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EXHIBIT (10)(F)
February 10, 1998
Xx. X. X. Xxxxxxxx
00 Xxx Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Dear Xxxxx:
This letter confirms the terms of our offer for your employment as Executive
Vice President and Chief Financial Officer of Pharmacia & Upjohn, Inc. (the
"Company"). I very much hope that you will find this opportunity attractive and
rewarding and will accept our offer. The principal terms of your employment will
be:
1. You will join the Company as soon as possible (your "Employment
Commencement Date") as an employee of the Company, and, subject to your
acceptance of this offer, the Company's Board of Directors will elect you as
Executive Vice President and Chief Financial Officer of the Company at its
meeting next Monday, February 16.
The term of this agreement will be from your Employment Commencement Date until
December 31, 2000, and will be automatically renewed for an indefinite period
thereafter (the "Term"), unless and until at least sixty (60) days' prior
written notice of termination is given by either party stating the date of
termination.
You will devote substantially all of your business time to your duties and
responsibilities with the Company. However, you will not be precluded from (i)
serving on the board of directors of other companies (subject to the reasonable
approval of the Chief Executive Officer of the Company) and boards of trade
associations or charitable organizations; (ii) engaging in charitable activities
and community affairs; or (iii) managing your personal investments and affairs,
provided that such activities do not materially interfere with your duties and
responsibilities with the Company.
2. Your beginning annual base salary will be $625,000 and will be subject
to annual review for increases.
3. You will be included in the Company's Annual Incentive Plan at a level
determined by the Compensation Committee of the Board to be appropriate based on
your position, job performance and Company policy. Your 1998 incentive
compensation target award will be set at 70% of your annual base salary or
$437,500. Your incentive compensation award will be subject to adjustment
following the end of the year by the performance criteria established by the
Compensation Committee of the Board of Directors, but in no event will your 1998
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incentive compensation award be less than $250,000. In addition, you will
receive 25,000 shares of restricted Common Stock of the Company to compensate
you for the loss of your long-term incentive shares from your previous employer.
The restricted shares will vest on the third annual anniversary of your
Employment Commencement Date, or, if earlier, upon a Change in Control of the
Company (as defined in the Company's Long-Term Incentive Plan).
4. To provide you with new long-term equity incentive compensation and to
replace the equity awards from your current employer that you will lose as a
result of joining the Company, the Board of Directors of the Company will grant
you, as of your Employment Commencement Date, a stock option for 120,000 shares
of the Company's Common Stock, vesting ratably over a three-year period on each
of the first three annual anniversaries of your Employment Commencement Date.
The exercise price of the stock options will be the fair market value (defined
in the Company's Long-Term Incentive Plan as the average of the daily high and
low) for Pharmacia & Upjohn Common Stock on the New York Stock Exchange on your
Employment Commencement Date. All stock options will be "Incentive Stock
Options" to the maximum extent permitted, and the remainder will be
non-qualified stock options, under the U.S. Internal Revenue Code, will be
subject to the terms of said Plan and will expire no later than ten years from
the date of grant.
I will recommend to the Compensation Committee of the Board that, at their
February 15, 1998 meeting, you be granted a stock option for 50,000 shares of
the Company's Common Stock pursuant to the Company's Long-Term Incentive Plan.
Beginning in 1999, you will be granted stock options pursuant to the Company's
Long-Term Incentive Plan at the same time as other senior executives of the
Company and at a level determined by the Compensation Committee of the Board to
be appropriate based on your position, job performance, competitive practices
and Company policy, which will be in an amount not less than 100,000 shares of
the Company's Common Stock.
Stock options not yet vested will nevertheless vest immediately upon a Change in
Control of the Company (as defined in the Company's Long-Term Incentive Plan).
5. You will be eligible to receive employee benefits and perquisites in
line with the general plans applicable to our Global Officers including, without
limitation, if offered to such other senior executives, pension, profit sharing,
savings, deferred compensation, medical, dental, hospitalization, short-term and
long-term disability, life insurance, accidental death, travel accident,
vacation and any other benefit programs or plans that may be sponsored by the
Company, including any plans that supplement the above-listed plans, whether
funded or unfunded.
