**EXHIBIT10.2**

 

**CALIPERLIFE SCIENCES, INC.**

 

**CONSULTINGAGREEMENT**

 

**THIS CONSULTING AGREEMENT**(the “Agreement”)****ismade and entered into as of the 10th day of March, 2008 by andbetween **CALIPER LIFE SCIENCES, INC**., a Delawarecorporation (the “Company”), and **DR. DANIEL KISNER**(“Contractor”).

 

**RECITALS**

 

**WHEREAS,**the****Company and Contractor previouslyentered into that certain Key Employee Agreement dated as of July 1, 2002,as amended by that Key Employee Agreement Amendment dated as of December 24,2003 (the “Employment Agreement”), pursuant to which Contractor has served asChairman of the Company’s Board of Directors; and

 

**WHEREAS,** Contractor’scurrent term as a member of the Company’s Board of Directors will end effectiveas of the Company’s 2008 Annual Meeting of Stockholders, presently expected tooccur on or around June 3, 2008, and Contractor has elected not to run forre-election to a new three-year term on the Company’s Board of Directors; and

 

**WHEREAS,** givenContractor’s knowledge of the Company’s business and technologies, the Companydesires to be able to continue to obtain services from Contractor upon thetermination of the Employment Agreement and the end of Contractor’s service onthe Company’s Board of Directors, and Contractor is willing to provide suchservices to the Company, in each case in accordance with the terms set forth inthis Agreement.

 

**NOW, THEREFORE,** inconsideration of the foregoing premises and the mutual covenants contained inthis Agreement, the parties agree as follows:

 

**AGREEMENT**

 

In consideration of the mutual covenants set forthbelow, the parties hereby agree as follows:

 

1.             **ENGAGEMENT OF SERVICES**.

 

1.1           The Company and Contractor hereby agreethat effective immediately with the end of Contractor’s current term as amember of the Company Board of Directors (the “Effective Time”), (i) theEmployment Agreement shall be terminated and (ii) Contractor, pursuant tothe provisions of this Agreement, shall be engaged by the Company to provideconsulting services to the Company on an “as requested” basis, including butnot limited to consulting relating to the analysis of the Company’s corecompetitive strengths, the Company’s optimal growth strategies, 

 

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and the identificationand development of product strategies and collaboration opportunities (the “Services”).  It is the intent of the parties thatContractor be engaged as a consultant under this Agreement immediately upon thetermination of the Employment Agreement so that there shall not be anyinterruption of Contractor’s “Continuous Service” to the Company for purposesof the Company’s 1999 Equity Incentive Plan and all outstanding equity awardspreviously granted to Contractor under such Plan.

 

1.2           Contractor shall perform Services asrequested by the Company from time to time to the best of his ability, suchServices to be performed at such place or places and at such times as mutuallyagreed upon by the Company and Contractor; *provided* thatContractor shall not be required to provide more than four (4) days ofServices per quarter without Contractor’s prior agreement.  The Company recognizes that Contractor may beunavailable to perform Services for certain amounts of time due to othercommitments.

 

2.             **COMPENSATION**.

 

2.1           As consideration for Contractor’s Services and for thedischarge of all Contractor’s obligations hereunder, the Company shall payContractor for Services requested by the Company pursuant to Section 1, asand when performed by Contractor, at the rate of $300.00 per hour or $2,000 perday, as the case may be.  The Companywill pay Contractor for Services within thirty (30) days after receipt ofContractor’s invoice for such Services.

 

2.2           In addition to such compensation, the Company willreimburse Contractor for travel and other out-of-pocket costs reasonably incurredby him in the course of performing Services under this Agreement; *provided* that the Company shall not be obligated hereunderunless (i) the Company has agreed in advance to reimburse such costs, and (ii) Contractorprovides the Company with appropriate receipts or other relevant documentationfor all such costs as part of any submission by Contractor for reimbursement.

 

3.             **INDEPENDENT CONTRACTOR**.

