EXHIBIT 10.22
ICN PHARMACEUTICALS, INC.
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement") entered into as of the 24th day of
October, 2002 (the "Effective Date"), by and between ICN PHARMACEUTICALS, INC.
(the "Company") and XXXXXXX X. XXXXX, 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. The Company values Executive's anticipated contributions to the
Company's operations and strategic direction, and intends that Executive will be
appointed to the offices of President and Chief Executive Officer after the end
of the Initial Term (as defined below).
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 the "Start Date" (as defined below), 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". For purposes of this Agreement, the term "Start Date" shall
mean November 5, 2002 (the "Start Date"). 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) Executive shall be employed as President and Chief Operating
Officer of the Company (until such time as he is appointed Chief Executive
Officer, at which point he shall be employed as Chief Executive Officer).
Executive shall perform the duties, undertake the responsibilities and exercise
the authority customarily performed, undertaken and exercised by persons
situated in a similar executive capacity.
(b) Executive shall report directly to the Company's Chairman and
Chief Executive Officer until such time as he is appointed to the office of
Chief Executive Officer, after which he shall report directly to the Board of
Directors of the Company (the "Board"). Conditioned upon satisfaction by the
Board of Executive's performance, Executive shall be appointed to the offices of
President and Chief Executive Officer by not later than ninety (90) days after
the expiration of the Initial Term.
(c) Excluding periods of vacation and sick leave to which
Executive is entitled, Executive agrees to devote reasonable attention and time
during usual business hours to the business and affairs of the Company to the
extent necessary to discharge the responsibilities of Executive hereunder.
Executive may (i) serve on corporate, civil or charitable boards or committees,
(ii) manage personal investments and (iii) deliver lectures and teach at
educational institutions, so long as such activities do not significantly
interfere with the performance of Executive's responsibilities hereunder.
3. Compensation. During the term of his 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 $600,000 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, and in any event shall be increased in connection
with Executive's appointment as Chief Executive Officer.
(b) 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 (such
target bonus, as may hereafter be increased, the "Target Bonus") with the
opportunity to receive a maximum cash bonus of 160% of the Base Salary (subject
to increase to a level commensurate with the position upon Executive's
appointment as Chief Executive Officer), 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 50% of the Base Salary in
respect of the 2003 fiscal year (the "Guaranteed Bonus"). Any cash bonus (but,
with respect to fiscal year 2003 only, in excess of the Guaranteed Bonus) will
be based on performance by Executive and the Company and within the sole
discretion of the Board.
(c) Signing Bonus. Executive shall receive a special one-time cash
bonus (i) within thirty (30) days following the Start Date in the amount of
$202,500, and (ii) in the amount of the difference between $340,000 and the
amount of bonus paid to Executive by his former employer in respect of his 2002
performance, which bonus amount is anticipated to be paid by the former employer
and to exceed $340,000, and subject to repayment by Executive of each of the
foregoing bonuses in the event of Executive's voluntary termination without Good
Reason or Executive's termination by the Company for Cause, in either case prior
to the second anniversary of the Start Date.
(d) Stock Options/Restricted Shares.
(i) Initial Grant. On or prior to the Start Date, 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 1998 Stock Option Plan (the "Plan"), which option shall have a term of
not less than ten (10) years. The Initial Stock Option shall become exercisable
with respect to
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25% of such shares on each of the first four anniversaries of the date of grant,
and the exercise price per share shall be equal to the fair market value of the
Common Stock, as determined under the Plan, as of the close of business on the
date of grant. Notwithstanding the foregoing, the Initial Stock Option shall
vest and be fully exercisable upon a Change in Control and shall vest as
otherwise provided herein upon termination of Executive's employment.
(ii) Future Grants. On each date that annual stock options
are granted by the Company to its executive management group, so long as
Executive then remains in the employ of the Company, the Company will grant to
Executive an option or other equity grants (the "Annual Stock Option") to
purchase a number of shares of Common Stock to be determined by the compensation
committee of the Board (the "Compensation Committee"), and such determination
will include consideration of stock option awards and other equity grants for
comparable positions within the pharmaceuticals industry. Each Annual Stock
Option shall have a term of not less than ten (10) years. Executive will be
consulted in formulating management's recommendations to the Compensation
Committee with respect to such grants, and Executive will be entitled to
participate in management's presentations to the Compensation Committee. The
exercise price of each Annual Stock Option shall be determined pursuant to the
terms and conditions of the Plan, and shall become exercisable with respect to
25% of such shares on each of the first four anniversaries of the date of grant,
unless the Compensation Committee or another authorized body determines to cause
such Annual Stock Option to vest more rapidly. Notwithstanding the foregoing,
each Annual Stock Option shall vest and be fully exercisable upon a Change in
Control and shall vest as otherwise provided herein upon termination of
Executive's employment.
