EXHIBIT 10.1
EXECUTION COPY
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement") is entered into as of the 21st day of
February, 2003, by and among RIBAPHARM INC. (the "Company"), and Xxx X. Xxxxx,
MD, PhD, an individual (the "Executive") (hereinafter collectively referred to
as "the parties").
PREAMBLE
The Company desires to employ Executive and Executive desires to be employed
by the Company, all pursuant to the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the respective agreements of the parties
contained herein, it is agreed as follows:
1. Term. The initial term of this Agreement shall be for the period commencing
on January 23, 2003 (the "Start Date"), and ending on the second anniversary of
the Start Date (the "Initial Term"), provided, however, that the term of this
Agreement shall be automatically extended for successive one (1) year periods
thereafter (each, a "Renewal Period") unless either the Company or Executive
shall have given written notice to the other party at least ninety (90) days
prior to the end of the Term of Agreement (as hereinafter defined), that the
Term of Agreement shall not be so extended. The Initial Term together with each
Renewal Period, if any, are collectively referred to herein as the "Term of
Agreement". Executive's employment hereunder shall be coterminous with the Term
of Agreement, unless sooner terminated as provided in Section 5 hereof.
2. Employment. During the term of Executive's employment under this Agreement:
(a) Subject to the terms and conditions of this Agreement, Executive shall be
employed as President and Chief Executive Officer of the Company. Executive
agrees to discharge all of the duties normally associated with such positions,
to faithfully and to the best of his abilities perform such other services
consistent with his position as a senior executive as may from time to time be
assigned to him by the Company's Board of Directors (the "Board"), and to devote
all of his business time, skill and attention to such services. Executive agrees
that he shall not engage in any other business activities of any kind which
would give rise to a conflict of interest for Executive with respect to his
duties and obligations to the Company.
(b) Executive shall report directly to the Board .
(c) Executive shall participate in all meetings of the Board (other than
executive sessions and those meetings or portions of meetings specifically
identified in advance, at which Executive's performance will be discussed),
unless, in its reasonable discretion, the Board determines that a conflict
exists which requires it to exclude Executive from a meeting.
3. Compensation. During the term of Executive's employment under this Agreement:
(a) Base Salary. The Company agrees to pay or cause to be paid to Executive
during the Term of Agreement a base salary at the rate of $425,000 per annum or
such increased amount as the Board may from time to time determine (hereinafter
referred to as the "Base Salary"). Such Base Salary shall be payable in
accordance with the Company's customary practices applicable to its executives.
Such Base Salary shall be reviewed at least annually by the Board and may be
further increased (but not decreased) in such amounts as the Board in its
discretion may decide.
(b) Signing Bonus. The Company agrees to pay or cause to be paid to Executive
a one - time signing bonus of $400,000 (the "Signing Bonus"); $200,000 shall be
payable within seven (7) days following the Start Date, and $200,000 shall be
payable within thirty (30) days following the Start Date. Notwithstanding the
foregoing, if Executive's employment is terminated by the Company for Cause (as
defined in Section 5(c)) or by Executive Without Good Reason (as defined in
Section 5(e))within two years following the Start Date, Executive shall
immediately repay to the Company that portion of the Signing Bonus obtained by
multiplying $400,000 by a fraction (A) the numerator of which is 730 less the
number of days elapsed between the Start Date and the date of termination of
employment and (B) the denominator of which is 730.
(c) Performance Bonus. For each fiscal year of the Company ending during the
Term of Agreement, beginning with the 2003 fiscal year, Executive shall be
eligible to receive a target cash bonus of 80% of the Base Salary with the
opportunity to receive a maximum cash bonus of 160% of the Base Salary, payable
in accordance with the Company's customary practices applicable to bonuses paid
to its executives. Executive shall receive a minimum cash bonus equal to
$340,000, in respect of the 2003 fiscal year (the "Guaranteed Bonus"). Any cash
bonus in excess of the Guaranteed Bonus will be based on performance by
Executive and the Company and shall be within the sole discretion of the Board.
(d) Stock Options/Restricted Shares.
(i) Initial Grant. On or prior to the date hereof, the Company shall grant
to Executive an option (the "Initial Stock Option") to purchase One Million
(1,000,000) shares of common stock, par value $.01 per share, of the Company
(the "Common Stock") pursuant to the terms of the Company's 2002 Stock Option
and Award Plan (the "Plan"). The Initial Stock Option shall become exercisable
with respect to 25% of such shares on each anniversary of the Start Date, and
the exercise price per share shall be equal to the fair market value of the
Common Stock, as determined under the Plan, on the date of grant. The Initial
Stock Option shall continue to vest after termination of Executive's employment
hereunder, to the extent Executive continues to provide services to the Company
or a parent company, subsidiary, successor or affiliate of the Company
(collectively "Affiliate Company") as an employee of the Company or Affiliate
Company or a member of the Board or the Board of an Affiliate Company.
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(ii) Future Grants. Executive shall be entitled to participate in future
stock option grants (the "Future Stock Options") as determined by the
compensation committee of the Board.
(iii) Option Agreement. The Initial Stock Option and any Future Stock
Options shall be evidenced by agreements in customary form for grants of stock
options under the Plan to executive officers of the Company, consistent with the
terms and conditions of this Agreement.
4. Other Benefits. During the term of Executive's employment under this
Agreement:
(a) Employee Benefits. Executive shall be entitled to participate in all
employee benefit plans, practices and programs maintained by the Company and
made available to employees generally including, without limitation, all
pension, retirement, profit sharing, savings, medical, hospitalization,
disability, dental, life or travel accident insurance benefit plans. Executive's
participation in such plans, practices and programs shall be on the same basis
and terms as are applicable to employees of the Company generally.
(b) Executive Benefits. Executive shall be entitled to participate in all
executive benefit or incentive compensation plans now maintained or hereafter
established by the Company for the purpose of providing compensation and/or
benefits to executives of the Company including, but not limited to, any
supplemental retirement, salary continuation, stock option, deferred
compensation, supplemental medical or life insurance or other bonus or incentive
compensation plans. Unless otherwise provided herein, Executive's participation
in such plans shall be on the same basis and terms, as other senior executives
of the Company, and shall be reasonably equivalent to the benefit levels and
reward opportunities applicable to Executive as in effect on the date hereof. No
additional compensation provided under any of such plans shall be deemed to
modify or otherwise affect the terms of this Agreement or any of Executive's
entitlements hereunder.
