1
EXHIBIT 10.4
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, made and entered into as of February ___,
2000 (the "EFFECTIVE DATE"), by and between Lexicon Genetics Incorporated, a
Delaware corporation (hereafter "COMPANY"), and Xxxxx X. Xxxxxxxxxx, Ph.D.
(hereafter "EXECUTIVE"), an individual and resident of Xxxxxxxxxx County, Texas.
W I T N E S S E T H:
WHEREAS, Company wishes to secure the services of the Executive subject
to the terms and conditions hereafter set forth; and
WHEREAS, the Executive is willing to enter into this Agreement upon the
terms and conditions hereafter set forth;
NOW, THEREFORE, in consideration of the mutual promises and agreements
set forth herein, the parties hereto agree as follows:
1. EMPLOYMENT. During the Employment Period (as defined in Section 4
hereof), the Company shall employ Executive, and Executive shall serve, as
Senior Vice President - Genomics of the Company. Executive's principal place of
employment shall be at the Company's principal corporate offices in The
Woodlands, Texas, or at such other location for the Company's principal
corporate offices during the Employment Period.
2. DUTIES AND RESPONSIBILITIES OF EXECUTIVE.
(a) During the Employment Period, Executive shall devote his
services full time to the business of the Company and its Affiliates
(as defined below), and perform the duties and responsibilities
assigned to him by the Chief Executive Officer ("CEO") or Board of
Directors (the "BOARD") of the Company to the best of his ability and
with reasonable diligence. Executive agrees to cooperate fully with the
Board, CEO and other executive officers of the Company, and not to
engage in any activity which conflicts with or interferes with the
performance of his duties hereunder. During the Employment Period,
Executive shall devote his best efforts and skills to the business and
interests of Company, do his utmost to further enhance and develop
Company's best interests and welfare, and endeavor to improve his
ability and knowledge of Company's business, in an effort to increase
the value of his services for the mutual benefit of the parties hereto.
During the Employment Period, it shall not be a violation of this
Agreement for Executive to (1) serve on corporate, civic, or charitable
boards or committees (except for boards or committees of a Competing
Business (as defined in Section 11)), (2) deliver lectures, fulfill
teaching or speaking engagements, or (3) manage personal investments;
provided that such activities do not materially interfere with
performance of Executive's responsibilities under this Agreement.
1
2
For purposes of this Agreement, "AFFILIATE" means any entity
which owns or controls, is owned or controlled by, or is under common
ownership or control with, the Company.
(b) Executive represents and covenants to Company that he is
not subject or a party to any employment agreement, noncompetition
covenant, nondisclosure agreement, or any similar agreement, covenant,
understanding, or restriction that would prohibit Executive from
executing this Agreement and fully performing his duties and
responsibilities hereunder, or would in any manner, directly or
indirectly, limit or affect the duties and responsibilities that may
now or in the future be assigned to Executive hereunder.
3. COMPENSATION.
(a) During the Employment Period, the Company shall pay to
Executive an annual base salary of $200,000 in consideration for his
services under this Agreement, payable on a pro rata basis in not less
than monthly installments, in conformity with the Company's customary
payroll practices for executive salaries. Executive's base salary shall
be subject to review at least annually, and such salary may be
adjusted, depending upon the performance of the Company and Executive,
upon the recommendation of the Compensation Committee of the Board (the
"COMPENSATION COMMITTEE"). All salary, bonus and other compensation
payments hereunder shall be subject to all applicable payroll and other
taxes.
(b) As promptly as practicable after the end of each calendar
year during the Employment Period, the Compensation Committee shall
determine whether Executive is entitled to a bonus based on the
attainment of performance goals during the calendar year then ended
(the "BONUS YEAR"). For each Bonus Year during the Employment Period
(including the Bonus Year commencing on the Effective Date and ending
on December 31, 2000), the Compensation Committee shall establish
certain performance goals for the Company and the Executive and a
targeted annual bonus amount (the amount of which annual target bonus
shall be within the sole discretion of the Compensation Committee). The
target bonus shall be paid to Executive within 60 days after the end of
the applicable Bonus Year based on the extent to which the performance
goals and objectives for the Bonus Year have been achieved. The full
amount of the target bonus shall be paid if substantially all of the
designated performance goals and objectives have been achieved for the
Bonus Year; if not, the Compensation Committee, in its discretion
exercised in good faith, may award a target bonus to Executive in an
amount less than the full target bonus for that Bonus Year. The
Compensation Committee may also award additional bonuses or other
compensation to Executive at any time in its complete discretion.
4. TERM OF EMPLOYMENT. Executive's initial term of employment
with the Company under this Agreement shall be for the period beginning on the
Effective Date and ending at midnight (CST) on December 31, 2001, unless Notice
of Termination pursuant to Section 7 is given by either the Company or Executive
to the other party. The Company and Executive shall each have the right to give
Notice of Termination at will, with or without cause, at any time, subject to
the terms and conditions of this Agreement regarding the rights and duties of
the parties upon termination of employment. The term of employment hereunder
ending on December 31, 2001, shall be referred
2
3
to herein as the "INITIAL TERM OF EMPLOYMENT." On December 31, 2001 and on
December 31st of each succeeding year (each such date being referred to as a
"RENEWAL DATE"), this Agreement shall automatically renew and extend for a
period of one (1) additional year (a "RENEWAL TERM") unless written notice of
non-renewal is delivered from one party to the other at least sixty (60) days
prior to the relevant Renewal Date or, alternatively, the parties may mutually
agree to voluntarily enter into a new employment agreement at any time. The
period from the Effective Date through the date of Executive's termination of
employment at any time for whatever reason shall be referred to herein as the
"EMPLOYMENT PERIOD."
5. BENEFITS. Subject to the terms and conditions of this
Agreement, during the Employment Period, Executive shall be entitled to the
following:
(a) REIMBURSEMENT OF BUSINESS EXPENSES. The Company shall pay
or reimburse Executive for all reasonable travel, entertainment and
other expenses paid or incurred by Executive in performing his business
obligations hereunder. Executive shall provide substantiating
documentation for expense reimbursement requests as reasonably required
by the Company.
