(Mark One) | ||
þ
|
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 | |
For the fiscal year ended: December 31, 2008 | ||
Or
|
||
o
|
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 | |
For the transition period from to |
Delaware
(State or other jurisdiction of incorporation or organization) 8 Sylvan Way Parsippany, New Jersey (Address of principal executive offices) |
04-3324394
(I.R.S. Employer Identification No.) 07054 (Zip Code) |
Title of Each Class
|
Name of Each Exchange on Which Registered
|
|
Common Stock, $.001 Par Value Per Share
|
NASDAQ Global Select Market |
Large accelerated filer þ | Accelerated filer o | Non-accelerated filer o | Smaller reporting company o |
1
Item 1.
Business
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are effective, safe and predictable;
enable shorter periods of treatment;
are easier to use than current products;
reduce the length of hospital stay; and
lower hospital costs.
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1.7 million medically managed patients were administered
intravenous anti-hypertensives.
1.1 million surgical intervention patients were
administered intravenous anti-hypertensives in connection with
surgical procedures, and of these, approximately
475,000 patients were treated with intravenous
antihypertensives in cardiac and vascular surgery.
556,000 all other patients were administered
intravenous antihypertensives.
9
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an immediate inhibitory effect on platelets;
an inhibitory effect on platelet activation and aggregation that
is proportional to the dose administered;
inhibitory effects that are sustainable through the period of
infusion;
a plasma half-life of less than five minutes; and
platelet function recovery in less than an hour.
Clopidogrel requires liver metabolism to form the active agent;
therefore, the pre-loading dose may require up to six hours to
achieve its full effect.
There does not appear to be a clear relationship between
increased dosage and intended effect that is consistent across
different patient groups.
The inhibition of platelet function is irreversible, meaning the
agent remains bound to receptors for the life of the platelet,
which is typically ten days. This may impede patient management
and treatment flexibility, as well as increase the potential for
bleeding, especially if a patient needs cardiac surgery, which
is usually delayed for days awaiting the generation and release
of new platelets from the bone marrow.
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Oral agents are difficult to administer in the critical care
setting because they need to be swallowed by patients who may
have received light anesthesia. This is especially true when
there is a need to swallow multiple tablets in a restricted
period of time.
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Increasing resistance of bacteria to one or more existing
antibiotics.
Some antibiotics solely inhibit the growth of pathogens
(bacteriostatic) and rely on the immune system to actually kill
the bacteria. Bacteriostatic drugs are less effective in
treating patients with compromised immune systems that cannot
rid their bodies of the pathogens.
The range of bacteria treated by a drug is called its
spectrum. Many antibiotics are effective against
some serious pathogens but not others.
Many of the existing antibiotics used to treat serious
infections are difficult or inconvenient to administer, as they
must be administered twice daily for seven to fourteen days, or
more, and patients can be hospitalized for much or all of this
period.
Existing antibiotics may cause serious side effects in some
patients, sometimes requiring discontinuation of therapy. Due to
these side effects, costly and time-consuming monitoring of
blood levels and other parameters is required with the use of a
number of currently available therapies.
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n
If we or a MDCO Affiliated Party (meaning an affiliate of ours,
a successor or assigns of ours, or a licensee or collaborator of
ours) obtain approval from the EMEA for a MAA for oritavancin
for the treatment of cSSSI on or before December 31, 2013,
each former Targanta shareholder will be entitled
15
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to receive a cash payment equal to (1) $1.00 per share if
such approval is granted on or before December 31, 2009,
(2) $0.75 per share if such approval is granted between
January 1, 2010 and June 30, 2010, or (3) $0.50
per share if such approval is granted between July 1, 2010
and December 31, 2013, a payment of approximately
$21.0 million in the aggregate, approximately
$15.8 million in the aggregate, or approximately
$10.5 million in the aggregate, respectively.
n
If we or a MDCO Affiliated Party obtain final approval from the
FDA for a new drug application, or NDA, for oritavancin for the
treatment of cSSSI (1) within 40 months after the date
the first patient is enrolled in a Phase III clinical trial
of cSSSI that is initiated by us or a MDCO Affiliate Party after
the date of our merger agreement with Targanta and (2) on
or before December 31, 2013, each former Targanta
shareholder will be entitled to receive a cash payment equal to
$0.50 per share, or approximately $10.5 in the aggregate.
n
If we obtain final FDA approval for an NDA for the use of
oritavancin for the treatment of cSSSI administered by a single
dose intravenous infusion (1) within 40 months after
the date the first patient is enrolled in a Phase III
clinical trial of cSSSI that is initiated by us or a MDCO
Affiliated Party after the date of our merger agreement with
Targanta and (2) on or before December 31, 2013, each
former Targanta shareholder will be entitled to receive a cash
payment equal to $0.70 per share, or approximately
$14.7 million in the aggregate. This payment may become
payable simultaneously with the payment described in the
previous bullet above.
n
If aggregate net sales of oritavancin in four consecutive
calendar quarters ending on or before December 31, 2021
reach or exceed $400 million, each former Targanta
shareholder will be entitled to receive a cash payment equal to
$2.35 per share, or approximately $49.4 million in the
aggregate.
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pre-clinical laboratory tests, animal studies and formulation
studies;
submission to the FDA of an investigational new drug exemption,
or IND, for human clinical testing, which must become effective
before human clinical trials may begin;
adequate and well-controlled clinical trials to establish the
safety and efficacy of the drug for each indication;
submission to the FDA of an NDA;
satisfactory completion of an FDA inspection of the
manufacturing facility or facilities at which the drug is
produced to assess compliance with current good manufacturing
practices, or cGMP; and
FDA review and approval of the NDA.
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evaluate dosage tolerance and appropriate dosage;
identify possible adverse effects and safety risks; and
evaluate preliminarily the efficacy of the drug for specific
indications.
22
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Item 1A.
Risk
Factors
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its continued acceptance by regulators, physicians, patients and
other key decision-makers as a safe, therapeutic and
cost-effective alternative to heparin and other products used in
current practice or currently being developed;
our ability to further develop Angiomax for use in additional
patient populations and the clinical data we generate to support
expansion of the product label, including our ability to obtain
EMEA approval of Angiox for the treatment of STEMI patients
undergoing PCI;
the overall number of PCI procedures performed;
our ability sell and market of Angiox in Europe; and
the extent to which we and our international distributors are
successful in marketing Angiomax.
24
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the extent to which Angiomax is commercially successful globally;
the extent to which Cleviprex is commercially successful in the
United States;
the extent to which we can successfully establish a commercial
infrastructure outside the United States;
the expansion of our sales force in connection with the
expansion of our sales and marketing efforts in Europe and the
sale of Cleviprex in the United States;
our plan to continue to seek possible acquisitions of
development-stage products, approved products, or businesses and
possible additional strategic or licensing arrangements with
companies that fit within our growth strategy, such as our
acquisitions of Curacyte Discovery and Targanta;
the progress, level and timing of our research and development
activities related to our clinical trials with respect to
Angiomax, Cleviprex, cangrelor, oritavancin and CU-2010;
the cost and outcomes of regulatory submissions and reviews,
approval of Cleviprex internationally and approval of our
product candidates globally;
the continuation or termination of third-party manufacturing or
sales and marketing arrangements;
the size, cost and effectiveness of our sales and marketing
programs in the United States and internationally;
the status of competitive products;
the success of obtaining regulatory approval of oritavancin and
the extent of the commercial success of oritavancin, if and when
it is approved, which could result in the cash payment to former
Targanta shareholders; and
our ability to defend and enforce our intellectual property
rights.
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continue to improve operating, administrative, and information
systems;
accurately predict future personnel and resource needs to meet
contract commitments;
track the progress of ongoing projects; and
attract and retain qualified management, sales, professional,
scientific and technical operating personnel.
our customers ability to obtain reimbursement for
procedures using our products in foreign markets;
the burden of complying with complex and changing foreign legal,
tax, accounting and regulatory requirements;
language barriers and other difficulties in providing long-range
customer support and service;
longer accounts receivable collection times;
significant currency fluctuations;
reduced protection of intellectual property rights in some
foreign countries; and
the interpretation of contractual provisions governed by foreign
laws in the event of a contract dispute.
28
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the Federal Anti-Kickback Law, which prohibits persons from
knowingly and willfully soliciting, offering, receiving or
providing remuneration, directly or indirectly, in cash or in
kind, to induce either the referral of an individual or
furnishing or arranging for a good or service for which payment
may be made under federal health care programs such as Medicare
and Medicaid;
other Medicare laws and regulations that prescribe the
requirements for coverage and payment for services performed by
our customers, including the amount of such payment;
the Federal False Claims Act, which imposes civil and criminal
liability on individuals and entities who submit, or cause to be
submitted, false or fraudulent claims for payment to the
government; and
the Federal False Statements Act, which prohibits knowingly and
willfully falsifying, concealing or covering up a material fact
or making any materially false statement in connection with
delivery of or payment for health care benefits, items or
services.
29
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delay or prevent the successful commercialization of any of our
product candidates;
diminish our competitive advantage; and
defer or decrease our receipt of revenue.
30
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our clinical trials may produce negative or inconclusive
results, and we may decide, or regulators may require us, to
conduct additional clinical trials which even if undertaken
cannot ensure we will gain approval;
data obtained from pre-clinical testing and clinical trials may
be subject to varying interpretations, which could result in the
FDA or other regulatory authorities deciding not to approve a
product in a timely fashion, or at all;
the cost of clinical trials may be greater than we currently
anticipate;
regulators or institutional review boards may not authorize us
to commence a clinical trial or conduct a clinical trial at a
prospective trial site;
we, or the FDA or other regulatory authorities, might suspend or
terminate a clinical trial at any time on various grounds,
including a finding that participating patients are being
exposed to unacceptable health risks. For example, we have in
the past voluntarily suspended enrollment in one of our clinical
trials to review an interim analysis of safety data from the
trial; and
the effects of our product candidates may not be the desired
effects or may include undesirable side effects or the product
candidates may have other unexpected characteristics.
delay in approving or refusal to approve a product;
product recall or seizure;
suspension or withdrawal of an approved product from the market;
interruption of production;
operating restrictions;
warning letters;
injunctions;
32
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fines and other monetary penalties;
criminal prosecutions; and
unanticipated expenditures.
33
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delay or otherwise adversely impact the manufacturing,
development or commercialization of Angiomax, Cleviprex,
cangrelor, oritavancin, CU-2010 or any additional products that
we may acquire or develop;
require us to seek a new collaborator or undertake unforeseen
additional responsibilities or devote unforeseen additional
resources to the manufacturing, development or commercialization
of our products; or
result in the termination of the development or
commercialization of our products.
reliance on the third party for regulatory compliance and
quality assurance;
the possible breach of the manufacturing agreement by the third
party; and
the possible termination or nonrenewal of the agreement by the
third party, based on its own business priorities, at a time
that is costly or inconvenient for us.
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obtain and maintain U.S. and foreign patents, including
defending those patents against adverse claims;
secure patent term extension for the patents covering our
approved products;
protect trade secrets;
operate without infringing the proprietary rights of
others; and
prevent others from infringing our proprietary rights.
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manufactured or produced economically;
successfully commercialized; or
widely accepted in the marketplace.
39
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changes in securities analysts estimates of our financial
performance;
changes in valuations of similar companies;
variations in our operating results;
acquisitions and strategic partnerships;
announcements of technological innovations or new commercial
products by us or our competitors;
disclosure of results of clinical testing or regulatory
proceedings by us or our competitors;
the timing, amount and receipt of revenue from sales of our
products and margins on sales of our products;
governmental regulation and approvals;
developments in patent rights or other proprietary rights;
changes in our management; and
general market conditions.
Item 1B.
Unresolved
Staff Comments
Item 2.
Properties
40
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Item 3.
Legal
Proceedings
41
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Item 4.
Submission
of Matters to a Vote of Security Holders
Item 5.
Market
for Registrants Common Equity, Related Stockholder Matters
and Issuer Purchases of Equity Securities
Common Stock
Price
High
Low
$
34.73
$
23.88
27.40
17.25
21.30
14.26
19.90
16.68
21.41
16.38
21.13
17.18
28.00
19.07
24.18
11.37
42
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Among
The Medicines Company, The NASDAQ Composite Index
And The NASDAQ Biotechnology Index
*
Fiscal year ended December 31.
12/03
12/04
12/05
12/06
12/07
12/08
100.00
97.76
59.23
107.67
65.04
50.00
100.00
110.08
112.88
126.51
138.13
80.47
100.00
112.17
130.53
130.05
132.24
122.10
43
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Item 6.