(c) Fringe Benefits and Perquisites. Executive shall be entitled to all
fringe benefits and perquisites (e.g. physical examinations, additional
reimbursement for uncovered medical expenses, executive life insurance and tax
advisory services) generally made available by the Company to its senior
executives, other than moving, relocation and housing costs which are solely as
described in paragraph (d) below. The Company shall reimburse Executive for
reasonable costs associated with travel to Executive's existing residence by
Executive and/or Executive's spouse (on average no more than once per month) and
incurred through the first anniversary of the Start Date.
(d) Relocation Costs: Maintenance of Existing Residence. Executive
acknowledges that he is receiving the Signing Bonus in lieu of any reimbursement
for moving, relocation or housing costs, and that he shall not be entitled to
receive any moving, relocation or housing costs, other than as provided in this
Section 4(d). The Company will reimburse Executive for all costs incurred by
Executive in maintaining his existing residence, including federal and state
real property taxes, scheduled mortgage payments for the mortgage on Executive's
existing residence in effect on the date hereof, ordinary maintenance costs,
payments
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to utility companies in the ordinary course and scheduled hazard insurance
premiums (collectively, the "Reimbursable Costs"), for the period beginning on
the Start Date and ending on the earlier of (i) the first anniversary of the
Start Date and (ii) the date on which Executive sells his existing residence. To
the extent Executive is obligated to pay any federal (including without
limitation, Social Security and Medicare taxes), state or local income taxes
(collectively, "Income Taxes") with respect to the Reimbursable Costs paid by
the Company to Executive hereunder, other than those Reimbursable Costs which
are subject to deduction by Executive in connection with Executive's Income
Taxes generally (collectively, the "Taxable Reimbursable Costs"), the Company
shall pay to Executive the sum of (x) all Income Taxes due as a result of the
payment of such Taxable Reimbursable Costs by the Company and (y) an amount
equal to any and all Income Taxes paid or required to be paid with respect to
the receipt by Executive of the amount set forth in clause (x) above (including,
without limitation, any taxes on such additional amount).
(e) Eligibility Waiver of Waiting Times. Subject to the terms of this
Agreement, Executive (and to the extent applicable under the terms and benefits
of such plans which apply to family members, Executive's family) shall have the
right to participate in all employee plans and benefits currently existing or
hereafter granted by the Company to its employees and all waiting periods under
such plans and benefits arrangements will be waived to the full extent possible
unless such waiver would require the Company to waive waiting periods for other
employees. In the event that the provisions of any such employee plans or
benefit arrangements do not permit immediate waiver of waiting periods,
comparable benefits will be provided to Executive and his beneficiaries outside
such plans and arrangements.
(f) Business Expenses. Upon submission of proper invoices in accordance with
the Company's normal procedures, Executive shall be entitled to receive prompt
reimbursement of all reasonable out-of-pocket business, entertainment and travel
expenses incurred by him in connection with the performance of his duties
hereunder (including the cost of travel by Executive's spouse on all of
Executive's business trips) or for promoting, pursuing or otherwise furthering
the business or interest of the Company.
(g) Office and Facilities. Executive shall be provided with an appropriate
office in Costa Mesa, California, with such secretarial and other support
facilities as are commensurate with Executive's status with the Company and
adequate for the performance of his duties hereunder.
(h) Vacation and Sick Leave. Executive shall be entitled, without loss of
pay, to absent himself voluntarily from the performance of his employment under
this Agreement, pursuant to the following:
(i) Executive shall be entitled to annual vacation in accordance with the
policies as periodically established by the Board for similarly situated
executives of the Company, which shall in no event be less than four weeks per
year;
(ii) in addition to the aforesaid paid vacations, Executive shall be
entitled, without loss of pay, to absent himself voluntarily from the
performance of his employment for such additional periods of time and for such
valid and legitimate reasons as the
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Board in its discretion may determine, including time needed to judiciously
terminate current business relationships of SciPharma Consulting, LLC with its
clients. Further, the Board shall be entitled to grant to Executive a leave or
leaves of absence with or without pay at such time or times and upon such terms
and conditions as the Board in its discretion may determine; and
(iii) Executive shall be entitled to sick leave (without loss of pay) in
accordance with the Company's policies as in effect from time to time.
5. Termination. Executive's employment hereunder may be terminated under the
following circumstances:
(a) Death. Executive's employment shall be terminated as of the date of
Executive's death and Executive's beneficiaries shall be entitled to the
benefits provided in Section 7(b) hereof.
(b) Disability. The Company may terminate Executive's employment after having
established Executive's Disability, subject to the payment by the Company to
Executive of the benefits provided in Section 7(b) hereof. For purposes of this
Agreement, "Disability" shall mean Executive's inability to substantially
perform his duties and responsibilities hereunder by reason of any physical or
mental incapacity for two or more periods of ninety (90) consecutive days each
in any three hundred and sixty (360) day period, as determined by a physician
with no history of prior dealings with the Company or Executive, as reasonably
agreed upon by the Company and Executive.
