EXHIBIT 10.38
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of February 17, 1997 by and between Gene Logic Inc., a Delaware corporation
(the "Company") and Xxxxxx X. Xxxxxxx, a Maryland resident ("Xxxxxxx").
RECITAL:
The Company desires to secure the services of Xxxxxxx and Xxxxxxx
desires to perform such services for the Company on the terms and conditions
as set forth in this Agreement.
NOW, THEREFORE, in consideration of these premises and the mutual
promises and conditions contained in this Agreement, the parties hereto
hereby agree as follows:
1. EMPLOYMENT AND DUTIES. Subject to the terms and conditions of this
Agreement, the Company shall employ Xxxxxxx as Vice President, Business
Development and Intellectual Property management and Xxxxxxx hereby accepts
such employment and such position. Xxxxxxx shall devote his full time,
ability, attention, knowledge and skill to performing all duties as Vice
President, Business Development and Intellectual Property Management as
lawfully assigned or delegated to him by the Senior Vice President Corporate
Development and Chief Financial Officer of the Company. Xxxxxxx will report
to the Senior Vice President Corporate Development and Chief Financial
Officer of the Company.
2. BASE SALARY. In consideration for Xxxxxxx'x services to the
Company during the term of his employment under this Agreement, Xxxxxxx shall
receive an annual base salary of no less than $135,000. The annual base
salary will be prorated for any partial year of employment on the basis of a
365-day fiscal year. Base salary shall be paid in equal, bi-weekly
installments from which the Company shall withhold and deduct al applicable
federal and state income, social security, disability and other taxes as
required by applicable laws.
3. INCENTIVE STOCK OPTIONS. Upon commencement of the term of
employment engaged by this Agreement, the Company shall grant to Xxxxxxx
incentive stock options to purchase 50,000 shares of the Company's common
stock at a purchase price of $0.15 per share. These incentive stock options
will be subject to vesting over a 4 year period with 10,000 shares vesting
upon commencement of employment and the remaining 40,000 shares vesting at a
rate of 1/48th each month for 48 months. An additional 10,000 shares of any
unvested incentive stock options held by Xxxxxxx pursuant to this Subsection
3 shall automatically become vested when a registration statement for the
sale of securities of the Company to the public becomes effective, or upon
any merger of the Company or sale of the Company or all or substantially all
of its assets.
4. ADDITIONAL COMPENSATION AND BENEFITS.
4.1 UPFRONT BONUS. Upon the execution of this Agreement, the
Company shall pay to Xxxxxxx a cash bonus in the amount of $30,000.
1.
4.2 ANNUAL PERFORMANCE BONUS. During each calendar year while
this Agreement remains in force, commencing with 1998, Xxxxxxx shall receive,
in addition to the base salary specified in Section 2 above, a performance
bonus based upon achievement of goals mutually agreed by Xxxxxxx and the
Senior Vice President, Corporate Development and Chief Financial Officer of
the Company. The amount of such bonus for 1998 shall be $10,000 in cash;
thereafter any annual bonus shall be in such amount determined by the Company.
4.3 RELOCATION BENEFIT. The Company will provide Xxxxxxx with a
$30,000 payment to facilitate relocation ("Relocation Benefit") upon the sale of
Xxxxxxx'x existing home and the purchase of a new home. In the event that
Xxxxxxx voluntarily terminates his employment with the Company within a 12 month
period following the receipt of the Relocation Benefit, Xxxxxxx agrees to
reimburse the Company for the full amount of the Relocation Benefit within 30
days following the effective date of such termination.
4.4 MEDICAL BENEFITS, VACATION AND SICK LEAVE. Xxxxxxx shall be
entitled to participate in such medical, health and life insurance plans as the
Company may from time to time implement, and to receive no less than twenty (20)
days of paid vacation per on the same basis as the Company's other senior
executives.
4.5 PENSION PLAN. Xxxxxxx shall be entitled to participate as a
beneficiary under such pension plan(s) as the Company may from time to time
adopt, on the same basis as the Company's other senior executives.
5. CONFIDENTIALITY AND PROPRIETARY INVENTIONS AGREEMENT. As a condition
of this Agreement, Xxxxxxx shall enter into the Company's standard form of
agreement relating to the treatment of the Company's confidential information
and ownership of proprietary inventions a copy of which is attached as
Exhibit A.
