EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") dated as of October 22, 1997,
by and between ALEXION Pharmaceuticals, Inc., a Delaware corporation (the
"Company"), and Xxxxx X. Xxxxx (the "Executive").
W I T N E S S E T H
WHEREAS, the Company wishes to employ Executive in an executive capacity
and Executive is desirous of being so employed;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein contained, the parties hereto agree as follows:
1. Employment, Duties and Acceptance.
(a) The Company hereby employs the Executive for the Term (as hereinafter
defined), to render full-time services to the Company as Vice President of
Research, Immunobiology, and to perform such duties commensurate with such
office as he shall reasonably be directed by the Board of Directors (the
"Board") of the Company to perform, which duties shall be consistent with the
provisions of the By-laws in effect on the date hereof that relate to the duties
of the Vice President of Research, Immunobiology.
(b) The Executive hereby accepts such employment and agrees to render the
services described above.
2. Term of Employment.
The term of the Executive's employment under this Agreement (the "Term")
commences as of August 1, 1997 (the "Effective Date") and shall end on the fifth
anniversary thereof unless sooner terminated pursuant to Section 7 or 8 of this
Agreement. This Agreement shall not be renewed unless otherwise mutually agreed
by the parties.
3. Compensation.
(a) As full compensation for all services to be rendered pursuant to this
Agreement, the Company agrees to pay the Executive, during the Term, an annual
base salary of not less than $158,000 for the first year of the Term and for
each subsequent year of the Term an amount to be determined by the Company,
payable in such installments as is the policy of the Company with respect to
executive employees of the Company (the "Salary").
(b) Executive may receive bonuses on such dates, in such amounts and on
such other terms as may be determined by the Board of Directors in
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its sole discretion. In the sole discretion of the Board of Directors, such
bonuses, if any, may be paid in the form of grants of stock of the Company or
non-qualified stock options, each granted pursuant to plans adopted by the
Company and approved by the Company's Board of Directors.
(c) The Company shall pay or reimburse the Executive for all reasonable
expenses actually incurred or paid by him during the Term in the performance of
his services under this Agreement, upon presentation of expense statements or
vouchers or such other supporting information as it reasonably may require.
(d) The Executive shall be eligible under any incentive plan, stock option
plan, stock award plan, bonus, participation or extra compensation plan,
relocation plan, pension, group insurance or other so-called "fringe" benefits
which the Company generally provides for its executives.
4. Other Benefits.
In addition to all other benefits contained herein, the Executive shall be
entitled to:
(1) Payment of health, disability, and life insurance at regular rates
as described in Schedule A as of the date of this agreement; and
(2) Vacation time of four weeks per year taken, subject to fulfillment
of his duties hereunder, in accordance with the vacation policy of the
Company during the Term.
5. Confidentiality.
The Executive agrees that the "Proprietary Information and Inventions
Agreement" annexed hereto as Exhibit A and made a part hereof shall be deemed to
be a part of this Employment Agreement.
6. Non-Competition.
(a) During the Term the Executive shall not (1) provide any services,
directly or indirectly, to any other business or commercial entity or (2)
participate in the formation of any business or commercial entity, provided that
the Executive shall not be prohibited from part-time teaching at any educational
institution to the extent that such teaching does not interfere with Executive's
duties, responsibilities, and obligations to the Company. For a period of one
year following the date of termination, if terminated by the Company for Cause
or by the Executive for any reason other than as provided in Section 8 hereof,
the Executive shall not (1) provide any services, directly or indirectly, to any
other business or commercial entity engaged in the Company's Field of Interest
or (2) participate in the formation of any business or commercial entity engaged
in the Company's Field of Interest; provided, however, that nothing contained in
this Section 6 shall be deemed to prohibit the Executive from acquiring, solely
as an investment, shares of capital stock (or other
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interests) of any corporation (or other entity) not exceeding 2% of such
corporation's (or other entity's) then outstanding shares of capital stock. The
"Company's Field of Interest" means the primary business of the Company as
determined from time to time by the Board of Directors. This Section 6 shall be
subject to written waivers that may be obtained by the Executive from the
Company.
