1
Exhibit 10.17
EMPLOYMENT AGREEMENT
--------------------
THIS EMPLOYMENT AGREEMENT (the "Agreement"), made this 30th day of
March, is entered into by The Medicines Company, a Delaware corporation with its
principal place of business at Xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx
00000 (the "Company"), and Xxxxx Xxxxx, residing at Xxx Xxxxx Xxxxx, Xxx Xxxxx,
Xxx Xxxxxx 00000 (the "Employee").
The Company desires to employ the Employee, and the Employee desires to
be employed by the Company. In consideration of the mutual covenants and
promises contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the parties hereto,
the parties agree as follows:
1. TERM OF EMPLOYMENT. The Company hereby agrees to employ the
Employee, and the Employee hereby accepts employment with the Company, upon the
terms set forth in this Agreement, for the period commencing on April 1, 2000
(the "Commencement Date") and ending on April 1, 2001 (such period, as it may be
renewed as provided in the following sentence, the "Employment Period"), unless
sooner terminated in accordance with the provisions of Section 4. The Employment
Period shall automatically be renewed for successive one (1) year periods unless
either the Employee or the Company provide written notice of non-renewal to the
other party at least ninety (90) days prior to the expiration of the then
current term.
2. TITLE; CAPACITY. The Employee shall serve as Senior Vice President
or in such other position as the Company or its Board of Directors (the "Board")
may determine from time to time. The Employee shall be based at 0 Xxxxxx Xxx,
Xxxxxxxxxx, Xxx Xxxxxx. The Employee shall be subject to the supervision of, and
shall have such
1
2
authority as is delegated to him by, the Board or such officer of the Company as
may be designated by the Board.
The Employee hereby accepts such employment and agrees to undertake the duties
and responsibilities inherent in such position and/or such other duties and
responsibilities as the Board or its designee shall from time to time reasonably
assign to him. The Employee agrees to devote twelve (12) working days per month
to the business and interests of the Company during the Employment Period. The
Employee agrees to abide by the rules, regulations, instructions, personnel
practices and policies of the Company and any changes therein which may be
adopted from time to time by the Company. The Employee acknowledges receipt of
copies of all such rules and policies committed to writing as of the date of
this Agreement.
3. COMPENSATION AND BENEFITS.
3.1 SALARY. The Company shall pay the Employee, in
semi-monthly installments, an annual base salary of $150,000 for the one-year
period commencing on the Commencement Date. Such salary shall be subject to
adjustment thereafter as determined by the Board, but shall not be reduced below
the amount set forth above without the Employee's consent.
3.2 BONUS. The Employee shall be eligible to receive a bonus
of up to 40% of his base salary upon the achievement of annual objectives to be
approved by the CEO of the Company after discussion with the Employee. The Board
shall review the Employee's performance and determine the amount of the bonus,
if any, to be paid to the Employee.
3.3 REIMBURSEMENT OF EXPENSES. The Company shall reimburse the
Employee for all reasonable travel, entertainment and other expenses incurred or
paid by the Employee in connection with, or related to, the performance of his
duties,
2
3
responsibilities or services under this Agreement, upon presentation by
the Employee of documentation, expense statements, vouchers and/or such other
supporting information as the Company may request.
4. EMPLOYMENT TERMINATION. The employment of the Employee by the
Company pursuant to this Agreement shall terminate upon the occurrence of any of
the following:
4.1 EXPIRATION OF EMPLOYMENT PERIOD. Expiration of the
Employment Period in accordance with Section 1.
4.2 TERMINATION FOR CAUSE. At the election of the Company,
immediately upon written notice by the Company to the Employee, for "cause" as
determined by the Board. For purposes of this Section 4.2, "cause" for
termination shall be deemed to exist only if any of the following shall have
occurred:
(a) the Employee's conviction of any crime (whether or not involving
the Company) which constitutes a felony in the jurisdiction involved (other than
unintentional motor vehicle felonies);
(b) any act of theft, fraud, misappropriation of funds or embezzlement by the
Employee, in connection with his work with the Company, or any other act or acts
of dishonesty on the part of the Employee resulting or intended to result
directly or indirectly in personal gain or enrichment of the Employee at the
expense of the Company;
(c) the Employee's failure to perform in all material respects the services
required to be performed pursuant to Section 2 of this Agreement, PROVIDED THAT
if such failure is capable of being corrected, such failure continues
uncorrected for a period of thirty (30) days after the Employee shall have
received written notice from the Company stating with reasonably specificity the
nature of such failure;
3
4
(d) the Employee's breach of Sections 6 or 7 of this Agreement or any material
breach of the Invention and Nondisclosure Agreement dated of even date herewith
between the Employee and the Company (the "Nondisclosure Agreement"); (e) the
Employee's excessive use of alcohol and/or drugs which is judged by the CEO and
the Board to materially interfere with the performance of his duties; or (f) any
misconduct by the Employee which in the reasonable judgment of the CEO and the
Board would jeopardize the success of the Company.
