EXHIBIT 10.29
CALIPER LIFE SCIENCES, INC.
KEY EMPLOYEE CHANGE OF CONTROL
AND SEVERANCE BENEFIT PLAN
AMENDED AND RESTATED AS OF FEBRUARY 16, 2005
This Key Employee Change of Control and Severance Benefit Plan (the "Plan") was
adopted by the Compensation Committee of the Board of Directors of Caliper Life
Sciences, Inc. (the "Company") at a meeting held on February 14, 2005, and was
approved and ratified by the full Board of Directors at a subsequent meeting on
February 16, 2005. This Plan amends and restates in its entirety, and supersedes
and replaces, the Company's Change of Control Sr. Mgmt Severance/Equity
Acceleration Plan (the "Existing COC Plan"). However, except as provided herein,
this Plan does not supersede any written agreement between the Company and any
employee
BACKGROUND OF THE PLAN
A. The Company draws upon the knowledge, experience and objective advice of
its executives and other key employees to manage its business for the
benefit of the Company's stockholders.
B. Due to the widespread awareness of the possibility of mergers,
acquisitions and other strategic alliances, change of control is an issue
in competitive recruitment and retention efforts.
C. The Company recognizes that if there occurred a change of control or other
event that could substantially change the nature and structure of the
Company, the resulting uncertainty regarding the consequences of such an
event could adversely affect the Company's ability to attract, retain and
motivate its executives and other key employees.
D. In order to enhance the ability of the Company to retain its executives
and other key employees, the Company has previously provided certain
severance benefits to certain of its executives and other key employees,
in the event of termination following a change of control of the Company,
pursuant to the Existing COC Plan. The Company now desires to replace the
benefits provided under the Existing COC Plan with the benefits set forth
in this Plan, and to extend the benefits set forth in this Plan to certain
of its executives and other key employees, subject to the terms and
conditions set forth herein.
E. On February 14, 2005, the Compensation Committee of the Company's Board of
Directors reviewed, approved and adopted the terms of this Plan, and
adopted a resolution recommending that the Company's Board of Directors
approve and ratify this Plan.
F. On February 16, 2005, this Plan was approved and ratified by the Company's
Board of Directors.
1. GENERAL
1.1 Defined Terms. Capitalized terms used in this Plan shall have the
meanings set forth in Section 4 below, unless the context clearly requires a
different meaning.
1.2 Purpose. The purpose of this Plan is to aid the Company in attracting,
retaining and motivating its Eligible Participants by providing specified
compensation and other benefits to such Eligible Participants in the event of a
Covered Termination.
1.3 No Employment Agreement. This Plan does not obligate the Company to
continue to
employ an Eligible Participant for any specific period of time, or in any
specific role or geographic location. Subject to the terms of any applicable
written employment agreement between Company and an Eligible Participant, the
Company may assign an Eligible Participant to other duties, and either the
Company or an Eligible Participant may terminate such Eligible Participant's
employment by the Company at any time for any reason.
1.4 Condition for Receipt of Benefits. Notwithstanding anything in this
Plan to the contrary, the receipt by any Eligible Participant of any of the
benefits provided by this Plan shall be conditioned on such Eligible Participant
executing and delivering to the Company an effective waiver and release of all
claims such Eligible Participant may have against the Company.
2. TERMINATION UPON CHANGE OF CONTROL
2.1 Cash Severance Benefit. In the event of an Eligible Participant's
Covered Termination, the Eligible Participant shall be entitled to the basic
cash severance benefit described below.
2.1.1 Salary Continuation. Subject to the terms of this Section 2.1,
such Eligible Participant shall receive monthly payments equal to his or her
base pay at the time of such Eligible Participant's Covered Termination for (x)
in the case of each Eligible Participant other than the President or Chief
Executive Officer of the Company, twelve (12) months and (y) in the case of the
President or Chief Executive Officer of the Company, twenty-four (24) months, or
in each case until such Eligible Participant is employed by another company,
whichever occurs earlier.
