Exhibit 99(e)(11)
CONSULTING AND NONCOMPETITION AGREEMENT
CONSULTING AND NONCOMPETITION AGREEMENT (the "Agreement", dated as of
December 2, 1999 (the "Effective Date"), between C. XXXX XXXXXX, an individual
(the "Consultant") and U.S. BIOSCIENCE, INC., a Delaware corporation (the
"Company"), a wholly owned subsidiary of MedImmune, Inc. ("MedImmune").
WHEREAS, Consultant has been employed by the Company as its President
an Chief Executive Officer;
WHEREAS, the Company desires to enter into a consulting relationship
with Consultant upon the terms and conditions set forth in this Agreement, and
Consult wishes to accept such consulting relationship upon the terms and
conditions set forth in this Agreement; and
WHEREAS, as Consultant has had and will continue to have access to
valuable trade secrets and other proprietary information of the Company, the
Company desires to, bind Consultant to certain restrictive covenants and
Consultant accepts being bound by such restrictions upon the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of and in reliance upon the foregoing
the covenants, obligations and agreements contained herein, the Company and
Consultant hereby agree as follows:
1. Consulting Agreement.
(a) CONSULTING PERIOD. Subject to early termination as
provided in Section 1(c) hereof, the term of Consultant's status as a consultant
to the Company will begin on the Effective Date and will end on November 30,
2000 (unless the term is extended by mutual agreement of the parties) (the
"Consulting Period").
(b) CONSULTING SERVICES. During the Consulting Period,
Consultant agrees to provide advisory and consulting services to the Company
with respect to matters related to the conduct of the Company's business in the
field of oncology, as well as such other reasonable and appropriate duties as
may be mutually agreed to by the Company and Consultant (the "Consulting
Services"); PROVIDED, HOWEVER, that such services and duties shall exclude the
field of viral vectors and vaccines, including oncologic, applications thereof,
for which Consultant has exclusive Obligations to Aviron a Delaware corporation
("Aviron"). During the Consulting Period, Consultant shall bi available to
perform the Consulting Services on an as-needed basis.
(c) TERMINATION OF CONSULTANCY. The Consulting Period may be
terminated prior to November 30, 2000 (i) voluntarily by Consultant, (ii) by the
Company for Cause (as defined below), or (iii) upon the death or Disability (as
defined below) of Consultant. In the event the Consulting Period is terminated
in accordance with the foregoing, the Company will no longer be obligated to pay
or provide Consultant with the payments and benefits set forth in Sections 3(a),
(c) and (d) hereof For purposes of this Agreement, "Cause" shall mean (i)
Consultants willful and substantial misconduct, (ii) Consultants repeated, after
written notice
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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, MedImmune or any subsidiary or affiliate thereof, (iii) Consultant's
material breach of any of the covenants contained in Section 2 hereof, (iv) the
commission by Consultant of any material fraudulent act with respect to the
business and affairs of the Company, MedImmune or any subsidiary or affiliate
thereof or (v) Consultant's conviction of (or plea of nolo contendere) to a
crime constituting a felony. For purposes of this Agreement, "Disability" shall
mean Consultant being incapacitated or disabled by accident, sickness or
otherwise, so as to render Consultant mentally or physically incapable of
performing the services required to be performed by Consultant under this
Agreement for a period that would entitle Consultant 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.
2. Restrictive Covenants.
(a) CONFIDENTIALITY. Consultant will not, at any time
following the date hereof, disclose to any person, firm, corporation or other
business entity, except as require by law, an, non-public information concerning
the business, products, clients or affairs of the Company, MedImmune or any
subsidiary or affiliate thereof for any reason or purpose whatsoever, nor will
Consultant 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, MedImmune or any subsidiary or affiliate thereof
(b) NONCOMPETITION. Consultant hereby acknowledges and
recognizes that, during his period of employment for and consultancy with the
Company, Consultant has been and will be privy to trade secrets and confidential
proprietary information critical to the business of the Company and MedImmune.
Accordingly, Consultant agrees that, in consideration of the benefits to be
received , by Consultant hereunder, Consultant will not, (i) from and after the
date hereof until November 30, 2001, directly or indirectly engage in the field
of oncology (excluding vaccines and viral vectors), whether as an officer,
director, owner, employee, partner, affiliate or otherwise~ or assist others in
engaging the field of oncology (excluding vaccines and viral vectors) in any
manner or, (ii) from and after the date hereof until November 30, 2003, directly
or indirectly engage in chemotherapy or radiation therapy protection in the
field of oncology, whether as an officer, director, owner, employee, partner,
affiliate or otherwise, or assist others in engaging in chemotherapy or
radiation therapy protection in the field of oncology in any manner. The
Consultant represents to the Company that notwithstanding his on-going role as
an executive officer of Aviron, to which the Company has no objection, he will
continue to be bound by the provisions of this Agreement.
