EXHIBIT 10.32
VIA COURIER
July 9, 2002
Xx. Xxxxxx Xxxxxxx
00 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Dear Norrie:
This letter sets forth the substance of the separation agreement (the
"Agreement") which Lynx Therapeutics, Inc. (the "Company") is offering to aid in
your employment transition.
1. RESIGNATION. On or before the Effective Date of this Agreement (as
defined in Section 14 herein), you will submit your resignation as Chief
Executive Officer ("CEO"), resign your membership on the Company's Board of
Director's ("Board"), and resign from any other offices or positions you may
hold with the Company, and the Board will accept your resignation, effective as
of May 31, 2002 (the "Separation Date"). You agree to submit your resignation in
a letter (in the form attached hereto as Exhibit A) to Xxxxx X. Xxxxxx, Chairman
of the Board.
2. ACCRUED SALARY AND PAID TIME OFF. On the Separation Date, the Company
paid you all accrued salary, and all accrued and unused vacation earned through
the Separation Date, subject to standard payroll deductions and withholdings.
You were entitled to those payments regardless of whether or not you sign this
Agreement.
3. SEVERANCE BENEFITS.
(a) SEVERANCE PAYMENT. Although the Company has no policy or
procedure requiring payment of any severance benefits, if you sign and do not
revoke this Agreement, on or before the Effective Date the Company will pay you,
as severance, Two Hundred Forty Six Thousand Six Hundred Sixty Five Dollars and
no cents ($246,665.00), subject to standard payroll deductions and withholdings
(the "Severance Payment").
(b) PROCEEDS AND LOAN REPAYMENT. During your employment with the
Company, you received a $250,000.00 housing loan (the "Loan") from the Company
pursuant to that certain Promissory Note Secured by Deed of Trust, dated
November 8, 1999 (the "Note"). A copy of the Note is attached hereto as Exhibit
C. Pursuant to the terms of the Note, you were obligated to repay the
outstanding balance of the Loan in the amount of $144,794.99, plus interest (the
"Loan Amount") immediately upon Separation Date.
As part of this Agreement, you have directed the Company to apply a portion of
the net Severance Payment against the Loan Amount such that you will receive a
cash distribution of the net Severance Payment in the amount of $60,000 and will
apply the balance of the net Severance Payment against the Loan Amount as a
payment thereunder. Accordingly, as of the Separation
Page 2
Date, the Loan will have a remaining balance of $77,355.07. As further
consideration for the promises and covenants contained herein, the Company has
agreed to amend and restate the Note to inter alia incorporate the foregoing
payments and revise the repayment terms. A copy of the amended and restated Note
is attached hereto as Exhibit D.
4. HEALTH INSURANCE. To the extent provided by the federal COBRA law or,
if applicable, state insurance laws, and by the Company's current group health
insurance policies, you will be eligible to continue your group health insurance
benefits at your own expense. Later, you may be able to convert to an individual
policy through the provider of the Company's health insurance, if you wish.
5. STOCK OPTIONS. Pursuant to the terms of your stock options, and the
Company's 1992 Stock Option Plan (the "Plan"), vesting of your stock options
ceased on the Separation Date. Your right to exercise any vested shares, and all
other rights and obligations with respect to your stock options, are set forth
in your stock option grant notices, stock option agreements, and the Plan.
6. OTHER COMPENSATION OR BENEFITS. You acknowledge that, except as
expressly provided in this Agreement, you will not receive any additional
compensation, severance or benefits after the Separation Date.
7. EXPENSE REIMBURSEMENTS. You agree that, within thirty (30) days of
the Separation Date, you will submit your final documented expense reimbursement
statement reflecting all business expenses you incurred through the Separation
Date, if any, for which you seek reimbursement. The Company will reimburse you
for these expenses pursuant to its regular business practice.
8. RETURN OF COMPANY PROPERTY. By the Effective Date, you agree to
return to the Company all Company documents (and all copies thereof) and other
Company property that you have had in your possession at any time, including,
but not limited to, Company files, notes, drawings, records, business plans and
forecasts, financial information, specifications, computer-recorded information,
tangible property (including, but not limited to, computers), credit cards,
entry cards, identification badges and keys; and, any materials of any kind that
contain or embody any proprietary or confidential information of the Company
(and all reproductions thereof) ("Company Property"). You also represent that
you will perform a good faith search to ensure that you are no longer in
possession or control of any Company Property after the Effective Date.
Notwithstanding the foregoing, as part of this Agreement, the Company will allow
you to keep the laptop the Company issued you to perform your job duties.
However, you will only be allowed to keep the laptop computer if you return it
to the Company by the Effective Date so that the Company can remove all Company
data, files, and other property from the laptop before it returns the computer
to you. The Company will also allow you to keep the cellular telephone the
Company issued you to perform your job duties.
9. TRANSITION CONSULTING. After the Separation Date and through November
1, 2002, the Company may engage you from time to time as a consultant regarding
patent and other
Page 3
technology issues ("Consulting Period"). Should the Company utilize you to
perform transition consulting services it will be pursuant to the terms below.
(a) CONSULTING SERVICES. During the Consulting Period, you agree
to make yourself available, by telephone or in person, to
provide consulting services on patent and other technology
issues (the "Consulting Services") to the Company as requested
by the Company's CEO, or by any other officer or director
designated by the Board. You agree to exercise the highest
degree of professionalism and to utilize your expertise and
creative talents in performing the Consulting Services.
(b) CONSULTING FEES. The Company will pay you at a rate of
$100.00 per hour for these services. Because you will be an
independent contractor, the Company will not withhold or deduct
taxes or other customary employee withholdings from your
Consulting Fees. You will be solely responsible for all tax
revenues and payments required to be filed with or made to any
federal, state, or local tax authority with respect to the
Consulting Fees. The Company will report any Consulting Fees
paid to you by filing a Form 1099-MISC with the Internal Revenue
Service as required by law.
(c) NO AGENCY OR EMPLOYMENT RELATIONSHIP. During the Consulting
Period, you will not be allowed on Company premises unless
specifically requested by the Board or CEO. During the
Consulting Period, you will be an independent contractor and you
will not be considered an agent or an employee of the Company;
you will not have authority to make any representation,
contract, or commitment on behalf of the Company and you shall
not purport to have any such authority. In addition, you will
not be entitled to any of the benefits which the Company may
make available to its employees, such as group insurance,
workers' compensation insurance coverage, profit sharing, or
retirement benefits. You will be solely responsible for payment
of any and all expenses incurred by you in performing the
Services, except as incurred at the request of the Company and
approved in advance by the CEO, or by an officer or director
designated by the Board.
(d) PROTECTION OF COMPANY INFORMATION. You agree that, during
the Consulting Period and thereafter, other than in the course
of performing the Services, you will not use or disclose any
confidential or proprietary information or materials of the
Company which you obtain or develop in the course of performing
the Services, except with the advance written authorization of
the Company's CEO. Any and all work product you create in
connection with the Services will be the sole and exclusive
property of the Company. You hereby assign to the Company, to
the fullest extent permitted by law, all right, title, and
interest in all inventions, techniques, processes, materials,
and other intellectual property developed in the course of
performing the Services.
10. PROPRIETARY INFORMATION OBLIGATIONS. Both during and after your
employment you acknowledge your continuing obligations under your Employee
Invention Agreement not to
Page 4
use or disclose any confidential or proprietary information of the Company
without prior written authorization from a duly authorized representative of the
Company. A copy of your Employee Invention Agreement is attached hereto as
Exhibit E.
11. CONFIDENTIALITY. The provisions of this Agreement will be held in
strictest confidence by you and the Company and will not be publicized or
disclosed in any manner whatsoever; provided, however, that: (a) you may
disclose this Agreement to your immediate family; (b) the parties may disclose
this Agreement in confidence to their respective attorneys, accountants,
auditors, tax preparers, and financial advisors; (c) the Company may disclose
this Agreement as necessary to fulfill standard or legally required corporate
reporting or disclosure requirements; and (d) the parties may disclose this
Agreement insofar as such disclosure may be necessary to enforce its terms or as
otherwise required by law. In particular, and without limitation, you agree not
to disclose the terms of this Agreement to any current or former Company
employee.