(b) BENEFITS. Executive shall be entitled to and shall receive
all other benefits and conditions of employment available generally to
executives of the Company pursuant to Company plans and programs,
including, but not limited to, group health insurance benefits, dental
benefits, life insurance benefits, disability benefits, and pension and
retirement benefits. The Company shall not be obligated to institute,
maintain, or refrain from changing, amending, or discontinuing, any
such employee benefit program or plan, so long as such actions are
similarly applicable to covered executives generally.
Notwithstanding the previous paragraph, Company shall provide
Executive with long-term disability ("LTD") insurance coverage, at no
cost to Executive, that provides income replacement benefits to
Executive, if he should incur a long-term disability covered under such
policy, in an amount at least equal to 60% of his base salary at the
time of such disability, which benefits shall begin after a waiting
period that does not exceed six months. The income replacement benefits
described in the previous sentence shall remain payable at least until
Executive attains the age of 65 provided that he remains unable to
perform the essential functions of his occupation during such period.
To the extent that the Company's LTD policy which covers employees
generally does not provide sufficient coverage to Executive, as
described in the previous sentence, Company agrees to purchase a
supplemental LTD policy for Executive from a reputable insurer and to
pay the premiums on Executive's behalf during the Employment Period.
Notwithstanding the first paragraph of this Section 5(b), the
Company shall pay for term life insurance coverage on Executive's life,
with the beneficiary(ies) thereof designated by Executive, with a death
benefit in an amount not less than twice Executive's base salary
(pursuant to Section 3(a)) as such base salary is set on each January 1
during the Employment Period. Upon request, Executive agrees to take
any physical exams, and to provide such information, which are
reasonably necessary or appropriate to secure or maintain such term
life insurance coverage.
3
4
(c) PAID VACATION. Executive shall be entitled to a paid
annual vacation of three (3) weeks. Vacation time may be accumulated
and carried over by Executive into any subsequent year(s); provided,
however, Executive shall not be permitted to accumulate more than six
(6) weeks of accrued and unused vacation. In addition, the Executive
shall be allowed up to five (5) days each year to attend professional
continuing education meetings or seminars; provided that attendance at
such meetings or seminars shall be planned for minimum interference
with the Company's business.
6. RIGHTS AND PAYMENTS UPON TERMINATION. The Executive's right to
compensation and benefits for periods after the date on which his employment
with the Company and its Affiliates (as defined in Section 2) terminates for
whatever reason (the "TERMINATION DATE") shall be determined in accordance with
this Section 6.
(a) ACCRUED SALARY AND VACATION PAYMENTS. Executive shall
be entitled to the following payments under this Section 6(a)
regardless of the reason for termination, in addition to any payments
or benefits to which the Executive is entitled under the terms of any
employee benefit plan or the provisions of Section 6(b):
(1) his accrued but unpaid salary through his
Termination Date; and
(2) his accrued but unpaid vacation pay for the
period ending on his Termination Date in accordance with
Section 5(c) above.
(b) SEVERANCE PAYMENTS.
(1) At any time prior to a Change in Control (as
defined below), in the event that (A) Executive's employment
hereunder is terminated by the Company at any time for any
reason except (i) for Cause (as defined below) or (ii) due to
Executive's death or Disability (as defined below), or (B)
Executive terminates his own employment hereunder for Good
Reason (as defined below), then, in either such event,
Executive shall be entitled to receive, and the Company shall
be obligated to pay, Executive's base salary under Section
3(a) (without regard to any bonuses or extraordinary
compensation) then being paid to him on the Termination Date
as salary continuation (pursuant to the Company's normal
payroll procedures) for a period equal to six (6) consecutive
months following the Termination Date. In the event of
Executive's death during such salary continuation period, the
Company shall pay the sum of the present value of all
remaining payments (using a 5% discount rate) in a single
payment to Executive's surviving spouse, if any, or if there
is no surviving spouse, to Executive's estate within 60 days
of his death. Such severance payments shall be subject to
Sections 10 and 11 hereof.
Prior to a Change in Control, in the event that
Executive's employment is terminated through notice of
non-renewal as of the end of the Initial Term of Employment
(pursuant to Section 4) or any one-year Renewal Term,
Executive shall be entitled to receive, and the Company shall
be obligated to pay, Executive's base
4
5
salary under Section 3(a) (without regard to any bonuses or
extraordinary compensation) then being paid to him on the
Termination Date as salary continuation (pursuant to the
Company's normal payroll procedures) for each month following
his Termination Date, not to exceed six months, that Executive
is (A) not in violation of the confidential information,
non-competition and other covenants of Sections 10 and 11
hereof and (B) not employed by another employer, as determined
by the Company.
(2) At any time after a Change in Control (as defined
below), in the event that (A) Executive's employment hereunder
is terminated by the Company at any time for any reason except
(i) for Cause (as defined below) or (ii) due to Executive's
death or Disability (as defined below), or (B) Executive
terminates his own employment hereunder for Good Reason (as
defined below in this Section 6(c)), then, in either such
event, Executive shall be entitled to receive, and the Company
shall be obligated to pay, Executive's base salary under
Section 3(a) (without regard to any bonuses or extraordinary
compensation except as provided below in this paragraph) then
being paid to him on the Termination Date as salary
continuation (pursuant to the Company's normal payroll
procedures) for a period equal to twelve (12) consecutive
months following the Termination Date, plus an additional
single sum payment equal to one-half of Executive's target
bonus (pursuant to Section 3(b)) for the Bonus Year in which
the termination occurred, which bonus shall be payable within
30 days from the Termination Date. In the event of Executive's
death during such salary continuation period, the Company
shall pay the sum of the present value of all remaining
payments in a single payment (using a 5% discount rate) to
Executive's surviving spouse, if any, or if there is no
surviving spouse, to Executive's estate within 60 days of his
death.
After a Change in Control, in the event that the
Company terminates Executive's employment through notice of
nonrenewal as of the end of the Initial Term of Employment
(pursuant to Section 4) or any one-year Renewal Term,
Executive shall be entitled to receive, and the Company shall
be obligated to pay, Executive's base salary under Section
3(a) (without regard to any bonuses or extraordinary
compensation) then being paid to him on the Termination Date
as salary continuation (pursuant to the Company's normal
payroll procedures) for a period of six (6) consecutive months
following the Termination Date.