Selected
Financial Data
Year Ended December 31,
2008
2007
2006
2005
2004
(In thousands, except per share data)
$
348,157
$
257,534
$
213,952
$
150,207
$
144,251
88,355
66,502
51,812
34,762
29,123
105,720
77,255
63,536
64,389
49,290
164,903
141,807
88,265
63,053
50,275
358,978
285,564
203,613
162,204
128,688
(10,821
)
(28,030
)
10,339
(11,997
)
15,563
5,235
10,653
7,319
4,344
2,126
(5,586
)
(17,377
)
17,658
(7,653
)
17,689
(2,918
)
(895
)
46,068
(100
)
(690
)
$
(8,504
)
$
(18,272
)
$
63,726
$
(7,753
)
$
16,999
$
(0.16
)
$
(0.35
)
$
1.27
$
(0.16
)
$
0.36
51,904
51,624
50,300
49,443
47,855
$
(0.16
)
$
(0.35
)
$
1.25
$
(0.16
)
$
0.34
51,904
51,624
51,034
49,443
49,772
As of December 31,
2008
2007
2006
2005
2004
(In thousands)
$
217,542
$
223,711
$
198,231
$
141,012
$
161,224
206,451
208,568
228,523
169,912
173,349
387,404
361,516
318,568
208,707
210,044
(267,948
)
(259,444
)
(241,172
)
(304,898
)
(297,145
)
298,025
277,896
269,951
170,899
171,671
44
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Item 7.
Managements
Discussion and Analysis of Financial Condition and Results of
Operations
45
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46
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If we or a MDCO Affiliated Party (meaning an affiliate of ours,
a successor or assigns of ours, or a licensee or collaborator of
ours) obtain approval from the EMEA for a MAA for oritavancin
for the treatment of cSSSI on or before December 31, 2013,
each former Targanta shareholder will be entitled to receive a
cash payment equal to (1) $1.00 per share if such approval
is granted on or before December 31, 2009, (2) $0.75
per share if such approval is granted between January 1,
2010 and June 30, 2010, or (3) $0.50 per share if such
approval is granted between July 1, 2010 and
December 31, 2013, a payment of approximately
$21.0 million in the aggregate, approximately
$15.8 million in the aggregate, or approximately
$10.5 million in the aggregate, respectively.
If we or a MDCO Affiliated Party obtain final approval from the
FDA for a new drug application, or NDA, for oritavancin for the
treatment of cSSSI (1) within 40 months after the date
the first patient is
47
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enrolled in a Phase III clinical trial of cSSSI that is
initiated by us or a MDCO Affiliate Party after the date of our
merger agreement with Targanta and (2) on or before
December 31, 2013, each former Targanta shareholder will be
entitled to receive a cash payment equal to $0.50 per share, or
approximately $10.5 million in the aggregate.
If we obtain final FDA approval for an NDA for the use of
oritavancin for the treatment of cSSSI administered by a single
dose intravenous infusion (1) within 40 months after
the date the first patient is enrolled in a Phase III
clinical trial of cSSSI that is initiated by us or a MDCO
Affiliated Party after the date of our merger agreement with
Targanta and (2) on or before December 31, 2013, each
former Targanta shareholder will be entitled to receive a cash
payment equal to $0.70 per share, or approximately
$14.7 million in the aggregate. This payment may become
payable simultaneously with the payment described in the
previous bullet above.
If aggregate net sales of oritavancin in four consecutive
calendar quarters ending on or before December 31, 2021
reach or exceed $400 million, each former Targanta
shareholder will be entitled to receive a cash payment equal to
$2.35 per share, or approximately $49.4 million in the
aggregate.
48
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the nature of the estimate or assumption is material due to the
level of subjectivity and judgment necessary to account for
highly uncertain matters or the susceptibility of such matters
to change; and
the impact of the estimates and assumptions on financial
condition or operating performance is material.
49
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Product returns.
Our customers have the right
to return any unopened product during the
18-month
period beginning six months prior to the labeled expiration date
and ending 12 months after the labeled expiration date. As
a result, in calculating the accrual for product returns, we
must estimate the likelihood that product sold might not be used
within six months of expiration and analyze the likelihood that
such product will be returned within 12 months after
expiration.
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Chargebacks and rebates.
Although we primarily
sell products to a sole source distributor in the United States,
we typically enter into agreements with hospitals, either
directly or through group purchasing organizations acting on
behalf of their hospital members, in connection with the
hospitals purchases of products. Based on these
agreements, most of our hospital customers have the right to
receive a discounted price for product and volume-based rebates
on product purchases. In the case of discounted pricing, we
typically provide a credit to the sole source distributor, or a
chargeback, representing the difference between the sole source
distributors acquisition list price and the discounted
price. In the case of the volume-based rebates, we typically pay
the rebate directly to the hospitals.
Fees-for-service.
We offer discounts to
certain wholesalers and our sole source distributor based on
contractually determined rates for certain services. We estimate
our fee-for-service accruals and allowances based on historical
sales, wholesaler and distributor inventory levels and the
applicable discount rate. Our discounts are accrued at the time
of the sale and are typically settled with the wholesalers or
sole source distributor within 60 days after the end of
each respective quarter. Our fee-for-service accruals and
allowances were $2.0 million and $1.7 million at
December 31, 2008 and December 31, 2007, respectively.
A 10% change in our fee-for-service accruals and allowances
would have had an approximate $0.2 million effect on our
reported net revenue for the year ended December 31, 2008.
51
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Fees-for-
Returns
Chargebacks
Rebates
Service
$
217
$
506
$
1,454
$
105
404
4,240
2,247
7,063
(212
)
(737
)
(1,318
)
(103
)
(8
)
(3,681
)
(1,549
)
(5,291
)
401
328
834
1,774
3,132
4,485
4,571
4,507
(459
)
(427
)
(849
)
(929
)
(14
)
(3,789
)
(2,894
)
(3,695
)
3,060
597
1,662
1,657
(1,824
)
5,751
1,413
6,562
(261
)
(720
)
(1,397
)
(721
)
(4,442
)
(1,247
)
(5,542
)
$
975
$
1,186
$
431
$
1,956
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Employees historical exercise
experience and, at times, estimates of future exercises of
unexercised options based on the midpoint between the vesting
date and end of the contractual term
Historic price of our common stock and
the implied volatility of the stock of our peer group
Yields of U.S. Treasury securities
corresponding with the expected life of option grants
Historical forfeiture data
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Year Ended December 31,
% of Total
% of Total
2008
Revenue
2007
Revenue
(In thousands)
(In thousands)
$
334,582
96
%
$
254,975
99
%
9,750
3
%
32
3,825
1
%
2,527
1
%
$
348,157
100
%
$
257,534
100
%
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Year Ended December 31,
% of Total
% of Total
2008
Cost
2007
Cost
(In thousands)
(In thousands)
$
22,518
25
%
$
20,205
30
%
53,642
61
%
40,318
61
%
12,195
14
%
5,979
9
%
$
88,355
100
%
$
66,502
100
%
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Year Ended December 31,
% of
% of
2008
Total R&D
2007
Total R&D
(In thousands)
(In thousands)
$
4,959
5
%
$
10,394
14
%
3,924
4
%
703
1
%
3,711
3
%
4,162
5
%
12,594
12
%
15,259
20
%
3,031
3
%
2,803
3
%
2,484
2
%
2,890
4
%
6,214
6
%
9,290
12
%
11,729
11
%
14,983
19
%
37,090
35
%
30,135
39
%
2,661
3
%
4,240
6
%
4,658
4
%
3,971
5
%
44,409
42
%
38,346
50
%
0
%
0
%
0
%
0
%
1,180
1
%
0
%
21,373
20
%
0
%
22,553
21
%
0
%
14,435
14
%
8,667
11
%
$
105,720
100
%
$
77,255
100
%
57
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58
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the scope, rate of progress and cost of our clinical trials and
other research and development activities;
future clinical trial results;
the terms and timing of any collaborative, licensing and other
arrangements that we may establish;
the cost and timing of regulatory approvals;
the cost and timing of establishing and maintaining sales,
marketing and distribution capabilities;
the cost of establishing and maintaining clinical and commercial
supplies of our product candidates;
the effect of competing technological and market
developments; and
the cost of filing, prosecuting, defending and enforcing any
patent claims and other intellectual property rights.
59
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Year Ended December 31,
% of Total
% of Total
2007
Revenue
2006
Revenue
(In thousands)
(In thousands)
$
254,975
99
%
$
200,727
94
%
32
11,277
5
%
1,948
1
%
2,527
1
%
$
257,534
100
%
$
213,952
100
%
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Year Ended December 31,
% of Total
% of Total
2007
Cost
2006
Cost
(In thousands)
(In thousands)
$
20,205
30
%
$
18,508
36
%
40,318
61
%
27,216
52
%
5,979
9
%
6,088
12
%
$
66,502
100
%
$
51,812
100
%
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Year Ended December 31,
% of
% of
2007
Total R&D
2006
Total R&D
(In thousands)
(In thousands)
$
10,394
14
%
$
14,954
24
%
703
1
%
1,331
2
%
4,162
5
%
2,695
4
%
15,259
20
%
18,980
30
%
2,803
3
%
9,870
16
%
2,890
4
%
1,108
2
%
9,290
12
%
4,512
7
%
14,983
19
%
15,490
25
%
30,135
39
%
14,222
22
%
4,240
6
%
2,153
3
%
3,971
5
%
3,579
6
%
38,346
50
%
19,954
31
%
8,667
11
%
9,112
14
%
$
77,255
100
%
$
63,536
100
%
62
Table of Contents
63
Table of Contents
64
Table of Contents
the extent to which Angiomax is commercially successful globally;
the extent to which Cleviprex is commercially successful in the
United States;
the extent to which we can successfully establish a commercial
infrastructure outside the United States;
the expansion of our sales force in connection with the
expansion of our sales and marketing efforts in Europe and the
sale of Cleviprex in the United States;
our plan to continue to evaluate possible acquisitions of
development-stage products, approved products, or businesses and
possible additional strategic or licensing arrangements with
companies that fit within our growth strategy, such as our
acquisitions of Curacyte Discovery and Targanta;
the progress, level and timing of our research and development
activities related to our clinical trials with respect to
Angiomax, Cleviprex, cangrelor, oritavancin and CU-2010;
the cost and outcomes of regulatory submissions and reviews,
including our efforts to obtain approval of the expansion of the
Angiomax product label in the United States to include an
additional dosing regimen in the treatment of ACS initiated in
the emergency department in the United States, approval of
Cleviprex internationally and approval of our product candidates
globally;
the continuation or termination of third-party manufacturing or
sales and marketing arrangements;
the size, cost and effectiveness of our sales and marketing
programs in the United States and internationally;
the status of competitive products;
the success of obtaining regulatory approval of oritavancin and
the extent of the commercial success of oritavancin, if and when
it is approved, which could result in the cash payment to former
Targanta shareholders; and
our ability to defend and enforce our intellectual property
rights.
65
Table of Contents
66
Table of Contents
Item 7A.
Quantitative
and Qualitative Disclosure About Market Risk
Item 8.
Financial
Statements and Supplementary Data
67
Table of Contents
Item 9.
Changes
in and Disagreements with Accountants on Accounting and
Financial Disclosure
Item 9A.
Controls
and Procedures
Item 9B.
Other
Information
a lump sum payment equal to one year of her current annual base
salary, less all applicable statutory tax withholdings and
deductions;
a lump sum bonus payment in the amount of $53,865 earned in
accordance with our annual cash bonus plan;
for the shorter of a period of twelve months after the
termination date or until Ms. Newberry commences employment
with a new employer, reimbursement of COBRA health insurance
premiums actually paid by Ms. Newberry and payment for
reasonable outplacement services; and
68
Table of Contents
accelerated vesting of all stock options that Ms. Newberry
held immediately prior to termination which would have vested
within one year after the termination date if Ms. Newberry
had continued to be employed by us during such one-year period.
Item 10.
Directors,
Executive Officers and Corporate Governance
Item 11.
Executive
Compensation
Item 12.
Security
Ownership of Certain Beneficial Owners and Management and
Related Stockholder Matters
Item 13.
Certain
Relationships and Related Transactions, and Director
Independence
69
Item 14.
Principal
Accountant Fees and Services
Item 15.
Exhibits
and Financial Statement Schedules
Page
F-2
F-3
F-4
F-5
F-6
F-7
F-8
F-9
70
Table of Contents
By:
Chief Executive Officer and Chairman of the Board of
Directors
(Principal Executive Officer)
March 2, 2009
Executive Vice President, Chief Financial Officer and
Treasurer
(Principal Financial and Accounting Officer)
March 2, 2009
President, Chief Operating Officer and Director
March 2, 2009
Director
March 2, 2009
Director
March 2, 2009
Director
March 2, 2009
Director
March 2, 2009
Director
March 2, 2009
Director
March 2, 2009
Director
March 2, 2009
Director
March 2, 2009
71
THE MEDICINES COMPANY
Page
F-2
F-3
F-4
F-5
F-6
F-7
F-8
F-9
F-42
F-1
Table of Contents
Internal Control over Financial Reporting
pertain to the maintenance of records that in reasonable detail
accurately and fairly reflect the transactions and dispositions
of the assets of The Medicines Company;
provide reasonable assurance that transactions are recorded as
necessary to permit preparation of financial statements in
accordance with generally accepted accounting principles, and
that receipts and expenditures of The Medicines Company are
being made only in accordance with authorizations of management
and directors of The Medicines Company; and
provide reasonable assurance regarding prevention or timely
detection of unauthorized acquisition, use or disposition of The
Medicines Companys assets that could have a material
effect on the financial statements.