12. NONDISPARAGEMENT. Both you and the Company agree not to disparage
the other party, and the other party's officers, directors, employees,
shareholders and agents, in any manner likely to be harmful to them or their
business, business reputation or personal reputation; provided that both you and
the Company will respond accurately and fully to any question, inquiry or
request for information when required by legal process.
13. RELEASE. You hereby release, acquit and forever discharge the
Company, its officers, directors, agents, servants, employees, attorneys,
shareholders, successors, assigns and affiliates, of and from any and all
claims, liabilities, demands, causes of action, costs, expenses, attorneys fees,
damages, indemnities and obligations of every kind and nature, in law, equity,
or otherwise, known and unknown, suspected and unsuspected, disclosed and
undisclosed, arising out of or in any way related to agreements, events, acts or
conduct at any time prior to and including the date this Agreement is signed,
including but not limited to: all such claims and demands directly or indirectly
arising out of or in any way connected with your employment with the Company or
the termination of that employment; claims or demands related to salary,
bonuses, commissions, stock, stock options, or any other ownership interests in
the Company, vacation pay, fringe benefits, expense reimbursements, severance
pay, or any other form of compensation; claims pursuant to any federal, state or
local law, statute or cause of action including, but not limited to, the federal
Civil Rights Act of 1964, as amended; the federal Americans with Disabilities
Act of 1990; the federal Age Discrimination in Employment Act of 1967, as
amended (the "ADEA"); the California Fair Employment and Housing Act, as
amended; tort law; contract law; wrongful discharge; discrimination; harassment;
fraud; defamation; emotional distress; and breach of the implied covenant of
good faith and fair dealing.
14. ADEA WAIVER. You acknowledge that you are knowingly and voluntarily
waiving and releasing any rights you may have under the ADEA, and that the
consideration given for the waiver and release in the preceding paragraph hereof
is in addition to anything of value to which you were already entitled. You
further acknowledge that you have been advised that: (a) your waiver and release
do not apply to any claims that may arise after the date you sign this
Agreement; (b) you should consult with an attorney prior to executing this
Agreement; (c)
Page 5
you have twenty-one (21) days to consider this Agreement (although you may
choose voluntarily to execute this Agreement earlier); (d) you have seven (7)
days following the execution of this Agreement by the parties to revoke the
Agreement; (e) this Agreement will not be effective until the date upon which
the revocation period has expired, which will be the eighth day after this
Agreement is executed by you (the "Effective Date").
15. SECTION 1542 WAIVER. YOU UNDERSTAND THAT THIS AGREEMENT INCLUDES A
RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS. In giving this release, which includes
claims that may be unknown to you at present, you acknowledge that you have read
and understand Section 1542 of the California Civil Code which reads as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." You
expressly waive and relinquish all rights and benefits under that section and
any law of any jurisdiction of similar effect with respect to your release of
any unknown or unsuspected claims you may have against the Company.
16. FURTHER ASSURANCES. You agree to execute and deliver such other
documents and instruments, and take such other actions as may be required and
which may be necessary to consummate the transactions contemplated herein and to
otherwise effectuate the agreements herein, including without limitation,
executing (and causing to be acknowledged where appropriate) the exhibits
hereto.
17. MISCELLANEOUS. This Agreement, including exhibits, constitutes the
complete, final and exclusive embodiment of the entire agreement between you and
the Company with regard to this subject matter. It is entered into without
reliance on any promise or representation, written or oral, other than those
expressly contained herein, and it supersedes any other such promises,
warranties or representations. This Agreement may not be modified or amended
except in a writing signed by both you and a duly authorized officer of the
Company. This Agreement will bind the heirs, personal representatives,
successors and assigns of both you and the Company, and inure to the benefit of
both you and the Company, their heirs, successors and assigns. If any provision
of this Agreement is determined to be invalid or unenforceable, in whole or in
part, this determination will not affect any other provision of this Agreement
and the provision in question will be modified by the court so as to be rendered
enforceable. This Agreement will be deemed to have been entered into and will be
construed and enforced in accordance with the laws of the State of California as
applied to contracts made and to be performed entirely within California. You
are advised by the Company to seek independent legal advice with respect to tax
issues pertaining to the provisions of this Agreement and the documents attached
hereto.
If this Agreement is acceptable to you, please sign below and return the
originals of both to me.
Page 6
I wish you good luck in your future endeavors.
Sincerely,
LYNX THERAPEUTICS, INC.
By: /s/ Xxxxx X. San Roman
---------------------------------------------------
Xxxxx X. San Roman
Vice President, Human Resources & Administration
Exhibit A -- Letter of Resignation
Exhibit B -- Letter of Resignation to Axaron Bioscience AG
Exhibit C -- Loan Agreement
Exhibit D -- Amended Note
Exhibit E -- Employee Invention Agreement
AGREED:
/s/ Xxxxxx Xxxxxxx DATE: 12 July 2002
-------------------------------------------- ------------------------
Xxxxxx Xxxxxxx, Ph.D.
EXHIBIT A
LETTER OF RESIGNATION
Xx. Xxxxx X. Xxxxxx
Chairman of the Board
Lynx Therapeutics, Inc.
00000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Dear Xxxxx:
As we have discussed, I have resigned as Chief Executive Officer,
Director, and from any other position or office that I may hold with Lynx
Therapeutics, Inc., effective as of May 31, 2002.
Sincerely,
/s/ Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx, Ph.D.
EXHIBIT B
LETTER OF RESIGNATION TO AXARON BIOSCIENCE AG
Xx. Xxxxxx Xxxx
President & CEO
Axaron Bioscience XX
Xx Xxxxxxxxxxx Xxxx 000
00000 Xxxxxxxxxx
Dear Xxxxxx:
I hereby resign as Director and any other position or office that I may
hold with Axaron Bioscience AG, effective as of May 31, 2002.
Sincerely,
/s/ Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx, Ph.D.
EXHIBIT C
LOAN AGREEMENT
DO NOT DESTROY THIS NOTE: WHEN PAID,
THIS NOTE AND DEED OF TRUST SECURING SAME
MUST BE SURRENDERED BEFORE
RECONVEYANCE WILL BE MADE
PROMISSORY NOTE SECURED BY
DEED OF TRUST
$250,000 HAYWARD, CALIFORNIA
NOVEMBER 8, 1999
FOR VALUE RECEIVED, the undersigned, Xxxxxx X. X. Xxxxxxx, Ph.D.
("Maker"), hereby promises to pay to the order of Lynx Therapeutics, Inc.
("Payee"), at 00000 Xxxxxxxxxx Xxxx., Xxxxxxx, XX 00000, or to such other place
as the holder hereof may from time to time designate by written notice to Maker,
in lawful money of the United States of America, the sum of Two Hundred Fifty
Thousand Dollars ($250,000).
1. The entire unpaid principal balance plus accrued interest thereon
shall become due and payable upon the earlier of (i) the date of sale, exchange,
conveyance, encumbrance, hypothecation or other transfer by Maker of real
property at 00 Xxxxxxxx Xxxxx, Xxxxxxxx, XX 00000 or (ii) Xxxxxx X. X. Xxxxxxx
ceases to be a full time employee of Lynx Therapeutics, Inc. or an affiliate
thereof.
2. Interest shall accrue hereon from the date of this Note until paid,
at the rate of 6.02% per annum on the principal balance remaining from time to
time unpaid, compounded annually. Accrued interest shall be due and payable when
principal becomes due and payable in lawful tender of the United States of
America.
3. The principal and related accrued interest thereon will be forgiven
on the following terms: Fifty Percent (50%) of principal plus accrued interest
thereon shall be forgiven at the end of two years of full-time employment; an
additional Twenty-five Percent (25%) of principal plus accrued interest thereon
will be forgiven at the end of three years of full-time employment; and the
remaining Twenty-five Percent (25%) of principal plus accrued interest thereon
will be forgiven at the end of four years of full-time employment.
4. The entire unpaid principal balance plus accrued interest thereon at
the election of Payee, becomes immediately due and payable upon the occurrence
of any of the following, if any of these events occur prior to the end of four
years of full-time employment by Xxxxxx X. X. Xxxxxxx:
(a) Any failure on the part of the Maker to make any payment when
the same is due and to cure such default within five (5) days after notice is
given by Payee.