(c) Cause. The Company may terminate Executive's employment for "Cause",
effective as of the date of the Notice of Termination (as defined in Section 6
below), subject to the payment by the Company to Executive of the benefits
provided in Section 7(a) hereof. A termination for Cause is a termination made
because Executive has (A) committed an act of fraud or embezzlement against the
Company or any affiliate thereof, a knowing and willful unauthorized disclosure
of Confidential Information (as defined in Section 10 below) of the Company
which disclosure results in material damage to the Company, or a breach of one
or more of the following duties to the Company which continues after written
notice thereof specifying the particular events or conditions which constitute
the alleged breach and the specific cure requested by the Company and a
reasonable opportunity to cure: (1) the duty not to take actions which would
reasonably be viewed by the Company as placing Executive's interest in a
position adverse to the interests of the Company, or (2) the duty not to engage
in self-dealing with respect to the Company's assets, properties or business
opportunities; or (B) been convicted (or entered a plea of nolo contendere) for
the commission of (1) a felony or (2) a crime involving fraud, dishonesty or
moral turpitude; or (C) engaged in intentional misconduct as an employee of the
Company, which misconduct or violation results in material damage to the Company
or its reputation and continues after written notice thereof specifying the
particular events or conditions which constitute the alleged misconduct or
violation and the specific cure requested by the Company and a reasonable
opportunity to cure (if such misconduct is susceptible to cure by Executive),
including, but not limited to (1) intentional violations by Executive of written
policies of the Company or specific directions of the Board or Chairman of the
Board, which policies or directives are not illegal (or do not involve illegal
conduct) and do not require Executive to violate reasonable business ethical
standards, or (2) intentional violations of the
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Company's code of corporate conduct; or (D) failed, after written notice from
the Company to render services to the Company in accordance with this Agreement
or Executive's position and responsibilities with the Company in a manner that
amounts to gross neglect in the performance of his duties to the Company. The
Company may suspend Executive, without pay, upon Executive's indictment for the
commission of (1) a felony or (2) a crime involving fraud, dishonesty or moral
turpitude. Such suspension may remain effective until such time as the
indictment is either dismissed or a verdict of not guilty has been entered, at
which time Executive shall be reinstated with the Company. Upon such
reinstatement, Executive shall be entitled to payment by the Company of all Base
Salary to which Executive would have otherwise been entitled to during the
period of such suspension.
(d) Without Cause. The Company may terminate Executive's employment without
Cause. The Company shall deliver to Executive a Notice of Termination (as
defined in Section 6 below) not less than sixty (60) days prior to the
termination of Executive's employment without Cause and the Company shall have
the option of terminating Executive's duties and responsibilities (but not his
employment) prior to the expiration of such sixty-day notice period, subject to
the payment by the Company of the benefits provided in either Section 7(c) or
7(e) hereof, as may be applicable.
(e) Good Reason. Executive may terminate his employment for "Good Reason" (as
defined below) by delivering to the Company a Notice of Termination (as defined
in Section 6 below) not less than sixty (60) days prior to the termination of
Executive's employment for Good Reason The Company shall have the option of
terminating Executive's duties and responsibilities (but not his employment)
prior to the expiration of such sixty-day notice period, subject to the payment
by the Company of the benefits provided in either Section 7(c) or 7(e) hereof,
as may be applicable. For purposes of this Agreement, Good Reason shall mean the
occurrence of any of the events or conditions described in Subsections (i)
through (vii) hereof which are not cured by the Company within a reasonable time
after the Company has received written notice from Executive specifying the
particular events or conditions which constitute Good Reason and the specific
cure requested by Executive.
(i) Diminution of Responsibility. (A) A material diminution in Executive's
status, title, position or responsibilities as in effect immediately prior
thereto; (B) the assignment to Executive of any duties or responsibilities which
are materially inconsistent with such status, title, position or
responsibilities; or (C) any removal of Executive from or failure to reappoint
Executive to the position of President and Chief Executive Officer, except in
connection with the termination of Executive's employment as provided for
elsewhere in this Agreement;
(ii) Salary Reduction. A reduction in Executive's Base Salary or
Performance Bonus percentage opportunity as defined in Section 3(c);
(iii) Relocation. The Company's requiring Executive to be based at any
place other than the Company's current headquarters or within a 60-mile radius
thereof (except for required travel not greater than travel prior to a Change of
Control (as hereinafter defined));
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(iv) Discontinuation of Material Compensation or Benefit Plan. The failure
by the Company to continue in effect any material compensation or benefit plan
in which Executive was participating, including, but not limited to, the
Company's deferred compensation plan and 401(k) plan without providing Executive
with compensation and benefits substantially equal (in terms of benefit levels
and/or reward opportunities) to those provided for under such plan;
(v) Bankruptcy. The initiation by or against the Company of proceedings
under the United States Bankruptcy Code or under state insolvency laws, which
proceedings are not vacated within 60 days of notice thereof to the Company;
(vi) Breach by Company. Material breach by the Company of the terms and
conditions of this Agreement or any other agreement between Executive and the
Company after formal notice by Executive and a reasonable opportunity to cure;
(vii) Failure to Successfully Assign. Failure of the Company to obtain an
agreement from any successor or assign of the Company to assume and agree to
perform the Company's obligations under this or any other agreement between the
Executive and the Company.
(f) Without Good Reason. Executive may voluntarily terminate his employment
without Good Reason by delivering to the Company a Notice of Termination not
less than sixty (60) days prior to the termination of Executive's employment and
the Company shall have the option of terminating Executive's duties and
responsibilities (but not his employment) prior to the expiration of such
sixty-day notice period, subject to the payment by the Company to Executive of
the benefits provided in Section 7(a) hereof through the last day of such notice
period.
(g) Non-Renewal of Term of Agreement. Either party may elect not to extend
the Term of Agreement pursuant to Section 1 hereof, subject to the payment by
the Company to Executive of the benefits provided in Section 7(d) hereof.
6. Notice of Termination. Any purported termination by the Company or by
Executive shall be communicated by written Notice of Termination to the other
party hereto. For purposes of this Agreement, a "Notice of Termination" shall
mean a notice which indicates a termination date, the specific termination
provision in this Agreement relied upon and sets forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination of
Executive's employment under the provision so indicated. For purposes of this
Agreement, no such purported termination of Executive's employment hereunder
shall be effective without such Notice of Termination.
7. Compensation Upon Termination. Upon termination of Executive's employment
during the Term of Agreement, Executive shall be entitled to the following
benefits:
(a) Termination by the Company for Cause or by Executive Without Good Reason.
If Executive's employment is terminated by the Company for Cause or by Executive
Without Good Reason, the Company shall pay Executive all amounts earned
hereunder through the termination date, including:
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(i) any accrued and unpaid Base Salary;
(ii) reimbursement for any and all monies advanced to Executive or
expenses incurred in connection with Executive's employment for reasonable and
necessary expenses incurred by Executive on behalf of the Company for the period
ending on the termination date;
(iii) any accrued and unpaid vacation pay; and
(iv) any previous compensation which Executive has previously deferred
(including any interest earned or credited thereon), subject to the terms and
conditions of the applicable deferred compensation plans then in effect (the
foregoing items in Section 7(a)(i) through 7(a)(iv) being collectively referred
to as the "Accrued Compensation").