2.1.2 Prorated Bonus Payment. Subject to the terms of this Section
2.1, such Eligible Participant shall receive his or her target bonus or
incentive payment for the year in which termination occurs, prorated through the
date of termination.
All cash severance payments made under this Section 2.1 shall be reduced by
applicable federal and state withholding taxes. Subject to any timing or other
adjustment in the payments to such Eligible Participant pursuant to Section 3.2,
(i) any cash payments pursuant to Section 2.1.1 shall be made on the Company's
regular payroll dates and (ii) any cash payments pursuant to Section 2.1.2 shall
be paid upon the later of (x) the date of the Change of Control or (y) thirty
(30) days following such Eligible Participant's Covered Termination. An Eligible
Participant shall not be entitled to contribute any funds paid to such Eligible
Participant pursuant to this Plan to any deferred compensation plan maintained
by the Company. Other than the vesting acceleration provided for in Section
2.2.1, there shall not be any continuing vesting of any outstanding equity award
granted to the Eligible Participant by the Company during the period of time in
which such Eligible Participant receives salary continuation payments pursuant
to this Section 2.1, except as may otherwise be provided in a written agreement
between the Company and such Eligible Participant.
2.2 Acceleration of Vesting of Equity Awards.
2.2.1 Acceleration at Covered Termination. All outstanding stock
options granted and restricted stock units, restricted stock, performance shares
or other equity award issued by the Company prior to the Change of Control to an
Eligible Participant who suffers a Termination Upon a Change of Control or a
Constructive Termination Upon a Change of Control shall have their vesting
accelerated by an additional thirty (30) months on the date of such Termination
Upon Change of Control or Constructive Termination Upon Change of Control.
2.2.3 Acceleration Upon Non-Assumption in a Change of Control. If
there is a Change of Control transaction in which outstanding stock options,
restricted stock units, restricted stock, performance shares or other equity
awards granted by the Company to an Eligible Participant prior to the
transaction are not replaced with a reasonably equivalent incentive program of
the Successor, then (i) all such options, restricted stock units, restricted
stock, performance shares or other equity awards shall have their vesting fully
accelerated so as to be 100% vested and exercisable prior to the effective date
of the
- 2 -
Change of Control, and (ii) the Company shall provide reasonable prior written
notice to the Eligible Participant of (A) the date such unexercised options or
other equity awards will terminate, and (B) the period during which the Eligible
Participant may exercise the unexercised options or other equity awards. For the
purposes of the foregoing, an option or other equity award shall be deemed to be
replaced with a reasonably equivalent incentive program of the Successor if the
vesting under the replacement program is not less favorable than the vesting
under the option or other equity award and the Board of the Company otherwise
determines that the replacement incentive program is reasonably equivalent to
the option or other equity award being replaced. Such a replacement incentive
program might include, without limitation, (x) the Successor assuming the option
(or substituting a Successor option) whereby the option becomes an option to
acquire stock of the Successor in a manner qualifying under Section 424(a) of
the Internal Revenue Code of 1986, as amended (the "Code"), (y) the option
becomes an option to acquire the same consideration per share of common stock
subject to the option as the stockholders of the Company receive for their
common stock in the Change of Control transaction (the "Common Change of Control
Consideration"), or (z) the Successor establishes a cash incentive program
whereby each option is replaced with the opportunity to receive a cash payment
equal to the excess of (X) the value of the Common Change of Control
Consideration, over (Y) the aggregate exercise price of the Eligible
Participant's unexercised options. If there is a Change of Control transaction
and any outstanding unvested restricted stock units, restricted stock or other
equity award granted by the Company to any Eligible Participant that is subject
to vesting or a repurchase right in favor of the Company is not replaced with
Common Change of Control Consideration, the vesting of such stock shall
accelerate (and any repurchase rights shall lapse) so that such stock is
completely vested immediately prior to the Change of Control transaction.