To the extent that there is a period of employment service required as a
condition for full benefit coverage under any employee benefit program or plan,
you shall be deemed to have met such
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requirement, and to the extent that you and/or your dependents will not be
eligible to participate fully in any medical/dental plan because of any
exclusion for preexisting conditions, the Company will waive any such exclusion
for pre-existing conditions.
6. In the event your employment is involuntarily terminated by the Company
other than for Cause (as defined below), which the Company reserves the right to
do at any time during or after the Term of this agreement, or you terminate your
employment for Good Reason (as defined below), during the Term of this
agreement, provided that you do not enter into Competition (as defined below)
with the Company, then, as liquidated damages and in lieu of any other damages
or compensation under this agreement, (i) you shall be entitled to receive a
lump sum severance payment, payable within 60 days after termination, equal to
twice the combined amount of your annual base salary and annual target incentive
compensation as in effect on your date of termination; (ii) you shall have your
period of employment service used to calculate retirement and other employee
benefits, including eligibility for post-retirement medical/dental coverage,
extended for two additional years following your employment termination date and
the compensation used to calculate your retirement benefits will be determined
as if you had continued to receive your then current annual base salary and
annual target incentive compensation for two additional years following your
employment termination date, which retirement benefits will be paid in a lump
sum within 30 days after termination subject to appropriate actuarial reductions
consistent with those applied under the plan to reflect your age when you
terminate employment; (iii) you will receive a pro-rata annual incentive
compensation award in March of the year following your termination equal to the
amount you would have received if you had worked for the full year as adjusted
for the performance criteria specified for your award multiplied by a fraction
where the numerator is the number of months (rounded to the next highest number
for a partial month) of the year elapsed prior to your termination and the
denominator is 12; (iv) you and your dependents shall continue to participate
(with the same level of coverage) for two additional years following your
employment termination date, in all medical/dental, accident, disability and
life insurance plans on the same terms as in effect immediately prior to your
termination, provided, however, that such benefits will cease on the date of
your receiving equivalent benefits from a new employer; (v) you shall be
entitled to outplacement services from a provider selected by you, at the
expense of the Company, subject to a maximum expense of $25,000; and (vi) you
shall receive any other amounts earned, accrued or owing to you under the plans
and programs of the Company.
In the event you enter into Competition with the Company within two years after
your employment is terminated, and you have received severance payments under
subparagraph (i) above, or additional retirement or other employee benefits
under subparagraph (ii) above, you agree to promptly repay the amount of such
severance payments and additional retirement or other employee benefits to the
Company.
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7. In the event that, during the Term of this agreement, you voluntarily
terminate your employment (other than for Good Reason) or you are discharged by
the Company for Cause, you will forfeit your right to receive any salary,
incentive compensation or severance pay that has not been fully earned at the
time your employment terminates, provided, however, you will be entitled to
receive any benefits or amounts accrued but not yet paid as of the date of your
termination.
8. You acknowledge that the Company may at any time relocate your place of
employment to such location as may at that time constitute the Company's
principal executive offices. While you may need to initially be present at the
Company's Management Centre in Windsor, England (your temporary living expenses
in England incurred by you will be reimbursed by the Company net of any
resulting income tax), you will primarily be based at the Company's new
headquarters in New Jersey.
9. You will be immediately eligible to participate in, and shall be
immediately vested under, the Company's Global Officer Pension Plan, which is
not qualified under the U.S. Internal Revenue Code, supplements the officer's
other sources of retirement income to provide the officer with the actuarial
value of an annual life annuity of 65% of the officer's highest three-year
average annual salary and cash bonus compensation within the ten years prior to
retirement from the Company, provided the officer retires at age 65 with at
least ten years of service under the Plan. Appropriate actuarial adjustments
consistent with those applied under the Plan will be made if you have less than
ten years of service under the Plan or retire before age 65. The benefits
payable under the Company's Global Officer Pension Plan will be offset for any
social security or other governmental retirement income and any retirement
income from any prior employers that you may be entitled to receive.