4.3 DEATH OR DISABILITY. Thirty (30) days after the death or
disability of the Employee. As used in this Agreement, the term "disability"
shall mean the inability of the Employee, due to a physical or mental
disability, for a period of ninety (90) days, whether or not consecutive, during
any 360-day period to perform the services contemplated under this Agreement. A
determination of disability shall be made by a physician satisfactory to both
the Employee and the Company, PROVIDED THAT if the Employee and the Company do
not agree on a physician, the Employee and the Company shall each select a
physician and these two together shall select a third physician, whose
determination as to disability shall be binding on all parties.
4.4 VOLUNTARY TERMINATION. At the election of either party,
upon written notice of termination given at least ninety (90) days prior to the
end of the then current Employment Period.
4.5 VOLUNTARY TERMINATION FOR "GOOD REASON." At the election
of the Employee, for "Good Reason," which shall be deemed to exist only if the
Company fails to comply in any material respect with the provisions of Section
3, other than an isolated, insubstantial and inadvertent failure which is
remedied by the Company promptly after receipt of notice thereof given by the
Employee.
5. EFFECT OF TERMINATION.
4
5
5.1 TERMINATION FOR CAUSE OR AT ELECTION OF EMPLOYEE. In the
event the Employee's employment is terminated for cause pursuant to Section 4.2,
or at the election of the Employee pursuant to Section 4.4, the Company shall
pay to the Employee all sums otherwise payable to him under Section 3 through
the last day of his actual employment by the Company.
5.2 TERMINATION FOR DEATH OR DISABILITY. If the Employee's
employment is terminated by death or because of disability pursuant to Section
4.3, the Company shall pay to the estate of the Employee or to the Employee, as
the case may be, all sums which would otherwise be payable to the Employee under
Section 3 up to the end of the month in which the termination of his employment
because of death or disability occurs.
5.3 TERMINATION FOR GOOD REASON OR AT ELECTION OF COMPANY. In
the event that Employee's employment is terminated by the Employee for "Good
Reason" pursuant to Section 4.5, or at the election of the Company pursuant to
Section 4.4, the Company shall continue to pay to the Employee the salary set
forth in Section 3.1, and shall continue to make available to the Employee the
benefits set forth in Section 3.3, excluding vacation days and bonus sums under
said Section 3.3 accrued during this period, until the later of (a) the first
anniversary of the Commencement Date of this Agreement, or (b) three (3) months
after the date of termination, but in no event later than such date as the
Employee shall have commenced full-time employment with a new employer.
5.4 SURVIVAL. The provisions of Sections 6 and 7 shall survive
the termination of this Agreement.
6. NON-COMPETE.
5
6
6.1 NON-COMPETE RESTRICTIONS During the Employment Period and
for a period of one (1) year after the termination or expiration thereof for any
reason, the Employee will not directly or indirectly:
(a) as an individual proprietor, partner, stockholder, officer, employee,
director, joint venturer, investor, lender, or in any other capacity
whatsoever (other than as the holder of not more than an one percent (1%)
equity interest in any publicly held company), engage in the business of
developing, producing, marketing or selling (or assist any other person
engaging in the business of developing, producing, marketing or selling)
any Competitive Products. For this purpose, "Competitive Products" shall
mean any drugs or devices used to diagnose, prevent or treat arterial or
venous thrombosis [To Be Discussed]; or
(b) solicit, divert or take away, or attempt to divert or to take away, the
business or patronage of any of the clients, customers or accounts, or
prospective clients, customers or accounts, of the Company.
6.2 LIMITATIONS. Notwithstanding the provisions of Section
6.1, it is recognized that the Employee's primary experience is in the
pharmaceutical industry, and that his ability to earn a livelihood is likely to
be dependent on future employment in such industry. Accordingly, the Company
agrees that the employment of the Employee by a pharmaceutical company in a
position in which he assumes responsibility for multiple products, most of which
are not Competitive Products, shall not be considered a violation of Section
6.1, so long as (i) the Employee's responsibilities in such position are not
directed principally to Competitive Products, (ii) the portfolio of the
pharmaceutical company which hires the Employee must contain the Competitive
Products prior to the hiring of the Employee, and (iii) the pharmaceutical
company which hires the Employee has been in existence for at least five (5)
years prior to hiring the Employee.
6
7
6.3 EXTENSION. If the Employee violates the provisions of
Section 6.1, the Employee shall continue to be bound by the restrictions set
forth in this Section 6 until a period of one year has expired without any
violation of such provision.