Chief Executive Officer
Chief Financial Officer
F-2
Table of Contents
F-3
Table of Contents
on Internal Control over Financial Reporting
F-4
Table of Contents
F-5
Table of Contents
Year Ended December 31,
2008
2007
2006
(In thousands, except per share amounts)}
$
348,157
$
257,534
$
213,952
88,355
66,502
51,812
105,720
77,255
63,536
164,903
141,807
88,265
358,978
285,564
203,613
(10,821
)
(28,030
)
10,339
5,235
10,653
7,319
(5,586
)
(17,377
)
17,658
(2,918
)
(895
)
46,068
$
(8,504
)
$
(18,272
)
$
63,726
$
(0.16
)
$
(0.35
)
$
1.27
51,904
51,624
50,300
$
(0.16
)
$
(0.35
)
$
1.25
51,904
51,624
51,034
F-6
Table of Contents
Accumulated
Additional
Comprehensive
Total
Common Stock
Paid-in
Accumulated
(Loss)
Stockholders
Shares
Amount
Capital
Deficit
Income
Equity
(In thousands)
49,724
$
50
$
476,012
$
(304,898
)
$
(265
)
$
170,899
1,503
1
23,964
23,965
8,459
8,459
2,641
2,641
63,726
63,726
23
23
238
238
63,987
51,227
51
511,076
(241,172
)
(4
)
269,951
498
1
9,329
9,330
141
15,386
15,386
1,236
1,236
(18,272
)
(18,272
)
72
72
193
193
(18,007
)
51,866
52
537,027
(259,444
)
261
277,896
321
5,541
5,541
93
22,798
22,798
(283
)
(283
)
(8,504
)
(8,504
)
(52
)
(52
)
629
629
(7,927
)
52,280
$
52
$
565,083
$
(267,948
)
$
838
$
298,025
F-7
Table of Contents
Year Ended December 31,
2008
2007
2006
(In thousands)
$
(8,504
)
$
(18,272
)
$
63,726
2,932
1,586
1,465
21,373
113
(1,093
)
(1,160
)
580
22,798
15,386
8,459
33
33
244
33
2
1,803
(49,200
)
(283
)
1,236
2,641
262
(184
)
(492
)
(6,375
)
(4,080
)
(6,893
)
6,890
6,160
6,357
(2,475
)
5,538
(3,825
)
(4,983
)
3,315
907
2,896
(14,006
)
36,675
8,231
9,588
(2,814
)
(328
)
38,077
36,097
32,121
(161,822
)
(148,954
)
(149,852
)
161,505
137,541
144,347
(19,395
)
(1,571
)
(790
)
9
(2,000
)
(14,929
)
(5,000
)
(23,534
)
(5,000
)
(50,246
)
(32,904
)
(6,295
)
5,542
9,330
23,965
5,542
9,330
23,965
(482
)
74
33
(7,109
)
12,597
49,824
88,127
75,530
25,706
$
81,018
$
88,127
$
75,530
$
$
$
$
2,518
$
769
$
395
$
6,327
$
308
$
76
F-8
Table of Contents
1.
Nature of
Business
F-9
Table of Contents
2.
Significant
Accounting Policies
F-10
Table of Contents
Unrealized
Cost
Gain
Fair Value
(In thousands)
$
107,513
$
978
$
108,491
26,487
210
26,697
$
134,000
$
1,188
$
135,188
Unrealized
Cost
Gain (Loss)
Fair Value
$
79,301
$
158
$
79,459
32,870
(90
)
32,780
21,659
88
21,747
$
133,830
$
156
$
133,986
F-11
Table of Contents
Significant
Quoted Prices In
Other
Significant
Active Markets for
Observable
Unobservable
Identical Assets
Inputs
Inputs
Balance at
(Level 1)
(Level 2)
(Level 3)
December 31, 2008
(In thousands)
$
135,188
$
$
$
135,188
F-12
Table of Contents
F-13
Table of Contents
Product returns
. The Companys customers
have the right to return any unopened product during the
18-month
period beginning six months prior to the labeled expiration date
and ending 12 months after the labeled expiration date. As
a result, in calculating the accrual for product returns, the
Company must estimate the likelihood that product sold might not
be used within six months of expiration and analyze the
likelihood that such product will be returned within
12 months after expiration.
Chargebacks and rebates
. Although the Company
primarily sells products to a sole source distributor in the
United States, the Company typically enters into agreements with
hospitals, either directly or through group purchasing
organizations acting on behalf of their hospital members, in
connection with the hospitals purchases of products. Based
on these agreements, most of the Companys hospital
customers have the right to receive a discounted price for
products and volume-based rebates on product purchases. In the
case of discounted pricing, the Company typically provides a
credit to the sole source distributor, or a chargeback,
representing the difference between the sole source
distributors acquisition list price and the discounted
price. In the case of the volume-based rebates, the Company
typically pays the rebate directly to the hospitals.
F-14
Table of Contents
Fees-for-service.
The Company offers discounts
to certain wholesalers and its sole source distributor based on
contractually determined rates for certain services. The Company
estimates its fee-for-service accruals and allowances based on
historical sales, wholesaler and distributor inventory levels
and the applicable discount rate. The Companys discounts
are accrued at the time of the sale and are typically settled
with the wholesalers or sole source distributor within
60 days after the end of each respective quarter. The
Companys fee-for-service accruals and allowances were
$2.0 million and $1.7 million at December 31,
2008 and December 31, 2007, respectively. A 10% change in
the Companys fee-for-service accruals and allowances would
have had an approximate $0.2 million effect on the
Companys reported net revenue for the year ended
December 31, 2008.
Fees-for-
Returns
Chargebacks
Rebates
Service
$
217
$
506
$
1,454
$
105
404
4,240
2,247
7,063
(212
)
(737
)
(1,318
)
(103
)
(8
)
(3,681
)
(1,549
)
(5,291
)
401
328
834
1,774
3,132
4,485
4,571
4,507
(459
)
(427
)
(849
)
(929
)
(14
)
(3,789
)
(2,894
)
(3,695
)
3,060
597
1,662
1,657
(1,824
)
5,751
1,413
6,562
(261
)
(720
)
(1,397
)
(721
)
(4,442
)
(1,247
)
(5,542
)
$
975
$
1,186
$
431
$
1,956
F-15
Table of Contents
F-16
Table of Contents
2008
2007
(In thousands)
$
10,003
$
18,573
10,334
11,130
7,892
5,765
$
28,229
$
35,468
F-17
Table of Contents
Years Ended December 31,
2008
2007
2006
0
%
0
%
0
%
45
%
49
%
46
%
2.78
%
4.49
%
4.77
%
4.89
4.85
3.49
Years Ended December 31,
2008
2007
2006
0
%
0
%
0
%
39
%
33
%
36
%
2.04
%
5.08
%
4.85
%
0.5
0.5
0.5
F-18
Table of Contents
Years Ended December 31,
2008
2007
2006
(In thousands)
$
(8,504
)
$
(18,272
)
$
63,726
629
193
238
(52
)
72
23
$
(7,927
)
$
(18,007
)
$
63,987
F-19
Table of Contents
Years Ended December 31,
2008
2007
2006
(In thousands)
$
334,582
$
254,975
$
202,676
9,051
(268
)
7,558
4,524
2,827
3,718
$
348,157
$
257,534
$
213,952
$
47,308
$
18,305
$
3,198
1,609
5
12
$
48,917
$
18,310
$
3,210
3.
Recent
Accounting Pronouncements
F-20
Table of Contents
4.
The
Companys Plans and Financing
F-21
Table of Contents
5.
Fixed
Assets
Estimated
December 31,
Life (Years)
2008
2007
(In thousands)
3-7
$
7,689
$
2,413
3
3,174
1,795
3
1,629
1,503
5-15
21,235
1,270
1,015
33,727
7,996
(6,396
)
(4,751
)
$
27,331
$
3,245
6.
Investment
7.
Curacyte
Discovery Acquisition
F-22
Table of Contents
8.
Nycomed
Agreements
F-23
Table of Contents
9.
Intangible
Assets
As of December 31, 2008
As of December 31, 2007
Weighted
Gross
Net
Gross
Net
Average
Carrying
Accumulated
Carrying
Carrying
Accumulated
Carrying
Useful Life
Amount
Amortization
Amount
Amount
Amortization
Amount
(In thousands)
8 years
$
7,457
$
288
$
7,169
$
7,457
$
$
7,457
8 years
4,448
171
4,277
4,448
4,448
8 years
3,024
116
2,908
3,024
3,024
13 years
2,000
5
1,995
9 years
$
16,929
$
580
$
16,349
$
14,929
$
$
14,929
F-24
Table of Contents
10.
Accrued
Expenses
2008
2007
(In thousands)
$
$
25,000
2,385
6,156
15,792
14,013
13,312
8,831
8,889
7,164
3,286
5,704
6,165
308
9,943
2,601
4,929
2,221
2,098
1,829
$
66,799
$
73,827
11.
Stockholders
Equity
F-25
Table of Contents
the 2007 Equity Inducement Plan (the 2007 Plan),
the 2004 Stock Incentive Plan (the 2004 Plan),
the 2001 Non-Officer,
Non-Director
Stock Incentive Plan (the 2001 Plan),
the 2000 Outside Director Stock Option Plan (the
2000 Director Plan), and
the 1998 Stock Incentive Plan (the 1998 Plan).
F-26
Table of Contents
20,000 shares of common stock on the date of his or her
initial election to the Board of Directors (the Initial
Options); and
7,500 shares of the common stock on the date of each annual
meeting of the Companys stockholders (the Annual Options),
except if such non-employee director was initially elected to
the Board of Directors at such annual meeting. The lead director
will be granted an additional option to purchase
5,000 shares of the common stock on the date of each annual
meeting of the Companys stockholders.
F-27
Table of Contents
F-28
Table of Contents
Weighted-
Average
Weighted-Average
Remaining
Exercise Price
Contractual
Aggregate
Number of Shares
Per Share
Term
Intrinsic Value
7,679,136
20.85
1,496,789
20.60
(1,415,605
)
16.15
(1,006,913
)
24.66
6,753,407
21.21
1,975,189
23.69
(418,126
)
19.14
(387,316
)
23.43
7,923,154
$
21.83
3,588,990
19.25
(217,160
)
18.36
(538,373
)
24.16
10,756,611
$
20.92
7.35
$
3,985,949
6,023,511
$
21.48
6.16
$
3,845,319
2,678,346
F-29
Table of Contents
Options Outstanding
Options Vested
Weighted Average
Number
Remaining
Weighted Average
Number
Weighted Average
Range of Exercise
Outstanding
Contractual Life
Exercise Price
Outstanding
Exercise Price
at 12/31/08
(Years)
Per Share
at 12/31/08
Per Share
817,035
3.58
$
10.05
706,899
$
9.51
772,132
8.59
17.20
197,781
17.08
1,103,008
7.28
18.25
777,271
18.26
1,339,172
8.27
18.74
530,989
18.76
2,133,270
8.94
19.45
505,033
19.48
1,667,416
7.18
21.69
1,082,358
22.07
1,434,878
6.17
26.12
1,176,361
26.30
1,174,179
7.25
28.41
793,193
28.32
315,521
6.25
31.26
253,626
31.41
10,756,611
7.35
$
20.92
6,023,511
$
21.48
Weighted Average
Number of
Grant-Date
Shares
Fair Value
25,000
$
20.11
25,000
20.11
141,200
25.03
(6,250
)
20.11
159,950
24.46
92,970
18.93
(64,050
)
22.65
188,870
$
22.35
F-30
Table of Contents
12.
Net
Earnings (Loss) per Share
Years Ended December 31,
2008
2007
2006
(In thousands, except per share amounts)
$
(8,504
)
$
(18,272
)
$
63,726
52,090
51,742
50,321
186
118
21
51,904
51,624
50,300
734
51,904
51,624
51,034
$
(0.16
)
$
(0.35
)
$
1.27
$
(0.16
)
$
(0.35
)
$
1.25
F-31
Table of Contents
Years Ended December 31,
2008
2007
2006
(In thousands)
10,118
7,429
7,459
2,209
10,118
7,429
5,250
186
118
21
21
186
118
13.