(b) Any failure on the part of Maker (i) to perform or observe
any of their obligations under any of the "Loan Documents" (hereinafter
defined), and (ii) to commence and proceed diligently to cure such default
within ten (10) days after written notice thereof is given by Payee, and in any
event to cure such default within thirty (30) days after the date on which such
notice is given.
(c) The sale, exchange, conveyance, encumbrance, hypothecation or
other transfer of the real property subject to the Deed of Trust (hereinafter
defined), or any part thereof or interest therein, or the entering into by Maker
of any contract or agreement to do so.
(d) The filing by Maker of a voluntary petition in bankruptcy, a
petition for reorganization, arrangement or other relief under federal or state
bankruptcy laws, or a voluntary petition for the appointment of a receiver or
for other relief under the Laws of any state, or the making by Maker of an
assignment of all or substantially all of its assets for the benefit of
creditors.
(e) The adjudication of Maker as a bankrupt or insolvent, the
appointment of a receiver of all or substantially all of Maker's assets, or the
entry of an order of the reorganization of Maker under applicable federal or
state bankruptcy laws, if such adjudication, order or appointment is made upon a
petition filed against Maker and is not, within sixty (60) days after it is
made, vacated or stayed on appeal or otherwise, or if Maker by any action or
failure to act signifies its approval thereof, consent thereto or acquiescence
therein.
5. In the event of any failure on the part of Maker to make any payment
when due, whether at maturity, as herein provided, or by reason of acceleration
of maturity under the terms of paragraphs 4 and 9 hereof, Payee shall be
entitled to recover from Maker all costs of effecting collection of the same,
including reasonable attorney's fees and all costs of collection, whether suit
be brought or not.
6. Maker may prepay all or any part of the monies due hereunder without
penalty.
7. Any notice to either party hereto may be given by delivering the same
in writing to such person, or by sending the same by registered or certified
mail, postage prepaid, to the following mailing addresses or to any other
mailing addresses within the State of California of which the parties notify
each other:
MAKER: Xxxxxx X. X. Xxxxxxx, Ph.D.
00 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
PAYEE: Lynx Therapeutics Inc.
00000 Xxxxxxxxxx Xxxx.
Xxxxxxx, XX 00000
Attn: Chief Financial Officer
8. This Note is secured by (i) a certain Second Deed of Trust of even
date herewith (the "Deed of Trust"), covering certain real property located at
00 Xxxxxxxx Xxxxx, Xxxxxxxx, XX 00000 and more fully described in Exhibit A to
the Deed of Trust.
The Deed of Trust and all other documents now and/or hereinafter issued
in connection with the loan evidenced hereby are herein collectively referred to
as the "Loan Documents".
9. In the event that Maker, without the prior written consent of Payee
sells, exchanges, conveys, encumbers, hypothecates or otherwise transfers the
real property covered by the Deed of Trust or any interest therein or portion
thereof, or agrees to do so, Payee may, at its option, declare all sums secured
hereby immediately due and payable. Consent to one such transaction shall not be
deemed to be a waiver of the right to grant or withhold such consent to future
or successive transactions, at Payee's sole discretion. Not withstanding the
above, Maker shall not refinance the subject property without the prior written
consent of Payee, which consent shall not be withheld unreasonably.
10. In the event that any one or more of the provisions contained in
this Note or any of the Loan Documents shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Note or any of the
Loan Documents, but this Note and the Loan Documents shall be construed as if
such invalid, illegal or unenforceable provisions had never been contained
herein or therein.
11. Any failure of the Payee to exercise or enforce any right hereunder
or under any of the Loan Documents shall not constitute a waiver of such right.
All rights of the Payee hereunder or under the Loan Documents shall be
cumulative and not alternative and shall be in addition to any other rights and
remedies granted to the Payee pursuant to any other agreement, by statute, or by
law.
12. This Note may not be changed orally, but only by an agreement in
writing signed by the parties against whom enforcement of any waiver, change,
modification or discharge is sought.
13. This Note shall be construed and enforced in accordance with, and
governed by, the laws of the State of California and shall be binding upon and
shall inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, legal representatives, successors and assigns.
14. The obligations of the undersigned under the Loan Documents shall be
joint and several.
WITNESS, the undersigned has executed this Note, with the intent of
being legally bound, effective as of the date first set forth above.
/s/ Xxxxxx Xxxxxxx
----------------------------------------
Xxxxxx X. X. Xxxxxxx, Ph.D.
EXHIBIT D
AMENDED AND RESTATED NOTE
AMENDED AND RESTATED PROMISSORY NOTE SECURED BY
DEED OF TRUST
$77,355.07 JULY 9, 0000
Xxxxxxx, Xxxxxxxxxx
This AMENDED AND RESTATED PROMISSORY NOTE SECURED BY DEED OF TRUST
("NOTE") amends and restates that certain Promissory Note Secured by Deed of
Trust in the principal amount of $250,000, executed on November 8, 1999, in
Hayward California by XXXXXX X. X. XXXXXXX ("BORROWER") in favor of LYNX
THERAPEUTICS, INC., a Delaware corporation ("LENDER").
Pursuant to the forgiveness provisions the original terms of the Note
and a payment of principal under a work separation agreement between Borrower
and Lender the outstanding principal amount of the Note has been reduced.
Accordingly, Borrower hereby unconditionally promises to pay to the
order of Lender, in lawful money of the United States of America and in
immediately available funds the principal amount of Seventy-seven Thousand Three
Hundred fifty-five and 07/100 Dollars ($77,355.07) together with all accrued and
unpaid interest thereon, if any (the "LOAN") in accordance with the terms and
conditions hereof.
1. SECURITY. This Note is secured by that certain Deed of Trust with
Assignment of Rents executed by Borrower and Borrower's spouse in favor of
Lender, as beneficiary and of even date herewith (as the same may from time to
time be amended, modified, supplemented, or restated, the "DEED OF TRUST"),
encumbering that certain real property located at 00 Xxxxxxxx Xxxxx, Xxxxxxxx,
Xxxxxxxxxx, as more particularly described therein (the "PROPERTY"). Borrower
hereby represents and warrants that, as of the date of this Note: (a) Borrower
and Borrower's spouse are the sole and lawful fee owners of the Property, (b)
the fair market value of the Property exceeds the aggregate amount of all
indebtedness secured by liens upon the Property, and (c) this Note is not for
consumer, family or household purposes as that term is defined and used in
Article XV of the California Constitution.
2. PRINCIPAL REPAYMENT.
(a) The Loan shall be due and payable in accordance with the
following schedule: one half (1/2) of the then outstanding principal plus all
accrued interest thereon shall be due and payable on September 30, 2002, and the
remaining balance of the outstanding principal plus all accrued interest thereon
shall be due and payable on December 30, 2002. Notwithstanding the foregoing,
the entire outstanding principal balance of the Loan plus all accrued interest
shall be due and payable in full immediately upon any Event of Default (as
defined in Section 7 below).
(b) This Note is subject to Section 2966 of the Civil Code, which
provides that the Lender shall give written notice of the following to Borrower
at least 90 and not more
than 150 days before the natural due date:(i) the name and address to whom the
payment is required to be paid, (ii) the date on which the payment is required
to be paid, (iii) the amount due at time of payment, and (iv) confirmation that
Borrower does not have a right to refinance the Note with Lender; provided,
however, the foregoing provisions of this section 2(b) shall be inapplicable to
an accelerated due date arising from an Event of Default.
3. INTEREST RATE. Until paid in full, this Note shall bear interest at
the rate of 6.02% compounded annually.
4. DEFAULT INTEREST. Upon the occurrence of an Event of Default, at the
Lender's option, the outstanding principal balance shall immediately begin to
accrue interest at a rate equal to fifteen percent (15.0%) compounded
continuously.
5. APPLICATION OF PAYMENTS. Any payment on this Note shall be applied
first to accrued interest, then to other amounts owing hereunder, and thereafter
to the outstanding principal balance hereof. Any payment due hereunder shall be
paid to Lender at the address for notices below. Any amount payable hereunder
shall be due and payable without set-off, deduction, or counter-claim.
6. PREPAYMENT. Subject to Section 5 above, Borrower may prepay the
outstanding principal balance of this Note in whole or in part, without penalty,
at any time.
