releasee with respect to any claim released
pursuant to Section 9(a)(ii), arising on or prior to the date of execution of
this Agreement. LSBC also agrees that if it breaches these representations or
covenants, then it authorizes each Employee Releasee, and each Employee
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Releasee shall have the right, to cause any such proceeding to be dismissed on
the grounds that LSBC has completely released and waived such proceeding.
11. This Agreement and all matters or issues related hereto shall be
governed by the laws of the State of Maryland applicable to contracts entered
into and performed therein (except that the Consultancy Agreement and the
Inventions Agreement shall each respectively be governed by the laws of the
jurisdictions set forth in such Agreements as provided therein). Whenever
possible, each provision of this Agreement shall be interpreted in such a manner
as to be effective and valid under applicable law, but if any provision of this
Agreement shall be prohibited by or invalid under such law, such provision shall
be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement. LSBC hereby consents to, and you hereby submit your person to, the
jurisdiction of the state courts of the State of Maryland sitting in Montgomery
County, and the United States District Court for the District of Maryland, for
the purposes of the enforcement of this Agreement. All disputes under this
Agreement will be determined in the Federal or State courts within the state of
Maryland sitting in or with jurisdiction over matters arising in or relating to
Montgomery County.
12. (a) This Agreement is personal in its nature and the parties
shall not, without the prior written consent of the other, assign or transfer
this Agreement or any rights or obligations hereunder; provided, however, the
provisions hereof shall inure to the benefit of, and be binding upon, (i) each
successor of LSBC or any of its affiliates or subsidiaries, whether by merger,
consolidation or transfer of all or substantially all of its assets and (ii)
your heirs, legatees, executors, administrators and legal representatives.
(b) It is the desire and intent of the parties hereto that the
provisions of this Agreement shall be enforced to the fullest extent permissible
under the laws and public policies applied in each jurisdiction in which
enforcement is sought. Accordingly, although you and LSBC consider the
restrictions contained in this Agreement to be reasonable for the purpose of
preserving LSBC's goodwill and proprietary rights, if any particular provision
of this Agreement shall be adjudicated to be invalid or unenforceable, such
provision shall be deemed amended to delete therefrom the portion thus
adjudicated to be invalid or unenforceable, such deletion to apply only with
respect to the operation of such provision in the particular jurisdiction in
which such adjudication is made. It is expressly understood and agreed that
although you and LSBC consider the restrictions contained in Section 5 to be
reasonable, if a final determination is made by a court of competent
jurisdiction that the time or territory or any other restriction contained in
this Agreement is unenforceable against you, the provisions of this Agreement
shall be deemed amended to apply as to such maximum time and territory and to
such maximum extent as such court may judicially determine or indicate to be
enforceable.
(c) Each party (the "breaching party") acknowledges that the other
party's damages at law would be an inadequate remedy for the breach by the
breaching party of its obligations under Section 5, 6, 7 or 8, and agree in the
event of such breach that the other party, without posting any bond, shall be
entitled to obtain temporary and permanent injunctive relief restraining the
breaching party from such breach and, to the extent permissible under the
applicable statutes and rules of procedure, a temporary injunction may be
granted immediately upon the commencement of any such suit. Nothing contained
herein shall be construed as
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prohibiting the other party from pursuing any other remedies available at law or
in equity for such breach of Section 5, 6, 7 or 8, or for any breach of any
other provision of this Agreement. The obligations contained in Sections 5(b),
5(c), 6, 7 and 8 shall survive the termination or expiration of this Agreement
and, as applicable, shall be fully enforceable thereafter in accordance with the
terms of this Agreement.
(d) This Agreement contains the entire understanding of the parties
hereto relating to the subject matter herein contained and supersede all prior
agreements or understandings between the parties hereto with respect thereto,
including, without limitation, the Employment Agreement (it being understood
that the Inventions Agreement (as provided in Section 6) and the Consultancy
Agreement shall continue in full force and effect and are not affected hereby),
and can be changed only by a writing signed by both parties hereto. No waiver
shall be effective against either party unless in writing and signed by the
party against whom such waiver shall be enforced.