(b) Termination Upon Death or Disability. If Executive's employment is
terminated by the Company upon Executive's Disability or by reason of
Executive's death, the Company shall pay Executive (or his beneficiaries, as
applicable) the following :
(i) any Accrued Compensation through the date of termination of
employment;
(ii) if termination of Executive's employment occurs during fiscal year
2003, an amount equal to the Guaranteed Bonus multiplied by a fraction (A) the
numerator of which is the number of days in such fiscal year through the
termination date, and (B) the denominator of which is 365;
(iii) if termination of Executive's employment occurs after the end of
fiscal year 2003, an amount equal to the target bonus or incentive award that
Executive would have been entitled to receive in respect of the fiscal year in
which Executive's termination date occurs, had he continued in employment until
the end of such fiscal year, calculated as if all performance targets and goals
(if applicable) had been fully met by the Company and by Executive, as
applicable, for such fiscal year, multiplied by a fraction (A) the numerator of
which is the number of days in such fiscal year through the termination date and
(B) the denominator of which is 365 (a "Pro Rata Bonus"); and
(iv) the Initial Stock Option shall become fully (100%) and immediately
exercisable.
Executive's entitlement to any other compensation or benefits hereunder shall be
determined in accordance with the Company's employee benefit plans and other
applicable programs and practices then in effect.
(c) Termination by the Company Without Cause or by Executive for Good Reason.
If Executive's employment by the Company shall be terminated by the Company
without Cause, or if Executive terminates his employment for Good Reason,
Executive shall be entitled to:
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(i) any Accrued Compensation through the date of termination of
employment; and
(ii) If Executive voluntarily elects and agrees not to engage in Prohibited
Activities (as hereinafter defined) for a period of one (1) year after the date
of such termination of employment, the Company shall pay Executive as additional
compensation for the periods subsequent to the termination date, an amount in
cash equal to two (2) times the sum of (A) Executive's annual Base Salary at the
highest rate in effect at any time within the ninety (90) day period ending on
the date the Notice of Termination is delivered, and (B) the Bonus Amount (as
defined below). The additional compensation provided in the previous sentence
shall be payable in substantially equal monthly installments for a period of
twelve months. If Executive does not so voluntarily elect and agree or otherwise
engages in such Prohibited Activities, then Executive's eligibility to receive
the post-employment benefits provided for in this Section 7(c)(ii) shall
immediately thereafter terminate. For purposes of this Section 7(c), "Bonus
Amount" shall mean the average annual cash bonus or incentive compensation
received by Executive by virtue of Section 3(c) above during the two fiscal
years immediately preceding the termination date. In the event Executive's
termination occurs during the 2003 fiscal year, "Bonus Amount" shall be an
amount equal to the Guaranteed Bonus. In the event Executive's termination
occurs in the 2004 fiscal year, then the "Bonus Amount" shall mean the (i) sum
of the cash bonus received by Executive by virtue of Section 3(c) above for the
2003 fiscal year plus the cash bonus Executive otherwise would have been
entitled to receive by virtue of Section 3(c) above for the 2004 fiscal year had
Executive remained employed by the Company for such fiscal year based on the
performance of Executive and the Company, divided by (ii) 2. Executive's
entitlement to any other compensation or benefits hereunder shall be determined
in accordance with the Company's employee benefit plans and other applicable
programs and practices then in effect. For the purposes of this Agreement, the
term "Prohibited Activities" means directly or indirectly engaging as an owner,
employee, consultant or agent of any entity that manufactures, markets and
distributes (directly or indirectly through related entities, joint ventures,
strategic alliances or other affiliated entities) prescription or
non-prescription pharmaceuticals or medical devices for treatments in the fields
of dermatology, oncology or hepatology (each a "Competitive Business").
Notwithstanding the foregoing, it shall not be considered a "Prohibited
Activity" for Executive (i) to own or purchase any corporate securities of any
entity that is regularly traded on a recognized stock exchange or
over-the-counter market so long as Executive does not own, in the aggregate, 5%
or more of the voting equity securities of any such entity or (ii) to perform
consulting services for an entity engaged in a Competitive Business to the
extent Executive has given the Company and ICN at least 30 days advance notice
of Executive's desire to perform such consulting services and both the Company's
Board of Directors and ICN's Board of Directors (or the board of directors of a
successor entity to the Company or ICN, as the case may be), in their sole and
absolute discretion, have consented in writing to the performance of such
consulting services by Executive.
(d) Termination Due to Non -- Renewal of Term of Agreement.
(i) If the Company notifies Executive under Section 1 hereof that it shall
not extend the Term of Agreement for any Renewal Period, Executive shall,
subject to the provisions of Section 7(c) above, be entitled to the benefits
provided in Section 7(c) above.
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(ii) If Executive notifies the Company under Section 1 hereof that he
shall not extend the Term of Agreement for any Renewal Period, Executive shall
be entitled to any Accrued Compensation through the effective date of
Executive's termination.