7. DEFAULT AND REMEDIES.
(a) DEFAULT. Each of the following events shall be an "EVENT OF
DEFAULT" hereunder: (i) Borrower fails to pay timely any amounts due under this
Note on the date the same becomes due and payable, (ii) Borrower breaches any
covenant, representation, warranty, or agreement under this Note or any other
agreement with Lender, (iii) Borrower defaults on any of its obligations under
the Deed of Trust or any other instrument evidencing or securing this Note, (iv)
Borrower defaults on any of its obligations under any mortgage, deed of trust,
encumbrance or lien respecting the Property, which is senior to the Deed of
Trust, (v) Borrower dies, (vi) Borrower files a petition or action for relief
under any bankruptcy, insolvency or moratorium law or any other law for the
relief of, or relating to, debtors, now or hereafter in effect, or makes any
assignment for the benefit of creditors or takes any action in furtherance of
any of the foregoing, (vii) an involuntary petition is filed against Borrower
(unless such petition is dismissed or discharged within sixty (60) days of
filing) under any bankruptcy statute now or hereafter in effect, or a custodian,
receiver, trustee, assignee for the benefit of creditors (or other similar
official) is appointed to take possession, custody or control of any property of
Borrower, or (viii) Borrower transfers, directly or indirectly, of all or any
part of the Property, whether by sale, lease, assignment, mortgage or otherwise,
voluntarily or involuntarily.
(b) REMEDIES. Upon the occurrence of an Event of Default, all
outstanding principal, accrued interest and other amounts owing hereunder shall,
at the option of Lender, and, in the case of an Event of Default pursuant to
Sections 7(a)(vi) and (vii) above, automatically, be immediately due and
payable. Lender shall have all rights and may exercise any remedies available to
it under the Deed of Trust or at law or in equity, successively or concurrently.
2.
8. NOTICE. All notices or other communications required or given
hereunder shall be in writing and shall be deemed effectively given when
presented personally or on the date of receipt (or refusal of delivery) if sent
by courier service or U.S. Mail (certified or registered, postage prepaid,
return receipt requested) to the parties at the addresses given below or such
other addresses as the parties may hereafter designate in writing. The date
shown on the courier's confirmation of delivery or return receipt shall be
conclusive as to the date of receipt.
BORROWER: Xxxxxx X.X. Xxxxxxx
00 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
LENDER: Lynx Therapeutics, Inc.
00000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxxxx, 00000
Attn: Vice President, Human Resources
9. MAXIMUM LEGAL RATE OF INTEREST. All agreements between Borrower and
Lender, whether now existing or hereafter arising, are hereby limited so that in
no event shall the interest charged hereunder or agreed to be paid to Lender
exceed the maximum amount permitted under applicable law. Lender shall be
entitled to amortize, prorate and spread throughout the full term of this Note
all interest paid or payable so that the interest paid does not exceed the
maximum amount permitted under applicable law. If Lender ever receives interest
or anything deemed interest in excess of the maximum amount permitted under
applicable law, an amount equal to such excess shall be applied to the reduction
of the principal balance, and to the extent it exceeds the unpaid balance of
principal hereof, the remainder shall be refunded to Borrower. If interest
otherwise payable to Lender would exceed the maximum amount permitted under
applicable law, the interest payable shall be reduced to the maximum amount
permitted under applicable law. This section shall control all agreements
between Borrower and Lender in connection with the indebtedness evidenced
hereby.
10. WAIVER. Borrower waives diligence, presentment, protest and demand
and also notice of protest, demand, dishonor, acceleration, intent to
accelerate, and nonpayment of this Note and agrees to pay all costs of
collection when incurred, including, without limitation attorneys' fees, costs
and other expenses. The right to plead any and all statutes of limitations as a
defense to any demands hereunder is hereby waived to the fullest extent
permitted by law.
11. USE OF PROCEEDS; NON-TRANSFERABLE. The right of Borrower to request
and receive the Loan hereunder, as well as the other benefits under this Note,
shall not be assignable or otherwise transferable by Borrower.
12. MISCELLANEOUS.
(a) This Note may be modified only by a written agreement
executed by Borrower and Lender.
(b) The terms of this Note shall inure to the benefit of and bind
Borrower and Lender and their respective heirs, legal representatives and
successors and assigns.
3.
(c) Time is of the essence with respect to all matters set forth
in this Note.
(d) If this Note is destroyed, lost or stolen, Borrower will
deliver a new note to Lender on the same terms and conditions as this Note with
a notation of the unpaid principal in substitution of the prior Note. Lender
shall furnish to Borrower reasonable evidence that the Note was destroyed, lost
or stolen and any security or indemnity that may be reasonably required by
Borrower in connection with the replacement of this Note.
(e) If any provision of this Note shall be held to be invalid or
unenforceable, such determination shall not affect the remaining provisions of
this Note.
(f) If this Note is now, or hereinafter shall be, signed by more
than one party or person, it shall be the joint and several obligation of such
parties or persons and shall be binding upon such parties or persons and upon
their respective successors and assigns.
13. GOVERNING LAW. This Note shall be governed by, and construed and
enforced in accordance with, the laws of the State of California, excluding
conflict of laws principles that would cause the application of laws of any
other jurisdiction.
IN WITNESS WHEREOF, Borrower has executed this Secured Promissory Note
as of the date and year first above written.
BORROWER:
/s/ Xxxxxx Xxxxxxx
--------------------------------------------
XXXXXX X.X. XXXXXXX
4.
WHEN RECORDED MAIL TO:
Lynx Therapeutics, Inc.
00000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxxxx, 00000
Attn: Vice President, Human Resources
--------------------------------------------------------------------------------
SPACE ABOVE THIS LINE FOR RECORDER'S USE
DEED OF TRUST WITH ASSIGNMENT OF RENTS
(SHORT FORM)
This DEED OF TRUST, made July 9, 2002, between XXXXXX X. X. XXXXXXX and XXXX
XXXXXXX, husband and wife HEREIN COLLECTIVELY called TRUSTOR, whose address is
00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx, 00000,
FIRST AMERICAN TITLE COMPANY, herein called TRUSTEE, and
LYNX THERAPEUTICS, INC. a Delaware corporation, herein called BENEFICIARY.
WITNESSETH: That Trustor grants to Trustee in trust, with power of sale, that
property in the
City of Danville, County of Contra Costa, State of California, described as:
SEE LEGAL DESCRIPTION ATTACHED HERETO AS EXHIBIT A AND MADE A PART HEREOF
together with the rents, issues and profits thereof, subject, however, to the
right, power and authority hereinafter given to and conferred upon Beneficiary
to collect and apply such rents, issues and profits for the Purpose of Securing
(1) payment of the sum of $77,355.07 with interest thereon according to the
terms of a promissory note or notes of even date herewith made by Xxxxxx X.X.
Xxxxxxx, payable to order of Beneficiary, and extensions or renewals thereof,
(2) the performance of each agreement of Trustor incorporated by reference or
contained herein, and (3) payment of additional sums and interest thereon which
may hereafter be loaned to Trustor, or Trustor's successors or assigns, when
evidenced by a promissory note or notes reciting that they are secured by this
Deed of Trust.
To protect the security of this Deed of Trust, and with respect to the property
above described Trustor expressly makes each and all of the agreements, and
adopts and agrees to perform and be bound by each and all of the terms and
provisions set forth in subdivision A, and it is mutually agreed that each and
all of the terms and provisions set forth in subdivision B of the fictitious
deed of trust recorded in Orange County August 17, 1964, and in all other
counties August 18, 1964, in the book and at the page of Official Records in the
office of the county recorder of the county where said property is located,
noted below opposite the name of such county, namely:
1.