(3) Except as otherwise specifically provided in this
Section 6(b), severance payments shall be in addition to, and
shall not reduce or offset, any other payments that are due to
Executive from the Company (or any other source) or under any
other agreements, except that severance payments hereunder
shall offset any severance benefits otherwise due to Executive
under any severance pay plan or program maintained by the
Company that covers its employees generally. The provisions of
this Section 6(b) shall supersede any conflicting provisions
of this Agreement but shall not be construed to curtail,
offset or limit Executive's rights to any other payments,
whether contingent upon a Change in Control (as defined below)
5
6
or otherwise, under this Agreement or any other agreement,
contract, plan or other source of payment.
(4) A "CHANGE IN CONTROL" of the Company shall be
deemed to have occurred if any of the following shall have
taken place: (A) any "person" (as such term is used in
Sections 13(d) and 14(d)(2) of the Securities Exchange Act of
1934 (the "Exchange Act")) other than Xxxxxx Xxxx and his
Affiliates (defined below), taken together, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act, or any successor provisions thereto), directly
or indirectly, of securities of the Company representing
thirty-five percent (35%) or more of the combined voting power
of the Company's then-outstanding voting securities; (B) the
approval by the stockholders of the Company of a
reorganization, merger, or consolidation, in each case with
respect to which persons who were stockholders of the Company
immediately prior to such reorganization, merger, or
consolidation do not, immediately thereafter, own or control
more than fifty percent (50%) of the combined voting power
entitled to vote generally in the election of directors of the
reorganized, merged or consolidated Company's then outstanding
securities in substantially the same proportion as their
ownership of the Company's outstanding voting securities prior
to such reorganization, merger or consolidation; (C) a
liquidation or dissolution of the Company or the sale of all
or substantially all of the Company's assets; (D) in the event
any person is elected by the stockholders of the Company to
the Board who has not been nominated for election by a
majority of the Board or any duly appointed committee thereof;
or (E) following the election or removal of directors, a
majority of the Board consists of individuals who were not
members of the Board two (2) years before such election or
removal, unless the election of each director who is not a
director at the beginning of such two-year period has been
approved in advance by directors representing at least a
majority of the directors then in office who were directors at
the beginning of the two-year period. The Board, in its
discretion, may deem any other corporate event affecting the
Company to be a "Change in Control" hereunder.
An "AFFILIATE" of Xxxxxx Xxxx shall include (1) any
person or entity directly or indirectly controlling or
controlled by or under direct or indirect common control with
Xxxxxx Xxxx, (2) any spouse, immediate family member or
relative of Xxxxxx Xxxx, (3) any trust in which Xxxxxx Xxxx or
any person described in clause (2) above has a beneficial
interest, and (4) any trust established by Xxxxxx Xxxx or any
person described in clause (2) above, whether or not such
person has a beneficial interest in such trust. For purposes
of this definition of "Affiliate," the term "control" means
the power to direct the management and policies of a person,
directly or through one or more intermediaries, whether
through the ownership of voting securities by contract, or
otherwise.
(5) "DISABILITY" means a permanent and total
disability which entitles Executive to disability income
payments under the Company's long-term disability plan or
policy as then in effect which covers Executive pursuant to
Section 5(b). If Executive is not covered under the Company's
long-term disability plan or policy at
6
7
such time for whatever reason or under a supplemental LTD
policy provided by the Company, then the term "Disability"
hereunder shall mean a "permanent and total disability" as
defined in Section 22(e)(3) of the Code and, in this case, the
existence of any such Disability shall be certified by a
physician acceptable to both the Company and Executive. In the
event that the parties are not able to agree on the choice of
a physician, each shall select a physician who, in turn, shall
select a third physician to render such certification. All
costs relating to the determination of whether Executive has
incurred a Disability shall be paid by the Company.
(6) "CODE" means the Internal Revenue Code of 1986,
as amended. References in this Agreement to any Section of the
Code shall include any successor provisions of the Code or its
successor.
(7) "CAUSE" means a termination of employment
directly resulting from (1) the Executive having engaged in
intentional misconduct causing a material violation by the
Company of any state or federal laws, (2) the Executive having
engaged in a theft of corporate funds or corporate assets or
in a material act of fraud upon the Company, (3) an act of
personal dishonesty taken by the Executive that was intended
to result in personal enrichment of the Executive at the
expense of the Company, (4) Executive's final conviction (or
the entry of a plea of nolo contendere or equivalent plea) in
a court of competent jurisdiction of a felony, or (5) a breach
by the Executive during the Employment Period of the
provisions of Sections 9, 10, and 11 hereof, if such breach
results in a material injury to the Company. For purposes of
this definition of "Cause", the term "Company" shall mean the
Company or any of its Affiliates (as defined in Section 2).
(8) "GOOD REASON" means the occurrence of any of the
following events without Executive's express written consent:
(A) Before a Change in Control (as defined
in Section 6(b)), (i) a five percent (5%) or greater
reduction in Executive's annual base salary unless
any such greater reduction is (i) applied across the
board to the other senior officers of the Company
except the CEO or (ii) specifically agreed to in
writing by Executive or, after a Change in Control,
any reduction in Executive's base salary unless such
reduction is specifically agreed to in writing by
Executive, provided that, in either event, Executive
specifically terminates his employment for Good
Reason hereunder within 120 days from the date that
he has actual notice of such reduction; or
(B) Before or after a Change in Control, any
breach by the Company of any material provision of
this Agreement, provided that Executive specifically
terminates his employment for Good Reason hereunder
within 120 days from the date that he has actual
notice of such material breach; or
7
8
(C) Only following a Change in Control, any
of the following events will constitute Good Reason,
provided that Executive specifically terminates his
employment for Good Reason hereunder within 12 months
following his receipt of actual notice of an event
listed below:
(i) the failure by the Company or
its successor to expressly assume and agree
to continue and perform this Agreement in
the same manner and to the same extent that
the Company would be required to perform if
such Change in Control had not occurred;
(ii) Executive's duties or
responsibilities for the Company or its
successor are materially reduced; or
(iii) the Company or its successor
fails to continue in effect any pension,
medical, health-and-accident, life
insurance, or disability income plan or
program in which Executive was participating
at the time of the Change in Control (or
plans providing Executive with substantially
similar benefits), or the taking of any
action by the Company or its successor that
would adversely affect Executive's
participation in or materially reduce his
benefits under any such plan that was
enjoyed by him immediately prior to the
Change in Control, unless the Company or its
successor provides a replacement plan with
substantially similar benefits.