(b) If the Executive commits a breach, or threatens to commit a breach, of
any of the provisions of this Section 6 or Exhibit A, the Company shall have the
right and remedy to have the provisions of this Agreement specifically enforced
by any court having equity jurisdiction, it being acknowledged and agreed that
any such breach or threatened breach will cause irreparable injury to the
Company and that money damages will not provide an adequate remedy to the
Company.
(c) If any of the covenants contained in Section 5, 6 or 10, or any part
thereof, is hereafter construed to be invalid or unenforceable, the same shall
not affect the remainder of the covenant or covenants, which shall be given full
effect without regard to the invalid portions.
(d) If any of the covenants contained in Section 5, 6 or 10, or any part
thereof, is held to be unenforceable because of the duration of such provision
or the area covered thereby, the parties agree that the court making such
determination shall have the power to reduce the duration and/or area of such
provision and, in its reduced form, such provision shall then be enforceable.
(e) The parties hereto intend to and hereby confer jurisdiction to enforce
the covenants contained in Sections 5, 6 and 10 upon the courts of any state
within the geographical scope of such covenants. In the event that the courts of
any one or more of such states shall hold any such covenant wholly unenforceable
by reasons of the breadth of such scope or otherwise, it is the intention of the
parties hereto that such determination not bar or in any way affect the
Company's right to the relief provided above in the courts of any other states
within the geographical scope of such other covenants, as to breaches of such
covenants in such other respective jurisdictions, the above covenants as they
relate to each state being, for this purpose, severable into diverse and
independent covenants.
7. Termination by the Company.
(a) The Company may terminate this Agreement for any reason, with or
without Cause, including, without limitation, if any one or more of the
following shall occur:
(1) The Executive shall die during the Term; provided, however, that
the Executive's legal representatives shall be entitled to receive his
Salary through the last day of the month in which his death occurs.
(2) The Executive shall become physically or mentally disabled so that
he is unable substantially to perform his services hereunder for (a) a
period of 120 consecutive days, or (b) for shorter periods aggregating 180
days during
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any twelve-month period. Notwithstanding such disability the Company shall
continue to pay the Executive his Salary through the date of such
termination.
(3) The Executive acts, or fails to act, in a manner that provides
Cause for termination. For purposes of this Agreement, the term "Cause"
means (a) the Executive's indictment for, or conviction of, any crime or
serious offense involving money or other property which constitutes a
felony in the jurisdiction involved, (b) the Executive's wilful and
continual neglect or failure to discharge his duties, responsibilities, and
obligations as Director of Immunobiology of the Company after notice and a
reasonable opportunity to cure, (c) the Executive's wilful misconduct or
wilful breach of his fiduciary duties to the Company in connection with the
performance of his duties, (d) the Executive's violation of any of the
non-competition provisions of Section 6 hereof or the Executive's breach of
any confidentiality provisions contained in Exhibit A hereto or (e) any act
of fraud or embezzlement by the Executive involving the Company or any of
its Affiliates.
(b) All determinations of Cause or termination pursuant this Section 7
shall be determined by the Board (excluding the Executive if he is at such time
a member of the Board).
8. Termination by the Executive.
The Executive may terminate this Agreement on written notice to the Company
in the event of a material breach of the terms of this Agreement by the Company
and such breach continues uncured for 30 days after notice of such breach is
first given; provided, however, it shall constitute the termination of this
Agreement if such breach is for the payment of money and continues uncured for
ten days after notice of such termination is given.