6.4 CUTBACK CLAUSE. If any restriction set forth in this
Section 6 is found by any court of competent jurisdiction to be unenforceable
because it extends for too long a period of time or over too great a range of
activities or in too broad a geographic area, it shall be interpreted to extend
only over the maximum period of time, range of activities or geographic area as
to which it may be enforceable.
6.5 EQUITABLE REMEDIES. The restrictions contained in this
Section 6 are necessary for the protection of the business and goodwill of the
Company and are considered by the Employee to be reasonable for such purpose.
The Employee agrees that any breach of Section 6.1 is likely to cause the
Company substantial and irrevocable damage and therefore, in the event of any
such breach, the Employee agrees that the Company, in addition to such other
remedies which may be available, shall be entitled to specific performance and
other injunctive relief.
7. NON-SOLICITATION.
7.1 NON-SOLICITATION RESTRICTIONS. While the Employee is
employed by the Company and for a period of one (1) year after the termination
or cessation of such employment for any reason, the Employee will not directly
or indirectly recruit, solicit or hire any employee of the Company, or induce or
attempt to induce any employee of the Company to terminate his/her employment
with, or otherwise cease his/her relationship with, the Company (other than
Xxxxxx Xxxxx, Xxxx Xxxx, or Xxxxxxx Xxxxxxx). If the Employee violates the
provisions of this Section 7.1, the Employee shall continue to be
7
8
bound by the restrictions set forth in this Section 7.1 until a period of one
(1) year has expired without any violation of such provisions.
7.2 CUTBACK CLAUSE. If any restriction set forth in Section
7.1 is found by any court of competent jurisdiction to be unenforceable because
it extends for too long a period of time or over too great a range of activities
or in too broad a geographic area, it shall be interpreted to extend only over
the maximum period of time or range of activities as to which it may be
enforceable.
7.3 EQUITABLE REMEDIES. The restrictions contained in Section
7.1 are necessary for the protection of the business and goodwill of the Company
and are considered by the Employee to be reasonable for such purpose. The
Employee agrees that any breach of Section 7 is likely to cause the Company
substantial and irrevocable damage and therefore, in the event of any such
breach, the Employee agrees that the Company, in addition to such other remedies
which may be available, shall be entitled to specific performance and other
injunctive relief.
8. OTHER AGREEMENTS. Employee hereby represents that he is not bound by
the terms of any agreement with any previous employer or other party to refrain
from using or disclosing any trade secret or confidential or proprietary
information in the course of his employment with the Company or to refrain from
competing, directly or indirectly, with the business of such previous employer
or any other party. Employee further represents that his 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, knowledge or
data acquired by him in confidence or in trust prior to his employment with the
Company.
9. NOTICES. All notices required or permitted under this Agreement
shall be in writing and shall be deemed effective upon personal delivery or upon
deposit in the
8
9
United States Post Office, by registered or certified mail, postage prepaid,
addressed to the other party at the address shown above, or at such other
address or addresses as either party shall designate to the other in accordance
with this Section 9.
10. PRONOUNS. Whenever the context may require, any pronouns used in
this Agreement shall include the corresponding masculine, feminine or neuter
forms, and the singular forms of nouns and pronouns shall include the plural,
and vice versa.
11. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties and supersedes all prior agreements and understandings,
whether written or oral, relating to the subject matter of this Agreement.
Reference is made to the following separate agreements between the Employee and
the Company dated of even date herewith which cover additional agreements
between the parties: the Nonstatutory Stock Option Agreement, the Noncompetition
and Nonsolicitation Agreement and the Invention and Nondisclosure Agreement.
12. AMENDMENT. This Agreement may be amended or modified only by a
written instrument executed by both the Company and the Employee.
13. GOVERNING LAW. This Agreement shall be construed, interpreted and
enforced in accordance with the laws of the Commonwealth of Massachusetts.
14. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of both parties and their respective successors and
assigns, including any entity with which or into which the Company may be merged
or which may succeed to its assets or business, provided, however, that the
obligations of the Employee are personal and shall not be assigned by him.
15. MISCELLANEOUS.
15.1 NO WAIVER. No delay or omission by the Company in
exercising any right under this Agreement shall operate as a waiver of that or
any other right. A
9
10
waiver or consent given by the Company on any one occasion shall be effective
only in that instance and shall not be construed as a bar or waiver of any right
on any other occasion.
15.2 CAPTIONS. The captions of the sections of this Agreement
are for convenience of reference only and in no way define, limit or affect the
scope or substance of any section of this Agreement.
15.3 ENFORCEABILITY. In case any provision of this Agreement
shall be invalid, illegal or otherwise unenforceable, the validity, legality and
enforceability of the remaining provisions shall in no way be affected or
impaired thereby.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year set forth above.
THE MEDICINES COMPANY
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Title: CEO
------------------------------
/s/ Xxxxx X. Xxxxx
------------------------------------
Name
10