(c) NONSOLICITATION. From and after the date hereof until
November 30, 2003, Consultant may not, on behalf of himself or an entity that
Consultant is employed by or has an interest in as a director, owner, partner,
affiliate or otherwise, hire employees of MedImmune, the Company or any
subsidiary or affiliate thereof without MedImmune's prior written approval.
(d) ACKNOWLEDGEMENT. Consultant understands that the foregoing
restrictions may limit the ability of Consultant to cam a livelihood Mi a
business similar to the business of the Company, but nevertheless believes that
Consultant has received and will receive sufficient
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consideration and other benefits hereunder to justify such restrictions which,
in any event (given the education, skills and ability of Consultant), Consult
believes would not prevent Consultant from earning a living.
(e) INVENTIONS. Consultant will promptly disclose, grant and
assign to the Company, for its sole use and benefit, any and all inventions,
improvements, technical information and suggestions within the field of the
Consulting Services and conceived or developed in the course of providing the
Consulting Services to the Company or MedImmune, 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, excluding any invention, improvement, copyright, trademark or
technical information created by Consultant within the scope of his employment
by Aviron. In connection therewith:
(i) Consultant 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 way 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) Consultant shall render to the Company, at its
expense (including a reasonable payment for the time involved in case Consultant
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 o copyrights and in any litigation in which the
Company may be involved relating to any, such patents, inventions, improvements
or technical information.
(f) SEVERABILITY. It is the desire and intent of the parties
hereto that the provisions of this Section 2 enforceable to the Meg extent
permissible under the laws an public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, to the extent that a restriction
contained in this Section 2 is more restrictive than permitted by the laws of
any jurisdiction where this Section 2 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 bow revised accordingly herein. In addition, 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,
(g) ENFORCEMENT. Consultant acknowledges and understands that
the provisions of the covenants contained in this Section 2, 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 Section 2 would cause the Company irreparable harm, In
the event of a breach or threatened breach by Consultant of the provisions of
this Section 2, (i) the Company %ill no longer have any obligation to pay
Consultant any further Noncompetition Fees under Section 3(b) hereof, and all
Noncompetition
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Fees previously paid to Consultant shall be refunded to the Company, and (ii)
the Company will be entitled to seek legal remedies, including an injunction
restraining Consultant from such breach. Nothing herein contained will be
construed as prohibiting the Company from pursuing any other remedies available
for an) breach or threatened breach of this Agreement.
3. COMPENSATION.
(a) CONSULTING FEES. During the Consulting Period, the Company
will pay Consultant a fee of $1,000 per month (the "Consulting Fee"), contingent
upon the Consultant continuing to provide the Consulting Services set forth in
Section 1(b) hereof.
(b) NONCOMPETITION FEES. The Company will pay Consultant an
aggregate fee of $310,905 (the "Noncompetition Fee"), to be paid in equal annual
installments of $103,635 each on the Effective Date, December 1, 2000 and
December 1, 2001. The Noncompetition Fee will be contingent upon the Consultant
continuing to honor in accordance with the terms and restrictive covenants set
forth in Section 2 hereof.
(c) MEDICAL BENEFITS. During the Consulting Period, Consultant
will be eligible for continuation coverage for former employees under the
Consolidated Omnibus Budget Reconsilliation Act of 1985, as amended and the
regulations thereunder ("COBRA"), following his termination of employment with
the Company, the cost of which will be shared by Consultant and the Company,
with Consultant paying an amount equal to the costs he would have incurred under
such plans had he remained an employee of the Company (with such amounts to be
deducted from the Consulting Fee) and the Company paying the remaining costs,
follow the expiration of the Consulting Period, Consultant will have the option
of pa*, g, the entire cost for the COBRA continuation coverage or canceling the
COBRA continuation coverage. The COBRA continuation coverage will be provided by
the Company's medical plans or any successor thereof and such coverage will be
consistent with the current level of coverage maintained for Consultant.
