EXHIBIT 10.64
CALIPER LIFE SCIENCES, INC.
CONSULTING AGREEMENT
THIS AGREEMENT is made and entered into as of the 1st day of January,
2004 (the "Effective Date") by and between CALIPER LIFE SCIENCES, INC., a
Delaware corporation (the "Company"), and DR. DAVID MILLIGAN ("Contractor").
RECITALS
WHEREAS, the Company and Contractor previously entered into that
certain Consulting Agreement dated April 30, 1997, as amended (the "Prior
Agreement") to set forth the terms and conditions pursuant to which Contractor
would provide services to the Company in exchange for certain compensation; and
WHEREAS, the Company and Contractor wish to terminate the Prior
Agreement and enter into this Agreement in order to provide for certain changes
in Contractor's compensation by the Company.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants contained in this Amendment, the parties agree as follows:
AGREEMENT
In consideration of the mutual covenants set forth below, the parties
hereby agree as follows:
1. ENGAGEMENT OF SERVICES.
Contractor, pursuant to the provisions of this Agreement, is hereby
engaged by the Company to provide services to the Company as described on
Exhibit A attached hereto (the "Services"). The Services will be provided
relating to the field described in Exhibit B hereto (the "Field"). Contractor
shall perform Services as requested by the Company from time to time to the best
of his ability, such Services to be performed at such place or places and at
such times as mutually agreed upon by the Company and Contractor. Contractor
shall provide up to four (4) days per month in person or by telephone. The
Company recognizes that Contractor may be unavailable to perform Services for
certain limited amounts of time due to other commitments. Contractor shall
notify the Company in advance of any such expected periods of unavailability in
person or by telephone, which shall not be considered a breach of this Agreement
unless the duration of any such period of unavailability extends for more than
thirty (30) consecutive days.
2. COMPENSATION.
2.1 As consideration for Contractor's Services and for the
discharge of all Contractor's obligations hereunder, the Company shall, during
the Term, pay Contractor $30,000
on an annual basis, such amounts to be paid by the Company monthly in twelve
equal installments.
2.2 In addition to such compensation, the Company will reimburse
Contractor for travel and other out-of-pocket costs reasonably incurred by him
in the course of performing Services under this Agreement; provided however,
that the Company shall not be obligated hereunder unless (a) the Company has
agreed in advance to reimburse such costs, and (b) Contractor provides the
Company with appropriate receipts or other relevant documentation for all such
costs as part of any submission by Contractor for reimbursement.
3. INDEPENDENT CONTRACTOR.
It is understood and agreed that Contractor is an independent
contractor and not an agent or employee of the Company. Contractor has no
authority to act on behalf of the Company pursuant to this Agreement, or to
obligate the Company by contract or otherwise. Contractor will not be eligible
for any employee benefits, nor will the Company make deductions from
Contractor's fees for taxes. The payment of any taxes related to Contractor's
provision of Services under this Agreement shall be the sole responsibility of
Contractor.
4. ADDITIONAL ACTIVITIES.
4.1 During the period in which Contractor provides Services to the
Company under this Agreement (the "Contracting Period"), Contractor will not
directly or indirectly (whether for compensation or without compensation),
provide services relating to the Field to any corporation or other entity which
is engaged in research in the Field, other than to those corporations or other
entities to which Contractor provides services on the date of this Agreement;
provided, however, that the foregoing shall not prevent Contractor from engaging
in any academic research, teaching or related activity in the Field.
4.2 During the Contracting Period, and for an amount of time
thereafter equal in length to the lesser of (a) two years or (b) the length of
the Contracting Period, Contractor will not, directly or indirectly (whether for
compensation or without compensation):
(i) recruit, solicit or induce, or attempt to induce, any
employee or employees of the Company to terminate their employment with, or
otherwise cease their relationship with, the Company; or
(ii) induce any other contractor, or the employee of any
other contractor to terminate its or its contractual relationship with the
Company; or
(iii) solicit, divert or take away, or attempt to divert or
to take away, the business or patronage of any of the clients, customers or
accounts, or prospective clients, customers or accounts, if any, of the Company
that were contacted, solicited or served by Contractor during the Contracting
Period.
4.3 The restrictions set forth in paragraphs 4.1 and 4.2 are
considered by the parties to be reasonable for the purposes of protecting the
business of the Company. However, if any such restriction is found by any court
of competent jurisdiction to be unenforceable because it extends
for too long a period of time or over too great a range of activities or in too
broad a geographic area, it shall be interpreted to extend only over the maximum
period of time, range of activities or geographic area as to which it may be
enforceable.
