Second Amendment to Executive Employment Agreement
10.88a
Second
Amendment to Executive Employment Agreement
This
Second Amendment (the “Amendment”) is made as of the 23rd day of February, 2007
by and between Gene
Logic
Inc., a Delaware corporation (the “Company”), and V. W. Xxxxxxxxxxx, III (the
“Executive”).
Recitals:
The
parties to this amendment have previously entered into an Executive Employment
Agreement dated March 6, 2005 (the “Agreement”) that was amended by a First
Amendment dated as of December 18, 2006 (the “First Amendment”). Terms not
otherwise defined herein shall have the meanings as defined in the
Agreement.
Upon
sale
of the Company’s Preclinical Division, Executive became entitled to various
payments under the Company’s Executive Severance Plan in the event of
termination of his employment without cause by the Company or upon certain
changes in his duties and the parties agreed that his employment would end
no
later than March 31, 2007. The parties now wish to further amend the Agreement
to provide for a continuation of Executive’s full-time employment and a change
of duties and certain benefits and payments Executive will receive. The parties
also wish to agree to certain current payments to be made and to provide that
such current payments are in lieu of any payment of base salary and/or bonus
under the Company’s Executive Severance Plan or upon the eventual termination of
his employment.
Now,
Therefore, the parties to this amendment hereby agree as follows:
|
1.
|
Superseding
of First Amendment.
The parties agree that this amendment supersedes and replaces the
First
Amendment and that, as a result, when this amendment becomes effective,
the First Amendment shall be null and void and of no effect.
|
|
2.
|
Change
in Duties. Section 1.1(a) of the Agreement is hereby amended by adding
the
following sentence at the end of such
subsection:
|
“From
and
after February 23, 2007, Company shall employ Executive as Senior Vice President
- Administration, reporting to the Company’s Chief Executive Officer (“CEO”);
the Executive’s duties shall be such executive and management duties and other
responsibilities as may be assigned to him by the CEO.
2.
Changes
in benefits.
(a)
Section 3.2 is hereby amended by adding the following at the end of such
subsection:
“The
cash
incentive compensation (bonus) earned by Executive for 2006 will be $100,000.
In
addition, in consideration for agreeing to remain employed with the Company
and
foregoing certain payments otherwise due to Executive upon termination under
the
Company's Executive Severance Plan, or upon termination of his employment (but
not foregoing the payments due upon severance pursuant to this amendment),
Executive will be paid an amount equal to twelve months salary at the 2006
rate,
which amount shall be paid on or before April 24, 2007. Executive's salary
for
2007 shall be $250,000 and Executive will be eligible to participate in the
Company’s 2007 incentive compensation plan with a target bonus, based on
achieving 100% of the targets and levels of performance established by the
Compensation Committee for 2007, of 40% of Executive’s base salary.
|
(b)
|
Section
3.9 is hereby amended by deleting the same and substituting in lieu
thereof the following:
|
“In
consideration of the payments described in Section 3.2, Executive: agrees that
he is no longer entitled to payments or other rights and benefits under the
Company’s Executive Severance Plan and waives all his rights
thereunder.“
4.
Benefits
upon Termination without Cause.
Subsection 4.7(a)(i) is hereby amended by deleting the same and substituting
in
lieu thereof the following:
(a)
(i)If
Executive’s employment is terminated by the Company without Cause, the Company
shall provide to the Executive the following compensation and benefits, upon
the
following terms:
|
§
|
Reimbursement
of the insurance premium for post-employment health care coverage
for
which Executive is eligible under COBRA because of his prior employment
by
Company for a period equal to the lesser of (a) 12 months or (b)
until
Executive becomes eligible for coverage under a new employer’s plan. Such
reimbursement will also include coverage for any dependents of Executive
who are eligible for coverage under COBRA for the same period as
Executive. Such reimbursement will be provided within a reasonable
time
following receipt by GLGC of confirmation of payment of the cost
of such
health insurance by Executive for the number of weeks covered. Executive
may request periodic reimbursement, but not more often than monthly.
Company may also elect to pay the premium directly to the party
responsible for collecting such payments rather than providing
reimbursement to Executive. Executive shall be obligated to notify
the
Company pr0omplty after Executive becomes eligible for coverage under
a
new employer’s plan.
|
|
§
|
If
Executive’s employment
is terminated by the Company without Cause prior to December 31,
2007,
Executive shall receive a percentage of the cash incentive compensation
based on achievement of targets as described in Section 3.2 of the
Agreement as revised by the Second Amendment that he would have received
if he had continued to be employed by the Company through December
31,
2007 that is determined by dividing the number of days he was employed
by
the Company in 2007 by 365. Such payment shall be made in 2008 when
other
employees receive their payments after the amounts payable under
the 2007
incentive compensation plan have been determined
|
|
§
|
Notwithstanding
the above, the reimbursement or payment of insurance premiums described
above and, if applicable, the payment of a percentage of incentive
compensation described above shall be paid or provided to Executive
no
earlier than the earliest date upon which such amounts can be paid
without
subjecting the Executive to the additional tax imposed by Code Section
409A(a)(1), if applicable. The parties agree that this Agreement
shall be
amended to the extent necessary such that, under final regulations
to be
issued under Code Section 409A, none of the payments to be provided
hereunder are subject to the additional tax imposed by Code Section
409A(a)(1).
|
|
§
|
The
reimbursement or payment of such insurance premiums payment and,
if
applicable, the payment of a percentage of incentive compensation
described above, is expressly conditioned on the receipt by Company
of a
release signed by Executive of claims arising from or connected with
Executive’s employment by the Company, in such form as may be specified by
the Company and the expiration of any revocation period specified
in the
release or by applicable law, without any revocation being made.
The
payments described in this subsection 4.7(a)(1) will not be paid
or
provided until the Company has received such release and the applicable
period for revocation of such a signed release has expired without
any
revocation having been made.
|
5.
Miscellaneous:
|
a.
|
The
Agreement remains in full force and effect and unmodified except
as
specifically provided herein. Terms not otherwise defined herein
shall
have the meaning set forth in the Agreement.
|
|
b.
|
This
amendment shall not be effective until this amendment has been approved
by
the Company’s Board of Directors or its Compensation Committee.
|
To
evidence their agreement to the terms of this Second Amendment, Executive has
signed and Company has caused its duly authorized representative to sign this
Second Amendment as of February 23, 2007
|
By:
/s/
Xxxxxxx X. Xxxxxxx, III
Xxxxxxx
X. Xxxxxxx, III
CEO
& President
|
Executive
/s/
V. W. Xxxxxxxxxxx, III
V.
W. Xxxxxxxxxxx, III
|