Notwithstanding the preceding provisions of this
Section 6(b)(8), if Executive desires to terminate his
employment for Good Reason, he shall first give written notice
of the facts and circumstances providing the basis for Good
Reason to the Board or the Compensation Committee, and allow
the Company thirty (30) days from the date of such notice to
remedy, cure or rectify the situation giving rise to Good
Reason to the reasonable satisfaction of Executive.
7. NOTICE OF TERMINATION. Any termination by the Company or the
Executive shall be communicated by Notice of Termination to the other party
hereto. For purposes of this Agreement, the term "NOTICE OF TERMINATION" means a
written notice that indicates the specific termination provision of this
Agreement relied upon and sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated.
8. NO MITIGATION REQUIRED. Executive shall not be required to
mitigate the amount of any payment provided for under this Agreement by seeking
other employment or in any other manner.
9. CONFLICTS OF INTEREST.
(a) In keeping with his fiduciary duties to Company, Executive
hereby agrees that he shall not become involved in a conflict of
interest, or upon discovery thereof, allow
8
9
such a conflict to continue at any time during the Employment Period.
Moreover, Executive agrees that he shall immediately disclose to the
Board any facts which might involve a conflict of interest that has not
been approved by the Board.
(b) Executive and Company recognize and acknowledge that it is
not possible to provide an exhaustive list of actions or interests
which may constitute a "conflict of interest." Moreover, Company and
Executive recognize there are many borderline situations. In some
instances, full disclosure of facts by the Executive to the Board may
be all that is necessary to enable Company to protect its interests. In
others, if no improper motivation appears to exist and Company's
interests have not demonstrably suffered, prompt elimination of the
outside interest may suffice. In other serious instances, it may be
necessary for the Company to terminate Executive's employment for Cause
(as defined in Section 6(b)). The Board reserves the right to take such
action as, in its good faith judgment, will resolve the conflict of
interest.
(c) Executive hereby agrees that any direct or indirect
interest in, connection with, or benefit from any outside activities,
particularly commercial activities, which interest might adversely
affect the Company or any of its Affiliates (as defined in Section 2),
involves a possible conflict of interest. Circumstances in which a
conflict of interest on the part of Executive would or might arise, and
which must be reported immediately to the Board, include, but are not
limited to, any of the following:
(1) Ownership by the Executive and his immediate
family members of more than a two percent (2%) interest, on an
aggregated basis, in any lender, supplier, contractor,
customer or other entity with which Company or any of its
Affiliates does business;
(2) Misuse of information, property or facilities to
which Executive has access in a manner which is demonstrably
and materially injurious to the interests of Company or any of
its Affiliates, including its business, reputation or
goodwill; or
(3) Materially trading in products or services
connected with products or services designed or marketed by or
for the Company or any of its Affiliates.
10. CONFIDENTIAL INFORMATION.
(a) NON-DISCLOSURE OBLIGATION OF EXECUTIVE. For purposes of
this Section 10, all references to Company shall mean and include its
Affiliates (as defined in Section 2). Executive hereby acknowledges,
understands and agrees that all Confidential Information, as defined in
Section 10(b), whether developed by Executive or others employed by or
in any way associated with Executive or Company, is the exclusive and
confidential property of Company and shall be regarded, treated and
protected as such in accordance with this Agreement. Executive
acknowledges that all such Confidential Information is in the nature of
a trade secret. Failure to xxxx any writing confidential shall not
affect the confidential nature of such writing or the information
contained therein.
9
10
(b) DEFINITION OF CONFIDENTIAL INFORMATION. The term
"CONFIDENTIAL INFORMATION" shall mean information, whether or not
originated by Executive, which is used in Company's business and (1) is
proprietary to, about or created by Company; (2) gives Company some
competitive business advantage or the opportunity of obtaining such
advantage, or the disclosure of which could be detrimental to the
interests of Company; (3) is designated as Confidential Information by
Company, known by the Executive to be considered confidential by
Company, or from all the relevant circumstances considered confidential
by Company, or from all the relevant circumstances should reasonably be
assumed by Executive to be confidential and proprietary to Company; or
(4) is not generally known by non-Company personnel. Such Confidential
Information includes, but is not limited to, the following types of
information and other information of a similar nature (whether or not
reduced to writing or designated as confidential):
(1) Work product resulting from or related to the
research, development or production of the programs of the
Company including, without limitation, the Human Gene Trap(TM)
database, OmniBank(R), homologous recombination, DNA
sequencing, phenotypic analysis, drug target validation and
drug discovery;
(2) Internal Company personnel and financial
information, vendor names and other vendor information
(including vendor characteristics, services and agreements),
purchasing and internal cost information, internal service and
operational manuals, and the manner and methods of conducting
Company's business;
(3) Marketing, partnering and business and
development plans, price and cost data, price and fee amounts,
pricing and billing policies, quoting procedures, marketing
techniques and methods of obtaining business, forecasts and
forecast assumptions and volumes, and future plans and
potential strategies of the Company which have been or are
being discussed; and
(4) Business acquisition and other business
opportunities.
(c) EXCLUSIONS FROM CONFIDENTIAL INFORMATION. The term
"CONFIDENTIAL INFORMATION" shall not include information publicly known
other than as a result of a disclosure by Executive in breach of
Section 10(a), and the general skills and experience gained during
Executive's work with the Company which Executive could reasonably have
been expected to acquire in similar work with another company.
