Exhibit 10.39


 


EMPLOYMENT AGREEMENT


 


THIS EMPLOYMENT AGREEMENT
(“Agreement”) between Ciphergen Biosystems, Inc., a Delaware corporation
(the “Company”) and Gail Page (“Executive,” and together with the Company,
the “Parties”) is effective as of December 31, 2005 (the “Effective Date”).


 


WHEREAS, the Company
desires to employ Executive as President
and Chief Executive Officer of the Company and Executive is willing to
accept such employment by the Company on the terms and subject to the
conditions set forth in this Agreement.


 


NOW, THEREFORE, the
Parties agree as follows:


 


1.                                       Position. The Company will employ Executive as President and Chief Executive Officer
of Ciphergen Biosystems, Inc.. In this position, Executive will be
expected to devote Executive’s full business time, attention and energies to
the performance of Executive’s duties with the Company. Executive may devote
time to outside Board or advisory positions as pre-approved by the Board of
Directors of Ciphergen Biosystems, Inc. Executive will render such
business and professional services in the performance of such duties,
consistent with Executive’s position within the Company, as shall be reasonably
assigned to Executive by the Company’s 
Board of Directors.


 


2.                                       Compensation. The Company will pay Executive a base salary of $350,000 on an
annualized basis, payable in accordance with the Company’s standard payroll
policies, including compliance with applicable tax withholding requirements. In
addition, Executive will be eligible for a bonus of up to 50% of Executive’s base salary for achievement of reasonable
performance-related goals to be defined by the Company’s CEO or Board of
Directors. The exact payment terms of a bonus, if any, are to be set by the
Compensation Committee of the Board of Directors, in its sole discretion. Additionally,
the Executive will receive 400,000 options, vested monthly over 48 months, at a
grant price of $0.90.


 


3.                                       Benefits. During the term of Executive’s employment, Executive will be entitled to
the Company’s standard benefits covering employees at Executive’s level,
including the Company’s group medical, dental, vision and term life insurance
plans, section 125 plan, employee stock purchase plan and 401(k) plan, as
such plans may be in effect from time to time, subject to the Company’s
right to cancel or change the benefit plans and programs it offers to its
employees at any time. In addition, the Executive will receive an annual car
allowance or support not to exceed $16,000 per year.


 


4.                                       At-Will Employment. Executive’s employment with the Company is for
an unspecified duration and constitutes “at-will” employment. This employment
relationship may be terminated at any time, with or without good cause or
for any or no cause, at the option either of the Company or Executive, with or
without notice.


 


5.                                       Termination without Cause or for Good Reason. In the event the Company terminates Executive’s
employment for reasons other than for Cause (as defined below) or Executive
terminates her employment for Good Reason (as defined below), and provided that
Executive signs


 





















 


and
does not revoke a standard release of all claims against the Company, and does
not breach any provision of this Agreement (including but not limited to Section 10
and Section 11 hereof) or the PIIA, as hereinafter defined, Executive
shall be entitled to receive:


 


(i)                                     continued payment of Executive’s base salary as
then in effect for a period of twelve (12) months following the date of
termination (the “Severance Period”), to be paid periodically in accordance with
the Company’s standard payroll practices;


 


(ii)                                  immediate, accelerated vesting of 24 months of any
options previously granted by the Company to Executive; additionally, Executive
will have a 24-month period following the date of termination to exercise any
or all of her vested options; and


 


(ii)                                  continuation of Company health and dental
benefits through COBRA premiums paid by the Company directly to the COBRA
administrator during the Severance Period; provided, however, that such premium
payments shall cease prior to the end of the Severance Period if Executive
commences other employment with reasonably comparable or greater health and
dental benefits.


 


Executive will not be eligible for any bonus or other benefits not
described above after termination, except as may be required by law.


 


6.                                       Termination After Change of Control. If Executive’s employment is terminated by the
Company for reasons other than for Cause (as defined below) or by Executive for
Good Reason (as defined below) within the 12 month period following a Change of
Control (as defined below), then, in
addition to the severance obligations due to Executive under paragraph 5 above,
100% of any then-unvested shares under Company stock options then held by
Executive will vest upon the date of such termination and the period of time
for their exercise will be at the discretion of the Company. It may very
well be necessary for the Executive to exercise such shares on the day of
Change in Control.