(iii) Option Agreements. The Initial Stock Option and each
Annual Stock Option 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 comparable executive employees of the Company including, but
not limited to, the Company's 401(k) and deferred compensation plans and any
supplemental retirement, salary continuation, stock option, deferred
compensation, supplemental medical or life insurance or other bonus or incentive
compensation plans; provided, that to the extent such programs do not provide
Executive with at least $1,000,000 of whole life insurance and long-term
disability coverage at a level of at least 65% of
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Base Salary, Executive will be consulted in formulating management's
recommendations to the Compensation Committee of the Board, and Executive will
be entitled to participate in presentations to the Compensation Committee, with
respect to obtaining these and any other material improvements in such benefit
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,
but in no event on a basis less favorable in terms of benefit levels or 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. relocation expenses, temporary
housing, physical examinations, additional reimbursement for uncovered medical
expenses, executive life insurance, tax, financial and legal advisory services,
automobile benefit and club membership, generally made available by the Company
to its senior executives; provided, that, with respect to club memberships, the
Company will retain any equity portion thereof to the extent that such retention
is permitted by the club (or if not so permitted, then to the extent that
Executive receives back from such club any amount paid by the Company, Executive
will receive such amount as a nominee of the Company and remit it to the
Company, less any taxes Executive must pay thereon with respect to which he
cannot obtain a refund). To the extent that the Company does not provide
Executive with the desired level of fringe benefits and perquisites pursuant to
the Company's existing policies, Executive will be consulted in formulating
management's recommendations to the Compensation Committee with respect thereto
and Executive will be entitled to participate in presentations to the
Compensation Committee with respect to obtaining any such additional fringe
benefits and perquisites.
(d) Eligibility Waiver of Waiting Times. Subject to the terms of
this Agreement, Executive and his 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, benefits that are no less favorable
in any material respect will be provided to Executive and his beneficiaries
outside such plans and arrangements.
(e) 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 or for promoting, pursuing or otherwise
furthering the business or interest of the Company.
(f) Office and Facilities. Executive shall be provided with an
appropriate office at the Company's executive offices in Costa Mesa, California,
with such secretarial and other support facilities as are commensurate with
Executive's status with the Company, which facilities shall be adequate for the
performance of his duties hereunder.
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(g) 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 Board in its discretion may determine.
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) As supplemented by Section 5(b), 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,
on written notice to Executive after having established Executive's Disability
and while Executive remains Disabled, 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. Executive shall be entitled to the
compensation and benefits provided for under this Agreement for any period prior
to Executive's termination by reason of Disability during which Executive is
unable to work due to a physical or mental infirmity.
(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) and as evidenced by a resolution adopted in good faith by a
majority of the independent members of the Board, subject to the payment by the
Company to Executive of the benefits provided in Section 7(a) hereof. "Cause"
shall mean, for purposes of this agreement: (A) an act of fraud or embezzlement
against the Company or any affiliate thereof or an unauthorized disclosure of
Confidential Information (as defined in Section 10 below) of the Company, in
each case which is willful and results in material damage to the Company; (B)
after written notice thereof and a reasonable opportunity to cure (if such
misconduct is susceptible to cure by Executive), any
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material, willful and knowing violation by Executive of any of his fiduciary
duties to the Company or of the Company's written corporate code of conduct as
in effect on the date hereof, which has, or was intended to have, a material
adverse impact on the Company; (C) self-dealing with respect to the Company's
assets, properties or business opportunities which in any case is intended to
result in the substantial personal enrichment of Executive (or another person or
entity related to Executive) at the expense of the Company; (D) conviction (or a
plea of nolo contendere to) a felony (other than traffic-related offenses or as
a result of vicarious liability); (E) willful misconduct as an employee of the
Company that results in material damage to the Company or its reputation and
continues after written notice thereof and a reasonable opportunity to cure (if
such misconduct is susceptible to cure by Executive); or (F) willful failure,
after written notice from the Company specifying the details of such failure, to
attempt to (x) perform Executive's duties in accordance with Section 2 hereof,
or (y) follow the legal and reasonable written directions of the Board, which
failure amounts to gross neglect in the performance of his duties to the
Company. No action or inaction shall be deemed willful if not demonstrably
willful and if taken or not taken by the Executive in good faith as not being
adverse to the best interests of the Company. Reference in this paragraph to the
Company shall also include direct and indirect subsidiaries of the Company, and
materiality and material adverse impact shall be measured based on the action or
inaction and the impact upon the Company taken as a whole. The Company may
suspend, with pay, the Executive upon Executive's indictment for the commission
of a felony as described under clause (D) above. Such suspension may remain
effective until such time as the indictment is either dismissed or a verdict of
not guilty has been entered.
(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 thirty (30) 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 prior to
the expiration of such thirty-day notice period, subject to the payment by the
Company of the benefits provided in either Section 7(d) or 7(e) hereof, as may
be applicable. Notice of non-renewal of the Term of Agreement by the Company
shall constitute a termination by the Company without Cause for purposes of
determining Executive's entitlement to severance and benefits after the end of
the then Term of Agreement or such earlier date as elected by Executive.
(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 thirty (30) 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 prior to the
expiration of such thirty-day notice period, subject to the payment by the
Company of the benefits provided in either Section 7(c) or 7(d) 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 (if susceptible to cure
by the Company) within 20 days 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.