Income
Taxes
2008
2007
2006
(In thousands)
$
(377
)
$
(556
)
$
(348
)
(1,021
)
(339
)
(143
)
(1,398
)
(895
)
(491
)
(1,910
)
43,300
390
3,259
(1,520
)
46,559
$
(2,918
)
$
(895
)
$
46,068
2008
2007
2006
(In thousands)
$
7,489
$
(17,432
)
$
17,689
(13,075
)
55
(31
)
$
(5,586
)
$
(17,377
)
$
17,658
F-32
Table of Contents
Year Ended December 31,
2008
2007
2006
(In thousands)
$
(1,955
)
$
(6,082
)
$
6,004
430
240
(2,057
)
4,576
(19
)
4
(1,456
)
(1,106
)
(2,326
)
1,323
1,366
100
6,496
(47,793
)
2,918
$
895
$
(46,068
)
December 31,
2008
2007
(In thousands)
$
56,037
$
71,085
16,630
15,930
16,818
11,820
14,876
8,316
10,109
4,793
114,470
111,944
$
(1,198
)
$
(494
)
(1,692
)
112,778
111,944
(64,547
)
(61,508
)
$
48,231
$
50,436
F-33
Table of Contents
Federal Research
Federal Net
and Development
Operating Loss
Tax Credit
Carryforwards
Carryforwards
(In thousands)
$
$
147
922
22,422
1,083
51,100
477
41,403
1,856
19,693
2,031
11
1,795
12,541
3,436
97
1,971
79
1,190
1,372
$
147,346
$
16,280
F-34
Table of Contents
Gross
Unrecognized
Tax Benefits
(In thousands)
$
1,214
1,214
167
$
1,381
14.
License
Agreements
F-35
Table of Contents
F-36
Table of Contents
15.
Strategic
Alliances
16.
Commitments
and Contingencies
2009
2010
2011
2012
2013
Later Years
Total
(In thousands)
$
28,936
$
13,343
$
200
$
400
$
600
$
$
43,479
17,444
4,964
121
22,529
7,509
7,623
7,044
6,328
4,491
46,516
79,511
5,269
372
368
6,009
3,000
3,000
167
167
16,750
1,000
4,500
22,250
$
78,908
$
27,469
$
12,233
$
6,728
$
5,091
$
46,516
$
176,945
F-37
Table of Contents
F-38
Table of Contents
17.
Employee
Benefit Plan
18.
Selected
Quarterly Financial Data (Unaudited)
Three Months Ended
Mar. 31,
June 30,
Sept. 30,
Dec. 31,
Mar. 31,
June 30,
Sept. 30,
Dec. 31,
2008
2008
2008
2008
2007
2007
2007
2007
(In thousands, except per share data)
$
79,427
$
86,731
$
88,126
$
93,873
$
66,647
$
56,399
$
62,191
$
72,297
19,092
21,939
22,089
25,235
17,780
15,094
16,157
17,471
54,013
58,570
86,939
71,101
64,396
57,642
90,397
73,129
4,853
4,056
(13,217
)
(4,196
)
3,049
817
(23,643
)
1,505
$
0.09
$
0.08
$
(0.25
)
$
(0.08
)
$
0.06
$
0.02
$
(0.46
)
$
0.03
$
0.09
$
0.08
$
(0.25
)
$
(0.08
)
$
0.06
$
0.02
$
(0.46
)
$
0.03
$
21.41
$
21.13
$
28.00
$
24.18
$
34.73
$
27.40
$
21.30
$
19.90
$
16.38
$
17.18
$
19.07
$
11.37
$
23.88
$
17.25
$
14.26
$
16.68
19.
Subsequent
Events
If the Company or a MDCO Affiliated Party (meaning an affiliate
of the Company, a successor or assigns of the Company, or a
licensee or collaborator of the Company) obtains approval from
the European Medicines Agency (EMEA) for a Marketing
Authorization Application, for oritavancin for the treatment of
cSSSI on or before December 31, 2013, each former Targanta
shareholder will be
F-39
Table of Contents
entitled to receive a cash payment equal to (1) $1.00 per
share if such approval is granted on or before December 31,
2009, (2) $0.75 per share if such approval is granted
between January 1, 2010 and June 30, 2010, or
(3) $0.50 per share if such approval is granted between
July 1, 2010 and December 31, 2013, a payment of
approximately $21.0 million in the aggregate, approximately
$15.8 million in the aggregate, or approximately
$10.5 million in the aggregate, respectively.
If the Company or a MDCO Affiliated Party obtains final approval
from the FDA for an NDA for oritavancin for the treatment of
cSSSI (1) within 40 months after the date the first
patient is enrolled in a Phase III clinical trial of cSSSI
that is initiated by the Company or a MDCO Affiliated Party
after the date of the Companys agreement with Targanta and
(2) on or before December 31, 2013, each former
Targanta shareholder will be entitled to receive a cash payment
equal to $0.50 per share, a payment of approximately
$10.5 million in the aggregate.
If the Company or a MDCO Affiliated Party obtains final FDA
approval for an NDA for the use of oritavancin for the treatment
of cSSSI administered by a single dose intravenous infusion
(1) within 40 months after the date the first patient
is enrolled in a Phase III clinical trial of cSSSI that is
initiated by the Company or a MDCO Affiliated Party after the
date of the Companys agreement with Targanta and
(2) on or before December 31, 2013, each former
Targanta shareholder will be entitled to receive a cash payment
equal to $0.70 per share, a payment of approximately
$14.7 million in the aggregate. This payment may become
payable simultaneously with the payment described in the
previous bullet above.
If aggregate net sales of oritavancin in four consecutive
calendar quarters ending on or before December 31, 2021
reach or exceed $400 million, each former Targanta
shareholder will be entitled to receive a cash payment equal to
$2.35 per share, a payment of approximately $49.4 million
in the aggregate.
F-40
Table of Contents
F-41
Table of Contents
Balance at
(Credit) Charged
Other
Balance
Beginning
to Costs and
Charges
at End
of Period
Expenses(1)
(Deductions)(2)
of Period
$
1,192
$
15,149
$
14,425
$
1,916
$
800
$
10,024
$
9,632
$
1,192
$
851
$
8,592
$
8,643
$
800
(1)
amounts presented herein were charged to and reduced revenues
(2)
represents actual cash discounts, chargeback credits and other
deductions
F-42
Table of Contents
2
.1
Sale and Purchase Agreement, dated August 4, 2008, between the
Company and Curacyte AG (filed as Exhibit 2.1 of the
registrants current report on Form 8-K/A, filed on
November 10, 2008)
2
.2
Agreement and Plan of Merger among The Medicines Company,
Boxford Subsidiary Corporation, and Targanta Therapeutics
Corporation, dated as of January 12, 2009 (filed as Exhibit 2.1
of the registrants current report on Form 8-K, filed on
January 14, 2009)
3
.1
Third Amended and Restated Certificate of Incorporation of the
registrant, as amended (filed as Exhibit 4.1 to the Amendment
No. 1 to the registrants registration statement on Form
8-A/A, filed July 14, 2005)
3
.2
Amended and Restated By-laws of the registrant, as amended
(filed as Exhibit 3.2 to the registrants annual report on
Form 10-K for the year ended December 31, 2007)
10
.1*
1998 Stock Incentive Plan, as amended (filed as Exhibit 10.1 to
the registration statement on Form S-1 filed on May 19, 2000
(registration no. 333-37404))
10
.2*
2000 Employee Stock Purchase Plan, as amended (filed as Exhibit
10.3 to the registrants quarterly report on Form 10-Q for
the quarter ended June 30, 2006)
10
.3*
2000 Outside Director Stock Option Plan, as amended (filed as
Exhibit 10.1 to the registrants quarterly report on Form
10-Q for the quarter ended March 31, 2003)
10
.4
2001 Non-Officer, Non-Director Employee Stock Incentive Plan
(filed as Exhibit 99.1 to the registration statement on Form S-8
filed December 5, 2001 (registration no. 333-74612))
10
.5*
2004 Stock Incentive Plan, as amended (filed as Exhibit 10.2 to
the registrants quarterly report on Form 10-Q for the
quarter ended June 30, 2006)
10
.6*
Form of stock option agreement under 1998 Stock Incentive Plan
(filed as Exhibit 10.3 to the registrants quarterly report
on Form 10-Q for the quarter ended June 30, 2004)
10
.7*
Form of stock option agreement under 2004 Stock Incentive Plan
(filed as Exhibit 10.22 to the registrants annual report
on Form 10-K for the year ended December 31, 2004)
10
.8*
Form of restricted stock agreement under 2004 Stock Incentive
Plan (filed as Exhibit 10.1 to the registrants quarterly
report on Form 10-Q for the quarter ended March 31, 2006)
10
.9
Amended and Restated Registration Rights Agreement, dated as of
August 12, 1998, as amended, by and among the registrant and the
other parties thereto (filed as Exhibit 10.1 to the
registrants quarterly report on Form 10-Q for the quarter
ended June 30, 2002)
10
.10
License Agreement, dated as of June 6, 1990, by and between
Biogen, Inc. and Health Research, Inc., as assigned to the
registrant (filed as Exhibit 10.6 to the registration statement
on Form S-1 filed on May 19, 2000 (registration no. 333-37404))
10
.11
License Agreement dated March 21, 1997, by and between the
registrant and Biogen, Inc. (filed as Exhibit 10.7 to the
registration statement on Form S-1 filed on May 19, 2000
(registration no. 333-37404))
10
.12
License Agreement effective as of March 28, 2003 by and between
AstraZeneca AB and the registrant (filed as Exhibit 10.17 to the
registrants annual report on Form 10-K for the year ended
December 31, 2003)
10
.13
Amendment No. 1 to License Agreement by and between AstraZeneca
AB (filed as Exhibit 10.1 to the registrants quarterly
report on Form 10-Q for the quarter ended June 30, 2006)
10
.14
License Agreement dated as of December 18, 2003 by and between
AstraZeneca AB and the registrant (filed as Exhibit 10.18 to the
registrants annual report on Form 10-K for the year ended
December 31, 2003)
10
.15
Chemilog Development and Supply Agreement, dated as of December
20, 1999, by and between the registrant and UCB Bioproducts S.A.
(filed as Exhibit 10.5 to the registration statement on Form S-1
filed on May 19, 2000 (registration no. 333-37404))
10
.16
Lease for 8 Campus Drive dated September 30, 2002 by and between
Sylvan/Campus Realty L.L.C. and the registrant, as amended
(filed as Exhibit 10.15 to the registrants annual report
on Form 10-K for the year ended December 31, 2003)
10
.17
Third Amendment to Lease for 8 Campus Drive dated December 30,
2004 by and between Sylvan/Campus Realty L.L.C. and the
registrant (filed as Exhibit 10.18 to the registrants
annual report on Form 10-K for the year ended December 31, 2004)
Table of Contents
10
.18
Lease for 400 Fifth Avenue, Waltham, MA dated October 2008
by and between Normandy Waltham Holdings, LLC and the registrant
10
.19*
Employment agreement dated September 5, 1996 by and between the
registrant and Clive Meanwell (filed as Exhibit 10.12 to the
registration statement on Form S-1 filed on May 19, 2000
(registration no. 333-37404))
10
.20*
Letter Agreement dated December 1, 2004 by and between the
registrant and John Kelley (filed as Exhibit 10.25 to the
registrants annual report on Form 10-K for the year ended
December 31, 2004)
10
.21*
Letter Agreement dated February 1, 2006 by and between the
registrant and Catharine S. Newberry (filed as Exhibit 10.22 to
the registrants annual report on Form 10-K for the year
ended December 31, 2005)
10
.22*
Letter Agreement dated March 2, 2006 by and between the
registrant and Glenn P. Sblendorio, (filed as Exhibit 10.23 to
the registrants annual report on Form 10-K for the year
ended December 31, 2005)
10
.23*
Summary of Board of Director Compensation (filed as Exhibit 10.1
to the registrants quarterly report on Form 10-Q for the
quarter ended March 31, 2007)
10
.24*
Form of Amended and Restated Management Severance Agreement by
and between the registrant and each of Clive Meanwell, John
Kelley and Glenn Sblendorio
10
.25*
Form of Amended and Restated Management Severance Agreement by
and between the registrant and each of Paul Antinori, William
OConnor and Kelli Watson
10
.26*
Form of Lock-Up Agreement dated as of December 23, 2005 by and
between the registrant and each of its executive officers and
directors (filed as Exhibit 10.27 to the registrants
annual report on Form 10-K for the year ended December 31,
2005)
10
.27
Consulting Agreement dated April 6, 2007 between Hiroaki Shigeta
and the registrant (filed as Exhibit 10.2 to the
registrants quarterly report on Form 10-Q for the quarter
ended March 31, 2007)
10
.28
Termination and Transition Agreement dated July 1, 2007 between
Nycomed Danmark ApS and the registrant (filed as Exhibit 10.1 to
the registrants quarterly report on Form 10-Q for the
quarter ended September 30, 2007)
10
.29
Distribution Agreement dated July 1, 2007 between Nycomed
Danmark ApS and the registrant, (filed as Exhibit 10.2 to the
registrants quarterly report on Form 10-Q for the quarter
ended September 30, 2007)
10
.30
Services Agreement dated July 1, 2007 between Nycomed Danmark
ApS and the registrant (filed as Exhibit 10.3 to the
registrants quarterly report on Form 10-Q for the quarter
ended September 30, 2007)
10
.31
Amendment to License Agreement dated July 6, 2007 between
AstraZeneca AB and the registrant (filed as Exhibit 10.4 to the
registrants quarterly report on Form 10-Q for the quarter
ended September 30, 2007)
10
.32
Lease for 8 Sylvan Way, Parsippany, NJ dated October 11, 2007 by
and between 8 Sylvan Way, LLC and the registrant (filed as
Exhibit 10.32 to the registrants annual report on Form
10-K for the year ended December 31, 2007)
10
.33*
2007 Equity Inducement Plan (filed as Exhibit 10.1 to the
registration statement on Form S-8 filed January 11, 2008
(registration no. 333-148602))
10
.34*
Form of stock option agreement under 2007 Equity Inducement Plan
(filed as Exhibit 10.34 to the registrants annual report
on Form 10-K for the year ended December 31, 2007)
10
.35*
Form of restricted stock agreement under 2007 Equity Inducement
Plan (filed as Exhibit 10.35 to the registrants annual
report on Form 10-K for the year ended December 31, 2007)
10
.36*
Amended and Restated 2004 Stock Incentive Plan (filed as Exhibit
99.1 to the registrants registration statement on Form
S-8, dated July 3, 2008)
10
.37*
Summary of Annual Cash Bonus Plan (filed as Exhibit 10.2 to
the registrants quarterly report on
Form 10-Q
for the quarter ended June 30, 2008)
10
.38
Amendment No. 2 to License Agreement, dated October 22, 2008 by
and between the registrant and AstraZeneca AB
Table of Contents
10
.39
License Agreement, dated December 23, 2005 by and between
Targanta Therapeutics Corporation (as successor to InterMune,
Inc.) and Eli Lilly and Company (filed as Exhibit 10.11 to
Targantas registration statement on Form S-1 (registration
no. 333-142842), as amended, originally filed with the SEC on
May 11, 2007)
10
.40
Amendment to Lease for 8 Sylvan Way, Parsippany, NJ dated
October 11, 2007 by and between 8 Sylvan Way, LLC and the
registrant
10
.41*
2009 Equity Inducement Plan (filed as Exhibit 10.1 to the
registration statement on Form S-8 filed February 24, 2009
(registration number 333-157499))
10
.42*
Severance Agreement, dated February 17, 2009 by and between
Catharine Newberry and the registrant
21
Subsidiaries of the registrant
23
Consent of Ernst & Young LLP, Independent Registered
Accounting Firm
31
.1
Chief Executive Officer--Certification pursuant to Rule
13a-14(a) of the Securities Exchange Act of 1934, as adopted
pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
31
.2
Chief Financial Officer--Certification pursuant to Rule
13a-14(a) of the Securities Exchange Act of 1934, as adopted
pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
32
.1
Chief Executive Officer--Certification pursuant to
18 U.S.C. Section 1350, as adopted pursuant to Section 906
of the Sarbanes-Oxley Act of 2002
32
.2
Chief Financial Officer--Certification pursuant to
18 U.S.C. Section 1350, as adopted pursuant to Section 906
of the Sarbanes-Oxley Act of 2002
*
Management contract or compensatory plan or arrangement filed as
an exhibit to this form pursuant to Items 15(a) and 15(c)
of
Form 10-K
Confidential treatment requested as to certain portions, which
portions have been omitted and filed separately with the
Securities and Exchange Commission Unless otherwise indicated,
the exhibits incorporated herein by reference were filed under
Commission file number
000-31191.
