SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 10-Q
{X} QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 1997
Commission File No. 0-19131
MEDIMMUNE, INC.
(Exact name of registrant as specified in its charter)
Delaware 52-1555759
(State or other jurisdiction of (I. R. S. Employer
incorporation or organization) Identification No.)
35 West Watkins Mill Road, Gaithersburg, MD 20878
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (301) 417-0770
Indicate by check mark whether the Registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months
(or for such shorter period that the Registrant was required to
file such reports) and (2) has been subject to such filing
requirements for the past 90 days. Yes [X] No [ ]
As of March 31, 1997, 21,901,918 shares of Common Stock, par
value $0.01 per share, were outstanding.
MEDIMMUNE, INC.
Index to Form 10-Q
Part I Financial Page
Item 1. Financial Statements
Balance Sheets 1
Statements of Operations 2
Condensed Statements of Cash Flows 3
Notes to Financial Statements 4-5
Item 2. Management's Discussion and Analysis
of Financial Condition and Results
of Operations 6-7
Part II Other Information 8-9
Item 1. Legal Proceedings
Item 2. Changes in Securities
Item 3. Defaults upon Senior Securities
Item 4. Submission of Matters to a Vote of Security
Holders
Item 5. Other Information
Item 6. Exhibits and Reports on Form 8-K
CytoGam and RespiGam are registered trademarks of the
Company.
<TABLE>
<CAPTION>
ITEM 1. FINANCIAL STATEMENTS
MEDIMMUNE, INC.
BALANCE SHEETS
(in thousands, except share data)
<S> <C> <C>
March 31 December 31,
1997 1996
---------- ----------
ASSETS: (Unaudited)
Cash and cash equivalents $5,989 $12,629
Marketable securities 86,979 102,136
Trade receivables, net 6,036 8,123
Contract receivables, net 1,802 2,164
Inventory, net 8,998 6,060
Other current assets 1,854 1,713
---------- ----------
Total Current Assets 111,658 132,825
Property and equipment, net 41,536 29,087
Other assets 2,379 2,059
---------- ----------
Total Assets $155,573 $163,971
========== ==========
LIABILITIES AND SHAREHOLDERS' EQUITY:
Accounts payable $3,175 $3,942
Accrued expenses 16,277 10,509
Product royalties payable 1,431 2,559
Accrued interest 1,232 2,057
Other current liabilities 514 469
---------- ----------
Total Current Liabilities 22,629 19,536
Long term debt 73,245 70,874
Other liabilities 714 696
---------- ----------
Total Liabilities 96,588 91,106
---------- ----------
Commitments and Contingencies
SHAREHOLDERS' EQUITY:
Preferred stock, $.01 par value; authorized
5,524,525 shares; none issued or outstanding -- --
Common stock, $.01 par value; authorized
60,000,000 shares; issued and outstanding
21,901,918 at March 31, 1997 and
21,836,763 at December 31, 1996 219 218
Paid-in capital 172,465 172,024
Accumulated deficit (113,699) (99,377)
---------- ----------
Total Shareholders' Equity 58,985 72,865
---------- ----------
Total Liabilities and Shareholder's Equity $155,573 $163,971
========== ==========
</TABLE>
The accompanying notes are an integral part of these financial
statements.
(1)
<TABLE>
MEDIMMUNE, INC.
STATEMENTS OF OPERATIONS
(Unaudited)
(in thousands except per share data)
For the
three months ended
March 31,
1997 1996
-------- --------
<S> <C> <C>
REVENUES:
Product sales $10,131 $6,624
Contracts 7 4,810
-------- --------
Total revenues 10,138 11,434
-------- --------
COSTS AND EXPENSES:
Cost of sales 5,215 4,059
Research and development 13,368 5,393
Selling, administrative and general 6,436 4,357
-------- --------
Total expenses 25,019 13,809
-------- --------
Operating Loss (14,881) (2,375)
Interest income 1,538 868
Interest expense (979) (61)
-------- --------
Net Loss ($14,322) ($1,568)
======== ========
Loss Per Common Share ($0.65) ($0.08)
======== ========
Shares Used in Computing
Loss Per Share 21,874 19,294
======== ========
</TABLE>
The accompanying notes are an integral part of these financial
statements.
(2)
<TABLE>
<CAPTION>
MEDIMMUNE, INC.
CONDENSED STATEMENTS OF CASH FLOWS
(Unaudited)
(in thousands)
For the
three months ended
March 31,
1997 1996
-------- ---------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss ($14,322) ($1,568)
Noncash items:
Depreciation and amortization 493 425
Amortization of premium (discount) on
marketable securities 274 (164)
Other 99 21
Other changes in assets and liabilities 2,058 (1,418)
-------- ---------
Net cash used in operating activities (11,398) (2,704)
-------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Decrease (increase) in marketable securities 14,883 (35,962)
Capital expenditures (12,942) (1,514)
-------- ---------
Net cash provided by (used in) 1,941 (37,476)
investing activities -------- ---------
CASH FLOWS FROM FINANCING ACTIVITIES:
Net proceeds from issuance of common
stock and exercise of stock options 442 58,380
Increase (decrease) in long term debt 2,375 (25)
-------- ---------
Net cash provided by financing
activities 2,817 58,355
-------- --------
Net (decrease) increase in cash and cash
equivalents (6,640) 18,175
Cash and cash equivalents at beginning
of period 12,629 14,165
-------- ---------
Cash and cash equivalents at end of period $5,989 $32,340
======== =========
</TABLE>
The accompanying notes are an integral part of these financial
statements.
(3)
MEDIMMUNE, INC.
NOTES TO FINANCIAL STATEMENTS
(UNAUDITED)
General
The financial information presented as of March 31, 1997, and for
the periods ended March 31, 1997 and 1996, is unaudited. In the
opinion of the Company's management, the financial information
contains all adjustments (which consist only of normal recurring
adjustments) necessary for a fair presentation of such financial
information.
Inventory
Inventory is comprised of the following (in thousands):
March 31, 1997 December 31, 1996
-------------- -----------------
Raw Materials $4,393 $2,073
Work in Process 3,614 2,758
Finished Goods 991 1,229
------ ------
$8,998 $6,060
====== ======
Property and Equipment
Property and equipment, stated at cost, is comprised of the
following (in thousands):
March 31, December 31,
1997 1996
---------- -----------
Land $1,521 $1,521
Leasehold improvements 7,313 6,860
Laboratory equipment 7,610 7,427
Office furniture, computers,
and equipment 3,414 3,235
Construction in progress 29,503 17,376
-------- --------
49,361 36,419
Less accumulated depreciation and
amortization (7,825) (7,332)
-------- --------
$41,536 $29,087
======== ========
(4)
Property and equipment at March 31, 1997 includes $0.6 million of
capitalized interest related to the design and construction of
the Company's manufacturing facility in Frederick, Maryland and
its pilot plant facility in Gaithersburg, Maryland.
Long Term Debt
The Company drew down $2.4 million of a total of $2.8 million of
4% State notes that were available in first quarter 1997. The
remaining $0.4 million will be drawn down in the second quarter.
Principal and interest payments on the notes begin in 1998.
Earnings per Share
In February 1997, the Financial Accounting Standards Board issued
Statement of Financial Accounting Standards No. 128, Earnings Per
Share, effective for financial statements for both interim and
annual periods ending after December 15, 1997. This Statement
replaces the existing presentation of primary and fully diluted
earnings per share with basic and diluted earnings per share.
The changes in calculation and presentation are not expected to
have a material effect on the Company's disclosure of earnings
per share.
(5)
ITEM 2.
MEDIMMUNE, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
THREE MONTHS ENDED MARCH 31, 1997 AND 1996
Product sales grew to $10.1 million in first quarter 1997 from
$6.6 million in first quarter 1996, an increase of 53%. CytoGam
sales increased 20% to $5.0 million from $4.2 million in first
quarter 1996. Sales of RespiGam increased 109% to $5.2 million
in first quarter 1997 from $2.5 million in first quarter 1996.
Supply constraints limited first quarter 1997 sales of RespiGam.
Contract revenue in the 1996 first quarter of $4.5 million
includes final milestone and research funding payments under the
Company's strategic alliance with American Home Products ("AHP"),
formerly American Cyanamid Company. Under the terms of the
alliance, the Company and AHP share in the profits or losses of
RespiGam; reimbursements or payments under this arrangement are
deducted from or added to operating expenses.
Cost of sales increased to $5.2 million in first quarter 1997
from $4.1 million in first quarter 1996, an increase of 28%.
This increase was primarily attributable to a 48% increase in
unit volume for CytoGam and RespiGam, offset by a reduction in
the per unit costs of both CytoGam and RespiGam due to lower
production costs. Per unit costs in 1996 were also impacted by
finished product inventory purchased from a third party at a
higher cost, as well as a one-time write-off of $0.3 million for
inventory produced while conducting RespiGam clinical trials.
Research, development and clinical spending increased 148% to
$13.4 million in this year's quarter from $5.4 million in last
year's quarter, reflecting the costs of conducting the Company's
1,502 patient Phase 3 MEDI-493 (RSV monoclonal antibody) clinical
trial. Selling, administrative and general expenses increased to
$6.4 million in this year's quarter versus $4.4 million in the
1996 quarter, an increase of 48%. This increase was primarily a
result of marketing expenses incurred for RespiGam and the full
quarter effect of expenses associated with the expansion of the
sales force for RespiGam, partially offset by reimbursement from
AHP for their share of RespiGam product line loss for the
quarter. An additional $0.2 million increase in general and
administrative expenses was incurred primarily due to non-
capitalizable labor costs incurred in connection with
construction of the Company's Frederick manufacturing facility.
(6)
Interest income of $1.5 million was earned in the 1997 first
quarter, compared to $0.9 million in the first quarter of 1996
reflecting higher cash balances available for investment and an
increase in interest rates which improved the overall portfolio
yield. Interest expense of $1.0 million, reflecting interest due
on the convertible debt issued in July 1996, was incurred in the
1997 quarter versus $0.1 million in the 1996 quarter.
The net loss incurred in the 1997 first quarter was $14.3
million, or $0.65 per common share, compared to a net loss for
the first quarter of 1996 of $1.6 million, or $0.08 per common
share. Shares used in computing loss per share were 21.9 million
and 19.3 million for the 1997 and 1996 quarters, respectively.
These results were consistent with the Company's objectives for
the quarter and with the continued development of its products.
Quarterly financial results may vary significantly due to
seasonality of RespiGam product sales, fluctuation in sales of
CytoGam, research funding and expenditures for research,
development and marketing programs. RespiGam sales are expected
to occur primarily during, and in proximity to, the RSV season,
which typically occurs between November and April in the United
States. No assurances can be given that adequate product supply
will be available to meet demand. In the second quarter of 1997,
the Company anticipates substantial research and development
expenses, primarily reflecting costs to complete the Phase 3 MEDI-
493 clinical trial. These costs are expected to decrease
significantly in the third and fourth quarters once the trial
concludes.
LIQUIDITY AND CAPITAL RESOURCES
Cash and marketable securities at March 31, 1997 were $93.0
million compared to $114.8 million at 1996 year end. Net cash
used in operating activities in the three months ended March 31,
1997 was $11.4 million, reflecting primarily the net loss for the
period and an increase in plasma inventory, offset by increased
accruals for clinical trial expenses and a decrease in accounts
receivable. Capital expenditures of $12.9 million for the three
months were primarily for construction of the manufacturing
facility, expansion of the pilot plant, and lab equipment. The
total cost for the construction of the manufacturing facility and
the expansion of the pilot plant is expected to be approximately
$56 million, of which $33.1 million had been spent as of
March 31, 1997. The Company's existing funds at March 31, 1997,
together with funds expected to be generated from product sales
and investment income are expected to provide sufficient
liquidity to meet the anticipated needs of the business for at
least the next 12 months, absent the occurrence of any unforeseen
events.
(7)
____________________
THE STATEMENTS IN THIS QUARTERLY REPORT THAT ARE NOT DESCRIPTIONS
OF HISTORICAL FACTS MAY BE FORWARD-LOOKING STATEMENTS. SUCH
STATEMENTS REFLECT MANAGEMENT'S CURRENT VIEWS, ARE BASED ON
CERTAIN ASSUMPTIONS AND ARE SUBJECT TO RISKS AND UNCERTAINTIES,
INCLUDING BUT NOT LIMITED TO, FACTORS SUCH AS PRODUCT DEMAND AND
MARKET ACCEPTANCE RISKS, THE EARLY STAGE OF PRODUCT DEVELOPMENT,
COMMERCIALIZATION AND TECHNOLOGICAL DIFFICULTIES, CAPACITY AND
SUPPLY CONSTRAINTS AND OTHER RISKS DETAILED IN THE COMPANY'S
FILINGS WITH THE SECURITIES AND EXCHANGE COMMISSION. ACTUAL
RESULTS COULD DIFFER MATERIALLY FROM THOSE CURRENTLY ANTICIPATED
AS A RESULT OF THE FOREGOING OR OTHER FACTORS.
PART II
OTHER INFORMATION
Item 1. Legal Proceedings - None
Item 2. Changes in Securities - None
Item 3. Defaults upon Senior Securities - None
Item 4. Submission of Matters to a Vote of Security Holders -
[Change in number of authorized shares]
Item 5. Other Information - None
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits:
10.66 Employment Agreement, dated as of April 1,
1997 by and between Wayne T. Hockmeyer and
MedImmune, Inc.
10.67 Employment Agreement, dated as of April 1,
1997 by and between David M. Mott amd
MedImmune, Inc.
10.68 Employment Agreement, dated as of April 1,
1997 by and between Franklin H. Top, Jr. and
MedImmune, Inc.
10.69 Employment Agreement, dated as of April 1,
1997 by and between David P. Wright and
MedImmune, Inc.
10.70 Employment Agreement, dated as of April 1,
1997 by and between James F. Young and
MedImmune, Inc.
10.71 Employment Agreement, dated as of April 1,
1997 by and between Bogdan Dziurzynski and
MedImmune, Inc.
(8)
(b) Reports on Form 8-K:
Report Date Event reported
1/8/97 MedImmune Reports the Publication of
RespiGam "PREVENT" Study Results in
this Month's Issue of Pediatrics
2/3/97 MedImmune Begins Clinical Trial with
the First Preventative Human
Papillomavirus Vaccine Candidate
2/6/97 MedImmune Reports Product Sales
Increase 250 Percent for Q4 1996 -
Successful launch of new product to
prevent serious RSV in infants
3/10/97 MedImmune Reports First MEDI-493
Clinical Trial Results
3/20/97 MedImmune Reports Results from Double-
Blind, Placebo-Controlled, Phase 1/2
Clinical Trial of MEDI-493
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
MEDIMMUNE, INC.
(Registrant)
Date: May 15, 1997 David M. Mott
President and
Chief Operating Officer
(Principal accounting and
financial officer)
(9)
EXHIBIT 10.66
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT, dated as of April 1, 1997,
is by and between WAYNE T. HOCKMEYER (the "Employee") and
MEDIMMUNE, INC., a Delaware corporation (the "Company").
The Company and the Employee hereby agree as follows:
1. Employment. The Company hereby employs the
Employee, and the Employee hereby accepts employment by the
Company, upon the terms and conditions hereinafter set forth.
2. Term. Subject to the provisions for earlier
termination as herein provided, the employment of the Employee
hereunder will be for the period commencing on the date hereof
and ending on the second anniversary of such date. Such period
may be extended, with the consent of the Employee, for one or
more one-year periods by resolution adopted by the Compensation
and Stock Committee (the "Committee") of the Board of Directors
of the Company (the "Board"). The period of the Employee's
employment under this Agreement, as it may be terminated or
extended from time to time as provided herein, is referred to
hereafter as the "Employment Period."
3. Duties and Responsibilities. The Employee will be
employed by the Company in the position set forth on Annex A, a
copy of which is attached hereto and the terms of which are
incorporated herein by reference. The Employee will faithfully
perform the duties and responsibilities of such office, as they
may be assigned from time to time by the Board or the Board's
designee.
4. Time to be Devoted to Employment. Except for
vacation in accordance with the Company's policy in effect from
time to time and absences due to temporary illness, the Employee
shall devote full time, attention and energy during the
Employment Period to the business of the Company. During the
Employment Period, the Employee will not be engaged in any other
business activity which, in the reasonable judgment of the Board
or its designee, conflicts with the duties of the Employee
hereunder, whether or not such activity is pursued for gain,
profit or other pecuniary advantage.
5. Compensation; Reimbursement.
(a) Base Salary. The Company (or, at the Company's
option, any subsidiary or affiliate thereof) will pay to the
Employee an annual base salary of not less than the amount
specified as the Initial Base Salary on Annex A, payable
bi-weekly. The Employee's base salary shall be reviewed annually
by the Compensation Committee and shall be subject to increase at
the option and sole discretion of the Compensation Committee.
(b) Bonus. The Employee shall be eligible to receive,
at the sole discretion of the Compensation Committee, an annual
cash bonus based on pre-determined performance standards of the
Company.
