exv10w54



 







Exhibit 10.54




INDEPENDENT CONTRACTOR SERVICES AGREEMENT



This Agreement is made as of July 28, 2006, (“Effective Date”) by and between Solexa,
Inc. and its successors or assignees (“Company”) and the undersigned Joseph E. Whitters
(“Contractor”).



1.1. Engagement of Services. Company may from time to time submit a Statement of
Work (“SOW”) to Contractor substantially in the form of Exhibit A to this Agreement. Subject to the
terms of this Agreement, Contractor will provide the services set forth in each SOW accepted by
Contractor (the “Project(s)”) by the completion dates set forth therein. The manner and means that
Contractor chooses to complete the Projects are in Contractor’s sole discretion and control.
Contractor shall perform the services necessary to complete the Projects in a timely and
professional manner consistent with industry standards and at a location, place and time that
Contractor deems appropriate. In completing the Projects, Contractor agrees to provide its own
equipment, tools, and other materials at its own expense; however, Company will make its facilities
and equipment available to Contractor when necessary.



2. Compensation.




     2.1 Fees. Company will pay Contractor the fee specified in each SOW as Contractor’s sole
compensation for the Project, provided such Project meets the terms of the SOW and this Agreement
and is of a quality consistent with industry standards. Contractor shall be responsible for all
expenses incurred in performing services under this Agreement, except as set forth in the SOW. Upon
termination of this Agreement for any reason prior to completion of an SOW, Company will pay
Contractor fees and expenses on the basis stated in the SOW for work which is then in progress,
within thirty (30) days of the later of Contractor’s invoice and the effective date of such
termination.



     2.2 Invoicing. Unless otherwise provided in the applicable SOW, (a) payment to Contractor of
undisputed fees will be due thirty (30) days following Company’s receipt of an invoice which
contains accurate records of the work performed sufficient to document the invoiced fees; and (b)
Contractor will submit invoices to Company upon completion of the milestones specified in the
applicable SOW or, if no such milestones are specified, on a monthly basis for services performed
in the previous month.


3. Independent Contractor Relationship. Contractor’s relationship with Company will be
that of an independent contractor, and nothing in this Agreement should be construed to create a
partnership, joint venture, or employer-employee relationship. Contractor (a) is not the agent of
Company; (b) is not authorized to make any representation, contract, or commitment on behalf of
Company; (c) will not be entitled to any of the benefits that Company makes available to its
employees, such as group insurance, profit-sharing or retirement benefits (and waives the right to
receive any such benefits); and (d) will be solely responsible for all tax returns and payments
required to be filed with or made to any federal, state, or local tax authority with respect to
Contractor’s performance of services and receipt of fees under this Agreement. If applicable,
Company will report amounts paid to Contractor by filing Form 1099-MISC with the Internal Revenue
Service, as required by law. Contractor agrees to accept exclusive liability for complying with all
applicable state and federal laws, including laws governing self-employed individuals, if
applicable, such as laws related to payment of taxes, social security, disability, and other
contributions based on fees paid to Contractor under this Agreement. Company will not withhold or
make payments for social security, unemployment insurance or disability insurance contributions, or
obtain workers’ compensation insurance on Contractor’s behalf. Contractor hereby agrees to
indemnify and defend Company against any and all such taxes or contributions, including penalties
and interest. Contractor agrees to provide proof of payment of appropriate taxes on any fees paid
to Contractor under this Agreement upon reasonable request of Company.