1
3
3
4
5
6
6
7
8
9
9
10
11
11
12
12
13
13
13
15
15
15
16
16
16
16
19
20
Months of Term |
Annual
Rate
Per Square Foot |
Monthly Base Rent | ||||
1 through 12
|
$52,122.00 | $4,343.50 | ||||
13 through 24 | $54,166.00 | $4,513.83 | ||||
25 through 36 | $56,210.00 | $4,684.17 |
WITNESS/ATTEST: | LANDLORD: | |||||||||
|
||||||||||
NORMANDY WALTHAM HOLDINGS, LLC,
a Delaware limited liability company |
||||||||||
/s/ William OKeefe | ||||||||||
|
||||||||||
Name (print):
|
William OKeefe | By: | /s/ Raymond P. Trevisan | |||||||
|
||||||||||
|
Raymond P. Trevisan | |||||||||
|
/s/ Laura Allen | Vice President | ||||||||
|
|
|||||||||
|
||||||||||
Name (print):
|
Laura Allen | |||||||||
|
WITNESS/ATTEST: | TENANT: | |||||||||||
|
||||||||||||
THE MEDICINES COMPANY,
a Delaware corporation |
||||||||||||
|
||||||||||||
/s/ Kevin J Raslowsky | By: | /s/ William OConnor | ||||||||||
Name (print): Kevin J Raslowsky | Name: | WILLIAM OCONNOR | ||||||||||
|
Title: | CHIEF ACCOUNTING OFFICER | ||||||||||
|
||||||||||||
/s/ Martin Johansson | ||||||||||||
Name (print): Martin Johansson | Tenants Tax ID Number (SSN or FEIN) |
A-1
B-1
B-2
B-3
B-4
C-1
Date
|
|
|||
|
||||
Tenant
|
||||
|
||||
Address
|
||||
|
||||
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|
D-1
By: | ||||
Name: | ||||
Title: | ||||
Date: |
D-2
1. | Sidewalks, doorways, vestibules, halls, stairways and other similar areas shall not be obstructed by Tenant or used by Tenant for any purpose other than ingress and egress to and from the Premises. No rubbish, litter, trash, or material shall be placed, emptied, or thrown in those areas. At no time shall Tenant permit Tenants employees to loiter in Common Areas or elsewhere about the Building or Property. | |
2. | Plumbing fixtures and appliances shall be used only for the purposes for which designed and no sweepings, rubbish, rags or other unsuitable material shall be thrown or placed in the fixtures or appliances. Damage resulting to fixtures or appliances by Tenant, its agents, employees or invitees shall be paid for by Tenant and Landlord shall not be responsible for the damage. |
3. | No signs, advertisements or notices shall be painted or affixed to windows, doors or other parts of the Building, except those of such color, size, style and in such places as are first approved in writing by Landlord, which approval shall not be unreasonably withheld, conditioned or delayed. All tenant identification and suite numbers at the entrance to the Premises shall be installed by Landlord, at Tenants reasonable cost and expense, using the standard graphics for the Building. Except in connection with the hanging of lightweight pictures and wall decorations, no nails, hooks or screws shall be inserted into any part of the Premises or Building except by the Building maintenance personnel without Landlords prior approval, which approval shall not be unreasonably withheld, conditioned or delayed. |
4. | Landlord may provide and maintain in the first floor (main lobby) of the Building an alphabetical directory board or other directory device listing tenants and no other directory shall be permitted unless previously consented to by Landlord in writing. |
5. | Tenant shall not place any lock(s) on any door in the Premises or Building without Landlords prior written consent, which consent shall not be unreasonably withheld, and Landlord shall have the right at all times to retain and use keys or other access codes or devices to all locks within and into the Premises. A reasonable number of keys to the locks on the entry doors in the Premises shall be furnished by Landlord to Tenant at Tenants cost and Tenant shall not make any duplicate keys. All keys shall be returned to Landlord at the expiration or early termination of the Lease. |
6. | All contractors, contractors representatives and installation technicians performing work in the Building shall be subject to Landlords prior approval, which approval shall not be unreasonably withheld, and shall be required to comply with Landlords standard rules, regulations, policies and procedures, which may be revised from time to time. Landlord has no obligation to allow any particular telecommunication service provider to have |
G-1
access to the Buildings or to the Premises. If Landlord permits access, Landlord may condition the access upon the payment to Landlord by the service provider of fees assessed by Landlord in Landlords sole discretion. | ||
7. | Movement in or out of the Building of furniture or office equipment, or dispatch or receipt by Tenant of merchandise or materials requiring the use of elevators, stairways, lobby areas or loading dock areas, shall be restricted to hours reasonably designated by Landlord. Tenant shall obtain Landlords prior approval by providing a detailed listing of the activity, which approval shall not be unreasonably withheld, conditioned, or delayed. If approved by Landlord, the activity shall be under the supervision of Landlord and performed in the manner reasonably required by Landlord. Tenant shall assume all risk for damage to articles moved and injury to any persons resulting from the activity. If equipment, property, or personnel of Landlord or of any other party is damaged or injured as a result of or in connection with the activity, Tenant shall be solely liable for any resulting damage, loss or injury. | |
8. | Landlord shall have the right to approve the weight, size, or location of heavy equipment or articles in and about the Premises, which approval shall not be unreasonably withheld. Damage to the Building by the installation, maintenance, operation, existence or removal of Tenants Property shall be repaired at Tenants sole expense. | |
9. | Corridor doors, when not in use, shall be kept closed. | |
10. | Tenant shall not: (1) make or permit any improper, objectionable or unpleasant noises or odors in the Building, or otherwise interfere in any way with other tenants or persons having business with them; (2) solicit business or distribute or cause to be distributed, in any portion of the Building, handbills, promotional materials or other advertising; or (3) conduct or permit other activities in the Building that might, in Landlords sole opinion, constitute a nuisance. | |
11. | No animals, except those assisting handicapped persons, shall be brought into the Building or kept in or about the Premises. | |
12. | No inflammable, explosive or dangerous fluids or substances shall be used or kept by Tenant in the Premises, Building or about the Property, except for those substances as are typically found in similar premises used for general office purposes and are being used by Tenant in a safe manner and in accordance with all applicable Laws. Tenant shall not, without Landlords prior written consent, use, store, install, spill, remove, release or dispose of, within or about the Premises or any other portion of the Property, any asbestos-containing materials or any solid, liquid or gaseous material now or subsequently considered toxic or hazardous under the provisions of 42 U.S.C. Section 9601 et seq., M.G.L. c. 21C, M.G.L. c. 21E or any other applicable environmental Law which may now or later be in effect. Tenant shall comply with all Laws pertaining to and governing the use of these materials by Tenant and shall remain solely liable for the costs of abatement and removal. | |
13. | Tenant shall not use or occupy the Premises in any manner or for any purpose which might injure the reputation or impair the present or future value of the Premises or the Building. Tenant shall not use, or permit any part of the Premises to be used for lodging, sleeping or for any illegal purpose. |
G-2
14. | Tenant shall not take any action which would violate Landlords labor contracts or which would cause a work stoppage, picketing, labor disruption or dispute or interfere with Landlords or any other tenants or occupants business or with the rights and privileges of any person lawfully in the Building (Labor Disruption). Tenant shall take the actions necessary to resolve the Labor Disruption, and shall have pickets removed and, at the request of Landlord, immediately terminate any work in the Premises that gave rise to the Labor Disruption, until Landlord gives its written consent for the work to resume. Tenant shall have no claim for damages against Landlord or any of the Landlord Related Parties nor shall the Commencement Date of the Term be extended as a result of the above actions. |
15. | Tenant shall not install, operate or maintain in the Premises or in any other area of the Building, electrical equipment that would overload the electrical system beyond its capacity for proper, efficient and safe operation as determined solely by Landlord. Tenant shall not furnish cooling or heating to the Premises, including, without limitation, the use of electronic or gas heating devices, without Landlords prior written consent. Tenant shall not use more than its proportionate share of telephone lines and other telecommunication facilities available to service the Building. |
16. | Tenant shall not operate or permit to be operated a coin or token operated vending machine or similar device (including, without limitation, telephones, lockers, toilets, scales, amusement devices and machines for sale of beverages, foods, candy, cigarettes and other goods), except for machines for the exclusive use of Tenants employees and invitees. |
17. | Bicycles and other vehicles are not permitted inside the Building or on the walkways outside the Building, except in areas designated by Landlord. |
18. | Landlord may from time to time adopt reasonable systems and procedures for the security and safety of the Building, its occupants, entry, use and contents. Tenant, its agents, employees, contractors, guests and invitees shall comply with Landlords reasonable systems and procedures. |
19. | Landlord shall have the right to prohibit the use of the name of the Building or any other publicity by Tenant that in Landlords sole opinion may impair the reputation of the Building or its desirability. Upon written notice from Landlord, Tenant shall refrain from and discontinue such publicity immediately. | |
20. | Neither Tenant nor its agents, employees, contractors, guests or invitees shall smoke or permit smoking in the Common Areas, unless a portion of the Common Areas have been declared a designated smoking area by Landlord, nor shall the above parties allow smoke from the Premises to emanate into the Common Areas or any other part of the Building. Landlord shall have the right to designate the Building (including the Premises) as a non-smoking building. | |
21. | Landlord shall have the right to designate and approve standard window coverings for the Premises and to establish rules to assure that the Building presents a uniform exterior appearance. Tenant shall ensure, to the extent reasonably practicable, that window coverings are closed on windows in the Premises while they are exposed to the direct rays of the sun. |
G-3
22. | Deliveries to and from the Premises shall be made only at the times in the areas and through the entrances and exits reasonably designated by Landlord. Tenant shall not make deliveries to or from the Premises in a manner that might Interfere with the use by any other tenant of its premises or of the Common Areas, any pedestrian use, or any use which is inconsistent with good business practice. | |
23. | The work of cleaning personnel shall not be hindered by Tenant after 5:30 P.M., and cleaning work may be done at any time when the offices are vacant. Windows, doors and fixtures may be cleaned at any time. Tenant shall provide adequate waste and rubbish receptacles to prevent unreasonable hardship to the cleaning service. |
G-4
1. | As used herein, the following terms shall have the following meanings: | |
1.1 | Cause shall mean (i) conviction of (or the entry of a guilty plea or plea of nolo contendere to) any felony or any crime involving moral turpitude or dishonesty; (ii) participation in a fraud or act of dishonesty against the Company or any of its affiliates; (iii) willful and material breach of the Companys or any of its affiliates policies; (iv) intentional and material damage to the Companys or any of its affiliates property; (v) materially unsatisfactory performance of your key duties, responsibilities or objectives, unless such unsatisfactory performance is cured within ninety (90) days after written notice; provided, however, that such opportunity to cure shall not be required where, in the Companys determination, such |
unsatisfactory performance is not capable of cure; or (vi) material breach of your confidentiality obligations or duties under your non-disclosure, non-competition or other similar agreement with the Company or any of its affiliates. | ||
1.2 | Change in Control Event means: |
(i) | any sale or transfer of all or substantially all of the assets of the Company to another corporation or entity, or any merger, consolidation or reorganization of the Company into or with another corporation or entity, with the result that, upon conclusion of the transaction, the voting securities of the Company immediately prior thereto do not represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of the continuing or surviving entity of such merger, consolidation or reorganization; or | ||
(ii) | a disclosure that any person (as the term person is used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act), other than (A) any shareholder who, prior to the Company becoming subject to the reporting requirements of Section 13 of the Exchange Act, previously held at least 30% of the combined voting power of outstanding voting securities of the Company, (B) the Company, or (C) any corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportion as their ownership of stock of the Company, has become the beneficial owner (as the term beneficial owner is defined under Rule 13d-3 or any successor rule or regulation thereto under the Exchange Act) of securities representing 30% or more of the combined voting power of the then outstanding voting securities of the Company; or |
2
