exv10w1









Exhibit 10.1




AMENDED AND RESTATED

EMPLOYMENT AGREEMENT




     THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this “Agreement”) between Vermillion, Inc.
(formerly Ciphergen Biosystems, Inc.), a Delaware corporation (the “Company”), and Gail Page
(“Executive,” and together with the Company, the “Parties”) is effective as of November 13, 2008
(the “Effective Date”).



     WHEREAS, the Company and Executive entered into an Employment Agreement effective as of
December 31, 2005 (the “2005 Agreement”), and the parties desire to amend and entirely restate the
2005 Agreement principally in order to update Executive’s severance protections and to conform the
2005 Agreement with Section 409A of the Internal Revenue Code of 1986, as amended.



     NOW, THEREFORE, the Parties agree as follows:


1. Position. The Company will continue to employ Executive as its President and Chief
Executive Officer. 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 Company’s
Board of Directors. 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 $364,000 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.



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 maybe in effect from time to time, subject to the Company’s
right to cancel or change the benefit plans and program it offers to its employees at any time, In
addition, the Executive will receive an annual car allowance of $10,000 to be provided within each
calendar year during the term of this Agreement.



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, in a form reasonably
satisfactory to the Company, does not breach any provision of this Agreement (including but not
limited to Section 10 and Section 11 hereof) and continues to comply with the PIIA, as hereinafter
defined, Executive shall be entitled to receive, subject to Section 13 below:




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



            (iii) 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 twelve (12) month period following a Change of Control (as defined
below), then, in addition to the severance obligations due to Executive under Section 5 above,
one-hundred percent (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 Proprietary Information and Inventions Agreement
entered into between Executive and the Company (the “PIIA”) 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 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, the occurrence of any one or more of the following events,
without Executive’s consent, which continues uncured for a period of not less than thirty (30) days
following written notice given by Executive to the Company within thirty (30) days following the
occurrence of such event:




 









 








               (i) a material and adverse change in Executive’s title or 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 Executive’s 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.



     In addition, Executive must actually terminate Executive’s employment with the Company within
six months following the initial existence of the condition described above in (i) and (ii) giving
rise to Good Reason.



          (d) “Separation from Service” or “Separates from Service” shall mean
Executive’s termination of employment, as determined in accordance with Treas. Reg. § 1.409A-1(h).
Executive shall be considered to have experienced a termination of employment when the facts and
circumstances indicate that Executive and the Company reasonably anticipate that either (i) no
further services will be performed for the Company after a certain date, or (ii) that the level of
bona fide services Executive will perform for the Company after such date (whether as an employee
or as an independent contractor) will permanently decrease to no more than 20% of the average level
of bona fide services performed by Executive (whether as an employee or independent contractor)
over the immediately preceding 36-month period (or the full period of services to the Company if
Executive has been providing services to the Company for less than 36 months). If Executive is on
military leave, sick leave, or other bona fide leave of absence, the employment relationship
between Executive and the Company shall be treated as continuing intact, provided that the period
of such leave does not exceed six months, or if longer, so long as Executive retains a right to
reemployment with the Company under an applicable statute or by contract. If the period of a
military leave, sick leave, or other bona fide leave of absence exceeds six months and Executive
does not retain a right to reemployment under an applicable statute or by contract, the employment
relationship shall be considered to be terminated for purposes of this Agreement as of the first
day immediately following the end of such six-month period. In applying the provisions of this
paragraph, a leave of absence shall be considered a bona fide leave of absence only if there is a
reasonable expectation that Executive will return to perform services for the 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.



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.



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 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 mariner 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. Taxes. All payments made pursuant to this Agreement will be subject to withholding of
applicable taxes. Notwithstanding the foregoing, Executive is solely responsible and liable for
the satisfaction of any federal, state, province or local taxes that may arise with respect to this
Agreement (including any taxes arising under Section 409A of the Internal Revenue Code (the “IRC”),
except to the extent otherwise specifically provided in a written agreement with the Company.
Neither the Company nor any of its employees, officers, directors, or service providers shall have
any obligation whatsoever to pay such taxes, to prevent Executive from incurring them, or to
mitigate or protect Executive from any such tax liabilities. Notwithstanding anything in this
Agreement to the contrary, if any amounts that become due under this Agreement on account of
Executive’s termination of employment constitute “nonqualified deferred compensation” within the
meaning of IRC Section 409A, payment of such amounts shall not commence until Executive incurs a
Separation from Service. If, at the time of Executive’s termination of employment under this
Agreement, Executive is a “specified employee” (within the meaning of IRC Section 409A), any
amounts that constitute “nonqualified deferred compensation” within the meaning of IRC Section 409A
that become payable to Executive on account of Executive’s Separation from Service (including any
amounts payable pursuant to the preceding sentence) will not be paid until after the end of the
sixth calendar month beginning after Executive’s Separation from Service (the “409A Suspension
Period”). Within 14 calendar days after the end of the 409A Suspension Period, Executive shall be
paid a lump sum payment in cash equal to any payments delayed because of the preceding sentence.
Thereafter, Executive shall receive any remaining benefits as if there had not been an earlier
delay.



14. 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.



15. 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.



16. 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.



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




 









 







18. 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.



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



20. 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:



Vermillion, Inc.

47350 Fremont Blvd.

Fremont, CA 94538



If to Executive:



Gail Page

15901 Soleil Court

Austin, TX 78734



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



22. 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.




	 	 	 	 	 	 	 
	 	 	Vermillion, Inc.
	 	 
	 	 	a Delaware corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ James L. Rathmann
 

James L. Rathmann
	 	 
	 

	 	Title:
	 	Chairman	 	 






ACCEPTED AND AGREED TO this

13 day of November, 2008.




/s/ Gail S. Page                                   

Gail Page