(c) Benefits; Stock Options. In addition to the
salary and cash bonus referred to above, the Employee shall be
entitled during the Employment Period to participate in such
employee benefit plans or programs of the Company, and shall be
entitled to such other fringe benefits, as are from time to time
made available by the Company generally to employees of the
Employee's position, tenure, salary, age, health and other
qualifications. Without limiting the generality of the
foregoing, the Employee shall be eligible for such awards, if
any, under the Company's stock option plan as shall be granted to
the Employee by the Compensation Committee or other appropriate
designee of the Board acting in its sole discretion, and shall be
entitled to 30 days of vacation in each calendar year. Except to
the extent provided in the next paragraph, the Employee
acknowledges and agrees that the Company does not guarantee the
adoption or continuance of any particular employee benefit plan
or program or other fringe benefit during the Employment Period,
and participation by the Employee in any such plan or program
shall be subject to the rules and regulations applicable thereto.
As the founder of the Company, the Employee shall be
entitled to lifetime continuation of Company-provided medical and
dental benefits coverage for himself and his spouse,
notwithstanding his termination of employment from the Company at
any time or for any reason, with such coverage to be provided at
the same level and subject to the same terms and conditions
(including, without limitation, any applicable co-pay
obligations) as in effect from time to time for officers of the
Company generally. The foregoing coverage shall be secondary to
any Medicare coverage that the Employee or his spouse becomes
eligible to receive.
(d) Expenses. The Company will reimburse the
Employee, in accordance with the practices in effect from time to
time for other officers or staff personnel of the Company, for
all reasonable and necessary traveling expenses and other
disbursements incurred by the Employee for or on behalf of the
Company in the performance of the Employee's duties hereunder,
upon presentation by the Employee to the Company of appropriate
vouchers.
6. Death; Disability. If the Employee dies or is
incapacitated or disabled by accident, sickness or otherwise, so
as to render the Employee mentally or physically incapable of
performing the services required to be performed by the Employee
under this Agreement for a period that would entitle the Employee
to qualify for long-term disability benefits under the Company's
then-current long-term disability insurance program or, in the
absence of such a program, for a period of 90 consecutive days or
longer (such condition being herein referred to as a
"Disability"), then (i) in the case of the Employee's death, the
Employee's employment shall be deemed to terminate on the date of
the Employee's death or (ii) in the case of a Disability, the
Company, at its option, may terminate the employment of the
Employee under this Agreement immediately upon giving the
Employee notice to that effect. Disability shall be determined
by the Board or the Board's designee. In the case of a
Disability, until the Company shall have terminated the
Employee's employment hereunder in accordance with the foregoing,
the Employee shall be entitled to receive compensation provided
for herein notwithstanding any such physical or mental
disability.
7. Termination For Cause. The Company may, with the
approval of a majority of the Board, terminate the employment of
the Employee hereunder at any time during the Employment Period
for "cause" (such termination being hereinafter called a
"Termination for Cause") by giving the Employee notice of such
termination, upon the giving of which such termination will take
effect immediately. For purposes of this Agreement, "cause"
means (i) the Employee's willful and substantial misconduct, (ii)
the Employee's repeated, after written notice from the Company,
neglect of duties or failure to act which can reasonably be
expected to affect materially and adversely the business or
affairs of the Company or any subsidiary or affiliate thereof,
(iii) the Employee's material breach of any of the agreements
contained in Sections 12, 13 or 14 hereof, (iv) the commission by
the Employee of any material fraudulent act with respect to the
business and affairs of the Company or any subsidiary or
affiliate thereof or (v) the Employee's conviction of (or plea of
nolo contendere to) a crime constituting a felony.
8. Termination Without Cause. The Company may
terminate the employment of the Employee hereunder at any time
without "cause" (such termination being hereinafter called a
"Termination Without Cause") by giving the Employee notice of
such termination, upon the giving of which such termination will
take effect not later than 30 days from the date such notice is
given.
9. Voluntary Termination. Any termination of the
employment of the Employee hereunder, otherwise than as a result
of death or Disability, a Termination For Cause, a Termination
Without Cause or a termination for Good Reason (as defined below)
following a Change in Control (as defined below), will be deemed
to be a "Voluntary Termination." A Voluntary Termination will be
deemed to be effective immediately upon such termination.
10. Effect of Termination of Employment.
(a) Voluntary Termination; Termination For Cause.
Upon the termination of the Employee's employment hereunder
pursuant to a Voluntary Termination or a Termination For Cause,
neither the Employee nor the Employee's beneficiaries or estate
will have any further rights or claims against the Company under
this Agreement except the right to receive (i) the unpaid portion
of the base salary provided for in Section 5(a) hereof, computed
on a pro rata basis to the date of termination, (ii) payment of
his accrued but unpaid rights in accordance with the terms of any
incentive compensation, stock option, retirement, employee
welfare or other employee benefit plans or programs of the
Company in which the Executive is then participating in
accordance with Sections 5(b) and 5(c) hereof, (iii)
reimbursement for any expenses for which the Employee shall not
have theretofore been reimbursed as provided in Section 5(d)
hereof, and (iv) continuation of his rights in accordance with
the second paragraph of Section 5(c) hereof.
(b) Termination Without Cause. Upon the termination
of the Employee's employment as a Termination Without Cause,
neither the Employee nor the Employee's beneficiaries or estate
will have any further rights or claims against the Company under
this Agreement except the right to receive (i) the payments and
other rights provided for in Section 10(a) hereof and (ii)
severance payments in the form of a continuation of the
Employee's base salary as in effect immediately prior to such
termination (A) for an initial period of 12 months following the
effective date of such termination and (B) for an additional
period of 12 months beginning at the expiration of such initial
12-month period, provided that the Employee has not, before the
beginning of such additional 12-month period, accepted a position
of full-time employment with any person, company, firm or other
entity. The rights of the Employee and the obligations of the
Company under this Section 10(b) shall remain in full force and
effect notwithstanding the expiration of the Employment Period,
whether by failure of the Compensation Committee to extend such
period or otherwise.
(c) Death and Disability. Upon the termination of the
Employee's employment hereunder as a result of death or
Disability, neither the Employee nor the Employee's beneficiaries
or estate will have any further rights or claims against the
Company under this Agreement except the right to receive (i) the
payments and other rights provided for in Section 10(a) hereof
and (ii) a lump-sum payment, within 15 days after the effective
date of such termination, equal to the aggregate amount of the
Employee's base salary as in effect immediately prior to such
termination that would be payable over a period of 12 months
following the effective date of such termination.
(d) Forfeiture of Rights. In the event that,
subsequent to termination of employment hereunder, the Employee
(i) breaches any of the provisions of Section 12, 13 or 14 hereof
or (ii) directly or indirectly makes or facilitates the making of
any adverse public statements or disclosures with respect to the
business or securities of the Company, all payments and benefits
to which the Employee may otherwise have been entitled pursuant
to Section 10(a), 10(b) or 11 hereof shall immediately terminate
and be forfeited, and any portion of such amounts as may have
been paid to the Employee shall forthwith be returned to the
Company.
11. Change in Control Provisions.
(a) Effect of Change in Control. In the event of a
Change in Control during the Employment Period, all options held
by the Employee to purchase shares of the Company's stock that
are not then vested and exercisable shall become immediately and
fully vested and exercisable as of the effective date of the
Change in Control.
(b) Effect of Termination Following Change in Control.
In the event of a Change in Control during the Employment Period
and a subsequent termination of the Employee's employment, either
by the Company as a Termination Without Cause or by the Employee
for Good Reason, whether or not such termination is during the
Employment Period, the Employee shall be entitled to receive (i)
the payments and other rights provided in Section 10(a) hereof
and (ii) severance payments in the form a cash lump sum, paid
within 15 days of the date of termination, with the amount of
such payment to be the aggregate amount of the Employee's base
salary as in effect immediately prior to such termination payable
over a period of 12 months, but discounted to present value from
the dates such payments would otherwise be made to the Employee,
based on the 100% short-term Applicable Federal Rate (compounded
annually) under Section 1274(d) of the Internal Revenue Code as
in effect at the time of payment. In the event that the Employee
becomes entitled to the payments and benefits provided above in
this Section 12 and, within 30 days following the first
anniversary date of the date of termination of employment, he
certifies to the Company that he has not accepted another
position of full-time employment with any person, firm or other
entity as of such anniversary date, the Employee shall be
entitled to an additional 12 months lump-sum severance payment,
calculated and paid in the same manner as provided above in this
Section 12. In addition, upon any such Termination Without Cause
or for Good Reason that occurs within six months following the
effective date of a Change in Control, the Employee shall retain
the right to exercise any options to purchase shares of the
Company's stock until the earlier of (a) 36 months following the
date of such termination or (b) the expiration of the original
full term of each such option.
(c) Definition of Change in Control. For purposes of
this Agreement, a "Change in Control" shall be deemed to have
occurred upon:
(i) an acquisition subsequent to the date hereof by
any person, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")) (a "Person"), of beneficial
ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 30% or more of either (A) the
then outstanding shares of common stock of the Company
("Common Stock") or (B) the combined voting power of the
then outstanding voting securities of the Company entitled
to vote generally in the election of directors (the
"Outstanding Company Voting Securities"); excluding,
however, the following: (1) any acquisition directly from
the Company, other than an acquisition by virtue of the
exercise of a conversion privilege unless the security being
so converted was itself acquired directly from the Company,
(2) any acquisition by the Company and (3) any acquisition
by an employee benefit plan (or related trust) sponsored or
maintained by the Company;
(ii) a change in the composition of the Board such that
during any period of two consecutive years, individuals who
at the beginning of such period constitute the Board, and
any new director (other than a director designated by a
person who has entered into an agreement with the Company to
effect a transaction described in clause (i), (iii), or (iv)
of this paragraph) whose election by the Board or nomination
for election by the Company's stockholders was approved by a
vote of at least two-thirds of the directors then still in
office who either were directors at the beginning of the
period or whose election or nomination for election was
previously so approved, cease for any reason to constitute
at least a majority of the members thereof;
(iii) the approval by the stockholders of the Company
of a merger, consolidation, reorganization or similar
corporate transaction, whether or not the Company is the
surviving corporation in such transaction, in which
outstanding shares of Common Stock are converted into (A)
shares of stock of another company, other than a conversion
into shares of voting common stock of the successor
corporation (or a holding company thereof) representing 80%
of the voting power of all capital stock thereof outstanding
immediately after the merger or consolidation or (B) other
securities (of either the Company or another company) or
cash or other property;
(iv) the approval by stockholders of the Company of the
issuance of shares of Common Stock in connection with a
merger, consolidation, reorganization or similar corporate
transaction in an amount in excess of 40% of the number of
shares of Common Stock outstanding immediately prior to the
consummation of such transaction;
(v) the approval by the stockholders of the Company of
(A) the sale or other disposition of all or substantially
all of the assets of the Company or (B) a complete
liquidation or dissolution of the Company; or
(vi) the adoption by the Board of a resolution to the
effect that any person has acquired effective control of the
business and affairs of the Company.
(d) Good Reason Following Change in Control. For
purposes of this Agreement, termination for "Good Reason" shall
mean termination by the Employee of his employment with the
Company, within six months immediately following a Change in
Control, based on:
(i) any diminution in the Employee's position, title,
responsibilities or authority from those in effect
immediately prior to such Change in Control; or
(ii) the breach by the Company of any of its material
obligations under this Agreement.
12. Disclosure of Information. The Employee will not,
at any time during or after the Employment Period, disclose to
any person, firm, corporation or other business entity, except as
required by law, any non-public information concerning the
business, products, clients or affairs of the Company or any
subsidiary or affiliate thereof for any reason or purpose
whatsoever, nor will the Employee make use of any of such non-
public information for personal purposes or for the benefit of
any person, firm, corporation or other business entity except the
Company or any subsidiary or affiliate thereof.
13. Restrictive Covenant. (a) The Employee hereby
acknowledges and recognizes that, during the Employment Period,
the Employee will be privy to trade secrets and confidential
proprietary information critical to the Company's business and
the Employee further acknowledges and recognizes that the Company
would find it extremely difficult or impossible to replace the
Employee and, accordingly, the Employee agrees that, in
consideration of the benefits to be received by the Employee
hereunder, the Employee will not, from and after the date hereof
until the first anniversary of the termination of the Employment
Period (or six months after the termination of the Employment
Period if such termination is as a result of a Termination
Without Cause or a termination for Good Reason following a Change
in Control), (i) directly or indirectly engage in the
development, production, marketing or sale of products that
compete (or, upon commercialization, would compete) with products
of the Company being developed (so long as such development has
not been abandoned), marketed or sold at the time of the
Employee's termination (such business or activity being
hereinafter called a "Competing Business") whether such
engagement shall be as an officer, director, owner, employee,
partner, affiliate or other participant in any Competing
Business, (ii) assist others in engaging in any Competing
Business in the manner described in the foregoing clause (i), or
(iii) induce other employees of the Company or any subsidiary
thereof to terminate their employment with the Company or any
subsidiary thereof or engage in any Competing Business.
Notwithstanding the foregoing, the term "Competing Business"
shall not include any business or activity that was not conducted
by the Company prior to the effective date of a Change in
Control.
(b) The Employee understands that the foregoing
restrictions may limit the ability of the Employee to earn a
livelihood in a business similar to the business of the Company,
but nevertheless believes that the Employee has received and will
receive sufficient consideration and other benefits, as an
employee of the Company and as otherwise provided hereunder, to
justify such restrictions which, in any event (given the
education, skills and ability of the Employee), the Employee
believes would not prevent the Employee from earning a living.
14. Company Right to Inventions. The Employee will
promptly disclose, grant and assign to the Company, for its sole
use and benefit, any and all inventions, improvements, technical
information and suggestions relating in any way to the business
of the Company which the Employee may develop or acquire during
the Employment Period (whether or not during usual working
hours), together with all patent applications, letters patent,
copyrights and reissues thereof that may at any time be granted
for or upon any such invention, improvement or technical
information. In connection therewith:
(i) the Employee shall, without charge, but at the
expense of the Company, promptly at all times hereafter
execute and deliver such applications, assignments,
descriptions and other instruments as may be necessary or
proper in the opinion of the Company to vest title to any
such inventions, improvements, technical information, patent
applications, patents, copyrights or reissues thereof in the
Company and to enable it to obtain and maintain the entire
right and title thereto throughout the world; and
(ii) the Employee shall render to the Company, at its
expense (including a reasonable payment for the time
involved in case the Employee is not then in its employ),
all such assistance as it may require in the prosecution of
applications for said patents, copyrights or reissues
thereof, in the prosecution or defense of interferences
which may be declared involving any said applications,
patents or copyrights and in any litigation in which the
Company may be involved relating to any such patents,
inventions, improvements or technical information.
15. Enforcement. It is the desire and intent of the
parties hereto that the provisions of this Agreement be
enforceable to the fullest extent permissible under the laws and
public policies applied in each jurisdiction in which enforcement
is sought. Accordingly, to the extent that a restriction
contained in this Agreement is more restrictive than permitted by
the laws of any jurisdiction where this Agreement may be subject
to review and interpretation, the terms of such restriction, for
the purpose only of the operation of such restriction in such
jurisdiction, will be the maximum restriction allowed by the laws
of such jurisdiction and such restriction will be deemed to have
been revised accordingly herein.
16. Remedies; Survival. (a) The Employee
acknowledges and understands that the provisions of the covenants
contained in Sections 12, 13 and 14 hereof, the violation of
which cannot be accurately compensated for in damages by an
action at law, are of crucial importance to the Company, and that
the breach or threatened breach of the provisions of this
Agreement would cause the Company irreparable harm. In the event
of a breach or threatened breach by the Employee of the
provisions of Section 12, 13 or 14 hereof, the Company will be
entitled to an injunction restraining the Employee from such
breach. Nothing herein contained will be construed as
prohibiting the Company from pursuing any other remedies
available for any breach or threatened breach of this Agreement.
(b) Notwithstanding anything contained in this
Agreement to the contrary, the provisions of the second paragraph
of Section 5(c) hereof and of Sections 10(b), 12, 13, 14, 15 and
16 hereof will survive the expiration or other termination of
this Agreement until, by their terms, such provisions are no
longer operative.
17. Notices. Notices and other communications
hereunder will be in writing and will be delivered personally or
sent by air courier or first class certified or registered mail,
return receipt requested and postage prepaid, addressed as
follows:
if to the Employee: as specified in Annex A
and if to the Company: MedImmune, Inc.
35 West Watkins Mill Road
Gaithersburg, Maryland 20878
Attention: Chief Executive Officer
with a copy to: Frederick W. Kanner, Esq.
Dewey Ballantine
1301 Avenue of the Americas
New York, NY 10019
All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement will be deemed
to have been given on the date of delivery, if personally
delivered; on the business day after the date when sent, if sent
by air courier; and on the third business day after the date when
sent, if sent by mail, in each case addressed to such party as
provided in this Section 17 or in accordance with the latest
unrevoked direction from such party.
18. Binding Agreement; Benefit. The provisions of
this Agreement will be binding upon, and will inure to the
benefit of, the respective heirs, legal representatives and
successors of the parties hereto.
19. Governing Law. This Agreement will be governed
by, and construed and enforced in accordance with, the laws of
the State of Maryland.
20. Waiver of Breach. The waiver by either party of a
breach of any provision of this Agreement by the other party must
be in writing and will not operate or be construed as a waiver of
any subsequent breach by such other party.
21. Entire Agreement; Amendments. This Agreement
(including Annex A) contains the entire agreement between the
parties with respect to the subject matter hereof and supersedes
all prior agreements or understandings among the parties with
respect thereof. This Agreement may be amended only by an
agreement in writing signed by the parties hereto.
22. Headings. The section headings contained in this
Agreement are for reference purposes only and will not affect in
any way the meaning or interpretation of this Agreement.