13. All notices and other communications hereunder shall be deemed to
be sufficient if in writing and delivered in person or by a nationally
recognized courier service or duly sent by facsimile, addressed, if to you, to
the address set forth above, Facsimile No.: (202) 234-9175; and if to LSBC, to
Large Scale Biology Corporation, 3333 Vaca Valley Parkway, Suite 1000,
Vacaville, California 95688, Attention: President, Facsimile No.: (707)
446-3917, or such other address as you or LSBC may have last furnished to the
other by notice in writing. Each notice delivered in person or by overnight
courier shall be deemed given when delivered or when delivery is attempted and
refused. Each notice delivered by facsimile transmission shall be deemed
delivered on the date on which the sender receives confirmation that such was
received by the addressee if during local business hours or on the next business
day if not.
14. This Agreement may be executed in two or more counterparts, all of
which shall be considered one and the same agreement.
15. You acknowledge and agree that, in deciding to execute this
Agreement, you have relied entirely upon your own judgment, that you have read
this Agreement and have had adequate time to consider its terms and effects and
to ask any questions that you may have of anyone, including legal counsel of
your own choosing, and that you have executed this Agreement voluntarily and
with full understanding of its terms and its effects on you, and that no fact,
evidence, event or transaction currently unknown to you but which may later
become known to you will affect in any way or manner the final and unconditional
nature of this Agreement. You further acknowledge that (i) you were advised to
consult with an attorney before you executed this Agreement; (ii) you were
afforded sufficient opportunity to and did consult with an attorney; (iii) you
had an opportunity to consider this Agreement for 21 days before executing and
delivering it; and (iv) you may revoke this Agreement by delivering written
notice to LSBC within a period of seven days following the day on which you
execute this Agreement (the "Revocation Period"), and this Agreement shall not
become effective or enforceable until after the Revocation Period has expired.
For this revocation to be effective, written notice from you must be received by
LSBC at the address set forth and as provided in Section 13 no later than the
close of business on the seventh day after you sign this Agreement.
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If you revoke this Agreement, you will not receive any of the payments or
benefits described in this Agreement.
BY SIGNING THIS AGREEMENT, YOU STATE THAT:
YOU HAVE READ THIS AGREEMENT AND HAVE HAD SUFFICIENT TIME TO CONSIDER ITS
TERMS;
YOU UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND KNOW
THAT YOU ARE GIVING UP IMPORTANT RIGHTS;
YOU AGREE WITH EVERYTHING IN THIS AGREEMENT;
YOU ARE AWARE OF your RIGHT TO CONSULT WITH AN ATTORNEY BEFORE SIGNING THIS
AGREEMENT AND HAVE BEEN ADVISED TO CONSULT WITH AN ATTORNEY;
YOU HAVE SIGNED THIS AGREEMENT KNOWINGLY AND VOLUNTARILY; AND
THIS AGREEMENT INCLUDES A RELEASE BY YOU OF ALL KNOWN AND UNKNOWN CLAIMS.
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If the foregoing correctly sets forth our understanding, please sign one
copy of this Agreement and return it to the undersigned, whereupon this letter
shall constitute a binding agreement between us.
Sincerely,
LARGE SCALE BIOLOGY CORPORATION
/s/ John D. Fowler, Jr.
By: -------------------------
John D. Fowler, Jr.
President
ACCEPTED AND AGREED:
/s/ N. Leigh Anderson, Ph.D.
-----------------------------
N. Leigh Anderson, Ph.D.
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STATE OF NEW YORK )
) ss:
COUNTY OF KINGS )
On June 11, 2002, before me personally came John D. Fowler, Jr. to me
known, who, being by me duly sworn, did depose and say that he is the President
of Large Scale Biology Corporation, located at 3333 Vaca Valley Parkway, Suite
1000, Vacaville, California 95688, the corporation described in and which
executed the foregoing instrument; and that he signed his name thereto under
authority granted by the directors of said corporation.