6. TERM OF EMPLOYMENT. Subject to the provisions of Section 7, the term
of the employment engaged by this Agreement shall be period of four (4) years
commencing on March 16, 1997 and ending on March 15, 2001, whereupon the term
shall automatically renew for successive one (1) year periods unless one of the
parties to the Agreement shall have given notice of its intention to terminate
the Agreement not later than ninety (90) days prior to the end of such initial
term or any such renewal term. Xxxxxxx agrees to commence employment with the
Company no later than March 15, 1997.
7. TERMINATION OF EMPLOYMENT.
7.1 FOR CAUSE. The Company may terminate this Agreement, effective
immediately upon written notice to Xxxxxxx, if at any time, in the reasonable
opinion of the Company's Board of Directors, (a) Xxxxxxx commits any material
act of dishonesty, fraud or embezzlement with respect to the Company or any
subsidiary or affiliate thereof, (b) is convicted of a crime of moral turpitude,
or (c) breaches any material obligation under this Agreement. The Company's
total liability to Xxxxxxx in the event of termination of Xxxxxxx'x employment
under this Subsection 7.1 shall be limited to the payment of Xxxxxxx'x salary
and benefits through the effective date of termination.
2.
7.2 WITHOUT CAUSE. The Company may terminate this Agreement without
cause upon thirty (30) days' written notice to Xxxxxxx. Upon any termination of
this Agreement without cause by the Company, the Company shall pay to Xxxxxxx as
severance pay in one lump sum an amount equal to three (3) months of his then
current salary in addition to such other compensation to which Xxxxxxx may be
entitled prior to the date of termination.
7.3 BY XXXXXXX. Xxxxxxx reserves the right to terminate his
employment hereunder for any reason upon thirty (30) days' written notice to the
Company. The Company's total liability to Xxxxxxx in the event of termination
of Xxxxxxx'x employment under this Subsection 7.3 shall be limited to the
payment of Xxxxxxx'x salary and benefits through the effective date of
termination and the provisions of Subsection 7.2 shall not apply.
8. MISCELLANEOUS.
8.1 MODIFICATION. Any modification of this Agreement shall be
effective only if reduced to writing and signed by the parties to be bound
thereby.
8.2 ENTIRE AGREEMENT. This Agreement including Exhibit A constitutes
the entire agreement between the Company and the Xxxxxxx pertaining to the
subject matter hereof and supersedes all prior or contemporaneous written or
verbal agreements and written or verbal agreements and understandings between
the parties in connection with the subject matter hereof.
8.3 SEVERABILITY. If any provision of this Agreement is held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remaining provisions shall, nevertheless, continue in full force and effect
without being impaired or invalidated in any way.
8.4 WAIVER. The parties hereto shall not be deemed to have waived
any of their respective rights under this Agreement unless the waiver is in
writing and signed by the waiving party. No delay in exercising any right shall
be a waiver of such right nor shall a waiver of any right on one occasion
operate as a waiver of such right on a future occasion.
8.5 COSTS OF ENFORCEMENT. If any action or proceeding shall be
commenced to enforce this Agreement or any right arising in connection with this
Agreement, each party shall initially bear its own costs and legal fee
associated with such action or proceeding. The prevailing party in any such
action or proceeding shall be entitled to recover from the other party the
reasonable attorneys' fees, costs and expenses incurred by such prevailing party
in connection with such action or proceeding.
8.6 NOTICES. All notices provided for herein shall be in writing and
delivered personally or sent by United States mail, registered or certified,
postage paid or by Federal Express, addressed as follows:
To the Company: Gene Logic Inc.
00000 Xxx Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
3.
To Xxxxxxx: Xxxxxx X. Xxxxxxx
000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
or to such other addresses as either of such parties may from time to time
designate in writing. Any notice given under this Agreement shall be deemed
to have been given on the date of actual receipt, or, if not received during
normal business hours, on the next business day.
IN WITNESS WHEREOF, the parties have executed this Agreement by their
duly authorized officers or agents as of the date first written above.
"Company" "Employee"
GENE LOGIC INC.
A Delaware corporation
By: /s/ XXXX X. XXXXXXX By: /s/ XXXXXX X. XXXXXXX
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Xxxx X. Xxxxxxx Xxxxxx X. Xxxxxxx
Xx. Vice President Corporate Development
and Chief Financial Officer
4.