(iii) | such time as individuals who as of the date hereof constitute the Board of Directors of the Company, and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect any transaction described in clause (i) or (ii) of this section) whose election by the Board or nomination for election by the Companys stockholders was approved by a vote of at least two-thirds of the directors then still in office who were either directors at the beginning of the period or whose election or whose nomination for election was previously so approved, cease for any reason to constitute a majority of the Board of Directors; or | ||
(iv) | the liquidation or dissolution of the Company. |
1.3 | Exchange Act means the Securities Exchange Act of 1934, as amended. | |
1.4 | Good Reason shall mean the Companys taking any of the following actions, which actions shall not have been cured within a 30-day period following written notice by you: (A) the principal place of the performance of your responsibilities is changed to a location outside of a 30 mile radius from the Principal Location; (B) there is a material reduction in your responsibilities without Cause; (C) there is a material reduction in your annual base salary, unless such reduction is applicable generally to other employees in your grade level; (D) there is a material reduction in your benefits, bonus eligibility or equity eligibility, unless such material reduction is also applicable to other employees in your grade level; or (E) there is a material breach of the Companys obligations to you. |
3
1.5 | Payment Date shall mean the 60th day following the Termination Date, provided that you have executed the release provided in Section 5 hereof and have not revoked the release within the applicable revocation period. | |
1.6 | Principal Location shall mean the principal place of the performance of your responsibilities. | |
1.7 | Termination Date shall mean the date on which the termination of your employment shall become effecive. | |
1.8 | Termination Event shall mean the termination of your employment during the one-year period following the date of the consummation of a Change in Control Event (i) by the Company without Cause; or (ii) by you upon written notice given within thirty (30) days after the Companys taking any action that constitutes Good Reason. | |
2. | If the Company terminates your employment other than for Cause, or if you terminate your employment for Good Reason, and a Change in Control Event has not been consummated prior to such termination, subject to Sections 4, 5 and 6 hereof, the Company will pay to you, and you will be entitled to receive: |
(i) | on the Payment Date, in a lump sum, an amount equal to two (2) years of your then current annual base salary; provided that, in the event that the termination arises as a result of a material reduction in your annual base salary under item (C) of the definition of Good Reason, then the amount payable under this Section 2 (i) shall be determined using your annual base salary prior to such salary reduction, and |
4
(ii) | for a period of twelve (12) months after the Termination Date, reimbursement of COBRA health care premiums actually paid by you and payment by the Company for reasonable outplacement assistance of your choosing; provided that the payments provided in this Section 2 (ii) shall terminate upon your commencing employment with a new employer and, in any event, all payments must be made not later than the end of the year following the year in which the expense was incurred, and | ||
(iii) | accelerated vesting, effective on the Payment Date, of stock options previously granted to you and outstanding immediately prior to the Termination Date which would have vested within two (2) years after the Termination Date (assuming that you had continued to be employed by the Company during such two (2) year period). |
3. | If a Termination Event occurs, subject to Sections 4, 5 and 6 hereof, the Company will pay to you, and you will be entitled to receive: |
(i) | on the Payment Date, in a lump sum, an amount equal to the sum of (A) two (2) years of your then current annual base salary, plus (B) an amount equal to two (2) times percent ( %) of your then current annual base salary; provided that, in the event that the Termination Event arises as a result of a material reduction in your annual base salary under item (C) of the definition of Good Reason, then the amount payable under this Section 3 (i) shall be determined using your annual base salary prior to such salary reduction, and | ||
(ii) | for a period of twelve (12) months after the Termination Date, reimbursement of COBRA health |
5
care premiums actually paid by you and payment by the Company for reasonable outplacement assistance of your choosing; provided that the payments provided in this Section 3 (ii) shall terminate upon your commencing employment with a new employer and, in any event, all payments must be made not later than the end of the year following the year in which the expense was incurred, and | |||
(iii) | accelerated vesting, effective on the Payment Date, of all stock options previously granted to you and outstanding immediately prior to the Termination Date. |
4. | (a) In addition to any other amounts that may be payable to you hereunder, in the event of the termination of your employment with the Company for any reason, the Company will pay you (or in the case of death, your spouse and, in the event you have no spouse, your estate), your base salary earned but not yet paid through the Termination Date, any vacation pay accrued through the Termination Date payable pursuant to the Companys policies in effect from time to time, any unreimbursed business expenses incurred through the Termination Date pursuant to the Companys policies in effect from time to time, and (except if the Company terminates your employment for Cause), any bonus earned but not yet paid prior to your Termination Date. The Company will pay the earned but unpaid bonus in accordance with the terms of the Companys Annual Incentive Plan. |
(b) | The Company may withhold from any and all amounts payable under this Agreement such federal, state and local taxes as may be required to be withheld |
6
pursuant to applicable law or regulation. Upon your termination of employment from the Company, the Company may also offset amounts that you owe to the Company against any amounts payable to you hereunder as permitted by law. | |||
(c) | If your employment is terminated for any reason, you are not required to seek other employment or attempt in any way to reduce any amounts payable to you under this Agreement. The foregoing provision notwithstanding, if you obtain new employment, the Company does not have any obligation to provide the payment of COBRA premiums and outplacement services under Sections 2 (ii) and 3 (ii) of this Agreement. |
5. | In order to receive the payments and benefits provided in this Agreement, you will be required to execute, effective as of the Termination Date, a general release in favor of the Company, in form and substance reasonably satisfactory to the Company. | |
6. | (a) Any provision in this Agreement (or any agreement or arrangement referenced herein) that is inconsistent with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the Code), and the regulations issued or to be issued by the Department of the Treasury thereunder (Section 409A), including the timing of any payment, shall be promptly amended in a manner mutually agreed to by the parties hereto in good faith in order to attempt to avoid triggering adverse tax consequences to you under Section 409A. |
(b) | In the event any payment that is either received by you or paid by the Company on your behalf, or any |
7
cash, property or any other benefit provided to you under this Agreement or under any other plan, arrangement or agreement with the Company or any other person is treated as contingent on a change of ownership or control of the Company (or in the ownership of a substantial portion of the assets of the Company) (collectively, the Company Payments), and is subject to the tax (the Excise Tax) imposed by Section 4999 of the Code (or any successor provision and any similar tax that may hereafter be imposed by any taxing authority), the amount of the Company Payments shall be automatically reduced to the maximum amount that can be paid such that no portion of the Company Payments is subject to the Excise Tax; provided, however, that the reduction shall occur only if the reduced Company Payments (after taking into account further reductions for applicable federal, state and local income, social security and other taxes) would be greater than the unreduced Company Payments minus (i) the Excise Tax payable with respect to such Company Payments, and (ii) all applicable federal, state and local income, social security and other taxes on such Company Payments. |
7. | By signing this Agreement, you acknowledge and reaffirm your obligation to keep confidential all non-public information concerning the Company which you acquired during the course of your employment with the Company, as stated more fully in the Invention and Non-Disclosure Agreement, and your obligations not to compete with the Company or to solicit or hire employees of the Company, as stated more fully in the Non-Competition and Non-Solicitation Agreement, both of which agreements you executed at the inception of your employment and which |
8
remain in full force and effect following the termination of your employment. |
8. | No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by the parties hereto. | |
9. | This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. This Agreement is assignable by the Company only to an entity that is owned, directly or indirectly, in whole or in part by the Company or by any successor to the Company or an acquirer of all or substantially all of the assets of the Company. | |
10. | Any provision contained herein to the contrary notwithstanding, if you are a specified employee (as defined under Treasury Regulation Section 1.409A-1(i)) as of the Termination Date, the Company shall withhold and accumulate all payments under Sections 2 and 3 to which you would otherwise be entitled during the first six (6) months after the Termination Date to the extent required for compliance with Section 409A. In such event, the Company shall distribute these payments to you (or your beneficiary) in a single lump sum on the first day of the seventh month after the Termination Date, or within thirty (30) days after the date of your death after the Termination Date. |
9
Very truly yours,
THE MEDICINES COMPANY |
||||
By: | ||||
Name: | ||||
Title: | ||||
ACCEPTED AND AGREED:
|
||||
[Name] | ||||
Date: |
10
1. | As used herein, the following terms shall have the following meanings: | |
1.1 | Cause shall mean (i) conviction of (or the entry of a guilty plea or plea of nolo contendere to) any felony or any crime involving moral turpitude or dishonesty; (ii) participation in a fraud or act of dishonesty against the Company or any of its affiliates; (iii) willful and material breach of the Companys or any of its affiliates policies; (iv) intentional and material damage to the Companys or any of its affiliates property; (v) materially unsatisfactory performance of your key duties, responsibilities or objectives, unless such unsatisfactory performance is cured within ninety (90) days after written notice; provided, however, that such opportunity to cure shall not be required where, in the Companys determination, such unsatisfactory performance is not capable of cure; or (vi) material breach of your confidentiality obligations or duties under your non-disclosure, non- competition or other similar agreement with the Company or any of its affiliates. |
1.2 | Change in Control Event means: |
(i) | any sale or transfer of all or substantially all of the assets of the Company to another corporation or entity, or any merger, consolidation or reorganization of the Company into or with another corporation or entity, with the result that, upon conclusion of the transaction, the voting securities of the Company immediately prior thereto do not represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of the continuing or surviving entity of such merger, consolidation or reorganization; or | ||
(ii) | a disclosure that any person (as the term person is used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act), other than (A) any shareholder who, prior to the Company becoming subject to the reporting requirements of Section 13 of the Exchange Act, previously held at least 30% of the combined voting power of outstanding voting securities of the Company, (B) the Company, or (C) any corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportion as their ownership of stock of the Company, has become the beneficial owner (as the term beneficial owner is defined under Rule 13d-3 or any successor rule or regulation thereto under the Exchange Act) of securities representing 30% or more of the combined voting power of the then outstanding voting securities of the Company; or | ||
(iii) | such time as individuals who as of the date hereof constitute the Board of Directors of the Company, and any new director (other than a director designated by a person who has entered into an agreement with the |
2
Company to effect any transaction described in clause (i) or (ii) of this section) whose election by the Board or nomination for election by the Companys stockholders was approved by a vote of at least two-thirds of the directors then still in office who were either directors at the beginning of the period or whose election or whose nomination for election was previously so approved, cease for any reason to constitute a majority of the Board of Directors; or | |||
(iv) | the liquidation or dissolution of the Company. |
1.3 | Exchange Act means the Securities Exchange Act of 1934, as amended. | |