4. Intellectual Property Rights.




     4.1 Confidential Information. Contractor agrees that during the term of this Agreement and
thereafter, except as expressly authorized in writing by the Chief Executive Officer (the “CEO”) of
Company, it (a) will not use or permit the use of Confidential Information (defined below) in any
manner or for any purpose not expressly set forth in this Agreement; (b) will not disclose, lecture
upon, publish, or permit others to disclose, lecture upon, or publish any such Confidential
Information to any third party without first obtaining the CEO’s express written consent on a
case-by-case basis; (c) will limit access to Confidential Information to Contractor personnel who
need to know such information in connection with their work for Company; and (d) will not remove
any tangible embodiment of any Confidential Information from Company’s premises without Company’s
prior written consent. “Confidential Information” includes, but is not limited to, all information
related to Company’s business and its actual or anticipated research and development, including
without limitation (i) trade secrets, inventions, ideas, processes, computer source and object
code, formulae, data, programs, other works of authorship, know-how, improvements, discoveries,
developments, designs, and techniques; (ii) information regarding products or plans for research
and development, marketing and business plans, budgets, financial statements, contracts, prices,
suppliers, and customers; (iii) information regarding the skills and compensation of Company’s
employees, contractors, and any other service providers of Company; (iv) the existence of any
business discussions, negotiations, or agreements between Company and any third party; and (v) all
such information related to any third party that is disclosed to Company or to Contractor during
the course of Company’s business (“Third



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Party Information”). Notwithstanding the foregoing, it is understood that Contractor is free
to use information which is generally known in the trade or industry, information which is not
gained as a result of a breach of this Agreement, and Contractor’s own skill, knowledge, know-how,
and experience.




     4.2 Competitive or Conflicting Engagements. Contractor agrees, during the term of this
Agreement, not to enter into a contract or accept an obligation that is inconsistent or
incompatible with Contractor’s obligations under this Agreement. Contractor warrants that there is
no such contract or obligation in effect as of the Effective Date. Contractor further agrees not to
disclose to Company, bring onto Company’s premises, or induce Company to use any confidential
information that belongs to anyone other than Company or Contractor. In addition, Contractor agrees
that, during the term of this Agreement, it will not perform, or agree to perform, any services for
any third party that engages, or plans to engage, in any business or activity competitive with that
of Company.



     4.3 Inventions and Intellectual Property Rights. As used in this Agreement, the term
“Invention” means any ideas, concepts, information, materials, processes, data, programs, know-how,
improvements, discoveries, developments, designs, artwork, formulae, other copyrightable works, and
techniques and all Intellectual Property Rights therein. The term “Intellectual Property Rights”
means all trade secrets, copyrights, trademarks, mask work rights, patents and other intellectual
property rights recognized by the laws of any country.



     4.4 Background Technology. As used in this Agreement, the term “Background Technology” means
all Inventions developed by Contractor other than in the course of providing services to Company
hereunder and all Inventions acquired or licensed by Contractor that Contractor uses in performing
services under this Agreement or incorporates into Work Product (defined below). Contractor will
disclose any Background Technology in the SOW in which Contractor proposes to use or incorporate
such Background Technology. If no Background Technology is disclosed in an SOW, Contractor
warrants that it will not use Background Technology or incorporate it into Work Product provided
pursuant thereto. Notwithstanding the foregoing, Contractor agrees that it will not incorporate
into Work Product or otherwise deliver to Company any software code licensed under the GNU GPL or
LGPL or any other license that by its terms requires, or conditions the use or distribution of such
code on, the disclosure, licensing, or distribution of the Work Product or any source code owned or
licensed by the Company.



     4.5 License to Background Technology. Contractor hereby grants to Company a non-exclusive,
perpetual, fully-paid and royalty-free, irrevocable and world-wide right, with rights to sublicense
through multiple levels of sublicensees, to reproduce, make derivative works of, distribute,
publicly perform, and publicly display in any form or medium, whether now known or later developed,
make, have made, use, sell, import, offer for sale, and exercise any and all present or future
rights in the Background Technology incorporated or used in Work Product for the purpose of
developing and marketing Company products.



     4.6 Disclosure of Work Product. As used in this Agreement, the term “Work Product” means any
Invention that is solely or jointly conceived, made, reduced to practice, or learned by Contractor
in the course of any services performed for Company or with the use of materials of Company during
the term of this Agreement. Contractor agrees to disclose promptly in writing to Company, or any
person designated by Company, all Work Product.



     4.7 Ownership of Work Product. Contractor agrees that any and all Work Product shall be the
sole and exclusive property of Company.



     4.8 Assignment of Work Product. If Contractor has any rights to the Work Product that are not
owned by Company upon creation or embodiment, Contractor irrevocably assigns to Company all right,
title and interest worldwide in and to such Work Product. Except as set forth below, Contractor
retains no rights to use the Work Product and agrees not to challenge the validity of Company’s
ownership in the Work Product.