9. Severance.
If, within the Term of this Agreement, the Company terminates this
Agreement for any reason other than Cause, death, or disability, or if the
Executive terminates this Agreement pursuant to Section 8, then: (1) the Company
shall pay the Executive a lump sum cash payment (the "Severance Payment") equal
to the greater of (x) the annual salary for the remainder of the then current
year of employment and (y) six months salary at the annual rate for the then
current year of employment; and (2) for options granted to the Executive prior
to the date of termination, the Company shall accelerate the vesting schedule
for such options such that the number of such options vested on the day of
termination shall be equal to the number of such options vested if the Executive
were to have been continuously employed by the Company until the date twelve
months after the date of termination. After termination of employment for any
reason other than death of the Executive, the Company shall continue to provide
all benefits subject to COBRA at its expense for the maximum required COBRA
period.
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10. Indemnification.
The Company shall indemnify the Executive, to the maximum extent permitted
by applicable law, against all costs, charges and expenses incurred or sustained
by him in connection with any action, suit or proceeding to which he may be made
a party by reason of his being an officer, director or employee of the Company
or of any subsidiary or affiliate of the Company.
11. Arbitration.
Any controversy or claim arising out of or relating to this Agreement or
the breach thereof shall be settled by arbitration in the City of New York, in
accordance with the rules then existing of the American Arbitration Association
(three arbitrators), and judgment upon the award rendered may be entered in any
court having jurisdiction thereof. The parties shall be free to pursue any
remedy before the arbitration tribunal that they shall be otherwise permitted to
pursue in a court of competent jurisdiction. The award of the arbitrators shall
be final and binding. During the pendency of any arbitration or any dispute not
yet submitted to arbitration, the Company shall not be entitled to any offset
against payments, stock awards or other benefits due to the Executive under this
Agreement or otherwise.
12. Notices.
All notices, requests, consents and other communications required or
permitted to be given hereunder shall be in writing and shall be deemed to have
been duly given if sent by private overnight mail service (delivery confirmed by
such service), registered or certified mail (return receipt requested and
received), telecopy (confirmed receipt by return fax from the receiving party)
or delivered personally, as follows (or to such other address as either party
shall designate by notice in writing to the other in accordance herewith):
If to the Company:
Alexion Pharmaceuticals, Inc.
00 Xxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to the Executive:
Xxxxx X. Xxxxx, M.D.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
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13. General.
(a) This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Connecticut applicable to agreements
made and to be performed entirely in Connecticut.
(b) This Agreement sets forth the entire agreement and understanding of the
parties relating to the subject matter hereof, and supersedes all prior
agreements, arrangements and understandings, written or oral, relating to the
subject matter hereof. No representation, promise or inducement has been made by
either party that is not embodied in this Agreement, and neither party shall be
bound by or liable for any alleged representation, promise or inducement not so
set forth.
(c) This Agreement may be amended, modified, superseded, canceled, renewed
or extended, and the terms or covenants hereof may be waived, only by a written
instrument executed by the parties hereto, or in the case of a waiver, by the
party waiving compliance. The failure of a party at any time or times to require
performance of any provision hereof shall in no manner affect the right at a
later time to enforce the same. No waiver by a party of the breach of any term
or covenant contained in this Agreement, whether by conduct or otherwise, or any
one or more or continuing waivers of any such breach, shall constitute a waiver
of the breach of any other term or covenant contained in this Agreement.
(d) This Agreement shall be binding upon the legal representatives, heirs,
distributees, successors and assigns of the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
ALEXION PHARMACEUTICALS, INC.
By: /s/ XXXXXXX XXXX
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Xxxxxxx Xxxx
/s/ XXXXX X. XXXXX
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Xxxxx X. Xxxxx
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EXHIBIT A
ALEXION PHARMACEUTICALS, INC.
PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
I recognize that Alexion Pharmaceuticals, Inc., a Delaware corporation (the
"Company", which term includes any subsidiaries thereof), is engaged in multiple
aspects of pharmaceutical development and biotechnology.
I understand that:
A. As part of my employment by the Company I am expected to make new
contributions of value of the Company.
B. My employment creates a relationship of confidence and trust between me
and the Company with respect to any information:
(1) Applicable to the business of the Company and made known to me by
the Company or learned by me during the period of my employment; or
(2) Applicable to the business of any client, customer or strategic
partner of the Company, which may be made known to me by the Company or by
any client, customer or strategic partner of the Company, or learned by me
during the period of my employment.