(e) Termination by the Company Without Cause or by Executive for Good Reason
Following a Change in Control. If Executive's employment by the Company shall be
terminated by the Company without Cause or by Executive for Good Reason within
twelve (12) months following a Change in Control (as defined in Section 8
below), then in addition to the amounts due under Sections 7(c) above (except as
otherwise provided in Section 7(e)(iv) below), Executive shall be entitled to
the benefits provided below, provided that, Executive voluntarily elects and
agrees not to engage in Prohibited Activities for a period of one (1) year after
the date of such termination of employment:
(i) for a number of months equal to the lesser of (A) twenty -- four (24),
or (B) the number of months remaining until Executive's 65th birthday, the
Company shall at its expense continue on behalf of Executive and his dependents
and beneficiaries the life insurance, disability, medical, dental and
hospitalization benefits which were being provided to Executive at the time
Notice of Termination is given. In the event that the provisions of any such
employee benefit arrangements do not permit continuing coverage, then the
Company shall provide Executive with substantially equivalent coverage through
other sources. The benefits provided in this Section 7(e)(ii) shall be no less
favorable to Executive, in terms of amounts and deductibles and costs to him,
than the coverage provided Executive under the plans providing such benefits at
the time Notice of Termination is given. The Company's obligation hereunder with
respect to the foregoing benefits shall be limited to the extent that Executive
obtains any such benefits pursuant to a subsequent employer's benefit plans, in
which case the Company may reduce the coverage of any benefits it is required to
provide Executive hereunder as long as the aggregate coverage of the combined
benefit plans is no less favorable to Executive, in terms of amounts and
deductibles and costs to him, than the coverage required to be provided
hereunder. This Subsection (ii) shall not be interpreted so as to limit any
benefits to which Executive or his dependents may be entitled under any of the
Company's employee benefit plans, programs or practices following Executive's
termination of employment, including without limitation, retiree medical and
life insurance benefits;
(ii) all restrictions on any outstanding awards granted by the Company or
any subsidiaries or parent of the Company (including restricted stock awards)
granted to Executive shall lapse and such awards shall become fully (100%) and
immediately vested, and all stock options and stock appreciation rights granted
to Executive shall become fully (100%) and immediately exercisable;
(iii) if prior to a termination to which this Section 7(e) relates, the
Company shall adopt a supplemental and excess retirement plan which covers
Executive, then the Company shall pay in twenty-four (24) substantially equal
monthly payments an amount in cash equal to the excess of (A) the actuarial
equivalent of the aggregate retirement benefit Executive would have been
entitled to receive under such supplemental and excess retirement plans (x) had
Executive remained employed by the Company for an additional two (2) complete
years of credited service (or until his 65th birthday, if earlier), (y) had
Executive's annual compensation during such period been equal to his Base Salary
(at the rate used for purposes of
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Section 7(c)(ii)) plus the Bonus Amount, and (z) had Executive been fully (100%)
vested in his benefits under each such retirement plan with respect to his years
of service prior to termination and such additional two (2) year period, over
(B) the actuarial equivalent of the aggregate retirement benefit Executive is
actually entitled to receive under such retirement plans. For purposes of this
Subsection (iii), "actuarial equivalent" shall be determined in accordance with
the actuarial assumptions used for the calculation of benefits under any
retirement plan as applied prior to the termination date in accordance with such
plan's past practices (but shall in any event take into account the value of any
subsidized early retirement benefit); and
(iv) In lieu of the amounts otherwise due to Executive in accordance with
Section 7(c)(ii), the Company shall pay Executive as additional compensation for
the periods subsequent to the termination date, an amount in cash equal to three
(3) times the sum of (A) Executive's annual Base Salary at the highest rate in
effect at any time within the ninety (90) day period ending on the date the
Notice of Termination is delivered, and (B) the Bonus Amount as defined in
Section 7(c)(ii). The additional compensation provided in the previous sentence
shall be payable in substantially equal monthly installments for a period of
twelve months.
If Executive does not so voluntarily elect and agree or otherwise engages in
such Prohibited Activities, then Executive's eligibility to continue to receive
the post-employment benefits provided for in this paragraph shall immediately
thereafter terminate.
Executive shall not be required to mitigate the amount of any payment provided
for under this Section 7 by seeking other employment and no such payment shall
be offset or reduced by the amount of any compensation or benefits provided to
Executive in any subsequent employment.
8. Change in Control. For purposes of this Agreement, a "Change in Control"
shall mean any of the following events, (i) unless, in the case of (a), (b) and
(c) below, ICN Pharmaceuticals, Inc. ("ICN") holds a majority of the Company's
outstanding voting securities, and (ii) in the case of (d), (e), (f) and (g)
below, only if ICN holds a majority of the Company's outstanding voting
securities:
(a) the acquisition (other than from the Company) by any person (as such term
is defined in Section 13(c) or 14(d) of the Securities Exchange Act of 1934, as
amended (the "1934 Act")) of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the 0000 Xxx) of thirty -percent (30%) or more of the
combined voting power of the Company's then outstanding voting securities;
(b) the individuals who, as of the date hereof, are members of the Board (the
"Incumbent Board"), cease for any reason to constitute at least two thirds (2/3)
of the Board, unless the election, or nomination for election by the Company's
stockholders, of any new director was approved by a vote of at least two thirds
(2/3) of the Incumbent Board, and such new director shall, for purposes of this
Agreement, be considered as a member of the Incumbent Board;
(c) approval by stockholders of the Company of:
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(i) a merger or consolidation involving the Company and an independent
third party if the stockholders of the Company, immediately before such merger
or consolidation, do not, as a result of such merger or consolidation, own,
directly or indirectly, more than seventy percent (70%) of the combined voting
power of the then outstanding voting securities of the corporation resulting
from such merger or consolidation in substantially the same proportion as their
ownership of the combined voting power of the voting securities of the Company
outstanding immediately before such merger or consolidation; or
(ii) an agreement for the sale or other disposition of all or
substantially all of the assets of the Company to an independent third party;
(d) the liquidation or dissolution of ICN ;
(e) the individuals who, as of the date hereof, are members of the Board of
Directors of ICN (the "ICN Board"), cease for any reason to constitute at least
two thirds (2/3) of the ICN Board, unless the election, or nomination for
election by ICN's stockholders, of any new director was approved by a vote of at
least two thirds (2/3) of the ICN Board, and such new director shall, for
purposes of this Agreement, be considered as a member of the ICN Board;
(f) approval by stockholders of ICN of:
(i) a merger or consolidation involving ICN and an independent third party
if the stockholders of ICN, immediately before such merger or consolidation, do
not, as a result of such merger or consolidation, own, directly or indirectly,
more than seventy percent (70%) of the combined voting power of the then
outstanding voting securities of the corporation resulting from such merger or
consolidation in substantially the same proportion as their ownership of the
combined voting power of the voting securities of ICN outstanding immediately
before such merger or consolidation; or
(g) an agreement for the sale or other disposition of all or substantially
all of the assets of ICN to an independent third party.
Notwithstanding the foregoing, a Change in Control shall not be deemed to occur
pursuant to Section 8(a), solely because thirty percent (30%) or more of the
combined voting power of the Company's then outstanding securities is acquired
by (i) a trustee or other fiduciary holding securities under one or more
employee benefit plans maintained by the Company or any of its subsidiaries or
(ii) any corporation which, immediately prior to such acquisition, is owned
directly or indirectly by the stockholders of the Company in the same proportion
as their ownership of stock in the Company immediately prior to such
acquisition. In no event shall any reduction in the equity interest of ICN in
the Company be deemed to constitute a "Change in Control" hereunder.
