Exhibit 10.133
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT, dated as of February 25, 2002, (the "Effective Date"), is
by and among XXXXXX XXXXXX (the "Employee"), MEDIMMUNE, INC., a Delaware corporation ("MedImmune") and
AVIRON, a Delaware corporation, a wholly-owned subsidiary of MedImmune ("the Company").
The parties hereby agree as follows:
1. Employment. The Company hereby continues the employment of the Employee, and
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the Employee hereby accepts continued employment by the Company, upon the terms and conditions
hereinafter set forth.
2. Term. The employment of the Employee hereunder will commence on the date
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hereof and will continue until Employee's employment is terminated in accordance with Section 6 hereof.
The period of the Employee's employment under this Agreement is referred to hereafter as the "Employment
Period."
3. Duties and Responsibilities. The Employee will be employed by the Company in
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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 position, as they may be assigned from time to time by the Company and MedImmune.
4. Time to be Devoted to Employment. Except for vacation in accordance with the
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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 and
MedImmune. During the Employment Period, the Employee will not be engaged in any other business
activity which, in the reasonable judgment of the Company and MedImmune, 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.
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(a) Settlement of Management Continuity Agreement. The Company shall (i) pay the
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Employee as soon as practicable following the date hereof the lump-sum amount specified as the
Settlement Payment on Annex A and (ii) provide that all outstanding stock options granted to the
Employee under the Company's stock option plans prior to the date hereof, to the extent they have not
otherwise become vested and exercisable, will automatically become fully and immediately vested and
exercisable effective as of the date hereof. Employee acknowledges that the provision of the payments
and rights required by the previous sentence is in full satisfaction of the Company's and MedImmune's
obligations under the Management Continuity Agreement between the Employee and the Company, dated May,
2000, (the "Management Continuity Agreement") and the Employee waives any other rights under such
agreement with respect to past service with the Company or future service with the Company or MedImmune.
(b) Base Salary. The Company will pay to the Employee an annual base salary of
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not less than the amount specified as the Initial Base Salary on Annex A, payable in accordance with the
Company's normal payroll practices. The Employee's base salary shall be reviewed annually by the
Company and shall be subject to increase at the option and sole discretion of the Company.
(c) FluMist Bonus. In the event that the Employee is employed by the Company or
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MedImmune on the date that MedImmune receives final approval from the Food and Drug Administration for
FluMist, MedImmune shall pay the Employee the amount specified as the FluMist Bonus on Annex A.
(d) Annual Bonus. During the Employment Period, the Employee will be eligible
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for consideration for an annual bonus under MedImmune's annual bonus program, based upon achievement of
performance goals as determined by MedImmune in its sole discretion.
(e) Stock Option Grants. During the Employment Period, the Employee may be
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eligible for future stock option grants under MedImmune's annual merit grant program, as determined
appropriate in the sole discretion of the Compensation and Stock Committee (the "Compensation
Committee") of MedImmune's Board of Directors (the "Board"). MedImmune's annual merit grant program
generally considers employees for merit option grants in February of each year and it is MedImmune's
current expectation that the Employee be considered for a February, 2002 grant.
(f) Benefits. In addition to the salary and bonuses referred to above, the
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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 generally to employees of the Company with Employee's position, tenure, salary, age,
health and other qualifications. The Employee acknowledges and agrees that the Company and MedImmune do
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.
(g) Expenses. The Company will reimburse the Employee, in accordance with the
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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 or MedImmune in the performance of the Employee's duties hereunder, upon
presentation by the Employee to the Company of appropriate vouchers.
6. Termination of Employment Period.
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(a) At-Will Termination. The Company or the Employee may terminate the
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Employment Period and Employee's employment hereunder at any time and for any reason, subject to the
provisions of Sections 6(b) and (c) below.
