Exhibit 10.134
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT, dated as of March 26, 2002, (the "Effective Date"), is by and
among XXXXX XXXXXXXXX (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 the
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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 hereof
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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." Notwithstanding the foregoing, at any time prior to December 31, 2003 the Company may terminate
the Employment Period and convert Employee's status from an employee to a consultant for a period beginning
on the date of such conversion and ending on December 31, 2003 (a "Company Conversion"). At any time after
October 31, 2002 but prior to December 31, 2003, the Employee may terminate the Employment Period and
convert Employee's status from an employee to a consultant for a period beginning on the date of such
conversion and ending on December 31, 2003 (an "Employee Conversion"). The period of the Employee's
service under this Agreement as a consultant following a Company Conversion or an Employee Conversion is
referred to hereafter as the "Consulting Period."
3. Duties and Responsibilities. During the Employment Period, the Employee will be
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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 and 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
(the "Employment Services"). During the Consulting Period, Consultant will provide such reasonable
services as requested by the Company or MedImmune (the "Consulting Services").
4. Time to be Devoted to Service. During the Employment Period, except for vacation
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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 and MedImmune. Notwithstanding the foregoing, the Employee may maintain his laboratory at
Stanford University provided the Employee performs at least 95% of the Employment Services on-site at the
Company's facilities or at a site requested by the Company. 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. During the Consulting Period, the Employee shall be available
to perform the Consulting Services to the extent reasonably requested by the Company or MedImmune, after
reasonable advance notice to the Employee, provided that in no event will the Employee be required to
devote more than 20% of his business time to performance of the Consulting Services. During the Consulting
Period, the Employee will be entitled to become an employee of another entity, provided such employment is
not in breach of the covenants set forth in Sections 8, 9 or 10 hereof and does not interfere with his
ability to perform the Consulting Services hereunder.
5. Compensation; Reimbursement.
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(a) Settlement of Executive Severance 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 January 15, 2002 (the "Aviron Options"), 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 Executive Severance Agreement between the Employee and the Company, dated October 23,
2000, (the "Executive Severance 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. During the Employment Period, the Company will pay to the Employee
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an annual base salary of not less than the amount specified as the Initial Base Salary on Annex A, payable
in accordance with the regular payroll practices of the Company. 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. During the Consulting Period, the Company shall pay the Employee a fee of (i) $2,000 per full day
for Consulting Services performed on-site at the facilities of the Company or MedImmune or at a site
requested by the Company, (ii) $1,000 per day payment for a partial day of Consulting Services performed
on-site at the Company's facilities or at a site requested by the Company and (iii) $250 per hour for
Consulting Services performed at a location of the Employee's choosing (together, the "Consulting Fees").
(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 for
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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 Options. During the Employment Period, the Employee may be eligible for
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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"). Upon a Company Conversion or an Employee Conversion, any stock options to
purchase shares of MedImmune stock, other than the Aviron Options, (the "MedImmune Options"), to the extent
vested at the time of conversion, shall remain exercisable for 90 days following conversion. Any MedImmune
Options not vested at the time of conversion shall be forfeited. During the Consulting Period, Employee
shall be deemed to be in "continuous service" to the Company, as such terms are defined in the stock option
agreements for the Aviron Options, for purposes of continued exercisability of such options.
(f) Benefits. During the Employment Period, in addition to the salary and bonuses
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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 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. During the
Consulting Period, the Employee will not be eligible for any benefits, other than COBRA continuation
coverage at Employee's expense as required by applicable law.
(g) Expenses. During the Employment Period and the Consulting Period, the Company
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will reimburse the Employee, in accordance with the practices in effect from time to time for other
officers, staff personnel or consultants of the Company, as the case may be, 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 and subject to Section 2 above.
.. (b) Termination without Cause. In the event that the Employment Period and Employee's
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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 with respect to his employment with the Company 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
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 under the following circumstances: (A) in the event that the
Termination Date is during the period beginning 90 days after the date of Aviron's acquisition by
MedImmune (the "Merger Date") and ending one year after the Merger Date, severance equal to four
weeks of the Employee's then-current base salary (payable in accordance with the Company's regular
payroll practices); or (B) in the event the Termination Date occurs more than one year following
the Merger Date, severance determined under the applicable severance policy of MedImmune in effect
at the time of termination, and
(vi) in the event the Termination Date is prior to the first anniversary of 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.
Notwithstanding the foregoing, the Company's termination of the Employment Period and Employee's employment
hereunder without Cause prior to December 31, 2003 shall be treated as a Company Conversion providing for
the Employee to continue in the service of the Company as a consultant in accordance in the provisions of
this Agreement.
For purposes of this Section 6, "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 8, 9, or 10 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 contendere to)
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a crime constituting a felony.
(c) Other Termination. In the event that the Employment Period and Employee's
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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. Termination of Consulting Period.
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(a) At-Will Termination. The Employee may terminate the Consulting Period and
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Employee's service hereunder at any time and for any reason, subject to the provisions of Sections 7(b)
below. The Company may only terminate the Consulting Period and Employee's service hereunder for Cause,
subject to the provisions of Sections 7(b) below.
(b) Consequences of Termination. In the event that the Consulting Period and
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Employee's service hereunder is terminated by the Company or MedImmune for Cause, by the Employee for any
reason or on account of death or Disability, 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) any unpaid Consulting Fees
provided for in Section 5(b) hereof up to the Termination Date, computed on a pro rata basis to the
Termination Date, and (iii) 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 Section 7, "Cause"
shall mean (i) the Employee's willful and substantial misconduct, (ii) the Employee's repeated and
substantial neglect of duties or failure to act after written notice and reasonable opportunity to cure
from the Company 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 8, 9, or 10 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 contendere to)
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a crime constituting a felony.
8. 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.
9. Restrictive Covenants.
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(a) NonCompetition. The Employee hereby acknowledges and recognizes that, during
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the Employment Period and the Consulting Period, the Employee will be privy to trade secrets and
confidential proprietary information critical to the business of MedImmune, the Company, or any subsidiary
or affiliate thereof 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 and the
Consulting 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 or affiliate 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 be
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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 and the Consulting 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.
10. 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 and the Consulting 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.
11. 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.
12. Remedies; Survival. (a) The Employee acknowledges and understands that the
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provisions of the covenants contained in Sections 8, 9 and 10 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 8, 9 or
10 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 8, 9, 10, 11 and 12 hereof will survive the expiration or other termination of this
Agreement until, by their terms, such provisions are no longer operative.
13. Tax Withholding. All compensation payable under this Agreement shall be subject
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to reduction by all applicable withholding, social security and other federal, state and local taxes and
deductions for income, employment, excise and other taxes.
14. 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.
15. Notices. Notices and other communications hereunder will be in writing and will
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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 15 or in
accordance with the latest unrevoked direction from such party.
16. 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.
17. Governing Law. This Agreement shall be governed by and enforceable in accordance
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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.
18. 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.
19. Entire Agreement; Amendments. This Agreement (including Annex A) and the
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Executive Severance 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.
20. 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.
21. 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.
22. 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 8, 9 and 10) 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: /s/: Xxxxx X. Xxxxxxxxx, M.D.
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EMPLOYEE