(d) BUSINESS EXPENSES. All reasonable and necessary business
expenses incurred by Consultant in the performance of his services shall be
promptly reimbursed by the Company in accordance with the Company's standard
expense reimbursement policies applicable to independent contractors, upon
presentation of appropriate vouchers and receipts. All such expenses must be
approved in advance by the Company.
4. ALTERNATE EMPLOYMENT. In the event that Consultant accepts full-time
employment with another employer during the Consulting Period, Consultant will
continue to receive the benefits set forth in Section 3(a), (b) and (d) hereof
(but will not be entitled to continued medical coverage under Section 3(c)
hereof), provided Consultant continues to perform the Consulting Services
required under Section 1(b) thereof and continues to honor the restrictive
covenants set forth in Section 2 hereof.
5. MISCELLANEOUS.
5.1 STATUS. Consultant acknowledges and agrees that his
status at all times shall be that of an independent contractor, and that he
may not, at any time, act as a representative for or on behalf of the Company
for any purpose or transaction, and may not bind
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or otherwise obligate the Company in any manner whatsoever without obtaining the
prior written approval of the Company therefor. Except as provided herein,
Consultant hereby waives any rights as an employee or deemed employee of the
Company or any of its affiliates. The parties hereby acknowledge and agree that
the Consulting Fees shall represent fees for his Consulting Services as an
independent contractor, and that the Consulting Fees and the Noncompetition Fees
shall be paid without any deductions or withholdings taken therefrom for taxes
or any other purpose. Consultant further acknowledges that the Company makes no
warranties as to any tax consequences regarding payment of such Consulting Fees
or the Noncompetition Fees, and specifically agrees that the determination of
any tax liability or other consequences of the payment set forth above is his
sole and complete responsibility and that he will pay all federal, state and
local taxes, if any, assessed on such payments, but will not be responsible for
any taxes or penalties imposed by any taxing authority against the Company for
its failure to properly report Consultant's earnings under this Agreement.
5.2 WAIVER. Failure of the Company at any time to enforce any
provision of this Agreement or to require performance by Consultant of any
provisions hereof shall in no way affect the validity of this Agreement or any
part hereof or the right of the Company thereafter to enforce its night
hereunder, nor shall it be taken to constitute a condonation or waiver by the
Company of that default or any other or subsequent default or breach.
5.3 NOTICE. All notices or other communications hereunder
shall not be binding on either party hereto unless in writing, and delivered to
the other party thereto at the following address:
If to the Company: MedImmune, Inc.
00 Xxxx Xxxxxxx Xxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx T, Xxxxxxxxx, PILD.
Chairman and Chief Executive Officer
With a copy to: Xxxxxxxxx X. Xxxxxx, Esq.
Xxxxx Xxxxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
If to Consultant: C. Xxxx Xxxxxx
0 Xxxxxxxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Notices shall be deemed duly delivered upon hand delivery thereof at the above
addresses, one day after deposit with a nationally recognized overnight deliver)
company, or three days after deposit thereof in the United States mails, postage
prepaid certified or registered mail. Either party may change its address for
notice by delivery of written notice thereof in the manner provided.
5.4 ASSIGNMENT. No rights of any kind under this Agreement
shall, without the prior consent of the Company, be transferable to or
assignable by Consultant or any other
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person, or, be subject to alienation, encumbrance, garnishment. attachment,
execution or levy of any kind, voluntary or involuntary. This Agreement shall be
binding upon and shall inure to the benefit of the Company and its successors
and assigns.
5.5 GOVERNING Law. This Agreement shall be governed by and
construed in accordance with the substantive laws of the State of Maryland,
without regard to the conflicts of law principles thereof.
5.6 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same document.
5.7 HEADINGS. The headings in this Agreement are intended
solely for convenience of reference and shall be given no effect in the
construction or interpretation of this Agreement.
5.8 ENTIRE AGREEMENT. The parties hereto acknowledge that they
have read this agreement, understand it, and agree to be bound by its terms.
This Agreement entered into by the parties as of the date hereof constitutes
their entire understanding and agreement concerning the subject matter hereof.
All negotiations by the parties hereto concerning the subject matter hereof are
merged into this Agreement, and there are no representations, warranties,
covenants, understandings or agreements, oral or otherwise, in relation thereto
by the parties hereto other than those incorporated herein.
INTENDING TO BE LEGALLY BOUND, the parties or their duly
authorized representatives have signed this Agreement as of the date first above
written.
U.S. BIOSCIENCE, INC.
By:
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Its:
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CONSULTANT
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