exv10w19



 





Exhibit 10.19






AMENDED AND RESTATED EMPLOYMENT AGREEMENT




     THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the “Agreement”), is
entered into by and between Lipid Sciences, Inc., a Delaware corporation (the
“Company”), and Sandra Gardiner (“Executive”). The Company and Executive are
hereinafter collectively referred to as the “Parties,” and may individually be
referred to as a “Party.”



RECITALS




     WHEREAS, the Company and Executive are currently parties to the Employment
Agreement, dated as of February 1, 2001 (the “Existing Employment Agreement”),
which governs the terms and conditions of Executive’s compensation and
employment relationship with the Company, including the severance benefits to
which Executive would be entitled in the event the Company were to terminate
Executive’s employment without cause; and



     WHEREAS, the Company is cognizant of the attendant distractions resulting
from Executive having to seek subsequent employment on short notice in the
event Executive’s employment were terminated without cause; and



     WHEREAS, the Company desires to allay the concerns of Executive that are
articulated in the foregoing recital by providing an extended period during
which Executive would be entitled to severance benefits in the event
Executive’s employment were terminated without cause; and



     WHEREAS, the Company now deems it appropriate and in the best interests of
the Company to amend and restate the Existing Employment Agreement in its
entirety to (i) increase the period during which Executive is entitled to
receive severance benefits in the event Executive’s employment is terminated
without cause and (ii) modify other terms and conditions to reflect the current
provisions governing Executive’s employment relationship with the Company and
to clarify certain other provisions in this Agreement; and



     WHEREAS, Executive desires to be in the employ of the Company on the terms
and conditions set forth in this Agreement; and



     WHEREAS, the Parties desire that this Agreement replace and supersede in
its entirety the Existing Employment Agreement.



 









 





AGREEMENT




     1.     EMPLOYMENT.




     1.1      The Company will employ Executive, and Executive hereby accepts
employment by the Company, upon the terms and conditions set forth in this
Agreement, commencing effective as of July 1, 2003 (the “Effective Date”), and
continuing until the third anniversary of the Effective Date (the “Initial
Term”); provided, however, that immediately prior to the expiration of the
Initial Term, and on each anniversary thereafter (the date immediately prior to
expiration of the Initial Term and each subsequent anniversary, a “Renewal
Date”), the term of Executive’s employment under this Agreement will be
extended until the following subsequent anniversary unless either party elects
not to renew this Agreement by serving notice of such intention not to renew on
the other party at least ninety days prior to the expiration of a Renewal Date
(the period commencing on the Effective Date and ending on expiration of the
Initial Term or such later date to which the term of the Employee’s employment
under this Agreement will have been extended, the “Term”).




     1.2      Executive will serve as Chief Accounting Officer of the Company.
Executive will report to the President and Chief Executive Officer of the
Company (the “CEO”).




     1.3      Executive will do and diligently perform all services, acts or things
necessary or advisable to carry out the duties normally accorded to Executive’s
position; provided, however, that at all times during the Term (as hereinafter
defined) Executive will be subject to the direction of the CEO.




     1.4      Executive’s place of employment will be at the office of the Company
located in Pleasanton, California, but Executive agrees to travel to the extent
and to the places necessary for the performance of her duties to the Company.



     2.     LOYAL AND CONSCIENTIOUS PERFORMANCE. During her employment by the
Company, Executive will devote her full business employment, interest,
abilities and productive time to the proper and efficient performance of her
duties under this Agreement. During the Term, Executive may not, directly or
indirectly, render services to any other person or organization for which
Executive receives compensation without the prior written approval of the
President & CEO of the Company. Executive hereby agrees to refrain from
engaging in any activity that does, will or could reasonably be deemed to
conflict with the best interests of the Company.



     3.     COMPENSATION OF EXECUTIVE.




     3.1      The Company will pay Executive a salary of one hundred and eighty
thousand dollars ($180,000) per year (the “Base Salary”), payable in accordance
with the Company’s payroll practices as are in effect from time to time. The
Base Salary will be prorated for any partial year of employment on the basis of
a 365-day fiscal year.




     3.2      The Base Salary may be changed from time to time by mutual agreement
of Executive, the CEO and the Board.



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     3.3      All of Executive’s compensation is subject to customary withholding
taxes and any other employment taxes as are required to be collected or
withheld by the Company.




