exv10w43



 






EXHIBIT 10.43




MOLECULAR DEVICES CORPORATION




AMENDED KEY EMPLOYEE AGREEMENT

FOR

TIMOTHY A. HARKNESS




This Amended Employment Agreement (“Agreement”) is entered into as of the 17th day of
December 2004, by and between Timothy A. Harkness (“Executive”) and Molecular Devices Corporation,
a Delaware corporation (the “Company”).




Whereas, the Company desires to employ Executive to provide personal services to the
Company, and wishes to provide Executive with certain compensation and benefits in return for his
services;




Whereas, Executive wishes to be employed by the Company and provide personal services to
the Company in return for certain compensation and benefits;




Whereas, on July 8, 1998, Executive and the Company entered into a written offer letter
agreement (attached hereto as Exhibit A)(the “Original Employment Agreement”);




Whereas, Executive and the Company wish to modify the Original Employment Agreement and
replace it with this Agreement;




Whereas, on February 15, 2001, the Company established the Molecular Devices Corporation
Change in Control Severance Benefit Plan for Timothy A. Harkness, Vice President and Chief
Financial Officer (attached hereto as Exhibit B)(the “Executive Severance Plan”);




Whereas, on April 11, 2002, Executive and the Company entered into a written agreement
regarding severance benefits in the event of a Change in Control (attached hereto as Exhibit C)(the
“April 2002 Agreement”);




Whereas, Executive and the Company wish to supersede and replace the Executive Severance
Plan and the April 2002 Agreement with this Agreement; and




Whereas, Executive and the Company wish to set forth in this Agreement the complete and
final terms and conditions governing Executive’s employment with the Company;




Now, Therefore, in consideration of the mutual promises and covenants contained herein, it
is hereby agreed by and between the parties hereto as follows:




Employment by the Company.




Executive’s Obligations. Subject to terms set forth herein, the Company agrees to employ Executive
in the position of Senior Vice President and Chief Financial Officer (“CFO”) of the Company and
Executive hereby accepts such employment effective as of July 8, 1998. During the term of his
employment with the Company, Executive will devote his best efforts and substantially all of his
business time and attention (except for vacation periods as set forth herein and reasonable periods
of illness or other incapacities permitted by the Company’s general employment policies) to the
business of the Company.




Executive’s Duties. Executive shall serve in an executive capacity and shall perform such duties
as are customarily associated with his then current title, consistent with the Bylaws of the
Company and as required by the Company’s Board of Directors (the “Board”) and its Chief Executive
Officer.




Company Policies and Indemnification. The employment relationship between the parties shall also
be governed by the general employment policies and practices of the Company, including those
relating to protection of confidential information and assignment of inventions, except that when
the terms of this Agreement differ from or are in conflict with the Company’s general employment
policies or practices, this Agreement shall control. In addition, as an executive officer of the
Company Executive will be covered by the Company’s directors and officers liability insurance
coverage (“D&O insurance coverage”), as in effect from time to time, as well as the Company’s bylaw
indemnification and indemnity agreement for executive officers and directors. The Company
represents and warrants that its current D&O insurance coverage provides for the advancement of
costs of defense (including attorneys’ fees and costs) in the event of a covered claim. The
Company agrees that during the term of Executive’s employment, it shall maintain D&O insurance
coverage that provides for advancement of the costs of defense and further agrees that it will
maintain such coverage for any covered acts or omissions committed or alleged to have been
committed or omitted by Executive during the term of his employment with the Company.




Compensation.




Salary. Executive shall receive for services to be rendered hereunder an annualized base salary of
Two Hundred Seventy-Five Thousand Dollars ($275,000.00), payable according to the Company’s regular
payroll schedule.




Performance Bonus. Executive will be eligible for a discretionary performance bonus of up to 60%
of base salary, earned under the following conditions, if Executive achieves the goals established
in agreement with the Chief Executive Officer. The Chief Executive Officer shall determine, in his
sole discretion, whether any or all of the goals have been achieved and conditions have been met,
and if so, the amount of the bonus.