/s/ Marcus Montrose
________________________
Notary Public
[SEAL]
MARCUS MONTROSE
Notary Public, State of New York
No. 01MO6072691
Qualified in Queens County
Commission Expires April 8, 2006
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DISTRICT OF COLUMBIA ) ss:
On June 11th, 2002, before me personally came N. Leigh Anderson, Ph.D., to
me known, who, being by me duly sworn, did depose and say that he resides at
1759 Willard Street, N.W., Washington, District of Columbia 20009, and that he
is the individual described in, and who executed, the foregoing instrument.
/s/ Brenda K. Kefauver
__________________________
Notary Public
BRENDA K. KEFAUVER
District of Columbia
My Commission Expires
September 14, 2002
[SEAL]
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EXHIBIT A
BIOSOURCE TECHNOLOGIES, INC.
PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
In consideration and as a condition of my employment or continued
employment by Biosource Technologies, Inc., and/or by companies which it owns,
controls, or is affiliated with, or their successors in business including but
not limited to Large Scale Biology Corporation (collectively, the "Company") and
in further consideration of the receipt of a stock option from the Company, I, N
Leigh Anderson, hereby make this agreement with the Company (the "Agreement");
provided, however, that where the terms of this Agreement conflict with the
terms of the Employment Agreement dated January 25, 1999 by and among Large
Scale Biology Corporation, Biosource Technologies, Inc. and myself (the
"Employment Agreement"), the terms of the Employment Agreement shall prevail.
This Agreement also records the understanding reached between Large Scale
Biology Corporation ("LSB") and me on my first day of employment with LSB
requiring that I assign to LSB Proprietary Information hereinafter defined in
Article I and all inventions hereinafter defined in Article II that I may make,
conceive or reduce to practice during my employment with LSB. This Agreement,
therefore, is retroactive to my first day of employment with LSB with respect to
such assignments and is a material part of the consideration for my employment
by the Company and a condition of my employment and continued employment by the
Company.
I. Proprietary Information
I understand that during my employment I may produce, obtain, make known or
learn about certain information which has commercial value in the business in
which the Company is engaged and which is treated by the Company as
confidential. This information may have been created, discovered or developed by
the Company or otherwise received by the Company from third parties subject to a
duty to maintain the confidentiality of such information. All such information
is hereinafter called "Proprietary Information."
a. Proprietary Information Defined
By way of illustration, but not limitation, Proprietary Information
includes trade secrets, ideas, processes, formulas, source codes, data,
programs, other original works of authorship, know-how, improvements,
discoveries, developments, designs, inventions, techniques, marketing plans,
strategies, forecasts, new products, unpublished financial statements, budgets,
projections, licenses, prices, costs, and customer and supplier lists.
b. Assignment and Protection of Proprietary Information
I understand that all Proprietary Information shall be the sole property of
the Company and its assigns (or, in some cases, its clients, suppliers, or
customers), and the Company and its assigns (or, in some cases, its clients,
suppliers or customers) shall be the sole owner of all
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patents, copyrights, and other rights in connection therewith. I hereby assign
to the Company any rights I may have or acquire during my employment by the
Company in such Proprietary Information. At all times, both during my employment
by the Company and, except as otherwise provided in the terms of the Employment
Agreement, after its termination I will keep in strictest confidence and trust
all Proprietary Information, and I will not use, reproduce or disclose any
Proprietary Information without the written consent of the Company, except as
may be necessary in the ordinary course of performing my duties as an employee
of the Company or to the extent any Proprietary Information:
(1) is, at the time of disclosure, in the public domain;
(2) becomes part of the public domain, by publication or otherwise,
after disclosure by the Company except by my breach of this
Agreement;
(3) was already known to me at the time of disclosure by the Company
and which was not acquired, directly or indirectly, from the
Company; or
(4) is received by me after disclosure by the Company from an
independent source lawfully entitled to make such disclosure and
provided such Proprietary Information was not acquired directly
from the Company.
c. Maintenance of Records
I agree to keep and maintain adequate and current records of all
Proprietary Information developed by me (in the form of notes, sketches,
drawings and as may be specified by the Company), which records shall be
available to and remain the sole property of the Company at all times.