 


7.                                       Definitions. For purposes of this Agreement:


 


a.                                       “Cause”
means termination of employment by reason of Executive’s: (i) material
breach of this Agreement, the PIIA (as hereinafter defined) or any other
confidentiality, invention assignment or similar agreement with the Company; (ii) repeated
negligence in the performance of duties or nonperformance or misperformance of
such duties that in the good faith judgment of the Board of Directors of the
Company adversely affects the operations or reputation of the Company; (iii) refusal
to abide by or comply with the good faith directives of the Company’s CEO or
Board of Directors or the Company’s standard policies and procedures, which
actions continue for a period of at least ten (10) days after written
notice from the Company; (iv) violation or breach of the Company’s Code of
Ethics, Financial Information Integrity Policy, Insider Trading Compliance
Program, or any other similar code or policy adopted by the Company and
generally applicable to the Company’s employees, as then in effect; (v) willful
dishonesty, fraud, or misappropriation of funds or property with respect to the
business or affairs of the Company; (vi) conviction by, or entry of a plea
of guilty or nolo contendere in, a court of competent and final jurisdiction
for any crime which


 


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constitutes a felony in
the jurisdiction involved; or (vii) abuse of alcohol or drugs (legal or
illegal) that, in the Board of Director’s reasonable judgment, materially
impairs Executive’s ability to perform Executive’s duties.


 


b.                                      “Change
of Control” means (i) after the date hereof, any “person” (as such term is
used in Sections 13(d) and 14(d) of the Securities Exchange Act of
1934, as amended (the “Exchange Act”)) becomes the “beneficial owner” (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 50% or more of the total voting power
represented by the Company’s then outstanding voting securities; or (ii) the
date of the consummation of a merger or consolidation of the Company with any
other corporation or entity that has been approved by the stockholders of the
Company, other than a merger or consolidation that would result in the voting
securities of the Company outstanding immediately prior thereto continuing to
represent more than fifty percent (50%) of the total voting power represented
by the voting securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or (iii) the date of the
consummation of the sale or disposition of all or substantially all of the
Company’s assets.


 


c.                                       “Good
Reason” means, without Executive’s consent, (i) a material and adverse
change in Executive’s duties (excluding any changes in such duties resulting
from the Company becoming part of a larger entity pursuant to a Change of
Control) or base salary, or (ii) Executive being required to relocate to
an office location more than 50 miles from Executive’s current office in
Austin, Texas. Should Executive be
required and agree to relocate from current office in Austin, Texas, all
reasonable moving expenses to relocate Executive’s office and private residence
shall be paid for and billed directly to Company.


 


8.                                       Employment, Confidential Information and Invention
Assignment Agreement. As a
condition of Executive’s employment, Executive shall complete, sign and return
the Company’s standard form of Proprietary Information and Inventions
Agreement (the “PIIA”).


 


9.                                       Non-Contravention. Executive represents to the Company that
Executive’s signing of this Agreement, the PIIA, the issuance of stock options
to Executive, and Executive’s commencement of employment with the Company does
not violate any agreement Executive has with Executive’s previous employer and
Executive’s signature confirms this representation.


 


10.                                 Conflicting Employment. Executive agrees that, during the term of
Executive’s employment with the Company and during the Severance Period,
Executive will not engage in any other employment, occupation, consulting or
other business activity competitive with or directly related to the business in
which the Company is now involved or becomes involved during the term of
Executive’s employment, nor will Executive engage in any other activities that
conflict with Executive’s obligations to the Company. Executive acknowledges
that compliance with the obligations of this paragraph is a condition to
Executive’s right to receive the severance payments set forth in paragraph 5 above.


 


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11.                                 Nonsolicitation. From the date of this Agreement until 12 months after the termination of
this Agreement (the “Restricted Period”), Executive will not, directly or
indirectly, solicit or encourage any employee or contractor of the Company or
its affiliates to terminate employment with, or cease providing services to,
the Company or its affiliates. During the Restricted Period, Executive will
not, whether for Executive’s own account or for the account of any other
person, firm, corporation or other business organization, solicit or interfere
with any person who is or during the period of Executive’s engagement by the
Company was a collaborator, partner, licensor, licensee, vendor, supplier,
customer or client of the Company or its affiliates to the Company’s detriment.
Executive acknowledges that compliance with the obligations of this paragraph
is a condition to Executive’s right to receive the severance payments set forth
in paragraph 5 above.


