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EXHIBIT 10.28
AMENDED PROMISSORY NOTE
$500,000.00 JULY 17, 2000
Mountain View, California
FOR VALUE RECEIVED, DANIEL KISNER, M.D. ("EMPLOYEE"), an employee of
Caliper Technologies Corp. ("COMPANY"), hereby unconditionally promises to pay
to the order of Company, in lawful money of the United States of America and in
immediate available funds, the principal sum of Four Hundred Twenty Five
Thousand Dollars ($425,00.00) as originally advanced on July 29, 1999 and
Seventy Five Thousand Dollars ($75,000.00) being additionally advanced as of
July 17, 2000 (the "COMBINED LOAN") due and payable on the date and in the
manner set forward below.
1. INTENT. It is the intent of the parties that the purpose of this
Amended Note is not for consumer, family or household purposes.
2. PRINCIPAL REPAYMENT. The outstanding principal amount of the Combined
Loan shall be due and payable on the earlier of the following (the "MATURITY
DATE"): (a) July 29, 2005; or (b) the date at which the employee voluntarily
terminates his employment relationship with the Company.
3. INTEREST RATE. Employee further promises to pay interest on the
outstanding principal at the rate hereof from the date hereof until payment in
full, which interest shall be payable at the rate of 5.96% per annum or the
maximum rate permissible by law (which under the laws of the State of California
shall be deemed to be the laws relating to permissible rates of interest on
commercial loans), whichever is less, compounded annually. Interest shall be due
and payable on the Maturity Date and shall be calculated on the basis of a 360
day year for the actual number of days elapsed.
4. PLACE OF PAYMENT; PREPAYMENT. All amounts payable hereunder shall be
payable at the office of Company unless another place of payment shall be
signified in writing by Company. Prepayment is permitted.
5. APPLICATION OF PAYMENTS. Payment on this Amended Note shall be
applied first to accrued interest, if any, and thereafter to the outstanding
principal balance hereof.
6. DEFAULT. Each of the following events shall be an "EVENT OF DEFAULT"
hereunder:
(a) Employee fails to pay timely any of the principal amount due
under this Amended Note on the date the same becomes due and payable or any
accrued interest or other amounts due under this Amended Note, if any, on the
date the same becomes due and payable, or fails to perform any other obligations
hereunder;
(b) Employee files a petition or action for relief under any
bankruptcy, insolvency or moratorium law or any other law for 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 foregoing;
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(c) An involuntary petition is filed against Employees (unless
such petition is dismissed or discharged within sixty (60) days) 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 Employee; or
(d) Employee's employment by or association with the Company is
terminated for any reason or no reason, including, without limitation, death of
Employee.
Upon the occurrence of an Event of Default hereunder, all unpaid principal,
accrued interest and other amounts owing hereunder, if any, shall at the option
of Company, and, in the case of an Event of Default pursuant to (b) or (c)
above, automatically, be immediately due, payable and collectible by Company
pursuant to applicable law. Notwithstanding the foregoing, if an Event of
Default has occurred under (d) above due to the Company's termination of
Employee employment with the Company with or without cause, this Amended Note
shall be converted to a five (5) year note at an interest rate equal to the
Prime Rate plus one percent (1%), compounded annually, and the principal shall
be payable in five equal annual installments, together with interest thereon
payable in arrears calculated on the basis of a 360 day year for the actual
number of days elapsed, beginning one year from such date of termination of
employment. The Prime Rate shall mean the variable rate of interest, per annum,
most recently published in the Money Rate Section of the New York Edition of The
Wall Street Journal, as the "prime rate". The Company shall have the rights and
may exercise any remedies available to it under law, successively or
concurrently. Employee expressly acknowledges and agrees that Company shall have
the right to offset any obligations of Employee hereunder against salaries,
bonuses or other amounts that may be payable to Employee by Company.
7. WAIVER. Employee waives presentment and demand for payment, notice of
dishonor, protest and notice of protest of this Amended Note, and shall pay all
costs of collection when incurred, including, without limitation, reasonable
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 full extent permitted by law.
8. GOVERNING LAW. This Amended 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.
9. ENTIRE AGREEMENT. The provisions of this Amended Note supersedes any
previous Promissory Note entered into between Employee and Company and
constitutes the entire loan agreement between the parties.
10. SUCCESSORS AND ASSIGNS. The provisions of this Amended Note shall
inure to the benefit of and be binding on any successor to Employee and shall
extend to any holder hereof. Employee shall not, without the prior written
consent of holder, assign any of its rights or obligations hereunder.
Dated: July 17, 2000
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Daniel L. Kisner, M.D.
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