Company Corporate Financial Goals. The Company must meet or exceed its planned profit objectives
for the bonus year; and




 









 





Executive’s Performance. Executive must demonstrate performance equal to or above that required to
meet the ordinary expectations of his job position, as determined by the Chief Executive Officer in
his sole discretion; and




Achievement of Goals. Executive shall achieve each of the goals agreed upon with the Chief
Executive Officer. The goals comprise all of the objectives in the Molecular Devices Balanced
Scorecard and the CFO Individual Balanced Scorecard.




Active Employment. Executive must remain an active employee through the end of the bonus year.
Executive forfeits any bonus for which he would otherwise be eligible, if his employment terminates
for any reason before the end of the bonus year. No prorated bonus can be earned.




Standard Company Benefits. Executive shall be entitled to all rights and benefits for which he is
eligible under the terms and conditions of the standard Company benefits and compensation practices
which may be in effect from time to time and provided by the Company to its employees generally.




Car Allowance. The Company will pay Executive, in lieu of providing a Company-leased car, an
allowance of $750 per month, to cover transportation expenses in the performance of his job duties.




Administrative Expenses. The Company will pay Executive for administrative expenses (such as
financial planning, estate planning, and tax preparation), which Executive incurs, up to a maximum
of $5,000 per year. The Company will pay the reasonable cost of Executive’s cell phone service.




Taxation. Any amount received by the Executive for administrative expenses or cell phone service
that is required to be so treated will be treated as taxable income and reflected on the Company’s
Form W-2 report.




Compensation Review. The Chief Executive Officer will annually review Executive’s salary,
performance bonus, and incentive stock options to ensure that they are commensurate with work
performed. In addition, the Company will annually review and mutually establish with Executive the
goals to be used in evaluating Executive’s performance bonus. Finally, the Company will annually
review Executive’s current and future equity compensation relative to other similarly-situated
companies, provided, however, that nothing herein shall obligate the Company to provide Executive
with equity compensation that is equal or comparable to the equity compensation provided by such
similarly-situated companies.




Stock.




Stock Options. The Board previously granted Executive an incentive stock option to purchase
seventy-five thousand (75,000) shares of the Company’s Common Stock under the Company’s 1995 Stock
Option Plan (the “Plan”). This option now has fully vested and, except as set forth in Sections
6.1(b) and 9.1 herein, this Agreement shall not affect any rights of Executive or the Company with
regard to these options.




Stock Grant. The Board previously granted Executive an aggregate of ten thousand (10,000) shares
of the Company’s Common Stock, subject to applicable securities law restrictions, over two years.
Except as set forth in Sections 6.1(b) and 9.1 herein, this Agreement shall not affect any rights
of Executive or the Company with regard to these shares of stock.




Other Option and Stock Grants. Executive has been granted additional stock options by the Company
since the Original Employment Agreement and may, in the future, be granted additional stock and
stock options by the Company. Except as set forth in Sections 6.1(b) and 9.1 herein, all such
options or stock grants shall be governed by the applicable stock option agreement, stock option
plan, or stock purchase agreement.




Proprietary Information Obligations.




Agreement. Executive agrees that he continues to be bound by the Proprietary Information and
Inventions Agreement he executed at the outset of his employment.




Remedies. Executive’s duties under the Proprietary Information and Inventions Agreement shall
survive termination of his employment with the Company. Executive acknowledges that a remedy at
law for any breach or threatened breach by him of the provisions of the Proprietary Information and
Inventions Agreement would be inadequate, and he therefore agrees that the Company shall be
entitled to injunctive relief in case of any such breach or threatened breach.




Outside Activities.




Other Activities. Except with the prior written consent of the Company’s Chief Executive Officer,
Executive will not during the term of this Agreement undertake or engage in any other employment,
occupation or business enterprise, other than ones in which Executive is a passive investor within
the limitations set forth in Section 5.3 below. Executive may engage in civic and not-for-profit
activities so long as such activities do not materially interfere with the performance of his
duties hereunder.




Other Business Interests. Except as permitted by Section 5.3, Executive agrees not to acquire,
assume or participate in, directly or indirectly, any position, investment or interest known by him
to be adverse or antagonistic to the Company, its business or prospects, financial or otherwise.




