EXHIBIT 10.35
AMENDMENT TO EMPLOYMENT AGREEMENT
THIS AMENDMENT TO EMPLOYMENT AGREEMENT (this "Amendment") is made and
entered into as of July 9, 1997, by and between GENE LOGIC INC., a Delaware
Corporation (the "Company"), and KEITH O. ELLISTON ("Executive").
WHEREAS, the Company and Executive previously entered into an Employment
Agreement dated February 5, 1997 (the "Employment Agreement") which, among
other things, provides for the automatic vesting of all outstanding options
to purchase the Company's Common Stock held by the Executive upon a change of
control of the Company (the "Vesting Provision"); and
WHEREAS, the Company and Executive desire to amend the Employment
Agreement to amend and restate the Vesting Provision.
NOW, THEREFORE, the parties hereto, in consideration of the mutual
promises and agreements set forth below, hereby agree to amend the Employment
Agreement as follows:
1. RESTATEMENT OF VESTING PROVISION. Section 3 of the Employment
Agreement shall be amended and restated to read in its entirety as follows:
"3. INCENTIVE STOCK OPTIONS. In addition to the salary specified
above, on or before February 28, 1997, the Company shall grant to Elliston
options to purchase 100,000 shares of the Company's common stock at a
purchase price of $0.15 per share. Such incentive stock options shall
become exercisable according to the following schedule: twenty-five
percent (25%) upon the date of signing of this Agreement and thereafter at
a rate of 1/36th each month for 36 months upon the first anniversary of
such date. The Company will grant incentive stock options to Elliston in
each year during which this Agreement remains in force, in numbers
consistent with Elliston's position as Senior Vice President and Chief
Scientific Officer of the Company, at an exercise price determined by the
Company's auditors and other financial advisors in accordance with
established accounting and taxation principles. The number and schedule of
issue of such additional options is envisaged as laid out in Exhibit A to
this Agreement. Such incentive stock options shall become exercisable
according to the schedule established by the Board of Directors for the
Company's Incentive Stock Option Plan. In the event of: (i) a merger or
consolidation of the Company with another corporation, not including any
merger or consolidation if immediately thereafter the stockholders of the
Company immediately before such transaction own shares representing more
than 50% of the outstanding voting securities of the surviving corporation,
(ii) a sale of shares by the stockholders of the Company if
1.
immediately thereafter the stockholders of the Company immediately
before such sale own shares representing less than 50% of the
outstanding voting securities of the surviving corporation, or (iii) a
sale of all or substantially all of the Company's assets, all options to
purchase Common Stock of the Company held by Elliston that have not
previously vested under the terms of the applicable Option Agreements
shall vest immediately upon the closing of such transaction. In the
event of an underwritten initial public offering of the Company's Common
Stock, to the extent at least 80% of the aggregate of the shares subject
to outstanding options to purchase Common Stock of the Company held by
Elliston (other than any such options granted immediately prior to and
in contemplation of such initial public offering) have not previously
vested under the terms of the applicable Option Agreements, then the
vesting of such options shall be accelerated such that 80% of the shares
subject to each such option shall be vested as of the closing of such
initial public offering and the remaining 20% of the shares subject to
each such option shall vest 180 days from the closing of such initial
public offering. If, in the event of an underwritten initial public
offering of the Company's Common Stock, 80% or more of the aggregate of
the shares subject to outstanding options to purchase Common Stock of
the Company held by Elliston (other than any such options granted
immediately prior to and in contemplation of such initial public
offering) have previously vested, then any remaining unvested shares
subject to such options shall vest 180 days from the closing of such
initial public offering. In the event Elliston terminates this
Agreement prior to its first anniversary, the Company shall have the
right to repurchase any shares of the Company's stock acquired by
Elliston pursuant to the exercise of options granted under this Section
3, such repurchase to occur at a purchase price equal to Elliston's
original purchase price for such shares."
2. EFFECTIVE DATE. This Amendment shall be effective as of the date of
the Employment Agreement. Except as amended herein, or as otherwise agreed to
in writing by the Company and Executive, all terms of the Employment Agreement
shall remain in full force and effect.
2.
IN WITNESS WHEREOF, the parties have executed this Amendment to Employment
Agreement as of the date first above written.
THE COMPANY: EXECUTIVE:
GENE LOGIC INC.
a Delaware Corporation
By: /s/ MICHAEL J. BRENNAN /s/ KEITH O. ELLISTON
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Title: President and CEO Keith O. Elliston
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3.