Exhibit 10.40
FORM OF AMENDMENT TO
EMPLOYMENT AGREEMENT
THIS AMENDMENT TO EMPLOYMENT AGREEMENT (the "Amendment") by and between
INCYTE GENOMICS, INC., a Delaware corporation (the "Company"), and _____________
(the "Executive"), is effective as of the 24th day of July, 2002.
Whereas the Company and the Executive have entered into an Employment
Agreement dated May 2, 2001 (the "Prior Employment Agreement"), which was
subsequently amended pursuant to an Amended and Restated Employment Agreement
dated November 26, 2001 (the "Employment Agreement");
Whereas the Prior Employment Agreement and the Employment Agreement
purported to modify the post-termination exercise provisions of the Executive's
then outstanding options (the "Options") to acquire common stock of the Company;
Whereas the Company and the Executive agree and acknowledge that the
Executive never consented to the modification of the Options in accordance with
the requirements of the agreements pursuant to which the Options were granted
(the "Option Agreements"), and that the purported modification of the Options
pursuant to the Prior Employment Agreement and the Employment Agreement is null
and void ab initio;
Whereas, the Company and the Executive now desire to amend to the
Option Agreements in a manner that satisfies the applicable consent
requirements, and to amend the Employment Agreement to reflect the foregoing;
Whereas, the Company and the Executive desire to clarify certain other
provisions of the Employment Agreement; and
Whereas Compensation Committee of the Board of Directors of the Company
has determined that it is in the best interests of the Company to amend the
Agreement to so provide:
NOW, THEREFORE, the Employment Agreement is hereby amended as follows:
1. Notwithstanding any provision of the Prior Employment Agreement or
the Employment Agreement to the contrary, the provisions of the Options in
effect as of the date of grant of such Options regarding the period during which
the Options could be exercised after termination of service shall remain in
effect through the date of this Agreement, and any purported modification of
such provisions pursuant to the Prior Employment Agreement or the Employment
Agreement shall be null and void ab initio. Notwithstanding the foregoing, the
provisions of the Employment Agreement which modified the vesting of the Options
shall remain in effect.
2. The Employment Agreement is hereby amended, effective as of the
date hereof, to provide for the following modification of the post-termination
exercise provisions of the Option Agreements:
(a) Termination During the Change in Control Employment Period for
Change in Control Good Reason or Other Than for Cause, Death or Disability. If,
during the Change in Control Employment Period, the Company shall terminate the
Executive's employment other than for Cause or the Executive shall terminate
employment for Change in Control Good Reason (and the Executive's employment is
not terminated by reason of death or Disability):
All options acquired under the 1991 Stock Plan of Incyte Genomics, Inc.
or any other stock-based incentive plan of the Company shall be exercisable for
12 months following the Date of Termination.
(b) Termination During the Employment Period for Good Reason or Other
Than for Cause, Death or Disability. If, during the Employment Period, the
Company shall terminate the Executive's employment other than for Cause or the
Executive shall terminate employment for Good Reason (and the Executive's
employment is not terminated by reason of death or Disability):
All options acquired under the 1991 Stock Plan of Incyte Genomics, Inc.
or any other stock-based incentive plan of the Company shall be exercisable for
12 months following the Date of Termination.
(c) Death or Disability. If the Executive's employment is terminated
during the Employment Period or the Change in Control Employment Period due to
the death or Disability of the Executive, all options acquired under the 1991
Stock Plan of Incyte Genomics, Inc. or any other stock-based incentive plan of
the Company shall be exercisable for 12 months following the Date of
Termination.
3. The Executive acknowledges that he has had the opportunity to
consult with independent tax counsel and understands the consequences of the
foregoing amendment to the Employment Agreement and resulting modification of
the Executive's Options, and further acknowledges that such amendment and
modification comply with the consent requirements applicable under the
respective Option Agreements.
4. The Company and the Executive further agree that the Company may
satisfy its obligation to provide continued disability benefits to the Executive
following the Date of Termination by reimbursing the Executive for the cost of
disability insurance coverage obtained by the Executive, at the levels in effect
under the Company's plan at the Date of Termination. In addition, the Company
may fulfill its obligation to provide continued health benefits to the Executive
and the Executive's family following the Date of Termination, during the period
that COBRA is available, by reimbursing the Executive for the cost of continued
coverage for the Executive and the Executive's family under COBRA (including
medical, prescription, dental, vision), which Executive agrees to elect in
accordance with the applicable procedures.
5. Section 3(a)(i)(A) of the Employment Agreement is hereby amended
to provide that the definition of Accrued Obligations, for all purposes of the
Employment Agreement, shall
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be offset by the amount of any target bonus already paid to the Executive under
the Company's management bonus plan for the fiscal year in which the Change in
Control or, in the case of a termination other than on account of a Change in
Control, the Date of Termination occurs.
6. This Amendment may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
7. Capitalized terms not otherwise defined herein shall have the
respective meanings set forth in the Agreement. Except as expressly set forth
above, the terms and provisions of Agreement shall continue in full force and
effect from and after the date hereof.
IN WITNESS WHEREOF, the Executive and the Company, through its duly
authorized Officer, have executed this Amendment to be effective as of the day
and year first above written.
EXECUTIVE
____________________________________________
COMPANY
By /s/ Xxxx X. Xxxxxxxx
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Its Chief Executive Officer
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