EXHIBIT No. 10.85
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT, dated as of November 1,
1998, is by and between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (the "Employee") and
MEDIMMUNE, INC., a Delaware corporation (the "Company") and
supercedes the Employment Agreement between them dated as of
October 5, 1998.
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
"Compensation 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 semi-monthly. The Employee's base salary shall be
reviewed by the Compensation Committee early in 1999 at the
time of reviews of other senior executives of the Company
and annually thereafter 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 to four weeks vacation in each calendar year
during the Employment Period and shall also be eligible
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. Notwithstanding anything in this
Agreement to the contrary, any option held by the Employee
to purchase shares of the Company's common stock shall be
subject to the loan and note agreement entered into between
the Company and the Employee dated October 30, 1998 (the "
Loan and Note Agreement").
(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 13, 14 or 15 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 Employee 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. Notwithstanding the foregoing, the Employee's
rights to any payments under this Section 10(a) shall be
subject to the terms of the Loan and Note Agreement.
(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 semi-monthly payment of the Employee's base salary
(as in effect immediately prior to such termination) and of
the Pro-Rata Bonus Amount (as defined below) for a period of
24 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 24 month period 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. For the purposes of this Agreement,
"Pro-Rata Bonus Amount" shall mean one-twenty-fourth
(1/24th) of the greater of (a) the most recent annual cash
bonus paid to the Employee prior to the date of his
termination, or (b) the average of the three most recent
annual cash bonuses paid to the Employee prior to the date
of his termination. 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 13,
14 or 15 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) a severance payment in the form a cash lump
sum, which shall be paid within 15 days of the date of
termination, equal to the sum of the Employee's semi-monthly
base salary (as in effect immediately prior to such
termination) and the Pro-Rata Bonus Amount (as determined
under Section 10(b) above) multiplied by 72 (i.e., that
would have been payable on a semi-monthly basis during the
36 months following such termination), but discounted to
present value from the dates such payments would be made if
paid on a semi-monthly basis for such 36 month period, based
on the 100% short-term Applicable Federal Rate (compounded
annually) under Section 1274(d) of the Internal Revenue Code
of 1986, as amended (the "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 36 months from the date of the
Employee's termination of employment, 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 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. Notwithstanding the foregoing, the Employee's
rights to any payments under this Section 11(b) shall be
subject to the terms of the Loan and Note Agreement.
(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. Parachute Tax Indemnity
(a) If it shall be determined that any amount paid,
distributed or treated as paid or distributed by the Company
to or for the Employee's benefit (whether paid or payable or
distributed or distributable pursuant to the terms of this
Agreement or otherwise, but determined without regard to any
additional payments required under this Section 12) (a
"Payment") would be subject to the excise tax imposed by
Section 4999 of the Code, or any interest or penalties are
incurred by the Employee with respect to such excise tax
(such excise tax, together with any such interest and
penalties, being hereinafter collectively referred to as the
"Excise Tax"), then the Employee shall be entitled to
receive an additional payment (a "Gross-Up Payment") in an
amount such that after payment by the Employee of all
federal, state and local taxes (including any interest or
penalties imposed with respect to such taxes), including,
without limitation, any income taxes (and any interest and
penalties imposed with respect thereto) and Excise Tax
imposed upon the Gross-Up Payment, the Employee retains an
amount of the Gross-Up Payment equal to the Excise Tax
imposed upon all the Payments.
(b) All determinations required to be made under this
Section 12, including whether and when a Gross-Up Payment is
required and the amount of such Gross-Up Payment and the
assumptions to be utilized in arriving at such
determination, shall be made by a nationally recognized
accounting firm as may be designated by the Employee (the
"Accounting Firm") which shall provide detailed supporting
calculations both to the Company and the Employee within 15
business days of the receipt of notice from the Employee
that there has been a Payment, or such earlier time as is
requested by the Company. In the event that the Accounting
Firm is serving as accountant or auditor for the individual,
entity or group effecting the change in control, the
Employee shall appoint another nationally recognized
accounting firm to make the determinations required
hereunder (which accounting firm shall then be referred to
as the Accounting Firm hereunder). All fees and expenses of
the Accounting Firm shall be borne by the Company. Any
Gross-Up Payment, as determined pursuant to this Section 12,
shall be paid by the Company to the Employee within five
days of the receipt of the Accounting Firm's determination.
Any determination by the Accounting Firm shall be binding
upon the Company and the Employee. As a result of the
uncertainty in the application of Section 4999 of the Code
at the time of the initial determination by the Accounting
Firm hereunder, it is possible that Gross-Up Payments which
will not have been made by the Company should have been made
("Underpayment"), consistent with the calculations required
to be made hereunder. In the event that the Company
exhausts its remedies pursuant to this Section 12 and the
Employee thereafter is required to make a payment of any
Excise Tax, the Accounting Firm shall determine the amount
of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Company to or for
the Employee's benefit.
