Employment Agreement - MedImmune Inc. and David P. Wright
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT, dated as of April 1, 1997, is
by and between DAVID P. WRIGHT (the "Employee") and MEDIMMUNE,
INC., a Delaware corporation (the "Company").
The Company and the Employee hereby agree as follows:
1. Employment. The Company hereby employs the
Employee, and the Employee hereby accepts employment by the
Company, upon the terms and conditions hereinafter set forth.
2. Term. Subject to the provisions for earlier
termination as herein provided, the employment of the Employee
hereunder will be for the period commencing on the date hereof and
ending on the second anniversary of such date. Such period may be
extended, with the consent of the Employee, for one or more one-
year periods by resolution adopted by the Compensation and Stock
Committee (the "Committee") of the Board of Directors of the
Company (the "Board"). The period of the Employee's employment
under this Agreement, as it may be terminated or extended from time
to time as provided herein, is referred to hereafter as the
"Employment Period."
3. Duties and Responsibilities. The Employee will be
employed by the Company in the position set forth on Annex A, a
copy of which is attached hereto and the terms of which are
incorporated herein by reference. The Employee will faithfully
perform the duties and responsibilities of such office, as they may
be assigned from time to time by the Board or the Board's designee.
4. Time to be Devoted to Employment. Except for
vacation in accordance with the Company's policy in effect from
time to time and absences due to temporary illness, the Employee
shall devote full time, attention and energy during the Employment
Period to the business of the Company. During the Employment
Period, the Employee will not be engaged in any other business
activity which, in the reasonable judgment of the Board or its
designee, conflicts with the duties of the Employee hereunder,
whether or not such activity is pursued for gain, profit or other
pecuniary advantage.
5. Compensation; Reimbursement.
(a) Base Salary. The Company (or, at the Company's
option, any subsidiary or affiliate thereof) will pay to the
Employee an annual base salary of not less than the amount
specified as the Initial Base Salary on Annex A, payable bi-weekly.
The Employee's base salary shall be reviewed annually by the
Compensation Committee and shall be subject to increase at the
option and sole discretion of the Compensation Committee.
(b) Bonus. The Employee shall be eligible to receive,
at the sole discretion of the Compensation Committee, an annual
cash bonus based on pre-determined performance standards of the
Company.
(c) Benefits; Stock Options. In addition to the salary
and cash bonus referred to above, the Employee shall be entitled
during the Employment Period to participate in such employee
benefit plans or programs of the Company, and shall be entitled to
such other fringe benefits, as are from time to time made available
by the Company generally to employees of the Employee's position,
tenure, salary, age, health and other qualifications. Without
limiting the generality of the foregoing, the Employee shall be
eligible for such awards, if any, under the Company's stock option
plan as shall be granted to the Employee by the Compensation
Committee or other appropriate designee of the Board acting in its
sole discretion. The Employee acknowledges and agrees that the
Company does not guarantee the adoption or continuance of any
particular employee benefit plan or program or other fringe benefit
during the Employment Period, and participation by the Employee in
any such plan or program shall be subject to the rules and
regulations applicable thereto.
(d) Expenses. The Company will reimburse the Employee,
in accordance with the practices in effect from time to time for
other officers or staff personnel of the Company, for all
reasonable and necessary traveling expenses and other disbursements
incurred by the Employee for or on behalf of the Company in the
performance of the Employee's duties hereunder, upon presentation
by the Employee to the Company of appropriate vouchers.
6. Death; Disability. If the Employee dies or is
incapacitated or disabled by accident, sickness or otherwise, so as
to render the Employee mentally or physically incapable of
performing the services required to be performed by the Employee
under this Agreement for a period that would entitle the Employee
to qualify for long-term disability benefits under the Company's
then-current long-term disability insurance program or, in the
absence of such a program, for a period of 90 consecutive days or
longer (such condition being herein referred to as a "Disability"),
then (i) in the case of the Employee's death, the Employee's
employment shall be deemed to terminate on the date of the
Employee's death or (ii) in the case of a Disability, the Company,
at its option, may terminate the employment of the Employee under
this Agreement immediately upon giving the Employee notice to that
effect. Disability shall be determined by the Board or the Board's
designee. In the case of a Disability, until the Company shall
have terminated the Employee's employment hereunder in accordance
with the foregoing, the Employee shall be entitled to receive
compensation provided for herein notwithstanding any such physical
or mental disability.