10. You are authorized to incur reasonable expenses in carrying out your
duties and responsibilities with the Company, and the Company shall promptly
reimburse you for all business expenses in accordance with Company policy.
11. During the period of your employment and thereafter, you will maintain
the confidentiality of all confidential or proprietary information relating to
the business of the Company or any of its subsidiaries or affiliates, provided,
however, you may disclose such information as (i) may be required or appropriate
in carrying out your duties at the Company or (ii) may be required for you to
disclose by applicable law, governmental regulations or judicial or regulatory
process.
12. To the fullest extent permitted by applicable law, all intellectual
property (including patents, trademarks, and copyrights) which are made,
developed or acquired by you in the course of your employment with the Company
will be and remain the absolute property of the Company, and you shall assist
the Company in perfecting and defending its rights to such intellectual
property.
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13. In consideration of the offer of employment and the compensation and
benefits provided hereunder, without the written consent of the Chief Executive
Officer of the Company, you agree that during the period of your employment with
the Company and for a period of two years following the termination of your
employment, you will not enter into Competition with the Company. "Competition"
as used in this agreement means that you engage in substantially the same work
as you had been engaged in while employed by the Company with another
pharmaceutical company (except companies where sales from pharmaceutical
products constitute less than 20% of total sales) as either an employee or
consultant. Anything herein to the contrary notwithstanding, your service solely
as a member of the Board of Directors of a company whose annual sales are less
than $100 million shall not be deemed to be Competition for purposes of this
agreement. For purposes of the preceding sentence, if a company is a subsidiary
of another company, the sales of both companies shall be taken into account.
14. To the fullest extent permitted by applicable law, the Company will,
during and after termination of your employment, indemnify you (including
providing advancement of expenses) for any judgments, fines, amounts paid in
settlement and reasonable expenses, including attorneys' fees, incurred by you
in connection with the defense of any lawsuit or other claim or investigation to
which you are made, or threatened to be made, a party or witness by reason of
being or having been an officer, director or employee of the Company or any of
its subsidiaries or affiliates. In addition, you will be covered under any
directors' and officers' liability insurance policy for your acts (or non-acts)
as an officer or director of the Company or any of its subsidiaries or
affiliates to the extent the Company provides such coverage for its senior
executive officers.
15. Any disputes arising under or in connection with this agreement shall,
unless other arrangements are agreed to by you and the Company, be resolved by
binding arbitration to be held in New York, New York in accordance with the
rules and procedures of the American Arbitration Association, and judgment upon
any award rendered by the arbitrator(s) may be entered in any court having
jurisdiction. Costs of the arbitration, including (but not by way of limitation)
reasonable attorney's fees of both parties, shall be borne by the party which
does not prevail in the proceedings, but in no event shall a party be liable to
pay for such costs in excess of $25,000. In the event that each party prevails
as to certain aspects of the proceedings, the arbitrator(s) shall determine an
appropriate allocation of costs between the parties.
16. In the event of termination of your employment, you will immediately,
unless otherwise requested by the Company's Board of Directors, resign from all
directorships, trusteeships, other offices and employment held at that time with
the Company or any of its subsidiaries or affiliates.
17. For purposes of this agreement, "Cause" means (i) a material breach by
you of your duties and responsibilities (other than as a result of incapacity
due to physical or mental illness) which is demonstrably willful and deliberate
on your part, which is committed in bad faith or
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without reasonable belief that such breach is in the best interests of the
Company, and which is not remedied in a reasonable period of time after receipt
of written notice from the Company specifying such breach; or (ii) your
conviction of a felony which is materially and demonstrably injurious to the
Company as determined in the sole discretion of the Board of Directors of the
Company.
18. For purposes of this agreement, "Good Reason" means that, without your
consent, (i) your rate of annual base salary or the cash target amount of your
annual cash incentive bonus are reduced in a manner that is not applied
proportionately to all other senior executive officers of the Company; (ii) the
Company fails to retain you as an Executive Vice President of the Company,
although the Company may at any time change your job description without
constituting "Good Reason;" (iii) there is a material diminution of your primary
job function, or the assignment to you of duties which are materially
inconsistent with your primary job function, or which materially impair your
ability to perform your primary job function with the Company; (iv) the Company
delivers to you a written notice of intended termination of this agreement
pursuant to Section 1 above at a time when the Company would not have Cause to
terminate your employment; or (v) there is a material breach of this agreement
by the Company which is not remedied in a reasonable period of time after
receipt of written notice from you specifying such breach.