(b) Termination without Cause. In the event that the Employment Period and
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Employee's employment hereunder is terminated by the Company without Cause (as defined below) neither
the Employee nor the Employee's beneficiaries or estate will have any further rights or claims against
the Company or MedImmune under this Agreement except the right to receive:
(i) any unpaid compensation or rights due to the Employee under Section 5(a) hereof,
(ii) the unpaid portion of the base salary provided for in Section 5(b) hereof up to
the date of termination (the "Termination Date"), computed on a pro rata basis to the
Termination Date,
(iii) payment of Employee's accrued but unpaid rights in accordance with the terms of
any stock option, retirement, employee welfare or other employee benefit plans or programs of
MedImmune in which the Employee is then participating in,
(iv) reimbursement for any expenses for which the Employee shall not have theretofore
been reimbursed as provided in Section 5(g) hereof,
(v) severance payments equal to 6 months of the Employee's then-current base salary
(payable in accordance with the Company's regular payroll practices), and
(vi) in the event the Termination Date is prior to the first anniversary of the date
of Aviron's acquisition by MedImmune (the "Merger Date"), payment of the Termination Bonus
specified on Annex A which is intended to reflect an amount equal to the Employee's 2001 bonus
paid on a "meets expectation" basis, multiplied by a fraction, the numerator of which is the
number of days between the Termination Date and the Merger Date, and the denominator of which
is 365.
For purposes of this Agreement, "Cause" shall mean (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 MedImmune, the Company, or any subsidiary or affiliate thereof, (iii) the Employee's material
breach of any of the agreements contained in Sections 7, 8, or 9 hereof, (iv) the commission by the
Employee of any material fraudulent act with respect to the business and affairs of MedImmune, the
Company, or any subsidiary or affiliate thereof or (v) the Employee's conviction of (or plea of nolo
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contendere to) a crime constituting a felony. (c) Other Termination. In the event
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that the Employment Period and Employee's employment hereunder is terminated by the Company or MedImmune
for Cause, by the Employee for any reason or on account of death or Disability (as defined below),
neither the Employee nor the Employee's beneficiaries or estate will have any further rights or claims
against the Company or MedImmune under this Agreement, including, without limitation, any severance or
termination pay, except the right to receive (i) any unpaid compensation or rights due to the Employee
under Section 5(a) hereof, (ii) the unpaid portion of the base salary provided for in Section 5(b)
hereof up to the Termination Date, computed on a pro rata basis to the Termination Date, (iii) payment
of the Employee's accrued but unpaid rights in accordance with the terms of any stock option,
retirement, employee welfare or other employee benefit plans or programs of MedImmune in which the
Employee is then participating in and (iv) reimbursement for any expenses for which the Employee shall
not have theretofore been reimbursed as provided in Section 5(g) hereof. For purposes of this
Agreement, "Disability" shall mean disability 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 MedImmune'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.
7. Disclosure of Information. The Employee will not, at any time during or after
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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
MedImmune, 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 MedImmune, the Company, or any
subsidiary or affiliate thereof.
8. Restrictive Covenants.
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(a) NonCompetition. The Employee hereby acknowledges and recognizes that, during
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the Employment Period, the Employee will be privy to trade secrets and confidential proprietary
information critical to the business of MedImmune and the Company, and the Employee further acknowledges
and recognizes that MedImmune 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, (i) directly or indirectly engage in the development,
production, marketing or sale of products that compete (or, upon commercialization, would compete) with
any influenza vaccines or other products of the Company or any subsidiary thereof being developed (so
long as such development has not been abandoned), marketed or sold during Employee's period of service
with MedImmune, the Company, or any subsidiary or affiliate thereof (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 or (ii) assist others
in engaging in any Competing Business in the manner described in the foregoing clause (i).
(b) Nonsolicitation. The Employee agrees that, in consideration of the benefits to
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be received by the Employee hereunder, the Employee will not, until the expiration of a period of 12
months immediately following the expiration of the Employment Period, directly or indirectly solicit,
hire or induce any employee, customer, client or other person doing business with MedImmune, the
Company, or any subsidiary or affiliate thereof in any way alter their relationship or terminate their
employment with MedImmune, the Company, or any subsidiary or affiliate thereof.
(c) Reasonableness. The Employee understands that the foregoing restrictions may
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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.