2.3 Extended Medical and Dental Benefits.
2.3.1 Benefit Continuation. Each U.S. Eligible Participant shall
receive continued provision of the Company's standard employee medical and
dental benefit coverages at standard staff rates, as elected by the Eligible
Participant and in effect immediately prior to the Change of Control, for so
long as, but not to exceed twelve (12) months, the Eligible Participant is not
eligible to receive comparable health insurance coverage from another employer.
Continued health coverage for non-U.S. Eligible Participants shall be negotiated
in accordance with applicable law and policy to provide similar coverage.
2.3.2 Continued Medical Coverage for U.S. Residents. If the Eligible
Participant resides in the United States, such Eligible Participant shall be
entitled to continued medical and dental insurance coverage in accordance with
the applicable provisions of U.S. federal law (Title X of the Consolidated
Budget Reconciliation Act of 1985 ("COBRA"). The date of the COBRA "qualifying
event" for the Eligible Participant and his or her dependents shall be the date
of such Eligible Participant's Covered Termination.
2.3.3 Termination of Coverage. Notwithstanding the preceding
provisions of this Section 2.3, in the event an Eligible Participant dies or
becomes covered under another employer's group health plan during the
continuation period (in which case such Eligible Participant promptly shall
inform the Company), the Company shall cease provision of continued group health
insurance for such Eligible Participant and any dependents.
3. FEDERAL TAX UNDER IRC SECTION 4999 OR SECTION 409A
3.1 Adjustment of Excess Payments Payable to an Eligible Participant
Subject to Section 4999. In the event it is determined that an Eligible
Participant entitled to payments and/or benefits provided by this Plan or any
other amounts in the "nature of compensation" (whether pursuant to the terms of
this Plan or any other plan, arrangement, or agreement with the Company or any
affiliate, any person whose actions result in a change of ownership or effective
control of the Company covered by
- 3 -
Section 280G(b)(2) of the Code or any person affiliated with the Company or such
person) as a result of such change of ownership or effective control of the
Company ("Payments") would be subject to the excise tax imposed by Section 4999
of the Code (the "280G Excise Tax"), the Company shall cause to be determined,
before any amounts of the Payments are paid to the Eligible Participant, which
of the following two alternative forms of payment would maximize the Eligible
Participant's after-tax proceeds: (i) payment in full of the entire amount of
the Payments, or (ii) payment of only a part of the Payments so that the
Eligible Participant receives the largest payment possible without the
imposition of the 280G Excise Tax ("Reduced Payments"). If it is determined that
Reduced Payments will maximize an Eligible Participant's after-tax benefit, then
(i) the Eligible Participant shall decide which payments and/or benefits are to
be reduced, (ii) the Payments shall be paid only to the extent permitted under
the Reduced Payments alternative, and (iii) the Eligible Participant shall have
no rights to any additional payments and/or benefits constituting the Payments.
Unless the Company and Eligible Participant otherwise agree in writing, any
determination required under this Section 3.1 shall be made in writing by
independent public accountants agreed to by the Company and the Eligible
Participant (the "Accountants"), whose determination shall be conclusive and
binding upon the Eligible Participant and the Company for all purposes. For
purposes of making the calculations required by this Section 3.1, the
Accountants may rely on reasonable, good faith interpretations concerning the
application of Sections 280G and 4999 of the Code. The Company and the Eligible
Participant shall furnish to the Accountants such information and documents as
the Accountants may reasonably request in order to make the required
determinations. The Company shall bear all fees and expenses the Accountants may
reasonably charge in connection with the services contemplated by this Section
3.1.
