Exhibit 10.1
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT (
“Agreement” ) made as of March 18, 2009
(“ Effective Date ”) by and between BioMarin
Pharmaceutical Inc., a Delaware corporation (the “
Company ”) and Henry J. Fuchs (“ Employee
”).
NOW THEREFORE, for good and valuable
consideration (the receipt and adequacy of which are hereby
acknowledged and agreed) the parties hereby covenant and agree as
follows:
1. Title; Duties . The
Company hereby employs the Employee as Senior Vice President and
Chief Medical Officer to perform such duties consistent with his
title and position as may be determined and assigned to him by the
Company’s Chief Executive Officer (“ CEO
”). The Employee shall be based in Novato, California,
provided that Employee acknowledges that his job duties may require
significant travel.
2. Time and Effort . The
Employee agrees to devote substantially all of his professional
employment time and effort to the performance of his duties as
Senior Vice President and Chief Medical Officer for the Company and
to perform such other duties consistent with his title and position
as are reasonably assigned him from time to time by the
CEO.
3. Term . The Company agrees
to employ the Employee in accordance with the terms of this
Agreement, which terms shall be effective commencing on the
Effective Date and continuing thereafter until terminated pursuant
to Section 6 or 7 hereof (the “
Term ” of this Agreement). A review of the
Employee’s total compensation will be made by the Board of
Directors of the Company (“ Board ”) at least
annually in or about December of each year based on the overall
performance of the Company and the Company’s assessment of
the Employee’s contributions to the Company’s
performance, although the Board shall not be under any obligation
to make adjustments other than pursuant to its
discretion.
4. Compensation; Benefits
.
(a) Base Salary . For all the
services to be rendered by the Employee in any capacity hereunder,
including services as an executive officer, the Company agrees to
pay the Employee a base salary (“ Base Salary ”)
of not less than four hundred ten thousand dollars ($410,000) per
annum. Base Salary shall be payable in approximately equal
installments in accordance with the Company’s customary
payroll practices. The foregoing annual compensation amount may be,
from time to time, adjusted above the Base Salary specified above
by action of the Board or appropriate Committee of the Board. In
the event the Base Salary is adjusted upward by the Board, such
adjusted amount will be deemed to be the new Base
Salary.
(b) Annual Bonus . The
Employee shall be entitled to participate in the Company’s
generally applicable employee bonus program, with such targets and
metrics as may be approved by the Board from time to time. For the
2009 bonus plan, Employee’s target bonus will be 40% of Base
Salary. Notwithstanding the fact that Employee was hired on
March 2, 2009, any amounts earned by Employee under the 2009
bonus plan shall not be prorated.
(c) Benefits Plans . The
Employee also shall participate fully in all insurance, pension,
retirement, deferred compensation, stock and stock option, stock
purchase or similar compensation and benefit plans and programs
pursuant to the terms of such plans or programs.
(d) Vacation . The Employee
shall be entitled to annual paid vacation time of four
(4) weeks, accruing ratably over the course of each year of
employment, to be taken at such time or times as the Employee may
select, consistent with his obligations hereunder. Vacation days
not taken during an applicable fiscal year may be carried over to
the extent permitted under the Company’s vacation policy to
the following fiscal year pursuant such policy.
(e) Expenses . The Company
shall reimburse the Employee for all reasonable and customary
travel, business and entertainment expenses incurred in connection
with the Employee’s performance of his services hereunder in
accordance with the policies and procedures established by the
Company and paid promptly after the Employee makes a request
therefore and no later than the end of the calendar year following
the calendar year in which the expenses were incurred by the
Employee.
(f) Withholding . The amounts
payable pursuant to this Agreement shall be subject to withholding
for appropriate taxes, assessments or withholdings as required by
applicable law.
5. Other Plans . The Company
and the Employee hereby agree that nothing contained herein is
intended to or shall be deemed to affect any of the
Employee’s rights as a participant under any retirement,
stock option, stock purchase, pension, insurance, profit-sharing or
similar plans of the Company now or hereafter declared to be in
effect. The Company recognizes that the Employee is induced to
execute this Agreement and to accept compensation at the rate set
forth herein in part because he expects to be a participant under
such plans as are, from time to time, in effect for the
Company’s executives and/or employees in general.