Noncompetition During Employment. During the term of his employment by the Company, except on
behalf of the Company, Executive will not directly or indirectly, whether as an




 









 








officer, director, stockholder, partner, proprietor, associate, representative, consultant, or in
any capacity whatsoever engage in, become financially interested in, be employed by or have any
business connection with any other person, corporation, firm, partnership or other entity
whatsoever which were known by him to compete directly with the Company, throughout the world, in
any line of business engaged in (or planned to be engaged in) by the Company; provided, however,
that anything above to the contrary notwithstanding, he may own, as a passive investor, securities
of any competitor corporation, so long as his direct holdings in any one such corporation shall not
in the aggregate constitute more than 1% of the voting stock of such corporation.




Termination Of Employment.




Termination Without Cause or Resignation With Good Reason.




Parties’ Rights. The Company shall have the right to terminate Executive’s employment with the
Company at any time without Cause (as defined herein) and Executive shall have the right to resign
his employment for Good Reason (as defined herein).




Severance Benefits. In the event that: (i) Executive’s employment is terminated by the Company
without Cause (as defined herein) or Executive resigns for Good Reason (as defined herein); and
(ii) Executive signs a general release of all claims against the Company in the applicable form set
forth in Exhibit D hereto and allows this release to become effective; then the Company shall
provide Executive with the following severance benefits:




Consulting Agreement. A one-year consulting agreement as described in Sections 7 and 8 below
beginning on the day after Executive’s last date of employment (the “Termination Date”).




COBRA Benefits. If Executive timely elects continuation of his then-current medical, dental, and
vision insurance benefits under the Consolidated Omnibus Budget Reconciliation Act of 1985
(“COBRA”), the Company shall pay the portion of premiums it paid prior to the Termination Date for
one (1) year after the Termination Date, provided, however, that no such premium payments shall be
made following the effective date of Executive’s coverage by a medical, dental or vision insurance
plan of a subsequent employer. Executive shall notify the Company immediately if he becomes
covered by a medical, dental or vision insurance plan of a subsequent employer.




Stock Option Vesting. Accelerated vesting of any stock options that remain unvested as of the
Termination Date such that any such options shall be deemed vested as of the Termination Date (the
“Accelerated Options”).




Stock Option Exercise. Extension of the exercise period of any vested but unexercised stock
options (including the Accelerated Options) such that Executive shall have a period of one (1) year
after the Termination Date to exercise any such options. (Executive understands and agrees that
the Company makes no representation as to the tax treatment of any options which receive an
extended exercise period).




Company Equipment. Executive shall be allowed to retain his Company laptop computer, Company cell
phone, and Company PDA after the Termination Date, provided that Executive allows the Company to
remove any and all confidential and proprietary information belonging to the Company. Executive
agrees he will not alter, delete, or copy any such information contained on these devices prior to
allowing the Company to remove this information.




Definitions. For purposes of this Agreement:




Cause. “Cause” for termination shall be determined by the Company based on the Chief Executive
Officer’s reasonable belief that one or more of the following has occurred: (i) Executive’s
indictment or conviction of any felony or of any crime involving dishonesty; (ii) Executive’s
participation in any fraud against the Company; (iii) a material breach of Executive’s duties to
the Company, whether arising under this Agreement or by operation of law, provided that the Company
has given advance written notice to Executive for at least thirty (30) days and Executive has not
cured such breach to the satisfaction of the Chief Executive Officer within said 30-day period;
(iv) Executive’s intentional damage to any property of the Company; or (v) conduct by Executive
which in the good faith and reasonable determination of the Chief Executive Officer demonstrates
gross unfitness to serve, provided that the Company has provided advance written notice to
Executive for at least thirty (30) days and Executive has not cured such breach to the satisfaction
of the Chief Executive Officer within said 30-day period.




