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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, made and entered into as of October 15, 1999
(the "EFFECTIVE DATE"), by and between Lexicon Genetics Incorporated, a Delaware
corporation (hereafter "COMPANY"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D., Ph.D. (hereafter
"EXECUTIVE"), an individual and resident of ▇▇▇▇▇▇▇▇▇▇ 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 President and Chief Executive Officer and as a member of the Company's
Board of Directors ("BOARD"). 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 Board to the best of his
ability and with reasonable diligence. Executive agrees to cooperate
fully with the Board, 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 any corporate board or
committee thereof with the approval of the Board, (2) to serve on any
civic, or charitable boards or committees (except for boards or
committees of a
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Competing Business (as defined in Section 11) unless approved by the
Board), (3) deliver lectures, fulfill teaching or speaking engagements,
or (4) manage personal investments; provided, however, any such
activities must not materially interfere with performance of
Executive's responsibilities under this Agreement.
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
Bonus 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 Bonus Year then ended. The
term "Bonus Year" refers to the 12-month period beginning on October 1
and ending on September 30, with the first Bonus Year beginning on
October 1, 1998 and ending on September 30, 1999. Effective for the
Bonus Year beginning October 1, 1998, and for each Bonus Year
thereafter during the Employment Period, the Compensation Committee
shall establish certain performance goals for the Company and the
Executive and a targeted annual bonus amount (which annual target bonus
shall not exceed $50,000 unless otherwise determined by the
Compensation Committee in its discretion). The target bonus shall be
paid to Executive within 30 days after completion of the Company's
financial statements for the applicable Bonus Year (but in no event
later than 120 days after the end of such Bonus Year unless otherwise
agreed by Executive) based on the extent to which the performance goals
and objectives, in the judgment of the Compensation Committee, for the
Bonus Year
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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 four-year period
beginning on the Effective Date and ending at midnight (CST) on December 31,
2002, 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, 2002, shall be referred to herein as
the "INITIAL TERM OF EMPLOYMENT." On December 31, 2002 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 (the "RENEWAL TERM") unless written notice of nonrenewal is
delivered from one party to the other at least ninety (90) 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.
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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 for the Company
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.
(c) SPLIT DOLLAR LIFE INSURANCE. Within sixty (60) days
of the Effective Date, the Company agrees to enter into a split dollar
life insurance agreement with Executive, upon terms acceptable to the
parties, with any established and reputable insurance company
reasonably acceptable to the Executive, for a whole or universal life
insurance policy on the life of Executive with a policy death benefit
of at least $1,000,000. Executive's rights under the policy shall be
determined in accordance with the terms of the split dollar life
insurance agreement.
(d) PAID VACATION. Executive shall be entitled to a paid
annual vacation of four (4) 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 eight
weeks of accrued and unused vacation. In addition, the Executive shall
be allowed up to ten (10) 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.
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6. RIGHTS AND PAYMENTS UPON TERMINATION. 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(d) above.
(b) SEVERANCE PAYMENT.
(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);
(B) Executive terminates his own
employment hereunder for Good Reason (as
defined below); or
(C) 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,
then, in any 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 of
twelve (12) consecutive months following the Termination Date.
In the event of Executive's death during such salary
continuation period, the Company shall pay, within 60 days of
Executive's death, a lump sum equal to the present value of
all remaining payments (using a 5% interest discount rate) to
the Executive's surviving spouse, if any, or if there is no
surviving spouse, to Executive's estate.
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(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);
(B) Executive terminates his own
employment hereunder for Good Reason (as
defined below in this Section 6(c); or
(C) 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,
then, in any 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 of twelve
(12) consecutive months following the Termination Date, plus
an additional single sum payment equal to Executive's full
target bonus (pursuant to Section 3(b)) for the Bonus Year in
which the termination occurred which shall be payable within
30 days from the Termination Date. In the event of Executive's
death during such salary continuation period, the Company,
within 60 days of Executive's death, shall pay a lump sum
equal to the present value of all remaining payments (using a
5% interest discount rate) to the Executive's surviving
spouse, if any, or if there is no surviving spouse, to
Executive' estate.
(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) or otherwise, under this Agreement
or any other agreement, contract, plan or other source of
payment.