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(i) Diminution of Responsibility. (A) A diminution in
Executive's title or position as in effect immediately prior thereto; (B) a
material diminution in Executive's status, title, or responsibilities (including
reporting responsibilities) as in effect immediately prior thereto (including,
but not limited to, as Good Reason, the Company's becoming a subsidiary of
another entity and Executive's not having the same position with the ultimate
parent entity that he had with the Company immediately prior to the Company's
becoming a subsidiary); (C) the assignment to Executive of any duties or
responsibilities that are materially inconsistent with such status, title,
position or responsibilities; (D) any removal of Executive from or failure to
reappoint or reelect Executive to the position of President and Chief Operating
Officer, except in connection with the termination of his employment for
Disability, Cause, as a result of his death or by Executive other than for Good
Reason, or except as a result of his appointment as President and Chief
Executive Officer; (E) any removal of Executive from or failure to reappoint or
reelect Executive (or appointment or election of any other person) to the
position of Chief Executive Officer once Executive is so elected, except in
connection with the termination of his employment for Disability, Cause, as a
result of Executive's death or by Executive other than for Good Reason; or (F)
if Executive has become a member of the Board, any removal of Executive from or
failure to reappoint or reelect him as a member of the Board, except in
connection with the termination of Executive's employment for Disability, Cause,
as a result of Executive's death or by Executive other than for Good Reason;
(ii) Failure to Appoint. A failure to have appointed
Executive as Chief Executive Officer on or prior to the ninetieth (90th) day
after the expiration of the Initial Term (for which purposes the condition
referred to in the second sentence of Section 2(b) hereof shall have no effect),
or the appointment of anyone other than Executive or the current Chief Executive
Officer as Chief Executive Officer;
(iii) Salary Reduction. A reduction in Executive's Base Salary
or a failure by the Company to increase Executive's Base Salary within any
twelve (12) month period by the average percentage increase during such period
of the base salaries of similarly situated executives of the Company (as
reasonably determined in good faith by the Company);
(iv) Relocation. The Company's requiring Executive to be
based at any place outside either (x) a 30-mile radius from Costa Mesa,
California, or (y) the Company's executive offices, except for reasonably
required travel on the Company's business;
(v) Discontinuation of Material Compensation or Benefit
Plan. The failure by the Company to (A) 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;
and (B) provide Executive with compensation and benefits substantially equal (in
terms of benefit levels and/or reward opportunities) to those provided for under
such plan;
(vi) Financial Statements. Any breach of the Company's
representations set forth in Section 13(l) hereof which has a material adverse
impact on the Company; or
(vii) Company Breach. Any other breach by the Company of any
material provision of this Agreement.
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(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 thirty (30) days prior to the termination of
Executive's employment and the Company shall have the option of terminating
Executive's duties and responsibilities prior to the expiration of such
thirty-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. Notice of non-renewal of the Term of Agreement by Executive shall
constitute a termination by Executive without Good Reason for purposes of
determining Executive's entitlement to severance and benefits after the end of
the then Term of Agreement.
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
Disability or by Executive without Good Reason, or by reason of Executive's
death, the Company shall pay Executive all amounts earned or accrued hereunder
through the termination date, including:
(i) any accrued and unpaid Base Salary;
(ii) reimbursement for any and all monies advanced 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;
(iv) the Guaranteed Bonus, if such termination occurs during
the 2003 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;
(v) any previous compensation which Executive has previously
deferred (including any interest earned or credited thereon), in accordance with
the terms and conditions of the applicable deferred compensation plans then in
effect;
(vi) any bonus earned but unpaid in respect of any fiscal
year preceding the termination date; and
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(vii) as provided under any benefit or equity plan or program
(the foregoing items in Sections 7(a)(i) through 7(a)(vii) being collectively
referred to as the "Accrued Compensation").
(b) Termination by the Company for Disability or By Reason of
Death. If Executive's employment is terminated by the Company for Disability or
by reason of Executive's death, the Company shall pay Executive (or his
beneficiaries, as applicable) the Accrued Compensation, and provide the
following benefits:
(i) an amount equal to the bonus or incentive award,
excluding any signing bonus described in Section 3(c) hereof, 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, which amount shall be payable in a lump sum, calculated
as if all performance targets and goals (if applicable) had been fully met at
the "target" level 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 termination date and (B) the denominator of
which is 365 (a "Pro Rata Bonus");
(ii) continued coverage under any health, medical, dental or
vision program or policy in which Executive was eligible to participate as of
the time of his employment termination for two (2) years following such
termination on terms no less favorable to Executive and his dependents
(including with respect to payment for the costs thereof) than those in effect
immediately prior to such termination; and
(iii) all restrictions on any outstanding awards granted by
the Company or any subsidiaries 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 and shall remain exercisable until the earlier to occur of (x) the
second anniversary of such termination of Executive's employment, or (y)
expiration of the original term of such options.