II. Inventions During and Immediately After My Term of Employment
I understand that during my employment or following my employment, I may
make, conceive of or reduce to practice various discoveries, developments,
designs, improvements, inventions, formulas, processes, techniques, programs,
other works of authorship, know-how and data (all of which shall be referred to
as "inventions" throughout this Agreement, whether or not patentable or
registrable under copyright, mask work or similar statutes).
a. Assignment of Inventions
I hereby assign and transfer to the Company my entire right, title and
interest in and to all inventions made or conceived or reduced to practice by me
either alone or jointly with others during the period of my employment with the
Company. I will, at the Company's request, promptly execute a written assignment
of title to the Company for any such invention and I will preserve any such
invention as confidential information of the Company. Notwithstanding the above,
this Agreement does not require assignment of an invention which qualifies fully
under Section 2870 of the California Labor Code, which provides as follows as of
January 1, 1987:
"(a) Any provision in an employment agreement which provides that an
employee shall assign, or offer to assign, any of his or her
rights in an
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invention to his or her employer shall not apply to an invention
that the employee developed entirely on his or her own time without
using the employer'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 employer's business, or actual or
demonstrably anticipated research or development of the
employer.
(2) Result from any work performed by the employee for the
employer.
(b) To the extent a provision in an employment agreement purports to
require an employee to assign an invention otherwise excluded from
being required to be assigned under subdivision (a), the provision
is against the public policy of this state and is unenforceable."
Notwithstanding the foregoing, I also hereby assign and transfer to, or as
directed by, the Company all my right, title and interest in and to any and all
inventions, full title to which is required to be in the United States by a
contract between the Company and the United States or any of its agencies.
b. Maintenance of Records
I agree to keep and maintain adequate and current records of all inventions
made by me (in the form of notes, sketches, drawings and as may be specified by
the Company) and subject to assignment to the COmpany pursuant to subsection
II.a. hereof, which records shall be available to and remain the sole property
of the Company at all times.
c. Disclosure of Inventions
I will promptly disclose in writing to the Company all inventions made or
conceived or reduced to practice by me, either alone or jointly with others,
during the period of my employment, and for six months after termination of my
employment with the Company, whether or not I believe the inventions qualify
fully under Section 2870 of the California Labor Code. Such disclosure shall be
received in confidence by the Company.
d. Execution of Documents
I further agree, as to all inventions subject to assignment to the Company
under subsection II.a. hereof, to assist the Company in every proper way (but at
the Company's expense) to obtain and from time to time enforce patents,
copyrights, mask works, and other rights and protections relating to inventions
in any and all countries, and to that end I will execute all documents for use
in applying for and obtaining such patents, copyrights, mask works, and other
rights and protections on and enforcing inventions as the Company may desire,
together with any assignments thereof to the Company or persons designated by
it. My obligation to assist the Company in obtaining and enforcing patents,
copyrights, mask works, and other rights and protections relating to inventions
in any and all countries shall continue beyond
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the termination of my employment, but the Company shall compensate me at a
reasonable rate after such termination for time actually spent by me at the
Company's request on such assistance. In the event the Company is unable, after
reasonable effort, to secure my signature on any document or documents needed to
obtain or enforce any patent, copyright, mask work, or other right or protection
relating to an invention, whether because of my physical or mental incapacity or
for any other reason whatsoever, I hereby irrevocably designate and appoint the
Company and its duly authorized officers and agents as my agent and
attorney-in-fact, to act for and in my behalf and stead to execute and file any
application or assignment and to do all other lawfully permitted acts to further
the prosecution and issuance to the Company of patents, copyrights, mask works,
or similar protections thereon with the same legal force and effect as if
executed by me.
III. Prior Inventions
I understand that all inventions, if any, patented or unpatented, which I
made prior to my employment by the Company, are excluded from the scope of this
Agreement. To preclude any possible uncertainty, I have set forth on item 1 of
Exhibit A attached hereto a complete list of all of my prior inventions,
including numbers of all patents and patent applications, and a brief
description of all unpatented inventions which are not the property of a
previous employer. I represent and covenant that the list is complete and that,
if no items are on the list, I have no such prior inventions. I agree to notify
the Company in writing before I make any disclosure or perform any work on
behalf of the Company which appears to threaten or conflict with proprietary
rights I claim in any invention or idea. In the event of my failure to give such
notice, I agree that I will make no claim against the Company with respect to
any such inventions or ideas.