(d) COVENANTS OF EXECUTIVE. As a consequence of Executive's
acquisition or anticipated acquisition of Confidential Information,
Executive shall occupy a position of trust and confidence with respect
to Company's affairs and business. In view of the foregoing and of the
consideration to be provided to Executive, Executive agrees that it is
reasonable and necessary that Executive make the following covenants:
(1) At any time during the Employment Period and
within ten (10) years after the Employment Period, Executive
shall not disclose Confidential Information
10
11
to any person or entity, either inside or outside of Company,
other than as necessary in carrying out duties on behalf of
Company, without obtaining Company's prior written consent
(unless such disclosure is compelled pursuant to court order
or subpoena, and at which time Executive gives notice of such
proceedings to Company), and Executive will take all
reasonable precautions to prevent inadvertent disclosure of
such Confidential Information. This prohibition against
Executive's disclosure of Confidential Information includes,
but is not limited to, disclosing the fact that any similarity
exists between the Confidential Information and information
independently developed by another person or entity, and
Executive understands that such similarity does not excuse
Executive from abiding by his covenants or other obligations
under this Agreement.
(2) At any time during or after the Employment
Period, Executive shall not use, copy or transfer Confidential
Information other than as necessary in carrying out his duties
on behalf of Company, without first obtaining Company's prior
written consent, and will take all reasonable precautions to
prevent inadvertent use, copying or transfer of such
Confidential Information. This prohibition against Executive's
use, copying, or transfer of Confidential Information
includes, but is not limited to, selling, licensing or
otherwise exploiting, directly or indirectly, any products or
services (including databases, written documents and software
in any form) which embody or are derived from Confidential
Information, or exercising judgment in performing analyses
based upon knowledge of Confidential Information.
(e) RETURN OF CONFIDENTIAL MATERIAL. Executive shall promptly
turn over to the person designated by the Board or CEO all originals
and copies of materials containing Confidential Information in the
Executive's possession, custody, or control upon request or upon
termination of Executive's employment with Company. Executive agrees to
attend a termination interview with the person or persons designated by
the Board or CEO in the Company's offices for a reasonable time period.
The purposes of the termination interview shall be (1) to confirm
turnover of all Confidential Information, (2) discuss any questions
Executive may have about his continuing obligations under this
Agreement, (3) answer questions related to his duties and on-going
projects to allow a temporary or permanent successor to obtain a better
understanding of the employment position, (4) confirm the number of any
outstanding stock options, or other long-term incentive awards, and
their vested percentages and other terms and conditions, and (5) any
other topics relating to the business affairs of Company or its
Affiliates as determined by the Company.
(f) INVENTIONS. Any and all inventions, products, discoveries,
improvements, copyrightable or patentable works or products,
trademarks, service marks, ideas, processes, formulae, methods,
designs, techniques and trade secrets (collectively hereinafter
referred to as "INVENTIONS") made, developed, conceived or resulting
from work performed by Executive (alone or in conjunction with others,
during regular hours of work or otherwise) while he is employed by
Company and which may be directly or indirectly useful in, or related
to, the business of Company (including, without limitation, research
and development activities of Company), or which are made using any
equipment, facilities, Confidential Information, materials, labor,
money, time or other resources of Company, shall be promptly
11
12
disclosed by Executive to the person or persons designated by the Board
or CEO, shall be deemed Confidential Information for purposes of this
Agreement, and shall be Company's exclusive property. Executive shall,
upon Company's reasonable request during or after the Employment
Period, execute any documents and perform all such acts and things
which are necessary or advisable in the opinion of Company to cause
issuance of patents to, or otherwise obtain recorded protection of
right to intellectual property for, Company with respect to Inventions
that are to be Company's exclusive property under this Section 10, or
to transfer to and vest in Company full and exclusive right, title and
interest in and to such Inventions; provided, however, that the expense
of securing any such protection of right to Inventions shall be borne
by Company. In addition, during or after the Employment Period,
Executive shall, at Company's expense, reasonably assist the Company in
any reasonable and proper manner in enforcing any Inventions which are
to be or become Company's exclusive property hereunder against
infringement by others. Executive shall keep confidential and will hold
for Company's sole use and benefit any Invention that is to be
Company's exclusive property under this Section 10 for which full
recorded protection of right has not been or cannot be obtained.
(g) PROPERTY RIGHTS. In keeping with his fiduciary duties to
Company, Executive hereby covenants and agrees that during his
Employment Period, and for a period of three (3) months following his
Termination Date, Executive shall promptly disclose in writing to
Company any and all Inventions, which are conceived, developed, made or
acquired by Executive, either individually or jointly with others, and
which relate to, or are useful in, the business, products or services
of Company including, without limitation, research and development
activities of the Company, or which are made using any equipment,
facilities, Confidential Information, material, labor, money, time or
other resources of the Company. In consideration for his employment
hereunder, Executive hereby specifically sells, assigns and transfers
to Company all of his worldwide right, title and interest in and to all
such Inventions.
If during the Employment Period, Executive creates any
original work of authorship or other property fixed in any tangible
medium of expression which (1) is the subject matter of copyright
(including computer programs) and (2) directly relates to Company's
present or planned business, products, or services, whether such
property is created solely by Executive or jointly with others, such
property shall be deemed a work for hire, with the copyright
automatically vesting in Company. To the extent that any such writing
or other property is determined not to be a work for hire for whatever
reason, Executive hereby consents and agrees to the unconditional
waiver of "moral rights" in such writing or other property, and to
assign to Company all of his right, title and interest, including
copyright, in such writing or other property.
Executive hereby agrees to (1) assist Company or its nominee
at all times in the protection of any property that is subject to this
Section 10, (2) not to disclose any such property to others without the
written consent of Company or its nominee, except as required by his
employment hereunder, and (3) at the request of Company, to execute
such assignments, certificates or other interests as Company or its
nominee may from time to time
12
13
deem desirable to evidence, establish, maintain, perfect, protect or
enforce its rights, title or interests in or to any such property.
(h) EMPLOYEE PROPRIETARY INFORMATION AGREEMENT. The provisions
of this Section 10 shall not supersede the Employee Proprietary
Information Agreement (the "Proprietary Agreement") between Employee
and the Company (or any other agreement of similar intent) which shall
remain in full force and effect and, moreover, this Agreement, the
Proprietary Agreement and any such other similar agreement between the
parties shall be construed and applied as being mutually consistent to
the full extent possible.
(i) REMEDIES. In the event of a breach or threatened breach of
any of the provisions of this Section 10, Company shall be entitled to
an injunction ordering the return of all such Confidential Information
and Inventions, and restraining Executive from using or disclosing, for
his benefit or the benefit of others, in whole or in part, any
Confidential Information or Inventions. Executive further agrees that
any breach or threatened breach of any of the provisions of this
Section 10 would cause irreparable injury to Company, for which it
would have no adequate remedy at law. Nothing herein shall be construed
as prohibiting Company from pursuing any other remedies available to it
for any such breach or threatened breach, including the recovery of
damages.