C. The Company possesses and will continue to possess information that has
been created, discovered or developed, or has otherwise become known to the
Company (including without limitation information created, discovered, developed
or made known by or to me during the period of my employment by the Company),
and/or in which property or other rights have been assigned or otherwise
conveyed to the Company, which information has commercial value in the business
in which the Company is engaged and none of which is in the public domain except
through the breach by me or anyone else of a confidentiality duty. All of the
aforementioned information is hereinafter called "Proprietary Information." By
way of illustration, but not limitation, Proprietary Information includes
"Developments (as herein defined), data and know-how, techniques, marketing
plans and opportunities, cost and pricing data, strategies, forecasts and
customer lists. By way of illustration, but not limitation, "Developments"
includes developments, improvements, discoveries, trade secrets, technologies,
processes, research, methods, procedures, designs, models, testing systems,
research, assays, compounds, molecules, organisms, gene sequences, cell lines,
complement inhibitors and other re-agents (including the composition thereof),
uses of any of the foregoing, computer software and programs (including source
code and related documentation), test and/or experimental data and results,
specifications, laboratory notebooks, drawings and technical information and
materials.
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D. As used herein, the period of my employment includes any time in which I
may be retained by the Company as a consultant.
In consideration of my employment or continued employment, as the case may
be, and the compensation received by me from the Company from time to time, I
hereby agree as follows:
1. Prior to entering the employ of the Company, I have terminated
employment with one or more prior employers. I represent and warrant that I
have full right, power and authority to execute the terms of this
Agreement; this Agreement has been duly executed by Executive and such
execution and the performance of this Agreement by Executive does not
result in any conflict, breach or violation of or default under any other
agreement or any judgment, order or decree to which I am a party or by
which I am bound. I acknowledge and agree that any material breach of the
representations set forth in this paragraph will constiute Cause under
Section 7(a)(3) of the accompanying Employment Agreement.
2. All Proprietary Information shall be the sole property of the
Company and its assigns, and the Company and its assigns shall be the sole
owner of all patents, copyrights, trade secrets and trademarks and other
rights in connection therewith. I hereby assign to the Company any and all
rights I may have or acquire in all Proprietary Information. At all times,
both during my employment by the Company and after its termination, I will
keep in confidence and trust all Proprietary Information, and I will not
use or disclose any Proprietary Information without the written consent of
the Company, except as may be necessary in the ordinary course of
performing my duties as an employee of the Company.
3. During the period of my employment by the Company I will not,
without the Company's express written consent, engage in any employment or
activity in any competitive business, other than for the Company.
4. I will promptly disclose to the Company, or any persons designated
by it, all Developments, improvements, processes, techniques, know-how,
data and Developments made or conceived or reduced to practice or learned
by me, either alone or jointly with others, during the period of my
employment by the Company which are related to or useful in the business of
the Company, or result from use of premises owned, leased or contracted for
by the Company (all said Developments, improvements, processes, techniques,
know-how, data and documentation, shall be collectively hereinafter called
"Know-how").
5. I agree that all Know-how shall be the sole property of the Company
and its assigns, and the Company and its assigns shall be the sole owner of
all patents, copyrights, trademarks and other rights in connection
therewith. I hereby assign to the Company any rights I may have or acquire
in all Know-how.
I understand that this paragraph 5 does not apply to Know-how for
which no equipment, supplies, facility or trade secret information of the
Company was used and which was developed entirely on my own time, and (a)
which does not relate (1) to
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the business of the Company or (2) to the Company's actual or demonstrably
anticipated research or development, or (b) which does not result from any
work performed by me for the Company. I agree to execute any documents
requested by the Company to effectuate the intent of this paragraph.
