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 August 8th, 2005 (the “Effective
Date”).


WHEREAS, the Company
desires to employ Executive as President
and Chief Operating 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 Operating
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 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 $280,000 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
40% 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.  In addition, the Executive will
receive an annual car allowance of $10,000.


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


 










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


 


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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) that, in the Board of Director’s reasonable judgment,
materially impairs Executive’s ability to perform Executive’s duties.


 


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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.


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,


 










***                           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.


 


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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


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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.


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


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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 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.


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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 August 8th, 2005, the
provisions of this Agreement shall control.


 


 


	
   

  	
   

  	
  Ciphergen Biosystems, Inc.

  a Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ MATTHEW J. HOGAN

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Matthew J. Hogan

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Senior Vice
  President and Chief Financial Officer

  



 


 


ACCEPTED AND AGREED TO this

3rd day of November, 2005.


 


 


 


	
  /s/ GAIL
  PAGE

  	
   

  
	
  Gail Page

  	
   

  



 


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