7. Termination For Cause. The Company may, with the
approval of a majority of the Board, terminate the employment of
the Employee hereunder at any time during the Employment Period for
"cause" (such termination being hereinafter called a "Termination
for Cause") by giving the Employee notice of such termination, upon
the giving of which such termination will take effect immediately.
For purposes of this Agreement, "cause" means (i) the Employee's
willful and substantial misconduct, (ii) the Employee's repeated,
after written notice from the Company, neglect of duties or failure
to act which can reasonably be expected to affect materially and
adversely the business or affairs of the Company or any subsidiary
or affiliate thereof, (iii) the Employee's material breach of any
of the agreements contained in Sections 12, 13 or 14 hereof, (iv)
the commission by the Employee of any material fraudulent act with
respect to the business and affairs of the Company or any
subsidiary or affiliate thereof or (v) the Employee's conviction of
(or plea of nolo contendere to) a crime constituting a felony.
8. Termination Without Cause. The Company may
terminate the employment of the Employee hereunder at any time
without "cause" (such termination being hereinafter called a
"Termination Without Cause") by giving the Employee notice of such
termination, upon the giving of which such termination will take
effect not later than 30 days from the date such notice is given.
9. Voluntary Termination. Any termination of the
employment of the Employee hereunder, otherwise than as a result of
death or Disability, a Termination For Cause, a Termination Without
Cause or a termination for Good Reason (as defined below) following
a Change in Control (as defined below), will be deemed to be a
"Voluntary Termination." A Voluntary Termination will be deemed to
be effective immediately upon such termination.
10. Effect of Termination of Employment.
(a) Voluntary Termination; Termination For Cause. Upon
the termination of the Employee's employment hereunder pursuant to
a Voluntary Termination or a Termination For Cause, neither the
Employee nor the Employee's beneficiaries or estate will have any
further rights or claims against the Company under this Agreement
except the right to receive (i) the unpaid portion of the base
salary provided for in Section 5(a) hereof, computed on a pro rata
basis to the date of termination, (ii) payment of his accrued but
unpaid rights in accordance with the terms of any incentive
compensation, stock option, retirement, employee welfare or other
employee benefit plans or programs of the Company in which the
Executive is then participating in accordance with Sections 5(b)
and 5(c) hereof and (iii) reimbursement for any expenses for which
the Employee shall not have theretofore been reimbursed as provided
in Section 5(d) hereof.
(b) Termination Without Cause. Upon the termination of
the Employee's employment as a Termination Without Cause, neither
the Employee nor the Employee's beneficiaries or estate will have
any further rights or claims against the Company under this
Agreement except the right to receive (i) the payments and other
rights provided for in Section 10(a) hereof, (ii) severance
payments in the form of a continuation of the Employee's base
salary as in effect immediately prior to such termination for a
period of 12 months following the effective date of such
termination and (iii) continuation of the medical benefits coverage
to which the Employee is entitled under Section 5(c) hereof over
the same period with respect to which the Employee's base salary is
continued as provided in clause (ii) above, with such coverage to
be provided at the same level and subject to the same terms and
conditions (including, without limitation, any applicable co-pay
obligations of the Employee, but excluding any applicable tax
consequences for the Employee) as in effect from time to time for
officers of the Company generally. The rights of the Employee and
the obligations of the Company under this Section 10(b) shall
remain in full force and effect notwithstanding the expiration of
the Employment Period, whether by failure of the Compensation
Committee to extend such period or otherwise.
(c) Death and Disability. Upon the termination of the
Employee's employment hereunder as a result of death or Disability,
neither the Employee nor the Employee's beneficiaries or estate
will have any further rights or claims against the Company under
this Agreement except the right to receive (i) the payments and
other rights provided for in Section 10(a) hereof, (ii) a lump-sum
payment, within 15 days after the effective date of such
termination, equal to the aggregate amount of the Employee's base
salary as in effect immediately prior to such termination that
would be payable over a period of 12 months following the effective
date of such termination and (iii) in the case of Disability only,
continuation of the medical benefits coverage to which the Employee
is entitled under Section 5(c) hereof over the same period with
respect to which the lump-sum payment is calculated under clause
(ii) above, with such coverage to be provided at the same level and
subject to the same terms and conditions (including, without
limitation, any applicable co-pay obligations of the Employee, but
excluding any applicable tax consequences for the Employee) as in
effect from time to time for officers of the Company generally.