Resignation for Good Reason. A “Resignation for Good Reason” shall mean a voluntary termination of
employment by Executive after one of the following is undertaken without Executive’s express
written consent:




The assignment to Executive of duties or responsibilities that results in a material diminution in
Executive’s authority, duties or responsibilities as in effect immediately prior to the change;
provided, however, that a mere change in Executive’s title or reporting relationships shall not
provide the basis for a Constructive Termination; or




A reduction in Executive’s base salary, as in effect immediately prior to the reduction, unless
such reduction is made pursuant to an across-the-board reduction of the base salaries of all
similarly situated employees of the Company of no more than ten percent (10%); or




 









 








A change in Executive’s business location of more than 35 miles from the business location
immediately prior to the change; or




A material breach by the Company of any provisions of this Agreement or any enforceable written
agreement between the Company and Executive;




Any failure by the Company to obtain assumption of this Agreement by any successor or assign of the
Company.




Termination for Cause.




Parties’ Rights. The Company shall have the right to terminate Executive’s employment with the
Company at any time for Cause.




Severance Benefits. In the event Executive’s employment is terminated at any time with Cause, he
will not be entitled to severance pay, pay in lieu of notice or any other such compensation.




Resignation Without Good Reason.




Parties’ Rights. Executive may resign his employment without Good Reason at any time, after which
no further compensation will be paid to Executive.




Severance Benefits. In the event Executive resigns without Good Reason, he will not be entitled to
severance pay, pay in lieu of notice or any other such compensation.




Death or Disability. If Executive’s employment terminates due to his death or disability, the
Company will continue to pay Executive or his heirs Executive’s then-current base salary for a
period of three (3) months after his termination date, and will pay the COBRA premiums necessary to
continue Executive’s then-current health insurance coverage (if applicable) for a period of three
(3) months after his termination date. Any such payments shall be subject to reimbursement by
Executive or his estate to the Company if Executive or his estate subsequently receive life
insurance or disability insurance payments equal to or greater than such payments through a
Company-sponsored policy.




Post-Employment Consultation.




Consulting Relationship. Upon the termination of Executive’s employment with the Company pursuant
to Section 6.1(b), the Company shall retain Executive as a consultant to be available to render
consulting services in Executive’s area of expertise or special competence for one year
(“Consulting Period”), for up to ten (10) hours each month. The Company shall pay Executive a
monthly amount equal to one-twelfth (1/12th) of his Total Cash Compensation during the last year of
his employment with the Company, whether or not Executive shall be called upon to render any
services in any such month. For purposes of this Agreement, “Total Cash Compensation” shall mean:
(i) Executive’s annual base salary in effect as of the Termination Date; and (ii) a bonus amount
equal to what would have been earned at one hundred percent (100%) of target for the year in which
the Termination Date occurs. Any out-of-pocket expenses which Executive’s consulting activities
for the Company may require will be reimbursed against receipts and vouchers therefor in accordance
with the Company’s policies in force from time to time.




Post-Employment Activities.




If the Company retains Executive as a consultant pursuant to Section 7 above, then the following
restrictions shall apply so long as the Company retains Executive as a consultant:




Noncompetition. Absent the Company’s prior written approval upon instructions of its Chief
Executive Officer, Executive will not directly or indirectly engage in activities (similar or
reasonably related to those in which Executive shall have engaged hereunder during the two years
immediately preceding the termination of Executive’s employment with the Company) nor render
services (similar or reasonably related to those which Executive shall have rendered hereunder
during such two years) in either case to any firm or business organization which directly competes
with the Company in any line of business engaged in (or planned to be engaged in) by the Company,
whether now existing or hereafter established, nor shall Executive engage in such activities nor
render such services to any other person or entity engaged or about to become engaged in such
activities to, for or on behalf of any such firm or business organization, nor shall Executive
entice, induce or encourage any of the company’s other employees to engage in any activity which,
were it done by Executive, would violate any provision of the Proprietary Information Agreement or
this Section 8.




Board Approval. The Company upon instruction of its Chief Executive Officer may give Executive
written approval(s) to engage personally in any activity or render services referred to in Section
8.1 if it secures written assurances (satisfactory to the Company and its counsel) from Executive
and from the prospective employer(s) that the integrity of the Proprietary Information Agreement
will not in any way be jeopardized by such activities, provided the burden of so establishing the
foregoing to the satisfaction of the Company and said counsel shall be upon Executive and his
prospective employer(s).