 

It is understood and agreed that, upon and after theEffective Time, (i) Contractor shall be an independent contractor and notan agent or employee of the Company, (ii) Contractor shall not have anyauthority to act on behalf of the Company pursuant to this Agreement, or toobligate the Company by contract or otherwise, and (iii) Contractor shallnot be eligible for any employee benefits, nor will the Company make deductionsfrom Contractor’s fees for taxes.  Thepayment of any taxes related to Contractor’s provision of Services under thisAgreement shall be the sole responsibility of Contractor.

 

4.             **ESTABLISHMENT OF CONFIDENTIALRELATIONSHIP**.

 

Contractor recognizes that the Company is engaged in acontinuous program of research and development respecting its present andfuture business activities.  Contractorunderstands that:

 

4.1           As part of any Services performed by Contractor forthe Company, Contractor will be involved in discussions that relate to theCompany’s technology and business strategy, 

 

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and, in the course of providing Services to theCompany, may develop new ideas or inventions or make other contributions ofvalue to the Company.

 

4.2           This Agreement creates a relationship of trust andconfidence between Contractor and the Company with respect to any informationwhich is:

 

(i)            applicable to the business of the Company or anyclient or customer of the Company; and

 

(ii)           is made known to Contractor by the Company or by anyclient or customer of the Company, or is learned by Contractor while performingServices for the Company.

 

4.3           The Company possesses and will continue to possessinformation:  (i) that has beencreated, discovered, developed, or otherwise become known to the Company; or (ii) inwhich property rights have been assigned or otherwise conveyed to the Companyby another entity, which information has commercial value in the business in whichthe Company is engaged and is treated by the Company as confidential.  All such information is hereinafter referredto as “Proprietary Information.”  By wayof illustration, but not limitation, Proprietary Information includes:  (1) inventions, developments, designs,applications, improvements, trade secrets, formulae, ideas, know-how, methodsor processes, discoveries, techniques and data (hereinafter collectivelyreferred to as “Inventions”); and (2) plans for research, development, newproducts, marketing and selling, information regarding business plans, budgetsand unpublished financial statements, licenses, prices and costs, informationconcerning suppliers and customers and information regarding the skills andcompensation of employees of the Company. Notwithstanding the above, nothing received by Contractor will beconsidered to be Proprietary Information if: (a) it has been published oris otherwise readily available to the public other than by a breach of thisAgreement; (b) it has been rightfully received by Contractor from a thirdparty without confidential limitations; (c) it has been independentlydeveloped for Contractor by personnel or agents having no access to theProprietary Information; or (d) it was known to Contractor prior to its firstreceipt from the Company.

 

Certain specific obligations of Contractor arising outof Contractor’s confidential relationship with the Company are set forth inSections 5 and 6 of this Agreement.

 

5.             **RECOGNITION OF COMPANY’S RIGHTS; NONDISCLOSURE**.

 

5.1           All Proprietary Information shall be the sole propertyof the Company and its assigns, and the Company and its assigns shall be thesole owner of all patents, copyrights and other rights in connection with suchProprietary Information.

 

5.2           At all times, both during the term of this Agreementand after its termination, Contractor will keep in confidence and trust allProprietary Information and shall not use or disclose to any third party anyProprietary Information or anything related to such information without thewritten consent of the Company, except as may be required in the ordinarycourse of performing Services for the Company pursuant to this Agreement.

 

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6.             **NONDISCLOSURE OF THIRD-PARTYINFORMATION**.

 

Contractor understandsthat the Company has received and in the future will receive from third partiesinformation that is confidential or proprietary (“Third-Party Information”)subject to a duty on the part of the Company to maintain the confidentiality ofsuch information and to use it only for certain limited purposes.  During the term of this Agreement andthereafter, Contractor will hold Third-Party Information in the strictestconfidence and will not disclose or use Third-Party Information except aspermitted by the agreement between the Company and such third party, unlessexpressly authorized to act otherwise by an officer of the Company in writing.

 

7.             **NO IMPROPER USE OF MATERIALS**.

 

Contractor agrees not to bring to the Company or touse in the performance of Services any materials or documents obtained byContractor under a binder of confidentiality imposed by reason of another ofContractor’s contracting relationships, unless such materials or documents aregenerally available to the public or Contractor has authorization from suchclient for the possession and unrestricted use of such materials.  Contractor understands that Contractor is notto breach any obligation of confidentiality that Contractor has to present orformer clients, and agrees to fulfill all such obligations during the term ofthis Agreement.