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 the Executive
for Good Reason, in Each Case After the Transition Date. If Executive's
employment by the Company shall be terminated by the Company without Cause or by
the Executive for Good Reason after the date of his appointment as Chief
Executive Officer (such date, the "Transition Date"), other than after the first
anniversary of a Change in Control or in contemplation of a Change in Control as
provided in Section 7(d) hereof, then Executive shall be entitled to the
benefits provided in this Section 7(c); provided, however, that if Executive
engages in Prohibited Activities, then Executive's eligibility to continue to
receive the benefits provided for in Section 7(c)(iii) below shall immediately
terminate. 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 develops, manufactures, markets and/or distributes (directly
or indirectly)
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prescription or non-prescription pharmaceuticals or medical devices for
treatments in the fields of dermatology, oncology or hepatology (each, a
"Competitive Business"); provided, that Prohibited Activities shall not mean
Executive's (i) investment in securities of a publicly-traded company equal to
less than five (5%) percent of such company's outstanding voting securities, or
(ii) employment of Executive (or owning compensatory equity in connection
therewith) by a company that conducts one or more lines of Competitive
Businesses, so long as Executive is not employed by such company in a
Competitive Business.
(i) any Accrued Compensation through the end of the notice
period provided for in Section 5(e) hereof;
(ii) the Pro Rata Bonus;
(iii) the Company shall pay Executive as severance pay, in
lieu of any further Base Salary for the periods subsequent to the termination
date an amount in cash, which amount shall be payable fifty percent (50%) in a
lump sum within ten (10) days after such termination, and fifty percent (50%) in
twelve substantially equal monthly installments, equal to two (2) times the sum
of (A) Executive's 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. For purposes of this Section 7, the term
"Bonus Amount" shall mean the higher of (x) the average of the cash bonus or
incentive compensation, excluding any signing bonus described in Section 3(c)
hereof, received by Executive for the two fiscal years immediately preceding the
termination date, and (y) the Target Bonus;
(iv) continued coverage under any health, medical, dental or
vision program or policy in which Executive was eligible to participate as of
the time of his employment termination for two (2) years following such
termination on terms no less favorable to Executive and his dependents
(including with respect to payment for the costs thereof) than those in effect
immediately prior to such termination; and
(v) all restrictions on any outstanding awards granted by
the Company or any subsidiaries 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 and shall remain exercisable until the earlier to occur of (x) the
second anniversary of such termination of Executive's employment, or (y)
expiration of the original term of such options.
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.
(d) Termination by the Company Without Cause or by Executive for
Good Reason, in Each Case Before the Transition Date or Following a Change in
Control. If (x) 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) or in
contemplation of a Change in Control, or (y) Executive
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terminates his employment with the Company for Good Reason or the Company
terminates Executive's employment without Cause, at any time before the
Transition Date, then in lieu of the amounts due under Section 7(c) above,
Executive shall be entitled to the benefits provided in this Section 7(d);
provided, however, that if Executive engages in Prohibited Activities, then
Executive's eligibility to continue to receive the benefits provided for in
Section 7(d)(iii) below shall immediately terminate.
(i) any Accrued Compensation through the end of the notice
period provided for in Section 5(e) hereof;
(ii) the Pro Rata Bonus;
(iii) the Company shall pay Executive as severance pay and in
lieu of any further Base Salary for periods subsequent to the termination date,
an amount in cash, which amount shall be payable fifty percent (50%) in a lump
sum payment within ten (10) days following such termination, and fifty percent
(50%) in twelve substantially equal monthly installments, equal to three (3)
times the sum of (A) Executive's 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 given, and (B) the Bonus Amount;
(iv) for twenty-four (24) months, 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 or pay to Executive on a
monthly basis an amount equivalent to the monthly premiums or cost of such
coverage previously incurred by the Company. The benefits provided in this
Section 7(d)(iv) 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 (iv) 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;
(v) the Company shall pay in twenty-four (24) substantially
equal monthly installments, 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 the Company's supplemental and excess retirement
plans had (x) Executive remained employed by the Company for an additional two
(2) complete years of credited service, (y) his annual compensation during such
period been equal to his Base Salary (at the rate used for purposes of Section
7(c)(iii)) plus
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the Bonus Amount, and (z) he been fully (100%) vested in his benefits under each
such retirement plan, 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 (iv), "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
(vi) all restrictions on any outstanding awards granted by
the Company or any subsidiaries 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 and shall remain exercisable until the earlier to occur of (x) the
third anniversary of such termination of Executive's employment, or (y)
expiration of the original term of such options.
(e) Retirement. In the event that Executive voluntarily retires
from the Company in accordance with the Company's policies in effect at that
time, Executive shall be entitled to all benefits provided under Section 7(c) or
7(d), as applicable, other than the severance amount under Section 7(c)(iii) or
Section 7(d)(iii), respectively, and such amounts as may be payable pursuant to
the terms of the applicable benefit plans in which Executive participates.
Executive shall not be required to mitigate the amount of any
payment provided for under this Section 7 by seeking other employment or
otherwise and no such payment shall be offset or reduced by the amount of any
compensation or benefits provided to Executive in any subsequent employment. The
Company's obligation to make the payments provided for in this Agreement and
otherwise to perform its obligations hereunder shall not be affected by any
circumstances, including without limitation, set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against
Executive or others.