23. Severability. Any provision of this Agreement
that is prohibited or unenforceable in any jurisdiction will, as
to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction will not invalidate or
render unenforceable such provision in any other jurisdiction.
24. Assignment. This Agreement is personal in its
nature and the parties hereto shall not, without the consent of
the other, assign or transfer this Agreement or any rights or
obligations hereunder; provided, that the provisions hereof
(including, without limitation, Sections 12, 13 and 14) will
inure to the benefit of, and be binding upon, each successor of
the Company, whether by merger, consolidation, transfer of all or
substantially all of its assets or otherwise.
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first above written.
EMPLOYEE MEDIMMUNE, INC.
By
Wayne T. Hockmeyer
ANNEX A
to
Employment Agreement
Name of Employee: WAYNE T. HOCKMEYER
1. Position: Chairman and Chief
Executive Officer
2. Initial Base Salary: $360,000
3. Employee's address for notices: 8233 Burning Tree Road
Bethesda, MD 20817
EXHIBIT 10.67
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT, dated as of April 1, 1997,
is by and between DAVID M. MOTT (the "Employee") and MEDIMMUNE,
INC., a Delaware corporation (the "Company").
The Company and the Employee hereby agree as follows:
1. Employment. The Company hereby employs the
Employee, and the Employee hereby accepts employment by the
Company, upon the terms and conditions hereinafter set forth.
2. Term. Subject to the provisions for earlier
termination as herein provided, the employment of the Employee
hereunder will be for the period commencing on the date hereof
and ending on the second anniversary of such date. Such period
may be extended, with the consent of the Employee, for one or
more one-year periods by resolution adopted by the Compensation
and Stock Committee (the "Committee") of the Board of Directors
of the Company (the "Board"). The period of the Employee's
employment under this Agreement, as it may be terminated or
extended from time to time as provided herein, is referred to
hereafter as the "Employment Period."
3. Duties and Responsibilities. The Employee will be
employed by the Company in the position set forth on Annex A, a
copy of which is attached hereto and the terms of which are
incorporated herein by reference. The Employee will faithfully
perform the duties and responsibilities of such office, as they
may be assigned from time to time by the Board or the Board's
designee.
4. Time to be Devoted to Employment. Except for
vacation in accordance with the Company's policy in effect from
time to time and absences due to temporary illness, the Employee
shall devote full time, attention and energy during the
Employment Period to the business of the Company. During the
Employment Period, the Employee will not be engaged in any other
business activity which, in the reasonable judgment of the Board
or its designee, conflicts with the duties of the Employee
hereunder, whether or not such activity is pursued for gain,
profit or other pecuniary advantage.
5. Compensation; Reimbursement.
(a) Base Salary. The Company (or, at the Company's
option, any subsidiary or affiliate thereof) will pay to the
Employee an annual base salary of not less than the amount
specified as the Initial Base Salary on Annex A, payable
bi-weekly. The Employee's base salary shall be reviewed annually
by the Compensation Committee and shall be subject to increase at
the option and sole discretion of the Compensation Committee.
(b) Bonus. The Employee shall be eligible to receive,
at the sole discretion of the Compensation Committee, an annual
cash bonus based on pre-determined performance standards of the
Company.
(c) Benefits; Stock Options. In addition to the
salary and cash bonus referred to above, the Employee shall be
entitled during the Employment Period to participate in such
employee benefit plans or programs of the Company, and shall be
entitled to such other fringe benefits, as are from time to time
made available by the Company generally to employees of the
Employee's position, tenure, salary, age, health and other
qualifications. Without limiting the generality of the
foregoing, the Employee shall be eligible for such awards, if
any, under the Company's stock option plan as shall be granted to
the Employee by the Compensation Committee or other appropriate
designee of the Board acting in its sole discretion. The
Employee acknowledges and agrees that the Company does not
guarantee the adoption or continuance of any particular employee
benefit plan or program or other fringe benefit during the
Employment Period, and participation by the Employee in any such
plan or program shall be subject to the rules and regulations
applicable thereto.
(d) Expenses. The Company will reimburse the
Employee, in accordance with the practices in effect from time to
time for other officers or staff personnel of the Company, for
all reasonable and necessary traveling expenses and other
disbursements incurred by the Employee for or on behalf of the
Company in the performance of the Employee's duties hereunder,
upon presentation by the Employee to the Company of appropriate
vouchers.
6. Death; Disability. If the Employee dies or is
incapacitated or disabled by accident, sickness or otherwise, so
as to render the Employee mentally or physically incapable of
performing the services required to be performed by the Employee
under this Agreement for a period that would entitle the Employee
to qualify for long-term disability benefits under the Company's
then-current long-term disability insurance program or, in the
absence of such a program, for a period of 90 consecutive days or
longer (such condition being herein referred to as a
"Disability"), then (i) in the case of the Employee's death, the
Employee's employment shall be deemed to terminate on the date of
the Employee's death or (ii) in the case of a Disability, the
Company, at its option, may terminate the employment of the
Employee under this Agreement immediately upon giving the
Employee notice to that effect. Disability shall be determined
by the Board or the Board's designee. In the case of a
Disability, until the Company shall have terminated the
Employee's employment hereunder in accordance with the foregoing,
the Employee shall be entitled to receive compensation provided
for herein notwithstanding any such physical or mental
disability.
7. Termination For Cause. The Company may, with the
approval of a majority of the Board, terminate the employment of
the Employee hereunder at any time during the Employment Period
for "cause" (such termination being hereinafter called a
"Termination for Cause") by giving the Employee notice of such
termination, upon the giving of which such termination will take
effect immediately. For purposes of this Agreement, "cause"
means (i) the Employee's willful and substantial misconduct, (ii)
the Employee's repeated, after written notice from the Company,
neglect of duties or failure to act which can reasonably be
expected to affect materially and adversely the business or
affairs of the Company or any subsidiary or affiliate thereof,
(iii) the Employee's material breach of any of the agreements
contained in Sections 12, 13 or 14 hereof, (iv) the commission by
the Employee of any material fraudulent act with respect to the
business and affairs of the Company or any subsidiary or
affiliate thereof or (v) the Employee's conviction of (or plea of
nolo contendere to) a crime constituting a felony.
8. Termination Without Cause. The Company may
terminate the employment of the Employee hereunder at any time
without "cause" (such termination being hereinafter called a
"Termination Without Cause") by giving the Employee notice of
such termination, upon the giving of which such termination will
take effect not later than 30 days from the date such notice is
given.
9. Voluntary Termination. Any termination of the
employment of the Employee hereunder, otherwise than as a result
of death or Disability, a Termination For Cause, a Termination
Without Cause or a termination for Good Reason (as defined below)
following a Change in Control (as defined below), will be deemed
to be a "Voluntary Termination." A Voluntary Termination will be
deemed to be effective immediately upon such termination.
10. Effect of Termination of Employment.
(a) Voluntary Termination; Termination For Cause.
Upon the termination of the Employee's employment hereunder
pursuant to a Voluntary Termination or a Termination For Cause,
neither the Employee nor the Employee's beneficiaries or estate
will have any further rights or claims against the Company under
this Agreement except the right to receive (i) the unpaid portion
of the base salary provided for in Section 5(a) hereof, computed
on a pro rata basis to the date of termination, (ii) payment of
his accrued but unpaid rights in accordance with the terms of any
incentive compensation, stock option, retirement, employee
welfare or other employee benefit plans or programs of the
Company in which the Executive is then participating in
accordance with Sections 5(b) and 5(c) hereof and (iii)
reimbursement for any expenses for which the Employee shall not
have theretofore been reimbursed as provided in Section 5(d)
hereof.
(b) Termination Without Cause. Upon the termination
of the Employee's employment as a Termination Without Cause,
neither the Employee nor the Employee's beneficiaries or estate
will have any further rights or claims against the Company under
this Agreement except the right to receive (i) the payments and
other rights provided for in Section 10(a) hereof, (ii) severance
payments in the form of a continuation of the Employee's base
salary as in effect immediately prior to such termination (A) for
an initial period of 12 months following the effective date of
such termination and (B) for an additional period of 12 months
beginning at the expiration of such initial 12-month period,
provided that the Employee has not, before the beginning of such
additional 12-month period, accepted a position of full-time
employment with any person, company, firm or other entity and
(iii) continuation of the medical benefits coverage to which the
Employee is entitled under Section 5(c) hereof over the same
period with respect to which the Employee's base salary is
continued as provided in clause (ii) above, with such coverage to
be provided at the same level and subject to the same terms and
conditions (including, without limitation, any applicable co-pay
obligations of the Employee, but excluding any applicable tax
consequences for the Employee) as in effect from time to time for
officers of the Company generally. The rights of the Employee
and the obligations of the Company under this Section 10(b) shall
remain in full force and effect notwithstanding the expiration of
the Employment Period, whether by failure of the Compensation
Committee to extend such period or otherwise.
(c) Death and Disability. Upon the termination of the
Employee's employment hereunder as a result of death or
Disability, neither the Employee nor the Employee's beneficiaries
or estate will have any further rights or claims against the
Company under this Agreement except the right to receive (i) the
payments and other rights provided for in Section 10(a) hereof,
(ii) a lump-sum payment, within 15 days after the effective date
of such termination, equal to the aggregate amount of the
Employee's base salary as in effect immediately prior to such
termination that would be payable over a period of 12 months
following the effective date of such termination and (iii) in the
case of Disability only, continuation of the medical benefits
coverage to which the Employee is entitled under Section 5(c)
hereof over the same period with respect to which the lump-sum
payment is calculated under clause (ii) above, with such coverage
to be provided at the same level and subject to the same terms
and conditions (including, without limitation, any applicable co-
pay obligations of the Employee, but excluding any applicable tax
consequences for the Employee) as in effect from time to time for
officers of the Company generally.
(d) Forfeiture of Rights. In the event that, subsequent to
termination of employment hereunder, the Employee (i) breaches
any of the provisions of Section 12, 13 or 14 hereof or (ii)
directly or indirectly makes or facilitates the making of any
adverse public statements or disclosures with respect to the
business or securities of the Company, all payments and benefits
to which the Employee may otherwise have been entitled pursuant
to Section 10(a), 10(b) or 11 hereof shall immediately terminate
and be forfeited, and any portion of such amounts as may have
been paid to the Employee shall forthwith be returned to the
Company.
11. Change in Control Provisions.
(a) Effect of Change in Control. In the event of a
Change in Control during the Employment Period, all options held
by the Employee to purchase shares of the Company's stock that
are not then vested and exercisable shall become immediately and
fully vested and exercisable as of the effective date of the
Change in Control.
(b) Effect of Termination Following Change in Control.
In the event of a Change in Control during the Employment Period
and a subsequent termination of the Employee's employment, either
by the Company as a Termination Without Cause or by the Employee
for Good Reason, whether or not such termination is during the
Employment Period, the Employee shall be entitled to receive (i)
the payments and other rights provided in Section 10(a) hereof,
(ii) severance payments in the form a cash lump sum, paid within
15 days of the date of termination, with the amount of such
payment to be the aggregate amount of the Employee's base salary
as in effect immediately prior to such termination payable over a
period of 12 months, but discounted to present value from the
dates such payments would otherwise be made to the Employee,
based on the 100% short-term Applicable Federal Rate (compounded
annually) under Section 1274(d) of the Internal Revenue Code as
in effect at the time of payment, and (iii) continuation of the
medical benefits coverage to which the Employee is entitled under
Section 5(c) hereof for a period of 12 months following the date
of termination, with such coverage to be provided at the same
level and subject to the same terms and conditions (including,
without limitation, any applicable co-pay obligations of the
Employee, but excluding any applicable tax consequences for the
Employee) as in effect from time to time for officers of the
Company generally. In the event that the Employee becomes
entitled to the payments and benefits provided above in this
Section 12 and, within 30 days following the first anniversary
date of the date of termination of employment, he certifies to
the Company that he has not accepted another position of full-
time employment with any person, firm or other entity as of such
anniversary date, the Employee shall be entitled to an additional
12 months lump-sum severance payment and continued medical
benefits, calculated and paid in the same manner as provided
above in this Section 12. In addition, upon any such Termination
Without Cause or for Good Reason that occurs within six months
following the effective date of a Change in Control, the Employee
shall retain the right to exercise any options to purchase shares
of the Company's stock until the earlier of (a) 36 months
following the date of such termination or (b) the expiration of
the original full term of each such option.
(c) Definition of Change in Control. For purposes of
this Agreement, a "Change in Control" shall be deemed to have
occurred upon:
(i) an acquisition subsequent to the date hereof by
any person, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")) (a "Person"), of beneficial
ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 30% or more of either (A) the
then outstanding shares of common stock of the Company
("Common Stock") or (B) the combined voting power of the
then outstanding voting securities of the Company entitled
to vote generally in the election of directors (the
"Outstanding Company Voting Securities"); excluding,
however, the following: (1) any acquisition directly from
the Company, other than an acquisition by virtue of the
exercise of a conversion privilege unless the security being
so converted was itself acquired directly from the Company,
(2) any acquisition by the Company and (3) any acquisition
by an employee benefit plan (or related trust) sponsored or
maintained by the Company;
(ii) a change in the composition of the Board such that
during any period of two consecutive years, individuals who
at the beginning of such period constitute the Board, and
any new director (other than a director designated by a
person who has entered into an agreement with the Company to
effect a transaction described in clause (i), (iii), or (iv)
of this paragraph) whose election by the Board or nomination
for election by the Company's stockholders was approved by a
vote of at least two-thirds of the directors then still in
office who either were directors at the beginning of the
period or whose election or nomination for election was
previously so approved, cease for any reason to constitute
at least a majority of the members thereof;
(iii) the approval by the stockholders of the Company
of a merger, consolidation, reorganization or similar
corporate transaction, whether or not the Company is the
surviving corporation in such transaction, in which
outstanding shares of Common Stock are converted into (A)
shares of stock of another company, other than a conversion
into shares of voting common stock of the successor
corporation (or a holding company thereof) representing 80%
of the voting power of all capital stock thereof outstanding
immediately after the merger or consolidation or (B) other
securities (of either the Company or another company) or
cash or other property;
(iv) the approval by stockholders of the Company of the
issuance of shares of Common Stock in connection with a
merger, consolidation, reorganization or similar corporate
transaction in an amount in excess of 40% of the number of
shares of Common Stock outstanding immediately prior to the
consummation of such transaction;
(v) the approval by the stockholders of the Company of
(A) the sale or other disposition of all or substantially
all of the assets of the Company or (B) a complete
liquidation or dissolution of the Company; or
(vi) the adoption by the Board of a resolution to the
effect that any person has acquired effective control of the
business and affairs of the Company.
(d) Good Reason Following Change in Control. For
purposes of this Agreement, termination for "Good Reason" shall
mean termination by the Employee of his employment with the
Company, within six months immediately following a Change in
Control, based on:
(i) any diminution in the Employee's position, title,
responsibilities or authority from those in effect
immediately prior to such Change in Control; or
(ii) the breach by the Company of any of its material
obligations under this Agreement.
12. Disclosure of Information. The Employee will not,
at any time during or after the Employment Period, disclose to
any person, firm, corporation or other business entity, except as
required by law, any non-public information concerning the
business, products, clients or affairs of the Company or any
subsidiary or affiliate thereof for any reason or purpose
whatsoever, nor will the Employee make use of any of such non-
public information for personal purposes or for the benefit of
any person, firm, corporation or other business entity except the
Company or any subsidiary or affiliate thereof.
13. Restrictive Covenant. (a) The Employee hereby
acknowledges and recognizes that, during the Employment Period,
the Employee will be privy to trade secrets and confidential
proprietary information critical to the Company's business and
the Employee further acknowledges and recognizes that the Company
would find it extremely difficult or impossible to replace the
Employee and, accordingly, the Employee agrees that, in
consideration of the benefits to be received by the Employee
hereunder, the Employee will not, from and after the date hereof
until the first anniversary of the termination of the Employment
Period (or six months after the termination of the Employment
Period if such termination is as a result of a Termination
Without Cause or a termination for Good Reason following a Change
in Control), (i) directly or indirectly engage in the
development, production, marketing or sale of products that
compete (or, upon commercialization, would compete) with products
of the Company being developed (so long as such development has
not been abandoned), marketed or sold at the time of the
Employee's termination (such business or activity being
hereinafter called a "Competing Business") whether such
engagement shall be as an officer, director, owner, employee,
partner, affiliate or other participant in any Competing
Business, (ii) assist others in engaging in any Competing
Business in the manner described in the foregoing clause (i), or
(iii) induce other employees of the Company or any subsidiary
thereof to terminate their employment with the Company or any
subsidiary thereof or engage in any Competing Business.
Notwithstanding the foregoing, the term "Competing Business"
shall not include any business or activity that was not conducted
by the Company prior to the effective date of a Change in
Control.
(b) The Employee understands that the foregoing
restrictions may limit the ability of the Employee to earn a
livelihood in a business similar to the business of the Company,
but nevertheless believes that the Employee has received and will
receive sufficient consideration and other benefits, as an
employee of the Company and as otherwise provided hereunder, to
justify such restrictions which, in any event (given the
education, skills and ability of the Employee), the Employee
believes would not prevent the Employee from earning a living.