11. AGREEMENT NOT TO COMPETE. All references in this Section 11 to
"COMPANY" shall mean and include its Affiliates (as defined in Section 2).
(a) PROHIBITED EXECUTIVE ACTIVITIES. Executive agrees that
except in the ordinary course and scope of his employment hereunder
during the Employment Period, Executive shall not while employed by
Company and for a period of six (6) months following his Termination
Date, within the continental United States:
(1) Directly or indirectly engage or invest in, own,
manage, operate, control or participate in the ownership,
management, operation or control of, be employed by,
associated or in any manner connected with, or render services
or advice to, any Competing Business (as defined below);
provided, however, Executive may invest in the securities of
any enterprise with the power to vote up to two percent (2%)
of the capital stock of such enterprise (but without otherwise
participating in the activities of such enterprise) if such
securities are listed on any national or regional securities
exchange or have been registered under Section 12(g) of the
Securities Exchange Act of 1934;
(2) Directly or indirectly, either as principal,
agent, independent contractor, consultant, director, officer,
employee, employer, advisor (whether paid or unpaid),
stockholder, partner or in any other individual or
representative capacity whatsoever, either for his own benefit
or for the benefit of any other person or entity, solicit,
divert or take away, any customers, clients, or business
acquisition or other business opportunities of Company; or
13
14
(3) Directly or indirectly, either as principal,
agent, independent contractor, consultant, director, officer,
employee, advisor (whether paid or unpaid), stockholder,
partner or in any other individual or representative capacity
whatsoever, either for his own benefit or for the benefit of
any other person or entity, either (A) hire, attempt to hire,
contact or solicit with respect to hiring any employee of
Company, (B) induce or otherwise counsel, advise or encourage
any employee of Company to leave the employment of Company, or
(C) induce any distributor, representative or agent of Company
to terminate or modify its relationship with Company.
"COMPETING BUSINESS" means any individual, business,
firm, company, partnership, joint venture, organization, or
other entity whose products or services compete in whole or in
part, at any time during the Employment Period with the
products or services (or planned products and services) of
Company including, without limitation, genomics research,
development and products including, without limitation, the
Human Gene Trap(TM) database, OmniBank(R), homologous
recombination, DNA sequencing, phenotypic analysis, drug
target validation and drug discovery.
(b) ESSENTIAL NATURE OF NON-COMPETE OBLIGATION. It is
acknowledged, understood and agreed by and between the parties hereto
that the covenants made by Executive in this Section 11 are essential
elements of this Agreement and that, but for the agreement of the
Executive to comply with such covenants, Company would not have entered
into this Agreement.
(c) NECESSITY AND REASONABLENESS OF NON-COMPETE OBLIGATION.
Executive hereby specifically acknowledges and agrees that:
(1) Company has expended and will continue to expend
substantial time, money and effort in developing its business;
(2) Executive will, in the course of his employment,
be personally entrusted with and exposed to Confidential
Information (as defined in Section 10);
(3) Company, during the Employment Period and
thereafter, will be engaged in its highly competitive business
in which many firms, including Company, compete;
(4) Executive could, after having access to Company's
financial records, contracts, and other Confidential
Information and know-how and, after receiving training by and
experience with the Company, become a competitor;
(5) Company will suffer great loss and irreparable
harm if Executive terminates his employment and enters,
directly or indirectly, into competition with Company;
14
15
(6) The temporal and other restrictions contained in
this Section 11 are in all respects reasonable and necessary
to protect the business goodwill, trade secrets, prospects and
other reasonable business interests of Company;
(7) The enforcement of this Agreement in general, and
of this Section 11 in particular, will not work an undue or
unfair hardship on Executive or otherwise be oppressive to
him; it being specifically acknowledged and agreed by
Executive that he has activities and other business interests
and opportunities which will provide him adequate means of
support if the provisions of this Section 11 are enforced
after the Termination Date; and
(8) the enforcement of this Agreement in general, and
of this Section 11 in particular, will neither deprive the
public of needed goods or services nor otherwise be injurious
to the public.
(d) JUDICIAL MODIFICATION. Executive agrees that if an
arbitrator (pursuant to Section 21) or a court of competent
jurisdiction determines that the length of time or any other
restriction, or portion thereof, set forth in this Section 11 is overly
restrictive and unenforceable, the arbitrator or court shall reduce or
modify such restrictions to those which it deems reasonable and
enforceable under the circumstances, and as so reduced or modified, the
parties hereto agree that the restrictions of this Section 11 shall
remain in full force and effect. Executive further agrees that if an
arbitrator or court of competent jurisdiction determines that any
provision of this Section 11 is invalid or against public policy, the
remaining provisions of this Section 11 and the remainder of this
Agreement shall not be affected thereby, and shall remain in full force
and effect.
12. REMEDIES. In the event of any pending, threatened or actual breach
of any of the covenants or provisions of Section 9, 10, or 11, it is understood
and agreed by Executive that the remedy at law for a breach of any of the
covenants or provisions of these Sections may be inadequate and, therefore,
Company shall be entitled to a restraining order or injunctive relief from any
court of competent jurisdiction, in addition to any other remedies at law and in
equity. In the event that Company seeks to obtain a restraining order or
injunctive relief, Executive hereby agrees that Company shall not be required to
post any bond in connection therewith. Should a court of competent jurisdiction
or an arbitrator (pursuant to Section 21) declare any provision of Section 9,
10, or 11 to be unenforceable due to an unreasonable restriction of duration or
geographical area, or for any other reason, such court or arbitrator is hereby
granted the consent of each of the Executive and Company to reform such
provision and/or to grant the Company any relief, at law or in equity,
reasonably necessary to protect the reasonable business interests of Company or
any of its affiliated entities. Executive hereby acknowledges and agrees that
all of the covenants and other provisions of Sections 9, 10, and 11 are
reasonable and necessary for the protection of the Company's reasonable business
interests. Executive hereby agrees that if the Company prevails in any action,
suit or proceeding with respect to any matter arising out of or in connection
with Section 9, 10, or 11, Company shall be entitled to all equitable and legal
remedies, including, but not limited to, injunctive relief and compensatory
damages.