     4.9 Waiver or Assignment of Other Rights. If Contractor has any rights to the Work Product
that cannot be assigned to Company, Contractor unconditionally and irrevocably waives the
enforcement of such rights, and all claims and causes of action of any kind against Company with
respect to such rights, and agrees, at Company’s request and expense, to consent to and join in any
action to enforce such rights. If Contractor has any right to the Work Product that cannot be
assigned to Company or waived by Contractor, Contractor unconditionally and irrevocably grants to
Company during the term of such rights, an exclusive, irrevocable, perpetual, worldwide, fully paid
and royalty-free license, with rights to sublicense through multiple levels of sublicensees, to
reproduce, make derivative works of, distribute, publicly perform and publicly display in any form
or medium, whether now known or later developed, make, use, sell, import, offer for sale and
exercise any and all such rights.



     4.10 Assistance. Contractor agrees to assist Company in every way, both during and after the
term of this Agreement, to obtain and enforce United States and foreign Intellectual Property
Rights relating to Work Product in all countries. In the event Company is unable to secure
Contractor’s signature on any document needed in connection with such purposes, Contractor hereby
irrevocably designates and appoints Company and its duly authorized officers and agents as its
agent and attorney in fact, which appointment is coupled with an interest, to act on its behalf to
execute and file any such documents and to do all other lawfully permitted acts



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to further such purposes with the same legal force and effect as if executed by Contractor.



5. Contractor Representations and Warranties. Contractor hereby represents and warrants
that (a) the Work Product will be an original work of Contractor and any third parties will have
executed assignment of rights reasonably acceptable to Company prior to being allowed to
participate in the development of the Work Product; (b) the Work Product will fully conform to the
requirements and terms set forth in the SOW; (c) neither the Work Product nor any element thereof
will infringe or misappropriate the Intellectual Property Rights of any third party; (d) neither
the Work Product nor any element thereof will be subject to any restrictions or to any mortgages,
liens, pledges, security interests, or encumbrances; (e) Contractor will not grant, directly or
indirectly, any rights or interest whatsoever in the Work Product to third parties; (f) Contractor
has full right and power to enter into and perform this Agreement without the consent of any third
party; (g) Contractor has an unqualified right to grant the license to all Background Technology as
set forth in the section titled “License to Background Technology” to Company; (h) Contractor will
comply with all laws and regulations applicable to Contractor’s obligations under this Agreement;
and (i) should Company permit Contractor to use any of Company’s equipment, or facilities during
the term of this Agreement, such permission shall be gratuitous and Contractor shall be responsible
for any injury to any person (including death) or damage to property arising out of use of such
equipment or facilities.



6. Indemnification. Contractor will indemnify and hold harmless Company, its officers,
directors, employees, sublicensees, customers and agents from any and all claims, losses,
liabilities, damages, expenses and costs (including attorneys’ fees and court costs) which result
from a breach or alleged breach of any representation or warranty of Contractor (a “Claim”) in this
Agreement or any intentional misconduct or negligence by Contractor or any of its subcontractors,
employees, or agents in performing services under this Agreement. From the date of written notice
from Company to Contractor of any such Claim, Company shall have the right to withhold from any
payments due Contractor under this Agreement the amount of any defense costs, plus additional
reasonable amounts as security for Contractor’s obligations under this section.



7. Termination.




     7.1 Termination without Cause. Company may terminate this Agreement without cause at its
convenience upon fifteen (15) days’ prior written notice to Contractor. Contractor may terminate
this Agreement at any time that there is no uncompleted SOW in effect upon fifteen (15) days’ prior
written notice to Company. Company will pay Contractor only those fees and expenses related to
services actually performed during such notice period, as specified in the SOW.



     7.2 Termination with Cause. Either party may terminate this Agreement immediately in the
event that the other party has materially breached the Agreement and fails to cure such breach
within fifteen (15) days of receipt of notice by the non-breaching party, setting forth in
reasonable detail the nature of the breach. Company may also terminate this Agreement immediately
in its sole discretion in the event of Contractor’s material breach of the section titled
“Intellectual Property Rights.” Company will pay Contractor only those fees and expenses related
to services actually performed during such notice period, as specified in the SOW.