14. Company Right to Inventions. The Employee will
promptly disclose, grant and assign to the Company, for its sole
use and benefit, any and all inventions, improvements, technical
information and suggestions relating in any way to the business
of the Company which the Employee may develop or acquire during
the Employment Period (whether or not during usual working
hours), together with all patent applications, letters patent,
copyrights and reissues thereof that may at any time be granted
for or upon any such invention, improvement or technical
information. In connection therewith:
(i) the Employee shall, without charge, but at the
expense of the Company, promptly at all times hereafter
execute and deliver such applications, assignments,
descriptions and other instruments as may be necessary or
proper in the opinion of the Company to vest title to any
such inventions, improvements, technical information, patent
applications, patents, copyrights or reissues thereof in the
Company and to enable it to obtain and maintain the entire
right and title thereto throughout the world; and
(ii) the Employee shall render to the Company, at its
expense (including a reasonable payment for the time
involved in case the Employee is not then in its employ),
all such assistance as it may require in the prosecution of
applications for said patents, copyrights or reissues
thereof, in the prosecution or defense of interferences
which may be declared involving any said applications,
patents or copyrights and in any litigation in which the
Company may be involved relating to any such patents,
inventions, improvements or technical information.
15. Enforcement. It is the desire and intent of the
parties hereto that the provisions of this Agreement be
enforceable to the fullest extent permissible under the laws and
public policies applied in each jurisdiction in which enforcement
is sought. Accordingly, to the extent that a restriction
contained in this Agreement is more restrictive than permitted by
the laws of any jurisdiction where this Agreement may be subject
to review and interpretation, the terms of such restriction, for
the purpose only of the operation of such restriction in such
jurisdiction, will be the maximum restriction allowed by the laws
of such jurisdiction and such restriction will be deemed to have
been revised accordingly herein.
16. Remedies; Survival. (a) The Employee
acknowledges and understands that the provisions of the covenants
contained in Sections 12, 13 and 14 hereof, the violation of
which cannot be accurately compensated for in damages by an
action at law, are of crucial importance to the Company, and that
the breach or threatened breach of the provisions of this
Agreement would cause the Company irreparable harm. In the event
of a breach or threatened breach by the Employee of the
provisions of Section 12, 13 or 14 hereof, the Company will be
entitled to an injunction restraining the Employee from such
breach. Nothing herein contained will be construed as
prohibiting the Company from pursuing any other remedies
available for any breach or threatened breach of this Agreement.
(b) Notwithstanding anything contained in this
Agreement to the contrary, the provisions of Sections 10(b), 12,
13, 14, 15 and 16 hereof will survive the expiration or other
termination of this Agreement until, by their terms, such
provisions are no longer operative.
17. Notices. Notices and other communications
hereunder will be in writing and will be delivered personally or
sent by air courier or first class certified or registered mail,
return receipt requested and postage prepaid, addressed as
follows:
if to the Employee: as specified in Annex A
and if to the Company: MedImmune, Inc.
35 West Watkins Mill Road
Gaithersburg, Maryland 20878
Attention: Chief Executive Officer
with a copy to: Frederick W. Kanner, Esq.
Dewey Ballantine
1301 Avenue of the Americas
New York, NY 10019
All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement will be deemed
to have been given on the date of delivery, if personally
delivered; on the business day after the date when sent, if sent
by air courier; and on the third business day after the date when
sent, if sent by mail, in each case addressed to such party as
provided in this Section 17 or in accordance with the latest
unrevoked direction from such party.
18. Binding Agreement; Benefit. The provisions of
this Agreement will be binding upon, and will inure to the
benefit of, the respective heirs, legal representatives and
successors of the parties hereto.
19. Governing Law. This Agreement will be governed
by, and construed and enforced in accordance with, the laws of
the State of Maryland.
20. Waiver of Breach. The waiver by either party of a
breach of any provision of this Agreement by the other party must
be in writing and will not operate or be construed as a waiver of
any subsequent breach by such other party.
21. Entire Agreement; Amendments. This Agreement
(including Annex A) contains the entire agreement between the
parties with respect to the subject matter hereof and supersedes
all prior agreements or understandings among the parties with
respect thereof. This Agreement may be amended only by an
agreement in writing signed by the parties hereto.
22. Headings. The section headings contained in this
Agreement are for reference purposes only and will not affect in
any way the meaning or interpretation of this Agreement.
23. Severability. Any provision of this Agreement
that is prohibited or unenforceable in any jurisdiction will, as
to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction will not invalidate or
render unenforceable such provision in any other jurisdiction.
24. Assignment. This Agreement is personal in its
nature and the parties hereto shall not, without the consent of
the other, assign or transfer this Agreement or any rights or
obligations hereunder; provided, that the provisions hereof
(including, without limitation, Sections 12, 13 and 14) will
inure to the benefit of, and be binding upon, each successor of
the Company, whether by merger, consolidation, transfer of all or
substantially all of its assets or otherwise.
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first above written.
EMPLOYEE MEDIMMUNE, INC.
By
David M. Mott
ANNEX A
to
Employment Agreement
Name of Employee: DAVID M. MOTT
1. Position: President and Chief
Operating Officer
2. Initial Base Salary: $277,000
3. Employee's address for notices: 3916 Underwood Street
Chevy Chase, MD 20817
EXHIBIT 10.68
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT, dated as of April 1, 1997,
is by and between FRANKLIN H. TOP, JR. (the "Employee") and
MEDIMMUNE, INC., a Delaware corporation (the "Company").
The Company and the Employee hereby agree as follows:
1. Employment. The Company hereby employs the
Employee, and the Employee hereby accepts employment by the
Company, upon the terms and conditions hereinafter set forth.
2. Term. Subject to the provisions for earlier
termination as herein provided, the employment of the Employee
hereunder will be for the period commencing on the date hereof
and ending on the second anniversary of such date. Such period
may be extended, with the consent of the Employee, for one or
more one-year periods by resolution adopted by the Compensation
and Stock Committee (the "Committee") of the Board of Directors
of the Company (the "Board"). The period of the Employee's
employment under this Agreement, as it may be terminated or
extended from time to time as provided herein, is referred to
hereafter as the "Employment Period."
3. Duties and Responsibilities. The Employee will be
employed by the Company in the position set forth on Annex A, a
copy of which is attached hereto and the terms of which are
incorporated herein by reference. The Employee will faithfully
perform the duties and responsibilities of such office, as they
may be assigned from time to time by the Board or the Board's
designee.
4. Time to be Devoted to Employment. Except for
vacation in accordance with the Company's policy in effect from
time to time and absences due to temporary illness, the Employee
shall devote full time, attention and energy during the
Employment Period to the business of the Company. During the
Employment Period, the Employee will not be engaged in any other
business activity which, in the reasonable judgment of the Board
or its designee, conflicts with the duties of the Employee
hereunder, whether or not such activity is pursued for gain,
profit or other pecuniary advantage.
5. Compensation; Reimbursement.
(a) Base Salary. The Company (or, at the Company's
option, any subsidiary or affiliate thereof) will pay to the
Employee an annual base salary of not less than the amount
specified as the Initial Base Salary on Annex A, payable
bi-weekly. The Employee's base salary shall be reviewed annually
by the Compensation Committee and shall be subject to increase at
the option and sole discretion of the Compensation Committee.
(b) Bonus. The Employee shall be eligible to receive,
at the sole discretion of the Compensation Committee, an annual
cash bonus based on pre-determined performance standards of the
Company.
(c) Benefits; Stock Options. In addition to the
salary and cash bonus referred to above, the Employee shall be
entitled during the Employment Period to participate in such
employee benefit plans or programs of the Company, and shall be
entitled to such other fringe benefits, as are from time to time
made available by the Company generally to employees of the
Employee's position, tenure, salary, age, health and other
qualifications. Without limiting the generality of the
foregoing, the Employee shall be eligible for such awards, if
any, under the Company's stock option plan as shall be granted to
the Employee by the Compensation Committee or other appropriate
designee of the Board acting in its sole discretion. The
Employee acknowledges and agrees that the Company does not
guarantee the adoption or continuance of any particular employee
benefit plan or program or other fringe benefit during the
Employment Period, and participation by the Employee in any such
plan or program shall be subject to the rules and regulations
applicable thereto.
(d) Expenses. The Company will reimburse the
Employee, in accordance with the practices in effect from time to
time for other officers or staff personnel of the Company, for
all reasonable and necessary traveling expenses and other
disbursements incurred by the Employee for or on behalf of the
Company in the performance of the Employee's duties hereunder,
upon presentation by the Employee to the Company of appropriate
vouchers.
6. Death; Disability. If the Employee dies or is
incapacitated or disabled by accident, sickness or otherwise, so
as to render the Employee mentally or physically incapable of
performing the services required to be performed by the Employee
under this Agreement for a period that would entitle the Employee
to qualify for long-term disability benefits under the Company's
then-current long-term disability insurance program or, in the
absence of such a program, for a period of 90 consecutive days or
longer (such condition being herein referred to as a
"Disability"), then (i) in the case of the Employee's death, the
Employee's employment shall be deemed to terminate on the date of
the Employee's death or (ii) in the case of a Disability, the
Company, at its option, may terminate the employment of the
Employee under this Agreement immediately upon giving the
Employee notice to that effect. Disability shall be determined
by the Board or the Board's designee. In the case of a
Disability, until the Company shall have terminated the
Employee's employment hereunder in accordance with the foregoing,
the Employee shall be entitled to receive compensation provided
for herein notwithstanding any such physical or mental
disability.
7. Termination For Cause. The Company may, with the
approval of a majority of the Board, terminate the employment of
the Employee hereunder at any time during the Employment Period
for "cause" (such termination being hereinafter called a
"Termination for Cause") by giving the Employee notice of such
termination, upon the giving of which such termination will take
effect immediately. For purposes of this Agreement, "cause"
means (i) the Employee's willful and substantial misconduct, (ii)
the Employee's repeated, after written notice from the Company,
neglect of duties or failure to act which can reasonably be
expected to affect materially and adversely the business or
affairs of the Company or any subsidiary or affiliate thereof,
(iii) the Employee's material breach of any of the agreements
contained in Sections 12, 13 or 14 hereof, (iv) the commission by
the Employee of any material fraudulent act with respect to the
business and affairs of the Company or any subsidiary or
affiliate thereof or (v) the Employee's conviction of (or plea of
nolo contendere to) a crime constituting a felony.
8. Termination Without Cause. The Company may
terminate the employment of the Employee hereunder at any time
without "cause" (such termination being hereinafter called a
"Termination Without Cause") by giving the Employee notice of
such termination, upon the giving of which such termination will
take effect not later than 30 days from the date such notice is
given. 9. Voluntary Termination. Any termination
of the employment of the Employee hereunder, otherwise than as a
result of death or Disability, a Termination For Cause, a
Termination Without Cause or a termination for Good Reason (as
defined below) following a Change in Control (as defined below),
will be deemed to be a "Voluntary Termination." A Voluntary
Termination will be deemed to be effective immediately upon such
termination. 10. Effect of Termination of
Employment.
(a) Voluntary Termination; Termination For Cause.
Upon the termination of the Employee's employment hereunder
pursuant to a Voluntary Termination or a Termination For Cause,
neither the Employee nor the Employee's beneficiaries or estate
will have any further rights or claims against the Company under
this Agreement except the right to receive (i) the unpaid portion
of the base salary provided for in Section 5(a) hereof, computed
on a pro rata basis to the date of termination, (ii) payment of
his accrued but unpaid rights in accordance with the terms of any
incentive compensation, stock option, retirement, employee
welfare or other employee benefit plans or programs of the
Company in which the Executive is then participating in
accordance with Sections 5(b) and 5(c) hereof and (iii)
reimbursement for any expenses for which the Employee shall not
have theretofore been reimbursed as provided in Section 5(d)
hereof.
(b) Termination Without Cause. Upon the termination
of the Employee's employment as a Termination Without Cause,
neither the Employee nor the Employee's beneficiaries or estate
will have any further rights or claims against the Company under
this Agreement except the right to receive (i) the payments and
other rights provided for in Section 10(a) hereof, (ii) severance
payments in the form of a continuation of the Employee's base
salary as in effect immediately prior to such termination for a
period of 12 months following the effective date of such
termination and (iii) continuation of the medical benefits
coverage to which the Employee is entitled under Section 5(c)
hereof over the same period with respect to which the Employee's
base salary is continued as provided in clause (ii) above, with
such coverage to be provided at the same level and subject to the
same terms and conditions (including, without limitation, any
applicable co-pay obligations of the Employee, but excluding any
applicable tax consequences for the Employee) as in effect from
time to time for officers of the Company generally. The rights
of the Employee and the obligations of the Company under this
Section 10(b) shall remain in full force and effect
notwithstanding the expiration of the Employment Period, whether
by failure of the Compensation Committee to extend such period or
otherwise.
(c) Death and Disability. Upon the termination of the
Employee's employment hereunder as a result of death or
Disability, neither the Employee nor the Employee's beneficiaries
or estate will have any further rights or claims against the
Company under this Agreement except the right to receive (i) the
payments and other rights provided for in Section 10(a) hereof,
(ii) a lump-sum payment, within 15 days after the effective date
of such termination, equal to the aggregate amount of the
Employee's base salary as in effect immediately prior to such
termination that would be payable over a period of 12 months
following the effective date of such termination and (iii) in the
case of Disability only, continuation of the medical benefits
coverage to which the Employee is entitled under Section 5(c)
hereof over the same period with respect to which the lump-sum
payment is calculated under clause (ii) above, with such coverage
to be provided at the same level and subject to the same terms
and conditions (including, without limitation, any applicable co-
pay obligations of the Employee, but excluding any applicable tax
consequences for the Employee) as in effect from time to time for
officers of the Company generally.
(d) Forfeiture of Rights. In the event that,
subsequent to termination of employment hereunder, the Employee
(i) breaches any of the provisions of Section 12, 13 or 14 hereof
or (ii) directly or indirectly makes or facilitates the making of
any adverse public statements or disclosures with respect to the
business or securities of the Company, all payments and benefits
to which the Employee may otherwise have been entitled pursuant
to Section 10(a), 10(b) or 11 hereof shall immediately terminate
and be forfeited, and any portion of such amounts as may have
been paid to the Employee shall forthwith be returned to the
Company. 11. Change in Control Provisions.
(a) Effect of Termination Following Change in Control.
In the event of a Change in Control during the Employment Period
and a subsequent termination of the Employee's employment, either
by the Company as a Termination Without Cause or by the Employee
for Good Reason, whether or not such termination is during the
Employment Period, the Employee shall be entitled to receive (i)
the payments and other rights provided in Section 10(a) hereof,
(ii) severance payments in the form a cash lump sum, paid within
15 days of the date of termination, with the amount of such
payment to be the aggregate amount of the Employee's base salary
as in effect immediately prior to such termination payable over a
period of 12 months, but discounted to present value from the
dates such payments would otherwise be made to the Employee,
based on the 100% short-term Applicable Federal Rate (compounded
annually) under Section 1274(d) of the Internal Revenue Code as
in effect at the time of payment, and (iii) continuation of the
medical benefits coverage to which the Employee is entitled under
Section 5(c) hereof for a period of 12 months following the date
of termination, with such coverage to be provided at the same
level and subject to the same terms and conditions (including,
without limitation, any applicable co-pay obligations of the
Employee, but excluding any applicable tax consequences for the
Employee) as in effect from time to time for officers of the
Company generally.
(b) Definition of Change in Control. For purposes of
this Agreement, a "Change in Control" shall be deemed to have
occurred upon:
(i) an acquisition subsequent to the date hereof by
any person, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) (a "Person"), of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 30% or more of either (A) the then outstanding
shares of common stock of the Company ("Common Stock") or (B) the
combined voting power of the then outstanding voting securities
of the Company entitled to vote generally in the election of
directors (the "Outstanding Company Voting Securities");
excluding, however, the following: (1) any acquisition directly
from the Company, other than an acquisition by virtue of the
exercise of a conversion privilege unless the security being so
converted was itself acquired directly from the Company, (2) any
acquisition by the Company and (3) any acquisition by an employee
benefit plan (or related trust) sponsored or maintained by the
Company;
(ii) a change in the composition of the Board such that
during any period of two consecutive years, individuals who
at the beginning of such period constitute the Board, and
any new director (other than a director designated by a
person who has entered into an agreement with the Company to
effect a transaction described in clause (i), (iii), or (iv)
of this paragraph) whose election by the Board or nomination
for election by the Company's stockholders was approved by a
vote of at least two-thirds of the directors then still in
office who either were directors at the beginning of the
period or whose election or nomination for election was
previously so approved, cease for any reason to constitute
at least a majority of the members thereof;
(iii) the approval by the stockholders of the Company
of a merger, consolidation, reorganization or similar
corporate transaction, whether or not the Company is the
surviving corporation in such transaction, in which
outstanding shares of Common Stock are converted into (A)
shares of stock of another company, other than a conversion
into shares of voting common stock of the successor
corporation (or a holding company thereof) representing 80%
of the voting power of all capital stock thereof outstanding
immediately after the merger or consolidation or (B) other
securities (of either the Company or another company) or
cash or other property;
(iv) the approval by stockholders of the Company of the
issuance of shares of Common Stock in connection with a
merger, consolidation, reorganization or similar corporate
transaction in an amount in excess of 40% of the number of
shares of Common Stock outstanding immediately prior to the
consummation of such transaction;
(v) the approval by the stockholders of the Company of
(A) the sale or other disposition of all or substantially
all of the assets of the Company or (B) a complete
liquidation or dissolution of the Company; or
(vi) the adoption by the Board of a resolution to the
effect that any person has acquired effective control of the
business and affairs of the Company.