15
16
13. DEFENSE OF CLAIMS. Executive agrees that, during the
Employment Period and for a period of two (2) years after his Termination Date,
upon request from the Company, he will cooperate with the Company and its
Affiliates in the defense of any claims or actions that may be made by or
against the Company or any of its Affiliates that affect his prior areas of
responsibility, except if Executive's reasonable interests are adverse to the
Company or Affiliates in such claim or action. To the extent travel is required
to comply with the requirements of this Section 13, the Company shall, to the
extent possible, provide Executive with notice at least 10 days prior to the
date on which such travel would be required. The Company agrees to promptly pay
or reimburse Executive upon demand for all of his reasonable travel and other
direct expenses incurred, or to be reasonably incurred, to comply with his
obligations under this Section 13.
14. DETERMINATIONS BY THE COMPENSATION COMMITTEE.
(a) TERMINATION OF EMPLOYMENT. Prior to a Change in Control
(as defined in Section 6(b)), any question as to whether and when there
has been a termination of Executive's employment, the cause of such
termination, and the Termination Date, shall be determined by the
Compensation Committee in its discretion exercised in good faith.
(b) COMPENSATION. Prior to a Change in Control (as defined in
Section 6(b)), any question regarding salary, bonus and other
compensation payable to Executive pursuant to this Agreement shall be
determined by the Compensation Committee in its discretion exercised in
good faith.
15. WITHHOLDINGS: RIGHT OF OFFSET. Company may withhold and deduct
from any benefits and payments made or to be made pursuant to this Agreement (a)
all federal, state, local and other taxes as may be required pursuant to any law
or governmental regulation or ruling, (b) all other employee deductions made
with respect to Company's employees generally, and (c) any advances made to
Executive and owed to Company.
16. NONALIENATION. The right to receive payments under this
Agreement shall not be subject in any manner to anticipation, alienation, sale,
transfer, assignment, pledge or encumbrance by Executive, his dependents or
beneficiaries, or to any other person who is or may become entitled to receive
such payments hereunder. The right to receive payments hereunder shall not be
subject to or liable for the debts, contracts, liabilities, engagements or torts
of any person who is or may become entitled to receive such payments, nor may
the same be subject to attachment or seizure by any creditor of such person
under any circumstances, and any such attempted attachment or seizure shall be
void and of no force and effect.
17. INCOMPETENT OR MINOR PAYEES. Should the Board determine that
any person to whom any payment is payable under this Agreement has been
determined to be legally incompetent or is a minor, any payment due hereunder
may, notwithstanding any other provision of this Agreement to the contrary, be
made in any one or more of the following ways: (a) directly to such minor or
person; (b) to the legal guardian or other duly appointed personal
representative of the person or estate of such minor or person; or (c) to such
adult or adults as have, in the good faith knowledge of the Board, assumed
custody and support of such minor or person; and any payment
16
17
so made shall constitute full and complete discharge of any liability under this
Agreement in respect to the amount paid.
18. SEVERABILITY. It is the desire of the parties hereto that this
Agreement be enforced to the maximum extent permitted by law, and should any
provision contained herein be held unenforceable by a court of competent
jurisdiction or arbitrator (pursuant to Section 21), the parties hereby agree
and consent that such provision shall be reformed to create a valid and
enforceable provision to the maximum extent permitted by law; provided, however,
if such provision cannot be reformed, it shall be deemed ineffective and deleted
herefrom without affecting any other provision of this Agreement.
19. TITLE AND HEADINGS; CONSTRUCTION. Titles and headings to
Sections hereof are for the purpose of reference only and shall in no way limit,
define or otherwise affect the provisions hereof. Any and all Exhibits referred
to in this Agreement are, by such reference, incorporated herein and made a part
hereof for all purposes. The words "herein", "hereof", "hereunder" and other
compounds of the word "here" shall refer to the entire Agreement and not to any
particular provision hereof.
20. CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO
THE PRINCIPLES OF CONFLICTS OF LAW.
21. ARBITRATION.
(a) ARBITRABLE MATTERS. If any dispute or controversy arises
between Executive and the Company relating to (1) this Agreement in any
way or arising out of the parties' respective rights or obligations
under this Agreement or (2) the employment of Executive or the
termination of such employment, then either party may submit the
dispute or controversy to arbitration under the then-current Commercial
Arbitration Rules of the American Arbitration Association (AAA) (the
"RULES"); provided, however, the Company shall retain its rights to
seek a restraining order or injunctive relief pursuant to Section 12.
Any arbitration hereunder shall be conducted before a single arbitrator
unless the parties mutually agree that the arbitration shall be
conducted before a panel of three arbitrators. The arbitrator shall be
selected (from lists provided by the AAA) through mutual agreement of
the parties, if possible. If the parties fail to reach agreement upon
appointment of the arbitrator within twenty (20) days following receipt
by one party of the other party's notice of desire to arbitrate, then
within five (5) days following the end of such 20-day period, each
party shall select one arbitrator who, in turn, shall within five (5)
days select a third arbitrator who shall be the single arbitrator
hereunder. The site for any arbitration hereunder shall be in Xxxxxx
County or Xxxxxxxxxx County, Texas, unless otherwise mutually agreed by
the parties, and the parties hereby waive any objection that the forum
is inconvenient.
(b) SUBMISSION TO ARBITRATION. The party submitting any matter
to arbitration shall do so in accordance with the Rules. Notice to the
other party shall state the question or questions to be submitted for
decision or award by arbitration. Notwithstanding any provision of this
Section 21, Executive shall be entitled to seek specific performance of
the
17
18
Executive's right to be paid during the pendency of any dispute or
controversy arising under this Agreement. In order to prevent
irreparable harm, the arbitrator may grant temporary or permanent
injunctive or other equitable relief for the protection of property
rights.
(c) ARBITRATION PROCEDURES. The arbitrator shall set the
date, time and place for each hearing, and shall give the parties
advance written notice in accordance with the Rules. Any party may be
represented by counsel or other authorized representative at any
hearing. The arbitration shall be governed by the Federal Arbitration
Act, 9 U.S.C. Sections 1 et. seq. (or its successor). The arbitrator
shall apply the substantive law (and the law of remedies, if
applicable) of the State of Texas to the claims asserted to the extent
that the arbitrator determines that federal law is not controlling.