Section 5.3. The provisions of Section 5.3 shall be applicable to Executive and Executive shall
comply therewith. As applied to such consulting period, the term “any line of business engaged in
(or planned to be engaged in) by the Company”, as used in Section 5.3, shall be applied as at the
date of termination of Executive’s employment.




Change in Control.




 









 








Severance Benefits. If, within two (2) months prior to, or twenty-four (24) months after a Change
in Control (as defined herein) is consummated, Executive’s employment is terminated without Cause
(as defined in Section 6(c) herein) or Executive resigns for Good Reason (as defined in Section
6(c) herein); and if Executive signs a general release of all claims against the Company in the
applicable form set forth in Exhibit D hereto and allows this release to become effective; then the
Company shall provide Executive with the following severance benefits in lieu of any severance
benefits or consulting relationship specified in Sections 6.1, 7 and 8 herein:




Severance Payment. A single lump-sum payment equal to the sum of: (a) eighteen (18) months of
Executive’s annual base salary in effect as of the Termination Date; plus (b) a bonus amount equal
to 1.5 times what would have been earned at one hundred percent (100%) of target for the year in
which the Termination Date occurs. This payment shall be subject to required tax withholdings and
shall be paid within ten (10) business days after Executive’s release of claims becomes effective.




COBRA Benefits. If Executive timely elects continuation of his then-current medical, dental, and
vision insurance benefits under the Consolidated Omnibus Budget Reconciliation Act of 1985
(“COBRA”), the Company shall pay the portion of premiums it paid prior to the Termination Date for
eighteen (18) months after the Termination Date, provided, however, that no such premium payments
shall be made following the effective date of Executive’s coverage by a medical, dental or vision
insurance plan of a subsequent employer. Executive shall notify the Company immediately if he
becomes covered by a medical, dental or vision insurance plan of a subsequent employer.




Stock Option Vesting. Accelerated vesting of any stock options that remain unvested as of the
Termination Date such that any such options shall be deemed vested as of the Termination Date (the
“Accelerated Options”).




Stock Option Exercise. Extension of the exercise period of any vested but unexercised stock
options (including the Accelerated Options) such that Executive shall have a period of one (1) year
after the Termination Date to exercise any such options. (Executive understands and agrees that
the Company makes no representation as to the tax treatment of any options which receive an
extended exercise period).




Company Equipment. Executive shall be allowed to retain his Company laptop computer, Company cell
phone, and Company PDA after the Termination Date, provided that Executive allows the Company to
remove any and all confidential and proprietary information belonging to the Company. Executive
agrees he will not alter, delete, or copy any such information contained on these devices prior to
allowing the Company to remove this information.




Change in Control. For purposes of this Agreement, “Change in Control” is defined as one or more
of the following events:




Sale of Assets. There is consummated a sale or other disposition of all or substantially all of
the assets of the Company (other than a sale to an entity where at least fifty percent (50%) of the
combined voting power of the voting securities of such entity are owned by the stockholders of the
Company in substantially the same proportions as their ownership of the Company immediately prior
to such sale); or




Beneficial Owner. Any person, entity or group (other than the Company, a subsidiary or affiliate
of the Company, or a Company employee benefit plan, including any trustee of such plan acting as
trustee) becomes the beneficial owner, directly or indirectly, of securities of the Company
representing fifty percent (50%) or more of the combined voting power of the Company’s then
outstanding securities other than by virtue of a merger, consolidation or similar transaction; or




Merger. There is consummated a merger, consolidation or similar transaction involving (directly or
indirectly) the Company and, immediately after the consummation of such transaction, the
stockholders immediately prior to the consummation of such transaction do not own, directly or
indirectly, outstanding voting securities representing more than fifty percent (50%) of the
combined outstanding voting power of the surviving entity in such transaction or more than fifty
percent (50%) of the
combined outstanding voting power of the parent of the surviving entity in such transaction.




Parachute Payments.