(d) Forfeiture of Rights. In the event that, subsequent
to termination of employment hereunder, the Employee (i) breaches
any of the provisions of Section 12, 13 or 14 hereof or (ii)
directly or indirectly makes or facilitates the making of any
adverse public statements or disclosures with respect to the
business or securities of the Company, all payments and benefits to
which the Employee may otherwise have been entitled pursuant to
Section 10(a), 10(b) or 11 hereof shall immediately terminate and
be forfeited, and any portion of such amounts as may have been paid
to the Employee shall forthwith be returned to the Company.
11. Change in Control Provisions.
(a) Effect of Termination Following Change in Control.
In the event of a Change in Control during the Employment Period
and a subsequent termination of the Employee's employment, either
by the Company as a Termination Without Cause or by the Employee
for Good Reason, whether or not such termination is during the
Employment Period, the Employee shall be entitled to receive (i)
the payments and other rights provided in Section 10(a) hereof,
(ii) severance payments in the form a cash lump sum, paid within 15
days of the date of termination, with the amount of such payment to
be the aggregate amount of the Employee's base salary as in effect
immediately prior to such termination payable over a period of 12
months, but discounted to present value from the dates such
payments would otherwise be made to the Employee, based on the 100%
short-term Applicable Federal Rate (compounded annually) under
Section 1274(d) of the Internal Revenue Code as in effect at the
time of payment, and (iii) continuation of the medical benefits
coverage to which the Employee is entitled under Section 5(c)
hereof for a period of 12 months following the date of termination,
with such coverage to be provided at the same level and subject to
the same terms and conditions (including, without limitation, any
applicable co-pay obligations of the Employee, but excluding any
applicable tax consequences for the Employee) as in effect from
time to time for officers of the Company generally.
(b) Definition of Change in Control. For purposes of
this Agreement, a "Change in Control" shall be deemed to have
occurred upon:
(i) an acquisition subsequent to the date hereof by any
person, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")) (a "Person"), of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under
the Exchange Act) of 30% or more of either (A) the then
outstanding shares of common stock of the Company ("Common
Stock") or (B) the combined voting power of the then
outstanding voting securities of the Company entitled to vote
generally in the election of directors (the "Outstanding
Company Voting Securities"); excluding, however, the
following: (1) any acquisition directly from the Company,
other than an acquisition by virtue of the exercise of a
conversion privilege unless the security being so converted
was itself acquired directly from the Company, (2) any
acquisition by the Company and (3) any acquisition by an
employee benefit plan (or related trust) sponsored or
maintained by the Company;
(ii) a change in the composition of the Board such that
during any period of two consecutive years, individuals who at
the beginning of such period constitute the Board, and any new
director (other than a director designated by a person who has
entered into an agreement with the Company to effect a
transaction described in clause (i), (iii), or (iv) of this
paragraph) whose election by the Board or nomination for
election by the Company's stockholders was approved by a vote
of at least two-thirds of the directors then still in office
who either were directors at the beginning of the period or
whose election or nomination for election was previously so
approved, cease for any reason to constitute at least a
majority of the members thereof;
(iii) the approval by the stockholders of the Company of
a merger, consolidation, reorganization or similar corporate
transaction, whether or not the Company is the surviving
corporation in such transaction, in which outstanding shares
of Common Stock are converted into (A) shares of stock of
another company, other than a conversion into shares of voting
common stock of the successor corporation (or a holding
company thereof) representing 80% of the voting power of all
capital stock thereof outstanding immediately after the merger
or consolidation or (B) other securities (of either the
Company or another company) or cash or other property;
(iv) the approval by stockholders of the Company of the
issuance of shares of Common Stock in connection with a
merger, consolidation, reorganization or similar corporate
transaction in an amount in excess of 40% of the number of
shares of Common Stock outstanding immediately prior to the
consummation of such transaction;
(v) the approval by the stockholders of the Company of
(A) the sale or other disposition of all or substantially all
of the assets of the Company or (B) a complete liquidation or
dissolution of the Company; or
(vi) the adoption by the Board of a resolution to the
effect that any person has acquired effective control of the
business and affairs of the Company.