(d) COMPLIANCE WITH AWARD.
(1) Any award of an arbitrator shall be final and
binding upon the parties to such arbitration, and each party
shall immediately make such changes in its conduct or provide
such monetary payment or other relief as such award requires.
The parties agree that the award of the arbitrator shall be
final and binding and shall be subject only to the judicial
review permitted by the Federal Arbitration Act.
(2) The parties hereto agree that the arbitration
award may be entered with any court having jurisdiction and
the award may then be enforced as between the parties, without
further evidentiary proceedings, the same as if entered by the
court at the conclusion of a judicial proceeding in which no
appeal was taken. The Company and the Executive hereby agree
that a judgment upon any award rendered by an arbitrator may
be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law.
(e) COSTS AND EXPENSES. Each party shall pay any monetary
amount required by the arbitrator's award, and the fees, costs and
expenses for its own counsel, witnesses and exhibits, unless otherwise
determined by the arbitrator in the award. The compensation and costs
and expenses assessed by the arbitrator and the AAA shall be split
evenly between the parties unless otherwise determined by the
arbitrator in the award. If court proceedings to stay litigation or
compel arbitration are necessary, the party who opposes such
proceedings to stay litigation or compel arbitration, if such party is
unsuccessful, shall pay all associated costs, expenses, and attorney's
fees which are reasonably incurred by the other party as determined by
the arbitrator.
22. BINDING EFFECT; THIRD PARTY BENEFICIARIES. This Agreement shall be
binding upon and inure to the benefit of the parties hereto, and to their
respective heirs, executors, personal representatives, successors and permitted
assigns hereunder, but otherwise this Agreement shall not be for the benefit of
any third parties.
23. ENTIRE AGREEMENT AND AMENDMENT. This Agreement contains the entire
agreement of the parties with respect to Executive's employment and the other
matters covered herein; moreover, this Agreement supersedes all prior and
contemporaneous agreements and
18
19
understandings, oral or written, between the parties hereto concerning the
subject matter hereof. This Agreement may be amended, waived or terminated only
by a written instrument executed by both parties hereto.
24. SURVIVAL OF CERTAIN PROVISIONS. Wherever appropriate to the
intention of the parties hereto, the respective rights and obligations of said
parties, including, but not limited to, the rights and obligations set forth in
Sections 6 through 14 and 21 hereof, shall survive any termination or expiration
of this Agreement.
25. WAIVER OF BREACH. No waiver by either party hereto of a breach of
any provision of this Agreement by any other party, or of compliance with any
condition or provision of this Agreement to be performed by such other party,
will operate or be construed as a waiver of any subsequent breach by such other
party or any similar or dissimilar provision or condition at the same or any
subsequent time. The failure of either party hereto to take any action by reason
of any breach will not deprive such party of the right to take action at any
time while such breach continues.
26. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the Company and its Affiliates (as defined in Section
2), and upon any successor to the Company following a Change in Control (as
defined in Section 6(b)); provided, however, any such assignment by the Company
shall not relieve Company of its obligations hereunder unless such successor to
the Company has fully and expressly assumed the obligations of the Company to
the Executive under this Agreement. Any reference herein to "Company" shall mean
the Company as first written above, as well as any successor or successors
thereto.
This Agreement is personal to Executive, and Executive may not assign,
delegate or otherwise transfer all or any of his rights, duties or obligations
hereunder without the consent of the Board. Any attempt by the Executive to
assign, delegate or otherwise transfer this Agreement, any portion hereof, or
his rights, duties or obligations hereunder without the prior approval of the
Board shall be deemed void and of no force and effect.
27. NOTICES. Notices provided for in this Agreement shall be in writing
and shall be deemed to have been duly received (a) when delivered in person or
sent by facsimile transmission, (b) on the first business day after it is sent
by air express overnight courier service, or (c) on the third business day
following deposit in the United States mail, registered or certified mail,
return receipt requested, postage prepaid and addressed, to the following
address, as applicable:
(1) If to Company, addressed to:
Lexicon Genetics Incorporated
0000 Xxxxxxxx Xxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxxxx 00000
Attention: Corporate Secretary
(2) If to Executive, addressed to the address set forth
below his name on the execution page hereof;
19
20
or to such other address as either party may have furnished to the other party
in writing in accordance with this Section 27.
28. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute one and the same instrument.
Each counterpart may consist of a copy hereof containing multiple signature
pages, each signed by one party, but together signed by both parties hereto.
29. EXECUTIVE ACKNOWLEDGMENT; NO STRICT CONSTRUCTION. The Executive
represents to Company that he is knowledgeable and sophisticated as to business
matters, including the subject matter of this Agreement, that he has read the
Agreement and that he understands its terms and conditions. The parties hereto
agree that the language used in this Agreement shall be deemed to be the
language chosen by them to express their mutual intent, and no rule of strict
construction shall be applied against either party hereto. Executive also
represents that he is free to enter into this Agreement including, without
limitation, that he is not subject to any other contract of employment or
covenant not to compete that would conflict in any way with his duties under
this Agreement. Executive acknowledges that he has had the opportunity to
consult with counsel of his choice, independent of Employer's counsel, regarding
the terms and conditions of this Agreement and has done so to the extent that
he, in his unfettered discretion, deemed to be appropriate.
30. SUPERSEDING AGREEMENT. This Employment Agreement shall supersede
any prior employment agreement entered into between the Company and Executive.
IN WITNESS WHEREOF, the Executive has hereunto set his hand, and
Company has caused this Agreement to be executed in its name and on its behalf,
to be effective as of the Effective Date first above written.
EXECUTIVE:
Signature:
----------------------------------
Xxxxx X. Xxxxxxxxxx, Ph.D.
Date:
---------------------------------------
Address for Notices:
00 Xxxxxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxxxx 00000
LEXICON GENETICS INCORPORATED
By:
-----------------------------------------
Xxxxxx X. Xxxxx, M.D., Ph.D.
President and Chief Executive Officer
Date:
----------------------------------------
20