Best After-Tax Result. If Executive becomes entitled to any payment or benefit from the Company or
otherwise pursuant to a Change in Control (the “Payments”) that would (a) constitute a “parachute
payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the
“Code”), and (b) but for this Section, be subject to the excise tax imposed by Section 4999 of the
Code (the “Excise Tax”), then the aggregate value of such Payments shall be equal to the Reduced
Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payments that would
result in no portion of the Payments being subject to the Excise Tax, or (y) the largest portion,
up to and including the total of the Payments, whichever amount, after taking into account all
applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all
computed at the highest applicable marginal rate, after taking into account the deductibility of
state income taxes against federal income taxes to the extent allowable), results in Executive’s
receipt, on an after-tax basis, of the greater amount




 









 








of the Payments notwithstanding that all or some portion of the Payments may be subject to the
Excise Tax.




Order of Reduction of Parachute Payments. If a reduction in payments or benefits constituting
“parachute payments” is necessary so that the aggregate value of the Payments equals the Reduced
Amount, reduction shall occur in the following order unless Executive elects in writing a different
order (provided, however, that such election shall be subject to Company approval if made on or
after the effective date of the event that triggers the Payments): (a) reduction of cash payments;
(b) cancellation of accelerated vesting of Accelerated Options; and (c) reduction of other employee
benefits provided herein. In the event that acceleration of vesting of Accelerated Options
compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order
of the date of grant of the Accelerated Options (i.e., the earliest granted Accelerated Options
shall be cancelled last) unless Executive elects in writing a different order for cancellation.




Accounting Firm Determination. The accounting firm engaged by the Company for general audit
purposes as of the day prior to the effective date of the Change in Control shall perform the
calculations required under Sections 10.1 and 10.2. If the accounting firm so engaged by the
Company is serving as accountant or auditor for the individual, entity or group effecting the
Change in Control, the Company shall appoint a nationally recognized accounting firm to make the
appropriate determinations. The Company shall bear all expenses with respect to the determinations
by such accounting firm required to be made hereunder. The accounting firm engaged to make the
determinations hereunder shall provide its calculations, together with detailed supporting
documentation, to Executive and the Company within fifteen (15) calendar days after the date on
which Executive’s right to the Payments is triggered (if requested at that time by Executive or the
Company) or such other time as requested by Executive or the Company. If the accounting firm
determines that no Excise Tax is payable with respect to the Payments, either before or after the
application of the Reduced Amount, it shall furnish Executive and the Company with an opinion
reasonably acceptable to Executive that no Excise Tax will be imposed with respect to such
Payments. Any good faith determinations of the accounting firm made hereunder shall be final,
binding and conclusive upon Executive and the Company.




Noninterference.




For two (2) years immediately following the termination of employment hereunder, Executive agrees
not to interfere with the business of the Company by:
Soliciting, attempting to solicit, inducing, or otherwise causing any employee of the Company to
terminate his or her employment in order to become an employee, consultant or independent
contractor to or for any competitor of the Company; or
Directly or indirectly soliciting the business of any customer of the Company, for products or
services competitive with Molecular Devices products or services, which customer at the time of
termination or one year immediately prior thereto was listed on the Company’s customer list.




General Provisions.




Notices. Any notices provided hereunder must be in writing and shall be deemed effective upon the
earlier of personal delivery (including personal delivery by fax) or the third day after mailing by
first class mail, to the Company at its primary office location and to Executive at his address as
listed on the Company payroll.




Severability. Whenever possible, each provision of this Agreement will be interpreted in such
manner as to be effective and valid under applicable law, but if any provision of this Agreement is
held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision
or any other jurisdiction, but this Agreement will be reformed, construed and enforced in such
jurisdiction as if such invalid, illegal or unenforceable provisions had never been contained
herein.




Waiver. If either party should waive any breach of any provisions of this Agreement, he or it
shall not thereby be deemed to have waived any preceding or succeeding breach of the same or any
other provision of this Agreement.