8. Change in Control. For purposes of this Agreement, a "Change in
Control" shall mean any of the following events:
(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; or
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(c) approval by stockholders of the Company of:
(i) a merger or consolidation involving the Company 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) a complete liquidation or dissolution of the Company or
an agreement for the sale or other disposition of all or substantially all of
the assets of the Company.
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.
9. Federal Excise Tax. In the event that the Executive becomes entitled
to payments and/or benefits which would constitute "parachute payments" within
the meaning of Section 280G(b)(2) of the Internal Revenue Code of 1986, as
amended (the "Code"), the provisions of Exhibit A shall apply.
10. Records and Confidential Data.
(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) Following the termination of Executive's employment hereunder,
as soon as possible after the Company's written request, Executive will return
to the Company all written Confidential Information which has been provided to
Executive and Executive will destroy all copies of any analyses, compilations,
studies or other documents prepared by Executive or for Executive's use
containing or reflecting any Confidential Information. Within five (5) business
days of the receipt of such request by Executive, he shall, upon written request
of the Company,
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deliver to the Company a document certifying that such written Confidential
Information has been returned or destroyed in accordance with this Section
10(c).
(d) For the purposes of this Agreement, "Confidential Information"
shall mean all confidential and proprietary information of the Company and its
affiliates, including, without limitation, 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 generally available to the public, (ii)
information obtained by Executive other than pursuant to or in connection with
this employment and (iii) information which is required to be disclosed by law
or legal process.
(e) Executive's obligations under this Section 10 shall survive
the termination of the Term of Agreement.
11. 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 of the Company. For
purposes of this covenant, "solicit" or "solicitation" means directly or
indirectly influencing or attempting to influence employees 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 11 are
reasonable and desirable to protect the Confidential Information of the Company,
provided, that solicitation through general advertising or the provision of
references shall not constitute a breach of such obligations.
(b) It is the intent and desire of Executive and the Company that
the restrictive provisions of this Section 11 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 11
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 11 shall survive
the termination of the Term of Agreement.
12. Remedies for Breach of Obligations under Sections 10 or 11 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 10 or 11 hereof. Accordingly, Executive agrees that
the Company will be entitled, in addition to any other available remedies, to
obtain injunctive relief against any breach or prospective breach by
-14-
Executive of his obligations under Sections 10 or 11 hereof in any Federal or
state court sitting in the State of California, 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 13(h) 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. Executive further agrees that, in addition to any other remedies
available to the Company by operation of law or otherwise, he will 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, if (A) Executive breaches his obligations
under Section 10 hereof either intentionally or recklessly and such breach has a
material and adverse impact on the Company; or (B) Executive breaches his
obligations under Section 11 hereof with respect to executives of the Company
but only if he is personally and directly involved in the solicitation
activities.
13. Miscellaneous.
(a) Successors and Assigns.
(i) This Agreement shall be binding upon and shall inure to
the benefit of the Company, its successors and permitted 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 same extent that the Company would
be required to perform if no such succession or assignment had taken place. The
Company may not assign or delegate any rights or obligations hereunder except to
a successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company. 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 and advisory fees and related expenses, up to a maximum amount
of $30,000, 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
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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) Indemnity Agreement. To the extent provided to any other
executive of the Company, the Company and Executive shall enter into an
Indemnity Agreement, consistent with the Company's by-laws (the "By-laws") and
Certificate of Incorporation (the "Certificate of Incorporation") providing for
indemnification of Executive in the carrying out of his duties and
responsibilities (an "Indemnity Agreement"); provided, that the entry into such
Indemnity Agreement shall not be a condition precedent to Executive's right to
be indemnified by the Company as provided in such By-laws and Certificate of
Incorporation. In addition, the Company will indemnify Executive and will cause
Executive to be indemnified by its subsidiary or affiliate, as applicable, in
his capacity as an officer or director of any subsidiary or affiliate of the
Company for which Executive serves as such, to the fullest extent permitted by
the laws of the state of incorporation of such subsidiary or affiliate in effect
from time to time, or the certificate or incorporation or by-laws of such
subsidiary or affiliate, whichever affords the greater protection to Executive.
The Company shall supplement its obligations pursuant to this Section 13(d) and
under the By-laws and Certificate of Incorporation with insurance policies
maintained generally for the benefit of its officers and directors against all
costs, charges and expenses incurred in connection with any action, suit or
proceeding to which Executive may be made a party by reason of being a director
or officer of the Company and Executive shall be covered to the greatest extent
of any other officer or director of the Company. Subject to the provision of any
Indemnity Agreement with Executive, which provision shall supercede, Executive
shall be entitled to select one firm of attorneys (plus local counsel, if
required) to represent him with respect to any matter for which he is entitled
to be indemnified by the Company, or for which the Company provides insurance
coverage, as contemplated by this Section 13(d). Any indemnification or
insurance payment to which Executive is otherwise entitled shall include
reimbursement to Executive for the reasonable fees and disbursements of
Executive's attorneys. The obligations under this paragraph shall survive any
termination of the Term of Agreement.
(e) 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.