1.4 | Good Reason shall mean the Companys taking any of the following actions, which actions shall not have been cured within a 30-day period following written notice by you: (A) the principal place of the performance of your responsibilities is changed to a location outside of a 30 mile radius from the Principal Location; (B) there is a material reduction in your responsibilities without Cause; (C) there is a material reduction in your annual base salary, unless such reduction is applicable generally to other employees in your grade level; (D) there is a material reduction in your benefits, bonus eligibility or equity eligibility, unless such material reduction is also applicable to other employees in your grade level; or (E) there is a material breach of the Companys obligations to you. | |
1.5 | Payment Date shall mean the 60th day following the Termination Date, provided that you have executed the release provided in Section 5 hereof and have not revoked the release within the applicable revocation period. |
3
1.6 | Principal Location shall mean the principal place of the performance of your responsibilities. | |
1.7 | Termination Date shall mean the date on which the termination of your employment shall become effecive. | |
1.8 | Termination Event shall mean the termination of your employment during the one-year period following the date of the consummation of a Change in Control Event (i) by the Company without Cause; or (ii) by you upon written notice given within thirty (30) days after the Companys taking any action that constitutes Good Reason. | |
2. | If the Company terminates your employment other than for Cause, or if you terminate your employment for Good Reason, and a Change in Control Event has not been consummated prior to such termination, subject to Sections 4, 5 and 6 hereof, the Company will pay to you, and you will be entitled to receive: |
(i) | on the Payment Date, in a lump sum, an amount equal to one (1) year of your then current annual base salary; provided that, in the event that the termination arises as a result of a material reduction in your annual base salary under item (C) of the definition of Good Reason, then the amount payable under this Section 2 (i) shall be determined using your annual base salary prior to such salary reduction, and | ||
(ii) | for a period of twelve (12) months after the Termination Date, reimbursement of COBRA health care premiums actually paid by you and payment by the Company for reasonable outplacement assistance of your choosing; provided that the payments provided in this Section 2 (ii) shall terminate upon |
4
your commencing employment with a new employer and, in any event, all payments must be made not later than the end of the year following the year in which the expense was incurred, and | |||
(iii) | accelerated vesting, effective on the Payment Date, of stock options previously granted to you and outstanding immediately prior to the Termination Date which would have vested within one (1) year after the Termination Date (assuming that you had continued to be employed by the Company during such one (1) year period). |
3. | If a Termination Event occurs, subject to Sections 4, 5 and 6 hereof, the Company will pay to you, and you will be entitled to receive: |
(i) | on the Payment Date, in a lump sum, an amount equal to the sum of (A) one (1) year of your then current annual base salary, plus (B) an amount equal to _____ percent (____%) of your then current annual base salary; provided that, in the event that the Termination Event arises as a result of a material reduction in your annual base salary under item (C) of the definition of Good Reason, then the amount payable under this Section 3 (i) shall be determined using your annual base salary prior to such salary reduction, and | ||
(ii) | for a period of twelve (12) months after the Termination Date, reimbursement of COBRA health care premiums actually paid by you and payment by the Company for reasonable outplacement assistance of your choosing; provided that the payments provided in this Section 3 (ii) shall terminate upon your commencing employment with a new employer and, in any event, all payments must be made not |
5
later than the end of the year following the year in which the expense was incurred, and | |||
(iii) | accelerated vesting, effective on the Payment Date, of all stock options previously granted to you and outstanding immediately prior to the Termination Date. |
4. | (a) | In addition to any other amounts that may be payable to you hereunder, in the event of the termination of your employment with the Company for any reason, the Company will pay you (or in the case of death, your spouse and, in the event you have no spouse, your estate), your base salary earned but not yet paid through the Termination Date, any vacation pay accrued through the Termination Date payable pursuant to the Companys policies in effect from time to time, any unreimbursed business expenses incurred through the Termination Date pursuant to the Companys policies in effect from time to time, and (except if the Company terminates your employment for Cause), any bonus earned but not yet paid prior to your Termination Date. The Company will pay the earned but unpaid bonus in accordance with the terms of the Companys Annual Incentive Plan. |
(b) | The Company may withhold from any and all amounts payable under this Agreement such federal, state and local taxes as may be required to be withheld pursuant to applicable law or regulation. Upon your termination of employment from the Company, the Company may also offset amounts that you owe to the Company against any amounts payable to you hereunder as permitted by law. |
6
(c) | If your employment is terminated for any reason, you are not required to seek other employment or attempt in any way to reduce any amounts payable to you under this Agreement. The foregoing provision notwithstanding, if you obtain new employment, the Company does not have any obligation to provide the payment of COBRA premiums and outplacement services under Sections 2 (ii) and 3 (ii) of this Agreement. |
5. | In order to receive the payments and benefits provided in this Agreement, you will be required to execute, effective as of the Termination Date, a general release in favor of the Company, in form and substance reasonably satisfactory to the Company. | ||
6. | (a) | Any provision in this Agreement (or any agreement or arrangement referenced herein) that is inconsistent with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the Code), and the regulations issued or to be issued by the Department of the Treasury thereunder (Section 409A), including the timing of any payment, shall be promptly amended in a manner mutually agreed to by the parties hereto in good faith in order to attempt to avoid triggering adverse tax consequences to you under Section 409A. |
(b) | In the event any payment that is either received by you or paid by the Company on your behalf, or any cash, property or any other benefit provided to you under this Agreement or under any other plan, arrangement or agreement with the Company or any other person is treated as contingent on a change of ownership or control of the Company (or in the |
7
ownership of a substantial portion of the assets of the Company) (collectively, the Company Payments), and is subject to the tax (the Excise Tax) imposed by Section 4999 of the Code (or any successor provision and any similar tax that may hereafter be imposed by any taxing authority), the amount of the Company Payments shall be automatically reduced to the maximum amount that can be paid such that no portion of the Company Payments is subject to the Excise Tax; provided, however, that the reduction shall occur only if the reduced Company Payments (after taking into account further reductions for applicable federal, state and local income, social security and other taxes) would be greater than the unreduced Company Payments minus (i) the Excise Tax payable with respect to such Company Payments, and (ii) all applicable federal, state and local income, social security and other taxes on such Company Payments. |
7. | By signing this Agreement, you acknowledge and reaffirm your obligation to keep confidential all non-public information concerning the Company which you acquired during the course of your employment with the Company, as stated more fully in the Invention and Non-Disclosure Agreement, and your obligations not to compete with the Company or to solicit or hire employees of the Company, as stated more fully in the Non-Competition and Non-Solicitation Agreement, both of which agreements you executed at the inception of your employment and which remain in full force and effect following the termination of your employment. |
8
8. | No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by the parties hereto. | |
9. | This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. This Agreement is assignable by the Company only to an entity that is owned, directly or indirectly, in whole or in part by the Company or by any successor to the Company or an acquirer of all or substantially all of the assets of the Company. | |
10. | Any provision contained herein to the contrary notwithstanding, if you are a specified employee (as defined under Treasury Regulation Section 1.409A-1(i)) as of the Termination Date, the Company shall withhold and accumulate all payments under Sections 2 and 3 to which you would otherwise be entitled during the first six (6) months after the Termination Date to the extent required for compliance with Section 409A. In such event, the Company shall distribute these payments to you (or your beneficiary) in a single lump sum on the first day of the seventh month after the Termination Date, or within thirty (30) days after the date of your death after the Termination Date. |
9
Very truly yours,
THE MEDICINES COMPANY |
||||
By: | ||||
Name: | ||||
Title: | ||||
ACCEPTED AND AGREED:
|
||||
[Name] | ||||
10
1. | Capitalized terms used herein but not otherwise defined herein, shall have the meanings provided in the Agreement. |
2. | Article 3.7.2 is amended and restated as follows: |
(a) | TMC shall no later than 30 September 2007 have made a Filing of an NDA in the United States. | ||
(b) | TMC shall no later than 30 September 2009 have made a filing of an NDA in all the additional Major Markets, except as provided for in Article 3.7.2(c). | ||
(c) | TMC shall no later than 31 December 2010 have made a Filing of an NDA in Japan. |
3. | This Amendment No. 2 shall be deemed to be part of the Agreement and, as modified in accordance herewith, the Agreement is hereby ratified and declared in full force and effect. This Amendment No. 2 shall be effective as of the date first written above. |
ASTRAZENECA AB (publ) | THE MEDICINES COMPANY | |||||
|
||||||
|
||||||
By:
|
/s/ Gunnar Olsson | By: | /s/ John Kelley | |||
|
||||||
|
Name: Gunnar Olsson | Name: John Kelley | ||||
|
Title: VP & Head of CVGI Therapy Area | Title: President and Chief Operating Officer |
(3)
|
Premises: | 173,146 rentable square feet for the Existing Building and the Additional Building and 2,916 rentable square feet for the Storage Shed which shall be leased by Tenant in stages as set forth below: | ||
|
||||
|
From the Commencement Date until the day immediately preceding the Phase 2 & 3 Premises Commencement Date: | |||
|
105,211 rentable square feet of space in the Existing Building (which is all of the space in the Existing Building), 24,052 rentable square feet on the 3 rd floor of the Additional Building (which is all of the space on the third ( 3 rd ) floor of the Additional Building) and the Storage Shed containing 2,916 rentable square feet (collectively the Phase 1 Premises ). | |||
|
||||
|
From the Phase 2 & 3 Commencement Date until the Termination Date the Premises shall consist of the following: (i) the Phase 1 Premises, (ii) all of the space |
2
located on the first floor of the Additional Building,
which is comprised of 21,915 square feet (the
Phase 2
Premises"
)
,
and (iii) all of the space located on the second
floor of the Additional Building, which is comprised of 21,968
square feet (the
Phase 3
Premises"
).
Term:
Fifteen (15) years.
Rent Date:
November 22, 2008.
Estimated
Commencement
Date for Phase 1
Premises:
December 6, 2008.
Phase 2 & 3
Estimated
Commencement
Date:
November 22, 2009 (the
Phase 2 & 3 Estimated Commencement
Date"
)
with respect to the Phase 2 and Phase 3 Premises.
Termination Date:
The day immediately preceding the fifteenth
(15
th
) year anniversary of the Commencement Date, or
such earlier date upon which the Term may expire or be
terminated.
Phase 1 Premises
Commencement Date:
The earlier of: (i) the date Landlord has Substantially
Completed Tenants Finish Work with respect to the Phase 1
Premises, or (ii) the date Landlord would have Substantially
Completed Tenants Finish Work with respect to the Phase 1
Premises, but for a Tenant Delay.
Phase 2 & 3 Premises
Commencement: Date:
The earlier of: (i) the date Landlord has Substantially
Completed Tenants Finish Work with respect to the Phase 2
Premises and the Phase 3 Premises, or (ii) the date Landlord
would have Substantially Completed Tenants Finish Work with
respect to the Phase 2 Premises and the Phase 3 Premises, but
for a Tenant Delay. Notwithstanding anything to the contrary
contained in this Lease, in no event shall the Phase 2 & 3
Premises Commencement Date occur prior to November 22, 2009.
3
k.
|
At Tenants expense, Tenant shall provide to Landlord the Final Plans for the Phase 2 Premises and the Phase 3 Premises on or before: | 4/1/09 | ||
|
||||
1.
|
Expediter will file for a building permit for the Phase 2 Premises and the Phase 3 Premises not more than ten days after receipt of construction drawings: | 4/13/09 (estimated) | ||
|
||||
m.
|
Based on the Final Plans and subcontractor bids accepted by Tenant, Landlord shall provide a final all-in budget for the Phase 2 Premises and the Phase 3 Premises on or before: | 7 weeks after filing for permit | ||
|
||||
n.
|
Based on the scope selected by Tenant, Landlord and Tenant shall agree upon a budget for the Phase 2 Premises and the Phase 3 Premises on or before: | 2 weeks after Landlord has provided the all-in budget (m, above) | ||
|
||||
o.
|
Subject to Excusable Delays, Landlord will obtain a building permit for the Phase 2 Premises and the Phase 3 Premises on or before: | 12 weeks after filing for permit | ||
|
||||
p.