(c) Good Reason Following Change in Control. For
purposes of this Agreement, termination for "Good Reason"
shall mean termination by the Employee of his employment
with the Company, within six months immediately following a
Change in Control, based on:
(i) any diminution in the Employee's position, title,
responsibilities or authority from those in effect
immediately prior to such Change in Control; or
(ii) the breach by the Company of any of its material
obligations under this Agreement.
12. Disclosure of Information. The Employee will not,
at any time during or after the Employment Period, disclose to
any person, firm, corporation or other business entity, except as
required by law, any non-public information concerning the
business, products, clients or affairs of the Company or any
subsidiary or affiliate thereof for any reason or purpose
whatsoever, nor will the Employee make use of any of such non-
public information for personal purposes or for the benefit of
any person, firm, corporation or other business entity except the
Company or any subsidiary or affiliate thereof.
13. Restrictive Covenant. (a) The Employee hereby
acknowledges and recognizes that, during the Employment Period,
the Employee will be privy to trade secrets and confidential
proprietary information critical to the Company's business and
the Employee further acknowledges and recognizes that the Company
would find it extremely difficult or impossible to replace the
Employee and, accordingly, the Employee agrees that, in
consideration of the benefits to be received by the Employee
hereunder, the Employee will not, from and after the date hereof
until the first anniversary of the termination of the Employment
Period (or six months after the termination of the Employment
Period if such termination is as a result of a Termination
Without Cause or a termination for Good Reason following a Change
in Control), (i) directly or indirectly engage in the
development, production, marketing or sale of products that
compete (or, upon commercialization, would compete) with products
of the Company being developed (so long as such development has
not been abandoned), marketed or sold at the time of the
Employee's termination (such business or activity being
hereinafter called a "Competing Business") whether such
engagement shall be as an officer, director, owner, employee,
partner, affiliate or other participant in any Competing
Business, (ii) assist others in engaging in any Competing
Business in the manner described in the foregoing clause (i), or
(iii) induce other employees of the Company or any subsidiary
thereof to terminate their employment with the Company or any
subsidiary thereof or engage in any Competing Business.
Notwithstanding the foregoing, the term "Competing Business"
shall not include any business or activity that was not conducted
by the Company prior to the effective date of a Change in
Control.
(b) The Employee understands that the foregoing
restrictions may limit the ability of the Employee to earn a
livelihood in a business similar to the business of the Company,
but nevertheless believes that the Employee has received and will
receive sufficient consideration and other benefits, as an
employee of the Company and as otherwise provided hereunder, to
justify such restrictions which, in any event (given the
education, skills and ability of the Employee), the Employee
believes would not prevent the Employee from earning a living.
14. Company Right to Inventions. The Employee will
promptly disclose, grant and assign to the Company, for its sole
use and benefit, any and all inventions, improvements, technical
information and suggestions relating in any way to the business
of the Company which the Employee may develop or acquire during
the Employment Period (whether or not during usual working
hours), together with all patent applications, letters patent,
copyrights and reissues thereof that may at any time be granted
for or upon any such invention, improvement or technical
information. In connection therewith:
(i) the Employee shall, without charge, but at the
expense of the Company, promptly at all times hereafter
execute and deliver such applications, assignments,
descriptions and other instruments as may be necessary or
proper in the opinion of the Company to vest title to any
such inventions, improvements, technical information, patent
applications, patents, copyrights or reissues thereof in the
Company and to enable it to obtain and maintain the entire
right and title thereto throughout the world; and
(ii) the Employee shall render to the Company, at its
expense (including a reasonable payment for the time
involved in case the Employee is not then in its employ),
all such assistance as it may require in the prosecution of
applications for said patents, copyrights or reissues
thereof, in the prosecution or defense of interferences
which may be declared involving any said applications,
patents or copyrights and in any litigation in which the
Company may be involved relating to any such patents,
inventions, improvements or technical information.
15. Enforcement. It is the desire and intent of the
parties hereto that the provisions of this Agreement be
enforceable to the fullest extent permissible under the laws and
public policies applied in each jurisdiction in which enforcement
is sought. Accordingly, to the extent that a restriction
contained in this Agreement is more restrictive than permitted by
the laws of any jurisdiction where this Agreement may be subject
to review and interpretation, the terms of such restriction, for
the purpose only of the operation of such restriction in such
jurisdiction, will be the maximum restriction allowed by the laws
of such jurisdiction and such restriction will be deemed to have
been revised accordingly herein.
16. Remedies; Survival. (a) The Employee
acknowledges and understands that the provisions of the covenants
contained in Sections 12, 13 and 14 hereof, the violation of
which cannot be accurately compensated for in damages by an
action at law, are of crucial importance to the Company, and that
the breach or threatened breach of the provisions of this
Agreement would cause the Company irreparable harm. In the event
of a breach or threatened breach by the Employee of the
provisions of Section 12, 13 or 14 hereof, the Company will be
entitled to an injunction restraining the Employee from such
breach. Nothing herein contained will be construed as
prohibiting the Company from pursuing any other remedies
available for any breach or threatened breach of this Agreement.
(b) Notwithstanding anything contained in this
Agreement to the contrary, the provisions of Sections 10(b), 12,
13, 14, 15 and 16 hereof will survive the expiration or other
termination of this Agreement until, by their terms, such
provisions are no longer operative.
17. Notices. Notices and other communications
hereunder will be in writing and will be delivered personally or
sent by air courier or first class certified or registered mail,
return receipt requested and postage prepaid, addressed as
follows:
if to the Employee: as specified in Annex A
and if to the Company: MedImmune, Inc.
35 West Watkins Mill Road
Gaithersburg, Maryland 20878
Attention: Chief Executive Officer
with a copy to: Frederick W. Kanner, Esq.
Dewey Ballantine
1301 Avenue of the Americas
New York, NY 10019
All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement will be deemed
to have been given on the date of delivery, if personally
delivered; on the business day after the date when sent, if sent
by air courier; and on the third business day after the date when
sent, if sent by mail, in each case addressed to such party as
provided in this Section 17 or in accordance with the latest
unrevoked direction from such party.
18. Binding Agreement; Benefit. The provisions of
this Agreement will be binding upon, and will inure to the
benefit of, the respective heirs, legal representatives and
successors of the parties hereto.
19. Governing Law. This Agreement will be governed
by, and construed and enforced in accordance with, the laws of
the State of Maryland.
20. Waiver of Breach. The waiver by either party of a
breach of any provision of this Agreement by the other party must
be in writing and will not operate or be construed as a waiver of
any subsequent breach by such other party.
21. Entire Agreement; Amendments. This Agreement
(including Annex A) contains the entire agreement between the
parties with respect to the subject matter hereof and supersedes
all prior agreements or understandings among the parties with
respect thereof. This Agreement may be amended only by an
agreement in writing signed by the parties hereto.
22. Headings. The section headings contained in this
Agreement are for reference purposes only and will not affect in
any way the meaning or interpretation of this Agreement.
23. Severability. Any provision of this Agreement
that is prohibited or unenforceable in any jurisdiction will, as
to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction will not invalidate or
render unenforceable such provision in any other jurisdiction.
24. Assignment. This Agreement is personal in its
nature and the parties hereto shall not, without the consent of
the other, assign or transfer this Agreement or any rights or
obligations hereunder; provided, that the provisions hereof
(including, without limitation, Sections 12, 13 and 14) will
inure to the benefit of, and be binding upon, each successor of
the Company, whether by merger, consolidation, transfer of all or
substantially all of its assets or otherwise.
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first above written.
EMPLOYEE MEDIMMUNE, INC.
By
Franklin H. Top, Jr.
ANNEX A
to
Employment Agreement
Name of Employee: FRANKLIN H. TOP, JR.
1. Position: Executive Vice President
and Medical Director
2. Initial Base Salary: $213,000
3. Employee's address for notices: 9922 Foxborough Circle
Rockville, MD 20850
EXHIBIT 10.69
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT, dated as of April 1, 1997, is
by and between DAVID P. WRIGHT (the "Employee") and MEDIMMUNE,
INC., a Delaware corporation (the "Company").
The Company and the Employee hereby agree as follows:
1. Employment. The Company hereby employs the
Employee, and the Employee hereby accepts employment by the
Company, upon the terms and conditions hereinafter set forth.
2. Term. Subject to the provisions for earlier
termination as herein provided, the employment of the Employee
hereunder will be for the period commencing on the date hereof and
ending on the second anniversary of such date. Such period may be
extended, with the consent of the Employee, for one or more one-
year periods by resolution adopted by the Compensation and Stock
Committee (the "Committee") of the Board of Directors of the
Company (the "Board"). The period of the Employee's employment
under this Agreement, as it may be terminated or extended from time
to time as provided herein, is referred to hereafter as the
"Employment Period."
3. Duties and Responsibilities. The Employee will be
employed by the Company in the position set forth on Annex A, a
copy of which is attached hereto and the terms of which are
incorporated herein by reference. The Employee will faithfully
perform the duties and responsibilities of such office, as they may
be assigned from time to time by the Board or the Board's designee.
4. Time to be Devoted to Employment. Except for
vacation in accordance with the Company's policy in effect from
time to time and absences due to temporary illness, the Employee
shall devote full time, attention and energy during the Employment
Period to the business of the Company. During the Employment
Period, the Employee will not be engaged in any other business
activity which, in the reasonable judgment of the Board or its
designee, conflicts with the duties of the Employee hereunder,
whether or not such activity is pursued for gain, profit or other
pecuniary advantage.
5. Compensation; Reimbursement.
(a) Base Salary. The Company (or, at the Company's
option, any subsidiary or affiliate thereof) will pay to the
Employee an annual base salary of not less than the amount
specified as the Initial Base Salary on Annex A, payable bi-weekly.
The Employee's base salary shall be reviewed annually by the
Compensation Committee and shall be subject to increase at the
option and sole discretion of the Compensation Committee.
(b) Bonus. The Employee shall be eligible to receive,
at the sole discretion of the Compensation Committee, an annual
cash bonus based on pre-determined performance standards of the
Company.
(c) Benefits; Stock Options. In addition to the salary
and cash bonus referred to above, the Employee shall be entitled
during the Employment Period to participate in such employee
benefit plans or programs of the Company, and shall be entitled to
such other fringe benefits, as are from time to time made available
by the Company generally to employees of the Employee's position,
tenure, salary, age, health and other qualifications. Without
limiting the generality of the foregoing, the Employee shall be
eligible for such awards, if any, under the Company's stock option
plan as shall be granted to the Employee by the Compensation
Committee or other appropriate designee of the Board acting in its
sole discretion. The Employee acknowledges and agrees that the
Company does not guarantee the adoption or continuance of any
particular employee benefit plan or program or other fringe benefit
during the Employment Period, and participation by the Employee in
any such plan or program shall be subject to the rules and
regulations applicable thereto.
(d) Expenses. The Company will reimburse the Employee,
in accordance with the practices in effect from time to time for
other officers or staff personnel of the Company, for all
reasonable and necessary traveling expenses and other disbursements
incurred by the Employee for or on behalf of the Company in the
performance of the Employee's duties hereunder, upon presentation
by the Employee to the Company of appropriate vouchers.
6. Death; Disability. If the Employee dies or is
incapacitated or disabled by accident, sickness or otherwise, so as
to render the Employee mentally or physically incapable of
performing the services required to be performed by the Employee
under this Agreement for a period that would entitle the Employee
to qualify for long-term disability benefits under the Company's
then-current long-term disability insurance program or, in the
absence of such a program, for a period of 90 consecutive days or
longer (such condition being herein referred to as a "Disability"),
then (i) in the case of the Employee's death, the Employee's
employment shall be deemed to terminate on the date of the
Employee's death or (ii) in the case of a Disability, the Company,
at its option, may terminate the employment of the Employee under
this Agreement immediately upon giving the Employee notice to that
effect. Disability shall be determined by the Board or the Board's
designee. In the case of a Disability, until the Company shall
have terminated the Employee's employment hereunder in accordance
with the foregoing, the Employee shall be entitled to receive
compensation provided for herein notwithstanding any such physical
or mental disability.
7. Termination For Cause. The Company may, with the
approval of a majority of the Board, terminate the employment of
the Employee hereunder at any time during the Employment Period for
"cause" (such termination being hereinafter called a "Termination
for Cause") by giving the Employee notice of such termination, upon
the giving of which such termination will take effect immediately.
For purposes of this Agreement, "cause" means (i) the Employee's
willful and substantial misconduct, (ii) the Employee's repeated,
after written notice from the Company, neglect of duties or failure
to act which can reasonably be expected to affect materially and
adversely the business or affairs of the Company or any subsidiary
or affiliate thereof, (iii) the Employee's material breach of any
of the agreements contained in Sections 12, 13 or 14 hereof, (iv)
the commission by the Employee of any material fraudulent act with
respect to the business and affairs of the Company or any
subsidiary or affiliate thereof or (v) the Employee's conviction of
(or plea of nolo contendere to) a crime constituting a felony.
8. Termination Without Cause. The Company may
terminate the employment of the Employee hereunder at any time
without "cause" (such termination being hereinafter called a
"Termination Without Cause") by giving the Employee notice of such
termination, upon the giving of which such termination will take
effect not later than 30 days from the date such notice is given.
9. Voluntary Termination. Any termination of the
employment of the Employee hereunder, otherwise than as a result of
death or Disability, a Termination For Cause, a Termination Without
Cause or a termination for Good Reason (as defined below) following
a Change in Control (as defined below), will be deemed to be a
"Voluntary Termination." A Voluntary Termination will be deemed to
be effective immediately upon such termination.
10. Effect of Termination of Employment.
(a) Voluntary Termination; Termination For Cause. Upon
the termination of the Employee's employment hereunder pursuant to
a Voluntary Termination or a Termination For Cause, neither the
Employee nor the Employee's beneficiaries or estate will have any
further rights or claims against the Company under this Agreement
except the right to receive (i) the unpaid portion of the base
salary provided for in Section 5(a) hereof, computed on a pro rata
basis to the date of termination, (ii) payment of his accrued but
unpaid rights in accordance with the terms of any incentive
compensation, stock option, retirement, employee welfare or other
employee benefit plans or programs of the Company in which the
Executive is then participating in accordance with Sections 5(b)
and 5(c) hereof and (iii) reimbursement for any expenses for which
the Employee shall not have theretofore been reimbursed as provided
in Section 5(d) hereof.
(b) Termination Without Cause. Upon the termination of
the Employee's employment as a Termination Without Cause, neither
the Employee nor the Employee's beneficiaries or estate will have
any further rights or claims against the Company under this
Agreement except the right to receive (i) the payments and other
rights provided for in Section 10(a) hereof, (ii) severance
payments in the form of a continuation of the Employee's base
salary as in effect immediately prior to such termination for a
period of 12 months following the effective date of such
termination and (iii) continuation of the medical benefits coverage
to which the Employee is entitled under Section 5(c) hereof over
the same period with respect to which the Employee's base salary is
continued as provided in clause (ii) above, with such coverage to
be provided at the same level and subject to the same terms and
conditions (including, without limitation, any applicable co-pay
obligations of the Employee, but excluding any applicable tax
consequences for the Employee) as in effect from time to time for
officers of the Company generally. The rights of the Employee and
the obligations of the Company under this Section 10(b) shall
remain in full force and effect notwithstanding the expiration of
the Employment Period, whether by failure of the Compensation
Committee to extend such period or otherwise.
(c) Death and Disability. Upon the termination of the
Employee's employment hereunder as a result of death or Disability,
neither the Employee nor the Employee's beneficiaries or estate
will have any further rights or claims against the Company under
this Agreement except the right to receive (i) the payments and
other rights provided for in Section 10(a) hereof, (ii) a lump-sum
payment, within 15 days after the effective date of such
termination, equal to the aggregate amount of the Employee's base
salary as in effect immediately prior to such termination that
would be payable over a period of 12 months following the effective
date of such termination and (iii) in the case of Disability only,
continuation of the medical benefits coverage to which the Employee
is entitled under Section 5(c) hereof over the same period with
respect to which the lump-sum payment is calculated under clause
(ii) above, with such coverage to be provided at the same level and
subject to the same terms and conditions (including, without
limitation, any applicable co-pay obligations of the Employee, but
excluding any applicable tax consequences for the Employee) as in
effect from time to time for officers of the Company generally.
(d) Forfeiture of Rights. In the event that, subsequent
to termination of employment hereunder, the Employee (i) breaches
any of the provisions of Section 12, 13 or 14 hereof or (ii)
directly or indirectly makes or facilitates the making of any
adverse public statements or disclosures with respect to the
business or securities of the Company, all payments and benefits to
which the Employee may otherwise have been entitled pursuant to
Section 10(a), 10(b) or 11 hereof shall immediately terminate and
be forfeited, and any portion of such amounts as may have been paid
to the Employee shall forthwith be returned to the Company.
11. Change in Control Provisions.
(a) Effect of Termination Following Change in Control.
In the event of a Change in Control during the Employment Period
and a subsequent termination of the Employee's employment, either
by the Company as a Termination Without Cause or by the Employee
for Good Reason, whether or not such termination is during the
Employment Period, the Employee shall be entitled to receive (i)
the payments and other rights provided in Section 10(a) hereof,
(ii) severance payments in the form a cash lump sum, paid within 15
days of the date of termination, with the amount of such payment to
be the aggregate amount of the Employee's base salary as in effect
immediately prior to such termination payable over a period of 12
months, but discounted to present value from the dates such
payments would otherwise be made to the Employee, based on the 100%
short-term Applicable Federal Rate (compounded annually) under
Section 1274(d) of the Internal Revenue Code as in effect at the
time of payment, and (iii) continuation of the medical benefits
coverage to which the Employee is entitled under Section 5(c)
hereof for a period of 12 months following the date of termination,
with such coverage to be provided at the same level and subject to
the same terms and conditions (including, without limitation, any
applicable co-pay obligations of the Employee, but excluding any
applicable tax consequences for the Employee) as in effect from
time to time for officers of the Company generally.
