Employment Agreement - MedImmune Inc. and Bogdan Dziurzynski
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