9. Acquisition by ICN. If ICN acquires (i) additional shares of Common Stock of
the Company or other securities of the Company which results in ICN holding 90%
or more of the outstanding capital stock of ICN or (ii) all or substantially all
of the Company' s assets (each, an "Acquisition"), then the Company shall
exercise reasonable efforts so that the unexercised portion of the Initial Stock
Option and Future Stock Options, if any, outstanding as of the closing
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date of such transaction (the "Closing Date") shall be converted into stock
options to purchase such number of shares of common stock of ICN, par value $.01
per share, under ICN's 1998 Stock Option Plan (the "Converted Options")
determined by multiplying the number of outstanding unexercised options
identified above by a fraction, (A) the numerator of which shall be the Fair
Market Value Shares (as defined below) and (B) the denominator of which shall be
the Number of Shares (as defined below). The exercise price of the Converted
Options shall be established by multiplying the applicable exercise price of the
outstanding unexercised option being converted by a fraction, (A) the numerator
of which is the Number of Shares and (B) the denominator of which is the Fair
Market Value Shares. The Converted Options will contain substantially similar
terms as the Initial Stock Options and the Future Stock Options, if any,
including vesting, as of the Closing Date.
For purposes of this Section 9, "Fair Market Value Shares" shall mean the fair
market value of the securities, cash, other assets or combination thereof
offered to the Company's stockholders in the Acquisition, divided by the average
closing price of a share of common stock of ICN for the five trading days
immediately preceding the public announcement of the Acquisition. "Number of
Shares" shall mean (A) that number of shares of Common Stock acquired by ICN in
connection with the Acquisition, or (B) in the case of an Acquisition in which
the Company's assets are acquired by ICN, the equivalent number of shares as
determined by dividing the fair market value of such assets divided by the
average closing price of a share of Common Stock for the five trading days
immediately preceding the public announcement of the Acquisition.
10. Federal Excise Tax. The Company shall reimburse Executive for (a) any excise
tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended
(the "Code") on any portion of the compensation or benefits payable to Executive
in connection with a Change of Control, and (b) any such excise tax and any
other taxes imposed by the Code or under state or local law on the payments
provided for in this Section 10. Executive and the Company agree to reasonably
cooperate to mitigate the amount of any such tax that might become payable. The
Company shall pay to Executive the payments, or portions thereof, provided for
in this Section 10 not later than fifteen (15) days prior to the date on which
such taxes, or portions thereof, are due as determined by the tax counsel
referred to below. Tax counsel selected by the Company and reasonably acceptable
to Executive shall determine whether the payments provided for by this Section
10 shall be required, based on the actual tax rates to which Executive is
subject at the time. Executive shall, on a confidential basis, provide such
counsel with such information as such counsel reasonably requests in connection
with such determination. All determinations of tax counsel shall be binding on
Executive and the Company. Tax counsel shall determine that payments shall be
due hereunder only if, and to the extent that, it is more likely than not that
the payments or benefits are subject to a tax. In making the determinations
required by this Section 10, tax counsel may rely on benefit consultants,
accountants or other experts. The Company agrees to pay all reasonable fees and
expenses of such tax counsel. If, subsequent to the payment to Executive of
payments pursuant to this Section 10, the tax counsel referred to in this
Section 10 reasonably determines that the amount of the payments paid pursuant
to this Section 10 are greater than, or less than, the amount required to have
been paid, Executive shall reimburse the Company an amount, or the Company shall
pay to Executive an additional amount, respectively, based upon such
determination. In the event that tax counsel referred to in this Section 10
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reasonably determines that Executive is required to pay excise tax, interest or
penalties to a governmental taxing authority as a result of his non-payment of
taxes where such tax counsel had determined that such taxes need not be paid,
the Company shall pay to Executive an additional amount equal to (A) the amount
of such interest and/or penalties, (B) the excise tax which was not paid and (C)
any excise tax and any other taxes imposed by the Code or under state or local
law on the payments provided for in this sentence.
11. Records and Confidential Data: Proprietary Inventions.
(a) Executive acknowledges that in connection with the performance of his
duties during the Term of Agreement the Company will make available to
Executive, or Executive will have access to, certain Confidential Information
(as defined below) of the Company and its affiliates. Executive acknowledges and
agrees that any and all Confidential Information learned or obtained by
Executive during the course of his employment by the Company or otherwise,
whether developed by Executive alone or in conjunction with others or otherwise,
shall be and is the property of the Company and its affiliates.
(b) The Confidential Information will be kept confidential by Executive, will
not be used in any manner which is detrimental to the Company, will not be used
other than in connection with Executive's discharge of his duties hereunder, and
will be safeguarded by Executive from unauthorized disclosure.
(c) For the purposes of this Agreement, "Confidential Information" shall mean
all confidential and proprietary information of the Company and its affiliates
that has been created, discovered or developed or has otherwise become known to
the Company (including, without limitation, information created, discovered,
developed or made known by or to Executive during the period of or arising out
of his employment hereunder) or in which property rights have been assigned or
otherwise conveyed to the Company, which information has commercial value in the
business in which the Company is engaged; by way of illustration and not by
limitation, Confidential Information includes information derived from reports,
investigations, experiments, research, work in progress, drawing, designs,
plans, proposals, codes, marketing and sales programs, client lists, client
mailing lists, supplier lists, financial projections, cost summaries, pricing
formula, marketing studies relating to prospective business opportunities and
all other concepts, ideas, materials, or information prepared or performed for
or by the Company or its affiliates. For purposes of this Agreement, the
Confidential Information shall not include and Executive's obligation's shall
not extend to (i) information which is or becomes, without violation by
Executive of this Agreement, generally available to the public and (ii)
information obtained by Executive other than pursuant to or in connection with
this employment. Notwithstanding the foregoing, if Executive is required by law
or legal process to disclose the Confidential Information, Executive shall
provide the Company with prompt notice so that the Company may seek a protective
order or other appropriate remedy and/or waive compliance with this Section 11.