 


12.                                 Arbitration and Equitable Relief.


 


a.                                       In
consideration of Executive’s employment with the Company, its promise to
arbitrate all employment-related disputes and Executive’s receipt of the
compensation and other benefits paid to Executive by the Company, at present
and in the future, EXECUTIVE AGREES THAT ANY AND ALL CONTROVERSIES, CLAIMS, OR
DISPUTES WITH ANYONE (INCLUDING THE COMPANY AND ANY EMPLOYEE, OFFICER,
DIRECTOR, STOCKHOLDER OR BENEFIT PLAN OF THE COMPANY IN THEIR CAPACITY AS SUCH
OR OTHERWISE) ARISING OUT OF, RELATING TO, OR RESULTING FROM EXECUTIVE’S
EMPLOYMENT WITH THE COMPANY OR THE TERMINATION OF EXECUTIVE’S EMPLOYMENT WITH
THE COMPANY, INCLUDING ANY BREACH OF THIS AGREEMENT, SHALL BE SUBJECT TO
BINDING ARBITRATION UNDER THE ARBITRATION RULES SET FORTH IN CALIFORNIA
CODE OF CIVIL PROCEDURE SECTION 1280 THROUGH 1294.2, INCLUDING SECTION 1283.05
(THE “RULES”) AND PURSUANT TO CALIFORNIA LAW. Disputes which Executive agrees
to arbitrate, and thereby agree to waive any right to a trial by jury, include
any statutory claims under state or federal law, including, but not limited to,
claims under Title VII of the Civil Rights Act of 1964, the Americans with
Disabilities Act of 1990, the Age Discrimination in Employment Act of 1967, the
Older Workers Benefit Protection Act, the California Fair Employment and
Housing Act, the California Labor Code, claims of harassment, discrimination or
wrongful termination and any statutory claims. Executive further understands
that this agreement to arbitrate also applies to any disputes that the Company may have
with Executive.


 


b.                                      Executive
agrees that any arbitration will be administered by the American Arbitration
Association (“AAA”) and that the neutral arbitrator will be selected in a
manner consistent with its National Rules for the Resolution of Employment
Disputes. Executive agrees that the arbitrator shall have the power to decide
any motions brought by any party to the arbitration, including motions for
summary judgment and/or adjudication and motions to dismiss and demurrers,
prior to any arbitration hearing. Executive also agrees that the arbitrator
shall have the power to award any remedies, including attorneys’ fees and
costs, available under applicable law. Executive understands the Company will
pay for any administrative or hearing fees charged by the arbitrator or


 


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AAA except that Executive
shall pay the first $125.00 of any filing fees associated with any arbitration
Executive initiates. Executive agrees that the arbitrator shall administer and
conduct any arbitration in a manner consistent with the Rules and that to
the extent that the AAA’s National Rules for the Resolution of Employment
Disputes conflict with the Rules, the Rules shall take precedence. Executive
agrees that the decision of the arbitrator shall be in writing.


 


c.                                       Except
as provided by the Rules and this Agreement, arbitration shall be the
sole, exclusive and final remedy for any dispute between Executive and the
Company. Accordingly, except as provided for by the Rules and this
Agreement, neither Executive nor the Company will be permitted to pursue court
action regarding claims that are subject to arbitration. Notwithstanding, the
arbitrator will not have the authority to disregard or refuse to enforce any
lawful company policy, and the arbitrator shall not order or require the
Company to adopt a policy not otherwise required by law which the Company has
not adopted.


 


d.                                      In
addition to the right under the Rules to petition the court for
provisional relief, Executive agrees that any party may also petition the
court for injunctive relief where either party alleges or claims a violation of
the PIIA between Executive and the Company or any other agreement regarding
trade secrets, confidential information, nonsolicitation or Labor Code §2870. Executive
understands that any breach or threatened breach of such an agreement will
cause irreparable injury and that money damages will not provide an adequate
remedy therefor and both parties hereby consent to the issuance of an
injunction. In the event either party seeks injunctive relief, the prevailing
party shall be entitled to recover reasonable costs and attorneys fees.