|
Landlord shall Substantially Complete the Tenant Finish Work for the Phase 2 Premises and the Phase 3 Premises and shall obtain a Certificate of Occupancy or a Temporary Certificate of Occupancy on or before: | 20 weeks from receipt of building permit. |
4
5
6
WITNESS: |
Landlord:
8 SYLVAN WAY, LLC By: Hampshire Partners Fund VI, L.P., its sole member By: Hampshire Partners LLC, its General Partner |
||||||
/s/ Sandria Miele | By: | /s/ Todd Anderson | |||||
Name: | Todd Anderson | ||||||
Title: | Portfolio Manager | ||||||
WITNESS: |
Tenant:
THE MEDICINES COMPANY |
||||||
/s/ WILLIAM OCONNOR | By: | /s/ CLIVE MEANWELL | |||||
WILLIAM OCONNOR | Name: | CLIVE MEANWELL | |||||
V.P., CAO | Title: | Chairman & CEO | |||||
7
o | Your employment with the Company will end on the Termination Date and you will receive payments of any salary owed through the Termination Date and any unused vacation time accrued through the Termination Date; | ||
o | You may elect to purchase group medical insurance pursuant to the federal COBRA law, 29 U.S.C. § 1161 et seq., for as long as, and to the extent that, you remain eligible for COBRA continuation. You should consult the COBRA materials to be provided by the Company for details regarding these benefits; | ||
o | All other benefits or compensation provided to you as an employee of the Company, including life insurance and long-term disability, will cease upon the Termination Date, except that you are entitled to receive your vested accrued benefits, if any, under the Companys 401(k) Plan; and | ||
o | Vesting under any stock option grants you have received from the Company ends on the Termination Date. Nothing in this letter shall constitute a waiver or amendment of any rights you may have under any stock option grants you have received from the Company. You will have a period of 90 days after the Termination Date to exercise all of the options that have vested. |
- 2 -
1. | Termination of Employment Your employment with the Company shall terminate on the Termination Date, without further notice from, or action on the part of, the Company and all benefits of employment shall cease on the Termination Date. In the period prior to the Termination Date, you will remain an employee of the Company and will transition your responsibilities to other employees of the Company. In addition, effective as of the Termination Date, you will no longer serve in any other capacity with the Company and you hereby resign from any and all offices, trusteeships, committee memberships and fiduciary capacities held with, or on behalf of, the Company or any benefit plans of the Company. | ||
2. | Severance Benefits Subject to your compliance with the terms of this letter agreement, the Company will pay to you, and you will be entitled to receive, the following (collectively, the Severance Benefits): |
(i) | an amount equal to one (1) year of your current annual base salary, less all applicable federal, state and local taxes, payable in one (1) lump sum on the 60 th day following the Termination date provided that you have not revoked your acceptance to the letter agreement within the applicable revocation period set forth in Paragraph 16; | ||
(ii) | a bonus in the amount of $53,865 earned in accordance with the terms of the Companys Annual Incentive Plan; | ||
(iii) | for a period of twelve (12) months after the Termination Date, reimbursement of COBRA health care premiums actually paid by you and payment by the Company for reasonable outplacement of your choosing; provided that the payments provided in this |
- 3 -
Paragraph 2 (iii) shall terminate upon your commencing employment with a new employer, and in any event, all payments must be made not later than the end of the year following the year in which the expense was incurred; and |
(iv) | accelerated vesting, effective on the Payment Date, of stock options previously granted to you and outstanding immediately prior to the Termination Date which would have vested within one (1) year after the Termination Date (assuming that you had continued to be employed by the Company during such one (1) year period). |
3. | Full Discharge You agree and acknowledge that the payments and benefits provided in Paragraph 2 above: (a) are in full discharge of any and all liabilities and obligations of the Company to you, monetarily or with respect to employee benefits or otherwise, including, without limitation, any and all obligations arising under any alleged written or oral employment agreement, policy, plan or procedure of the Company and/or any alleged understanding or arrangement between you and the Company or any of its officers or directors; and (b) exceed any payment, benefit, or other thing of value to which you might otherwise be entitled but for this letter under any policy, plan or procedure of the Company or any prior agreement between you and the Company. | ||
4. | Release In consideration of the payment and provision of the Severance Benefits, you, for yourself and for your heirs, dependents, executors, legal representatives and assigns (the Releasors), hereby fully, forever, irrevocably and unconditionally release, remise and discharge: (i) the |
- 4 -
Company; (ii) its affiliates, subsidiaries and parent companies; (iii) any of its or their insurers, employee benefit plans or funds, fiduciaries, trustees, agents, attorneys, officers, directors, stockholders, and employees (each in their individual and corporate capacities); and (iv) any of their successors and assigns (hereinafter, the Released Parties) from any and all claims, charges, complaints, demands, actions, causes of action, suits, rights, debts, sums of money, costs, accounts, reckonings, covenants, contracts, agreements, promises, doings, omissions, damages, executions, obligations, liabilities, and expenses (including attorneys fees and costs), of every kind and nature which you (or any of the other Releasors) ever had or now have or may have against the Released Parties arising out of your employment with and/or separation from the Company, or out of any other agreement, understanding, relationship or arrangement with the Company including, but not limited to: |
(i) | any agreement you have with the Company; | ||
(ii) | all employment discrimination claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq., the | ||
Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq ., the Americans With Disabilities Act of 1990, 42 U.S.C., §12101 et seq ., the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq ., the Older Workers Benefits Protection Act, the Equal Pay Act, the Worker Adjustment Retraining and Notification Act, the Federal Fair Labor Standards Act, any applicable Executive Order Programs and their state and local counterparts, the New Jersey Law Against |
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Discrimination, N.J.S.A. 10:5-1 et seq. , all claims arising out of the Fair Credit Reporting Act, 15 U.S.C. §1681 et seq. , the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §1001 et seq. , the New Jersey Conscientious Employee Protection Act, N.J.S.A. 34:19-1 et seq. , the New Jersey Family Leave Act, N.J.S.A. 34:11B-1 et seq. , the New Jersey Workers Compensation Act, the New Jersey State Wage and Hour Law, the New Jersey Wage Payment Law and the New Jersey Political Activities of Employees law, all as amended; |
(iii) | all common law claims including, but not limited to, actions in tort, defamation, infliction of emotional distress, detrimental reliance, wrongful discharge and breach of contract; all claims arising under any policies, practices or procedures of the Company; all claims to any non-vested ownership interest in the Company, contractual or otherwise, including but not limited to claims to stock or stock options; | ||
(iv) | any other claim for damage arising out of your employment with or separation from the Company (including a claim for retaliation) under any common law theory or any federal, state or local statute or ordinance not expressly referenced above; and | ||
(v) | any claim for attorneys fees, costs, disbursements and the like. |
This release shall not apply with respect to (i) any rights or benefits to which Employee is entitled hereunder or to the enforcement thereof, (ii) all rights to seek or obtain |
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unemployment compensation, and Company agrees not to contest any claims which Employee may make for unemployment compensation benefits; (iii) all rights to vested benefits under any retirement plan, health benefits plan or other employee benefit plan or program of Company; and (iv) all rights Employee may have to seek indemnification and be indemnified to the fullest extent permitted for former officers or employees under applicable law and/or Companys organization documents and by-laws (including coverage under any insurance that Company had, has or may obtain for the benefit of its former officers or employees). |
5. | Continuing Obligations |
(i) | You acknowledge and reaffirm your obligation to keep confidential all non-public information concerning the Company which you acquired during the course of your employment with the Company, as stated more fully in the Invention and Non-Disclosure Agreement, and your obligations not to compete with the Company or to solicit or hire employees of the Company, as stated more fully in the Non-Competition and Non-Solicitation Agreement, both of which agreements you executed at the inception of your employment and which remain in full force and effect following the termination of your employment; and | ||
(ii) | You also agree to make yourself reasonably available to assist the Company in the prosecution and/or |
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defense of any legal proceedings in which your participation, as a witness or otherwise, may be required. |
6. | Return of Company Property You understand that you must return all property of the Company. By signing this letter agreement, you confirm and acknowledge that you have returned to the Company all keys, files, records (and copies thereof), equipment (including, but not limited to, computer hardware, software and printers, wireless handheld devices, cellular phones, pagers, etc.), Company identification, Company vehicles and any other Company-owned property in your possession or control and have left intact all electronic Company documents, including but not limited to those which you developed or help develop during your employment. You further confirm that you have cancelled all accounts for your benefit, if any, in the Companys name, including but not limited to, credit cards, telephone charge cards, cellular phone and/or pager accounts and computer accounts. | ||
7. | Business Expenses and Compensation You acknowledge that you have been reimbursed by the Company for all business expenses incurred in conjunction with the performance of your employment and that no other reimbursements are owed to you. You further acknowledge that you have received payment in full for all services rendered in conjunction with your employment by the Company and that no other compensation is owed to you. | ||
8. | Non-Disparagement - You understand and agree that as a condition for payment to you of the consideration described herein, you shall not make any false, disparaging or |
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derogatory statements to any media outlet, industry group, financial institution or current or former employee, consultant, client or customer of the Company regarding the Company or any of its directors, officers, employees, agents or representatives or about the Companys business affairs and financial condition. The Company agrees that it will use commercially reasonable efforts to ensure that its current executive officers and directors shall not make any false, disparaging or derogatory statements about you to any media outlet, industry group, financial institution or current or former employee, consultant, client or customer of the Company. |
9. | Reference You are directed to have all inquiries for references regarding your employment with the Company directed to Beth Codner, Senior Director Human Resources. | ||
10. | Amendment - This letter agreement shall be binding upon the parties and may not be modified in any manner except by an instrument in writing of concurrent or subsequent date signed by duly authorized representatives of the parties hereto. This letter agreement is binding upon and shall inure to the benefit of the parties and their respective agents, assigns, heirs, executors, successors and administrators. | ||
11. | Waiver of Rights No delay or omission by either party in exercising any right under this letter agreement shall operate as a waiver of that or any other right. A waiver or consent given by a party 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. | ||
12. | Validity - Should any provision of this letter agreement be declared or be determined by any court of competent |
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jurisdiction to be illegal or invalid, the validity of the remaining parts, terms or provisions shall not be affected thereby and said illegal or invalid part, term or provision shall be deemed not to be a part of this letter agreement. |
13. | Confidentiality You understand and agree that as a condition for payment to you of the Severance Benefits, the terms and contents of this letter agreement, and the negotiations and discussions resulting in this letter agreement, shall be maintained as confidential by you and your agents and representatives and shall not be disclosed by you and your agents and representatives to any person except: (i) to the extent required by federal or state law; (ii) to your spouse, accountant and attorney (provided that they are notified of and comply with this confidentiality provision); or (iii) as otherwise agreed to in writing by the Company. | ||
14. | Nature of Agreement You understand and agree that this letter agreement is a severance agreement and does not constitute an admission of liability or wrongdoing on the part of the Company. | ||
15. | Voluntary Assent You affirm that, other than as set forth herein, no promises or agreements of any kind have been made to or with you by any person or entity whatsoever to cause you to sign this letter agreement, and that you fully understand the meaning and intent of this letter agreement. You state and represent that | ||
you have had an opportunity to fully discuss and review the terms of this letter agreement with an attorney. You further state and represent that you have carefully read this letter agreement, understand the contents hereof, freely and |
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voluntarily assent to all of the terms and conditions hereof, and sign your name of your own free act. |
16. | Acknowledgement and Revocation You acknowledge that you have been given at least twenty-one (21) days to consider this letter agreement, and that the Company hereby advises you to consult with an attorney of your own choosing prior to signing this agreement. You may revoke your agreement to this letter agreement for a period of seven (7) days following the date you deliver the signed agreement to the Company. Any revocation within this period must be submitted in writing to the Company and state I hereby revoke my agreement to the letter agreement dated February 17, 2009. The revocation must be delivered to, and received by, the Company within seven (7) days after the day you deliver the signed agreement to the Company. This agreement shall not become effective or enforceable until the revocation period has expired without your having revoked your agreement. | ||
17. | Applicable Law This letter agreement shall be interpreted and construed by the laws of the State of New Jersey, without regard to conflict of laws provisions. | ||
18. | Withholding The Company may withhold from any amounts payable under this letter such federal, state and local taxes as are required to be withheld (with respect to amounts payable hereunder or under any benefit plan or arrangement maintained by the Company) pursuant to any applicable law or regulation. | ||
19. | Entire Agreement This letter agreement contains and constitutes the entire understanding and agreement between the parties hereto with respect to the termination of your employment with the Company, the Severance Benefits and |
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the release of claims against the Company and cancels all previous oral and written negotiations, agreements, commitments, writings in connection therewith. Nothing in this Paragraph 19, however, shall modify, cancel or supersede your obligations set forth in Paragraph 5 herein. |
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Very truly yours,
THE MEDICINES COMPANY |
||||
By: | /s/ Leslie Rohrbacker | |||
Leslie C. Rohrbacker, Vice President, | ||||
Deputy General Counsel | ||||
February 19, 2009
|
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|
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/s/ Catharine Newberry
|
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Name of Subsidiary | Jurisdiction of Incorporation or Organization | |
MDCO Holdings C.V.
|
Netherlands | |
Targanta Development, L.P.*
|
Cayman Islands | |
Targanta Holdings, Inc.*
|
Delaware | |
Targanta Netherlands B.V.*
|
Netherlands | |
Targanta Research, LLC*
|
Delaware | |
Targanta Securities Corporation*
|
Massachusetts | |
Targanta Therapeutics Corporation*
|
Delaware | |
Targanta Therapeutics Inc.*
|
Canada | |
Targanta Therapeutics (Ontario), Inc.*
|
Canada | |
The Medicines Company France SAS
|
France | |
The Medicines Company Holdings, Inc.
|
Delaware | |
The Medicines Company (Deutschland) GmbH
|
Germany | |
The Medicines Company (Italy) S.r.l.
|
Italy | |
The Medicines Company (Leipzig) GmbH
|
Germany | |
The Medicines Company (NL) B.V.
|
Netherlands | |
The Medicines Company (Schweiz) GmbH
|
Switzerland | |
The Medicines Company UK Limited
|
England and Wales |
* | Acquired in February 2009 in connection with The Medicines Companys acquisition of Targanta Therapeutics Corporation |
/s/
Clive A. Meanwell
|
/s/ Glenn
P. Sblendorio
|
By: |
/s/ Clive
A. Meanwell
|
By: |
/s/ Glenn
P. Sblendorio
|