(c) The Employee shall notify the Company in writing
of any claim by the Internal Revenue Service that, if
successful, would require the payment by the Company of the
Gross-Up Payment. Such notification shall be given as soon
as practicable but no later then ten business days after the
Employee is informed in writing of such claim and shall
apprise the Company of the nature of such claim and the date
on which such claim is requested to be paid. The Employee
shall not pay such claim prior to the expiration of the 30-
day period following the date on which it gives such notice
to the Company (or such shorter period ending on the date
that any payment of taxes with respect to such claim is
due). If the Company notifies the Employee in writing prior
to the expiration of such period that it desires to contest
such claim, the Employee shall:
(i) give the Company any information reasonably requested
by the Company relating to such claim,
(ii) take such action in connection with contesting
such claim as the Company shall reasonably request in
writing from time to time, including, without limitation,
accepting legal representation with respect to such claim by
an attorney reasonably selected by the Company,
(iii) cooperate with the Company in good faith in order
to effectively contest such claim, and
(iv) permit the Company to participate in any
proceeding relating to such claim; provided, however, that
the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties)
incurred in connection with such contest and shall indemnify
and hold the Employee harmless, on an after-tax basis, from
any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such
representation and payment of costs and expense. Without
limitation on the foregoing provisions of this Section 12,
the Company shall control all proceedings taken in
connection with such contest and, at its sole option, may
pursue or forego any and all administrative appeals,
proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole
option, either direct the Employee to pay the tax claimed
and ▇▇▇ for a refund or contest the claim in any permissible
manner, and the Employee agrees to prosecute such contest to
a determination before any administrative tribunal, in a
court of initial jurisdiction and in one or more appellate
courts, as the Company shall determine; provided, however,
that if the Company directs the Employee to pay such claim
and ▇▇▇ for a refund, the Company shall advance the amount
of such payment to the Employee, on an interest-free basis,
and shall indemnify and hold the Employee harmless, on an
after-tax basis, from any Excise Tax or income tax
(including interest or penalties with respect thereto)
imposed with respect to such advance or with respect to any
imputed income with respect to such advance; and further
provided that any extension of the statute of limitations
relating to payment of taxes for the Employee's taxable year
with respect to which such contested amount is claimed to be
due is limited solely to such contested amount.
Furthermore, the Company's control of the contest shall be
limited to issues with respect to which a Gross-Up Payment
would be payable hereunder and the Employee shall be
entitled to settle or contest, as the case may be, any other
issue raised by the Internal Revenue Service or any other
taxing authority.
(d) If, after the Employee's receipt of an amount
advanced by the Company pursuant to this Section 12, the
Employee becomes entitled to receive any refund with respect
to such claim, the Employee shall (subject to the Company's
complying with the requirements of this Section 12) promptly
pay to the Company the amount of such refund (together with
any interest paid or credited thereon after taxes applicable
thereto). If, after the Employee's receipt of an amount
advanced by the Company pursuant to this Section 12, a
determination is made that the Employee shall not be
entitled to any refund with respect to such claim and the
Company does not notify the Employee in writing of its
intent to contest such denial of refund prior to the
expiration of 30 days after such determination, then such
advance shall be forgiven and shall not be required to be
repaid and the amount of such advance shall offset, to the
extent thereof, the amount of Gross-Up Payment required to
be paid.
(e) The foregoing provisions of this Section 12
are intended to supersede the provisions of Section 7(b) of
the Company's 1991 Stock Option Plan as applied to the
Employee.
13. 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.
14. 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 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.
15. 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.
16. 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.
17. Remedies; Survival. (a) The Employee
acknowledges and understands that the provisions of the
covenants contained in Sections 13, 14 and 15 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 13, 14
or 15 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),
13, 14, 15, 16 and 17 hereof will survive the expiration or
other termination of this Agreement until, by their terms,
such provisions are no longer operative.
18. 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.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
with a copy to: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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 18 or in
accordance with the latest unrevoked direction from such
party.
19. 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.
20. Governing Law. This Agreement will be
governed by, and construed and enforced in accordance with,
the laws of the State of Maryland.
21. 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.
22. 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, including the employment
agreement between the Company and the Employee dated as of
October 5, 1998; provided, however, that the Loan and Note
Agreement shall remain in full force and effect. This
Agreement may be amended only by an agreement in writing
signed by the parties hereto.
23. 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.
24. 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.
25. 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
13, 14 and 15) 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.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
