Employment Agreement - MedImmune Inc. and Wayne T. Hockmeyer
AMENDED EMPLOYMENT AGREEMENT
This AMENDED EMPLOYMENT AGREEMENT, dated as of May 31, 2000,
is by and between WAYNE T. HOCKMEYER (the "Executive") and MEDIMMUNE, INC., a
Delaware corporation (the "Company").
WHEREAS, the Executive has entered into an employment
agreement with the Employer, dated as of November 1, 1998 (the "1998 Employment
Agreement"), which provides that the Executive will serve the Company as its
Chairman and Chief Executive Officer;
WHEREAS, at a date to be determined by the Executive within
the next 12 months (the "Transition Date"), the Executive will elect to cease
functioning as the Chief Executive Officer of the Company and will so notify the
Company's Board of Directors (the "Board"), but will thereafter continue to be
employed by the Company as its Chairman of the Board and as its Chairman of the
executive committee of the Board (the "Executive Committee") for a period of
three years following the Transition Date, subject to earlier termination as set
forth below; and
WHEREAS, the Company and the Executive wish to set forth in
this Amended Employment Agreement the terms and conditions upon which the
Executive shall be employed by the Company as its Chairman of the Board and
Chairman of the Executive Committee for such three-year period.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements hereinafter contained, the parties do hereby agree that,
effective as of the Transition Date, the Executive will cease functioning as the
Chief Executive Officer of the Company, the 1998 Employment Agreement will be
terminated with no further force or effect, this Amended Employment Agreement
shall become effective and the Executive shall commence employment solely as the
Chairman of the Board and Chairman of the Executive Committee of the Company on
the following terms and conditions:
1. Employment. The Company employs the Executive, and the Executive 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 Executive hereunder will be for the period commencing on
the Transition Date and ending on the third anniversary of such date. The period
of the Executive'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 Executive will be employed by the Company as
its Chairman of the Board and Chairman of the Executive Committee. The Executive
shall be an officer of the Company and shall be responsible for (i) convening
meetings of the Board and/or its executive committee, at such times as the
Executive deems appropriate, and to establish the agendas for and to conduct
such meetings, (ii) working in conjunction with the Chief Executive Officer of
the Company to set the Company's strategic objectives, subject to approval of
the Board, and to assess strategic corporate opportunities and (iii)
representing the Company on matters of public policy and public affairs,
including representation at industry-level associations and conferences, and to
represent the interests of the Company and its stockholders on political issues,
all in consultation with the Chief Executive Officer of the Company.
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 Executive shall devote significant time, attention and energy
during the Employment Period to the business of the Company, with the amount of
such time being determined by the Executive in consultation with the Chief
Executive Officer of the Company. During the Employment Period, the Executive
will not be engaged in any other business activity which, in the reasonable
judgment of the Chief Executive Officer or the Board, conflicts with the duties
of the Executive hereunder, whether or not such activity is pursued for gain,
profit or other pecuniary advantage, it being understood that serving on the
board of directors of companies that are not direct competitors with the Company
does not create such a conflict.
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5. Compensation; Reimbursement. (a) Base Salary. From the Transition Date until
the first anniversary of the Transition Date, the Company (or, at the Company's
option, any subsidiary or affiliate thereof) will pay to the Executive an annual
base salary of $650,000, payable semi-monthly. Following the first anniversary
of the Transition Date, the Company (or, at the Company's option, any subsidiary
or affiliate thereof) will pay to the Executive an annual base salary of
$1,000,000, payable semi-monthly. (b) Bonus. For the calendar year 2000, the
Executive shall be eligible to receive a cash bonus as determined by the
Compensation Committee of the Board (the "Compensation Committee"). Thereafter,
it is not anticipated that the Executive would receive a bonus. (c) Benefits. In
addition to the salary and cash bonus referred to above, the Executive 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
its senior officers. Except to the extent provided in the next paragraph, the
Executive 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
Executive in any such plan or program shall be subject to the rules and
regulations applicable thereto.
As the founder of the Company, the Executive shall be entitled
to lifetime continuation of Company-provided medical and dental benefits
coverage for himself and his eligible dependants 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. Such coverage shall
remain in effect for the lifetime of the Executive and for each of his eligible
dependants and shall not be affected by any termination of his employment
relationship with the Company at any time for any reason. The foregoing coverage
shall be secondary to any Medicare coverage that the Executive or his dependants
become eligible to receive. The Company may provide the foregoing coverage
outside the terms of the applicable benefits plan for employees, provided that
coverage for the Executive is identical and the tax consequences to the
Executive are neutral.
(d) Expenses. The Company will reimburse the Executive, 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 Executive for or on behalf of the Company in the
performance of the Executive's duties hereunder, upon presentation by the
Executive to the Company of appropriate vouchers.