     3.4      In the discretion of the Board and in accordance with Company
practices as are in effect from time to time, Executive will be entitled to
participate in employee benefit plans or arrangements made available by the
Company now or in the future to its executives and key management employees.




     3.5      Executive’s performance will be reviewed by the CEO on a periodic
basis (not less than once each fiscal year). The CEO, with approval of the
Board, may, in their sole discretion, award bonuses to Executive as may be
appropriate or desirable based on Executive’s performance.




     3.6      Executive is entitled to receive prompt reimbursement of all
reasonable expenses incurred by Executive in performing services for the
Company, including expenses related to travel, entertainment, parking, and
business meetings upon prompt submission of receipts documenting the expenses
and consistent with the Company’s reimbursement policies as are in effect from
time to time.



     4.     TERMINATION. Subject to the notice and other provisions of this
Section 4, the Company will have the right to terminate Executive’s employment
hereunder, and Executive will have the right to resign, at any time for any
reason or for no stated reason.




     4.1 (i)     If prior to the expiration of the Term, Executive’s employment is
terminated by the Company for “Good Cause” (as hereinafter defined) or if
Executive resigns from her employment hereunder for any reason, Executive will
be entitled to payment of (A) her Base Salary accrued up to and including the
date of termination or resignation, and (B) any unreimbursed expenses. Except
to the extent required by the terms of the benefits provided under Section 3.4
or applicable law, Executive has no right under this Agreement or otherwise to
receive any other compensation or to participate in any other plan, program or
arrangement after such termination or resignation of employment.




     (ii)      Termination for “Good Cause” means the Company’s termination of
Executive’s employment because of Executive’s: (A) conviction of any felony or
any crime involving fraud or dishonesty; (B) participation (whether by
affirmative act or omission) in a fraud, act of dishonesty or other act of
material misconduct against the Company; (C) violation of any fiduciary duty or
duty of loyalty owed to the Company; (D) breach in any material respect of any
contract between Executive and the Company, including, without limitation, this
Agreement and the Employee Confidential Information and Inventions Agreement
and Confidential Disclosure Agreement (as hereinafter defined); and (E)
repeated violation of any material Company policy.




     (iii)      Termination of Executive’s employment for Good Cause will be
communicated by delivery to Executive of a written notice from the Company
stating that Executive will be terminated for Good Cause, specifying the
particulars thereof and the effective date of such termination. In the cases
of Sections 4.1(ii)(C), 4(ii)(D) and 4(ii)(E), the Executive shall have thirty
(30) business days from the date of receipt of such notice to effect a cure of
the actions constituting Good Cause, or to effect a cure of the adverse effect
such actions, but only in



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circumstances where such cure or correction is feasible. Upon cure or
correction thereof by the Executive to the reasonable satisfaction of the
Company, the action shall no longer constitute Cause for purposes of this
Agreement. The date of a resignation by Executive will be the date specified
in a written notice of resignation from Executive to the Company. Executive
will provide at least 30 days’ advance written notice of his resignation.




4.2 (i)   If, prior to the expiration of the Term, the Company terminates
Executive’s employment for any reason other than “Good Cause” or Disability
(such termination being hereinafter referred to as a “Termination Without
Cause”), Executive will be entitled to (i) payment of her Base Salary accrued
up to and including the date of such Termination Without Cause, (ii) payment of
any unreimbursed expenses, and (iii) severance, subject to both Executive’s
execution and delivery of a release in the form then deemed appropriate by the
Company, and, if requested by the Company at the time of the termination, the
Executive’s agreement to provide consulting services during the Severance
Period (as hereinafter defined) for no additional compensation, of (A)
continuation of the Base Salary, at the rate in effect on the date of the
Termination Without Cause, for a period of 12 months commencing on the date
next following the date of the Termination Without Cause (the “Severance
Period”); provided, however, that if Executive obtains new employment during
the Severance Period, severance amounts due under this Agreement will be offset
by any amounts paid to Executive by the subsequent employer, and (B) continued
participation on the same terms and conditions as are in effect immediately
prior to the Termination Without Cause in the Company’s retirement, Section
125, health and welfare benefit plans provided to the Employee at the time of
such Termination Without Cause through the expiration of the Severance Period,
or until Executive becomes eligible to participate in a subsequent employer’s
benefit plan, whichever occurs first. Anything herein to the contrary
notwithstanding, the Company shall have no obligation to continue to maintain
during the Severance Period any plan, program or level of benefits solely as a
result of the provisions of this Agreement.