6. The Company shall have the right (but shall not be obligated) to
use, assert and/or apply for patent, copyright, trademark and other
statutory or common law protection for any or all Know-how in any and all
countries. I agree to assist the Company in every reasonable way without
additional compensation (but at the Company's expense), to apply for,
prosecute and obtain, and from time to time enforce, defend and protect,
any and all patent, copyright, trademark and other statutory or common law
protection for any of the Know-how in any and all countries. I shall,
whether during or following my employment by the Company, at the Company's
request and expense, but without additional compensation to me, execute any
and all assignments, transfers, applications and other papers covering any
Know-how which may be considered necessary or helpful by the Company in
furtherance of the foregoing and/or to accomplish the assignment, transfer
and/or license of any Know-how to persons designated by the Company.
7. In the event of the termination of my employment by me or by the
Company for any reason, I will deliver to the Company all documents,
materials, compounds, samples, plasmids, proteins, probes and data of any
nature pertaining to my work with the Company and I will not take with me
any documents or data of any description or any reproduction of any
description containing or pertaining to any Proprietary Information, and
Know-how.
8. I represent that to my actual knowledge my performance of all the
terms of this Agreement and as an employee of the Company does not and will
not breach any agreement to keep in confidence proprietary information
acquired by me in confidence or in trust prior to my employment by the
Company.
9. I understand as part of the consideration for the offer of
employment extended to me by the Company and of my employment or continued
employment by the Company, that, to my actual knowledge, I have not brought
and will not bring with me to the Company or use in the performance of my
responsibilities at the Company any materials or documents of a former
employer which are not generally available to the public, unless I have
obtained written authorization from the former employer for their
possession and use.
Accordingly, this is to advise the Company that, to my actual
knowledge, the only materials or documents of a former employer which are
not generally available to the public that I have brought or will bring to
the Company or have used or will use in my employment are identified on
Schedule A attached hereto, and, as to each such item, I represent that I
have obtained prior to the effective date of my employment with the Company
written authorization for their possession and use in my employment with
the Company.
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I also understand that, in my employment with the Company, I am not to
breach any obligation of confidentiality that I have to former employers,
and I agree that I shall fulfill all such obligations during my employment
with the Company.
10. In the event that any provision herein would be held to be
invalid, prohibited or unenforceable in any jurisdiction for any reason
(including, but not limited to, any provision which may be held
unenforceable because of the scope, duration or area of its applicability),
unless narrowed by construction, this Agreement shall, as to such
jurisdiction, be construed as if such invalid, prohibited or unenforceable
provision had been more narrowly drawn so as not to be invalid, prohibited
or unenforceable (and the court making any such determination as to any
provision shall have the power to modify such scope, duration or area or
all of them, and such provision shall then be applicable in such modified
form in such jurisdiction only). If, notwithstanding the foregoing, any
provision herein would be held to be invalid, prohibited or unenforceable
in any jurisdiction for any reason, such provision, as to such
jurisdiction, shall be ineffective to the extent of such invalidity,
prohibition or unenforceability, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of
such provision in any other jurisdiction.
11. By reason of the fact that irreparable harm would be sustained by
the Company in the event that there is a breach by me of any of the terms,
covenants and agreements set forth herein, in addition to any other rights
that the Company may otherwise have, the Company shall be entitled to apply
to any court of competent jurisdiction and obtain specific performance
and/or injunctive relief against me, without making a showing that monetary
damages would be inadequate and without the requirement of posting any bond
or other security whatsoever, in order to enforce or prevent any breach or
threatened breach of any of the terms, covenants and agreements set forth
herein, and I will not object thereto.
12. This Agreement shall be binding upon me, my heirs, executors,
assigns and administrators and shall inure to the benefit of the Company,
its successors and assigns.
This Agreement shall be governed in all respects by the laws of the State
of Delaware, applicable to agreements made and to be performed solely therein.
By: /s/ XXXXX X. XXXXX
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Xxxxx X. Xxxxx, M.D.
Dated: 10/23/97
ACCEPTED AND AGREED TO:
ALEXION PHARMACEUTICALS, INC.
By: /s/ XXXXXXX XXXX
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Xxxxxxx Xxxx
Title: President/CEO
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