6. Death; Disability. If the Executive dies or is incapacitated or disabled by
accident, sickness or otherwise, so as to render the Executive mentally or
physically incapable of performing the services required to be performed by the
Executive under this Agreement for a period that would entitle the Executive 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 Executive's death, the
Executive's employment shall be deemed to terminate on the date of the
Executive's death or (ii) in the case of a Disability, the Company, at its
option, may terminate the employment of the Executive under this Agreement
immediately upon giving the Executive 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 Executive's employment hereunder in
accordance with the foregoing, the Executive 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 Executive hereunder at any time
during the Employment Period for "cause" (such termination being hereinafter
called a "Termination for Cause") by giving the Executive notice of such
termination, upon the giving of which such termination will take effect
immediately. For purposes of this Agreement, "cause" means (i) the Executive's
willful and substantial misconduct, (ii) the Executive'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
Executive's material breach of any of the agreements contained in Sections 13,
14 or 15 hereof, (iv) the commission by the Executive of any material fraudulent
act with respect to the business and affairs of the Company or any subsidiary or
affiliate thereof or (v) the Executive'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
Executive hereunder at any time without "cause" (such termination being
hereinafter called a "Termination Without Cause") by giving the Executive 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 Executive
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.
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10. Effect of Termination of Employment. (a) Voluntary Termination; Termination
For Cause. Upon the termination of the Executive's employment hereunder pursuant
to a Voluntary Termination or a Termination For Cause, neither the Executive nor
the Executive'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 Executive 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 Executive's
employment as a Termination Without Cause, neither the Executive nor the
Executive'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 semi-monthly payment of the Executive'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. 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 Executive prior to the date of
his termination, or (b) the average of the three most recent annual cash bonuses
paid to the Executive prior to the date of his termination.
(c) Death and Disability. Upon the termination of the Executive's employment
hereunder as a result of death or Disability, neither the Executive nor the
Executive'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 Executive'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 Executive (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
Executive 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 Executive shall forthwith be returned to
the Company.
11. Change in Control Provisions.
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(a) Effect of Change in Control. In the event of a Change in Control during the
Employment Period, all options held by the Executive 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
Executive's employment, either by the Company as a Termination Without Cause or
by the Executive for Good Reason, whether or not such termination is during the
Employment Period, the Executive shall be entitled to receive (i) the payments
and other rights provided in Section 10(a) hereof and (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 Executive'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 48 (i.e., that would have
been payable on a semi-monthly basis during the 24 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 24-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. 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 Executive 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;
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(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 Executive of his
employment with the Company, within six months immediately following a Change in
Control, based on:
(i) any diminution in the Executive'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
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(a) If it shall be determined that any amount paid, distributed or treated as
paid or distributed by the Company to or for the Executive'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 Executive 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 Executive shall be entitled to receive an additional
payment (a "Gross-Up Payment") in an amount such that after payment by the
Executive 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 Executive 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 Executive (the "Accounting Firm") which shall provide detailed supporting
calculations both to the Company and the Executive within 15 business days of
the receipt of notice from the Executive 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 Executive 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 Executive 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 Executive. 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
Executive 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
Executive's benefit.
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(c) The Executive 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 Executive 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 Executive
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 Executive in writing prior to the expiration of such
period that it desires to contest such claim, the Executive 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 Executive 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 Executive to
pay the tax claimed and sue for a refund or contest the claim in any
permissible manner, and the Executive 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 Executive to pay such claim and sue for a refund, the
Company shall advance the amount of such payment to the Executive, on
an interest-free basis, and shall indemnify and hold the Executive
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
Executive'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 Executive 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 Executive's receipt of an amount advanced by the Company
pursuant to this Section 12, the Executive becomes entitled to receive any
refund with respect to such claim, the Executive 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 Executive's receipt of an amount
advanced by the Company pursuant to this Section 12, a determination is made
that the Executive shall not be entitled to any refund with respect to such
claim and the Company does not notify the Executive 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(d) of
the Company's 1991 Stock Option Plan as applied to the Executive.
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13. Disclosure of Information. The Executive 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 Executive 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) . (a) The Executive hereby acknowledges and
recognizes that, during the Employment Period, the Executive will be privy to
trade secrets and confidential proprietary information critical to the Company's
business and the Executive further acknowledges and recognizes that the Company
would find it extremely difficult or impossible to replace the Executive and,
accordingly, the Executive agrees that, in consideration of the benefits to be
received by the Executive hereunder, the Executive 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
Executive'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 Executive understands that the foregoing restrictions may limit the
ability of the Executive to earn a livelihood in a business similar to the
business of the Company, but nevertheless believes that the Executive 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
Executive), the Executive believes would not prevent the Executive from earning
a living.
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15. Company Right to Inventions. The Executive 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 Executive 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 Executive 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 Executive shall render to the Company, at its expense (including a
reasonable payment for the time involved in case the Executive 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) . (a) The Executive 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 Executive
of the provisions of Section 13, 14 or 15 hereof, the Company will be entitled
to an injunction restraining the Executive 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.
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(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),
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 Executive: 8233 Burning Tree Road
Bethesda, MD 20817
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 LLP
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 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 thereto. 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.
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<PAGE>
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first above written.
EXECUTIVE MEDIMMUNE, INC.
/s/ Wayne T. Hockmeyer By:/s/ David M. Mott
---------------------------- -------------------------------
Wayne T. Hockmeyer David M. Mott
Vice Chairman and Chief Financial Officer
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