 

8.             **TERM AND TERMINATION**.

 

8.1           Unless previously terminated as set forth in Section 8.2below, the term of this Agreement shall commence at the Effective Time andshall terminate twelve (12) months thereafter, unless extended by mutual agreementof both parties hereto, which extension or extensions, if made, shall be for anadditional twelve months and which in the aggregate may extend the term of thisAgreement to up to five years from the Effective Time.

 

8.2           Either party may terminate this Agreement in the eventof a material breach by the other party of this Agreement, if such breachcontinues uncured for a period of thirty (30) days after written notice of suchbreach by the nonbreaching party.

 

9.             **EFFECT OF TERMINATION**.

 

9.1           Upon the expiration or termination of this Agreement,each party shall be released from all obligations and liabilities to the otheroccurring or arising after the date of such termination, except that anytermination of this Agreement shall not relieve Contractor of Contractor’sobligations under Sections 5 and 6 hereof, nor shall any such terminationrelieve Contractor or the Company from any liability arising from any breach ofthis Agreement.

 

9.2           Upon termination of this Agreement for any reasonwhatsoever, Contractor shall promptly surrender and deliver to the Company alldocuments, notes and other materials of any nature pertaining to Contractor’swork with the Company, and any documents or data of any description (or anyreproduction of any documents or data) containing or pertaining to anyProprietary Information.

 

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10.           **ASSIGNMENT**.

 

The rights and liabilities of the parties hereto shallbind and inure to the benefit of their respective successors, assigns, heirs,executors and administrators, as the case may be; *provided*that Contractor may not assign or delegate Contractor’s obligations under thisAgreement either in whole or in part without the prior written consent of theCompany.

 

11.           **LEGAL AND EQUITABLE REMEDIES**.

 

Because Contractor’s services are personal and uniqueand because Contractor may have access to and become acquainted with theProprietary Information of the Company, the Company shall have the right toenforce this Agreement and any of its provisions by injunction, specificperformance or other equitable relief without prejudice to any other rights andremedies that the Company may have for a breach of this Agreement.

 

12.           **GOVERNING LAW; SEVERABILITY**.

 

This Agreement shall be governed by the laws of theState of California as those laws are applied to contracts entered into and tobe performed entirely in California by California residents.  If one or more of the provisions in thisAgreement are deemed unenforceable by law, then such provision will be deemedstricken from this Agreement and the remaining provisions will continue in fullforce and effect.

 

13.           **COMPLETE UNDERSTANDING;MODIFICATION**.

 

This Agreement, theEmployment Agreement, all stock option agreements between the Company andContractor, and the Employee Proprietary Information and Inventions Agreementdated February 3, 1999 constitute the final, exclusive and completeunderstanding and agreement of the parties hereto and supersedes all priorunderstandings and agreements, and is entered into without reliance upon anyrepresentation, whether oral or written, not stated herein.  Any waiver, modification or amendment of anyprovision of this Agreement shall be effective only if in writing and signed bya Company officer.

 

14.           **NOTICES**.

 

Any notices required or permitted hereunder shall begiven to the appropriate party at the address specified below or at such otheraddress as the party shall specify in writing. Such notice shall be deemed given upon personal delivery to theappropriate address or sent by certified or registered mail, three days afterthe date of mailing.

 

**IN WITNESS WHEREOF**, the parties hereto have executed this Agreement asof the Effective Date.

 
| **CALIPER LIFE SCIENCES, INC.** | **CONTRACTOR**                           |            |                    |
|---------------------------------|------------------------------------------|-----------------|-------------------------|
|                            |                                     |
|                            |                                     |
| By:                             | /s/ Stephen  Creager                     |            | By:                     | /s/ Daniel L.  Kisner, M.D. |   |
|                            | Name: Stephen Creager                    |            | Daniel L.  Kisner, M.D. |
|                            | Title: Senior  Vice President & |            |                    |   |
|                            |                                     | General Counsel |                    |   |   |
|                                 |                                          |                 |                         |  |  |  |  |  |

 

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