COUNTY BOOK PAGE COUNTY BOOK PAGE COUNTY BOOK PAGE COUNTY BOOK
PAGE
ALAMEDA 1288 556 KINGS 858 713 PLACER 1028 379 SIERRA 38 187
ALPINE 3 130-31 LAKE 437 110 PLUMAS 166 1307 SISKIYOU 000 000
XXXXXX 000 000 LASSEN 192 367 RIVERSIDE 3778 347 XXXXXX 1287 621
BUTTE 1330 513 LOS T-3878 874 SACRAMENTO 5039 124 SONOMA 2067 427
ANGELES
CALAVERAS 000 000 XXXXXX 000 000 SAN XXXXXX 300 405 STANISLAUS 1970 56
COLUSA 323 391 MARIN 1849 122 SAN BERNARDINO 6213 768 XXXXXX 655 585
CONTRA COSTA 4684 1 MARIPOSA 90 453 SAN FRANCISCO A-804 596 TEHAMA 000 000
XXX XXXXX 000 000 MENDOCINO 667 99 SAN XXXXXXX 2855 283 TRINITY 108 595
EL DORADO 704 635 MERCED 1660 753 SAN XXXX 1311 137 TULARE 2530 108
OBISPO
FRESNO 5052 623 MODOC 191 93 SAN MATEO 4778 175 TUOLUMNE 177 160
XXXXX 469 76 MONO 69 302 SANTA XXXXXXX 2065 881 VENTURA 2607 237
HUMBOLDT 801 83 MONTEREY 357 239 SANTA XXXXX 6626 664 YOLO 769 16
IMPERIAL 1189 701 NAPA 704 742 SANTA XXXX 1638 607 YUBA 000 000
XXXX 000 000 NEVADA 363 94 SHASTA 800 633
XXXX 3756 690 ORANGE 7182 18 SAN DIEGO SERIES 5 BOOK 1964, PAGE 149774
shall inure to and bind the parties hereto, with respect to the property above
described. Said agreements, terms and provisions contained in said subdivisions
A and B, (identical in all counties, and printed on Pages 3 and 4 hereof) are by
the within reference thereto, incorporated herein and made a part of this Deed
of Trust for all purposes as fully as if set forth at length herein, and
Beneficiary may charge for a statement regarding the obligation secured hereby,
provided the charge therefor does not exceed the maximum allowed by law.
The undersigned Trustor, requests that a copy of any Notice of Default and any
Notice of Sale hereunder be mailed to Trustor at the address hereinbefore set
forth.
SEE ADDENDUM 1 AND ADDENDUM 2 ATTACHED HERETO AND INCORPORATED HEREIN BY THIS
REFERENCE FOR ADDITIONAL PROVISIONS.
Signature of Trustor
/s/ Xxxxxx Xxxxxxx
--------------------------------------------
Xxxxxx X. X. Xxxxxxx
/s/ Xxxx Xxxxxxx
--------------------------------------------
Xxxx Xxxxxxx
(Signatures need to be acknowledged)
2.
DO NOT RECORD
The following is a copy of Subdivisions A and B of the fictitious Deed of Trust
recorded in each county in California as stated in the foregoing Deed of Trust
and incorporated by reference in said Deed of Trust as being a part thereof as
if set forth at length therein.
To protect the security of this Deed of Trust, Trustor agrees:
To keep said property in good condition and repair; not to remove or
demolish any building thereon; to complete or restore promptly and in good and
workmanlike manner any building which may be constructed, damaged or destroyed
thereon and to pay when due all claims for labor performed and materials
furnished therefor; to comply with all laws affecting said property or requiring
any alterations or improvements to be made thereon; not to commit or permit
waste thereof; not to commit, suffer or permit any act upon said property in
violation of law; to cultivate, irrigate, fertilize, fumigate, prune and do all
other acts which from the character or use of said property may be reasonably
necessary, the specific enumerations herein not excluding the general.
To provide, maintain and deliver to Beneficiary fire insurance
satisfactory to and with loss payable to Beneficiary. The amount collected under
any fire or other insurance policy may be applied by Beneficiary upon any
indebtedness secured hereby and in such order as Beneficiary may determine, or
at option of Beneficiary the entire amount so collected or any part thereof may
be released to Trustor. Such application or release shall not cure or waive any
default or notice of default hereunder or invalidate any act done pursuant to
such notice.
To appear in and defend any action or proceeding purporting to affect
the security hereof or the rights or powers of Beneficiary or Trustee; and to
pay all costs and expenses, including cost of evidence of title and attorney's
fees in a reasonable sum, in any such action or proceeding in which Beneficiary
or Trustee may appear, and in any suit brought by Beneficiary to foreclose this
Deed.
To pay: at least ten days before delinquency all taxes and assessments
affecting said property, including assessments on appurtenant water stock; when
due, all encumbrances, charges and liens, with interest, on said property or any
part thereof, which appear to be prior or superior hereto; all costs, fees and
expenses of this Trust.
Should Trustor fail to make any payment or to do any act as herein provided,
then Beneficiary or Trustee, but without obligation so to do and without notice
to or demand upon Trustor and without releasing Trustor from any obligation
hereof, may: make or do the same in such manner and to such extent as either may
deem necessary to protect the security hereof, Beneficiary or Trustee being
authorized to enter upon said property for such purposes; appear in and defend
any action or proceeding purporting to affect the security hereof or the rights
or powers of Beneficiary or Trustee; pay, purchase, contest or compromise any
encumbrance, charge or lien which in the judgment of either appears to be prior
or superior hereto; and, in exercising any such powers, pay necessary expenses,
employ counsel and pay his reasonable fees.
To pay immediately and without demand all sums so expended by
Beneficiary or Trustee, with interest from date of expenditure at the amount
allowed by law in effect at the date hereof, and to pay for any statement
provided for by law in effect at the date hereof regarding the obligation
secured hereby any amount demanded by the Beneficiary not to exceed the maximum
allowed by law at the time when said statement is demanded.
It is mutually agreed:
That any award of damages in connection with any condemnation for public
use of or injury to said property or any part thereof is hereby assigned and
shall be paid to Beneficiary who may apply or release such monies received by
him in the same manner and with the same effect as above provided for
disposition of proceeds of fire or other insurance.
That by accepting payment of any sum secured hereby after its due date,
Beneficiary does not waive his right either to require prompt payment when due
of all other sums so secured or to declare default for failure so to pay.
That at any time or from time to time, without liability therefor and
without notice, upon written request of Beneficiary and presentation of this
Deed and said note for endorsement, and without affecting the personal liability
of any person for payment of the indebtedness secured hereby, Trustee may:
reconvey any part of said property; consent to the making of any map or plat
thereof; join in granting any easement thereon; or join in any extension
agreement or any agreement subordinating the lien or charge hereof.
That upon written request of Beneficiary stating that all sums secured
hereby have been paid, and upon surrender of this Deed and said note to Trustee
for cancellation and retention or other disposition as Trustee in its sole
discretion may choose and upon payment of its fees, Trustee shall reconvey,
without warranty, the property then held hereunder. The recitals in such
reconveyance of any matters or facts shall be conclusive proof of the
truthfulness thereof. The Grantee in such reconveyance may be described as "the
person or persons legally entitled thereto."
That as additional security, Trustor hereby gives to and confers upon
Beneficiary the right, power and authority, during the continuance of these
Trusts, to collect the rents, issues and profits of said property, reserving
unto Trustor the right, prior to any default by Trustor in payment of any
indebtedness secured hereby or in performance of any agreement hereunder, to
collect and retain such rents, issues and profits as they become due and
payable. Upon any such default, Beneficiary may at any time without notice,
either in person, by agent, or by a receiver to be appointed by a court, and
without regard to the adequacy of any
3.
security for the indebtedness hereby secured, enter upon and take possession of
said property or any part thereof, in his own name xxx for or otherwise collect
such rents, issues, and profits, including those past due and unpaid, and apply
the same, less costs and expenses of operation and collection, including
reasonable attorney's fees, upon any indebtedness secured hereby, and in such
order as Beneficiary may determine. The entering upon and taking possession of
said property, the collection of such rents, issues and profits and the
application thereof as aforesaid, shall not cure or waive any default or notice
of default hereunder or invalidate any act done pursuant to such notice.
That upon default by Trustor in payment of any indebtedness secured
hereby or in performance of any agreement hereunder, Beneficiary may declare all
sums secured hereby immediately due and payable by delivery to Trustee of
written declaration of default and demand for sale and of written notice of
default and of election to cause to be sold said property, which notice Trustee
shall cause to be filed for record. Beneficiary also shall deposit with Trustee
this Deed, said note and all documents evidencing expenditures secured hereby.