(b) Definition of Change in Control. For purposes of
this Agreement, a "Change in Control" shall be deemed to have
occurred upon:
(i) an acquisition subsequent to the date hereof by any
person, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")) (a "Person"), of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under
the Exchange Act) of 30% or more of either (A) the then
outstanding shares of common stock of the Company ("Common
Stock") or (B) the combined voting power of the then
outstanding voting securities of the Company entitled to vote
generally in the election of directors (the "Outstanding
Company Voting Securities"); excluding, however, the
following: (1) any acquisition directly from the Company,
other than an acquisition by virtue of the exercise of a
conversion privilege unless the security being so converted
was itself acquired directly from the Company, (2) any
acquisition by the Company and (3) any acquisition by an
employee benefit plan (or related trust) sponsored or
maintained by the Company;
(ii) a change in the composition of the Board such that
during any period of two consecutive years, individuals who at
the beginning of such period constitute the Board, and any new
director (other than a director designated by a person who has
entered into an agreement with the Company to effect a
transaction described in clause (i), (iii), or (iv) of this
paragraph) whose election by the Board or nomination for
election by the Company's stockholders was approved by a vote
of at least two-thirds of the directors then still in office
who either were directors at the beginning of the period or
whose election or nomination for election was previously so
approved, cease for any reason to constitute at least a
majority of the members thereof;
(iii) the approval by the stockholders of the Company of
a merger, consolidation, reorganization or similar corporate
transaction, whether or not the Company is the surviving
corporation in such transaction, in which outstanding shares
of Common Stock are converted into (A) shares of stock of
another company, other than a conversion into shares of voting
common stock of the successor corporation (or a holding
company thereof) representing 80% of the voting power of all
capital stock thereof outstanding immediately after the merger
or consolidation or (B) other securities (of either the
Company or another company) or cash or other property;
(iv) the approval by stockholders of the Company of the
issuance of shares of Common Stock in connection with a
merger, consolidation, reorganization or similar corporate
transaction in an amount in excess of 40% of the number of
shares of Common Stock outstanding immediately prior to the
consummation of such transaction;
(v) the approval by the stockholders of the Company of
(A) the sale or other disposition of all or substantially all
of the assets of the Company or (B) a complete liquidation or
dissolution of the Company; or
(vi) the adoption by the Board of a resolution to the
effect that any person has acquired effective control of the
business and affairs of the Company.
(c) Good Reason Following Change in Control. For
purposes of this Agreement, termination for "Good Reason" shall
mean termination by the Employee of his employment with the
Company, within six months immediately following a Change in
Control, based on:
(i) any diminution in the Employee's position, title,
responsibilities or authority from those in effect immediately
prior to such Change in Control; or
(ii) the breach by the Company of any of its material
obligations under this Agreement.
12. Disclosure of Information. The Employee will not,
at any time during or after the Employment Period, disclose to any
person, firm, corporation or other business entity, except as
required by law, any non-public information concerning the
business, products, clients or affairs of the Company or any
subsidiary or affiliate thereof for any reason or purpose
whatsoever, nor will the Employee make use of any of such non-
public information for personal purposes or for the benefit of any
person, firm, corporation or other business entity except the
Company or any subsidiary or affiliate thereof.
13. Restrictive Covenant. (a) The Employee hereby
acknowledges and recognizes that, during the Employment Period, the
Employee will be privy to trade secrets and confidential
proprietary information critical to the Company's business and the
Employee further acknowledges and recognizes that the Company would
find it extremely difficult or impossible to replace the Employee
and, accordingly, the Employee agrees that, in consideration of the
benefits to be received by the Employee hereunder, the Employee
will not, from and after the date hereof until the first
anniversary of the termination of the Employment Period (or six
months after the termination of the Employment Period if such
termination is as a result of a Termination Without Cause or a
termination for Good Reason following a Change in Control), (i)
directly or indirectly engage in the development, production,
marketing or sale of products that compete (or, upon
commercialization, would compete) with products of the Company
being developed (so long as such development has not been
abandoned), marketed or sold at the time of the Employee's
termination (such business or activity being hereinafter called a
"Competing Business") whether such engagement shall be as an
officer, director, owner, employee, partner, affiliate or other
participant in any Competing Business, (ii) assist others in
engaging in any Competing Business in the manner described in the
foregoing clause (i), or (iii) induce other employees of the
Company or any subsidiary thereof to terminate their employment
with the Company or any subsidiary thereof or engage in any
Competing Business. Notwithstanding the foregoing, the term
"Competing Business" shall not include any business or activity
that was not conducted by the Company prior to the effective date
of a Change in Control.
(b) The Employee understands that the foregoing
restrictions may limit the ability of the Employee to earn a
livelihood in a business similar to the business of the Company,
but nevertheless believes that the Employee has received and will
receive sufficient consideration and other benefits, as an employee
of the Company and as otherwise provided hereunder, to justify such
restrictions which, in any event (given the education, skills and
ability of the Employee), the Employee believes would not prevent
the Employee from earning a living.
14. Company Right to Inventions. The Employee will
promptly disclose, grant and assign to the Company, for its sole
use and benefit, any and all inventions, improvements, technical
information and suggestions relating in any way to the business of
the Company which the Employee may develop or acquire during the
Employment Period (whether or not during usual working hours),
together with all patent applications, letters patent, copyrights
and reissues thereof that may at any time be granted for or upon
any such invention, improvement or technical information. In
connection therewith:
(i) the Employee shall, without charge, but at the
expense of the Company, promptly at all times hereafter
execute and deliver such applications, assignments,
descriptions and other instruments as may be necessary or
proper in the opinion of the Company to vest title to any such
inventions, improvements, technical information, patent
applications, patents, copyrights or reissues thereof in the
Company and to enable it to obtain and maintain the entire
right and title thereto throughout the world; and
(ii) the Employee shall render to the Company, at its
expense (including a reasonable payment for the time involved
in case the Employee is not then in its employ), all such
assistance as it may require in the prosecution of
applications for said patents, copyrights or reissues thereof,
in the prosecution or defense of interferences which may be
declared involving any said applications, patents or
copyrights and in any litigation in which the Company may be
involved relating to any such patents, inventions,
improvements or technical information.
15. Enforcement. It is the desire and intent of the
parties hereto that the provisions of this Agreement be enforceable
to the fullest extent permissible under the laws and public
policies applied in each jurisdiction in which enforcement is
sought. Accordingly, to the extent that a restriction contained in
this Agreement is more restrictive than permitted by the laws of
any jurisdiction where this Agreement may be subject to review and
interpretation, the terms of such restriction, for the purpose only
of the operation of such restriction in such jurisdiction, will be
the maximum restriction allowed by the laws of such jurisdiction
and such restriction will be deemed to have been revised
accordingly herein.
16. Remedies; Survival. (a) The Employee acknowledges
and understands that the provisions of the covenants contained in
Sections 12, 13 and 14 hereof, the violation of which cannot be
accurately compensated for in damages by an action at law, are of
crucial importance to the Company, and that the breach or
threatened breach of the provisions of this Agreement would cause
the Company irreparable harm. In the event of a breach or
threatened breach by the Employee of the provisions of Section 12,
13 or 14 hereof, the Company will be entitled to an injunction
restraining the Employee from such breach. Nothing herein
contained will be construed as prohibiting the Company from
pursuing any other remedies available for any breach or threatened
breach of this Agreement.
(b) Notwithstanding anything contained in this Agreement
to the contrary, the provisions of Sections 10(b), 12, 13, 14, 15
and 16 hereof will survive the expiration or other termination of
this Agreement until, by their terms, such provisions are no longer
operative.
17. Notices. Notices and other communications hereunder
will be in writing and will be delivered personally or sent by air
courier or first class certified or registered mail, return receipt
requested and postage prepaid, addressed as follows:
if to the Employee: as specified in Annex A
and if to the Company: MedImmune, Inc.
35 West Watkins Mill Road
Gaithersburg, Maryland 20878
Attention: Chief Executive Officer
with a copy to: Frederick W. Kanner, Esq.
Dewey Ballantine
1301 Avenue of the Americas
New York, NY 10019
All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement will be deemed to
have been given on the date of delivery, if personally delivered;
on the business day after the date when sent, if sent by air
courier; and on the third business day after the date when sent, if
sent by mail, in each case addressed to such party as provided in
this Section 17 or in accordance with the latest unrevoked
direction from such party.
18. Binding Agreement; Benefit. The provisions of this
Agreement will be binding upon, and will inure to the benefit of,
the respective heirs, legal representatives and successors of the
parties hereto.
19. Governing Law. This Agreement will be governed by,
and construed and enforced in accordance with, the laws of the
State of Maryland.
20. Waiver of Breach. The waiver by either party of a
breach of any provision of this Agreement by the other party must
be in writing and will not operate or be construed as a waiver of
any subsequent breach by such other party.
21. Entire Agreement; Amendments. This Agreement
(including Annex A) contains the entire agreement between the
parties with respect to the subject matter hereof and supersedes
all prior agreements or understandings among the parties with
respect thereof. This Agreement may be amended only by an
agreement in writing signed by the parties hereto.
22. Headings. The section headings contained in this
Agreement are for reference purposes only and will not affect in
any way the meaning or interpretation of this Agreement.
23. Severability. Any provision of this Agreement that
is prohibited or unenforceable in any jurisdiction will, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any
jurisdiction will not invalidate or render unenforceable such
provision in any other jurisdiction.
24. Assignment. This Agreement is personal in its
nature and the parties hereto shall not, without the consent of the
other, assign or transfer this Agreement or any rights or
obligations hereunder; provided, that the provisions hereof
(including, without limitation, Sections 12, 13 and 14) will inure
to the benefit of, and be binding upon, each successor of the
Company, whether by merger, consolidation, transfer of all or
substantially all of its assets or otherwise.
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first above written.
EMPLOYEE MEDIMMUNE, INC.
By
David P. Wright
ANNEX A
to
Employment Agreement
Name of Employee: DAVID P. WRIGHT
1. Position: Executive Vice President
Sales and Marketing
2. Initial Base Salary: $231,000
3. Employee's address for notices: 7701 Hidden Meadow Terrace
Potomac, MD 20854
EXHIBIT 10.70
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT, dated as of April 1, 1997,
is by and between JAMES F. YOUNG (the "Employee") and MEDIMMUNE,
INC., a Delaware corporation (the "Company").
The Company and the Employee hereby agree as follows:
1. Employment. The Company hereby employs the
Employee, and the Employee hereby accepts employment by the
Company, upon the terms and conditions hereinafter set forth.
2. Term. Subject to the provisions for earlier
termination as herein provided, the employment of the Employee
hereunder will be for the period commencing on the date hereof
and ending on the second anniversary of such date. Such period
may be extended, with the consent of the Employee, for one or
more one-year periods by resolution adopted by the Compensation
and Stock Committee (the "Committee") of the Board of Directors
of the Company (the "Board"). The period of the Employee's
employment under this Agreement, as it may be terminated or
extended from time to time as provided herein, is referred to
hereafter as the "Employment Period."
3. Duties and Responsibilities. The Employee will be
employed by the Company in the position set forth on Annex A, a
copy of which is attached hereto and the terms of which are
incorporated herein by reference. The Employee will faithfully
perform the duties and responsibilities of such office, as they
may be assigned from time to time by the Board or the Board's
designee.
4. Time to be Devoted to Employment. Except for
vacation in accordance with the Company's policy in effect from
time to time and absences due to temporary illness, the Employee
shall devote full time, attention and energy during the
Employment Period to the business of the Company. During the
Employment Period, the Employee will not be engaged in any other
business activity which, in the reasonable judgment of the Board
or its designee, conflicts with the duties of the Employee
hereunder, whether or not such activity is pursued for gain,
profit or other pecuniary advantage.
5. Compensation; Reimbursement.
(a) Base Salary. The Company (or, at the Company's
option, any subsidiary or affiliate thereof) will pay to the
Employee an annual base salary of not less than the amount
specified as the Initial Base Salary on Annex A, payable
bi-weekly. The Employee's base salary shall be reviewed annually
by the Compensation Committee and shall be subject to increase at
the option and sole discretion of the Compensation Committee.
(b) Bonus. The Employee shall be eligible to receive,
at the sole discretion of the Compensation Committee, an annual
cash bonus based on pre-determined performance standards of the
Company.
(c) Benefits; Stock Options. In addition to the
salary and cash bonus referred to above, the Employee shall be
entitled during the Employment Period to participate in such
employee benefit plans or programs of the Company, and shall be
entitled to such other fringe benefits, as are from time to time
made available by the Company generally to employees of the
Employee's position, tenure, salary, age, health and other
qualifications. Without limiting the generality of the
foregoing, the Employee shall be eligible for such awards, if
any, under the Company's stock option plan as shall be granted to
the Employee by the Compensation Committee or other appropriate
designee of the Board acting in its sole discretion. The
Employee acknowledges and agrees that the Company does not
guarantee the adoption or continuance of any particular employee
benefit plan or program or other fringe benefit during the
Employment Period, and participation by the Employee in any such
plan or program shall be subject to the rules and regulations
applicable thereto.
(d) Expenses. The Company will reimburse the
Employee, in accordance with the practices in effect from time to
time for other officers or staff personnel of the Company, for
all reasonable and necessary traveling expenses and other
disbursements incurred by the Employee for or on behalf of the
Company in the performance of the Employee's duties hereunder,
upon presentation by the Employee to the Company of appropriate
vouchers.
6. Death; Disability. If the Employee dies or is
incapacitated or disabled by accident, sickness or otherwise, so
as to render the Employee mentally or physically incapable of
performing the services required to be performed by the Employee
under this Agreement for a period that would entitle the Employee
to qualify for long-term disability benefits under the Company's
then-current long-term disability insurance program or, in the
absence of such a program, for a period of 90 consecutive days or
longer (such condition being herein referred to as a
"Disability"), then (i) in the case of the Employee's death, the
Employee's employment shall be deemed to terminate on the date of
the Employee's death or (ii) in the case of a Disability, the
Company, at its option, may terminate the employment of the
Employee under this Agreement immediately upon giving the
Employee notice to that effect. Disability shall be determined
by the Board or the Board's designee. In the case of a
Disability, until the Company shall have terminated the
Employee's employment hereunder in accordance with the foregoing,
the Employee shall be entitled to receive compensation provided
for herein notwithstanding any such physical or mental
disability.
7. Termination For Cause. The Company may, with the
approval of a majority of the Board, terminate the employment of
the Employee hereunder at any time during the Employment Period
for "cause" (such termination being hereinafter called a
"Termination for Cause") by giving the Employee notice of such
termination, upon the giving of which such termination will take
effect immediately. For purposes of this Agreement, "cause"
means (i) the Employee's willful and substantial misconduct, (ii)
the Employee's repeated, after written notice from the Company,
neglect of duties or failure to act which can reasonably be
expected to affect materially and adversely the business or
affairs of the Company or any subsidiary or affiliate thereof,
(iii) the Employee's material breach of any of the agreements
contained in Sections 12, 13 or 14 hereof, (iv) the commission by
the Employee of any material fraudulent act with respect to the
business and affairs of the Company or any subsidiary or
affiliate thereof or (v) the Employee's conviction of (or plea of
nolo contendere to) a crime constituting a felony.
8. Termination Without Cause. The Company may
terminate the employment of the Employee hereunder at any time
without "cause" (such termination being hereinafter called a
"Termination Without Cause") by giving the Employee notice of
such termination, upon the giving of which such termination will
take effect not later than 30 days from the date such notice is
given. 9. Voluntary Termination. Any termination of
the employment of the Employee hereunder, otherwise than as a
result of death or Disability, a Termination For Cause, a
Termination Without Cause or a termination for Good Reason (as
defined below) following a Change in Control (as defined below),
will be deemed to be a "Voluntary Termination." A Voluntary
Termination will be deemed to be effective immediately upon such
termination.
10. Effect of Termination of Employment.
(a) Voluntary Termination; Termination For Cause.
Upon the termination of the Employee's employment hereunder
pursuant to a Voluntary Termination or a Termination For Cause,
neither the Employee nor the Employee's beneficiaries or estate
will have any further rights or claims against the Company under
this Agreement except the right to receive (i) the unpaid portion
of the base salary provided for in Section 5(a) hereof, computed
on a pro rata basis to the date of termination, (ii) payment of
his accrued but unpaid rights in accordance with the terms of any
incentive compensation, stock option, retirement, employee
welfare or other employee benefit plans or programs of the
Company in which the Executive is then participating in
accordance with Sections 5(b) and 5(c) hereof and (iii)
reimbursement for any expenses for which the Employee shall not
have theretofore been reimbursed as provided in Section 5(d)
hereof.