5. ESTABLISHMENT OF CONFIDENTIAL RELATIONSHIP.
Contractor recognizes that the Company is engaged in a continuous
program of research and development respecting its present and future business
activities. Contractor understands that:
5.1 As part of Contractor's Services performed for the Company,
Contractor will be involved in discussions that relate to the Company's
technology and business strategy, and, in the course of providing Services to
the Company, may develop new ideas or inventions or make other contributions of
value to the Company.
5.2 This Agreement creates a relationship of trust and confidence
between Contractor and the Company with respect to any information which is:
(i) applicable to the business of the Company or any
client or customer of the Company; and
(ii) is made known to Contractor by the Company or by any
client or customer of the Company, or is learned by Contractor while performing
Services for the Company.
5.3 The Company possesses and will continue to possess
information: (i) that has been created, discovered, developed, or otherwise
become known to the Company; or (ii) in which property rights have been assigned
or otherwise conveyed to the Company by another entity, which information has
commercial value in the business in which the Company is engaged and is treated
by the Company as confidential. All such information is hereinafter referred to
as "Proprietary Information." By way of illustration, but not limitation,
Proprietary Information includes: (1) inventions, developments, designs,
applications, improvements, trade secrets, formulae, ideas, know-how, methods or
processes, discoveries, techniques and data (hereinafter collectively referred
to as "Inventions"); and (2) plans for research, development, new products,
marketing and selling, information regarding business plans, budgets and
unpublished financial statements, licenses, prices and costs, information
concerning suppliers and customers and information regarding the skills and
compensation of employees of the Company. Notwithstanding the above, nothing
received by Contractor will be considered to be Proprietary Information if: (a)
it has been published or is otherwise readily available to the public other than
by a breach of this Agreement; (b) it has been rightfully received by Contractor
from a third party without confidential limitations; (c) it has been
independently developed for Contractor by personnel or agents having no access
to the Proprietary Information; or (d) it was known to Contractor prior to its
first receipt from the Company.
Certain specific obligations of Contractor arising out of Contractor's
confidential relationship with the Company are set forth in Sections 6 and 7 of
this Agreement.
6. RECOGNITION OF COMPANY'S RIGHTS; NONDISCLOSURE.
6.1 All Proprietary Information shall be the sole property of the
Company and its assigns, and the Company and its assigns shall be the sole owner
of all patents, copyrights and other rights in connection with such Proprietary
Information.
6.2 Contractor agrees to abide by the Company's document control
procedure established by the Company to ensure accurate maintenance and controls
in accessibility of all documents and information relating to the Company's
business. The Company will provide a copy of such policies to Contractor.
6.3 At all times, both during the term of this Agreement and after
its termination, Contractor will keep in confidence and trust all Proprietary
Information and shall not use or disclose to any third party any Proprietary
Information or anything related to such information without the written consent
of the Company, except as may be required in the ordinary course of performing
Services for the Company pursuant to this Agreement.
7. NONDISCLOSURE OF THIRD-PARTY INFORMATION.
Contractor understands that the Company has received and in the future
will receive from third parties information that is confidential or proprietary
("Third-Party Information") subject to a duty on the part of the Company to
maintain the confidentiality of such information and to use it only for certain
limited purposes. During the term of this Agreement and thereafter, Contractor
will hold Third-Party Information in the strictest confidence and will not
disclose or use Third-Party Information except as permitted by the agreement
between the Company and such third party, unless expressly authorized to act
otherwise by an officer of the Company in writing.
8. NO CONFLICTING OBLIGATION.
8.1 Contractor represents that his performance of all of the terms
of this Agreement and provision of Services as a contractor to the Company do
not and will not breach any agreement to keep in confidence any proprietary
information of another entity acquired by Contractor in confidence or in trust
prior to the date of this Agreement.
8.2 Contractor has not entered into, and hereby agrees not to
enter into, any agreement either written or oral in conflict with this
Agreement, provided that, absent a conflict of interest, Contractor is free to
provide services to any other entity during the performance of this Agreement.
9. NO IMPROPER USE OF MATERIALS.
Contractor agrees not to bring to the Company or to use in the
performance of Services any materials or documents of a present or former
employer of Contractor or of Contractor's employee, or any materials or
documents obtained by Contractor under a binder of confidentiality imposed by
reason of another of Contractor's contracting relationships, unless such
materials or documents are generally available to the public or Contractor has
authorization from such present or former employer or client for the possession
and unrestricted use of such
materials. Contractor understands that Contractor is not to breach any
obligation of confidentiality that Contractor has to present or former employers
or clients, and agrees to fulfill all such obligations during the term of this
Agreement.