After the lapse of such time as may then be required by law following the
recordation of said notice of default, and notice of sale having been given as
then required by law, Trustee, without demand on Trustor, shall sell said
property at the time and place fixed by it in said notice of sale, either as a
whole or in separate parcels, and in such order as it may determine, at public
auction to the highest bidder for cash in lawful money of the United States,
payable at time of sale. Trustee may postpone sale of all or any portion of said
property by public announcement at such time and place of sale, and from time to
time thereafter may postpone such sale by public announcement at the time fixed
by the preceding postponement. Trustee shall deliver to such purchaser its deed
conveying the property so sold, but without any covenant or warranty, express or
implied. The recitals in such deed of any matters or facts shall be conclusive
proof of the truthfulness thereof. Any person, including Trustor, Trustee, or
Beneficiary as hereinafter defined, may purchase at such sale.
After deducting all costs, fees and expenses of Trustee and of this Trust,
including cost of evidence of title in connection with sale, Trustee shall apply
the proceeds of sale to payment of: all sums expended under the terms hereof,
not then repaid, with accrued interest at the amount allowed by law in effect at
the date hereof; all other sums then secured hereby; and the remainder, if any,
to the person or persons legally entitled thereto.
Beneficiary, or any successor in ownership of any indebtedness secured
hereby, may from time to time, by instrument in writing, substitute a successor
or successors to any Trustee named herein or acting hereunder, which instrument,
executed by the Beneficiary and duly acknowledged and recorded in the office of
the recorder of the county or counties where said property is situated, shall be
conclusive proof of proper substitution of such successor Trustee or Trustees,
who shall, without conveyance from the Trustee predecessor, succeed to all its
title, estate, rights, powers and duties. Said instrument must contain the name
of the original Trustor, Trustee and Beneficiary hereunder, the book and page
where this Deed is recorded and the name and address of the new Trustee.
That this Deed applies to, inures to the benefit of, and binds all
parties hereto, their heirs, legatees, devisees, administrators, executors,
successors and assigns. The term Beneficiary shall mean the owner and holder,
including pledgees of the note secured hereby, whether or not named as
Beneficiary herein. In this Deed, whenever the context so requires, the
masculine gender includes the feminine and/or neuter, and the singular number
includes the plural.
That Trustee accepts this Trust when this Deed, duly executed and
acknowledged, is made a public record as provided by law. Trustee is not
obligated to notify any party hereto of pending sale under any other Deed of
Trust or of any action or proceeding in which Trustor, Beneficiary or Trustee
shall be a party unless brought by Trustee.
DO NOT RECORD REQUEST FOR FULL RECONVEYANCE
TO FIRST AMERICAN TITLE INSURANCE COMPANY, TRUSTEE:
The undersigned is the legal owner and holder of the note or notes, and
of all other indebtedness secured by the foregoing Deed of Trust. Said note or
notes, together with all other indebtedness secured by said Deed of Trust, have
been fully paid and satisfied; and you are hereby requested and directed, on
payment to you of any sums owing to you under the terms of said Deed of Trust,
to cancel said note or notes above mentioned, and all other evidences of
indebtedness secured by said Deed of Trust delivered to you herewith, together
with the said Deed of Trust, and to reconvey, without warranty, to the parties
designated by the terms of said Deed of Trust, all the estate now held by you
under the same.
Dated
-------------------------
--------------------------------------
--------------------------------------
Please mail Deed of Trust,
------------------------------------------------------
Note and Reconveyance to
--------------------------------------------------------
Do not lose or destroy this Deed of Trust OR THE NOTE which it secures. Both
must be delivered to the Trustee for cancellation before reconveyance will be
made.
4.
ADDENDUM 1
TO
DEED OF TRUST
ADDITIONAL PROVISIONS
Trustor also agrees that it shall not encumber, hypothecate, sell, assign, or
otherwise transfer the property above described, and the performance of such
agreement is one of the purposes secured by this Deed of Trust.
5.
ADDENDUM 2
TO
DEED OF TRUST
1. DEFINITIONS. As used in this Addendum:
(a) "THIRD PARTY SECURED OBLIGATION" means any obligation which
is required to be performed by Borrower (as defined below) under this Deed of
Trust or which is secured by this Deed of Trust:
(b) "CO-OWNER" means Xxxx Xxxxxxx; and
(c) "BORROWER" means Xxxxxx X.X. Xxxxxxx.
As used herein, "BENEFICIARY" shall mean Beneficiary (as defined in the
Deed of Trust) or Trustee (as defined in the Deed of Trust) if acting on behalf
of Beneficiary (as defined in the Deed of Trust). All other capitalized words
are used herein as they are defined in the attached Deed of Trust.
2. RIGHTS OF BENEFICIARY. Co-Owner authorizes Beneficiary to perform any
or all of the following acts at any time in its sole discretion, all without
notice to Co-Owner and without affecting Beneficiary's rights or Co-Owner's
obligations under this Deed of Trust:
(a) Beneficiary may alter any terms of the Third Party Secured
Obligation or any part of it, including renewing, compromising, extending or
accelerating, or otherwise changing the time for payment of, or increasing or
decreasing the rate of interest on, the Third Party Secured Obligation or any
part of it;
(b) Beneficiary may take and hold any additional security for the
Third Party Secured Obligation, accept substituted security for that obligation,
and subordinate, exchange, enforce, waive, release, compromise, fail to perfect
and sell or otherwise dispose of any such security;
(c) Beneficiary may direct the order and manner of any sale of
all or any part of any security now or later to be held for the Third Party
Secured Obligation, and Beneficiary may also bid at any such sale;
(d) Beneficiary may apply any payments or recoveries from
Borrower or any other source, and any proceeds of any security, to the Third
Party Secured Obligation in such manner, order and priority as Beneficiary may
elect, whether that obligation is secured by this Deed of Trust or not at the
time of the application;
(e) Beneficiary may release Borrower of Borrower's liability for
the Third Party Secured Obligation or any part of it;
(f) Beneficiary may substitute, add or release any one or more
guarantors or endorsers; and
6.
(g) In addition to the Third Party Secured Obligation,
Beneficiary may extend other credit to Borrower, and may take and hold security
for the credit so extended, all without affecting Beneficiary's rights or
Co-Owner's liability under this Deed of Trust.
3. DEED OF TRUST TO BE ABSOLUTE. Co-Owner expressly agrees that until
each and every term, covenant and condition of this Deed of Trust and the Third
Party Secured Obligation is fully performed, Co-Owner shall not be released by
or because of:
(a) Any act or event which might otherwise discharge, reduce,
limit or modify Co-Owner's obligations under this Deed of Trust;
(b) Any waiver, extension, modification, forbearance, delay or
other act or omission of Beneficiary, or its failure to proceed promptly or
otherwise as against Borrower, any other person or any security;
(c) Any action, omission or circumstance which might increase the
likelihood that Co-Owner may be called upon to perform under this Deed of Trust
or which might affect the rights or remedies of Co-Owner as against Borrower;
and
(d) Any dealings occurring at any time between Borrower and
Beneficiary, whether relating to the Third Party Secured Obligation or
otherwise.
Co-Owner hereby expressly waives and surrenders any defense to
Co-Owner's liability under this Deed of Trust based upon any of the foregoing
acts, omissions, agreements, waivers or matters. It is the purpose and intent of
this Deed of Trust that the obligations of Co-Owner under it shall be absolute
and unconditional under any and all circumstances.
4. CO-OWNER'S WAIVERS. Co-Owner waives:
(a) All statutes of limitations as a defense to any action or
proceeding brought against Co-Owner by Beneficiary, to the fullest extent
permitted by law;
(b) Any right it may have to require Beneficiary to proceed
against Borrower, proceed against or exhaust any other security held from
Borrower, or pursue any other remedy in Beneficiary's power to pursue;
(c) Any defense based on any claim that Co-Owner's obligations
exceed or are more burdensome than those of Borrower;
(d) Any defense based on: (i) any legal disability of Borrower,
(ii) any release, discharge, modification, impairment or limitation of the
liability of Borrower to Beneficiary from any cause, whether consented to by
Beneficiary or arising by operation of law or from any bankruptcy or other
voluntary of involuntary proceeding, in or out of court, for the adjustment of
debtor-creditor relationships ("INSOLVENCY PROCEEDING") and (iii) any rejection
or disaffirmance of the Third Party Secured Obligation, or any part of it, or
any security held for it, in any such Insolvency Proceeding;
7.