6. Termination for Cause,
Resignation Without Good Reason .
(a) Termination for Cause .
This Agreement may be terminated for Cause (as defined below) by
the Company before the expiration of the Term provided for herein
if, during the Term of this Agreement, the Employee
(i) materially violates the provisions of the Non-Competition
Agreement or the Confidentiality Agreements between the Company and
Employee, (ii) is convicted of, or pleads nolo
contendere to, any crime involving misuse or misappropriation
of money or other property of the Company or any felony;
(iii) exhibits repeated willful or wanton failure or refusal
to perform his duties in furtherance of the Company’s
business interest or in accordance with this Agreement, which
failure or refusal is not remedied by the Employee within thirty
(30) days after notice from the Company; (iv) commits an
intentional tort against the Company, which materially adversely
affects the business of the Company; (v) commits any flagrant
act of dishonesty or disloyalty or any act involving gross moral
turpitude, which materially adversely affects the business of the
Company; or (vi) exhibits immoderate use of alcohol or drugs
which, in the opinion of an independent physician selected by the
Company, impairs the Employee’s ability to perform his duties
hereunder (all of the foregoing clauses (i) through
(vi) constituting reasons for termination for “
ˆI`O¢Cause ”), provided that unsatisfactory
business performance of the Company, or mere inefficiency, or good
faith errors in judgment or discretion by the Employee shall not
constitute grounds for termination for Cause hereunder. In the
event of a termination for Cause, the Company may by written notice
immediately terminate his employment and, in that event, the
Company shall be obligated only to pay the Employee the
compensation due him up to the date of termination, all accrued,
vested or earned benefits under any applicable benefit plan and any
other compensation to which the Employee is entitled under
Section 4 up to and ending on the date of the
Employee’s termination.
(b) Resignation Without Good
Reason . The benefits and compensation set forth in
Section 6(a) are the only compensation and benefits
that the Employee will receive in the event that Employee resigns
without Good Reason (as defined below). If the Employee resigns
without Good Reason prior to a Change in Control (as defined in the
Company’s Change of Control Policy), the Employee agrees to
give the Company at least four (4) weeks’ prior notice
and in exchange the Company agrees to pay the Employee for all
compensation Employee would be entitled to pursuant to
Section 4 for such four (4)-week period as if Employee
had not resigned without Good Reason. Any resignation of the
Employee hereunder, whether for Good Reason or otherwise, shall be
deemed to include a resignation from all positions and in all
capacities with the Company and its subsidiaries, including,
without limitation, membership on the boards of directors (and
committees thereof) of subsidiaries of the Company, and the
Employee shall execute such documentation as requested by the
Company with respect thereto.
7. Termination Without Cause;
Resignation For Good Reason; Disability; Death .
(a) Termination Without Cause;
Resignation For Good Reason . The Company may terminate the
Employee’s employment at any time for any reason or no
reason, upon written notice to the Employee. If (i) the
Company terminates the Employee’s employment without Cause at
any time prior to the end of the Term of the Agreement, or
(ii) the Employee provides the Company with written notice (a
“ Notice of Termination ”) of his resignation
for Good Reason (as defined below) at least four (4) weeks
prior to the date of termination, then the Employee shall receive
the Termination Compensation (as defined below).
(b) Resignation for Good
Reason . A resignation for any one or more of the following
events, without the written consent of Employee or his approval of
such event in his capacity as Vice President, General Counsel,
shall be referred to herein as “ Good Reason
”;
(i) a substantial reduction in the
Employee’s duties, status, or reporting structure, in either
case by reference to the position held by the Employee on the
Effective Date;
(ii) a relocation of the
Employee’s assigned office more than fifty (50) miles
from its then-current location;
(iii) any decrease in the
Employee’s Base Salary or a material decrease in his Company
benefits in the aggregate, other than as part of a reduction (not
exceeding twenty-five percent)