3.2 Adjustment of Payments Payable to an Eligible Participant Subject to
Section 409A. In the event it is determined that an Eligible Participant
entitled to Payments or Reduced Payments would be subject to the provisions of
Section 409A of the Code (the "409A Taxes") if such Payments or Reduced Payments
were to be made in accordance with Section 2.1, the Company shall cause to be
determined, before any amounts of the Payments or Reduced Payments are paid to
the Eligible Participant, how such Payments or Reduced Payments may be modified
to avoid the imposition of the 409A Taxes (including without limitation by
delaying the payment of any Payments or Reduced Payments to such Eligible
Participant until six (6) months after the Covered Termination), and
notwithstanding anything to the contrary in this Plan, this Plan shall be deemed
to contain such terms and conditions as determined by the Board of Directors of
the Company as may be reasonably necessary for the benefits under this Plan to
not be subject to the provisions of Section 409A(a)(1) of the Code. Such terms
and conditions may vary in their application to individual Eligible Participants
such that, for example, the payment schedule for one Eligible Participant may be
different from the payment schedule for another Eligible Participant. In
addition, the Company's Board of Directors, in it sole discretion, may, prior to
a Change of Control, determine that the provisions of Section 3.2.1 shall not
apply to one or more Eligible Participants. In the absence of any contrary
determination by the Company's Board of Directors prior to a Change of Control,
the following provisions shall apply:
3.2.1 In the event that any cash severance benefit provided in
Section 2.1 or health benefit provided in Section 2.3 shall fail to satisfy the
distribution requirement of Section 409A(a)(2)(A) of the Code as a result of the
application of Section 409A(a)(2)(B)(1) of the Code, the payment of such benefit
shall be accelerated to the minimum extent necessary so that the benefit is not
subject to the provisions of Section 409A(a)(1) of the Code. The Company's Board
of Directors may attach conditions to amounts paid pursuant to this Section
3.2.1 to preserve, as closely as possible, the economic consequences that would
have applied in the absence of this Section 3.2.1; provided that no such
conditions shall result in the payments being subject to Section 409A(a)(1) of
the Code.
3.2.2 Notwithstanding the provisions of Section 3.2.1, in the event
the application of Section 3.2.1 would not relieve the benefit from being
subject to Section 409A of the Code, the payment of the benefits pursuant to
Section 2.1 or Section 2.3 shall not be accelerated pursuant to Section 3.2.1
and
- 4 -
instead the payment of benefits pursuant to Section 2.1 and Section 2.3 shall be
delayed to the minimum extent necessary so that such benefits are not subject to
the provisions of Section 409A(a)(1) of the Code.
For purposes of making the determinations required by this Section 3.2, the
Company may rely on advice of counsel concerning the application and
interpretation of Section 409A of the Code and related rules and regulations.
4. DEFINITIONS
4.1 Capitalized Terms Defined. Capitalized terms used in this Plan shall
have the meanings set forth in this Section 4, unless the context clearly
requires a different meaning.
4.2 "Cause" means:
(a) theft; a material act of dishonesty or fraud; intentional
falsification of any employment or Company records; or the commission of
any criminal act which impairs the Eligible Participant's ability to
perform appropriate employment duties for the Company;
(b) improper disclosure or use of the Company's confidential,
business or proprietary information by the Eligible Participant;
(c) the Eligible Participant's conviction (including any plea of
guilty or nolo contendere) for a crime involving moral turpitude causing
material harm to the reputation and standing of the Company, as determined
by the Company in its sole discretion;
(d) gross negligence or willful misconduct in the performance of the
Eligible Participant's assigned duties; or
(e) repeated failure by the Eligible Participant to perform his or
her job responsibilities in accordance with written instructions from such
Eligible Participant's supervisor (which, in the case of the Company's
Chief Executive Officer, shall be the Company's Board of Directors).
