[*]           CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS
BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 406 OF THE SECURITIES EXCHANGE ACT OF 1933, AS AMENDED.


 


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”) who lives at 15901 Soleil Court, Austin, Texas, is effective as of
January 8, 2004 (the “Effective Date”).


 


WHEREAS, the Company
desires to employ Executive as Executive
Vice President of the Company and President of the Protein Molecular
Diagnostics Division 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 Executive Vice President of Ciphergen Biosystems, Inc. and President
of the Protein Molecular Diagnostics Division. 
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 Chief
Executive Officer 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 CEO or
Board of Directors.


 


2.                                       Compensation.  The Company will pay Executive a
base salary of $240,000 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 35% 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 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.


 


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)                                  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, vesting of stock options 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.


 


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 constitutes a felony in the jurisdiction involved; or (vii)
abuse of alcohol or drugs (legal or illegal)


 


2

















 


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.  Company expressly grants Executive
the right and finds no violation of this provision for Executive to serve in a
Board or Advisory position with [*] or [*] or other similarly situations as
pre-approved by the Chief Executive Officer of Company.


 


*                                         Certain
information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.


 


3

















 


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


 


4

















 


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.


 


5

















 


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


15901 Soleil Court


Austin, Texas 
78734


 


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


 


6

















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.  Executive and the Company agree that in the
event of any conflict between the provisions of this Agreement with the PIIA or
with the Offer Letter to Executive dated January 8, 2004, the provisions of
this Agreement shall control.


 


	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Ciphergen
  Biosystems, Inc.

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  ACCEPTED AND
  AGREED TO this

  8th day of January, 2004.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Gail Page

  	
   

  
						



 


7