19. The obligation of the Company to make any payments provided for
hereunder and otherwise to perform their obligations hereunder shall not be
affected by any set-off, counterclaim, recoupment, defense or other claim, right
or action which the Company may have against you or others. In no event shall
you be obligated to seek other employment or take other action by way of
mitigation of the amounts payable to you under any of the provisions of this
agreement, and such amounts shall not be reduced (except as otherwise
specifically provided herein) whether or not you obtain other employment.
20. In the event of any change in the outstanding shares of the Company's
Common Stock (including any increase or decrease in such shares) by reason of
any stock dividend or split, recapitalization, merger, consolidation, spin-off,
combination or exchange of shares or other similar corporate change, or any
distributions to common stockholders other than regular cash dividends, the
Compensation Committee of the Board may make such substitution or adjustment, if
any, as it deems to be equitable, as to the number or kind of shares of Common
Stock provided for in this agreement.
21. As with all prospective employees, a recent medical examination
evidencing general good health must be completed prior to employment. Your
physician should send the results of such examination to the Company's Chief
Medical Officer.
22. This agreement will be governed by and construed in accordance with the
laws of the State of New Jersey, U.S.A.
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23. (a) No rights or obligations of the Company under this agreement may be
assigned or transferred by the Company except that such rights or obligations
may be assigned or transferred pursuant to a merger or consolidation in which
the Company is not the continuing entity, or pursuant to the sale or transfer of
all or substantially all of the assets of the Company, provided that the
assignee or transferee is the successor to all or substantially all of the
assets of the Company.
(b) This agreement shall not be terminated by any merger, consolidation
or transfer of assets of the Company referred to above. In the event of any such
merger, consolidation or transfer of assets, the provisions of this agreement
shall be binding upon the surviving or resulting corporation or the person or
entity to which such assets are transferred.
(c) The Company agrees that concurrently with any merger, consolidation
or transfer of assets referred to above, it will cause any successor or
transferee unconditionally to assume, either contractually or as a matter of
law, all of the obligations of the Company hereunder.
(d) This agreement shall inure to the benefit of, and be enforceable by
or against, you or your personal or legal representatives, executors,
administrators, successors, heirs, distributes, designees and legatees. None of
your rights or obligations under this agreement may be assigned or transferred
by you other than your rights to compensation and benefits, which may be
transferred only by will or operation of law. If you should die while any
amounts or benefits have been accrued by you but not yet paid as of the date of
your death and which would be payable to you hereunder had you continued to
live, all such amounts and benefits unless otherwise provided herein shall be
paid or provided in accordance with the terms of this agreement to such person
or persons appointed in writing by you to receive such amounts or, if no such
person is so appointed, to your estate.
24. No provisions of this agreement may be waived, modified or discharged
unless such waiver, modification or discharge is agreed to in writing signed by
both you and an authorized officer of the Company. No waiver by any party hereto
at any time of any breach by any 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. No agreements or representations,
oral or otherwise, express or implied, with respect to the subject matter hereof
have been made by any party which are not set forth expressly in this agreement.
25. This agreement sets forth the entire agreement of the parties hereto in
respect of the subject matter contained herein and supersedes all prior
agreements, promises, covenants, arrangements, communications, representations
or warranties, whether oral or written, by any officer, employee or
representative of any party hereto in respect of the subject matter contained
herein.
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26. This agreement may be executed by the parties in two or more
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall constitute one and the same instrument, and all signatures
need not appear on any one counterpart. A faxed signature of a party which is a
reproduction of a genuine signature of that party shall be conclusive evidence
of execution of this agreement by that party.
Very truly yours,
XXXX XXXXXX
Chief Executive Officer
I accept the terms set forth in this letter and will serve in the capacity
stated:
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XXXXXXXXXXX X. XXXXXXXX
Dated: February ____, 1998