4.3 "Change of Control" means:
(a) any "person" (as such term is used in Sections 13(d) and 14(d)
of the Securities Exchange Act of 1934, as amended), acquires, pursuant to
a tender or exchange offer made directly to the Company's stockholders,
direct or indirect ownership of securities of the Company representing 50%
or more of (A) the outstanding shares of common stock of the Company or
(B) the combined voting power of the Company's then-outstanding
securities;
(b) the Company is party to a merger or consolidation which results
in the holders of voting securities of the Company outstanding immediately
prior thereto failing to continue to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) at least 50% of the combined voting power of the voting securities
of the Company or such surviving entity outstanding immediately after such
merger or consolidation; or
(c) the sale or disposition of all or substantially all of the
Company's assets (or consummation of any transaction having similar
effect).
4.4 "Company" shall mean Caliper Life Sciences, Inc. and, following a
Change of Control, any Successor that agrees to assume, or otherwise becomes
bound to by operation of law, all the terms and provisions of this Plan.
4.5 "Constructive Termination Upon Change of Control" means any
resignation by an Eligible Participant for Good Reason, as defined in this Plan,
within thirteen (13) months after the occurrence of any Change of Control;
provided that "Constructive Termination Upon Change of Control" shall not
include any termination of the employment of an Eligible Participant (i) by the
Company for
- 5 -
Cause; (ii) by the Company as a result of the Permanent Disability of the
Eligible Participant; (iii) as a result of the death of the Eligible
Participant; or (iv) as a result of the voluntary termination of employment by
the Eligible Participant for reasons other than Good Reason.
4.6 "Covered Termination" shall mean, with respect to an Eligible
Participant for purposes of this Plan, a Termination Upon Change of Control or a
Constructive Termination Upon Change of Control.
4.7 "Effective Date" means February 16, 2005.
4.8 "Eligible Participant" shall mean the President and Chief Executive
Officer of the Company, each officer of the Company that reports directly to
either the President or Chief Executive Officer of the Company, and such other
additional employees of the Company as may be designated from time to time after
the Effective Date to participate in this Plan by the Compensation Committee of
the Board of Directors.
4.9 "Good Reason" means the occurrence of any of the following conditions
following a Change of Control, without the Eligible Participant's informed
written consent, which conditions remain in effect ten (10) days after written
notice to the Company from the Eligible Participant of such condition:
(a) a material reduction in the Eligible Participant's duties,
responsibilities or position;
(b) a material reduction in the Eligible Participant's base salary
or target bonus amount, except for reductions that are concurrent and
consistent with reductions in base salary or target bonus amounts for all
executives of the Successor following a Change of Control; or
(c) the relocation of the Eligible Participant's work place for the
Company to a location more than thirty-five (35) miles from the location
of the work place prior to the Change of Control.
4.10 "Permanent Disability" means that:
(a) the Eligible Participant has been incapacitated by bodily
injury, illness or disease so as to be prevented thereby from engaging in
the performance of such Eligible Participant's duties;
(b) such total incapacity shall have continued for a period of six
(6) consecutive months; and
(c) such incapacity will, in the opinion of a qualified physician,
be permanent and continuous during the remainder of such Eligible
Participant's life.
4.11 "Successor" means the Company as defined above and any successor or
assign (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company.
4.12 "Termination Upon Change of Control" means any actual termination of
the employment of an Eligible Participant by the Company without Cause during
the period commencing thirty (30) days prior to the earlier of (i) the date that
the Company first publicly announces it is conducting negotiations leading to a
Change of Control, or (ii) the date that the Company enters into a definitive
agreement that would result in a Change of Control (even though still subject to
approval by the Company's stockholders and other conditions and contingencies);
and ending on the earlier of (x) the date on which the Company announces that
the definitive agreement described in clause (ii) above has been terminated or
that the Company's efforts to consummate the Change of Control contemplated by
the previously announced negotiations or by a previously executed definitive
agreement have been abandoned or (y) the date which is thirteen (13) months
after the Change of Control; provided that "Termination Upon Change of Control"
shall not include any termination of the employment of an Eligible Participant
(i) by the Company for Cause; (ii) by the Company as a result of the Permanent
Disability of the Eligible Participant; (iii) as a
- 6 -
result of the death of the Eligible Participant, or (iv) as a result of the
voluntary termination of employment by the Eligible Participant for reasons
other than Good Reason.