(e) Any defense based on any action taken or omitted by
Beneficiary in any Insolvency Proceeding involving Borrower, including any
election to have Beneficiary's claim allowed as being secured, partially secured
or unsecured, any extension of credit by Beneficiary to Borrower in any
Insolvency Proceeding, and the taking and holding by Beneficiary of any security
for any such extension of credit;
(f) All presentments, demands for performance, notices of
nonperformance, protests, notices of protest, notices of dishonor, notices of
acceptance of this Deed of Trust, and of the existence, creation, or incurring
of new or additional indebtedness, and demands and notices of every kind;
(g) Any defense based on or arising out of any defense that
Borrower may have to the payment or performance of the Third Party Secured
Obligation or any part of it;
(h) All rights and defenses that the Co-Owner may have because
the Third Party Secured Obligation is secured by real property, which means,
among other things:
(i) The Beneficiary may foreclose under this Deed of Trust
without first foreclosing on any other real or personal property collateral; and
(ii) If the Beneficiary forecloses on any real property
collateral pledged as collateral:
(1) The amount of the Third Party Secured Obligation
may be reduced only by the price for which that collateral is sold at the
foreclosure sale, even if the collateral is worth more than the sale price; and
(2) The Beneficiary may foreclose pursuant to this Deed
of Trust even if the Beneficiary, by foreclosing on the real property
collateral, has destroyed any right the Co-Owner may have to collect from the
Borrower; and
(i) The Co-Owner waives all rights and defenses arising out
of an election of remedies by the Beneficiary, even though that election of
remedies, such as a nonjudicial foreclosure, has destroyed the Co-Owner's rights
of subrogation and reimbursement against the Borrower by the operation of
Section 580d of the California Code of Civil Procedure or otherwise.
This is an unconditional and irrevocable waiver of any rights and
defenses the Co-Owner may have because the Third Party Secured Obligation is
secured by real property. These rights and defenses include, but are not limited
to, any rights or defenses based upon Section 580a, 580b, 580d or 726 of the
California Code of Civil Procedure.
5. WAIVERS OF SUBROGATION AND OTHER RIGHTS.
(a) Upon a default by Borrower, Beneficiary in its sole
discretion, without prior notice to or consent of Co-Owner, may elect to: (i)
foreclose either judicially or nonjudicially against any real or personal
property security it may hold for the Third Party Secured Obligation, (ii)
accept a transfer of any such security in lieu of foreclosure, (iii)
8.
compromise or adjust the Third Party Secured Obligation or any part of it or
make any other accommodation with Borrower or Co-Owner, or (iv) exercise any
other remedy against Borrower or any security. No such action by Beneficiary
shall release or limit the liability of Co-Owner, who shall remain liable under
this Deed of Trust after the action, even if the effect of the action is to
deprive Co-Owner of any subrogation rights, rights of indemnity, or other rights
to collect reimbursement from Borrower for any sums paid to Beneficiary, whether
contractual or arising by operation of law or otherwise. Co-Owner expressly
agrees that under no circumstances shall it be deemed to have any right, title,
interest or claim in or to any real or personal property to be held by
Beneficiary or any third party after any foreclosure or transfer in lieu of
foreclosure of any security for the Third Party Secured Obligation.
(b) Regardless of whether Co-Owner may have made any payments to
Beneficiary, Co-Owner hereby waives: (i) all rights of subrogation, all rights
of indemnity, and any other rights to collect reimbursement from Borrower for
any sums paid to Beneficiary, whether contractual or arising by operation of law
(including the United States Bankruptcy Code or any successor or similar
statute) or otherwise, (ii) all rights to enforce any remedy that Beneficiary
may have against Borrower, and (iii) all rights to participate in any security
now or later to be held by Beneficiary for the Third Party Secured Obligation.
The waivers given in this Section 5(b) shall be effective until the Third Party
Secured Obligation has been paid and performed in full.
(c) Co-Owner understands and acknowledges that if Beneficiary
forecloses judicially or nonjudicially against any real property security for
the Third Party Secured Obligation, that foreclosure could impair or destroy any
ability that Co-Owner may have to seek reimbursement, contribution, and
indemnification from Borrower or others based on any right Co-Owner may have of
subrogation, reimbursement, contribution or indemnification. Co-Owner further
understands and acknowledges that in the absence of this Deed of Trust, such
potential impairment or destruction of Co-Owner's rights, if any, may entitle
Co-Owner to assert a defense to this Deed of Trust based on Section 580d of the
California Code of Civil Procedure as defined in Union Bank x. Xxxxxxx, 265
Cal.App.2d 40 (1968). By executing this Deed of Trust, Co-Owner freely,
irrevocably and unconditionally: (i) waives and relinquishes that defense and
agrees that Co-Owner will be fully liable under this Deed of Trust even though
Beneficiary may foreclose judicially or nonjudicially against any real property
security for the Third Party Secured Obligation, (ii) agrees that Co-Owner will
not assert that defense in any action or proceeding which Beneficiary may
commence to enforce this Deed of Trust, (iii) acknowledges and agrees that the
rights and defense that Co-Owner may have or be entitled to assert based upon or
arising out of any one or more Sections 580a, 580b, 580d or 726 of the
California Code of Civil Procedure or Section 2848 of the California Civil Code,
and (iv) acknowledges and agrees that Beneficiary is relying on this waiver in
making the Third Party Secured Obligation, and that this waiver is a material
part of the consideration which Beneficiary is receiving for making the Third
Party Secured Obligation.
6. REVIVAL AND REINSTATEMENT. If Beneficiary is required to pay, return
or restore to Borrower or any other person any amounts previously paid on the
Third Party Secured Obligation because of any Insolvency Proceeding of Borrower,
any stop notice or any other reason, the obligations of Co-Owner shall be
reinstated and revived and the rights of Beneficiary shall continue with regard
to such amounts, all as though they had never been paid.
9.
7. INFORMATION REGARDING BORROWER. Before signing this Deed of Trust,
Co-Owner understands and acknowledges that Co-Owner is aware of the financial
condition and business operations of Borrower and such other matters as Co-Owner
deems appropriate to assure Co-Owner of Borrower's ability to discharge its
obligations in connection with the Third Party Secured Obligation. Co-Owner
assumes full responsibility for that due diligence, as well as for keeping
informed of all matters which may affect Borrower's ability to pay and perform
its obligations to Beneficiary. Beneficiary has no duty to disclose to Co-Owner
any information which Beneficiary may have or receive about Borrower's financial
condition, business operations, or any other circumstances.
10.
EXHIBIT A
TO
DEED OF TRUST
LEGAL DESCRIPTION OF THE PROPERTY
[ATTACHED]
11.
RECORDING REQUESTED BY AND WHEN RECORDED
MAIL TO:
Lynx Therapeutics, Inc.
00000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxxxx, 00000
Attn: Vice President, Human Resources
--------------------------------------------------------------------------------
SPACE ABOVE THIS LINE FOR RECORDER'S USE
REQUEST FOR NOTICE UNDER SECTION 2924b CIVIL
CODE
In accordance with Section 2924b, Civil Code, request is hereby made
that a copy of any Notice of Default and a copy of any Notice of Sale under Deed
of Trust recorded as instrument No. 0000-0000000-00, on November 10, 1999,
Official Records of Contra Costa County, California, and describing land therein
as
Legal description attached hereto and made a part hereof
executed by Xxxxxx X.X. Xxxxxxx and Xxxx Xxxxxxx, husband and wife, as Trustor,
in which Washington Mutual Bank, FA is named as Lender/Beneficiary, and
California Reconveyance Company, as Trustee, be mailed to Lynx Therapeutics,
Inc. at 00000 Xxxxxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxxxxx, 00000, Attn: Vice
President, Human Resources.
The undersigned requests that a copy of any Notice of Default and of any Notice
of Sale hereunder be mailed to him at his address hereinbefore set forth.
Dated: July 19, 2002
-------
Lynx Therapeutics, Inc,
By: /s/ Xxxxx X. San Roman
---------------------------
Its: Vice President, Human Resources & Administration
----------------------------------------------------
1.
RECORDING REQUESTED BY AND WHEN RECORDED
MAIL TO:
Lynx Therapeutics, Inc.