(b) Termination Without Cause. Upon the termination
of the Employee's employment as a Termination Without Cause,
neither the Employee nor the Employee's beneficiaries or estate
will have any further rights or claims against the Company under
this Agreement except the right to receive (i) the payments and
other rights provided for in Section 10(a) hereof, (ii) severance
payments in the form of a continuation of the Employee's base
salary as in effect immediately prior to such termination for a
period of 12 months following the effective date of such
termination and (iii) continuation of the medical benefits
coverage to which the Employee is entitled under Section 5(c)
hereof over the same period with respect to which the Employee's
base salary is continued as provided in clause (ii) above, with
such coverage to be provided at the same level and subject to the
same terms and conditions (including, without limitation, any
applicable co-pay obligations of the Employee, but excluding any
applicable tax consequences for the Employee) as in effect from
time to time for officers of the Company generally. The rights
of the Employee and the obligations of the Company under this
Section 10(b) shall remain in full force and effect
notwithstanding the expiration of the Employment Period, whether
by failure of the Compensation Committee to extend such period or
otherwise.
(c) Death and Disability. Upon the termination of the
Employee's employment hereunder as a result of death or
Disability, neither the Employee nor the Employee's beneficiaries
or estate will have any further rights or claims against the
Company under this Agreement except the right to receive (i) the
payments and other rights provided for in Section 10(a) hereof,
(ii) a lump-sum payment, within 15 days after the effective date
of such termination, equal to the aggregate amount of the
Employee's base salary as in effect immediately prior to such
termination that would be payable over a period of 12 months
following the effective date of such termination and (iii) in the
case of Disability only, continuation of the medical benefits
coverage to which the Employee is entitled under Section 5(c)
hereof over the same period with respect to which the lump-sum
payment is calculated under clause (ii) above, with such coverage
to be provided at the same level and subject to the same terms
and conditions (including, without limitation, any applicable co-
pay obligations of the Employee, but excluding any applicable tax
consequences for the Employee) as in effect from time to time for
officers of the Company generally.
(d) Forfeiture of Rights. In the event that,
subsequent to termination of employment hereunder, the Employee
(i) breaches any of the provisions of Section 12, 13 or 14 hereof
or (ii) directly or indirectly makes or facilitates the making of
any adverse public statements or disclosures with respect to the
business or securities of the Company, all payments and benefits
to which the Employee may otherwise have been entitled pursuant
to Section 10(a), 10(b) or 11 hereof shall immediately terminate
and be forfeited, and any portion of such amounts as may have
been paid to the Employee shall forthwith be returned to the
Company. 11. Change in Control Provisions.
(a) Effect of Termination Following Change in Control.
In the event of a Change in Control during the Employment Period
and a subsequent termination of the Employee's employment, either
by the Company as a Termination Without Cause or by the Employee
for Good Reason, whether or not such termination is during the
Employment Period, the Employee shall be entitled to receive (i)
the payments and other rights provided in Section 10(a) hereof,
(ii) severance payments in the form a cash lump sum, paid within
15 days of the date of termination, with the amount of such
payment to be the aggregate amount of the Employee's base salary
as in effect immediately prior to such termination payable over a
period of 12 months, but discounted to present value from the
dates such payments would otherwise be made to the Employee,
based on the 100% short-term Applicable Federal Rate (compounded
annually) under Section 1274(d) of the Internal Revenue Code as
in effect at the time of payment, and (iii) continuation of the
medical benefits coverage to which the Employee is entitled under
Section 5(c) hereof for a period of 12 months following the date
of termination, with such coverage to be provided at the same
level and subject to the same terms and conditions (including,
without limitation, any applicable co-pay obligations of the
Employee, but excluding any applicable tax consequences for the
Employee) as in effect from time to time for officers of the
Company generally.
(b) Definition of Change in Control. For purposes of
this Agreement, a "Change in Control" shall be deemed to have
occurred upon:
(i) an acquisition subsequent to the date hereof by
any person, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")) (a "Person"), of beneficial
ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 30% or more of either (A) the
then outstanding shares of common stock of the Company
("Common Stock") or (B) the combined voting power of the
then outstanding voting securities of the Company entitled
to vote generally in the election of directors (the
"Outstanding Company Voting Securities"); excluding,
however, the following: (1) any acquisition directly from
the Company, other than an acquisition by virtue of the
exercise of a conversion privilege unless the security being
so converted was itself acquired directly from the Company,
(2) any acquisition by the Company and (3) any acquisition
by an employee benefit plan (or related trust) sponsored or
maintained by the Company;
(ii) a change in the composition of the Board such that
during any period of two consecutive years, individuals who
at the beginning of such period constitute the Board, and
any new director (other than a director designated by a
person who has entered into an agreement with the Company to
effect a transaction described in clause (i), (iii), or (iv)
of this paragraph) whose election by the Board or nomination
for election by the Company's stockholders was approved by a
vote of at least two-thirds of the directors then still in
office who either were directors at the beginning of the
period or whose election or nomination for election was
previously so approved, cease for any reason to constitute
at least a majority of the members thereof;
(iii) the approval by the stockholders of the Company
of a merger, consolidation, reorganization or similar
corporate transaction, whether or not the Company is the
surviving corporation in such transaction, in which
outstanding shares of Common Stock are converted into (A)
shares of stock of another company, other than a conversion
into shares of voting common stock of the successor
corporation (or a holding company thereof) representing 80%
of the voting power of all capital stock thereof outstanding
immediately after the merger or consolidation or (B) other
securities (of either the Company or another company) or
cash or other property;
(iv) the approval by stockholders of the Company of the
issuance of shares of Common Stock in connection with a
merger, consolidation, reorganization or similar corporate
transaction in an amount in excess of 40% of the number of
shares of Common Stock outstanding immediately prior to the
consummation of such transaction;
(v) the approval by the stockholders of the Company of
(A) the sale or other disposition of all or substantially
all of the assets of the Company or (B) a complete
liquidation or dissolution of the Company; or
(vi) the adoption by the Board of a resolution to the
effect that any person has acquired effective control of the
business and affairs of the Company.
(c) Good Reason Following Change in Control. For
purposes of this Agreement, termination for "Good Reason" shall
mean termination by the Employee of his employment with the
Company, within six months immediately following a Change in
Control, based on:
(i) any diminution in the Employee's position, title,
responsibilities or authority from those in effect
immediately prior to such Change in Control; or
(ii) the breach by the Company of any of its material
obligations under this Agreement.
12. Disclosure of Information. The Employee will not,
at any time during or after the Employment Period, disclose to
any person, firm, corporation or other business entity, except as
required by law, any non-public information concerning the
business, products, clients or affairs of the Company or any
subsidiary or affiliate thereof for any reason or purpose
whatsoever, nor will the Employee make use of any of such non-
public information for personal purposes or for the benefit of
any person, firm, corporation or other business entity except the
Company or any subsidiary or affiliate thereof.
13. Restrictive Covenant. (a) The Employee hereby
acknowledges and recognizes that, during the Employment Period,
the Employee will be privy to trade secrets and confidential
proprietary information critical to the Company's business and
the Employee further acknowledges and recognizes that the Company
would find it extremely difficult or impossible to replace the
Employee and, accordingly, the Employee agrees that, in
consideration of the benefits to be received by the Employee
hereunder, the Employee will not, from and after the date hereof
until the first anniversary of the termination of the Employment
Period (or six months after the termination of the Employment
Period if such termination is as a result of a Termination
Without Cause or a termination for Good Reason following a Change
in Control), (i) directly or indirectly engage in the
development, production, marketing or sale of products that
compete (or, upon commercialization, would compete) with products
of the Company being developed (so long as such development has
not been abandoned), marketed or sold at the time of the
Employee's termination (such business or activity being
hereinafter called a "Competing Business") whether such
engagement shall be as an officer, director, owner, employee,
partner, affiliate or other participant in any Competing
Business, (ii) assist others in engaging in any Competing
Business in the manner described in the foregoing clause (i), or
(iii) induce other employees of the Company or any subsidiary
thereof to terminate their employment with the Company or any
subsidiary thereof or engage in any Competing Business.
Notwithstanding the foregoing, the term "Competing Business"
shall not include any business or activity that was not conducted
by the Company prior to the effective date of a Change in
Control.
(b) The Employee understands that the foregoing
restrictions may limit the ability of the Employee to earn a
livelihood in a business similar to the business of the Company,
but nevertheless believes that the Employee has received and will
receive sufficient consideration and other benefits, as an
employee of the Company and as otherwise provided hereunder, to
justify such restrictions which, in any event (given the
education, skills and ability of the Employee), the Employee
believes would not prevent the Employee from earning a living.
14. Company Right to Inventions. The Employee will
promptly disclose, grant and assign to the Company, for its sole
use and benefit, any and all inventions, improvements, technical
information and suggestions relating in any way to the business
of the Company which the Employee may develop or acquire during
the Employment Period (whether or not during usual working
hours), together with all patent applications, letters patent,
copyrights and reissues thereof that may at any time be granted
for or upon any such invention, improvement or technical
information. In connection therewith:
(i) the Employee shall, without charge, but at the
expense of the Company, promptly at all times hereafter
execute and deliver such applications, assignments,
descriptions and other instruments as may be necessary or
proper in the opinion of the Company to vest title to any
such inventions, improvements, technical information, patent
applications, patents, copyrights or reissues thereof in the
Company and to enable it to obtain and maintain the entire
right and title thereto throughout the world; and
(ii) the Employee shall render to the Company, at its
expense (including a reasonable payment for the time
involved in case the Employee is not then in its employ),
all such assistance as it may require in the prosecution of
applications for said patents, copyrights or reissues
thereof, in the prosecution or defense of interferences
which may be declared involving any said applications,
patents or copyrights and in any litigation in which the
Company may be involved relating to any such patents,
inventions, improvements or technical information.
15. Enforcement. It is the desire and intent of the
parties hereto that the provisions of this Agreement be
enforceable to the fullest extent permissible under the laws and
public policies applied in each jurisdiction in which enforcement
is sought. Accordingly, to the extent that a restriction
contained in this Agreement is more restrictive than permitted by
the laws of any jurisdiction where this Agreement may be subject
to review and interpretation, the terms of such restriction, for
the purpose only of the operation of such restriction in such
jurisdiction, will be the maximum restriction allowed by the laws
of such jurisdiction and such restriction will be deemed to have
been revised accordingly herein.
16. Remedies; Survival. (a) The Employee
acknowledges and understands that the provisions of the covenants
contained in Sections 12, 13 and 14 hereof, the violation of
which cannot be accurately compensated for in damages by an
action at law, are of crucial importance to the Company, and that
the breach or threatened breach of the provisions of this
Agreement would cause the Company irreparable harm. In the event
of a breach or threatened breach by the Employee of the
provisions of Section 12, 13 or 14 hereof, the Company will be
entitled to an injunction restraining the Employee from such
breach. Nothing herein contained will be construed as
prohibiting the Company from pursuing any other remedies
available for any breach or threatened breach of this Agreement.
(b) Notwithstanding anything contained in this
Agreement to the contrary, the provisions of Sections 10(b), 12,
13, 14, 15 and 16 hereof will survive the expiration or other
termination of this Agreement until, by their terms, such
provisions are no longer operative.
17. Notices. Notices and other communications
hereunder will be in writing and will be delivered personally or
sent by air courier or first class certified or registered mail,
return receipt requested and postage prepaid, addressed as
follows:
if to the Employee: as specified in Annex A
and if to the Company: MedImmune, Inc.
35 West Watkins Mill Road
Gaithersburg, Maryland 20878
Attention: Chief Executive Officer
with a copy to: Frederick W. Kanner, Esq.
Dewey Ballantine
1301 Avenue of the Americas
New York, NY 10019
All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement will be deemed
to have been given on the date of delivery, if personally
delivered; on the business day after the date when sent, if sent
by air courier; and on the third business day after the date when
sent, if sent by mail, in each case addressed to such party as
provided in this Section 17 or in accordance with the latest
unrevoked direction from such party.
18. Binding Agreement; Benefit. The provisions of
this Agreement will be binding upon, and will inure to the
benefit of, the respective heirs, legal representatives and
successors of the parties hereto.
19. Governing Law. This Agreement will be governed
by, and construed and enforced in accordance with, the laws of
the State of Maryland.
20. Waiver of Breach. The waiver by either party of a
breach of any provision of this Agreement by the other party must
be in writing and will not operate or be construed as a waiver of
any subsequent breach by such other party.
21. Entire Agreement; Amendments. This Agreement
(including Annex A) contains the entire agreement between the
parties with respect to the subject matter hereof and supersedes
all prior agreements or understandings among the parties with
respect thereof. This Agreement may be amended only by an
agreement in writing signed by the parties hereto.
22. Headings. The section headings contained in this
Agreement are for reference purposes only and will not affect in
any way the meaning or interpretation of this Agreement.
23. Severability. Any provision of this Agreement
that is prohibited or unenforceable in any jurisdiction will, as
to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction will not invalidate or
render unenforceable such provision in any other jurisdiction.
24. Assignment. This Agreement is personal in its
nature and the parties hereto shall not, without the consent of
the other, assign or transfer this Agreement or any rights or
obligations hereunder; provided, that the provisions hereof
(including, without limitation, Sections 12, 13 and 14) will
inure to the benefit of, and be binding upon, each successor of
the Company, whether by merger, consolidation, transfer of all or
substantially all of its assets or otherwise.
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first above written.
EMPLOYEE MEDIMMUNE, INC.
By
James F. Young
ANNEX A
to
Employment Agreement
Name of Employee: JAMES F. YOUNG
1. Position: Senior Vice President,
Research & Development
2. Initial Base Salary: $212,000
3. Employee's address for notices: 9814 Islandside Drive
Gaithersburg, MD 20879
EXHIBIT 10.71
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT, dated as of April 1, 1997,
is by and between BOGDAN DZIURZYNSKI (the "Employee") and
MEDIMMUNE, INC., a Delaware corporation (the "Company").
The Company and the Employee hereby agree as follows:
1. Employment. The Company hereby employs the
Employee, and the Employee hereby accepts employment by the
Company, upon the terms and conditions hereinafter set forth.
2. Term. Subject to the provisions for earlier
termination as herein provided, the employment of the Employee
hereunder will be for the period commencing on the date hereof
and ending on the second anniversary of such date. Such period
may be extended, with the consent of the Employee, for one or
more one-year periods by resolution adopted by the Compensation
and Stock Committee (the "Committee") of the Board of Directors
of the Company (the "Board"). The period of the Employee's
employment under this Agreement, as it may be terminated or
extended from time to time as provided herein, is referred to
hereafter as the "Employment Period."
3. Duties and Responsibilities. The Employee will be
employed by the Company in the position set forth on Annex A, a
copy of which is attached hereto and the terms of which are
incorporated herein by reference. The Employee will faithfully
perform the duties and responsibilities of such office, as they
may be assigned from time to time by the Board or the Board's
designee.
4. Time to be Devoted to Employment. Except for
vacation in accordance with the Company's policy in effect from
time to time and absences due to temporary illness, the Employee
shall devote full time, attention and energy during the
Employment Period to the business of the Company. During the
Employment Period, the Employee will not be engaged in any other
business activity which, in the reasonable judgment of the Board
or its designee, conflicts with the duties of the Employee
hereunder, whether or not such activity is pursued for gain,
profit or other pecuniary advantage.
5. Compensation; Reimbursement.
(a) Base Salary. The Company (or, at the Company's
option, any subsidiary or affiliate thereof) will pay to the
Employee an annual base salary of not less than the amount
specified as the Initial Base Salary on Annex A, payable
bi-weekly. The Employee's base salary shall be reviewed annually
by the Compensation Committee and shall be subject to increase at
the option and sole discretion of the Compensation Committee.
(b) Bonus. The Employee shall be eligible to receive,
at the sole discretion of the Compensation Committee, an annual
cash bonus based on pre-determined performance standards of the
Company.
(c) Benefits; Stock Options. In addition to the
salary and cash bonus referred to above, the Employee shall be
entitled during the Employment Period to participate in such
employee benefit plans or programs of the Company, and shall be
entitled to such other fringe benefits, as are from time to time
made available by the Company generally to employees of the
Employee's position, tenure, salary, age, health and other
qualifications. Without limiting the generality of the
foregoing, the Employee shall be eligible for such awards, if
any, under the Company's stock option plan as shall be granted to
the Employee by the Compensation Committee or other appropriate
designee of the Board acting in its sole discretion. The
Employee acknowledges and agrees that the Company does not
guarantee the adoption or continuance of any particular employee
benefit plan or program or other fringe benefit during the
Employment Period, and participation by the Employee in any such
plan or program shall be subject to the rules and regulations
applicable thereto.
(d) Expenses. The Company will reimburse the
Employee, in accordance with the practices in effect from time to
time for other officers or staff personnel of the Company, for
all reasonable and necessary traveling expenses and other
disbursements incurred by the Employee for or on behalf of the
Company in the performance of the Employee's duties hereunder,
upon presentation by the Employee to the Company of appropriate
vouchers.
6. Death; Disability. If the Employee dies or is
incapacitated or disabled by accident, sickness or otherwise, so
as to render the Employee mentally or physically incapable of
performing the services required to be performed by the Employee
under this Agreement for a period that would entitle the Employee
to qualify for long-term disability benefits under the Company's
then-current long-term disability insurance program or, in the
absence of such a program, for a period of 90 consecutive days or
longer (such condition being herein referred to as a
"Disability"), then (i) in the case of the Employee's death, the
Employee's employment shall be deemed to terminate on the date of
the Employee's death or (ii) in the case of a Disability, the
Company, at its option, may terminate the employment of the
Employee under this Agreement immediately upon giving the
Employee notice to that effect. Disability shall be determined
by the Board or the Board's designee. In the case of a
Disability, until the Company shall have terminated the
Employee's employment hereunder in accordance with the foregoing,
the Employee shall be entitled to receive compensation provided
for herein notwithstanding any such physical or mental
disability.