If, in the absence of a protective order or other remedy or the receipt of a
waiver by the Company, Executive is nonetheless, in the opinion of counsel,
legally compelled to disclose the Confidential Information, Executive may,
without liability hereunder, disclose only that portion of the Confidential
Information which such counsel advises is legally required to be disclosed,
provided, however, that Executive exercise reasonable efforts to preserve the
confidentiality of the Confidential Information, including
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without limitation, cooperating with the Company to obtain an appropriate
protective order or other reliable assurance that confidential treatment will be
accorded the Confidential Information.
(d) Executive hereby assigns to the Company any rights he may acquire during
his employment hereunder in all Confidential Information and .agrees that all
Inventions (as defined below) will be the sole property of the Company and its
assigns, and the Company and its assigns will be the sole owner of all the
patents and other rights in connection therewith. Executive hereby assigns to
the Company any rights he may acquire during the period of his employment
hereunder in all Inventions and agrees to assist the Company in every proper way
(but at the Company's expense) to obtain and from time to time enforce patents
on Inventions in any and all countries. Executive shall execute all documents
for use in applying for and obtaining such patents thereon and enforcing same,
as the Company may desire, together with any assignments thereof to the Company
or persons designated by it. Executive's obligation to assist the Company in
obtaining and enforcing patents for Inventions in any and all countries will
continue beyond the termination of employment hereunder, but the Company will
compensate Executive at a reasonable rate after such termination for time
actually spent by him at the Company's request on such assistance. Executive
acknowledges that, in accordance with Section 2872 of the California Labor Code,
the assignment provisions in this paragraph (d), do not apply to Inventions for
which no equipment, supplies, facility, or trade secret information of the
Company was used, which were developed entirely on Executive's own time, and (i)
which do not relate (a) to the business of the Company or (b) to the Company's
actual or demonstrably anticipated research or development or (ii) which do not
result from any work performed by Executive for the Company. Executive has
identified on Schedule I hereto all inventions or improvements relevant to the
subject matter of Executive's employment hereunder which have been made or
conceived or first reduced to practice by Executive alone or jointly with others
prior to the date hereof which Executive desires to remove from the operation of
this Agreement; and Executive represents that such list is complete. If there is
no such list on Schedule I, Executive represents that he has made no such
inventions and improvements as of the date hereof.
(e) For purposes of this Agreement, "Inventions" shall mean all improvements,
inventions, formulae, processes, techniques, know-how and data whether or not
patentable, made or conceived or reduced to practice or learned by Executive,
either alone or jointly with others, during Executive's employment hereunder
which are related to or useful in the business of the Company, or result from
tasks assigned Executive by the Company, or result from use of premises owned,
leased or contracted for by the Company.
(f) Executive's obligations under this Section 11 shall survive the
termination of the Term of Agreement.
12. Covenant Not to Solicit.
(a) Covenant Not to Solicit. To protect the Confidential Information and
other trade secrets of the Company, Executive agrees, during the term of this
Agreement and for a period of twelve months after Executive's cessation of
employment with the Company, not to solicit or participate in or assist in any
way in the solicitation of any employees or consultants of
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the Company. For purposes of this covenant, "solicit" or "solicitation" means
directly or indirectly influencing or attempting to influence employees or
consultants of the Company to become employed with any other person,
partnership, firm, corporation or other entity. Executive agrees that the
covenants contained in this Section 12 are reasonable and desirable to protect
the Confidential Information of the Company.
(b) It is the intent and desire of Executive and the Company that the
restrictive provisions of this Section 12 be enforced to the fullest extent
permissible under the laws and public policies as applied in each jurisdiction
in which enforcement is sought. If any particular provision of this Section 12
shall be determined to be invalid or unenforceable, such covenant shall be
amended, without any action on the part of either party hereto, to delete
therefrom the portion so determined to be invalid or unenforceable, such
deletion to apply only with respect to the operation of such covenant in the
particular jurisdiction in which such adjudication is made.
(c) Executive's obligations under this Section 12 shall survive the
termination of the Term of Agreement.
13. Remedies for Breach of Obligations under Sections 11 or 12 hereof. Executive
acknowledges that the Company will suffer irreparable injury, not readily
susceptible of valuation in monetary damages, if Executive breaches his
obligations under Sections 11 or 12 hereof. Accordingly, Executive agrees that
the Company will be entitled, in addition to any other available remedies, to
seek injunctive relief against any breach or prospective breach by Executive of
his obligations under Sections 11 or 12 hereof. The Company shall seek such
relief in any Federal or state court where venue would be appropriate based upon
Executive's principal residence or his principal place of business, or, at the
Company's election, in any other state in which Executive maintains his
principal residence or his principal place of business as provided for in
Section 14(g) below. Executive hereby submits to the non - exclusive
jurisdiction of all those courts for the purposes of any actions or proceedings
instituted by the Company to obtain that injunctive relief, and Executive agrees
that process in any or all of those actions or proceedings may be served by
registered mail, addressed to the last address provided by Executive to the
Company, or in any other manner authorized by law. Notice in such proceedings
shall be given in the manner required by law. Executive further agrees that, in
addition to any other remedies available to the Company by operation of law or
otherwise, in the event Executive willfully and materially breaches any of his
obligations under Sections 11 or 12 hereof, he shall not be entitled to any
amounts which may otherwise be payable under the terms of Sections 7(b), 7(c),
7(d) and 7(e) hereof and under the terms of the benefit plans of the Company in
which he participates and to which he might otherwise then be entitled by virtue
hereof. Nothing in Sections 11 or 12 shall operate as a diminution of
Executive's obligations under the Company's standard agreements pertaining to
the subject matter of such sections.
14. Miscellaneous.
(a) Successors and Assigns.
(i) This Agreement shall be binding upon and shall inure to the benefit of
the Company, its successors and assigns and the Company shall require any
successor or assign to expressly assume and agree to perform this Agreement in
the same manner and to the
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same extent that the Company would be required to perform if no such succession
or assignment had taken place. The term "the Company" as used herein shall mean
a corporation or other entity acquiring all or substantially all the assets and
business of the Company (including this Agreement) whether by operation of law
or otherwise.