(c) Good Reason Following Change in Control. For
purposes of this Agreement, termination for "Good Reason" shall
mean termination by the Employee of his employment with the
Company, within six months immediately following a Change in
Control, based on:
(i) any diminution in the Employee's position, title,
responsibilities or authority from those in effect immediately
prior to such Change in Control; or
(ii) the breach by the Company of any of its material
obligations under this Agreement.
12. Disclosure of Information. The Employee will not,
at any time during or after the Employment Period, disclose to any
person, firm, corporation or other business entity, except as
required by law, any non-public information concerning the
business, products, clients or affairs of the Company or any
subsidiary or affiliate thereof for any reason or purpose
whatsoever, nor will the Employee make use of any of such non-
public information for personal purposes or for the benefit of any
person, firm, corporation or other business entity except the
Company or any subsidiary or affiliate thereof.
13. Restrictive Covenant. (a) The Employee hereby
acknowledges and recognizes that, during the Employment Period, the
Employee will be privy to trade secrets and confidential
proprietary information critical to the Company's business and the
Employee further acknowledges and recognizes that the Company would
find it extremely difficult or impossible to replace the Employee
and, accordingly, the Employee agrees that, in consideration of the
benefits to be received by the Employee hereunder, the Employee
will not, from and after the date hereof until the first
anniversary of the termination of the Employment Period (or six
months after the termination of the Employment Period if such
termination is as a result of a Termination Without Cause or a
termination for Good Reason following a Change in Control), (i)
directly or indirectly engage in the development, production,
marketing or sale of products that compete (or, upon
commercialization, would compete) with products of the Company
being developed (so long as such development has not been
abandoned), marketed or sold at the time of the Employee's
termination (such business or activity being hereinafter called a
"Competing Business") whether such engagement shall be as an
officer, director, owner, employee, partner, affiliate or other
participant in any Competing Business, (ii) assist others in
engaging in any Competing Business in the manner described in the
foregoing clause (i), or (iii) induce other employees of the
Company or any subsidiary thereof to terminate their employment
with the Company or any subsidiary thereof or engage in any
Competing Business. Notwithstanding the foregoing, the term
"Competing Business" shall not include any business or activity
that was not conducted by the Company prior to the effective date
of a Change in Control.
(b) The Employee understands that the foregoing
restrictions may limit the ability of the Employee to earn a
livelihood in a business similar to the business of the Company,
but nevertheless believes that the Employee has received and will
receive sufficient consideration and other benefits, as an employee
of the Company and as otherwise provided hereunder, to justify such
restrictions which, in any event (given the education, skills and
ability of the Employee), the Employee believes would not prevent
the Employee from earning a living.
14. Company Right to Inventions. The Employee will
promptly disclose, grant and assign to the Company, for its sole
use and benefit, any and all inventions, improvements, technical
information and suggestions relating in any way to the business of
the Company which the Employee may develop or acquire during the
Employment Period (whether or not during usual working hours),
together with all patent applications, letters patent, copyrights
and reissues thereof that may at any time be granted for or upon
any such invention, improvement or technical information. In
connection therewith:
(i) the Employee shall, without charge, but at the
expense of the Company, promptly at all times hereafter
execute and deliver such applications, assignments,
descriptions and other instruments as may be necessary or
proper in the opinion of the Company to vest title to any such
inventions, improvements, technical information, patent
applications, patents, copyrights or reissues thereof in the
Company and to enable it to obtain and maintain the entire
right and title thereto throughout the world; and
(ii) the Employee shall render to the Company, at its
expense (including a reasonable payment for the time involved
in case the Employee is not then in its employ), all such
assistance as it may require in the prosecution of
applications for said patents, copyrights or reissues thereof,
in the prosecution or defense of interferences which may be
declared involving any said applications, patents or
copyrights and in any litigation in which the Company may be
involved relating to any such patents, inventions,
improvements or technical information.