10. TERM AND TERMINATION.
10.1 Unless previously terminated as set forth in Sections 10.2 or
10.3 below, the term of this Agreement shall commence on the Effective Date and
shall terminate twelve (12) months thereafter, unless extended by mutual
agreement of both parties hereto, which extension or extensions, if made, shall
be for an additional twelve months and which in the aggregate may extend the
term of this Agreement to up to five years from the Effective Date (the "Term").
10.2 Either party may terminate this Agreement in the event of a
material breach by the other party of this Agreement, if such breach continues
uncured for a period of thirty (30) days after written notice of such breach by
the nonbreaching party.
10.3 The Company may terminate this Agreement if at any time
Contractor shall cease to be a Director of the Company.
11. EFFECT OF TERMINATION.
11.1 Upon the expiration or termination of this Agreement, each
party shall be released from all obligations and liabilities to the other
occurring or arising after the date of such termination, except that any
termination of this Agreement shall not relieve Contractor of Contractor's
obligations under Sections 4, 5, 6 and 7 hereof, nor shall any such termination
relieve Contractor or the Company from any liability arising from any breach of
this Agreement.
11.2 Upon termination of this Agreement for any reason whatsoever,
Contractor shall promptly surrender and deliver to the Company all documents,
notes and other materials of any nature pertaining to Contractor's work with the
Company, and any documents or data of any description (or any reproduction of
any documents or data) containing or pertaining to any Proprietary Information.
12. ASSIGNMENT.
The rights and liabilities of the parties hereto shall bind and inure
to the benefit of their respective successors, assigns, heirs, executors and
administrators, as the case may be; provided that Contractor may not assign or
delegate Contractor's obligations under this Agreement either in whole or in
part without the prior written consent of the Company.
13. LEGAL AND EQUITABLE REMEDIES.
Because Contractor's services are personal and unique and because
Contractor may have access to and become acquainted with the Proprietary
Information of the Company, the Company shall have the right to enforce this
Agreement and any of its provisions by injunction, specific performance or other
equitable relief without prejudice to any other rights and remedies that the
Company may have for a breach of this Agreement.
14. GOVERNING LAW; SEVERABILITY.
This Agreement shall be governed by the laws of the State of California
as those laws are applied to contracts entered into and to be performed entirely
in California by California residents. If one or more of the provisions in this
Agreement are deemed unenforceable by law, then such provision will be deemed
stricken from this Agreement and the remaining provisions will continue in full
force and effect.
15. COMPLETE UNDERSTANDING; MODIFICATION.
The Prior Agreement is hereby terminated as of the Effective Date
hereof, and this Agreement and all stock option agreements between the Company
and Contractor, constitute the final, exclusive and complete understanding and
agreement of the parties hereto and supersedes all prior understandings and
agreements, and is entered into without reliance upon any representation,
whether oral or written, not stated herein. Any waiver, modification or
amendment of any provision of this Agreement shall be effective only if in
writing and signed by a Company officer.
16. NOTICES.
Any notices required or permitted hereunder shall be given to the
appropriate party at the address specified below or at such other address as the
party shall specify in writing. Such notice shall be deemed given upon personal
delivery to the appropriate address or sent by certified or registered mail,
three days after the date of mailing.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the Effective Date.
CALIPER LIFE SCIENCES, INC. CONTRACTOR
By: /s/ Stephen Creager By: /s/ David Milligan
------------------------------- -----------------------------
Name: Stephen Creager Dr. David Milligan
Title: Vice President & General Address: 801 Interlaken Lane
Counsel Libertyville, IL 60048
EXHIBIT A
SERVICES
Consultation and advice concerning:
1. the on-going review of Caliper's core competitive strengths;
2. the review and development of optimal growth strategies, in particular
partnering relationships; and
3. the identification and development of product and partnership
strategies, particularly in pharmaceuticals and diagnostics.
EXHIBIT B
THE FIELD
a. Microfabrication and micromachining as these disciplines apply to the
development of miniature chemical or biochemical systems for analysis
or synthesis.
b. Analytical chemistry or biochemistry as these disciplines apply to the
development of miniature chemical or biochemical systems for analysis
or synthesis.
c. Chemical or biochemical detection methods as they apply to the use of
these technologies in the development of miniature chemical or
biochemical systems for analysis or synthesis.
d. Molecular separations sciences as it applies to the development of
miniature chemical or biochemical systems for analysis.
e. Biological, biochemical or chemical assays as they apply to the
development of miniature chemical or biochemical systems for analysis
or synthesis.