(ii) Neither this Agreement nor any right or interest hereunder shall be
assignable or transferable by Executive, his beneficiaries or legal
representatives, except by will or by the, laws of descent and distribution.
This Agreement shall inure to the benefit of and be enforceable by Executive's
legal personal representatives.
(b) Fees and Expenses: Legal Counsel. The Company shall pay all reasonable
legal fees and related expenses, up to a maximum amount of $20,000, incurred by
Executive in connection with the negotiation of this Agreement and related
employment arrangements. Executive acknowledges that he has had the opportunity
to consult with legal counsel of his choice in connection with the drafting,
negotiation and execution of this Agreement and related employment arrangements.
(c) Notice. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement (including the Notice of
Termination) shall be in writing and shall be deemed to have been duly given
when personally delivered or sent by Certified mail, return receipt requested,
postage prepaid, addressed to the respective addresses last given by each party
to the other, provided that all notices to the Company shall be directed to the
attention of the Chairman of the Board with a copy to the Secretary of the
Company. All notices and communications shall be deemed to have been received on
the date of delivery thereof or on the third business day after the mailing
thereof, except that notice of change of address shall be effective only upon
receipt.
(d) Withholding. The Company shall be entitled to withhold the amount, if
any, of all taxes of any applicable jurisdiction required to be withheld by an
employer with respect to any amount paid to Executive hereunder. The Company, in
its sole and absolute discretion, shall make all determinations as to whether it
is obligated to withhold any taxes hereunder and the amount hereof.
(e) Release of Claims. The Company may condition payment of the cash
termination benefits described in Sections 7(b), 7(c), 7(d) and 7(e) of this
Agreement upon the delivery by Executive of a signed release of claims in a form
customarily employed by the Company; provided, however, that Executive shall not
be required to release any rights Executive may have to be indemnified or held
harmless by the Company under the certificate of incorporation or by-laws of the
Company.
(f) Modification. No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing
and signed by Executive and the Company. No waiver by either party hereto at any
time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time.
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(g) Arbitration. If any legally actionable dispute arises under this
Agreement or otherwise which cannot be resolved by mutual discussion between the
parties, then the Company and Executive each agree to resolve that dispute by
binding arbitration before an arbitrator experienced in employment law. Said
arbitration will be conducted in accordance with the rules applicable to
employment disputes of the Judicial Arbitration and Mediation Services ("JAMS")
and the law applicable to the claim. The parties shall have 30 calendar days
after notice of such arbitration has been given to attempt to agree on the
selection of an arbitrator. In the event the parties are unable to agree in such
time, JAMS will provide a list of nine available arbitrators and an arbitrator
will be selected from such nine-member panel provided by JAMS by the parties
alternately striking out one name of a potential arbitrator until only one name
remains. The party entitled to strike an arbitrator first shall be selected by a
toss of a coin. The parties agree that this agreement to arbitrate includes any
such disputes that the Company may have against Executive, or Executive may have
against the Company and/or its related entities and/or employees, arising out of
or relating to this Agreement, or Executive's employment or Executive's
termination including, but not limited to, any claims of discrimination or
harassment in violation of applicable law and any other aspect of Executive's
compensation, employment, or Executive's termination. The parties further agree
that arbitration as provided for in this Section 14(g) is the exclusive and
binding remedy for any such dispute and will be used instead of any court
action, which is hereby expressly waived, except for any request by either party
for temporary or preliminary injunctive relief pending arbitration in accordance
with applicable law or for breaches by Executive of Executive's obligations
under Sections 11 or 12 above or an administrative claim with an administrative
agency. The parties agree that the arbitration provided herein shall be
conducted in Orange County, California unless otherwise mutually agreed or
unless Executive's primary place of employment is a different location. The
Company shall pay the cost of any arbitration brought pursuant to this
paragraph, including filing fees, administrative fees and the costs of the
arbitrator, excluding, however, the filing fees of Executive if he is the moving
party to the extent such fees are equal to or less than those that would
applicable to file a complaint in the Orange County Superior Court and the cost
of representation of Executive unless such cost is awarded in accordance with
law or otherwise awarded by the arbitrators.
(h) Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of California applicable to
contracts executed in and to be performed entirely within such State, without
giving effect to the conflict of law principles thereof.
(i) No Conflicts. Executive represents and warrants to the Company that he is
not a party to or otherwise bound by any agreement or arrangement (including,
without limitation, any license, covenant, or commitment of any nature), or
subject to any judgment, decree, or order of any court or administrative agency,
that would conflict with or will be in conflict with or in any way preclude,
limit or inhibit Executive's ability to execute this Agreement or to carry out
his duties and responsibilities hereunder.
(j) Trade Secrets of Others. The Company acknowledges that Executive, as a
current and/or former employee or independent contractor of another company, may
previously have been privy to trade secrets and/or confidential information of
such other company, and may be under an obligation to such other company to
maintain the confidentiality of such trade
-18-
secrets or confidential information. Accordingly, to the extent Executive is
under such an obligation, Executive shall not: (a) bring any records, notes,
files, drawings, documents, plans and like items, provided to him in confidence
by such other company, or any copies thereof, relating to or containing or
disclosing confidential information or trade secrets of any such other company
on the premises of the Company or otherwise use such documents and items in the
performance of services for the Company; or (b) disclose any confidential
information or trade secrets provided to Executive in confidence by such other
company to any other employee of the Company; provided, however, that this
prohibition only applies to documents or information that Executive obtained or
learned before the beginning of his relationship with the Company.
(k) Severability. The provisions of this Agreement shall be deemed severable
and the invalidity or unenforceability of any provision shall not affect the
validity or enforceability of the other provisions hereof
(l) Entire Agreement. This Agreement constitutes the entire agreement between
the parties hereto and supersedes all prior agreements, if any, understandings
and arrangements, oral or written, between the parties hereto with respect to
the subject matter hereof. No agreement or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made by
either party which are not expressly set forth in this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the day and year first above written.
RIBAPHARM INC.
By: /s/ XXXXXX X. XXXXXXX
----------------------------
Name: XXXXXX X. XXXXXXX
Title: CHAIRMAN OF THE BOARD
Executive
By: /s/ XXX X. XXXXX
----------------------------
Name: XXX X. XXXXX, M.D., PH.D.
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