Complete Agreement. This Agreement and its Exhibits, constitute the entire agreement between
Executive and the Company and it is the complete, final, and exclusive embodiment of their
agreement with regard to this subject matter. This Agreement supersedes and replaces the Original
Employment Agreement, the Executive Severance Plan, and the April 2002 Agreement, all of which
shall have no further force or effect. This Agreement is entered into without reliance on any
promise or representation other than those expressly contained herein, and it cannot be modified or
amended except in a writing signed by the Chief Executive Officer.




Counterparts. This Agreement may be executed in separate counterparts, any one of which need not
contain signatures of more than one party, but all of which taken together will constitute one and
the same Agreement.




Headings. The headings of the sections hereof are inserted for convenience only and shall not be
deemed to constitute a part hereof nor to affect the meaning thereof.




 









 








Successors and Assigns. This Agreement is intended to bind and inure to the benefit of and be
enforceable by Executive and the Company, and their respective successors, assigns, heirs,
executors and administrators, except that Executive may not assign any of his duties hereunder and
he may not assign any of his rights hereunder without the written consent of the Company, which
shall not be withheld unreasonably.




Choice of Law. All questions concerning the construction, validity and interpretation of this
Agreement will be governed by the law of the State of California, without regard to conflict of
laws principles.




In Witness Whereof, the parties have executed this Agreement on the day and year first above
written.




Molecular Devices Corporation




	 	 	 	 	 
	By:

	 	/s/ Joseph D. Keegan, Ph.D.	 	 
	

	 	 	 	 
	Date:

	 	December 17, 2004	 	 
	 
	 	 	 	 
	Accepted and agreed this	 	 
	17th day of December, 2004.	 	 
	 
	 	 	 	 
	/s/ Timothy A. Harkness	 	 
	 	 	 
	Timothy A. Harkness	 	 






 









 





EXHIBIT A

Original Employment Agreement




 









 








EXHIBIT B

Executive Severance Plan




 









 








EXHIBIT C

April 2002 Agreement




 









 








EXHIBIT D

Form of Release

(Individual Termination)




     I hereby confirm my obligations under the Company’s proprietary information and inventions
agreement.



     I acknowledge that I have read and understand Section 1542 of the California Civil Code which
reads as follows: “A general release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release, which if known by him must have
materially affected his settlement with the debtor.” I hereby expressly waive and relinquish all
rights and benefits under that section and any law of any jurisdiction of similar effect with
respect to my release of any claims I may have against the Company.



     Except as otherwise set forth in this Release, I hereby release, acquit and forever discharge
the Company, its parents and subsidiaries, and their officers, directors, agents, servants,
employees, shareholders, successors, assigns and affiliates, of and from any and all claims,
liabilities, demands, causes of action, costs, expenses, attorneys fees, damages, indemnities and
obligations of every kind and nature, in law, equity, or otherwise, known and unknown, suspected
and unsuspected, disclosed and undisclosed (other than any claim for indemnification I may have as
a result of any third party action against me based on my employment with the Company), arising out
of or in any way related to agreements, events, acts or conduct at any time up to and including the
date I execute this Release, including, but not limited to: all such claims and demands directly
or indirectly arising out of or in any way connected with my employment with the Company or the
termination of that employment, including but not limited to, claims of intentional and negligent
infliction of emotional distress, any and all tort claims for personal injury, claims or demands
related to salary, bonuses, commissions, stock, stock options, or any other ownership interests in
the Company, vacation pay, fringe benefits, expense reimbursements, severance pay, or any other
form of compensation; claims pursuant to any federal, state or local law or cause of action
including, but not limited to, the federal Civil Rights Act of 1964, as amended; the federal Age
Discrimination in Employment Act of 1967, as amended (“ADEA”); the federal Employee Retirement
Income Security Act of 1974, as amended; the federal Americans with Disabilities Act of 1990; the
California Fair Employment and Housing Act, as amended; tort law; contract law; wrongful discharge;
discrimination; fraud; defamation; emotional distress; and breach of the implied covenant of good
faith and fair dealing; provided, however, that nothing in this paragraph shall be construed in any
way to release the Company from its obligation to indemnify me pursuant to the Company’s
indemnification obligation pursuant to agreement or applicable law.