5. EXCLUSIVE REMEDY
5.1 Sole Remedy for Covered Terminations. The payments and benefits
provided for in Sections 2 and 3 shall constitute an Eligible Participant's sole
and exclusive remedy for any alleged injury or other damages arising out of the
cessation of the employment relationship between the Eligible Participant and
the Company in the event of the Eligible Participant's Covered Termination,
except as expressly set forth in a written agreement or in a duly executed
employment agreement between Company and an Eligible Participant, whether
entered into before or after the Effective Date.
5.2 No Other Benefits Payable. An Eligible Participant shall not be
entitled to any other compensation, benefits, or other payments from the Company
as a result of any termination of employment with respect to which the payments
and/or benefits described in Sections 2 and 3 have been provided to the Eligible
Participant, except as expressly set forth in a written agreement or in a duly
executed employment agreement between Company and an Eligible Participant;
provided that nothing in this Plan shall affect an Eligible Participant's
entitlement to receive outplacement and financial planning services ordinarily
available to officers upon the termination of their employment by the Company.
5.3 Release of Claims. The Company shall condition payment of the cash
severance benefits described in Section 2.1 of this Plan and the stock option,
restricted stock unit, restricted stock, performance share or other equity award
acceleration described in Section 2.2 upon the delivery by Eligible Participant
of a signed release of claims in a form reasonably satisfactory to the Company.
6. PROPRIETARY AND CONFIDENTIAL INFORMATION
The Company shall condition payment of the cash severance benefits
described in Section 2.1 of this Plan and the stock option, restricted stock
unit, restricted stock, performance share or other equity award acceleration
described in Section 2.2 upon the Eligible Participant's acknowledgment of his
or her continuing obligation to abide by the terms and conditions of the
Company's confidentiality and/or proprietary rights agreement between the
Eligible Participant and the Company.
7. NON-SOLICITATION
7.1 Agreement Not to Solicit. The Company shall condition payment of the
cash severance benefits described in Section 2.1 of this Plan and the stock
option, restricted stock unit, restricted stock, performance share or other
equity award acceleration described in Section 2.2 upon an Eligible
Participant's agreement, for a period of two (2) years after the Eligible
Participant's Covered Termination, to not, directly or indirectly, solicit the
services or business of any employee, distributor, vendor, representative or
customer of the Company, or in any other manner persuade any such person or
entity to discontinue that person's or entity's relationship with or to the
Company.
7.2 Other Agreements Not Superseded. No provision of this Plan shall
supersede or limit the terms, including more restrictive terms, of any other
agreement by an Eligible Participant to refrain from competition with or from
soliciting the employees or customers of the Company.
8. ARBITRATION
8.1 Disputes Subject to Arbitration. Any claim, dispute or controversy
arising out of this Plan, the interpretation, validity or enforceability of this
Plan, or the alleged breach thereof shall be submitted by the parties to binding
arbitration by the American Arbitration Association; provided, that (i) the
arbitrator shall have no authority to make any ruling or judgment that would
confer any rights with respect to the trade secrets, confidential and
proprietary information or other intellectual property of the
- 7 -
Company upon an Eligible Participant or any third party; and (ii) this
arbitration provision shall not preclude the Company from seeking legal and
equitable relief from any court having jurisdiction with respect to any disputes
or claims relating to or arising out of the misuse or misappropriation of the
Company's intellectual property. Judgment may be entered on the award of the
arbitrator in any court having jurisdiction.
8.2 Site of Arbitration. The site of the arbitration proceeding shall be
Boston, Massachusetts for Eligible Participants employed in the Company's
Hopkinton, MA office and shall be in San Jose, California for Eligible
Participants employed in the Company's Mountain View, CA office.