 


e.                                       Executive
understands that this Agreement does not prohibit Executive from pursuing an
administrative claim with a local, state or federal administrative body such as
the Department of Fair Employment and Housing, the Equal Employment Opportunity
Commission or the Workers’ Compensation Board. This Agreement does, however,
preclude Executive from pursuing court action regarding any such claim.


 


f.                                         Executive
acknowledges and agrees that Executive is executing this Agreement voluntarily
and without any duress or undue influence by the Company or anyone else. Executive
further acknowledges and agrees that Executive has carefully read this
Agreement and that Executive has asked any questions needed for Executive to
understand the terms, consequences and binding effect of this Agreement and
fully understand it, including that Executive is waiving Executive’s right to a
jury trial. Finally, Executive agrees that Executive has been provided an
opportunity to seek the advice of an attorney of Executive’s choice before
signing this Agreement.


 


13.                                 Successors of the Company. The rights and obligations of the Company under
this Agreement shall inure to the benefit of, and shall be binding upon, the
successors and assigns of the Company. This Agreement shall be assignable by
the Company in the event of a merger or similar transaction in which the
Company is not the surviving entity, or of a sale of all or substantially all
of the Company’s assets.


 


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14.                                 Enforceability; Severability. If any provision of this Agreement shall be
invalid or unenforceable, in whole or in part, such provision shall be deemed
to be modified or restricted to the extent and in the manner necessary to
render the same valid and enforceable, or shall be deemed excised from this
Agreement, as the case may require, and this Agreement shall be construed
and enforced to the maximum extent permitted by law as if such provision had
been originally incorporated herein as so modified or restricted, or as if such
provision had not been originally incorporated herein, as the case may be.


 


15.                                 Governing Law. This Agreement shall be construed and enforced in accordance with the
laws of the State of Texas without giving effect to Texas’s choice of law rules.
This Agreement is deemed to be entered into entirely in the State of Texas. This
Agreement shall not be strictly construed for or against either party.


 


16.                                 No Waiver. No waiver of any term of this Agreement constitutes a waiver of any
other term of this Agreement.


 


17.                                 Amendment To This Agreement. This Agreement may be amended only in
writing by an agreement specifically referencing this Agreement, which is
signed by both Executive and an executive officer or member of the Board of
Directors of the Company authorized to do so by the Board by resolution.


 


18.                                 Headings. Section headings in this Agreement are for convenience only and
shall be given no effect in the construction or interpretation of this
Agreement.


 


19.                                 Notice. All notices made pursuant to this Agreement, shall be given in writing,
delivered by a generally recognized overnight express delivery service, and
shall be made to the following addresses, or such other addresses as the
Parties may later designate in writing:


 


If to
the Company:


 


Ciphergen
Biosystems, Inc.


6611
Dumbarton Circle


Fremont,
California 94555


Attention:  Chief Financial Officer


 


If to
Executive:


 


Gail
Page


c/o
Ciphergen Biosystems, Inc.


6611
Dumbarton Circle


Fremont,
California 94555


 


20.                                 Expense Reimbursement. The Company shall promptly reimburse Executive
reasonable business expenses incurred by Executive in furtherance of or in
connection with the


 


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performance
of Executive’s duties hereunder, including expenditures for travel, in
accordance with the Company’s expense reimbursement policy as in effect from
time to time.


 


21.                                 General; Conflict. This Agreement and the PIIA, when signed by
Executive, set forth the terms of Executive’s employment with the Company and
supersede any and all prior representations and agreements, whether written or
oral.


 


 


	
   

  	
  Ciphergen Biosystems, Inc.

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ JAMES C. RATHMANN

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  JAMES C. RATHMANN

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
    CHAIRMAN

  
	
   

  	
   

  
	
  ACCEPTED
  AND AGREED TO this

  	
   

  
	
  31st
  day of December, 2005.

  	
   

  
	
   

  	
   

  
	
  /s/ Gail
  Page

  	
   

  	
   

  
	
   

  	
  Gail Page

  	
   

  	
   

  
								



 


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