      (ii)    The date of the Termination Without Cause will be the date specified
in a written notice of termination to Executive. The Company will provide at
least 30 days advance written notice of the Termination Without Cause.





     4.3       In the event of Executive’s Disability, the Company will be entitled
to terminate Executive’s employment. In the case that the Company terminates
Executive’s employment due to Disability, Executive will be entitled to her
Base Salary up to and including the date of termination as well as any unpaid
expense reimbursements. As used in this Section 4.3, the term “Disability”
means the Company’s determination that due to physical or mental illness or
incapacity, whether total or partial, Executive is substantially unable to
perform her duties hereunder for a period of 90 consecutive days or shorter
periods aggregating 90 days during any period of 180 consecutive days.




     4.4      Except as provided in this Section 4.4, no Base Salary or benefits
shall be payable under this Agreement following the date of Executive’s death.
In the event of Executive’s death, any Base Salary earned by Executive up to
the date of death, as well as any unreimbursed expenses, will be paid to
Executive’s estate or Executive’s named beneficiary within a reasonable period
following her death.



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     5.     CONFIDENTIAL INFORMATION; INVENTIONS; NONSOLICITATION.




     5.1      Executive recognizes that her employment with the Company will involve
contact with information of substantial value to the Company, which is neither
old nor generally known in the trade, and which gives the Company an advantage
over its competitors that do not know or use it, including but not limited to,
techniques, designs, drawings, processes, inventions, developments, equipment,
prototypes, sales and customer information, and business and financial
information relating to the business, products, practices and techniques of the
Company (hereinafter referred to as “Confidential Information”). Executive
will at all times regard and preserve as confidential such Confidential
Information obtained by Executive from whatever source and will not, either
during her employment with the Company or thereafter, publish or disclose any
part of such Confidential Information in any manner at any time, or use the
same except on behalf of the Company, without the prior written consent of the
Company; provided, however, that Executive may disclose Confidential
Information in the best interest of the Company with properly executed Company
confidentiality or secrecy agreements with a third party. Executive agrees to
abide by her continuing obligations under both the Employee Confidential
Information and Inventions Agreement and the Confidential Disclosure Agreement,
both dated as of February 1, 2001, between Executive and the Company, attached
to the Existing Employment Agreement (the “Confidential Information
Agreements”).




     5.2      While Executive is employed by the Company and for one (1) year
thereafter, in order to protect the Confidential Information and the Company’s
proprietary information from unauthorized use, Executive may not, either
directly or through others, solicit or attempt to solicit any employee,
consultant or independent contractor of the Company to terminate his or her
relationship with the Company in order to become an employee, consultant or
independent contractor to or for any other person or business entity.



     6.     SUCCESSORS. The Company will require any successor (whether direct or
indirect, by purchase, merger, or consolidation) to all or substantially all of
the business and/or assets of the Company to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken place.



     7.     ASSIGNMENT AND BINDING EFFECT. This Agreement is binding on and inures
to the benefit of Executive and Executive’s heirs, executors, personal
representatives, administrators and legal representatives. Because of the
unique and personal nature of Executive’s duties under this Agreement, neither
this Agreement nor any rights or obligations under this Agreement are
assignable by Executive. This Agreement is binding on and inures to the
benefit of the Company and its successors, assigns and legal representatives.



     8.     NO OTHER SEVERANCE BENEFITS. Except as specifically set forth in this
Agreement, Executive covenants and agrees that she will not be entitled to any
other form of severance benefits from the Company, including, without
limitation, benefits otherwise payable under the Company’s regular severance
policies, if any, in the event her employment hereunder ends for any reason
and, except with respect to obligations of the Company expressly provided for
herein. In consideration for the Company’s payment of the severance benefits
set forth in



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this Agreement, Executive agrees to execute a Separation and Release
Agreement which waives Executive’s right to file a lawsuit alleging breach of
contract, discrimination and any tort claims.