00000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxxxx, 00000
Attn: Vice President, Human Resources
--------------------------------------------------------------------------------
SPACE ABOVE THIS LINE FOR RECORDER'S USE
REQUEST FOR NOTICE UNDER SECTION 2924b CIVIL
CODE
In accordance with Section 2924b, Civil Code, request is hereby made
that a copy of any Notice of Default and a copy of any Notice of Sale under Deed
of Trust recorded as instrument No. 0000-0000000-00, on May 8, 2000, Official
Records of Contra Costa County, California, and describing land therein as
Legal description attached hereto and made a part hereof
executed by Xxxxxx X.X. Xxxxxxx and Xxxx Xxxxxxx, husband and wife, as Trustor,
in which Xxxxx Fargo Bank, N.A. is named as Lender/Beneficiary, and American
Securities Company, as Trustee, be mailed to Lynx Therapeutics, Inc. at 00000
Xxxxxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxxxxx, 00000, Attn: Vice President, Human
Resources.
The undersigned requests that a copy of any Notice of Default and of any Notice
of Sale hereunder by mailed to him at his address hereinbefore set forth.
Dated: July 19, 2002
-------
Lynx Therapeutics, Inc,
By: /s/ Xxxxx X. San Roman
----------------------------
ITS: VICE PRESIDENT, HUMAN RESOURCES & ADMINISTRATION
----------------------------------------------------
1.
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
-------------------------------------------------------------------------------
STATE OF CALIFORNIA )
) SS.
COUNTY OF )
-----------------------------------------
On , before me, ,
----------------- -----------------------------------------------
Date Name And Title Of Officer
(e.g. "Xxxx Xxx, Notary Public")
personally appeared ,
------------------------------------------------------------
Name of Signer(s)
[ ] personally known to me -- OR -- [X] proved to me on the basis of
satisfactory evidence to be the
person(s) whose name(s) is/are
subscribed to the within instrument
and acknowledged to me that
he/she/they executed the same in
his/her/their authorized
capacity(ies), and that by
his/her/their signature(s) on the
instrument the person(s), or the
entity upon behalf of which the
person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
--------------------------------------
Signature of Notary Public
--------------------------------------------------------------------------------
OPTIONAL
Though the information below is not required by law, it may prove valuable
to persons relying on the document and could prevent fraudulent
removal and reattachment of this form to another document.
DESCRIPTION OF ATTACHED DOCUMENT
Title or Type of Document:
-----------------------------------------------------
Document Date: Number of Pages:
------------------------- ----------------------
Signer(s) Other Than Named Above:
----------------------------------------------
CAPACITY(IES) CLAIMED BY SIGNER(S) CAPACITY(IES) CLAIMED BY SIGNER(S)
Signer's Name: Signer's Name:
------------------------------------------ ---------------------------------------
[ ]Individual [ ]Individual
[ ]Corporate Officer [ ]Corporate Officer
Title(s): Title(s):
------------------------------------------- ----------------------------------------
[ ]Partner -- [ ] Limited [ ] General [ ]Partner -- [ ] Limited [ ] General
[ ]Attorney-in-Fact [ ]Attorney-in-Fact
[ ]Trustee [ ]Trustee
[ ]Guardian or Conservator ------------------ [ ]Guardian or Conservator ------------------
[ ]Other: RIGHT THUMBPRINT [ ]Other: RIGHT THUMBPRINT
------------------------ OF SIGNER ----------------------- OF SIGNER
------------------ ------------------
------------------------ Top of thumb here ---------------------- Top of thumb here
Signer is representing: Signer is representing:
----------------------------------- --------------------------------
----------------------------------- ------------------ -------------------------------- ------------------
-------------------------------------------------------------------------------------------------------------------
EXHIBIT E
EMPLOYEE INVENTION AGREEMENT
LYNX THERAPEUTICS INC.
EMPLOYEE INVENTION AGREEMENT
1. As an employee of
Lynx Therapeutics Incorporated (the "Company"), and in
consideration of the compensation now and hereafter paid to me, I agree
at all times during the term of my employment and thereafter, to hold in
strictest confidence, and not to use or to disclose to any person, firm
or corporation, without express authorization of an officer of the
Company, any information, manufacturing technique, processes, formulas,
development or experimental work, work in process, trade secrets or any
other proprietary or confidential matter relating to the products, sales
or business of the Company.
2. I further agree that I will promptly make full disclosure to the
Company, will hold in trust for the sole right and benefit of the
Company, and will assign all my right, title and interest to, any and
all inventions, discoveries, developments, improvements or trade secrets
which I may solely or jointly conceive, develop or reduce to practice,
or cause to be conceived, developed or reduced to practice, during the
period of time I am in the employ of the Company, except any invention,
discovery, development, improvement or trade secret as to which I can
prove that:
a) it was developed entirely on my own time; and
b) no equipment, supplies, facility or trade secret of the Company
was used in its development; and
c) (i) it does not relate to the business or actual or demonstrably
anticipated research or development of the Company, or (ii) it
does not result from any work performed by me for the Company.
Notwithstanding the foregoing, I also assign to or as directed by the
Company all my right, title and interest in and to any and all
inventions, discoveries, developments, improvements or trade secrets,
full title to which is required to be in the United States by a contract
between the Company and the United States or any of its agencies.
3. I agree to execute any proper oath or verify any proper document in
connection with carrying out the terms of this agreement. In the event
the
Company is unable (because of my mental or physical incapacity or for
any other reason whatsoever) to secure my signature to apply for, or to
pursue any application for any United States or foreign letters patent,
covering inventions assigned to the Company as stated above, I hereby
irrevocably designate and appoint the Company and its duly authorized
officer and agents as my agent and attorney in fact, to act for and in
my behalf and stead to execute and file any such applications and to do
all other lawfully permitted acts to further the prosecution and
issuance of letters patent thereon with the same legal force and effect
as if executed by me. I have attached hereto a list describing all
inventions made by me prior to my employment with the Company belonging
to me, relating to the Company's proposed business and products and not
assigned to the Company, or, if no such list is attached, I represent
that there are no such inventions. I hereby waive and quitclaim to the
Company any and all claims of any nature whatsoever which I now or may
hereafter have for infringement of any patent or patents resulting from
any such applications for letters patent assigned hereunder to the
Company.
4. I recognize that the Company may receive from third parties their
confidential or proprietary information subject to a duty on the
Company's part to maintain the confidentiality of such information and
to use it only for certain limited purposes. I agree that I owe the
Company and such third parties during the term of my employment and
thereafter a duty to hold all such confidential or proprietary
information in the strictest confidence and not to disclose it to any
person, firm or corporation (except as necessary in carrying out my work
for the Company consistent with the Company's agreement with such third
party) or use it for the benefit of anyone other than for the Company or
such third party consistent with the Company's agreement with such third
party without the express authorization of an officer of the Company.
5. I further agree that at the time of leaving the employ of the Company, I
will deliver to the Company and will not keep in my possession, nor
deliver to anyone else, any and all drawings, blueprints, notes,
memoranda, specifications, devices, documents, or any other material
containing or disclosing any of the matters referred to herein.
6. I agree that I will not during my employment at the Company improperly
use or disclose any proprietary information or trade secrets of my
former or concurrent employers or companies, if any, and that I shall
not bring onto the premises of the Company any unpublished document or
any property
belonging to my former or concurrent employers or companies, if any,
unless consented to in writing by said employers or companies.
7. The provisions of this agreement requiring assignment to the Company do
not apply to any invention which qualifies fully under the provisions of
Section 2870 of the California Labor Code. I will advise the company
promptly in writing of any inventions, discoveries, developments,
improvement or trade secrets that I believe meet the criteria in
subparagraphs 2 a, b, and c above; and I will at that time provide to
the Company in writing all evidence necessary to substantiate that
belief. I understand that the Company will keep in confidence and will
not disclose to third parties without my consent any confidential
information disclosed in writing to the company relating to inventions
which qualify fully under the provision of Section 2870 of the
California Labor Code.
IN WITNESS WHEREOF, I have subscribed my name hereunto this
18th day of June , 1999.
---- ---------------------------- ----
/s/ Xxxxxx Xxxxxxx
------------------------------------
Signature
Dr. NJW Xxxxxxx
------------------------------------
Print Name
/s/ Xxxxxxxx Xxxxx
------------------------------------
Witness