IV. Conflicting Employment Obligations
a. Trade Secrets of Others
I represent that I have not brought and will not bring with me to the
Company or use in performance of my responsibilities at the Company any devices,
materials or documents of a former employer that are not generally available to
the public, unless I have obtained express written authorization from the former
employer for their possession and use. The only devices, materials or documents
of a former employer that are not generally available to the public that I will
bring to the Company or use in my employment are identified on item 2 of Exhibit
A attached hereto, and as to each such item, I represent that I have obtained
express written authorization for their possession and use in my employment with
the Company and have delivered a copy of such written authorization to the
Company.
b. Conflicting Confidentiality Agreements
I agree that during my employment with the Company, I will not breach any
obligation of confidentiality that I have to former employers. I represent that
my performance under the terms of this Agreement and as an employee of the
Company does not and will not breach any agreement to keep in confidence
proprietary 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.
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V. Government Contracts
I acknowledge that the Company from time to time may be involved in
government projects of a highly-classified nature. I further acknowledge that
the Company from time to time may have agreements with other persons or
governmental agencies which impose obligations or restrictions on the Company
regarding inventions made during the course of work thereunder or regarding the
confidential nature of such work or information disclosed in connection
therewith. I agree to be bound by all such obligations and restrictions and to
take all action necessary to discharge the obligations of the Company
thereunder.
VI. Termination of Employment
Except as otherwise provided in the terms of the Employment Agreement, in
the event of the termination of my employment by me or by the Company for any
reason, I will deliver to the Company all documents, notes, drawings,
specifications, programs, data, devices and other materials of any nature
pertaining to my work with the Company and I will neither take with me nor
recreate any of the foregoing, any reproduction of any of the foregoing, or any
Proprietary Information that is embodied in a tangible medium of expression.
VII. Modification
This Agreement may not be changed, modified, released, discharged,
abandoned or otherwise amended, in whole or in part, except by an instrument in
writing, signed by the Company and signed by me. I agree that any subsequent
change or changes in my duties, salary or compensation shall not affect the
validity or scope of this Agreement.
VIII. Entire Agreement
It is acknowledged and agreed by myself and the Company as evidenced by
the signature hereto of its authorized representative that with respect to the
subject matter hereof this Agreement is subordinate in all of its terms to the
Employment Agreement, except with respect to the term of this Agreement, to the
extent there is a conflict between such documents.
IX Severability
In the event that any paragraph or provision of this Agreement shall be
held to be illegal or unenforceable, such paragraph or provision shall be
severed from this Agreement and the entire Agreement shall not fail on account
thereof, but shall otherwise remain in full force and effect.
X. Successors and Assigns
This Agreement shall be binding upon my heirs, executors, administrators
or other legal representatives and is for the benefit of the Company, its
successors and assigns.
XI. Governing Law
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This Agreement shall be governed by the laws of the State of California.
XII. Counterparts.
This Agreement may be signed in two counterparts, each of which shall be
deemed an original and both of which shall together constitute one Agreement.
This Agreement shall be effective as of the first day of my employment by
the Company, namely:
Dated: Feb 10, 1999 By: /s/ N. LEIGH ANDERSON
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Accepted and Agreed to:
BIOSOURCE TECHNOLOGIES, INC.
By: /s/ ROBERT L. ERWIN
----------------------------
Dated: Feb 10, 1999
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EXHIBIT A
TO
PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
Gentlemen:
1. The following is a complete list of all inventions or improvements
relevant to the subject matter of my employment by Biosource Technologies, Inc.
(the "Company") that have been made or conceived or first reduced to practice by
me or jointly with others prior to my engagement by the Company:
[X] No inventions or improvements
[_] See below:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
[_] Additional sheets attached
2. I propose to bring to my employment the following devices, materials
and documents of a former employer that are not generally available to the
public, which materials and documents may be used in my employment pursuant to
the express written authorization of my former employer (a copy of which is
attached hereto):
[X] No materials.
[_] See below:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
[_] Additional sheets attached
Very truly yours,
/s/ N. Leigh Anderson
----------------------------
N. LEIGH ANDERSON
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