15. Enforcement. It is the desire and intent of the
parties hereto that the provisions of this Agreement be enforceable
to the fullest extent permissible under the laws and public
policies applied in each jurisdiction in which enforcement is
sought. Accordingly, to the extent that a restriction contained in
this Agreement is more restrictive than permitted by the laws of
any jurisdiction where this Agreement may be subject to review and
interpretation, the terms of such restriction, for the purpose only
of the operation of such restriction in such jurisdiction, will be
the maximum restriction allowed by the laws of such jurisdiction
and such restriction will be deemed to have been revised
accordingly herein.
16. Remedies; Survival. (a) The Employee acknowledges
and understands that the provisions of the covenants contained in
Sections 12, 13 and 14 hereof, the violation of which cannot be
accurately compensated for in damages by an action at law, are of
crucial importance to the Company, and that the breach or
threatened breach of the provisions of this Agreement would cause
the Company irreparable harm. In the event of a breach or
threatened breach by the Employee of the provisions of Section 12,
13 or 14 hereof, the Company will be entitled to an injunction
restraining the Employee from such breach. Nothing herein
contained will be construed as prohibiting the Company from
pursuing any other remedies available for any breach or threatened
breach of this Agreement.
(b) Notwithstanding anything contained in this Agreement
to the contrary, the provisions of Sections 10(b), 12, 13, 14, 15
and 16 hereof will survive the expiration or other termination of
this Agreement until, by their terms, such provisions are no longer
operative.
17. Notices. Notices and other communications hereunder
will be in writing and will be delivered personally or sent by air
courier or first class certified or registered mail, return receipt
requested and postage prepaid, addressed as follows:
if to the Employee: as specified in Annex A
and if to the Company: MedImmune, Inc.
35 West Watkins Mill Road
Gaithersburg, Maryland 20878
Attention: Chief Executive Officer
with a copy to: Frederick W. Kanner, Esq.
Dewey Ballantine
1301 Avenue of the Americas
New York, NY 10019
All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement will be deemed to
have been given on the date of delivery, if personally delivered;
on the business day after the date when sent, if sent by air
courier; and on the third business day after the date when sent, if
sent by mail, in each case addressed to such party as provided in
this Section 17 or in accordance with the latest unrevoked
direction from such party.
18. Binding Agreement; Benefit. The provisions of this
Agreement will be binding upon, and will inure to the benefit of,
the respective heirs, legal representatives and successors of the
parties hereto.
19. Governing Law. This Agreement will be governed by,
and construed and enforced in accordance with, the laws of the
State of Maryland.
20. Waiver of Breach. The waiver by either party of a
breach of any provision of this Agreement by the other party must
be in writing and will not operate or be construed as a waiver of
any subsequent breach by such other party.
21. Entire Agreement; Amendments. This Agreement
(including Annex A) contains the entire agreement between the
parties with respect to the subject matter hereof and supersedes
all prior agreements or understandings among the parties with
respect thereof. This Agreement may be amended only by an
agreement in writing signed by the parties hereto.
22. Headings. The section headings contained in this
Agreement are for reference purposes only and will not affect in
any way the meaning or interpretation of this Agreement.
23. Severability. Any provision of this Agreement that
is prohibited or unenforceable in any jurisdiction will, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any
jurisdiction will not invalidate or render unenforceable such
provision in any other jurisdiction.
24. Assignment. This Agreement is personal in its
nature and the parties hereto shall not, without the consent of the
other, assign or transfer this Agreement or any rights or
obligations hereunder; provided, that the provisions hereof
(including, without limitation, Sections 12, 13 and 14) will inure
to the benefit of, and be binding upon, each successor of the
Company, whether by merger, consolidation, transfer of all or
substantially all of its assets or otherwise.
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first above written.
EMPLOYEE MEDIMMUNE, INC.
By
David P. Wright
ANNEX A
to
Employment Agreement
Name of Employee: DAVID P. WRIGHT
1. Position: Executive Vice President
Sales and Marketing
2. Initial Base Salary: $231,000
3. Employee's address for notices: 7701 Hidden Meadow Terrace
Potomac, MD 20854