(f) Release Of Claims. The Company may condition payment of the
cash termination benefits described in Sections 7(b), 7(c) and 7(d) of this
Agreement upon the delivery by Executive of a signed release of claims in the
form of Exhibit B hereto; provided, however, that Executive shall not be
required to release any rights Executive may have to be indemnified by the
Company under Section 13(d) of this Agreement or the certificate of
incorporation or by-laws of the Company.
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(g) 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. 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.
(h) 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 from JAMS. In the event the parties are unable to
agree in such time, JAMS will provide a list of five available arbitrators and
an arbitrator will be selected from such five-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 13(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 10 or 11 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, excluding, however, the cost of representation of Executive unless
such cost is awarded in accordance with law or otherwise awarded by the
arbitrators. The arbitrator may award legal fees to the prevailing party in his
sole discretion, provided that the percentage of fees so awarded shall not
exceed 1% of the net worth of the paying party (i.e., the Company or Executive).
(i) 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.
(j) 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,
-17-
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.
(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) Financial Statements. The Company represents and warrants
that, to its knowledge, as of the Start Date, all financial statements of the
Company filed within its reports to the Securities and Exchange Commission
during 2002 fairly present in all material respects the financial position of
the Company in conformity with Generally Accepted Accounting Principles as of
the applicable reporting dates except, in the case of quarterly periods, for
normal year-end adjustments and the absence of footnotes.
(m) 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.
[Signature page follows]
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
by its duly authorized officer and Executive has executed this Agreement as of
the day and year first above written.
ICN PHARMACEUTICALS, INC.
By:
----------------------------------------
Title: Chairman and Chief Executive Officer
EXECUTIVE
By:
----------------------------------------
Name: Xxxxxxx X. Xxxxx
EXHIBIT A
GROSS-UP PROVISIONS
(a) Anything in this Agreement to the contrary notwithstanding, in the
event it shall be determined that Executive shall become entitled to payments
and/or benefits provided by this Agreement or any other amounts in the "nature
of compensation" (whether pursuant to the terms of this Agreement or any other
plan, arrangement or agreement with the Company or any affiliate, any person
whose actions result in a change of ownership or effective control of the
Company covered by Section 280G(b)(2) of the Code or any person affiliated with
the Company or such person) as a result of such change in ownership or effective
control of the Company (a "Payment") would be subject to the excise tax imposed
by Section 4999 of the Code or any interest or penalties are incurred by
Executive with respect to such excise tax (such excise tax, together with any
such interest and penalties, are hereinafter collectively referred to as the
"Excise Tax"), then Executive shall be entitled to receive an additional payment
(a "Gross-Up Payment") in an amount such that after payment by Executive of all
taxes (including any interest or penalties imposed with respect to such taxes),
including, without limitation, any income taxes (and any interest and penalties
imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment,
Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments.
(b) Subject to the provisions of paragraph (c), all determinations
required to be made under this Exhibit A, including whether and when a Gross-Up
Payment is required and the amount of such Gross-Up Payment and the assumptions
to be utilized in arriving at such determination, shall be made by a nationally
recognized accounting firm (the "Accounting Firm") which shall provide detailed
supporting calculations both to the Company and Executive within 15 business
days of the receipt of notice from Executive that there has been a Payment, or
such earlier time as is requested by the Company. The Accounting Firm shall be
jointly selected by the Company and Executive and shall not, during the two
years preceding the date of its selection, have acted in any way on behalf of
the Company or its affiliated companies. If the Company and Executive cannot
agree on the firm to serve as the Accounting Firm, then the Company and
Executive shall each select a nationally recognized accounting firm and those
two firms shall jointly select a nationally recognized accounting firm to serve
as the Accounting Firm. All fees and expenses of the Accounting Firm shall be
borne solely by the Company. Any Gross-Up Payment, as determined pursuant to
this Exhibit A, shall be paid by the Company to Executive within five days of
the receipt of the Accounting Firm's determination. If the Accounting Firm
determines that no Excise Tax is payable by Executive, it shall furnish
Executive with a written opinion, based upon "substantial authority" (within the
meaning of Section 6230 of the Code), that failure to report the Excise Tax on
Executive's applicable federal income tax return would not result in the
imposition of a negligence or similar penalty. Any determination by the
Accounting Firm shall be binding upon the Company and Executive, absent manifest
error. As a result of the uncertainty in the application of Section 4999 of the
Code at the time of the initial determination by the Accounting Firm hereunder,
it is possible that Gross-Up Payments which will not have been made by the
Company should have been made ("Underpayment"), consistent with the calculations
required to be made hereunder. In the event that the Company exhausts its
remedies pursuant to paragraph (c) hereof and Executive
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thereafter is required to make a payment of any Excise Tax, the Accounting Firm
shall determine the amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Company to or for the benefit of
Executive.