9. Right to Inventions. The Employee will promptly disclose, grant and assign to
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MedImmune, for its sole use and benefit, any and all inventions, improvements, technical information and
suggestions relating in any way to the business of MedImmune, the Company, or any subsidiary or
affiliate thereof 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 MedImmune, 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 MedImmune to vest title to
any such inventions, improvements, technical information, patent applications, patents,
copyrights or reissues thereof in MedImmune, the Company, or any subsidiary or affiliate
thereof and to enable it to obtain and maintain the entire right and title thereto throughout
the world; and
(ii) the Employee shall render to MedImmune, 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
MedImmune, the Company, or any subsidiary or affiliate thereof may be involved relating to any
such patents, inventions, improvements or technical information.
10. Enforcement. It is the desire and intent of the parties hereto that the
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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.
11. Remedies; Survival. (a) The Employee acknowledges and understands that the
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provisions of the covenants contained in Sections 7, 8 and 9 hereof, the violation of which cannot be
accurately compensated for in damages by an action at law, are of crucial importance to MedImmune, and
that the breach or threatened breach of the provisions of this Agreement would cause MedImmune
irreparable harm. In the event of a breach or threatened breach by the Employee of the provisions of
Section 7, 8 or 9 hereof, MedImmune will be entitled to an injunction restraining the Employee from such
breach. Nothing herein contained will be construed as prohibiting MedImmune 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 7, 8, 9, 10 and 11 hereof will survive the expiration or other termination of
this Agreement until, by their terms, such provisions are no longer operative.
12. Tax Withholding. All compensation payable under this Agreement shall be
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subject to reduction by all applicable withholding, social security and other federal, state and local
taxes and deductions for income, employment, excise and other taxes.
13. Release. As a condition of the Employee being eligible for any severance or
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other payments upon termination of employment under Section 6 hereof, the Employee shall execute and
honor a standard release of claims against MedImmune, the Company, or any subsidiary or affiliate
thereof in the form deemed appropriate by MedImmune. Such release shall specifically relate to all of
the Employee's rights and claims in existence at the time of execution.
14. Notices. Notices and other communications hereunder will be in writing and
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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: at his address as listed on the Company's then
current payroll
and if to MedImmune: MedImmune, Inc.
00 Xxxx Xxxxxxx Xxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
with a copy to: Xxxxxxxxx X. Xxxxxx, Esq.
Xxxxx Xxxxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
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 14 or
in accordance with the latest unrevoked direction from such party.
15. Binding Agreement; Benefit. The provisions of this Agreement will be binding
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upon, and will inure to the benefit of, the respective heirs, legal representatives and successors of
the parties hereto.
16. Governing Law. This Agreement shall be governed by and enforceable in
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accordance with the laws of the State of Maryland applicable to contracts executed and performed within
such state, without giving effect to the principles of conflict of laws thereof. The parties agree that
any claims concerning the rights and obligations of the parties or any other issue arising under this
Agreement shall be brought in the Circuit Court for Xxxxxxxxxx County or the United States District
Court for the District of Maryland, and that such courts shall have exclusive jurisdiction over
litigation involving any such claims. The parties agree to submit to the jurisdiction of such courts
and that they will not raise lack of personal jurisdiction or inconvenient forum as defenses in any such
litigation.
17. Waiver of Breach. The waiver by either party of a breach of any provision of
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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.
18. Entire Agreement; Amendments. This Agreement (including Annex A) and the
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Management Continuity Agreement contain 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.
19. Headings. The section headings contained in this Agreement are for reference
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purposes only and will not affect in any way the meaning or interpretation of this Agreement.
20. Severability. Any provision of this Agreement that is prohibited or
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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.
21. Assignment. This Agreement is personal in its nature and the parties hereto
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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 7,
8 and 9) will inure to the benefit of, and be binding upon, each successor of MedImmune, 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.
MEDIMMUNE, INC.
By: /s/: Xxxxxx X. Xxxxx
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THE COMPANY
By: Xxxxxx X. Xxxxxx, Ph.D.
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EMPLOYEE