7. Termination For Cause. The Company may, with the
approval of a majority of the Board, terminate the employment of
the Employee hereunder at any time during the Employment Period
for "cause" (such termination being hereinafter called a
"Termination for Cause") by giving the Employee notice of such
termination, upon the giving of which such termination will take
effect immediately. For purposes of this Agreement, "cause"
means (i) the Employee's willful and substantial misconduct, (ii)
the Employee's repeated, after written notice from the Company,
neglect of duties or failure to act which can reasonably be
expected to affect materially and adversely the business or
affairs of the Company or any subsidiary or affiliate thereof,
(iii) the Employee's material breach of any of the agreements
contained in Sections 12, 13 or 14 hereof, (iv) the commission by
the Employee of any material fraudulent act with respect to the
business and affairs of the Company or any subsidiary or
affiliate thereof or (v) the Employee's conviction of (or plea of
nolo contendere to) a crime constituting a felony.
8. Termination Without Cause. The Company may
terminate the employment of the Employee hereunder at any time
without "cause" (such termination being hereinafter called a
"Termination Without Cause") by giving the Employee notice of
such termination, upon the giving of which such termination will
take effect not later than 30 days from the date such notice is
given. 9. Voluntary Termination. Any termination of
the employment of the Employee hereunder, otherwise than as a
result of death or Disability, a Termination For Cause, a
Termination Without Cause or a termination for Good Reason (as
defined below) following a Change in Control (as defined below),
will be deemed to be a "Voluntary Termination." A Voluntary
Termination will be deemed to be effective immediately upon such
termination.
10. Effect of Termination of Employment.
(a) Voluntary Termination; Termination For Cause.
Upon the termination of the Employee's employment hereunder
pursuant to a Voluntary Termination or a Termination For Cause,
neither the Employee nor the Employee's beneficiaries or estate
will have any further rights or claims against the Company under
this Agreement except the right to receive (i) the unpaid portion
of the base salary provided for in Section 5(a) hereof, computed
on a pro rata basis to the date of termination, (ii) payment of
his accrued but unpaid rights in accordance with the terms of any
incentive compensation, stock option, retirement, employee
welfare or other employee benefit plans or programs of the
Company in which the Executive is then participating in
accordance with Sections 5(b) and 5(c) hereof and (iii)
reimbursement for any expenses for which the Employee shall not
have theretofore been reimbursed as provided in Section 5(d)
hereof.
(b) Termination Without Cause. Upon the termination
of the Employee's employment as a Termination Without Cause,
neither the Employee nor the Employee's beneficiaries or estate
will have any further rights or claims against the Company under
this Agreement except the right to receive (i) the payments and
other rights provided for in Section 10(a) hereof, (ii) severance
payments in the form of a continuation of the Employee's base
salary as in effect immediately prior to such termination for a
period of 12 months following the effective date of such
termination and (iii) continuation of the medical benefits
coverage to which the Employee is entitled under Section 5(c)
hereof over the same period with respect to which the Employee's
base salary is continued as provided in clause (ii) above, with
such coverage to be provided at the same level and subject to the
same terms and conditions (including, without limitation, any
applicable co-pay obligations of the Employee, but excluding any
applicable tax consequences for the Employee) as in effect from
time to time for officers of the Company generally. The rights
of the Employee and the obligations of the Company under this
Section 10(b) shall remain in full force and effect
notwithstanding the expiration of the Employment Period, whether
by failure of the Compensation Committee to extend such period or
otherwise.
(c) Death and Disability. Upon the termination of the
Employee's employment hereunder as a result of death or
Disability, neither the Employee nor the Employee's beneficiaries
or estate will have any further rights or claims against the
Company under this Agreement except the right to receive (i) the
payments and other rights provided for in Section 10(a) hereof,
(ii) a lump-sum payment, within 15 days after the effective date
of such termination, equal to the aggregate amount of the
Employee's base salary as in effect immediately prior to such
termination that would be payable over a period of 12 months
following the effective date of such termination and (iii) in the
case of Disability only, continuation of the medical benefits
coverage to which the Employee is entitled under Section 5(c)
hereof over the same period with respect to which the lump-sum
payment is calculated under clause (ii) above, with such coverage
to be provided at the same level and subject to the same terms
and conditions (including, without limitation, any applicable co-
pay obligations of the Employee, but excluding any applicable tax
consequences for the Employee) as in effect from time to time for
officers of the Company generally.
(d) Forfeiture of Rights. In the event that,
subsequent to termination of employment hereunder, the Employee
(i) breaches any of the provisions of Section 12, 13 or 14 hereof
or (ii) directly or indirectly makes or facilitates the making of
any adverse public statements or disclosures with respect to the
business or securities of the Company, all payments and benefits
to which the Employee may otherwise have been entitled pursuant
to Section 10(a), 10(b) or 11 hereof shall immediately terminate
and be forfeited, and any portion of such amounts as may have
been paid to the Employee shall forthwith be returned to the
Company.
11. Change in Control Provisions.
(a) Effect of Termination Following Change in Control.
In the event of a Change in Control during the Employment Period
and a subsequent termination of the Employee's employment, either
by the Company as a Termination Without Cause or by the Employee
for Good Reason, whether or not such termination is during the
Employment Period, the Employee shall be entitled to receive (i)
the payments and other rights provided in Section 10(a) hereof,
(ii) severance payments in the form a cash lump sum, paid within
15 days of the date of termination, with the amount of such
payment to be the aggregate amount of the Employee's base salary
as in effect immediately prior to such termination payable over a
period of 12 months, but discounted to present value from the
dates such payments would otherwise be made to the Employee,
based on the 100% short-term Applicable Federal Rate (compounded
annually) under Section 1274(d) of the Internal Revenue Code as
in effect at the time of payment, and (iii) continuation of the
medical benefits coverage to which the Employee is entitled under
Section 5(c) hereof for a period of 12 months following the date
of termination, with such coverage to be provided at the same
level and subject to the same terms and conditions (including,
without limitation, any applicable co-pay obligations of the
Employee, but excluding any applicable tax consequences for the
Employee) as in effect from time to time for officers of the
Company generally.
(b) Definition of Change in Control. For purposes of
this Agreement, a "Change in Control" shall be deemed to have
occurred upon:
(i) an acquisition subsequent to the date hereof by
any person, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")) (a "Person"), of beneficial
ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 30% or more of either (A) the
then outstanding shares of common stock of the Company
("Common Stock") or (B) the combined voting power of the
then outstanding voting securities of the Company entitled
to vote generally in the election of directors (the
"Outstanding Company Voting Securities"); excluding,
however, the following: (1) any acquisition directly from
the Company, other than an acquisition by virtue of the
exercise of a conversion privilege unless the security being
so converted was itself acquired directly from the Company,
(2) any acquisition by the Company and (3) any acquisition
by an employee benefit plan (or related trust) sponsored or
maintained by the Company;
(ii) a change in the composition of the Board such that
during any period of two consecutive years, individuals who
at the beginning of such period constitute the Board, and
any new director (other than a director designated by a
person who has entered into an agreement with the Company to
effect a transaction described in clause (i), (iii), or (iv)
of this paragraph) whose election by the Board or nomination
for election by the Company's stockholders was approved by a
vote of at least two-thirds of the directors then still in
office who either were directors at the beginning of the
period or whose election or nomination for election was
previously so approved, cease for any reason to constitute
at least a majority of the members thereof;
(iii) the approval by the stockholders of the Company
of a merger, consolidation, reorganization or similar
corporate transaction, whether or not the Company is the
surviving corporation in such transaction, in which
outstanding shares of Common Stock are converted into (A)
shares of stock of another company, other than a conversion
into shares of voting common stock of the successor
corporation (or a holding company thereof) representing 80%
of the voting power of all capital stock thereof outstanding
immediately after the merger or consolidation or (B) other
securities (of either the Company or another company) or
cash or other property;
(iv) the approval by stockholders of the Company of the
issuance of shares of Common Stock in connection with a
merger, consolidation, reorganization or similar corporate
transaction in an amount in excess of 40% of the number of
shares of Common Stock outstanding immediately prior to the
consummation of such transaction;
(v) the approval by the stockholders of the Company of
(A) the sale or other disposition of all or substantially
all of the assets of the Company or (B) a complete
liquidation or dissolution of the Company; or
(vi) the adoption by the Board of a resolution to the
effect that any person has acquired effective control of the
business and affairs of the Company.
(c) Good Reason Following Change in Control. For
purposes of this Agreement, termination for "Good Reason" shall
mean termination by the Employee of his employment with the
Company, within six months immediately following a Change in
Control, based on:
(i) any diminution in the Employee's position, title,
responsibilities or authority from those in effect
immediately prior to such Change in Control; or
(ii) the breach by the Company of any of its material
obligations under this Agreement.
12. Disclosure of Information. The Employee will not,
at any time during or after the Employment Period, disclose to
any person, firm, corporation or other business entity, except as
required by law, any non-public information concerning the
business, products, clients or affairs of the Company or any
subsidiary or affiliate thereof for any reason or purpose
whatsoever, nor will the Employee make use of any of such non-
public information for personal purposes or for the benefit of
any person, firm, corporation or other business entity except the
Company or any subsidiary or affiliate thereof.
13. Restrictive Covenant. (a) The Employee hereby
acknowledges and recognizes that, during the Employment Period,
the Employee will be privy to trade secrets and confidential
proprietary information critical to the Company's business and
the Employee further acknowledges and recognizes that the Company
would find it extremely difficult or impossible to replace the
Employee and, accordingly, the Employee agrees that, in
consideration of the benefits to be received by the Employee
hereunder, the Employee will not, from and after the date hereof
until the first anniversary of the termination of the Employment
Period (or six months after the termination of the Employment
Period if such termination is as a result of a Termination
Without Cause or a termination for Good Reason following a Change
in Control), (i) directly or indirectly engage in the
development, production, marketing or sale of products that
compete (or, upon commercialization, would compete) with products
of the Company being developed (so long as such development has
not been abandoned), marketed or sold at the time of the
Employee's termination (such business or activity being
hereinafter called a "Competing Business") whether such
engagement shall be as an officer, director, owner, employee,
partner, affiliate or other participant in any Competing
Business, (ii) assist others in engaging in any Competing
Business in the manner described in the foregoing clause (i), or
(iii) induce other employees of the Company or any subsidiary
thereof to terminate their employment with the Company or any
subsidiary thereof or engage in any Competing Business.
Notwithstanding the foregoing, the term "Competing Business"
shall not include any business or activity that was not conducted
by the Company prior to the effective date of a Change in
Control.
(b) The Employee understands that the foregoing
restrictions may limit the ability of the Employee to earn a
livelihood in a business similar to the business of the Company,
but nevertheless believes that the Employee has received and will
receive sufficient consideration and other benefits, as an
employee of the Company and as otherwise provided hereunder, to
justify such restrictions which, in any event (given the
education, skills and ability of the Employee), the Employee
believes would not prevent the Employee from earning a living.
14. Company Right to Inventions. The Employee will
promptly disclose, grant and assign to the Company, for its sole
use and benefit, any and all inventions, improvements, technical
information and suggestions relating in any way to the business
of the Company which the Employee may develop or acquire during
the Employment Period (whether or not during usual working
hours), together with all patent applications, letters patent,
copyrights and reissues thereof that may at any time be granted
for or upon any such invention, improvement or technical
information. In connection therewith:
(i) the Employee shall, without charge, but at the
expense of the Company, promptly at all times hereafter
execute and deliver such applications, assignments,
descriptions and other instruments as may be necessary or
proper in the opinion of the Company to vest title to any
such inventions, improvements, technical information, patent
applications, patents, copyrights or reissues thereof in the
Company and to enable it to obtain and maintain the entire
right and title thereto throughout the world; and
(ii) the Employee shall render to the Company, at its
expense (including a reasonable payment for the time
involved in case the Employee is not then in its employ),
all such assistance as it may require in the prosecution of
applications for said patents, copyrights or reissues
thereof, in the prosecution or defense of interferences
which may be declared involving any said applications,
patents or copyrights and in any litigation in which the
Company may be involved relating to any such patents,
inventions, improvements or technical information.
15. Enforcement. It is the desire and intent of the
parties hereto that the provisions of this Agreement be
enforceable to the fullest extent permissible under the laws and
public policies applied in each jurisdiction in which enforcement
is sought. Accordingly, to the extent that a restriction
contained in this Agreement is more restrictive than permitted by
the laws of any jurisdiction where this Agreement may be subject
to review and interpretation, the terms of such restriction, for
the purpose only of the operation of such restriction in such
jurisdiction, will be the maximum restriction allowed by the laws
of such jurisdiction and such restriction will be deemed to have
been revised accordingly herein.
16. Remedies; Survival. (a) The Employee
acknowledges and understands that the provisions of the covenants
contained in Sections 12, 13 and 14 hereof, the violation of
which cannot be accurately compensated for in damages by an
action at law, are of crucial importance to the Company, and that
the breach or threatened breach of the provisions of this
Agreement would cause the Company irreparable harm. In the event
of a breach or threatened breach by the Employee of the
provisions of Section 12, 13 or 14 hereof, the Company will be
entitled to an injunction restraining the Employee from such
breach. Nothing herein contained will be construed as
prohibiting the Company from pursuing any other remedies
available for any breach or threatened breach of this Agreement.
(b) Notwithstanding anything contained in this
Agreement to the contrary, the provisions of Sections 10(b), 12,
13, 14, 15 and 16 hereof will survive the expiration or other
termination of this Agreement until, by their terms, such
provisions are no longer operative.
17. Notices. Notices and other communications
hereunder will be in writing and will be delivered personally or
sent by air courier or first class certified or registered mail,
return receipt requested and postage prepaid, addressed as
follows:
if to the Employee: as specified in Annex A
and if to the Company: MedImmune, Inc.
35 West Watkins Mill Road
Gaithersburg, Maryland 20878
Attention: Chief Executive Officer
with a copy to: Frederick W. Kanner, Esq.
Dewey Ballantine
1301 Avenue of the Americas
New York, NY 10019
All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement will be deemed
to have been given on the date of delivery, if personally
delivered; on the business day after the date when sent, if sent
by air courier; and on the third business day after the date when
sent, if sent by mail, in each case addressed to such party as
provided in this Section 17 or in accordance with the latest
unrevoked direction from such party.
18. Binding Agreement; Benefit. The provisions of
this Agreement will be binding upon, and will inure to the
benefit of, the respective heirs, legal representatives and
successors of the parties hereto.
19. Governing Law. This Agreement will be governed
by, and construed and enforced in accordance with, the laws of
the State of Maryland.
20. Waiver of Breach. The waiver by either party of a
breach of any provision of this Agreement by the other party must
be in writing and will not operate or be construed as a waiver of
any subsequent breach by such other party.
21. Entire Agreement; Amendments. This Agreement
(including Annex A) contains the entire agreement between the
parties with respect to the subject matter hereof and supersedes
all prior agreements or understandings among the parties with
respect thereof. This Agreement may be amended only by an
agreement in writing signed by the parties hereto.
22. Headings. The section headings contained in this
Agreement are for reference purposes only and will not affect in
any way the meaning or interpretation of this Agreement.
23. Severability. Any provision of this Agreement
that is prohibited or unenforceable in any jurisdiction will, as
to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction will not invalidate or
render unenforceable such provision in any other jurisdiction.
24. Assignment. This Agreement is personal in its
nature and the parties hereto shall not, without the consent of
the other, assign or transfer this Agreement or any rights or
obligations hereunder; provided, that the provisions hereof
(including, without limitation, Sections 12, 13 and 14) will
inure to the benefit of, and be binding upon, each successor of
the Company, whether by merger, consolidation, transfer of all or
substantially all of its assets or otherwise.
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first above written.
EMPLOYEE MEDIMMUNE, INC.
By
Bogdan Dziurzynski
ANNEX A
to
Employment Agreement
Name of Employee: BOGDAN DZIURZYNSKI
1. Position: Senior Vice President,
Quality Assurance and
Regulatory Affairs
2. Initial Base Salary: $189,000
3. Employee's address for notices: 15600 Copperfield Lane
Germantown, MD 20874
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM MEDIMMUNE,
INC'S QUARTERLY REPORT ON FORM 10-Q FOR THE THREE MONTHS ENDED MARCH 31, 1997
AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FILING.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> MAR-31-1997
<CASH> 5,989
<SECURITIES> 86,979
<RECEIVABLES> 7,838
<ALLOWANCES> 0
<INVENTORY> 8,998
<CURRENT-ASSETS> 111,658
<PP&E> 41,536
<DEPRECIATION> 0
<TOTAL-ASSETS> 155,573
<CURRENT-LIABILITIES> 22,629
<BONDS> 73,245
0
0
<COMMON> 219
<OTHER-SE> 58,766
<TOTAL-LIABILITY-AND-EQUITY> 155,573
<SALES> 10,131
<TOTAL-REVENUES> 10,138
<CGS> 5,215
<TOTAL-COSTS> 25,019
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 979
<INCOME-PRETAX> (14,322)
<INCOME-TAX> 0
<INCOME-CONTINUING> (14,322)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (14,322)
<EPS-PRIMARY> (.65)
<EPS-DILUTED> (.65)
</TABLE>