(c) The Executive shall notify the Company in writing of any claim by
the Internal Revenue Service that, if successful, would require the payment by
the Company of a Gross-Up Payment. Such notification shall be given as soon as
practicable but no later than ten business days after Executive is informed in
writing of such claim and shall apprise the Company of the nature of such claim
and the date on which such claim is requested to be paid. The Executive shall
not pay such claim prior to the expiration of the 30-day period following the
date on which he gives such notice to the Company (or such shorter period ending
on the date that any payment of taxes with respect to such claim is due). If the
Company notifies Executive in writing prior to the expiration of such period
that it desires to contest such claim, Executive shall:
(i) give the Company any information reasonably requested by the
Company relating to such claim,
(ii) take such action in connection with contesting such claim as
the Company shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with respect
to such claim by an attorney reasonably selected by the Company,
(iii) cooperate with the Company in good faith in order effectively
to contest such claim, and
(iv) permit the Company to participate in any proceedings relating
to such claim; provided, however, that the Company shall bear and pay
directly all costs and expenses (including additional interest and
penalties) incurred in connection with such contest and shall indemnify
and hold Executive harmless, on an after-tax basis, for any Excise Tax or
income tax (including interest and penalties with respect thereto) imposed
as a result of such representation and payment of costs and expenses.
Without limitation on the foregoing provisions of this paragraph (c), the
Company shall control all proceedings taken in connection with such
contest and, at its sole option, may pursue or forego any and all
administrative appeals, proceedings, hearings and conferences with the
taxing authority in respect of such claim and may, at its sole option,
either direct Executive to pay the tax claimed and xxx for a refund or
contest the claim in any permissible manner, and Executive agrees to
prosecute such contest to a determination before any administrative
tribunal, in a court of initial jurisdiction and in one or more appellate
courts, as the Company shall determine; provided, however, that if the
Company directs Executive to pay such claim and xxx for a refund, the
Company shall advance the amount of such payment to Executive, on an
interest-free basis, and shall indemnify and hold Executive harmless, on
an after-tax basis, from any Excise Tax or income tax (including interest
or penalties with respect thereto) imposed with respect to such advance or
with respect to any imputed income with respect to such advance; and
further provided Executive shall not be required by the Company to agree
to any extension of the statute of limitations relating to the payment of
taxes for the taxable year
-3-
of Executive with respect to which such contested amount is claimed to be
due unless such extension is limited solely to such contested amount.
Furthermore, the Company's control of the contest shall be limited to
issues with respect to which a Gross-Up Payment would be payable hereunder
and Executive shall be entitled to settle or contest, as the case may be,
any other issue raised by the Internal Revenue Service or any other taxing
authority.
(d) If, after the receipt by Executive of an amount advanced by the
Company pursuant to paragraph (c) hereof, Executive becomes entitled to receive
any refund with respect to such claim, Executive shall (subject to paragraph (f)
hereof and subject to the Company's complying with the requirements of paragraph
(c) hereof) promptly pay to the Company the amount of such refund (together with
any interest paid or credited thereon after taxes applicable thereto). If, after
the receipt by Executive of an amount advanced by the Company pursuant to
paragraph (c) hereof, a determination is made that Executive shall not be
entitled to any refund with respect to such claim and the Company does not
notify Executive in writing of its intent to contest such denial of refund prior
to the expiration of 30 days after such determination, then such advance shall
be forgiven and shall not be required to be repaid and the amount of such
advance shall offset, to the extent thereof, the amount of Gross-Up Payment
required to be paid.
(e) If, pursuant to regulations issued under Section 280G or 4999 of the
Code, the Company and Executive were required to make a preliminary
determination of the amount of an excess parachute payment and thereafter a
redetermination of the Excise Tax is required under the applicable regulations,
the parties shall request the Accounting Firm to make such redetermination. If
as a result of such redetermination an additional Gross-Up Payment is required,
the amount thereof shall be paid by the Company to Executive within five days of
the receipt of the Accounting Firm's determination. If the redetermination of
the Excise Tax results in a reduction of the Excise Tax, Executive shall take
such steps as the Company may reasonably direct in order to obtain a refund of
the excess Excise Tax paid. If the Company determines that any suit or
proceeding is necessary or advisable in order to obtain such refund, the
provisions of paragraph (c) hereof relating to the contesting of a claim shall
apply to the claim for such refund, including, without limitation, the
provisions concerning legal representation, cooperation by Executive,
participation by the Company in the proceedings and indemnification by the
Company. Upon receipt of any such refund, Executive shall (subject to paragraph
(f) hereof) promptly pay the amount of such refund to the Company. If the amount
of the income taxes otherwise payable by Executive in respect of the year in
which Executive makes such payment to the Company is reduced as a result of such
payment, Executive shall, no later than the filing of his income tax return in
respect of such year, pay the amount of such tax benefit to the Company (subject
to paragraph (f) hereof). In the event there is a subsequent redetermination of
Executive's income taxes resulting in a reduction of such tax benefit, the
Company shall, promptly after receipt of notice of such reduction, pay to
Executive the amount of such reduction. If the Company objects to the
calculation or recalculation of the tax benefit, as described in the preceding
two sentences, the Accounting Firm shall make the final determination of the
appropriate amount. The Executive shall not be obligated to pay to the Company
the amount of any further tax benefits that may be realized by him as a result
of paying to the Company the amount of the initial tax benefit.