     I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have
under ADEA. I also acknowledge that the consideration given for the waiver and release in the
preceding paragraph hereof is in addition to anything of value to which I was already entitled. I
further acknowledge that I have been advised by this writing, as required by the ADEA, that: (A)
my waiver and release do not apply to any rights or claims that may arise on or after the date I
execute this Release; (B) I have the right to consult with an attorney prior to executing this
Release; (C) I have twenty-one (21) days to consider this Release (although I may choose to
voluntarily execute this Release earlier); (D) I have seven (7) days following my execution of this
Release to revoke the Release; and (E) this Release shall not be effective until the date upon
which the revocation period has expired, which shall be the eighth (8th) day after I
execute this Release.



	 	 	 	 	 
	 	 	Timothy A. Harkness
	

	 	Name:	 	 
	

	 	 	 	 
	

	 	Date:	 	 
	

	 	 	 	 






 









 






Form of Release

(Group Termination)




     I hereby confirm my obligations under the Company’s proprietary information and inventions
agreement.



     I acknowledge that I have read and understand Section 1542 of the California Civil Code which
reads as follows: “A general release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release, which if known by him must have
materially affected his settlement with the debtor.” I hereby expressly waive and relinquish all
rights and benefits under that section and any law of any jurisdiction of similar effect with
respect to my release of any claims I may have against the Company.



     Except as otherwise set forth in this Release, I hereby release, acquit and forever discharge
the Company, its parents and subsidiaries, and their officers, directors, agents, servants,
employees, shareholders, successors, assigns and affiliates, of and from any and all claims,
liabilities, demands, causes of action, costs, expenses, attorneys fees, damages, indemnities and
obligations of every kind and nature, in law, equity, or otherwise, known and unknown, suspected
and unsuspected, disclosed and undisclosed (other than any claim for indemnification I may have as
a result of any third party action against me based on my employment with the Company), arising out
of or in any way related to agreements, events, acts or conduct at any time up to and including the
date I execute this Release, including, but not limited to: all such claims and demands directly
or indirectly arising out of or in any way connected with my employment with the Company or the
termination of that employment, including but not limited to, claims of intentional and negligent
infliction of emotional distress, any and all tort claims for personal injury, claims or demands
related to salary, bonuses, commissions, stock, stock options, or any other ownership interests in
the Company, vacation pay, fringe benefits, expense reimbursements, severance pay, or any other
form of compensation; claims pursuant to any federal, state or local law or cause of action
including, but not limited to, the federal Civil Rights Act of 1964, as amended; the federal Age
Discrimination in Employment Act of 1967, as amended (“ADEA”); the federal Employee Retirement
Income Security Act of 1974, as amended; the federal Americans with Disabilities Act of 1990; the
California Fair Employment and Housing Act, as amended; tort law; contract law; wrongful discharge;
discrimination; fraud; defamation; emotional distress; and breach of the implied covenant of good
faith and fair dealing; provided, however, that nothing in this paragraph shall be construed in any
way to release the Company from its obligation to indemnify me pursuant to the Company’s
indemnification obligation pursuant to agreement or applicable law.



     I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have under
ADEA. I also acknowledge that the consideration given for the waiver and release in the preceding
paragraph hereof is in addition to anything of value to which I was already entitled. I further
acknowledge that I have been advised by this writing, as required by the ADEA, that: (A) my waiver
and release do not apply to any rights or claims that may arise on or after the date I execute this
Release; (B) I have the right to consult with an attorney prior to executing this Release; (C) I
have forty-five (45) days to consider this Release (although I may choose to voluntarily execute
this Release earlier); (D) I have seven (7) days following my execution of this Release to revoke
the Release; (E) this Release shall not be effective until the date upon which the revocation
period has expired, which shall be the eighth day (8th) after I execute this Release; and (F) I
have received with this Release a detailed list of the job titles and ages of all employees who
were terminated in this group termination and the ages of all employees of the Company in the same
job classification or organizational unit who were not terminated.



	 	 	 	 	 	 	 
	 	 	 	 	Timothy A. Harkness
	

	 	 	 	Name:	 	 
	

	 	 	 	 	 	 
	 

	 	 	 	Date: