Exhibit 99.1
Amendment to Employment Agreement
This amendment is entered into as of October 24, 2006 between Gene Logic Inc.
(the "Company") and ______________ ("Executive").
The parties hereby agree as follows:
1. Prior Agreement. The parties have previously entered into an employment
agreement dated _______ (the "Agreement"). The parties now wish to amend
the Agreement as stated herein.
2. Amendment: The parties hereby amend the Agreement to add the following text
as a new Section X:
X Revised Benefits in the event of Termination of Executive's Employment
by Company without Cause
(a) As of the date first entered above, the provisions of this Section X
shall apply in lieu of any other provisions of this Agreement
providing for severance payments by whatever designation upon a
termination of Executive's employment by the Company without cause
(regardless of how the term "cause" has previously been defined under
the Agreement). The term "Executive" in this Section X shall refer to
the named executive in the Agreement, regardless of whether he or she
is designated therein as "Executive" or "Employee" or referred to by
surname or in any other manner. Notwithstanding anything else in this
Agreement to the contrary, from and after October 24, 2006, if the
Executive's employment by Company is terminated by Company without
Cause, in lieu of any other severance payments under the Agreement
payable in the event of such termination, the Company shall provide to
the Executive the following severance payments and benefits:
o (i) Twelve (12) months base salary, payable in a single lump sum
within fifteen (15) days after receipt of the signed release
described in subsection (b) below and expiration of any period
allowed for revocation of that release. This amount is in
addition to and not in lieu of base salary for the period prior
to termination of employment made to fulfill any requirement
under the Agreement for prior notice of termination of up to 31
days or pay in lieu thereof.
o (ii) (a) Reimbursement or, at the Company's option, direct
payment by the Company of that portion of group health insurance
premium for post-employment coverage (including without
limitation medical, dental and vision coverage) for which
Executive is eligible, and which the Executive timely elects
under COBRA because of his prior employment by Company, equal to
the percentage of the premium that Company was paying as of the
last day of Executive's employment by Company, for a period equal
to the lesser of (x) twelve (12) months or (y) until Executive
becomes eligible for coverage under a new employer's group health
plan. Such reimbursement or direct payment will also include
coverage for any dependents of Executive who are eligible for,
and timely elect, coverage under COBRA for the same period as
Executive equal to the percentage of the premium for dependent
coverage that Company was paying as of the last day of
Executive's employment by Company. Such reimbursement or direct
payment is for a period that is part of, and not in addition to,
the total period of eligibility for continuation of health
insurance benefits to which Executive, and/or the covered
dependents, are entitled under COBRA.
(b) If the option selected by the Company is reimbursement, such
reimbursement will be provided within a reasonable time following
receipt by the Company of confirmation of payment of the cost of
such health insurance by Executive (and, if applicable, covered
dependents) for the number of weeks covered. Executive (and, if
applicable, covered dependents) may request periodic
reimbursement, but not more often than monthly. Any such
reimbursement must be requested by Executive (and, if applicable,
covered dependents) no later than thirty (30) days following the
end of the calendar year in which occurred the due date for the
respective premium and, if timely requested by Executive (and, if
applicable, covered dependents), will be reimbursed by Company no
later than thirty (30) days following receipt of the
reimbursement request.
(c) If the option selected by the Company is direct payment, the
Executive (and, if applicable, covered dependents) must pay to
the Company the Executive's (and, if applicable, covered
dependent's) portion of the COBRA premium no later than the first
of each month for which COBRA coverage is continued.
o (iii) Outplacement services paid for and through a program and
vendor selected by Company and at a level appropriate for an
executive for a period not to exceed six (6) months, and in no
event costing more than twenty thousand dollars ($20,000.00), to
be used and completed within twelve (12) months after termination
of employment, unless otherwise agreed in writing by Company, but
in no event later than the end of the second calendar year
following the year of termination. Executive may not elect any
payment in lieu of such outplacement services and such services
will only become available after any release required under
subsection (b) below is signed and the revocation period
specified therein has been completed without revocation
(b) Any payments made under this Section X will be conditioned upon
execution by Executive of a comprehensive and full release of all
claims arising from or connected with his employment by the Company in
such form as may be specified by the Company (excluding from any such
release any rights Executive may have to (x) indemnification or to
insurance coverage with respect to his actions while employed by the
Company, whether by contract, under Directors and officers or other
insurance maintained by the Company or under the Company's
indemnification policies and applicable law concerning indemnification
and (y) coverage at the Executive's expense under applicable heath
care policies to the extent Executive is entitled to continued
coverage under COBRA). Such release shall be presented to Executive as
soon as practicable and in any event no later than ten (10) days
following Executive's termination of employment. The release must be
signed and returned to Company by Executive no later than twenty-one
(21) days after Executive's receipt of the release, or such longer
time limit stated in the release, and must not be revoked within the
period allowed for revocation as stated in the release in order for
Executive to become entitled to the severance and other benefits
hereunder.