     9.     NOTICES. All notices or demands of any kind required or permitted to
be given by the Company or Executive under this Agreement will be given in
writing and will be personally delivered (and receipted for) or mailed by
certified mail, return receipt requested, postage prepaid, and if mailed to the
Company, will be addressed to its principal place of business, and if mailed to
Executive, will be addressed to her at her last known address on the records of
the Company, or at such other address or addresses as either Party may
hereinafter designate in writing to the other Party. Notices sent by FedEx or
similar overnight delivery service or by facsimile transmission will also
constitute notice under this Section 9, effective upon receipt thereof.



     10.     CHOICE OF LAW. This Agreement will be construed and interpreted in
accordance with the laws of the State of California, without regard to the
conflict of laws provision thereof.



     11.     INTEGRATION. This Agreement and the Confidential Information
Agreements contain the complete, final and exclusive agreement of the Parties
relating to the subject matter of this Agreement and the Confidential
Information Agreements, respectively, and supersede all prior oral and written
employment agreements or arrangements between the Parties, including, without
limitation, the Existing Employment Agreement except with respect to the
obligations relating to the Confidential Information Agreements.



     12.     AMENDMENT. This Agreement may not be amended or modified except by a
written agreement signed by Executive and the Company.



     13.     WAIVER. No term, covenant or condition of this Agreement or any
breach thereof will be deemed waived, except with the written consent of the
Party against whom the wavier in claimed, and any waiver or any such term,
covenant, condition or breach will not be deemed to be a waiver of any
preceding or succeeding breach of the same or any other term, covenant,
condition or breach.



     14.     SEVERABILITY. The finding by a court of competent jurisdiction of the
unenforceability, invalidity or illegality of any provision of this Agreement
will not render any other provision of this Agreement unenforceable, invalid or
illegal. Such court will have the authority to modify or replace the invalid
or unenforceable term or provision with a valid and enforceable term or
provision which most accurately represents the parties’ intention with respect
to the invalid or unenforceable term or provision.



     15.     INTERPRETATION; CONSTRUCTION. The headings set forth in this
Agreement are for convenience of reference only and will not be used in
interpreting this Agreement. Executive has been encouraged, and has consulted
with, her own independent counsel and tax advisors with respect to the terms of
this Agreement. The Parties acknowledge that each Party and its counsel has
reviewed and revised, or had an opportunity to review and revise, this
Agreement, and the normal rule of construction to the effect that any
ambiguities are



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to be resolved against the party primarily responsible for drafting this
Agreement will not be employed in the interpretation of this Agreement.



     16.     REPRESENTATIONS AND WARRANTIES. Executive represents and warrants
that, to the best of Executive’s knowledge, he is not restricted or prohibited,
contractually or otherwise, from entering into and performing each of the terms
and covenants contained in this Agreement, and that her execution and
performance of this Agreement will not violate or breach any other agreements
between Executive and any other person or entity.



     17.     COUNTERPARTS. This Agreement may be executed in two counterparts,
each of which will be deemed an original, all of which together will constitute
one and the same instrument.



     18.     ARBITRATION. If any dispute arises regarding the application,
interpretation, or enforcement of this Agreement, including fraud in the
inducement, the dispute will be resolved by final and binding arbitration
before one arbitrator at the Judicial Arbitration and Mediation Service in
Pleasanton, California. The decision of the arbitrator will be written, will
state the essential findings and conclusions on which the award is based, and
will be final and may not be appealed by either of the Parties. Each Party
will have a reasonable opportunity to conduct adequate discovery and Executive
will not be required to bear any type of expense that Executive would not be
required to bear if Executive were bringing a civil lawsuit in place of
arbitration.



     19     ATTORNEYS’ FEES AND COSTS. The prevailing party in any dispute
arising out of this Agreement will be entitled to reimbursement by the losing
party of all of its or her attorneys’ fees and costs including, but not limited
to, arbitrator’s fees and expert’s fees.



     20.     SURVIVAL. The provisions of Section 5 (including the provisions of
the Confidential Agreements) shall survive the termination of this Agreement.



     IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first above written.


	 	 	 	 	 
	 	LIPID SCIENCES, INC.

 	 
	 	By:  	/s/ S. Lewis Meyer, Ph.D.
 	 
	 	 	S. Lewis Meyer, Ph.D. 	 
	 	 	President and Chief Executive Officer 	 
	 
	 	 	 
	 	By:  	                                     /s/ Sandra Gardiner
 	 
	 	 	Sandra Gardiner 	 
	 	 	 	 
	 





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