     7.3 Return of Company Property. Upon termination of the Agreement or upon Company’s request at
any other time, Contractor will deliver to Company all of Company’s property, equipment, and
documents, together with all copies thereof, and any other material containing or disclosing any
Work Product, Third Party Information or Confidential Information of Company and certify to Company
in writing that Contractor has fully complied with this obligation Contractor further agrees that
any property situated on Company’s premises and owned by Company is subject to inspection by
Company personnel at any time with or without notice.



     7.4 Survival. The following provisions shall survive termination of this Agreement: Sections
titled “Intellectual Property Rights,” “Contractor Representations and Warranties,”
“Indemnification,” “Return of Company Property,” “Survival,” and “General Provisions.”


8. Multi-Employee Contractor. If Contractor will be hiring employees or agents to provide
services pursuant to this Agreement, Contractor must obtain Company’s prior written consent to such
hiring, and before any Contractor employee or agent performs services in connection with this
Agreement or has access to Confidential Information, the employee or agent and Contractor must have
entered into a binding written agreement expressly for the benefit of Company that contains
provisions substantially equivalent to the sections of this Agreement titled “Engagement of
Services” and “Intellectual Property Rights.” At Company’s request, Contractor will provide
Company with copies of such agreements. Company reserves the right to refuse or limit Contractor’s
use of any employee or agent or to require Contractor to remove any employee or agent already
engaged in the performance of the services. Company’s exercise of such right will in no way limit
Contractor’s obligations under this Agreement. Contractor agrees (a) that its employees and agents
shall not be entitled to or eligible for any benefits that Company may make available to its
employees; (b) to limit access to the Confidential Information to employees or agents of Contractor
who have a reasonable need to have such access in order to perform the services pursuant to this
Agreement; and (c) to be solely responsible for all expenses incurred by any of its employees or
agents in performing the services or otherwise performing its obligations under this Agreement,
except as set forth in the SOW.




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9. General Provisions.




     8.1 Governing Law and Venue. This Agreement and any action related thereto will be governed,
controlled, interpreted, and defined by and under the laws of the State of California, without
giving effect to any conflicts of laws principles that require the application of the law of a
different state. Contractor hereby expressly consents to the personal jurisdiction and venue in
the state and federal courts for the county in which Company’s principal place of business is
located for any lawsuit filed there against Contractor by Company arising from or related to this
Agreement.



     9.2 Severability. If any provision of this Agreement is, for any reason, held to be invalid or
unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or
unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum
extent permitted by law.



     9.3 No Assignment. This Agreement, and Contractor’s rights and obligations herein, may not be
assigned, subcontracted, delegated, or otherwise transferred by Contractor without Company’s prior
written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of
the foregoing will be null and void. The terms of this Agreement shall be binding upon assignees.



     9.4 Notices. Each party must deliver all notices or other communications required or permitted
under this Agreement in writing to the other party at the address listed on the signature page, by
courier, by certified or registered mail (postage prepaid and return receipt requested), or by a
nationally-recognized express mail service. Notice will be effective upon receipt or refusal of
delivery. If delivered by certified or registered mail, any such notice will be considered to have
been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered
by courier or express mail service, any such notice shall be considered to have been given on the
delivery date reflected by the courier or express mail service receipt. Each party may change its
address for receipt of notice by giving notice of such change to the other party.



     9.5 Injunctive Relief. Contractor acknowledges that, because its services are personal and
unique and because Contractor will have access to Confidential Information of Company, any breach
of this Agreement by Contractor would cause irreparable injury to Company for which monetary
damages would not be an adequate remedy and, therefore, will entitle Company to injunctive relief
(including specific performance). The rights and remedies provided to each party in this Agreement
are cumulative and in addition to any other rights and remedies available to such party at law or
in equity.



     9.6 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion
will not be deemed a waiver of any other provision or of such provision on any other occasion.



     9.7 Export. Contractor agrees not to export, directly or indirectly, any U.S. technical data
acquired from Company or any products utilizing such data, to countries outside the United States,
because such export could be in violation of the United States export laws or regulations.