(c) Notwithstanding anything to the contrary above, if the Executive is
eligible for and has met the conditions for receiving cash severance
and benefits under the Company's Executive Severance Plan, as amended
and restated effective February 23, 2001 or as subsequently amended or
under any successor plan providing severance and/or other benefits to
executives upon or in connection with a change of control of the
Company (the "Executive Severance Plan"), then the provisions set
forth in the Executive Severance Plan shall apply in lieu of severance
and benefits under this Agreement, including without limitation this
Section X. If Executive becomes entitled to cash severance and other
benefits under the Executive Severance Plan after receiving severance
or other benefits under this Agreement, the severance and other
benefits under this Agreement shall be credited against the cash
severance and benefits due under the Executive Severance Plan. In no
event shall the aggregate severance and other benefits actually paid
and provided to Executive exceed the greater of the amount payable
under this Agreement, including without limitation this Section X, and
or under the Executive Severance Plan as the result of a termination
of Executive's employment.
(d) As used in this Agreement, Cause shall have the meaning shown on
Exhibit A hereto, which exhibit is hereby incorporated into the
Agreement (regardless of how the term "cause" has previously been
defined under the Agreement).
3. The Agreement remains in full force and effect and unmodified except as
specifically provided herein.
4. Notwithstanding the above, the severance and benefits provided hereunder
shall be paid to Executive no earlier than the earliest date upon which
such severance and benefits can be paid without subjecting the Executive to
the additional tax imposed by Code Section 409A(a)(1).
5. 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 or benefits to be provided hereunder are
subject to the additional tax imposed by Code Section 409A(a)(1).
To evidence their agreement to the terms of this Amendment, Executive has signed
and Company has caused its duly authorized representative to sign this Amendment
as of _______________, 2006.
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Gene Logic Inc. Executive
By: _____________ ___________________________________
Xxxx Xxxxxxx, President
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Exhibit A
Definition of "Cause"
"Cause" shall mean:
i) commission of an act or an omission that the Company determines would
constitute:
a) a felony or
b) a misdemeanor which, in the Company's reasonable opinion, could have a
material adverse effect on the Company's business, financial
condition, prospects or reputation or the Executive's performance of
his duties, under the laws of the United States or of any state or
c) a crime involving moral turpitude, including, but not limited to,
fraud, theft, embezzlement or any crime that results in or is intended
to result in personal enrichment at the expense of the Company;
ii) a material breach by the Executive of any agreement entered into between
the Executive and the Company including without limitation the violation by
the Executive of the provisions of the Proprietary Information and
Inventions Agreement or any restrictive covenants in this Agreement dealing
with the same subject matter or a material violation of the Company's Code
of Ethics;
iii) willful misconduct by the Executive or gross negligence of the Executive
which could reasonably be expected to have a material adverse impact on the
Company;
iv) a material failure of the Executive in the performance of the Executive's
duties provided that, if susceptible of cure as determined by the Company,
notice is provided and Executive does not cure such failure within fifteen
(15) business days after the date of such notice in a manner satisfactory
to the Company; or
v) engagement in any activity that constitutes a material conflict of interest
with the Company.
With respect to any criminal act, the Company may base such a determination on
facts available to it or on an arrest or charges by an appropriate government
authority (without liability if the Executive is subsequently acquitted or the
prosecution is terminated without conviction) and may, at its option in lieu of
immediate termination, suspend the Executive without pay in lieu of immediate
termination in the event of any criminal charges, pending additional
information, criminal conviction or other action enabling a final decision on
whether termination should be "for cause".