-4-
(f) Each provision of this Exhibit A shall be interpreted in a manner
consistent with the overall intent of this Exhibit A, which is to make Executive
whole, on an after-tax basis, from any imposition of (or claim to impose) the
Excise Tax, it being acknowledged and understood that the reversal of any
advance made by the Company pursuant to paragraph (c) hereof, or the correction
of any other type of overpayment of a Gross-Up Payment to Executive by the
Company, may result in Executive paying to the Company an amount which is less
than the related advance or other overpayment by the Company. In particular and
not by way of limitation, any other provision of this Exhibit A notwithstanding,
Executive shall not in any event be obligated, in connection with repaying any
refund as described in paragraphs (d) and (e) hereof, to pay the Company an
amount greater than the net after-tax portion of any advance or other type of
Gross-Up Payment that he has retained or has recovered as a refund from the
applicable taxing authorities; but Executive shall not be relieved of his
obligation hereunder to recover certain amounts as a refund or credit.
-5-
EXHIBIT B
SEVERANCE AGREEMENT AND GENERAL RELEASE
ICN Pharmaceuticals, Inc. (the "Company") has agreed that, in return for my
signing this Release Agreement (the "Agreement"), the Company will provide me
with the severance benefits described in my Executive Employment Agreement dated
as of October 24, 2002 (the "Executive Employment Agreement"). I understand that
I am not entitled to these severance benefits unless I sign this Agreement. I
understand that, regardless of whether I sign this Agreement, the Company will
pay me any accrued salary and vacation to which I am entitled by law. In
consideration for the severance benefits I am receiving under this Agreement:
(1) I hereby release the Company and its parent, subsidiaries,
predecessors, successors, and affiliates, and their officers, directors,
employees, shareholders, and agents from any and all claims, liabilities, or
obligations of every kind, whether known or unknown, arising at any time prior
to and through the date I sign this Agreement. This general release includes,
but is not limited to: all federal and state statutory and common law claims;
claims related to my employment, termination of my employment, breach of
contract, tort, discrimination, harassment, retaliation, fraud, emotional
distress, compensation or benefits; and claims for any form of equity or
compensation. In releasing claims unknown to me at present, I acknowledge that I
have understood and waived all rights and benefits under Section 1542 of the
California Civil Code, and any law or legal principle of similar effect in any
jurisdiction. California Civil Code Section 1542 provides as follows: "A general
release does not extend to claims which the creditor does not know or suspect to
exist in his favor at the time of executing the release, which if known by him
must have materially affected his settlement with the debtor."
(2) I acknowledge that I am knowingly and voluntarily waiving and
releasing any rights that I may have under the Age Discrimination in Employment
Act of 1967, as amended ("ADEA"), and that the consideration given for the
waiver and release in the preceding paragraph is in addition to anything of
value to which I was already entitled and provided to me in order to obtain a
full release of all claims, including claims for age discrimination. I further
acknowledge that I have been advised by this writing that: (a) my waiver and
release do not apply to any rights or claims that may arise after the execution
date of this Agreement; (b) I have the right to consult with an attorney prior
to executing this Agreement; (c) I have twenty-one (21) days to consider this
Agreement (although I may choose voluntarily to execute this Agreement earlier);
(d) I have seven (7) days following the execution of this Agreement to revoke
the Agreement as to only any claim I may have for age discrimination under the
ADEA by providing written notice to the head of the Company's Human Resources
department which is received by 5:00 p.m. on the seventh day following my
execution of this Agreement (I acknowledge that I do not have a right to
revocation with respect to any other claims); and (e) this
Agreement will be effective upon my execution of it, but that no severance
benefits will be owed to me any sooner than the eighth day following my
execution of this Agreement. I further acknowledge that 90% of the benefits
provided to me by this Agreement are for the release of any potential claim for
age discrimination I may have under the ADEA.
(3) Notwithstanding anything herein to the contrary, I am not releasing:
(a) any claims that relate to my right to enforce this Agreement, (b) my rights
of indemnification and directors and officers liability insurance coverage (or
replacements therefor) to which I was entitled immediately prior to the date of
this Agreement with regard to my service on behalf of the Company and its
affiliates (including, without limitation, under Section 13(d) of the Executive
Employment Agreement); (c) my rights under any tax-qualified pension or claims
for accrued vested benefits under any other employee benefit plan, policy or
arrangement maintained by the Company or under COBRA; (d) my rights under the
provisions of the Executive Employment Agreement which are intended to survive
the termination of my employment; or (e) my rights as a stockholder.
* * *
This Agreement constitutes the complete, final and exclusive embodiment of the
entire agreement between the Company and me with regard to my release of all
known and unknown claims against the Company. I acknowledge and understand that
certain provisions in my Executive Employment Agreement are intended to and do
survive the termination of my employment and the execution of this Agreement. I
am not relying on any promise or representation, written or oral, that is not
expressly stated herein. This Agreement may only be modified by a written
agreement signed by both me and a duly authorized officer of the Company and
approved by the Company's Board of Directors.
UNDERSTOOD AND AGREED:
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Employee Date
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ICN Pharmaceuticals, Inc. Date
2