     9.8 Entire Agreement. This Agreement, together with the Nondisclosure Agreement dated as of
May 16, 2006, is the final, complete and exclusive agreement of the parties with respect to the
subject matters hereof and supersedes and merges all prior discussions between the parties with
respect to such subject matters. No modification of or amendment to this Agreement, or any waiver
of any rights under this Agreement, will be effective unless in writing and signed by Contractor
and CEO of the Company. The terms of this Agreement will govern all SOWs and services undertaken by
Contractor for Company. In the event of any conflict between this Agreement and a SOW, the terms of
the SOW shall govern, but only with respect to the services set forth therein.




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In Witness Whereof, the parties have caused this Independent Contractor Services Agreement
to be executed by their duly authorized representatives.




	 	 	 	 	 	 	 	 	 
	Company:	 	 	 	Contractor:
	/s/
John West 
	 	 	 	/s/ Joseph E. Whitters 	 	 
	 	 	 	 	 
	(Signature)	 	 	 	(Signature)
	 
	 	 	 	 	 	 	 	 
	By: John West

	 	 	 	By:	 	/s/ Joseph E. Whitters 
	 	 	 	 	 	 	 
	Title: CEO
Address: 25861 Industrial Blvd. / Hayward, CA 94545

	 	 	 	Title:	 	 
	 
		 	 	 	Address:	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	If Contractor is a natural person, Contractor must provide the
following information for copyright registration purposes only:
	 
	 	 	 	 	Date of Birth:	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	Nationality or Domicile:	 	 
	 

	 	 	 	 	 	 	 	 






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EXHIBIT A




Statement of Work



This Statement of Work (“SOW”) is incorporated into the Independent Contractor Services Agreement
by and between Company and Contractor. This SOW describes services and Work Product to be
performed and provided by Contractor pursuant to the Agreement. If any item in this SOW is
inconsistent with the Agreement prior to such incorporation, the terms of this SOW will control,
but only with respect to the services to be performed under this SOW.




1. Scope of Services:




     a. Participating in the activities of and advising Company’s Audit Committee of the Board of
Directors, although not as a member of this committee.



     b. Other financial consulting projects as agreed with Company executive management.



     This Agreement does not cover matters related to Contractor’s activities as a member of
Company’s Board of Directors of committees of the Board of Directors, for which Contractor will be
compensated as a Company director.


2. Payment of Fees. Fee will be payable in Company common stock; management will recommend to the
Compensation Committee of the Company’s Board of Directors that Contractor be issued a grant of
7,500 shares of unvested restricted stock to be vested based on fees earned as described below.




For participation in the activities of and advising Company’s Audit Committee of the Board of Directors:




	 	•	 	Monthly retainer fee of $625.00; plus
	 
	 	•	 	Per meeting fees of:






	 	o	 	$1,000.00 for in-person meetings on the same day as a board meeting
	 
	 	o	 	$2,000.00 for other in-person meetings
	 
	 	o	 	$500.00 for telephonic meetings on the same day as a board meeting
	 
	 	o	 	$1,000.00 for other telephonic meetings




For other financial consulting projects: Time and materials at a rate: $312.50 per hour, up to the
greater of time spent on working on Company matters or a maximum of $2,500.00 per travel day if
travel is in excess of eight hours. Fee invoiced by Contractor at the rates set forth below.



In no event will Company compensate Contractor under this consulting contract in an amount greater
than $60,000.00 (sixty thousand dollars) in any twelve month period while Consultant is a member
of Company’s board of directors. Compensation refers to the market value of restricted stock on
the date of vesting plus any cash payments.



 




3. Expenses. Company will reimburse Contractor for the following expenses: traveling to Solexa
arranged meetings, phone and other incidental expenses related to consulting activities




      



4. Duration: Cancellable at 30 days notice by either party, or immediately if Contractor joins the
Audit Committee of the Company’s Board of Directors.




          Background Technology Disclosure. None




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 
	Signed:
	 	/s/ John West 	 	 	 	/s/ Joseph E. Whitters 	 	 
	 

	 	 

Chief Executive Officer, Solexa, Inc.
	 	 
	 	Contractor
	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Dated:

	 	August 2, 2006 	 	 	 	Dated:	 	8/2/06