9. OTHER BENEFIT PLANS; NONCUMULATION OF BENEFITS
9.1 No Limitation of Regular Benefit Plans. Except as provided in Section
9.2 below, this Plan is not intended to and shall not affect, limit or terminate
any plans, programs, or arrangements of the Company that are regularly made
available to a significant number of employees, officers or executives of the
Company, including without limitation the Company's stock option plans.
9.2 Noncumulation of Benefits. An Eligible Participant may not cumulate
cash severance payments, stock option, restricted stock or other equity award
acceleration and excise tax reimbursement benefits under both this Plan and any
other agreement or plan or policy of the Company, any statutory or legal
allowance or provision, or otherwise. If an Eligible Participant has any other
binding written agreement with the Company which provides that upon a Change of
Control or termination of employment such Eligible Participant shall receive one
or more of the benefits described in Sections 2 and 3 of this Plan (i.e., the
payment of cash compensation or prorated bonus, acceleration of vesting of stock
options, restricted stock rights or other equity award, and adjustments or
payments relating to federal excise tax), then with respect to those benefits
the aggregate amounts payable under this Plan shall be reduced by the amounts
paid or payable under such other and separate agreements.
10. SUCCESSORS AND ASSIGNS
10.1 Successors of the Company. The Company will require any Successor
expressly, absolutely and unconditionally to assume and agree to perform this
Plan in the same manner and to the same extent that the Company would be
required to perform it if no such succession or assignment had taken place.
Failure of the Company to obtain such agreement shall be a material breach of
this Plan.
10.2 No Assignment of Rights. Except as set forth in Section 10.3, the
interest of any Eligible Participant in this Plan or in any distribution to be
made under this Plan may not be assigned, pledged, alienated, anticipated, or
otherwise encumbered (either at law or in equity) and shall not be subject to
attachment, bankruptcy, garnishment, levy, execution, or other legal or
equitable process. Any act in violation of this Section 10.2 shall be void.
10.3 Heirs and Representatives of Eligible Participant. An Eligible
Participant's accrued rights under this Plan shall inure to the benefit of and
be enforceable by an Eligible Participant's personal and legal representatives,
executors, administrators, successors, heirs, distributees, devises and
legatees.
11. NOTICES
For purposes of this Plan, notices and all other communications permitted
or provided for in this Plan shall be in writing and shall be deemed to have
been duly given when delivered or mailed by United States registered mail,
return receipt requested, postage prepaid, as follows:
If to the Company: Caliper Life Sciences, Inc.
Attention: General Counsel
63 Elm Street
Hopkinton, MA 01748
- 8 -
and if to an Eligible Participant at the most recent address recorded in the
records of the Company. Either party may provide the other with notices of
change of address, which shall be effective upon receipt.
12. SEVERABILITY OF PROVISIONS
If anyone or more of the provisions (or any part thereof) of this Plan
shall be held invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions (or any part thereof)
shall not in any way be affected or impaired thereby.
13. AMENDMENT, SUSPENSION OR TERMINATION
At any time after the Effective Date of this Plan and prior to the date
thirty (30) days before the earlier of (i) the date that the Company first
publicly announces it is conducting negotiations leading to a Change of Control,
or (ii) the date that the Company enters into a definitive agreement that would
result in a Change of Control (even though still subject to approval by the
Company's stockholders and other conditions and contingencies), the Board of
Directors of the Company shall have the right to amend, suspend or terminate
this Plan at any time and for any reason. Notwithstanding the preceding
sentence, however, no amendment or termination of this Plan shall reduce any
Eligible Participant's rights or benefits that have accrued and become payable
under this Plan before the date the amendment is adopted or this Plan is
terminated, as appropriate.
14. EFFECTIVE DATE
The Effective Date of this Plan is February 16, 2005. This Plan amends and
restates in its entirety, and supersedes and replaces, the Change of Control Sr.
Mgmt Severance/Equity Acceleration Plan adopted by the Company's Board of
Directors on December 6, 2000.
- 9 -