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(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 ▇▇▇▇▇▇ ▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇ shall include (1) any
person or entity directly or indirectly controlling or
controlled by or under direct or indirect common control with
▇▇▇▇▇▇ ▇▇▇▇, (2) any spouse, immediate family member or
relative of ▇▇▇▇▇▇ ▇▇▇▇, (3) any trust in which ▇▇▇▇▇▇ ▇▇▇▇ or
any person described in clause (2) above has a beneficial
interest, and (4) any trust established by ▇▇▇▇▇▇ ▇▇▇▇ 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.
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(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 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)(4)), 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 or (ii) specifically agreed to in writing by
Executive or, after a Change in Control, any
reduction in Executive's base salary unless agreed to
in writing by Executive, provided that in either
event Executive specifically terminates his
employment for Good Reason
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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
(C) Before or after a Change in
Control, for any reason except on account of
Executive's Disability (as defined above), a
substantial and adverse change in the Executive's
duties, control, authority, status or position, or
the assignment to the Executive of any duties or
responsibilities which are materially inconsistent
with such status or position, or a material reduction
in the duties and responsibilities exercised by
Executive, or a loss of title, loss of office, loss
of significant authority, power or control, or any
removal of Executive from, or any failure to
reappoint or reelect him to, his CEO or Board
membership positions stated in Section 1; provided
that Executive specifically terminates his employment
for Good Reason hereunder within 120 days from the
date that he has actual notice of such action; or
(D) Only after a Change in Control (as
defined in Section 6(b)), any of the following events
will constitute Good Reason, provided that Executive
specifically terminates his employment for Good
Reason hereunder within six (6) 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) 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
replacement plans or programs 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 or program that was enjoyed by
him immediately
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prior to the Change in Control unless the
Company or its successor provides a
replacement plan or program 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 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.
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(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 ▇▇▇▇ any writing confidential
shall not affect the confidential nature of such writing or the
information contained therein.
(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
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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, OmniBank(TM),
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 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
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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 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 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
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disclosed by Executive to the person or persons designated by the
Board, 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) relates to, or is useful in,
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
vesting in the Company unless the Company otherwise consents to the
copyright vesting in another person or entity; provided, however, the
parties agree that, notwithstanding anything herein to the contrary,
(A) Executive shall retain all copyright and other property rights in
Executive's personal memoirs (or any fictional or non-fictional
derivative thereof) which address topics including the founding of the
Company and the development of the functional genomics field and (B)
such memoirs (or any fictional or non-fictional derivative thereof) may
be published and released in any medium of expression
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at any time subject to the foregoing provisions of this Section 10
regarding Confidential Information and Inventions.
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 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. Notwithstanding the
immediately preceding sentence, the second paragraph of Section 10(g)
hereof, but only such provisions which address Executive's personal
memoirs (or any fictional or non-fictional derivative thereof), shall
control in the event of any conflict or inconsistency between such
provisions in Section 10(g) and the Proprietary Agreement or any other
agreement of similar intent.
(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 (i) six (6) months following
his Termination Date within the continental United States and (ii)
twelve (12) months following his Termination Date only within the State
of Texas:
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(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
(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,
OmniBank(TM), homologous recombination, DNA sequencing,
phenotypic analysis, drug 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.
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(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;
(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,
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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.
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 reasonably 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
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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 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.
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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 panel of three
arbitrators unless the parties mutually agree that the arbitration
shall be conducted before a single arbitrator. The arbitrators 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 arbitrators 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 jointly select the third arbitrator to comprise the arbitration
panel hereunder. The site for any arbitration hereunder shall be in
▇▇▇▇▇▇ County or ▇▇▇▇▇▇▇▇▇▇ 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 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.
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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(s) 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 understandings, oral or written, between the
parties hereto concerning the subject matter hereof.
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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
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Secretary
(2) If to Executive, addressed to the address set forth
below his name on the execution page hereof;
or to such other address as either party may have furnished to the other party
in writing in accordance with this Section 27.
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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.
[Intentionally left blank -- signature page follows]
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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: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Date: October 21, 1999
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Address for Notices: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
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The ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
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(fax) ▇▇▇-▇▇▇-▇▇▇▇
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LEXICON GENETICS INCORPORATED
By: /s/ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Chairman of Compensation Committee
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Date: October 27, 1999
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